The High Court has agreed to hear an appeal on the case of the Canberra man who hatched a kidnap plot from jail.
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Aaron James Holliday was in the Alexander Maconochie Centre awaiting trial for child sex offences - of which he was later found guilty - when he thought up the plan.
He approached another inmate, and asked him to organise someone on the outside to kidnap witnesses, have them record new statements and then kill them.
But the other inmate dobbed Holliday in to corrections.
In 2014, a jury found Holliday guilty of inciting to procure a kidnap, however his conviction was overturned on appeal. He remained in prison on the child sex offences.
Justice Michael Wigney, sitting on the ACT Court of Appeal, had found that a person cannot be convicted of incitement to procure a crime when the main crime - in this case kidnapping - had not actually happened.
"The offence incited (procuring the commission of the principal offence) is subject to a limitation or qualification: the principal offence must be committed by the third person for the procurer to be liable for that offence," Justice Wigney said.
"Because [the fellow inmate] did not successfully procure anyone to kidnap, and nobody was kidnapped, not only did [the inmate] not commit an offence, but Mr Holliday also could not be convicted of inciting [the inmate]."
The ACT Director of Public Prosecutions Jon White SC and deputy Margaret Jones appeared in the High Court on Friday to apply for special leave to appeal.
Mr White said the court of appeal result was absurd, as "incitement was by its very nature an inchoate offence".
He said the offence of incitement to procure kidnap was completed at the time Holliday made the approach.
On the other side, defence barristers Stephen Odgers SC and James Lawton, who appeared via videolink from Sydney for Holliday, argued in support of Justice Wigney's conclusion and reasoning on the issues.
But on Friday the full bench of the High Court, comprised of Justices Virginia Bell, Michelle Gordon and Stephen Gageler, granted the ACT DPP leave to appeal.
The matter will return for hearing at a later date.
Correction: an earlier version of this article said Justice Wigney was acting justice. He is an additional judge from the Federal Court of Australia.
