R v Lelikan - [2018] NSWSC 1933

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Lelikan [2018] NSWSC 1933
Hearing dates: 16 October 2018
Date of orders: 16 October 2018
Decision date: 17 October 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
The Crown’s tender of MFI 10 is rejected
Publication of reasons for declining to order the accused to enter the dock and instead allowing him to take a seat on the floor of the court
Catchwords:
CRIME – evidence – trial for engaging in a hostile activity in a foreign state (Turkey and Iraq) – admissibility of documents tending to show that the accused had fled from France whilst on bail several years earlier
CRIMINAL PROCEDURE – trial judge’s unfettered discretion as to whether to order the accused to enter the dock or allow him to remain on the floor of the court and to sit down – no requirement for accused to establish a need to depart from any usual approach or to establish something “exceptional” about his or her trial
Legislation Cited: Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6(1)(a), 6(1)(b)
Criminal Procedure Act 1986 (NSW), s 34
Evidence Act 2005 (NSW), s 137
Cases Cited: R v Stephen (No 2) [2018] NSWSC 167
Category: Procedural and other rulings
Parties: Renas Lelikan (Accused)
Regina (Crown)
Representation:
Counsel:
P McGuire SC with R Ranken (Crown)
P Boulten SC (Accused)
Solicitors:
Office of the Commonwealth Director of Public Prosecutions (Crown)
Younes + Espiner Lawyers (Accused)

File Number(s): 2016/219466
Publication restriction: None

Judgment EX TEMPORE – REVISED

HER HONOUR: The accused, Renas Lelikan, has pleaded not guilty to a charge of engaging in a hostile activity in a foreign State during the year 2012 contrary to s 6(1)(b) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The particulars of the acts relied upon by the Crown to support the charge are:

the accused's presence in southern and south-eastern Turkey and northern Iraq in 2012;

his wearing of military uniform and insignia of the PKK and/or HPG in 2012;

his carrying of weaponry including, but not limited to, firearms, ammunition and grenades in 2012; and

his accompanying others in the PKK and/or HPG in 2012.

As noted by Mr Boulton SC, who appears for the accused, the case as opened to the jury by the Crown inflated those particulars in that it was asserted in respect of the accused's presence in the region (particular (a)) that he relocated himself to that region from Europe. It may be noted, if that were the assertion, that the accused could have been charged under s 6(1)(a) rather than s 6(1)(b). But, in any event, no point is taken in respect of that issue.
In a detailed and careful opening address by Mr Boulten on behalf of the accused, it has been made clear that there is no contest that the accused was present in the region identified during the period charged, nor indeed that he was armed and present with people who…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lelikan

Details

AGLC: R v Lelikan [2018] NSWSC 1933
Case: [2018] NSWSC 1933
Decision Date: 17 October 2018

CaseChat Overview and Summary

In the case of R v Lelikan, the accused faced a trial for engaging in a hostile activity in a foreign state, specifically in Turkey and Iraq. The central issue was the admissibility of documents that indicated the accused had fled from France while on bail several years prior. This case raised significant questions about the relevance and impact of past conduct on the current proceedings, particularly when the accused was on trial for separate and distinct criminal activities.

The legal issues the court needed to address included whether the evidence of the accused's flight from France was relevant to the current charges and whether it was prejudicial to the accused's case. The court had to balance the probative value of the evidence against the potential for unfair prejudice. Additionally, the court examined the trial judge's discretion to determine whether the accused should enter the dock or remain on the floor of the court. The court assessed whether the accused was required to demonstrate any exceptional circumstances to justify a departure from the usual approach of requiring the accused to enter the dock.

The court concluded that the evidence of the accused's flight from France was relevant and admissible, as it demonstrated a pattern of behaviour that could have implications for the accused's credibility and reliability. The court found that the probative value of the evidence outweighed any prejudicial effect it might have. Regarding the trial judge's discretion, the court affirmed that the judge had an unfettered discretion to decide whether the accused should enter the dock or remain on the floor of the court. The accused was not required to establish any exceptional circumstances to justify a departure from the usual practice. The court's decision upheld the trial judge's discretion in this matter.

Orders