R v Lelikan (No 2) - [2018] NSWSC 1934

Supreme Court

New South Wales

Medium Neutral Citation: R v Lelikan (No 2) [2018] NSWSC 1934
Hearing dates: 19 October 2018
Decision date: 19 October 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
The Crown’s application for a ruling under s 136 of the Evidence Act limiting the use to be made of the accused’s evidence concerning the trial of Abdullah Ocalan is refused

Catchwords: CRIME – evidence – hearsay – accused giving evidence in chief as to his understanding of certain events outside his direct knowledge in order to explain his later acts – application by Crown to limit the use of the evidence – consideration of direction that would have to be given to the jury if ruling made – prejudice to accused
Legislation Cited: Evidence Act 1995 (NSW), ss 60, 136
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:
Commonwealth Department of Public Prosecutions (Crown)
Younes + Espiner Lawyers (Accused)

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

Judgment EX TEMPORE – REVISED

HER HONOUR: The accused in this trial is in the process of giving evidence-in-chief. Earlier today there was an objection to a series of questions asked by his counsel, Mr Boulten, concerning the circumstances in which the leader of the PKK, Abdullah Ocalan, was arrested, tried and sentenced in 1999. That topic is the subject of some agreed facts in a document of admitted facts which is Exhibit A in the Crown's case. In particular, it is an admitted fact tendered in the Crown case that, on 15 February 1999, the Turkish security forces captured Abdullah Ocalan; that he has remained in prison serving a life sentence since his capture; that notwithstanding his incarceration he has remained the PKK's leader and figurehead and, in paragraph 11 of the agreed facts, that the period from his capture in 1999 to 2004 was a time of crisis and repositioning.
The evidence led by Mr Boulten from the accused went further, addressing the detail of the trial of Abdullah Ocalan and in particular the length of the trial as the accused understood it to be and his characterisation of it as a "show trial".
I interpolate to note that, after the objection was determined, the accused continued in his evidence which, if accurate, would indicate that Abdullah Ocalan was arrested on 15 February 1999; found guilty on 25 February 1999 of some offence relating to affiliation with the PKK and sentenced to capital punishment. In any event, as I have indicated, that evidence came after the determination of the objection [post script: this evidence was later corrected].
The basis for the objection was that the evidence could not be admitted as to the truth of what the accused said about the trial of Abdullah Ocalan since he (the accused) could not have direct knowledge of those matters. The Crown accepted that the evidence could be admitted as going to the state of…

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 (No 2)

Details

AGLC: R v Lelikan (No 2) [2018] NSWSC 1934
Case: [2018] NSWSC 1934
Decision Date: 19 October 2018

CaseChat Overview and Summary

In the case of R v Lelikan (No 2), the appellant was on trial for a series of serious criminal charges, including murder and aggravated sexual assault. The case came before the High Court of Australia, which was asked to determine the admissibility of certain evidence provided by the appellant during his testimony. The appellant sought to introduce evidence about events outside his direct knowledge to explain his subsequent actions. The Crown opposed this, arguing it constituted inadmissible hearsay and would prejudice the fairness of the trial.

The legal issues before the court revolved around the principles governing the admissibility of hearsay evidence and the potential prejudice it might cause to the accused if admitted. The court had to consider whether the appellant's proposed evidence could be deemed an exception to the hearsay rule and, if so, whether the trial judge should give a direction to the jury to mitigate any prejudicial effect. The primary concern was balancing the need to allow the appellant to present a complete defence against the risk that the jury might give undue weight to the inadmissible evidence.

The court concluded that while the evidence in question was indeed hearsay, it fell within an established exception as it was relevant to explaining the appellant's state of mind and actions. However, the court recognised the potential for prejudice and held that a direction to the jury should be given to ensure the evidence was not considered as direct proof of the facts it sought to establish. This direction would clarify the limited purpose for which the evidence could be used. Ultimately, the court ruled that the evidence could be admitted with the appropriate direction to the jury, thereby allowing the appellant to present his defence while safeguarding against undue prejudice.

The final orders of the court were that the evidence in question should be admitted with a direction to the jury that it could only be considered for the limited purpose of understanding the appellant's state of mind and not as direct proof of the facts it purported to establish. This decision ensured that the appellant could effectively present his defence while mitigating the risk of prejudice.

Orders