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

1. 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.

2. 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".

3. 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].

4. 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 the accused's knowledge or understanding concerning those events which, in turn, is relevant to what is probably the critical issue in this trial, namely, whether if the accused engaged in any "hostile actively" within the meaning of section 6(1)(b) of the Crimes (Foreign Incursions and Recruitment) Act, he did so with the intention of engaging in armed hostilities in a foreign state.

5. As the argument evolved, and in response to a matter noted by Mr Boulten (namely that once admitted into evidence the evidence is “in for all purposes”, as it is often put: see s 60 of the Evidence Act 1995 (NSW)), the Crown submitted that the use to which the evidence may be put should be limited under s 136 of the Evidence Act. That section provides:

“General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a)  be unfairly prejudicial to a party; or

(b)  be misleading or confusing.”

6. Mr Boulten submitted that to limit the use of the evidence in that way and, as would necessarily follow, to have to direct the jury in those terms, would entail a matter of artificiality which would operate to the prejudice of the accused. He said that the jury would be left to draw conclusions on the basis that what the accused had said about the circumstances of Abdullah Ocalan's arrest and conviction "could be some sort of idiosyncratic, highly-individualised process of reasoning that bore no resemblance to what was actually happening".

7. The Crown submitted, on the other hand, that to allow the evidence to be used for all purposes would be unfairly prejudicial to the Crown. The basis for that submission was that, whereas expert reports have been exchanged in advance of the trial and used as the basis for what ultimately became the admitted facts in Exhibit A, there is nothing in that material to suggest that the trial of Ocalan was a show trial, nor anything addressing the alleged length of the trial.

8. I took the view that to limit the use of the evidence and give a direction in the terms that would inevitably have to be given if that ruling was made could well operate in a manner that would tend to undermine a central premise of the accused's defence.

9. The central issue in the trial is, as I have indicated, the intention with which the accused committed any hostile activity in the border region of Turkey and Iraq in 2012. The evidence in the Crown case, however, opens a broad history leading up to that year. Specifically, it includes the fact that, in October 1999 as part of a protest in response to the arrest and sentencing of Abdullah Ocalan, the accused deliberately set fire to himself outside Town Hall in Sydney as a peace protest for Kurdistan.

10. To give the jury a direction drawing what some might regard as a relatively difficult or artificial distinction between the truth and what was understood to be the truth in the mind of the accused at a particular time could, I think, carry a significant risk of undermining the premise of that evidence and the defence in respect of that aspect of the Crown case.

11. Conversely, I concluded that the alleged prejudice to the Crown could be addressed in two ways, first by affording the Crown the opportunity to obtain further instructions from the experts evidently available to him, and secondly by the obvious fact that the accused may be cross-examined as to any of those matters, particularly if it transpires that his understanding of the relevant facts is wrong.

12. It may be, having regard to the evidence he gave (if it is accurate), that if indeed Abdullah Ocalan was convicted and sentenced to death within 10 days after his arrest, the objection to the description of the trial as a "show trial" may assume less significance than it appeared to have when the argument was heard earlier today.

13. In any event, for those reasons, I refused the Crown’s application for a ruling limiting the use of the evidence. As indicated during argument I will, however, give an appropriate direction to the jury during the course of my summing up as to the weight that can and should be placed on hearsay evidence that is untested and untestable.

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Decision last updated: 18 February 2019