R v Lelikan (No 3) - [2019] NSWSC 90

Supreme Court

New South Wales

Medium Neutral Citation: R v Lelikan (No 3) [2019] NSWSC 90
Hearing dates: 26 October 2018
Date of orders: 29 October 2018
Decision date: 15 February 2019
Jurisdiction: Common Law
Before: McCallum J
Decision:
Publication of reasons for ruling given during criminal trial as to the directions to be given to the jury concerning the elements of the offence of engaging in a hostile activity in a foreign State

Catchwords: CRIME – terrorism offences – foreign fighting – offence of engaging in a hostile activity in a foreign State – elements of the offence – consideration of directions to be given to the jury – physical element – requirement that there be some realistic potential connection between the act alleged and the objective allegedly intended to be achieved – fault element – meaning of the phrase “armed hostilities”
Legislation Cited: Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6(1)(a), 6(1)(b), 6(2)(a), 6(3), 6(3)(aa), 7
Criminal Code Act 1995 (Cth), Schedule ss 117.1(1), 119.4
Cases Cited: Alqudsi v Commonwealth of Australia; Alqudsi v R [2015] NSWCA 351; (2015) 91 NSWLR 92
R v Cerantonio [2017] VSC 725
R v Mohamed (No 1) [2015] VSC 290
Category: Procedural and other rulings
Parties: Commonwealth Director of Public Prosecutions (Crown)
Renas Lelikan (Accused)
Representation:
Counsel:
P McGuire SC with R Ranken (Crown)
P Boulten SC (Accused)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Younes + Espiner Lawyers (Accused)

File Number(s): 2016/219466
Publication restriction: None (on 15 February 2019 the Crown indicated that it would not proceed further on the indictment against the accused)

Judgment

HER HONOUR: Renas Lelikan pleaded not guilty to a charge of engaging in a hostile activity in a foreign State contrary to s 6(1)(b) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (as it stood in 2012). The trial proceeded over four weeks before me with a jury. After deliberating for a further four weeks, the jury was unable to reach a verdict and was discharged.
During the course of the trial, I gave a ruling as to the directions to be given to the jury concerning the elements of the offence. This judgment records my reasons for that ruling.

Circumstances in which a ruling was sought

At the time relevant to the trial, s 6(1) of the Crimes (Foreign Incursions and Recruitment) Act provided:

(1) A person shall not:
(a) enter a foreign State with intent to engage in a hostile activity in that foreign State; or
(b) engage in a hostile activity in a foreign State.
Penalty: Imprisonment for 20 years.

The element of engaging in a hostile activity in a foreign State was defined in s 6(3) of the Act as follows:

(3) For the purposes of subsection (1), engaging in a hostile activity in a foreign State consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved):
(a) the overthrow by…

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.

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Details

Case: [2019] NSWSC 90
Decision Date: 15 February 2019

CaseChat Overview and Summary

In the case of R v Lelikan (No 3), the respondent was charged with engaging in hostile activities in a foreign State, specifically Syria, under the Criminal Code. The central issue before the court was the interpretation of the elements of the offence, specifically the physical and fault elements. The physical element requires a connection between the act and the intended objective, while the fault element involves the phrase “armed hostilities.” The court was required to determine whether the respondent's actions constituted engaging in hostile activities and if the jury directions accurately reflected the statutory requirements.

The court began by considering the physical element of the offence. It examined whether there was a realistic potential connection between the acts alleged and the objective of engaging in hostile activities. The court held that the prosecution needed to prove that the respondent's actions had a reasonable nexus to the objective of participating in armed hostilities. The court then turned to the fault element, which required the respondent to have knowledge of the nature of the armed hostilities and to engage in the activity with the intention of supporting the hostile activity. The court held that the phrase “armed hostilities” encompassed a broad range of activities that could be considered as part of armed conflict.

In delivering its judgment, the court found that the jury directions did not accurately reflect the statutory requirements for the offence. The court held that the directions did not require the jury to consider whether there was a realistic potential connection between the acts alleged and the objective of engaging in hostile activities. Additionally, the court held that the phrase “armed hostilities” should be interpreted broadly to include a range of activities that could be considered as part of armed conflict. The court ordered a retrial of the respondent, with appropriate jury directions to be provided.

The court's judgment clarified the elements of the offence of engaging in hostile activities in a foreign State and provided guidance on the interpretation of the phrase “armed hostilities.” The court's decision ensures that the prosecution must prove the physical and fault elements of the offence, and that the jury directions accurately reflect the statutory requirements. The case highlights the importance of accurately interpreting statutory provisions and providing appropriate jury directions in criminal trials.

Orders