R v Lelikan (No 3)

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.