respondent. The Crown's tender of MFI 10 was rejected. The accused was permitted to remain seated on the floor of the court rather than enter the dock.
Key principles
The Crown's tender of MFI 10 (correspondence between the accused and the Australian Embassy in Baghdad in 2015) was rejected under s 137 of the Evidence Act 2005 (NSW) because,...
The prejudice arose from: (a) the tendency of the material to establish the accused's failure to comply with bail conditions and flight from criminal charges in France, which was...
Section 34 of the Criminal Procedure Act 1986 (NSW) confers an unfettered discretion on the trial judge as to whether an accused person should enter the dock or remain on the...
It is not required that an accused establish 'a need to depart from the usual approach' or that something 'exceptional' be established about his or her trial in order to be...
Issues before the court
Whether correspondence between the accused and the Australian Embassy in Baghdad in 2015 (MFI 10) was admissible under s 137 of the Evidence Act...
Whether the accused should be required to enter the dock or permitted to remain seated on the floor of the court under s 34 of the Criminal...
Plain English Summary
In a terrorism-related trial, the judge refused to let the prosecution use emails showing the accused had previously skipped bail in France, because this would unfairly prejudice the jury and distract from the main issues. The judge also allowed the accused to sit on the courtroom floor rather than in the glass dock, ruling that judges have complete discretion over where defendants sit and need not find 'exceptional' circumstances to allow this.
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Judgment (2 paragraphs)
[1]
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:
1. the accused's presence in southern and south-eastern Turkey and northern Iraq in 2012;
2. his wearing of military uniform and insignia of the PKK and/or HPG in 2012;
3. his carrying of weaponry including, but not limited to, firearms, ammunition and grenades in 2012; and
4. his accompanying others in the PKK and/or HPG in 2012.
R v Lelikan [2018] NSWSC 1933 | Case summary | Zoe
Cited legislation
3 cited instruments linked from this judgment.
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 participated in the fighting. The critical issue is whether it may be inferred that the accused himself intended to engage in any hostile act at any stage, intention to engage in armed hostilities being an element of the offence.
In that context, the Crown indicated his intention to tender material relating to events that occurred in France before the period to which the present charge relates. That material was initially proposed to be included in a tender bundle prepared by the Crown but was excluded by the Crown in response to an objection on behalf of the accused.
The tender was then renewed. The renewal of the tender was said to have been prompted by the terms of Mr Boulten's opening address. After hearing argument yesterday morning, I rejected the tender, reserving my reasons so as not to detain the jury. These are my reasons for that ruling.
The material the subject of the tender is MFI 10. It consists of correspondence between the accused and the Australian Embassy in Baghdad in 2015 at a time when the accused, an Australian citizen, was attempting to obtain travel documents to enable him to return to Australia from a refugee camp in Iraq. In order to understand the basis of the tender, it is necessary to put that exchange in its chronological context.
The accused is of Kurdish ethnicity. He was born in Turkey but left that country, travelling ultimately to Australia where he sought asylum on the grounds of his fear of persecution in Turkey on the ground of his Kurdish ethnicity. He was granted a protection visa in Australia on the strength of that fear and became an Australian citizen in 2003. In 2004, he was issued with an Australian passport following which he departed Australia, travelling to France and the Netherlands. He was arrested in France in 2007 whereupon his Australian passport was confiscated by French authorities.
In response to his attempts to obtain a replacement passport, he was informed by the Director of the Australian Embassy in Paris, as revealed by the documents in MFI 10, that he could not be given an Australian passport until the investigation and trial of the matter for which he had been arrested in Paris was finalised, due to security agreements between Australia and the European Union. So far as the material before me reveals, his arrest appears to have related to his affiliation with the PKK.
The documents sought to be tendered by the Crown reveal that, being unable to obtain a replacement passport through lawful processes through the Australian Embassy in Paris, the applicant fled from France on a relative's passport and travelled to Iraq. The critical paragraph of the email sought to be tendered by the Crown states:
"The investigation took years and conditions were very oppressing. I have used one of my relative's passport to fly to Kurdish Region of Iraq in 2011 and settled in Makhmur Refugee Camp. I live in Makhmur Refugee Camp since then. I currently hold ID Card of Makhmour Refugee Camp. This identity card has permission to travel only between Erbil and Makhmour. With this refugee identity card one is not allowed to exit out of these two areas. Therefore I am not able to come to Baghdad. I need an ID card for me to travel to Bagdad. In addition, it is still dangerous to come to Bagdad by the highway as some areas are still under the control of ISIS gangs. I cannot go to Ankara as I did not go to Turkey for the last 22 years because of my political situation. So you're the only remedy, and this passport issue can only be resolved with you."
As already noted, the basis for the renewal of the tender of that material was said to be the need to respond to something said by Mr Boulten in his opening address at page 90 of the transcript. Mr Boulten said (at L36-42):
"[The accused] will tell you why he went to Makhmur; it's a complicated story. But essentially it is that towards the end of the peace negotiations the tensions between Turkey and the PKK were fraught; Turkey's relationship with European governments was close and people like him, Kurds in Europe, were at growing risk of imprisonment and deportation to Turkey. Had he been deported to Turkey, undoubtedly his life would have been miserable."
The Crown submitted that it should be entitled to rely on the correspondence with the Australian Embassy in Baghdad in order to rebut what was said to be the suggestion of those opening remarks that the reason the accused left France and travelled to Iraq was fear of deportation to Turkey.
The Crown case is that the reason the accused fled France was to become a fighter in Iraq. It was submitted that that proposition could be established inferentially from the exchange in MFI 10 in that the documents establish the accused was required by the conditions of his bail to remain in Paris and comply with a daily reporting condition. The Crown submitted that it could be inferred from his decision to leave France that he would not lightly do so in order to write articles in Iraq (as the accused contends), and that the more likely inference is that he fled France making a choice to go to Iraq as a fighter. The unstated premise of the submission is that a person is more likely to be motivated to flee from a bail obligation in order to become a fighter than a writer; a proposition the force of which I, for myself, would doubt. In any event, even if the material has some scant relevance to the issues identified, being the intention with which the accused left France and the intention with which he engaged in any act in Iraq, the material, in my view, is so prejudicial that it should be excluded in the exercise of my discretion under s 137 of the Evidence Act 2005 (NSW).
The prejudice is, first, the tendency of the material to establish the accused's failing to comply with his bail conditions and fleeing criminal charges or a charge in France. That, in turn, apart from being inherently prejudicial and barely relevant to the issues in the proceedings, would tend to introduce an additional issue that is embarrassing in the sense of being a distraction and waste of time, namely, the political environment in France in 2007 and in following years, France's relationship with Turkey, the nature of the charge with which the accused was charged in France, the likelihood of his being convicted or otherwise and, if convicted, deported to Turkey and so on. Those issues would, in my view, be an unwelcome distraction from the relatively narrow issues raised by the present trial.
Those are my reasons for excluding the material in MFI 10.
I wish briefly to record my reasons in relation to a different ruling earlier in the trial, if it can be called a ruling. At the outset of the trial I indicated, without opposition from the Crown, that I would allow the accused, who is on bail, to be seated behind his barrister, Mr Boulten, for the course of the trial. My reason for raising that issue was primarily the fact that I am sitting in court 5.8 in the Downing Centre, where there is a large column which stands between the Bench and the Bar and indeed between the Bar and the dock. The dock itself is a secure dock with a glass wall which can be opened to some extent but it is one of the more inconvenient docks for an accused person amongst the courts in which I have sat.
As already indicated, the Crown took no objection to the accused being seated within the area of the floor of the court rather than in the dock and accordingly that is the course that has been followed throughout the trial.
Since allowing that course, I have become aware of a published judgment of Button J in R v Stephen (No 2) [2018] NSWSC 167 in which his Honour reached the opposite conclusion on the same issue. That was a case in which an application was made for an accused to sit within the area of the floor of the court, as is occurring in this trial.
The accused was charged with murder, a more serious charge than the charge in this case (by reference to the maximum penalty), but the charge in the present case is nonetheless a very serious one.
Section 34 of the Criminal Procedure Act 1986 (NSW) provides:
"34 Practice as to entering the dock
The Judge may order the accused person to enter the dock or other place of arraignment or may allow him or her to remain on the floor of the court, and in either case to sit down, as the Judge considers appropriate."
The basis for the accused's application to be allowed to remain on the floor of the court was the mental state of the accused. Justice Button rejected the accused's application and required her enter the dock and remain in the dock throughout the trial. There does not appear to have been any issue as to whether she should be allowed to sit down.
In his judgment ruling on the application, Button J acknowledged that the section confers a discretion on a trial judge as to whether an accused person should be required to be seated in the dock or may be seated within the area of the floor of the court referred to in the section.
Accepting that the discretion is a broad one, I would not wish to be understood to suggest that it was not open to Button J to make the order his Honour did. I wish only to record my respectful disagreement with what I understand to be the approach taken as a matter of principle as recorded at [15] of the judgment, where his Honour said: "In my view, there is nothing exceptional about this matter individually or in combination, and there is no need to depart from the usual approach".
To the extent that the judgment might be understood to suggest any of the following three propositions: first, that the usual approach is for an accused person to sit in the dock; secondly, that an accused person wishing not to sit in the dock must establish "a need to depart from the usual approach"; and, thirdly, that, in order to do so, such a person must establish something "exceptional" about his or her trial, I would respectfully disagree as a matter of principle.
It is clear, in my view, that s 34 displaces any "usual approach" and confers an unfettered discretion on the trial judge to determine the way in which the trial will be conducted and, in particular, the placement of the accused person.
In the present case, the accused having been on bail for a lengthy period, and in the absence of any objection by the Crown, and also having regard to the inconvenient architecture of the court to which I have referred, I considered it appropriate, convenient and fair for the accused to sit where he is currently sitting.
[2]
Amendments
19 February 2019 - Parties names added to coversheet
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Decision last updated: 19 February 2019