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 1. 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. 2. 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 1. 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. 1. 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 force or violence of the government of the foreign State or of a part of the foreign State; (aa) engaging in armed hostilities in the foreign State; (b) causing by force or violence the public in the foreign State to be in fear of suffering death or personal injury; (c) causing the death of, or bodily injury to, a person who: (i) is the head of state of the foreign State; or (ii) holds, or performs any of the duties of, a public office of the foreign State or of a part of the foreign State; or (d) unlawfully destroying or damaging any real or personal property belonging to the government of the foreign State or of a part of the foreign State. 1. As already noted, the accused was charged under s 6(1)(b). For the purpose of that charge, the Crown relied on the definition provided in s 6(3)(aa). Accordingly, in order to prove that the accused engaged in a hostile activity in a foreign State, the Crown had to prove that the accused did an act with the intention of achieving the objective of engaging in armed hostilities in the foreign State. 2. The Crown also had to prove that the accused was an Australian citizen at the time of the acts alleged to constitute the offence: s 6(2)(a) of the Act. That element was admitted. 3. At an early point in the trial, with the agreement of the parties, I gave the jury written directions as to the elements of the offence (a copy of which was marked MFI 13) as follows: "To establish the offence, the Crown must prove beyond reasonable doubt each of the following elements: (1) That the accused engaged in a hostile activity in a foreign State. In order to prove this element, the Crown must prove beyond reasonable doubt: (a) that the accused did the acts in question (these will be outlined by the Crown in his opening address); (b) that he did those acts with the intention of engaging in armed hostilities in the foreign States in question (Iraq and Turkey). (2) That, at the time he did the acts, he was an Australian citizen." 1. The particulars of the acts relied upon to support the charge as opened by the Crown were: "(a) the accused's presence in southern and south-eastern Turkey and northern Iraq in 2012; (b) his wearing of military uniform and insignia of the PKK and/or HPG in 2012; (c) his carrying of weaponry including, but not limited to, firearms, ammunition and grenades in 2012; and (d) his accompanying others in the PKK and/or HPG in 2012." 1. The Crown relied on those particulars in combination and accepted that it was necessary to prove all four. There was no real dispute as to the proof of those acts but the accused contended they were anodyne. The main issue in the trial was whether they were committed with the necessary intention. The accused put forward a positive defence that he had accompanied members of the PKK and HPG into the mountain region as a journalist intending to chronicle their struggle against alleged oppression at the hands of the Turkish government and the violence of the Turkish militia. He denied that he had ever intended to engage in armed hostilities himself. Ruling sought 1. The issue the subject of the ruling was whether any further direction was required as to element (1) in MFI 13 beyond what was set out in that document. On day 10 of the trial, Mr Boulten SC, who appears for the accused, foreshadowed a submission that the concept of "armed hostilities" in s 6(3)(aa) required proof of action directed, whilst armed, towards the enemy (Tcpt, 19 October 2018, p 440(13)). 2. That was an important issue in the context of this trial. The Crown case rested primarily on the accused's own writings and photographs seized after his return to Australia. It included photographs capable of proving the four particulars set out above but involving activities that were not inherently hostile. A stark example was a photograph of the accused in the region of the border between Iraq and Turkey, in military uniform, carrying an assault rifle, in the company of PKK or HPG members, smiling broadly at the camera as he cradled a partridge chick in his hands. Another depicted him feeding a baby goat. The Crown wished to contend that if, at those moments, the accused had the necessary intention, the photographs established the offence of foreign fighting. 3. On 26 October 2018 (day 15 of the trial), I heard from the parties on that issue. The argument addressed both the nature of the act required to be proved (noting that it had to be an act accompanied by an intention) and the concept of "armed hostilities" in the fault element identified in s 6(3)(aa). 4. As the argument was developed, the burden of the submission put on behalf of the accused was that, as to the physical element of the offence, there must be some realistic potential connection between the acts relied upon by the Crown and the alleged objective of engaging in armed hostilities in the foreign State. The phrase "realistic potential connection" was drawn from the decision of the Supreme Court of Victoria (Croucher J) in R v Cerantonio (Rulings 1-11) [2017] VSC 725 at [163]. That decision is considered below. 5. As to the fault element, the accused's submission was that the objective identified in s 6(3)(aa) of engaging in "armed hostilities" was concerned with the actual or threatened use of weapons at the point of confrontation or hostility between the two groups and that the jury should be directed accordingly. The significance of that direction was that there was ample evidence of the accused travelling in the mountainous border region with members of the PKK or HPG but scant direct evidence (if any) of his being present at any particular point of armed conflict. Ruling 1. On 29 October 2018, I indicated my ruling broadly acceding to Mr Boulton's submissions (subject to formulating an appropriate direction: Tcpt, 29 October 2018, p 828(18)). The direction I ultimately gave in the summing up reflecting that ruling was as follows: "So you know [the first element in MFI 13] is that the Crown must prove beyond reasonable doubt that the accused engaged in a hostile activity in a foreign State. The document I gave you indicates that there are two parts to that. One is that the accused did certain acts, and the other is that he did those acts having, at the time he did those acts, the intention of engaging in armed hostilities. So there is a physical element, the acts of the accused, and there is what is sometimes called a mental element, or a fault element, which is concerned with the intention with which he did those acts. I am going to address the mental element first. For that element, the Crown must prove beyond reasonable doubt that the accused did the acts alleged with the intention of achieving the objective of engaging in armed hostilities in Iraq or Turkey. I am going to say that again in a slightly different way because it is important. You cannot convict the accused unless you are satisfied beyond reasonable doubt that he did the acts alleged with the intention of achieving a particular objective; and that is that he himself would engage in armed hostilities between the Turkish armed forces and the PKK or the HPG. It is important to emphasise that the term used is "armed hostilities" which necessarily refers to hostilities involving the use of weaponry. The word "hostilities" on its own would be quite broad. It might describe what you would see during question time in Parliament, or on a football field, when a footballer is questioning the decision of a referee, you might refer to that as "hostilities". But the statute under which the accused is charged refers to "armed hostilities", and that refers to hostilities of the kind seen in a military context involving the use of arms or weapons. Of course in the context of this trial it refers to armed hostilities between the Turkish armed forces and the Kurdish militia, the HPG. In order to prove the mental element of the offence, the Crown must prove beyond reasonable doubt that the accused did the acts alleged with the intention of achieving the objective of engaging in those armed hostilities at the point of armed confrontation between those two opposing sides. Turning to the physical element, as you have been told, the Crown relies on the combination of four acts. In short, they are: being present in the border region; wearing the uniform and insignia of the PKK or HPG; carrying weaponry (the rifle and the belt with the grenades); and being in the company of PKK or HPG guerrillas. Now, the Crown doesn't have to prove that any of those acts in itself was inherently hostile or violent. He doesn't have to prove that the accused in fact fired the rifle or threw a grenade or threatened to do so in the direction of Turkish soldiers. But there has to be some realistic connection between the acts relied upon by the Crown and the alleged objective of engaging in armed hostilities. So, for example, if the accused bought himself a cup of coffee at Erbil Airport while he was waiting to be picked up by a bus to go to the Makhmur refugee camp, and at the time formed the intention to engage in armed hostilities, it couldn't be said that he had committed the offence of engaging in armed hostilities in a foreign State, by buying a cup of coffee. The act must be one which serves the objective of engaging in armed hostilities." Reasons for ruling 1. The offence consists of doing an act with the intention of achieving an objective. The words of the statute do not qualify the kind of act. Arguably, any act will do. That was the position contended for by the Crown, as it was in Cerantonio. 2. The argument before me proceeded by reference to what were intended to serve as extreme examples testing the parameters of that contention, such as the act of tying a shoelace, or yawning, or the example taken in Cerantonio at [163] of blowing a kiss, in each case with the necessary intention (Croucher J recorded an additional example considered in Cerantonio of an accused person travelling to a foreign State with the intention of wearing a sandwich board saying "Bring down the government": at [138]). 3. The Crown submitted that it was not necessary to determine the fate of such extreme examples because the present case does not fall at the extreme. It may be accepted that the acts relied upon in the present trial come closer to the mark than the act of blowing a kiss, particularly in circumstances where the Crown accepts the need to prove all four of the particulars in combination. The act of being physically present in the relevant region on its own would have presented a considerably weaker case than the combined acts of being physically present in the relevant region, wearing a military-style uniform, being present with members of the PKK or HPG and carrying an assault rifle. 4. However, even taken in combination, those four acts are not such as to point unequivocally to the pursuit of the objective of engaging in armed hostilities. The accused's defence (that he was a writer, not a fighter) provides an obvious illustration of a possible alternative objective. Accordingly, I did not think it would be possible or appropriate to attempt to direct the jury without construing the section so as to determine the proper reach of its legal operation and effect. 5. For that purpose, it is appropriate to begin with an examination of the words of the statute. Section 6 provides that it is an offence for an Australian citizen to engage in a hostile activity in a foreign State. Relevantly for present purposes, the offence is created by subsection 6(1)(b) using a term defined in subsection 6(3)(aa). As already noted, the combined effect of those provisions is that, in order to prove that the accused committed the offence of engaging in a hostile activity in a foreign State, the Crown must prove that the accused did an act with the intention of achieving the objective of engaging in armed hostilities in the foreign State. 6. The Court of Appeal remarked upon the circularity of aspects of the drafting of s 6 in Alqudsi v Commonwealth of Australia; Alqudsi v R [2015] NSWCA 351; (2015) 91 NSWLR 92 at [73] (Leeming JA, with whom I agreed at [171]). That decision was concerned with an offence of entering a foreign State with intent to engage in a hostile activity in that foreign State contrary to s 6(1)(a). The circularity is perhaps more acute in the case of that first subsection. However, as noted by Mr Boulton, in either case the circularity is not complete. A hostile activity of the kind defined by reference to subsection 6(3)(aa) is characterised by the use of arms as an aspect of the objective intended to be achieved. Except where s 6(3)(aa) is relied upon, that is not an essential feature of either offence created by s 6(1); it is not a feature of any of the other objectives listed in s 6(3). 7. Further, it is significant that the act must be one committed with the intention of achieving the relevant objective. It follows, in my view, that in order to attract criminality under the section, the charged act would have to be one that was objectively capable of contributing to the achievement of that objective in the circumstances; otherwise, the section would criminalise a state of mind. Parliament cannot be taken to have intended to criminalise an act of yawning with intent. In saying so, I acknowledge, as made plain by the opening words of s 6(3), that it is irrelevant whether the relevant objective listed in s 6(3) is in fact achieved. I am here addressing the content of the physical element of the offence. 8. Finally, although the physical element of the offence is defined in the definition provision (s 6(3)) simply as "an act", with no elaboration or qualification other than the intention with which the act is done, the kind of act required to attract criminality must, in my view, be informed by the use of the word "hostile" in the offence provision (s 6(1)(b)): but cf Cerantonio at [165]. As submitted by Mr Boulton, that word must have some work to do. There is no reason why it should not be taken to inform both the physical element and the fault element of the offence. To the extent that Croucher J held otherwise in Cerantonio at [165], I respectfully disagree. It may be that the hostility of the activity will in some cases be manifest only from the intention with which the act was done but what is criminalised is activity, not passive thought. The act must be capable of serving the objective. 9. Based on my analysis of the language of the section, I concluded that there was force in Mr Boulton's submissions that the act must have some realistic connection with the objective and that, in the case of an offence invoking s 6(3)(aa), that objective must involve the use or threatened use of armed force at the point of the hostilities. 10. My review of the authorities addressed by the parties during argument on this issue did not dissuade me from that view. 11. The Crown relied on the Victorian decision of R v Mohamed (No 1) [2015] VSC 290. The accused in that case was charged with an offence contrary to s 7 of the Crimes (Foreign Incursions and Recruitment) Act of doing an act preparatory to the commission of an offence contrary to s 6(1)(a) (entering a foreign State with intent to engage in a hostile activity). An application was made to the trial judge for a number of pre-trial rulings, one of which concerned the meaning and scope of the expressions "to engage in a hostile activity in that foreign State" and "engaging in armed hostilities" as those words appear in s 6(1)(a) and s 6(3)(aa) of the Act. The accused submitted that both expressions should be construed narrowly and are "expressions which describe engaging in combat and acts of actual violence": at [57]. The Crown submitted it was ultimately unnecessary for the judge to determine that question. With "some hesitation", Lasry J agreed, principally because, on any view, the case as particularised was capable of falling within those terms. The Crown case was that the accused intended "to go over and fight" and "to go to the front line" and that he wanted "to be a martyr". Justice Lasry accepted (correctly, in my respectful opinion) that proof of those matters would constitute proof of an intention to engage in "armed hostilities" within the meaning of s 6(3)(aa), whatever conclusion was reached as to the issue raised: at [68]. 12. The Crown also relied on the decision in Alqudsi, which he submitted holds that the definition in s 6(3) is "exhaustive". The Crown sought to draw support, from that characterisation of the section, for the submission that the written directions in MFI 13 were sufficient and comprehensive and that no further elaboration of either the physical element or the fault element was required. With respect, the submission reads too much into the remarks of Leeming JA in Alqudsi. That decision was concerned with the constitutional validity of the provisions criminalising acts preparatory to entry into a foreign State with intent to engage in a hostile activity (ss 6(1)(a), 6(3)(aa) and 7(1)(e)). Justice Leeming said at [64]: "There are two aspects of the application of the exhaustive definition in s 6(3) which are important for the construction of the provision and which are problematic. The problem in both cases is of the same nature. It arises because of the duplication of concepts between the defined term and the provision which incorporates the defined term. The first arises from the inclusion of an element of intention in the first limb offence in s 6(1)(a), and an inclusion of intention in the definition of 'engaging in a hostile activity in a foreign State'. The second arises from the inclusion as an element of the definition of 'engaging in a hostile activity in a foreign State', of the objective of 'engaging in armed hostilities in the foreign State'. Both are instances of circularity, which, as Francis Bennion has observed, is a common difficulty in framing a definition: see now O Jones, Bennion on Statutory Interpretation, (6th ed 2013, LexisNexis) at 522." (Emphasis added.) 1. Justice Leeming was of course not purporting to construe the section with a view to directing a jury; indeed, as the relevant provisions (now located in the Criminal Code 1995 (Cth)) have been reworded, his Honour described the difficulties with the section as "historical": at [77]. As it turned out, they were not. 2. In any event, I do not think the decision in Alqudsi supports the position contended for by the Crown. The use of the term "exhaustive" at [63] merely refers to the fact that s 6(3) provides an exhaustive list of the objectives the doing of an act with the intention of achieving which will attract criminality. Further, as Leeming JA made clear at [78], his Honour did not purport to express a concluded view as to the proper construction of the section. 3. Finally, the Crown relied on the decision in Cerantonio to support the submission that there is no requirement for the act to be a "violent military-type" act or a "serious military-type" act. So much may be accepted; I did not understand Mr Boulton to contend otherwise. The decision in Cerantonio was concerned with the offence of preparing for incursions into foreign countries for the purpose of engaging in hostile activities contrary to s 119.4 of the Criminal Code Act 1995 (Cth). Although there are differences between those provisions and the sections with which I was concerned in the present trial, the decision provides a thoughtful analysis of issues which have some relevance to the present case. 4. As suggested by the approved citation of the case ("Rulings 1-11"), Croucher J gave a number of pre-trial rulings. One concerned an issue framed by his Honour in the following terms at [135]-[136]: "135 This ruling concerns the questions whether, for the purposes of the element of 'engaging in a hostile activity' in a foreign country, the alleged agreed and intended conduct, in and of itself, and without resort to the intended objectives in the definition, must be of a hostile or 'violent military-type' or must involve 'serious military-type objectives', or whether any conduct will suffice, even if it has (or would have) no tangible effect in bringing about any of the statutory objectives, provided it is intended to be engaged in with the intention of achieving one or more of those objectives. 136 An additional question is whether such conduct must be 'hostile' in nature." 1. Concerning the question whether the conduct must be "hostile", his Honour said at [165]: "But the definition in s 117.1(1) does not specify that the conduct must be hostile. On the other hand, each of the objectives listed in the definition involves, to a greater or lesser degree, a form of hostility. Thus, even if the conduct falling within the concept of 'engaging in a hostile activity' must be hostile, then that hostility, in effect, is supplied, or deemed to be supplied, by engaging (or intending to engage) in the conduct with the intention of achieving one or more of the objectives listed in the definition, and need not arise from the nature of the conduct. Put another way, the word 'hostile' has no work to do in explaining the meaning of the phrase 'engage in a hostile activity', other than serving as part of a label for a category of activity defined by the Code. Thus, it is as if the word 'prohibited' might have been used instead of 'hostile'." 1. As already indicated, to the extent that the same analysis might be applied to s 6 of the Crimes (Foreign Incursions and Recruitment) Act, I would respectfully not endorse it. The offence provision proscribes engaging in a "hostile activity". I see no reason why the work of the word "hostile" should be confined to the fault element in the definition provision. I accept that the act does not have to be violent, but in my view it must be such as to be capable, when accompanied by the necessary intention, of being characterised as "hostile activity". That is part of the basis for my conclusion that the section does not create an offence of, for example, yawning with intent. For completeness I note that, as I read the judgment of Croucher J, his Honour may not disagree with this conclusion and there may ultimately be little practical difference between our respective ways of expressing how we have construed these provisions. 2. As to the issue stated at [135] of the judgment in Cerantonio (set out above), Croucher J stated his conclusion at [166] as follows: "Thus, my conclusion is that the agreed and intended conduct in the Philippines need not be of a 'serious military-type' or involve 'serious military-type objectives', but can be any conduct, provided it is agreed and intended to be engaged in with the intention of achieving one or more of the objectives in the definition of 'engage in a hostile activity' and provided there is some realistic potential connection between the intended conduct and the accompanying intended objective or objectives." 1. The Crown relied on the decision in Cerantonio to support the submission that, provided it is accompanied by the necessary intent, the "act" in s 6(3) can be any act, even yawning. I do not understand the decision to support that large proposition. Justice Croucher's conclusion on that issue was qualified by the proposition as to which Mr Boulton sought a direction to the jury in the present case, namely, that there must be some realistic potential connection between the act and the intended objective. That qualification is, with respect, appropriate and I would embrace it. 2. As to the fault element, Mr Boulton submitted that the armed hostilities in which the offender intends to engage must have the characteristic of being both armed and hostile in the sense of involving the use of arms by the accused in engagement in a hostile conflict. He submitted that that understanding of the expression "armed hostilities" would in turn shed light on the kind of act that is capable of constituting the offence. The submission accords with the ordinary meaning of the words and finds some support in the judgment of Lasry J in Mohamed at [63] and Croucher J in Cerantonio at [154]. 3. While the Crown opposed a direction in those terms (Tcpt, 26 October 2018, p 820(17)), the submissions on that issue addressed the nature of the act rather than the nature of the objective required to be proved. In my respectful opinion, the position contended for by Mr Boulton was obviously right. 4. For those reasons, I concluded that the jury should be directed in the terms contended for by Mr Boulton. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2019