R v Lelikan [2018] NSWSC 1933

R v Lelikan [2018] NSWSC 1933

MFI 10 was rejected because, even if it had some scant relevance to the accused's intention in leaving France and acting in Iraq, it was so prejudicial that it should be excluded under s 137 of the Evidence Act 2005 (NSW). It tended to show failure to comply with French bail conditions and flight from French charges, and would introduce distracting collateral issues. The accused was permitted to sit on the floor of the court because s 34 gives the trial judge an unfettered discretion, the accused was on bail, the Crown did not object, and the court architecture made the dock inconvenient.

Jurisdiction
Australia
Judgment Date
17 October 2018
Procedural Posture
Criminal Trial for 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) / Procedural and Evidentiary Rulings During Trial
Outcome
The Crown's tender of MFI 10 was rejected; reasons were also given for allowing the accused to sit on the floor of the court rather than in the dock.
Legal Topics
['admissibility of Evidence' 'unfair Prejudice' 'hostile Activity in a Foreign State' 'placement of Accused in Court' 'dock']
['criminal Law' 'evidence' 'criminal Procedure'] ['admissibility of Evidence' 'unfair Prejudice' 'hostile Activity in a Foreign State' 'placement of Accused in Court' 'dock']

Case Brief

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Procedural Posture

Criminal Trial for 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) / Procedural and Evidentiary Rulings During Trial

Legal Issues

  1. 1 ['Whether MFI 10, correspondence tending to show the accused fled France while subject to bail conditions, should be admitted in the Crown case.' 'Whether s 34 of the Criminal Procedure Act 1986 (NSW) requires an accused to establish a need or exceptional circumstances before being allowed to sit on the floor of the court rather than in the dock.']

Ratio Decidendi

MFI 10 was rejected because, even if it had some scant relevance to the accused's intention in leaving France and acting in Iraq, it was so prejudicial that it should be excluded under s 137 of the Evidence Act 2005 (NSW). It tended to show failure to comply with French bail conditions and flight from French charges, and would introduce distracting collateral issues. The accused was permitted to sit on the floor of the court because s 34 gives the trial judge an unfettered discretion, the accused was on bail, the Crown did not object, and the court architecture made the dock inconvenient.

Court Disposition

The Crown's tender of MFI 10 was rejected; reasons were also given for allowing the accused to sit on the floor of the court rather than in the dock.

Orders

  • ["The Crown's tender of MFI 10 is rejected." 'The accused was allowed to be seated behind his barrister on the floor of the court for the course of the trial.']