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

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

The jury required further directions because s 6(1)(b), read with s 6(3)(aa), does not criminalise any act accompanied only by a hostile state of mind. The act relied upon must be capable of serving, and have some realistic connection with, the objective of engaging in armed hostilities. The intended objective must be the accused himself engaging in armed hostilities involving the use of weapons at the point of armed confrontation between the opposing sides.

Jurisdiction
Australia
Judgment Date
15 February 2019
Procedural Posture
Criminal Prosecution 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) / Reasons for Ruling During Jury Trial on Directions Concerning the Elements of the Offence
Outcome
The Court broadly acceded to the accused's submissions and directed the jury that the acts relied upon must have a realistic connection with the objective of engaging in armed hostilities, and that the Crown had to prove an intention that the accused himself engage in armed hostilities at the point of armed...
Legal Topics
['foreign Fighting' 'engaging in a Hostile Activity in a Foreign State' 'jury Directions' 'physical Element of Offence' 'fault Element of Offence' 'meaning of Armed Hostilities']
['criminal Law' 'terrorism Offences'] ['foreign Fighting' 'engaging in a Hostile Activity in a Foreign State' 'jury Directions' 'physical Element of Offence' 'fault Element of Offence' 'meaning of Armed Hostilities']

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Procedural Posture

Criminal Prosecution 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) / Reasons for Ruling During Jury Trial on Directions Concerning the Elements of the Offence

Legal Issues

  1. 1 ['Whether the physical element of the offence required some realistic potential connection between the acts relied upon and the alleged objective of engaging in armed hostilities in the foreign State.' 'Whether the phrase "armed hostilities" in s 6(3)(aa) required an intention to engage in hostilities involving the use of weapons at the point of armed confrontation.' 'Whether the written directions already given to the jury were sufficient or required further elaboration.']

Ratio Decidendi

The jury required further directions because s 6(1)(b), read with s 6(3)(aa), does not criminalise any act accompanied only by a hostile state of mind. The act relied upon must be capable of serving, and have some realistic connection with, the objective of engaging in armed hostilities. The intended objective must be the accused himself engaging in armed hostilities involving the use of weapons at the point of armed confrontation between the opposing sides.

Court Disposition

The Court broadly acceded to the accused's submissions and directed the jury that the acts relied upon must have a realistic connection with the objective of engaging in armed hostilities, and that the Crown had to prove an intention that the accused himself engage in armed hostilities at the point of armed...

Orders

  • ['Publication of reasons for ruling given during the criminal trial as to the directions to be given to the jury concerning the elements of the offence.']