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Supreme Court 19 October 2018

R v Lelikan (No 2)

[2018] NSWSC 1934

Public order & justice offences
CRIME EVIDENCE HEARSAY PREJUDICE TO ACCUSED

Citation: R v Lelikan (No 2) [2018] NSWSC 1934
Court: Supreme Court of New South Wales
Date: 19 October 2018
Judge(s): McCallum J

Background

The accused stood trial on charges arising from alleged hostile activity in the border region of Turkey and Iraq in 2012, involving provisions of the Crimes (Foreign Incursions and Recruitment) Act. A central issue was whether the accused acted with the intention of engaging in armed hostilities in a foreign state. His defence depended substantially on his state of mind, shaped by a broader political and historical context relating to the Kurdish political movement and its leader, Abdullah Ocalan.

While giving evidence-in-chief, the accused was asked about the 1999 arrest, trial, and sentencing of Ocalan, the leader of the PKK. His account went beyond agreed facts already in evidence: he described the trial as a "show trial" and characterised it as having been conducted with exceptional speed. Because he lacked direct knowledge of those events, the Crown objected that this evidence could not be used as proof of the facts asserted.

The Crown accepted the evidence was admissible to show the accused's understanding of events, which bore on his intentions. However, the Crown sought an order under section 136 of the Evidence Act 1995 (NSW) limiting the use that could be made of the evidence, to prevent the jury from treating it as proof of the facts themselves.

Legal Issues

  • Whether the accused's hearsay account of the Ocalan trial should be admitted only for the limited purpose of establishing his state of mind, with its use restricted under section 136 of the Evidence Act 1995 (NSW).
  • Whether such a limiting order, and the direction that would inevitably follow, would unfairly prejudice the accused.
  • Whether allowing the evidence to be used for all purposes would be unfairly prejudicial to the Crown.

Decision

Issue 1: Whether a section 136 limiting order should be made

McCallum J refused the Crown's application. Once evidence is admitted, section 60 of the Evidence Act means it is "in for all purposes" unless the court limits its use under section 136. The Crown submitted that unrestricted use would be unfairly prejudicial because expert material underpinning the agreed facts contained nothing to support characterising Ocalan's trial as a "show trial" or addressing its alleged duration (at [7]).

Issue 2: Prejudice to the accused from a limiting direction

The court accepted the accused's submission that directing the jury to treat the evidence only as reflecting the accused's personal understanding, rather than as evidence of what actually occurred, would introduce an artificial and potentially damaging distinction (at [6], [8]). The history of the accused's relationship with the PKK cause, including that he had set fire to himself in 1999 as a protest against Ocalan's arrest, was squarely in evidence in the Crown case. Directing the jury in the terms required by a section 136 ruling risked undermining the central premise of the accused's defence on a critical aspect of the case (at [9]-[10]).

Issue 3: Addressing prejudice to the Crown

The court identified two means by which any prejudice to the Crown could be managed without a limiting order. The Crown had the opportunity to seek further instructions from available experts, and the accused remained available for cross-examination on his account, particularly if his understanding of the relevant facts proved to be incorrect (at [11]). The court also noted that, if the evidence given by the accused about the speed of Ocalan's conviction were accurate, the significance of the "show trial" characterisation might in any event be reduced (at [12]).

The court indicated it would address the hearsay quality of the evidence in its summing up, by directing the jury on the weight to be given to hearsay evidence that is untested and untestable (at [13]).

Orders Made

  • The Crown's application for a ruling under section 136 of the Evidence Act limiting the use to be made of the accused's evidence concerning the trial of Abdullah Ocalan is refused.

Key Takeaways

  • Refusing the Crown's application, the Supreme Court held that imposing a section 136 limitation on the accused's hearsay account of the Ocalan trial would have introduced an artificial distinction between the truth of events and the accused's understanding of them, with a real risk of undermining the defence on the central intention issue (at [8]-[10]).

  • Under section 60 of the Evidence Act 1995 (NSW), evidence admitted for one purpose is generally available for all purposes; a court must weigh potential prejudice carefully before restricting use under section 136, particularly where the restriction would require a complex jury direction (at [5]-[6]).

  • Where alleged prejudice to the Crown from unrestricted hearsay evidence can be addressed through cross-examination of the accused or by obtaining further expert instructions, that may weigh against the necessity of a limiting order (at [11]).

  • A limiting direction carries its own risks: where the distinction between the truth of an assertion and the speaker's state of mind is subtle or counterintuitive, the direction itself may prejudice the party whose evidence is being limited (at [6], [10]).

  • The court reserved a direction on the weight of untested and untestable hearsay for the summing up, as a less restrictive alternative to a formal use-limiting order under section 136 (at [13]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 60, 136

Cases
- Not stated