R v Lelikan (No 3)

1. [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. [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. [3]

   At the time relevant to the trial, s 6(1) of the Crimes (Foreign Incursions and Recruitment) Act provided:

2. [4]

   The element of engaging in a hostile activity in a foreign State was defined in s 6(3) of the Act as follows:

3. [5]

   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.

4. [6]

   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.

5. [7]

   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:

6. [8]

   The particulars of the acts relied upon to support the charge as opened by the Crown were:

7. [9]

   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. [10]

   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. [11]

   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. [12]

   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. [13]

   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. [14]

   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. [15]

   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:

Reasons for ruling

1. [16]

   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. [17]

   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. [18]

   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. [19]

   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. [20]

   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. [21]

   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. [22]

   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. [23]

   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. [24]

   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. [25]

    My review of the authorities addressed by the parties during argument on this issue did not dissuade me from that view.

11. [26]

    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. [27]

    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]:

13. [28]

    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.

14. [29]

    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.

15. [30]

    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.

16. [31]

    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]:

17. [32]

    Concerning the question whether the conduct must be “hostile”, his Honour said at [165]:

18. [33]

    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.

19. [34]

    As to the issue stated at [135] of the judgment in Cerantonio (set out above), Croucher J stated his conclusion at [166] as follows:

20. [35]

    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.

21. [36]

    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].

22. [37]

    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.

23. [38]

    For those reasons, I concluded that the jury should be directed in the terms contended for by Mr Boulton.