R v J Lucas; R v B Lucas

[2022] NSWSC 1807

Supreme Court

New South Wales

Medium Neutral Citation:

R v J Lucas; R v B Lucas [2022] NSWSC 1807

Hearing dates:

18 February 2022

Decision date:

18 February 2022

Jurisdiction:

Common Law

Before:

Button J

Decision:

Evidence admitted

Catchwords:

EVIDENCE – admissibility of evidence – whether images downloaded by one accused are admissible against a co-accused where joint commission is the basis of the offence alleged against the co-accused – agreement to commit an offence an element of count – where downloaded images are to be used for the purpose of proving state of mind of first accused – counsel for co-accused submitted the downloads were inferred representations about state of mind of first accused and therefore inadmissible hearsay evidence against co-accused – evidence admitted

Legislation Cited:

Criminal Code Act 1995 (Cth) s 11.2A

Evidence Act 1995 (NSW)

Cases Cited:

Leev The Queen [1998] HCA 60; 195 CLR 594

R v Dolding [2018] NSWCCA 127

Category:

Procedural rulings

Parties:

Regina
Joshua Lucas (Accused)
Benjamin Lucas (Accused)

Representation:

Counsel:
C O’Donnell SC with R Taylor (Crown)
M Avenell SC with J Brock (J Lucas)
S Howell with R Baldeo (B Lucas)
Solicitors:
Solicitor for Public Prosecutions (Cth) (Crown)
Legal Aid NSW (J Lucas)
Hugo Law (B Lucas)

File Number(s):

2020/82674; 2020/89279

Publication restriction:

Nil

Judgment

1. On 18 February 2022, I ruled that the alleged downloading of certain digital items by Mr Joshua Lucas was admissible in the Crown case against Mr Benjamin Lucas. The following constitutes my reasons for doing so.

2. The background can be shortly stated. The two men are brothers in their early 20s. At the relevant times, they lived separately on the South Coast of New South Wales. By way of an indictment of 5 May 2021, three counts are to be averred against them in a trial by jury that will commence shortly.

3. The first is that Joshua Lucas, between about 15 March 2019 and 14 March 2020, did acts in preparation for, or planning, a terrorist act (or acts). The second is that Joshua Lucas, between the same dates, intentionally advocated the doing of a terrorist act (or acts), being reckless as to whether another person will engage in a terrorist act (or acts). The third count alleges that, between about 1 July 2019 and 14 March 2020, Benjamin Lucas jointly committed an offence with Joshua Lucas, namely acts in preparation for, or planning, a terrorist act (or acts).

4. Because the application for exclusion was brought by counsel for Benjamin Lucas, this judgment focuses on the third count.

5. Pursuant to s 11.2A of the Criminal Code Act 1995 (Cth), in order to prove the third count against Benjamin Lucas, the Crown will need to prove beyond reasonable doubt that he and Joshua Lucas entered into an agreement to commit an offence, and furthermore that, either in accordance with that agreement or in the course of carrying it out, the offence contained in count 3 was committed by Joshua Lucas or Benjamin Lucas or both.

Evidence

6. The evidence placed before me on the voir dire suggests that Joshua Lucas accessed and downloaded a great deal of right-wing extremist material. Although the Crown allegation is that Benjamin Lucas accessed far less of that material, the evidence on the voir dire suggests that he did access some items of the same nature. The evidence is also that they engaged together in certain acts that could be relevant to proof of the commission of the third count against Benjamin Lucas; for example, daubing a motor vehicle with right-wing extremist slogans, and detonating at least one home-made “sparkler bomb” together.

Submissions

7. Counsel for Benjamin Lucas accepted that, subject to separate discretionary or other grounds for exclusion, the relevant acts and statements of Benjamin Lucas are admissible against his client in the Crown case in support of the third count. He submitted, however, that the downloading by Joshua Lucas is not relevant to proving the Crown case against Benjamin Lucas.

8. The principal ground of objection was that, in truth, the downloading of right-wing extremist material by Joshua Lucas should be characterised as an inferred representation by him that he approved of, or was at the least interested in, that ideology. For that reason, it fell within the inclusive definition at (b) of a representation to be found in Pt 1 of the Dictionary of the Evidence Act 1995 (NSW). If that was so, and if the Crown was seeking to lead the evidence of a representation made outside of the courtroom by Joshua Lucas against Benjamin Lucas, then that would infringe the rule against hearsay to be found in s 59 of the Evidence Act.

9. It was also said that the downloading undertaken by Joshua Lucas that fell outside the date parameters of the count against Benjamin Lucas could not be said to be pursuant to any alleged agreement, and must be approached with caution as to its relevance.

10. It was also said that there is little commonality between the material said to have been downloaded by the two men, and very little indeed in terms of particular shared images, ideological statements, and the like. The disparity in volume was emphasised, to support the submission that the admission of the downloading by Joshua Lucas against Benjamin Lucas could distort the true picture about the acts and states of mind of the latter.

11. The “final destination” of this and other grounds of objection pertaining to evidence admissible against Joshua Lucas was explained to be the possibility of an application for a separate trial by Benjamin Lucas, if it became clear that the jury was to be placed in an impossible position of hearing a great deal of evidence probative only in the case against Joshua Lucas, but being directed to disregard it completely in the case of Benjamin Lucas.

12. The Crown submitted that the evidence of the actions of Joshua Lucas could demonstrate a state of mind on his part that could in turn be highly relevant to whether he entered into an agreement of the kind alleged in count 3, and also whether he may have committed an offence, in accordance with, or in the course of, that agreement.

13. The Crown overarchingly submitted that, as a matter of drawing inferences, establishment of the state of mind of Joshua Lucas well before the dates pleaded in count 3 was an exercise relevant to proving the elements of that count against Benjamin Lucas.

Determination

14. It was agreed between counsel and me that, in the interests of the orderly determination of a plethora of pre-trial objections, this ruling should only relate to downloads undertaken by Joshua Lucas, and not to posts that he had made on various forms of social media. That will be dealt with in a separate ruling.

15. So will any application by the Crown to use representations of Joshua Lucas against Benjamin Lucas for the alleged truth of their contents against Benjamin Lucas, pursuant to s 87 of the Evidence Act.

16. Finally, so will any application for discretionary exclusion by Benjamin Lucas of evidence pertaining to Joshua Lucas.

17. In my opinion, the evidence of the downloading by Joshua Lucas of right-wing extremist material is relevant to demonstrate an interest in that ideology, and perhaps an approval of it, on his part. And any such state of mind on the part of Joshua Lucas would, in my opinion, be highly probative in proving the necessary elements of count 3 against Benjamin Lucas; in particular, that Joshua Lucas entered into a particular kind of agreement with his brother between the dates averred.

18. And that relevance is not restricted to the dates pleaded in count 3. By that I mean, a state of mind at a particular time can be established not only by acts at that time, but also by acts done before and after it, subject to the broad test to be found in s 55 of the Evidence Act.

19. And in any event, the dates of the earliest downloading by Joshua Lucas relied upon is only a relatively short time before the commencement date of count 3 of 1 July 2019.

20. Furthermore, I respectfully do not agree with the characterisation for Benjamin Lucas of the acts of downloading of Joshua Lucas as representations “to be inferred from conduct”. It is true that in R v Dolding [2018] NSWCCA 127 Simpson AJA stated that “there can be little doubt that “representation” was intended to have the broadest application. It includes non-verbal representations to be inferred from conduct, and representations not intended to be, and not, communicated.”

21. Even so, it is clear from the judgment of her Honour and that of the High Court of Australia in Leev The Queen [1998] HCA 60; 195 CLR 594 that underpinning the concept of a representation, even one that may be inferred from conduct, must be an intended assertion. Here, although one might infer a state of mind on the part of Joshua Lucas from his acts of downloading right-wing extremist material, that is not the same as Joshua Lucas having intended to assert that state of mind by way of his actions.

22. For that reason, even approaching the concept of a representation broadly, I do not believe that the hearsay rule is engaged here, with the contended for result that the evidence is inadmissible against Benjamin Lucas.

23. Finally, commonality or otherwise of downloaded material is not the determinative issue here. I consider that the central issue is proving the state of mind of Joshua Lucas at the time when he is alleged to have entered into an agreement with Benjamin Lucas, and perhaps to have committed an offence connected to that agreement. His acts are relevant to that, whether or not they are similar or identical to acts of Benjamin Lucas.

24. And if I be wrong about that, whilst I certainly accept the disparity of volume between the material downloaded by the two men, there does seem to me to be a commonality of subject matter and to some degree chronology in the material downloaded by each of them, based upon the evidence in the voir dire.

Conclusion

25. To summarise my approach by way of a series of propositions: in order to prove the third count against Benjamin Lucas, the Crown must prove agreement on the part of Joshua Lucas.

26. That is a state of mind of Joshua Lucas, which can be established by his conduct.

27. That conduct is not limited to the dates pleaded in count 3, not least because of the breadth of the definition of relevant evidence to be found in s 55 of the Evidence Act, including its focus on “potentiality”.

28. Because the acts in question of Joshua Lucas were not assertions of fact by him, even focusing on inferences able to be drawn by conduct, the hearsay rule is not engaged to make them inadmissible against Benjamin Lucas.

29. Commonality of action between the two men is not necessary or even of great significance with regard to this question.

30. If I am wrong in that, I think there is significant commonality between their actions in any event.

31. The result is that the downloads undertaken by Joshua Lucas are relevant and (subject to other aspects that may be agitated separately) admissible against Benjamin Lucas, in order to prove a state of mind on the part of Joshua Lucas.

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Decision last updated: 09 November 2023