R v J Lucas; R v B Lucas (No 5)

[2022] NSWSC 1811

Supreme Court

New South Wales

Medium Neutral Citation:

R v J Lucas; R v B Lucas (No 5) [2022] NSWSC 1811

Hearing dates:

23 February 2022

Decision date:

28 February 2022

Jurisdiction:

Common Law

Before:

Button J

Decision:

Various discrete rulings made

Catchwords:

EVIDENCE – admissibility of evidence pursuant to Evidence Act 1995 (NSW) s 87(1)(c) – whether representations are capable of being characterised as “in furtherance of the common purpose” – discussion of principles underpinning the “co-conspirator’s rule” at common law and pursuant to Evidence Act – admissibility for hearsay purpose of representations determined on their own facts and in their own contexts

Legislation Cited:

Evidence Act 1995 (NSW)

Cases Cited:

Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39

Landiniv State of New South Wales & Ors [2007] NSWSC 259

R v Dolding [2018] NSWCCA 127

Texts Cited:

Shorter Oxford English Dictionary, 6th ed (2022)

Category:

Procedural rulings

Parties:

Regina
Joshua Lucas (Accused)
Benjamin Lucas (Accused)

Representation:

Counsel:
C O’Donnell SC & R Taylor (Crown)
M Avenell SC & J Brock (J Lucas)
S Howell & 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

Introduction

1. The next issue that I have been asked to resolve on the voir dire is whether certain posts alleged to have been made by Joshua Lucas are admissible as to the truth of their contents against Benjamin Lucas, pursuant to ss 59, 81, and, in particular, 87 of the Evidence Act 1995 (NSW).

2. The Crown prosecutor made it clear that the particular subsection relied upon is s 87(1)(c) of that Act.

3. It was made clear for Benjamin Lucas that the real point of resistance was as follows. I was asked to reflect whether, bearing in mind s 142 of the Evidence Act, the Crown had discharged the onus on the voir dire, on the balance of probabilities, of demonstrating that it was reasonably open to find that the representations said to be contained in the posts had been made “in furtherance of” the common purpose alleged to have existed between Joshua Lucas and Benjamin Lucas to commit the offence of joint commission in count 3.

4. The background appears sufficiently in the judgments on the voir dire that I have already delivered, and I shall not repeat it.

5. As before, this judgment does not deal with any asserted “discretionary” exclusion that may subsequently be relied upon for Benjamin Lucas.

Applicable legal principles

6. All counsel agreed that the following general principles are relevant to my determinations (a post of Benjamin Lucas said to be available against Joshua Lucas by the same statutory mechanism was ultimately not pressed by the Crown).

7. In an earlier judgment, I have already determined that certain acts of Joshua Lucas are admissible against Benjamin Lucas. In a further earlier judgment, I have also determined that posts made by Joshua Lucas are admissible against Benjamin Lucas as “verbal acts” for a non-hearsay purpose.

8. To be clear: that is not what is under discussion here. At this stage, the Crown seeks to “put into the mouth” of Benjamin Lucas, posts made by Joshua Lucas as if they were representations made by Benjamin Lucas, and thereafter rely upon them as admissions by Benjamin Lucas.

9. The question of whether something is “reasonably open” is obviously quite a broad one, though it does have its limits, and it could not admit of mere speculation or too much attenuation of reasoning.

10. Proof of a proposition on the balance of probabilities requires the “scales to be tipped” only ever so slightly. Having said that, it is to be remembered that it is the Crown that bears the onus in this exercise.

11. In accordance with the judgment of the Court of Criminal Appeal in R v Dolding [2018] NSWCCA 127 at [32] to [33], it is furtherance of the common purpose alleged to have existed between Joshua Lucas and Benjamin Lucas that is the subject of consideration, not any other common purpose.

12. To the extent that the statutory mechanism constitutes an exception to the hearsay rule, whereby the words of one individual can be used against another for their truth as admissions actually unspoken by the other individual, one might approach the necessary assessment with a degree of caution.

13. The concept underpinning the statutory doctrine is one of agency, whereby, pursuant to agreement, a principal empowers or authorises an agent to speak on behalf of the principal, and the principal is thereafter held to what the agent has had to say.

14. Because of the inclusive definition of “representation” to be found in Pt 1 of the Dictionary of the Evidence Act, implied representations, and representations to be inferred from conduct, can be the subject of the process pursuant to s 87 of the Evidence Act.

15. As Hall J remarked in the decision of Landiniv State of New South Wales & Ors [2007] NSWSC 259 at [19], “in furtherance” is a straightforward concept and the phrase has its ordinary English meaning. The Shorter Oxford Dictionary currently defines it as “the fact of being helped forward; the action of helping forward; advancement, aid, assistance”.

16. Accordingly, a representation that could be regarded only as contemporaneous commentary, or subsequent narrative, or philosophical or ideological musing, or superfluous boasting, would not fall within the concept. There needs to be some sense in which it is established on balance that it is reasonably open to find that the representation moved forward the common purpose alleged between the two accused men.

17. Finally, determination as to whether a representation may actually have been true or not is not part of my task, except to the extent that it may inform the necessary “elements” of reliance upon s 87.

Submissions

18. The Crown prosecutor submitted that each representation of Joshua Lucas needed to be considered in the context of all the evidence on the voir dire. Each representation also needed to be considered in the context of the other representations sought to be relied upon in this way.

19. He placed emphasis on the potentiality underpinning the phrase “reasonably open to find”.

20. He explained that, with regard to many of the representations, a broader perspective needed to be adopted. In particular, he submitted that posts that at first blush might seem to be merely online narrative, boasting, bickering, and so forth could indeed be assessed as being in furtherance of the common purpose, in the sense that Joshua Lucas was seeking to build up a respected “online presence”. That in turn could serve a useful purpose regarding the alleged common purpose, in terms of being in contact with allegedly like-minded individuals, and being able to receive advice and assistance as needs be.

21. He pointed to posts of 6 January 2020, in which Joshua Lucas had allegedly said “We all know we’re gonna group up”, and “It’s why we talk to each other and share shit”. In that regard, he made the point that an act could be done in furtherance of the common purpose said to have existed between the dates averred in count 3 – from 1 July 2019 to 14 March 2020 – even if it was intended to bear fruit afterwards. That is especially so in light of the fact that Joshua Lucas was not to know that he would be arrested on 14 March 2020.

22. On behalf of Benjamin Lucas, contextual material was placed before me regarding many of the representations in question. That was in order to show that, in truth, the posts objected to were nothing to do with advancing the alleged common purpose. Rather, even on an expansive reading (in deference to the concept of reasonable openness), they could only be interpreted as narrative, philosophising, bickering, boasting, abusing others, and the like.

Determinations

23. I have already set out the principles that I have applied to this question. The transcript contains detailed oral submissions, and shows the refinement of positions with regard to each individual representation. There is quite a number of discrete decisions that I must make. In all circumstances, I believe that I can be brief. Neither counsel stood in the way of that approach.

24. The references below are to relevant paragraphs in the Crown case statement (CCS) of 8 November 2021 that was tendered on the voir dire.

25. I shall not pause to examine explicitly any paragraph of the CCS that was explained by the Crown prosecutor not to contain a representation, but merely to provide context for one or more of them.

26. CCS [89] speaks of representations by Joshua Lucas to the effect that everyone he knew was “preparing”. He also spoke of “Hoarding guns and ammo” and “training”.

27. Looked at in context, however, based upon voir dire exhibit 2B, in my opinion it must be interpreted as online discussion of, and philosophising about, such things as gun-control, the alleged role of the Jewish people in current affairs, a predicted impending apocalypse, transgender people, and so forth.

28. Even on a broad reading, I do not believe it can be interpreted as being in furtherance of the common purpose alleged to have existed between Joshua Lucas and Benjamin Lucas. It is noteworthy that at no stage does Joshua Lucas seek advice for from his interlocutor about any aspect of anything that he claims to be doing. Nor is there any other “mechanical” or logistical way in which the conversation can be interpreted as “advancing” things in the way discussed by way of example Ahern v The Queen (1988) 165 CLR 87 at p 95; [1988] HCA 39 at [9].

29. In particular, with regard to the submission of the Crown about the possible long-term motivation of building up an “online presence”, it is important to recall that what is under discussion is furtherance of the particular common purpose averred, not some other common purpose that Joshua Lucas may have intended to form with others in the future.

30. In similar vein, if it be the case that Joshua Lucas was seeking to build up an online presence for his own purposes, nor would that establish the statutory process. That is because what is required is a reasonably open finding about the furtherance of the alleged common purpose between the two accused.

31. For those reasons, the representations contained in CCS [89] will not be admitted against Benjamin Lucas as alleged admissions of him.

32. Much of the above analysis is of general significance and applies to many of the subsequent determinations. I shall often refer to it only by shorthand.

33. CCS [221] recounts that Joshua Lucas digitally saved a number of photographs said to depict himself, Benjamin Lucas and others posing at an electricity substation with “gel blasters” that, at first blush at least, look like real military assault weapons. The paragraph also asserts that Joshua Lucas saved the same images with the eyes of the persons depicted marked with a red dot. The Crown thesis, based on expert opinion evidence, was that that is a right-wing extremist way of expressing enlightenment derived from a popular science fiction movie of many years ago.

34. The Crown’s submission here was that there was a representation, to be inferred from conduct, made by Joshua Lucas that Benjamin Lucas had become enlightened to right-wing extremist ideas. It was said that that inferred representation could be attributed to Benjamin Lucas by way of the statutory process under discussion.

35. I appreciate that the submission is that this alleged inferred representation was a step towards promulgation of the saved and altered images, and that it would be reasonably open to find that any such promulgation was done in furtherance of the alleged common purpose. But I believe that s 87 of the Evidence Act calls upon me to focus upon each individual representation step by step, and not to approach things globally: see the repeated use of the definite article, especially at s 87(1)(c) of the Evidence Act.

36. Here, taken at its highest, even accepting for the sake of argument that there was an inferred representation on the part of Joshua Lucas, the saving and altering of the image without promulgation cannot be said of itself to be in furtherance of the alleged common purpose.

37. The contents of the paragraph alleging the actions of Joshua Lucas will not be admitted against Benjamin Lucas as an inferred admission of his own.

38. CCS [229] speaks of the online conversation in which Joshua Lucas seemingly discussed the visit to the substation at which was taken the photograph to which I have referred to above.

39. It is reasonably open to find that he and his interlocutor were discussing various explosive substances, and difficulties in sourcing them. At one stage it is said that he posted “Well what nitrate salt”. It is possible to interpret that as a question, despite the lack of punctuation to that effect.

40. Twelve minutes later, it is said that he posted a photograph from the substation, and spoke of it showing “The boys (who were bothered enough to meet up at 5 am)”.

41. In my opinion, it is reasonably open to find that this online conversation was an information gathering exercise on the part of Joshua Lucas, in furtherance of his alleged common purpose with Benjamin Lucas. For that reason, I believe that the promulgation of the photograph and the explicit representation accompanying it are admissible for the truth of their contents against Benjamin Lucas.

42. I would not go further, however, and admit an amorphous representation of Joshua Lucas, said to be able to be inferred from his conduct, against Benjamin Lucas for its truth. Speaking generally, there are obvious difficulties in being able to ascribe an implicit or inferred representation – in contrast to an explicit one, the terms of which are clear – said to have been made by one person “into the mouth” of another.

43. Furthermore, and specifically to this case, to the extent that Joshua Lucas contemporaneously spoke of a “live action role-play” having taken place, I do not believe that one can state with any clarity the adverse inferred or implied representation that he was said to be making.

44. The representation in CCS [229] will be admitted pursuant to s 87 against Benjamin Lucas, but only on the limited basis that I have identified, founded upon an explicit representation combined with the action of posting the photograph.

45. CCS [234] and [235] speak of Joshua Lucas posting photographs from the substation, with the eyes reddened in the way I have described above. That is certainly conduct from which a representation could be inferred about the state of mind of the persons depicted with their eyes altered. But except in the very broad sense posited by the Crown prosecutor that I respectfully find of limited application to this case, for the reasons given above, even if there is a representation of Joshua Lucas to be inferred from that conduct, it cannot be seen as being in furtherance of the specific alleged common purpose.

46. For those reasons, the contents of those paragraphs will not be used as explicit or inferred representations of Benjamin Lucas pursuant to s 87 of the Evidence Act.

47. The representation spoken of in CCS [240] is “My boys are all getting white utes”, followed by reference to “some taliban isis shit.” The proposition of the Crown was that it was a representation of Joshua Lucas, able to be placed in the mouth of Benjamin Lucas, that a group of males close to Joshua Lucas were indeed in the process of buying vehicles together, inferentially for a nefarious purpose.

48. But for the reasons given above, seen in the context established by the further posts tended on behalf of Benjamin Lucas, even on a broad reading those representations cannot be interpreted as anything other than discursive discussion. They are incapable of being thought of as in furtherance of the common purpose alleged between the two brothers.

49. For those reasons, those representations cannot be attributed to Benjamin Lucas by way of the statutory process.

50. In CCS [254], on 20 January 2020 Joshua Lucas discusses “kits for surviving”, and posts several images of military and quasi-military equipment. At one stage it seems that he posts “All my boys are making kits”.

51. I accept the submission for Benjamin Lucas that the primary reading of this conversation is that Joshua Lucas was providing a narrative of what he was doing, not seeking information about military equipment for survivalist purposes. Even so, I think the latter interpretation, though secondary, is reasonably open. And I think that it is reasonably open to find that seeking information about equipment for survival in the bush was in furtherance of the alleged common purpose.

52. For that reason, the representation to be found in CCS [254) will be admitted against Benjamin Lucas for the truth of its contents pursuant to the statutory mechanism.

53. CCS [283] alleges a visit by Joshua Lucas and Benjamin Lucas from their homes on the south coast of New South Wales to the vicinity of Sydney airport on 22 February 2020. It is said that Joshua Lucas sent posts that included a right-wing extremist term for white nationalists and referred to himself being “out here doing domestic terrorism”.

54. But even on a broader reading, these cannot be interpreted as anything other than narrative or pronouncements. I do not believe they advanced the alleged common purpose in any explicit sense. As for the implicit “long-term thesis”, for the reasons explained in more detail above, I do not believe that it is reasonably open to sheet that home to the common purpose alleged between the two brothers.

55. For those reasons, the representations contained in CCS [283] will not be admissible as alleged admissions of Benjamin Lucas.

56. The same analysis and resultant exclusion apply to the contents of CCS [286] whereby Joshua Lucas provided a narrative, nothing more, of “all my boys” possessing camouflaged combat uniforms.

57. It also applies to the contents of CCS [301], whereby he spoke of “all my boys” possessing a certain kind of mask said to be associated with right-wing extremism, a “militia”, and of his Facebook friends being connected with right-wing extremism. In my opinion, these representations are incapable of being seen as anything other than discursive narrative, and self-aggrandising boasting. Relevant or not, and true or not, I do not believe that the Crown has demonstrated on balance that it is reasonably open to find that the posts were made in furtherance of the common purpose alleged between Joshua Lucas Benjamin Lucas.

58. CCS [305] – [306] assert that Joshua Lucas posted further photographs from the visit to the sub- station, with the eyes altered as explained above. They also assert that Joshua Lucas posted words to the effect that one of his family members was depicted holding an M-16 military assault rifle, and predicting death for one of his interlocutors. It was said that those representations should be put in the mouth of Benjamin Lucas by way of the statutory process.

59. Seen in context, however, the representations were made as part of a furious argument, including threats, between Joshua Lucas and another member of the chat group. For that reason, even on the broad thesis advanced for the Crown, they are incapable of being thought of as being made in furtherance of the common purpose alleged; quite the contrary. Accordingly, they will not be admitted pursuant to the statutory process against Benjamin Lucas.

60. CCS [110], however, is in a different category. On its face, it seems to show the process of Joshua Lucas seeking to join The Base, a right-wing extremist organisation. During that process, the accused spoke of having four friends also keen to join, perhaps eight. In my opinion, it is reasonably open to find that that representation was made in furtherance of the common purpose alleged to have existed between Joshua Lucas and Benjamin Lucas; counsel for the latter did not seek to persuade me to the contrary.

23. CCS [149] contains a representation whereby Joshua Lucas posted that he had been overlooked in the process of choosing a person to open the Australian branch of The Base, despite having “my 8 boys who have known memebers for years [sic]”. Yet again, however, this post in my opinion cannot be seen as anything other than a narrative about an asserted state of events, and possibly “big noting” or simple complaining about having been overlooked. It is not open to being interpreted as having been in furtherance of an alleged common purpose between the two brothers.

24. The same may be said of the online conversation contained in CCS [151]. The seemingly female interlocutor provides no advice or other advancement of any alleged common purpose, nor is she asked for any. The entire interaction is narrative and evokes a seemingly admiring response, nothing more. It will also not be admitted for the statutory purpose.

25. Finally, CCS [248] contains the reference “we’re gonna group up” that I have provided above. It also asserts that Joshua Lucas posted a photograph of two members of the local branch of The Base, with a contact email, to a chat group devoted to right-wing extremism. The explicit representation relied upon is that Joshua Lucas was part of the group of eight men, and knew forty people who were stockpiling guns and ammunition.

26. At first blush, one might think that posting a seeming recruiting poster for a right-extremist organisation to a group of seemingly interested individuals could be characterised as, in a broad sense, furthering the common purpose alleged between Joshua Lucas and Benjamin Lucas. However, accompanying the posts is a statement by Joshua Lucas that “The Base Is A Honeypot”; in other words, a trap for the unwary laid by the authorities. In other words, far from being a recruiting poster, the appearance of the image must be thought of as “an anti-recruiting poster”. And if that be its interpretation, there is nothing to suggest that warning others away was in furtherance of the explicit common purpose alleged to have existed between the two brothers at the averred times in count 3, as opposed to an activity undertaken by Joshua Lucas on his own.

27. Furthermore, the online conversation seen in context must be seen at its broadest as a discursive discussion between like-minded persons. For that separate reason, I do not believe it can be interpreted as furthering the common purpose alleged between two brothers.

Conclusion

66. In summary: the majority of the representations, whether explicit, implied, or inferred from conduct, said to have been made by Joshua Lucas in his posts are not admissible against Benjamin Lucas as admissions of his own. Three of them are, one of them on a basis limited to the explicit representation made, not any broader representation to be inferred from conduct.

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Decision last updated: 09 November 2023