R v J Lucas; R v B Lucas (No 6)
[2022] NSWSC 1812
•01 March 2022
Supreme Court
New South Wales
Medium Neutral Citation: R v J Lucas; R v B Lucas (No 6) [2022] NSWSC 1812 Hearing dates: 1 March 2022 Decision date: 01 March 2022 Jurisdiction: Common Law Before: Button J Decision: Counsel may present the jury with a timeline of key events during opening address
Catchwords: CRIMINAL PROCEDURE – whether the Crown prosecutor may provide the jury with a documentary timeline of asserted key events during opening address – where the timeline has selected pictures and text from the foreshadowed evidence – discretion of counsel to determine what events they submit to be key – provision of document permitted
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
REVISED EX TEMPORE Judgment
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I do not think there is anything exceptionable about the latest iteration of the timeline of key events, Crown voir dire exhibit G.
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It is certainly the case that the purpose of a Crown opening is to provide an outline of the evidence to be given. But I do think that there is a matter of judgment and discretion – not entirely free of the work of an advocate – in particular, as to the events that the Crown prosecutor, even at that stage, submits are the key ones or not.
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No one is submitting that the jury should be called upon in the opening to furiously scribble down many asserted events upon which the Crown relies, and try to get them legible and in chronological order.
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As I understand it, it is accepted that all of these events will be the subject of evidence. To the extent that there are images present on the document, all of them will be placed before the jury as well.
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I do not believe it is incumbent upon the Crown to place in a timeline of key events - a document headed in that way - events that the Crown does not submit are “key” ones. I believe that is a matter for the discretion of the Crown.
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And in any event, as part of the separation of roles between Bench and Bar table, except in the most extreme cases, I do not believe that I am in a position to control how parties see fit to open or indeed close their cases.
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As well as that, I think an important part of this case is posts made by different persons, and indeed particular words used by different persons, especially the two accused. I therefore think that particular words used can be submitted, or can be set out to be, “key” events.
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In other words, to state things succinctly: there is nothing about the latest iteration of the document that troubles me. I do not propose to stand in the way of the Crown providing it to the jury in the course of his opening, I having made it perfectly clear before the opening commences that the opening does not constitute evidence. I will also make it clear that any document provided then to the jury does not constitute evidence, but merely an expectation as to what the evidence might be.
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Decision last updated: 09 November 2023
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