R v J Lucas; R v B Lucas (No 7)
[2022] NSWSC 1814
•01 March 2022
Supreme Court
New South Wales
Medium Neutral Citation: R v J Lucas; R v B Lucas (No 7) [2022] NSWSC 1814 Hearing dates: 1 March 2022 Decision date: 01 March 2022 Jurisdiction: Common Law Before: Button J Decision: The expert evidence is admissible
Catchwords: EVIDENCE – admissibility of expert evidence regarding extreme right-wing ideology – counsel for accused resisted experts giving extensive evidence from the witness box – whether general evidence about extreme right-wing organisations, symbols, and ideology is irrelevant – concern that jury would give expert evidence about ideological matters undue weight – evidence admissible
Legislation Cited: Evidence Act 1995 (NSW) ss 55 and 79
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 of 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
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Objection was taken on behalf of both Joshua Lucas and Benjamin Lucas to some proposed expert evidence that was placed before me on the voir dire by the Crown.
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Three reports had been prepared by Dr Campion, an Australian academic whose honours degree, doctorate, and postdoctoral work have focused upon aspects of terrorism, including propaganda, strategies and concepts, and political violence itself. She holds an appointment as a lecturer in terrorism studies within an Australian university.
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Two reports had been prepared by Ms Mendelson, an Associate Director within the Center on Extremism within the Anti-Defamation League (ADL), a long-standing organisation in the United States focusing on anti-Semitism and other forms of bigotry. She has been a part of the ADL for more than two decades. Her current role is “overseeing a national team of investigative researchers who track extremism across the ideological spectrum”. She explained in her reports that the team “monitors, exposes, and disrupts extremist threats”. It also provides “resources, expertise and educational briefings” to various public and private organisations, including law enforcement.
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Each witness has provided a broad ranging report about aspects of the history, ideology, characteristics, and activities of various right-wing extremist groups. By way of example, in her first report of 5 August 2020, Dr Campion provides background about a person by the name of James Mason, and his publication “Siege”. She also speaks at some length about “neo-Nazism” and “Accelerationism”.
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By way of further example, in her first report of 24 October 2021, Ms Mendelson provides a detailed discussion of an organisation known as The Base. In the second report of 5 January 2022, Ms Mendelson “translates” various codewords, catchphrases, or slang terms, such as “red-pilling”, a concept that I touched upon in one of my earlier pre-trial judgements.
Submissions for both accused
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Senior counsel for Joshua Lucas (upon whose submissions counsel for Benjamin Lucas was largely content to rely) indicated that the evidence was objected to at a very basic level, including ss 55 and 79 of the Evidence Act 1995 (NSW).
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She submitted that the true subject matter of this trial, in accordance with the elements of the counts in the indictment and substantive criminal law generally, is the conduct, knowledge, and intention of the two accused. The trial is not in any sense to be a series of lectures about the phenomenon of right-wing extremism.
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She submitted that the reports of Dr Campion are noteworthy for being largely based upon academic literature, generalised, and heavily qualified by way of the use of such words as “usually”, “generally”, “often”, and so forth.
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Her position was that there could be no objection to a simple explanatory statement being given to the jury about the attributes of right-wing extremist ideology and groups. But she submitted that it was simply not “necessary” for the evidence to go beyond something of that nature.
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She submitted that much of the detail proposed to be given was insufficiently linked to the evidence alleged to inculpate both accused, as demonstrated by the evidence placed before me on the voir dire. In that sense, she submitted that the test to be found in s 55 of the Evidence Act had not been established in favour of admission of the evidence.
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She also submitted that it was wrong for matters of straightforward fact to be “cloaked in the authority” of persons who have asserted expertise in the subject of right-wing extremism, one primarily in an academic sense and the other primarily in a practical sense.
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She accepted that the jury could be given a “translation” of the meaning of various symbols said to have been accessed, or downloaded, or transmitted by the accused men. And she also submitted that the jury could be given an understanding of the general phenomenon of right-wing extremism of which such a symbol may be a manifestation. But as I understood the submission, the proposed evidence would go much too far beyond what was relevant to the issues for the determination of the jury.
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It was said that the Crown was wrongly assuming that the evidence was relevant to the issues in the trial, rather than complying with its responsibility to establish its relevance as the moving party seeking admission. And it was said that that wrongful assumption was exemplified by the indication of the Crown that these expert witnesses were to be called first in the trial.
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Senior counsel accepted that, in light of its inclusion in the material placed before me on the voir dire, a swastika, for example, could be the subject of a concise factual statement about its historical and current connotations. But there would be no requirement for an expert to give that kind of evidence, because of its undisputed and indisputable meaning as a matter of history, and the knowledge of an Australian jury in 2022 of that history.
Determination
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The following constitutes an overview of the reasons why, on 1 March 2022, I ruled the evidence to be admissible.
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States of mind of both accused are indeed of central importance in this trial. That is often the case with regard to any criminal allegation that needs to be proven beyond reasonable doubt, bearing in mind that the vast majority of criminal offences contain some sort of mental element.
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Unusually, however, here, part of proof of the counts in the indictment is an element of politically motivated violence. For that reason, evidence about political matters is of central importance, subject of course to the usual strictures of the definition of relevant evidence to be found in s 55 of the Evidence Act.
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In that regard, in my opinion placed before me on the voir dire was a great deal of evidence that could tend to support the proposition that both accused men were, at the very least, interested in right-wing extremist ideology.
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In particular, there is evidence that each man used particular catchphrases and promulgated particular images.
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Many members of Australian society have a deep interest in political history and current events. Many, however, do not. One is not entitled to assume that a jury of twelve citizens would possess those interests.
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By way of an example, I think that it is true that one would expect most Australians to be able to identify a swastika and the regime with which it was associated. On the other hand, that regime came to an end over three quarters of a century ago, and, as it happens, the evidence on the voir dire shows that at least one young witness had no familiarity whatsoever with the symbol.
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Agreeing as I do with senior counsel that the Crown would be entitled to provide the jury with an explanation of the meaning of symbols such as the swastika, I respectfully disagree that the Crown should be restricted to a concise summary. In my opinion, the Crown is entitled to provide the jury with a reasonably expansive explanation of the history, nature, and ideology of the regime that adopted the swastika as its central symbol, and of its current associations many decades later.
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The same may be said of other symbols that appear in the evidence on the voir dire, such as the “Death’s Head”, and the “Sunwheel”. And it may be said even more powerfully about other allegedly right-wing extremist images that, on their face, are anodyne, even appealing, and have no well-established historical association of which I am aware; for example, a green cartoon frog that appears throughout the evidence in various guises and seeming to express various moods.
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In similar vein, I believe that the Crown is well entitled to provide the jury with expert opinion evidence about the degree to which the alleged interests and activities of each of the accused appears to have aligned with the interests and activities of various right-wing extremist groups.
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In summary: subject to what I say in the subsequent paragraph, based upon the entirety of the evidence tendered on the voir dire, I believe that the evidence of the two witnesses is relevant to establishment of the elements of the averred offences, and in particular, the allegation of acts having been undertaken in preparation for an act or acts of political violence. I believe that the contents of the reports of both witnesses are sufficiently connected to the evidence of what each man is alleged to have said and done by way of the other evidence on the voir dire. I do not believe that the reports are so discursive as to become irrelevant. I do not believe that the Crown should be restricted to bald, concise statements of “fact” about the attributes of various political movements or the meanings of various catchwords or symbols. I consider that each witness is well-qualified by their “training, study or experience” to provide the evidence that has been proffered. Finally, for abundant caution, I do not believe that the mandate in s 137 of the Evidence Act is engaged.
Request for reflection
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All of that is subject to the matters that I raised with the Crown prosecutor during discussion of the question, and about which I asked him to reflect (at TT 329.24 to 332.13). They included a matter raised by counsel for Benjamin Lucas; namely, whether the second report of Ms Mendelson of 8 February 2022, in which she proceeds to provide her opinion about particular images derived from the evidence on the voir dire, falls within the same legal analysis of mine.
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That matter, and all matters that were raised by me in discussion, simply remain matters for reflection. As needs be, they (along with any other matters of particular concern) can be placed before me again at the convenience of counsel.
Conclusion
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Speaking generally about the evidence of the two witnesses, however, I consider that it is relevant and admissible.
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Decision last updated: 09 November 2023
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