R v J Lucas; R v B Lucas (No 9)
[2022] NSWSC 1815
•02 May 2022
Supreme Court
New South Wales
Medium Neutral Citation: R v J Lucas; R v B Lucas (No 9) [2022] NSWSC 1815 Hearing dates: 2 May 2022 Decision date: 02 May 2022 Jurisdiction: Common Law Before: Button J Decision: Evidence of lay opinion inadmissible. Evidence of screenshots admissible
Catchwords: EVIDENCE – admissibility of lay opinion evidence – screenshots of conversations themselves between witness and accused probative and admissible – lay opinion of witness not admissible – where Evidence Act 1995 (NSW) s 76 not engaged – subsequent acts of witness founded on their opinion also inadmissible
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Briggs (No 3) [2014] NSWSC 852
Texts Cited: Stephen Odgers, Uniform Evidence Law (16th ed, 2021, Thomson Reuters)
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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This judgment deals with, amongst other things, s 55, s 137, s 76, s 79 and s 78 of the Evidence Act 1995 (NSW). It should be read in the context of the several judgments I have delivered previously in the trial, touching upon those topics. It should also be read in light of the transcripts relating to those judgments and indeed the transcript over more than one day, relating to this particular controversy.
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The factual basis for it is really to be found in voir dire exhibit A behind tab 23, the statement of Mr Prothero of 7 July 2020 and the various annexures thereto.
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Suffice to say annexure B, shorn of the opinion of that lay person, is accepted by senior counsel for Joshua Lucas to be relevant. I respectfully agree with that. Indeed, I believe it is very probative, in that the natural reading of it is an eschewal of electoral politics and a reference to some kind of alternative impending event.
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It is true that, in a sense, annexure B would be presented to the jury on its own, as it were, because it is undoubtedly an extract of other interactions between the witness and allegedly the accused.
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It is also true that that might present difficult forensic choices to Mr Joshua Lucas’s legal team. But I think that difficult forensic choices are part and parcel of appearing for an accused person in a criminal trial. I do not believe there is a danger of unfair prejudice that arises from that state of affairs. That is especially so since Mr Prothero, on the voir dire, has explained that leading up to that recorded discussion were a number of seemingly unexceptionable discussions about the history and political meaning of the Eureka Stockade.
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If I am wrong about that, and if there is some danger of prejudice that arises, I think that because of the very high probative value of what is to be found in annexure B, s 137 of the Evidence Act would not be engaged.
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Separately from that, I believe that Mr Prothero’s opinion about things is inadmissible, pursuant to s 76 of the Evidence Act. Because his referral to the National Security Hotline was really an act that only has relevance if that opinion underpins it, I believe that that act is irrelevant as well.
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As for s 78 of the Evidence Act, which was relied upon by the Crown, my thinking about that is encapsulated in my judgment in R v Briggs (No 3) [2014] NSWSC 852 of some years ago. I believe that that approach of mine is consistent with what s 78 of the Evidence Act is getting at. I also believe it is in accordance with the analysis in the examples given by Mr Odgers SC at p 549 of Uniform Evidence Law.
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The other aspect is what is to be found in annexure C. That is perhaps a slightly more difficult topic, in that there is a prior consistent contemporaneous statement by Mr Prothero, where he spoke of a Facebook profile called “Josh Lad” having posted “far right and anti-Jew statements”.
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The difficulty there I think, or the issue there, is that it is impossible to explore those characterisations because, understandably, many months later Mr Prothero has no real memory of what precisely was said there.
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Accordingly, it is impossible to make an assessment as to whether or not, in a sense, it is to be thought of as relevant primary evidence, or in the alternative, inadmissible opinion evidence.
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That is the first problem with it. Strictly speaking, pursuant to s 142 of the Evidence Act, it is incumbent upon the Crown to discharge the onus on balance of showing that the evidence is the former, not the latter.
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In any event, even if the Crown could discharge that onus, I think that with regard to that characterisation of Mr Prothero of 8 January 2020, s 137 of the Evidence Act does have a role to play, in accordance with analysis I have provided in the trial in the past. That is in the sense that the evidence is so amorphous and it is so difficult, if not impossible, to conduct illuminative cross‑examination that, as needs be, I would exclude it pursuant to s 137 of the Evidence Act.
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Decision last updated: 09 November 2023
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