R v J Lucas; R v B Lucas

Submissions

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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

1. 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.
2. 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.
3. Finally, so will any application for discretionary exclusion by Benjamin Lucas of evidence pertaining to Joshua Lucas.
4. 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.
5. 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.
6. 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.
7. 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."
8. Even so, it is clear from the judgment of her Honour and that of the High Court of Australia in Lee v 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.
9. 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.
10. 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.
11. 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

1. 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.
2. That is a state of mind of Joshua Lucas, which can be established by his conduct.
3. 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".
4. 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.
5. Commonality of action between the two men is not necessary or even of great significance with regard to this question.
6. If I am wrong in that, I think there is significant commonality between their actions in any event.
7. 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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