R v J Lucas; R v B Lucas [2022] NSWSC 1810 | Case summary

Supreme Court of NSW|2022-02-21|Before: Button J

Introduction

On 21 February 2022, I provided a ruling that the posts made by Joshua Lucas are relevant to and admissible in the case against Benjamin Lucas as verbal acts, as to whether Joshua Lucas may have entered into the agreement averred in count 3 against Benjamin Lucas. What follows are my reasons for doing so.
A sketch of the background appears in my earlier judgment of 18 February 2022, and I shall not repeat it, except as follows. Count 3 of the indictment avers that Benjamin Lucas, by way of the Commonwealth criminal concept of "joint commission", committed the offence of doing an act in preparation for a terrorist act with his brother Joshua Lucas. An essential element of that doctrine is an agreement between the two of them to commit an offence.
As before, this judgment deals neither with s 87 of the Evidence Act 1995 (NSW) nor any basis for discretionary exclusion posited for Benjamin Lucas.

Submissions

In a nutshell, the Crown's submission about this issue was that the posts of Joshua Lucas were admissible as "verbal acts" that tended to show an interest (at the least) on his part in the subject matter of right-wing extremism.
The concomitant of that was that it was made clear that, for the purposes of this question, there was no attempt to rely upon them for the truth of their contents. Accordingly, it was said, s 59 of the Evidence Act was not being engaged.
In similar vein, the Crown Prosecutor eschewed any reliance upon s 66A of the Evidence Act, in order to assert that any contemporaneous representation by Joshua Lucas about his state of mind could be used for its truth.
The simple proposition for the Crown was that composing and transmitting posts about certain topics to particular "chat groups" could be thought of as an act, not a representation. And it was said that such an act, directed towards a particular subject matter, could demonstrate a state of mind on the part of Joshua Lucas. The final part of the process of reasoning was that that state of mind - a familiarity with or an interest in right-wing extremism - was probative as to whether Joshua Lucas entered into an agreement with Benjamin Lucas to do an act in preparation for political violence, an essential element of count 3.
By way of example, the Crown pointed to a post alleged to have been made by Joshua Lucas to the effect that his grandfather had killed 200 Indigenous Australians. The Crown made clear that it was not setting out to prove the truth of that statement, whether against Benjamin Lucas or indeed Joshua Lucas. Rather, the Crown explained, at this stage, it was said to be relevant against Benjamin Lucas to suggest that a person who had made such a post, may have been more likely to have entered into the kind of agreement alleged in count 3.
On behalf of Benjamin Lucas, the following submissions were made in resistance.
It was said that the starting point of written words, promulgated by an individual, is that they are, indeed, representations. And it was said that, here, in truth, the vast majority of the posts made by Joshua Lucas have no probative value unless, explicitly or implicitly, they are read for the truth of their contents.
By way of example, it was said that a post to the effect that Joshua Lucas hated the Australian government had no probative value except as a representation that he did, indeed, feel that way about that institution.
He submitted that, because what was under discussion was not the admissibility of statements of Joshua Lucas as if they were admissions of Benjamin Lucas pursuant to s 87 of the Evidence Act, there were virtually no posts of Joshua Lucas that had any relevance, or probative value, in the case against Benjamin Lucas.
He submitted that it is important that the agreement alleged between Benjamin Lucas and Joshua Lucas that is an element of count 3 is pleaded to have occurred between 1 July 2019 and 14 March 2020. And yet, at this stage, the Crown seeks to tender in evidence against Benjamin Lucas, posts of Joshua Lucas that are outside those temporal boundaries.
He submitted that, even if the posts are considered not for the truth of their contents, but rather as indicative of a state of mind in terms of (at least) interests, it is important that they do not go directly to proof of an agreement between the two accused men. And yet, if the evidence is admissible, the jury will have a plethora of evidence of posts of Joshua Lucas, in the creation of which Benjamin Lucas is not implicated, nevertheless said to be admissible against the latter.
He submitted that, even if there were "force in the notion that Joshua Lucas' state of mind is relevant", there would need to be very careful consideration given to whether, and if so which, directions could cause the jury to understand the uses to which the posts of Joshua Lucas may be put against his client.
Counsel invited attention to the volume and extremity of some of the posts, and queried not only whether they have any probative value for a non-hearsay purpose, but also whether the jury could be expected to use them in that way.
He accepted that the leading authorities (many of them in the context of conspiracy counts) speak of "the acts and utterances" of one accused being admissible against another accused, not in order to prove the participation of the latter in the crime founded on agreement, but in order to prove the existence of the agreement, and the participation of the former in it. But he submitted that it could be that an essential precondition for that use of verbal acts of the first accused against a second accused is other "external" evidence from elsewhere of preconcert or agreement between the two of them.
In reply, he queried whether the authorities about conspiracy cases are directly relevant to a case such as this, which is based upon the concept of "joint commission" within Commonwealth criminal law.
His final submission was that, in truth, the evidence proffered transgressed from merely tending to prove the alleged presence of an agreement, and, to the extent that the Crown case is really that there were only two persons who were part of it, it must also play the prohibited role of proving the participation of Benjamin Lucas.

Determination

My reasons for admitting the posts of Joshua Lucas against Benjamin Lucas as verbal acts can best be stated by a series of evidentiary propositions.
An essential element of the offence alleged to have been committed by Benjamin Lucas is agreement between himself and Joshua Lucas.
Acts of Joshua Lucas, including acts committed outside the temporal parameters of count 3, may shed light on his state of mind within them. That, in turn, may shed light on whether or not he entered into the agreement alleged.
Spoken or written words of one person that contain a representation that the person may reasonably be supposed to have intended to assert, are (subject to exception) not admissible in order to prove the truth of the contents of that representation: s 59 of the Evidence Act.
One such exception is representations against the interest of the speaker or author, pursuant to s 81 of the Evidence Act. That exception is not relevant to the controversy under discussion.
Nor is s 66A of the Evidence Act, because the Crown expressly did not rely upon it.
Things written or spoken by Joshua Lucas do not offend the rule against hearsay if they are not tendered with the purpose of proving the truth of their contents.
That is the case here. For the purposes of this controversy, the Crown does not assert that anything posted by Joshua Lucas is true. The purpose of the Crown in tendering the evidence is for otherwise: to show an interest in the subject matter of the posts, bearing in mind their destinations.
It is well established that, in a case in which conspiracy is alleged, the acts and declarations of one accused can be led against another accused in order to prove the existence of the alleged agreement, and the possible entry into it by the first accused: Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 at p 93 first complete paragraph; at [5]; Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 at [263] to [284], especially at [276] to [283].
In my opinion, the fact that those authorities pertained to allegations of conspiracy is of no moment to this question: I believe the doctrine applies to all cases in which agreement is part of what needs to be proven against an accused person. In that regard, it is noteworthy that an early authority often quoted in this area of discourse did not feature a count of conspiracy: Tripodi v R (1961) 104 CLR 1; [1961] HCA 22.
Other evidence of agreement (referred to variously as preconcert, combination, common purpose, and so forth) is not necessary at this stage of analysis. It becomes relevant and necessary if a further stage is arrived at, that of considering s 87 of the Evidence Act.
If I be wrong in that proposition, I believe that there is significant evidence on the voir dire of acts (as opposed to words) of Benjamin Lucas and Joshua Lucas suggestive of agreement.
Conclusion
In summary: the posts of Joshua Lucas - subject, of course, to further objection by his counsel - are admissible against him not only as verbal acts, but for the truth of their contents, pursuant to s 81 of the Evidence Act. The posts of Joshua Lucas are admissible against Benjamin Lucas, not in order to prove the truth of their contents, but in order to prove circumstantially that Joshua Lucas entered into the averred agreement with Benjamin Lucas.
Those are the reasons for my ruling of 21 February 2022.
Finally, I respectfully agree with counsel for Benjamin Lucas that, if the posts of Joshua Lucas are ultimately admitted against Benjamin Lucas for that non-hearsay purpose, great care will need to be taken by all counsel and me to ensure the comprehension of the jury of that basis of admission and its use.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2023

R v J Lucas; R v B Lucas

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