R v J Lucas; R v B Lucas

Supreme Court of NSW|2022-06-30|Before: Button J

Background

In March 2020, two brothers aged in their early 20s, Joshua Lucas and Benjamin Lucas, were arrested and charged with offences to do with terrorism. They have been detained in very constrained conditions ever since.
Two years later, a joint trial by jury commenced before me in the Supreme Court sitting at Parramatta. Count 1 on the indictment alleged that Joshua Lucas had done acts in preparation for, or planning, a terrorist act or acts. That offence carries a maximum penalty of imprisonment for life. Count 2 alleged that he had intentionally advocated the doing of a terrorist act or acts, reckless as to the possibility that someone may act upon his words. That offence carries a maximum penalty of imprisonment for five years. Count 3 alleged against Benjamin Lucas that, by way of the Commonwealth doctrine of joint commission, he had done acts in preparation for, or planning, a terrorist act or acts. It bears, of course, the same maximum penalty as count 1.
The jury returned a verdict of guilty on count 2 against Joshua Lucas on 15 June 2022.
Eventually, the trial concluded one week ago, with the jury being discharged without verdict on counts 1 and 3, it being unable to come to a unanimous verdict on either of them.
The allegations underpinning count 1 and count 3 therefore remain unresolved, and they are returning to the arraignments list of this Court on 5 August 2022.
A bail application brought by both men was heard by me in Sydney on 30 June 2022. The parties agreed that all of the evidence placed before the jury was to be thought of as placed before me again on the bail application, along with some concise supplementary evidence. The bail application of each man also related to pending charges to do with alleged possession of "gel blasters", a form of simulated firearm that, on the one hand, can be thought of as nothing more than a recreational item or even a plaything, but that, on the other hand, is defined by statute as a firearm and is prohibited in New South Wales. Those charges were before me pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), and can therefore be thought of as matters to be resolved in the Local Court.

Aspects of trial

Much was shared between the two applicants. They had grown up together in deprived and unsatisfactory circumstances in the regional centre of Nowra. Each of them, as I have said, is still a very young man. Each of them is completely free of criminal convictions.
It was conceded on their behalf at trial and on the bail application that each of them had said and done things that were extremely unattractive. An example from many is decorating an old motor vehicle with slogans that can be associated with Nazism and neo-Nazism. Indeed, in my assessment, each of them had said or done things that many would regard as abhorrent: to give other examples, Joshua Lucas had repeatedly expressed racist and antisemitic views online, and Benjamin Lucas was photographed giving the "Hitler salute". On behalf of each, however, it was said that these were words and acts of immaturity, provocation, and big noting, rather than, as the Crown alleged, words and acts evincing not only a true commitment to right-wing extremism, but also a readiness to act upon it.
It was also conceded that they had undertaken certain activities together: for example, detonating a so-called "sparkler bomb", attending an electricity substation early one morning and posing there with gel blasters and a "Eureka Flag", making a trip to Sydney from their homes on the South Coast and in the Shoalhaven and ending up in the vicinity of the airport, and purchasing camping equipment, separately but contemporaneously.
It was submitted on behalf of both of them that their political ideologies, far from being a commitment to neo-Nazism or something similar, were more in the nature of an attraction to libertarianism, and in any event were based upon simplicity of thought and analysis, confusion about such basic things as the difference between socialism and National Socialism, and plain ignorance about politics and history.
There were some important differences between the two applicants, however, including the evidence available to the Crown against each of them.
For example, Joshua Lucas was extremely active in Telegram "chat groups" (and to a lesser extent, other encrypted social media sites) that, by their titles and the contents of the chats posted by their participants, could readily be thought of as extremist.
He downloaded from the Internet guides to do with how to build an improvised explosive device (IED).
On arrest, there was found in the bedroom with which one can infer he was connected a small amount of ammunition and ammunition fragments.
At that time he also possessed, one can infer, a small quantity of an active chemical propellant that could have been collected from live rounds. In a confined container, that propellant could be made to explode, albeit with a limited radius of damage.
On at least two occasions over some months, he created screenshots of Internet searches of the location of mosques and synagogues in the Illawarra and Shoalhaven regions of New South Wales.
Furthermore, the Crown case on count 3 was not only, as I have said, founded upon joint commission by Benjamin Lucas in acts actually done by Joshua Lucas, that doctrine requiring proof beyond reasonable doubt against the former of agreement in, along with presence at or participation in, the acts of the latter. It was also founded upon the proposition that any terrorist act or acts was intended ultimately to be committed by Joshua Lucas, not Benjamin Lucas.
The good character evidence presented on behalf of Benjamin Lucas was also more extensive than that on behalf of Joshua Lucas; indeed, the exculpatory thesis on behalf of the latter was that he is, at the least, an unusual person psychologically.
Finally in this list of contrasts between the two applicants, it is to be recalled that, with regard to count 2, the constitutional tribunal of fact was unanimously satisfied beyond reasonable doubt that Joshua Lucas, on at least one occasion, had indeed sincerely advocated the doing of a terrorist act by at least one other person, with the necessary foresight of the possible consequence. No such finding, of course, has ever been made against Benjamin Lucas.
The broad submission for Joshua Lucas at trial was that it was clear that much of what he said, posted, and did was palpable and demonstrable rubbish, big noting, or playacting, and that the jury could not be satisfied beyond reasonable doubt that anything went beyond that. The Crown accepted the proposition that much of what he had asserted was indeed nonsense, but its submission was that some of it was not, and that many of his actions were accompanied by the necessary mental elements for proof of count 1.
The broad submission at trial on behalf of Benjamin Lucas was that, whatever may have been the intention of Joshua Lucas (about which, of course, nothing was conceded), the Crown could not prove beyond reasonable doubt that Benjamin Lucas had agreed, let along knowingly participated, in any preparatory act related to the ultimate commission of a terrorist act by his brother.

Submissions on bail

On behalf of Joshua Lucas, it was submitted on the bail application that the following factors established exceptional circumstances: his youth, his lack of criminal record, his otherwise good character, the delay of at least three years between arrest and any retrial, his very demanding conditions of custody, and the weakness of the Crown case on count 1.
It was accepted that, pursuant to the new amendment enacted in the Bail Amendment Act 2022 (NSW), he would also need to show exceptional circumstances with regard to count 2: s 22B of the Bail Act. But it was submitted that they could readily be shown by the fact that Joshua Lucas has surely served more than any sentence that would be imposed for that count, bearing in mind the maximum penalty and the guidance afforded by the decision of Bellew J in R v Uweinat [2021] NSWSC 1256.
It was also submitted that a constructive bail proposal was available, and that Crown submissions about various risks were ill-founded. For example, it was said that Joshua Lucas lacked completely the wherewithal (in any sense) to escape justice, and that the proposition that he would contact civilian Crown witnesses - who, in fact, very largely gave evidence that assisted him in the trial - was counter-intuitive. It was also said that I could readily infer that the experience of having been plucked from the community and placed in a form of custody that is more rigorous than maximum security for two and a half years would mean that he would comply with bail conditions absolutely.
The same was broadly said for Benjamin Lucas: that there are exceptional circumstances, the most important of which is the weakness of the Crown case for count 3, and that there is no risk that is unacceptable, so long as conditions of significant rigour are imposed.
Conversely, the Crown submitted that neither applicant had established exceptional circumstances; that the Crown case against Joshua Lucas was "strong", and, against Benjamin Lucas, "reasonably strong"; and that, in any event, no conditions of bail could render the release of either applicant free of various unacceptable risks.

Determinations

What is meant by exceptional circumstances in section 15AA has been discussed in many cases, and I shall not repeat that analysis here: R v NK [2016] NSWSC 498; R v Naizmand [2016] NSWSC 836; R v Khayat (No 11) [2019] NSWSC 1320; Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186; Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232. Suffice to say that I respectfully bear those judicial expositions in mind, but ultimately return to the words chosen by Parliament, and give that phrase its ordinary English meaning. I also regard the examples of outcomes in those matters as helpful, although every case must ultimately turn on its own facts.
In a practical sense, I accept that there is a presumption against bail unless such circumstances can be established.
And I also accept that, as with showing cause for the purposes of the Bail Act, exceptional circumstances can be demonstrated by a combination of factors.

Joshua Lucas

Turning to my determination of that first question with regard to Joshua Lucas, I accept the force of many of the factors relied upon by senior counsel. But I do not accept that there is a weak case against her client.
Paying due deference to the fact that the Crown at trial failed to discharge its onus to the criminal standard on count 1, even so, to my mind there is a reasonably strong circumstantial case against him, founded on a number of categories of evidence. To repeat them briefly: the creation of screenshots of places of worship reasonably close to his home, the first of them not long after the mass murder in Christchurch; his many posts suggestive of right-wing extremism, not least his frankly expressed admiration for the perpetrator of that massacre; his online references to chemicals that could be used in building an IED; the downloads of manuals to similar effect; the possession on arrest of an explosive (albeit in a small quantity), inferentially comprised of ammunition propellant; and the meticulous recording of the process of construction of the sparkler bombs.
Like the Crown, I accept that a proportion - perhaps a very significant proportion - of what Joshua Lucas posted was nonsense, and a function of his distorted, if not damaged, personality. I also accept that there is a powerful alternative rational hypothesis consistent with innocence that the visit to the substation and the visit to the vicinity of the airport were both nothing more than role-playing or playacting, designed for subsequent online promulgation for his own emotional gratification.
Even so, my assessment - having been placed in the most unusual and advantageous position of having had the entirety of the Crown case unfold before me prior to being called upon to determine the bail application - is that it is quite a strong one against Joshua Lucas.
In the absence of my acceptance of what I regard as the essential component of the asserted exceptional circumstances, I am not satisfied that they are established.
Reflecting contingently upon the question of unacceptable risk, as against the possibility that I am wrong about the primary question, I cannot accept that it would be appropriate for Joshua Lucas to be bailed to live with his father as proposed. As I have said, and without making personal criticism, his father played an important role in his unsatisfactory upbringing. Not only that, there was evidence in the trial that suggested that, far from condemning or even discouraging right-wing extremist statements on the part of his son, Mr Lucas Snr - at the least - tolerated them.
To express this second basis of rejection of the application in terms of the Bail Act: I believe that if Joshua Lucas were granted bail as proposed, there would be an unacceptable risk of the commission of a serious offence on his part.
My order therefore is that Joshua Lucas is refused bail.

Benjamin Lucas

The position is different, however, with regard to Benjamin Lucas, not only with regard to the Crown case, nor only with regard to exceptional circumstances, but also with regard to the assessment of risks.
As I have said, the Crown case was always that he was guilty by way of joint commission in the preparatory acts of his brother, and that the ultimate actor was also alleged to be his brother, not Benjamin Lucas.
Separately, the Crown helpfully particularised for the jury the seven acts of Joshua Lucas in which it was alleged that Benjamin Lucas had taken part, with the mental elements necessary to render his actions criminal. I shall analyse them very briefly to explain why, whether examined individually or as an integrated whole, I regard the Crown case against Benjamin Lucas as quite weak.
The first was taking part in the building of the first sparkler bomb that was detonated. But there was no direct evidence that Benjamin Lucas had done so. Whilst it is true that he was photographed in seeming approval of that item on the evening of 5 July 2019 at 11.05pm, a short time before its detonation on the evening of 6 July 2019, it is not difficult to posit alternative hypotheses whereby, prior to the taking of that photograph, Benjamin Lucas did not take part in its construction.
The second particular was the undisputed role that Benjamin Lucas played in the detonation of the third sparkler bomb. So much may be accepted. But I think much of what was said on behalf of both applicants about the surrounding circumstances, suggesting that one could not be satisfied that the detonations were more than immature entertainment, has force. And in any event, even if Joshua Lucas possessed a nefarious purpose in that process, it is not easy to ascribe definitively the same purpose to Benjamin Lucas, not least because, even on the Crown case, other innocents were present at the detonations.
The third was joining in the daubing of the motor vehicle with right wing slogans. But that took place at the home of a serving New South Wales police officer, and the car was simply left at her property, which surely calls into question the seriousness with which the act was done.
Separately, the Crown thesis was that this was an act in preparation for a terrorist act, in that the subsequent promulgation of images of the vehicle was the building of an "online profile". But that promulgation does not fit comfortably with an ultimate intention to succeed in the completion of a terrorist act without prior interception by the authorities. In my opinion, it fits at least as comfortably with offensive stupidity, combined yet again with childish emotional gratification.
The fourth particular was assisting in an application by Joshua Lucas to join an undoubtedly right-wing extremist organisation by subsequently seeking to do the same. But as the transcript of discussions during the bail application shows, I believe that there is a structural legal problem, based on chronology, with regard to that allegation, in terms of that act being able to be proven against Benjamin Lucas by way of the doctrine of joint commission. And in any event, I think it is reasonably possible that some other person used a username associated with Benjamin Lucas to make the alleged subsequent application, in order to bolster the first one.
The fifth was founded on the visit to the substation. But as I have said, I think that there is an alternative rational hypothesis of role-playing or playacting that is well open in that regard.
The same may be said about the sixth particular, the visit to the vicinity of the airport.
The seventh and final particular is the building of a so-called "Boogaloo kit", in accordance with an extremist right-wing doctrine to do with an impending race war that calls for survivalist preparation. That was alleged to be an act of participation by Benjamin Lucas in Joshua Lucas doing the same. As I remarked to counsel during the bail application, there are some troubling aspects about the number of bladed items found in the possession of Benjamin Lucas on arrest. Even so, I think that the explanation that here was a young man, living in a regional town, of limited and straightforward interests, and who had a demonstrated interest in the outdoors by way of activities established by the evidence, cannot be readily discounted.
And in any event, I think that the alternative thesis put forward by his counsel at the trial - that the gathering of the components of the "kit" could have been an attempt to receive online admiration in response to images posted of it, not a real proposal to disappear into the bush and try to live off the land whilst awaiting a coming civil war - also has its power.
Leaving the seven particularised acts relied upon and thinking now about the Crown case overarchingly, I also consider that the submission for Benjamin Lucas that he was a member of a group of young people who were unsophisticated, immature, limited in outlook, and generally attracted to the outlandish and the outrageous, goes quite a long way to explaining the undisputed acts and words of Benjamin Lucas. To express that in terms of the criminal standard and onus of proof: it is an alternative rational hypothesis that the Crown may well have difficulty disproving beyond reasonable doubt in the future, just as it did in the past.
To repeat: my considered assessment of the Crown case against Benjamin Lucas, whether analysed as a collection of individual circumstances or as an integrated proposition, is that it is quite weak.
That assessment needs to be seen in the context of the other factors that I have recounted: a young man, of no criminal record, otherwise well regarded, detained in very difficult conditions, with a putative date of resolution of the allegation against him at least three years after his arrest.
Taken as a whole, I consider that exceptional circumstances have been established on behalf of Benjamin Lucas.
Turning now to the entirely separate question of the presence of any unacceptable risks: the woman who is the mother of his daughter, with whom it is proposed that he would return to live, and who has stuck by him for two and a half years of continuous incarceration, gave evidence and was cross-examined in the trial. She impressed me as a loving and responsible person, and the Crown placed nothing before me on the bail application to the contrary. Furthermore, I think that the two of them having experienced what she described in a recent letter tendered on the application as the "nightmare" of the past 28 months gives one a great deal of confidence that Benjamin Lucas will comply with any bail conditions to the letter, on pain of having his bail immediately revoked and being returned to his current place of custody.
Unquestionably, there are risks if Benjamin Lucas were to be released. However, I consider that a regime of conditions of the utmost rigour, well beyond that originally proposed on his behalf, but which may be able to be "stepped down" subsequently if things develop well, renders all of those risks acceptable.
For those reasons, my order is that bail is granted to Benjamin Lucas on the following conditions.

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

Bail Amendment Act 2022(NSW)

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