Supreme Court New South Wales Medium Neutral Citation: R v J Lucas; R v B Lucas (No 2) [2022] NSWSC 1808 Hearing dates: 21 February 2022 Date of orders: 23 February 2022 Decision date: 23 February 2022 Jurisdiction: Common Law Before: Button J Decision: Evidence able to be relied upon by prosecution to prove consciousness of guilt Catchwords: EVIDENCE – objection to evidence being relied upon by prosecution to prove alleged consciousness of guilt – evidence of destruction of computer and hard drive by accused – problem of "bootstrapping" in context of alleged consciousness of guilt evidence – test for use in that way founded upon potentiality – evidence admitted for that purpose Cases Cited: Edwards v The Queen (1993) 178 CLR 193 Kuehne v R [2014] NSWCCA 22 R v Baden‑Clay (2016) 258 CLR 308 Shepherd v The Queen [2011] NSWCCA 245 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 1. In my thinking about this objection I return to Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63. I have also taken note of Kuehne v R [2014] NSWCCA 22. I have also thought about the more recent decision of the High Court in R v Baden‑Clay (2016) 258 CLR 308; [2016] HCA 35. 2. Making due adjustment to what was said in Edwards v The Queen in the context of lies, I think that what occurred here could be regarded by the jury as evidencing a consciousness of guilt on the part of Ben Lucas of count 3. My analysis is based upon the proposition that in order for an act to have that potentiality, it need not necessarily demonstrate conclusively a consciousness of guilt of all of the elements of the offence: see Edwards v The Queen at p 210-211 of the CLRs; [14] MNC of the majority judgment. 3. I also think it is important to bear in mind that what is being discussed at this threshold stage is merely my assessment of potentiality, in the ultimate opinion of others, namely the 12 or rather 15 jurors. 4. I have also borne in mind that the majority judgment in Edwards v The Queen makes it clear that, for an asserted act done in consciousness of guilt to be used in that way, it does not need to be demonstrated to have that flavour beyond reasonable doubt, unless of course it is an indispensable intermediate fact of the kind discussed in Shepherd v The Queen [2011] NSWCCA 245. 5. I certainly agree that there are other explanations as to why Benjamin Lucas may have damaged his computer, but I think it is important that in R v Baden‑Clay at [72] - [79] and following, the High Court moved away from judges using that as a basis for prohibiting this kind of evidence being placed before the jury, and prohibiting this kind of submission being made by the Crown. Indeed, in that setting, even when there was an alternative explanation by way of a plea of guilty to manslaughter in a trial in which murder was alleged, the High Court disapproved the theme of empowerment of the trial judge, and re‑emphasised the theme of the empowerment of the jury. 6. As I have said, I think the timing of when this is alleged to have occurred is important, as follows. It seems on the evidence on the voir dire to have been when Mr Ben Lucas had been told by his mother that his father's home, where his brother Josh Lucas was living, had been raided, and raided by some police group to do with terrorism. 7. In particular, I think it is important that at p 118 at questions 997 and 998 in his interview of 19 March 2020, Mr Ben Lucas made specific reference to his brother. 8. It is also, I think, important that he referred to there having been items on the computer that was damaged that he asserted to the police were in truth "jokes", but that he believed could be misinterpreted by the authorities. 9. I certainly accept that there will need to be careful directions given to the jury, perhaps well before my summing‑up, to make sure the jury understands the caution with which they should approach this kind of reasoning, and in particular, understands the posited alternative explanations. 10. But even so I think that the evidence passes the hurdles of potentiality that are discussed in Edwards v The Queen. I think that the jury would be entitled to use the evidence to reason appropriately as part of the circumstantial case against Ben Lucas. 11. For those reasons, I think that the evidence can be led, and I think the Crown should be permitted to open in that way. 12. The final aspect of my thinking is that I agree entirely that there is a danger of "bootstrapping" whenever an act asserted to have been done in consciousness of guilt is placed before the jury. I also agree that the offence under consideration creates criminal liability at an unusually early stage. Even so, I think that the danger of bootstrapping can be avoided by way of careful direction. And I am not convinced that the way the offence has been framed by Parliament means that reasoning that would otherwise be open to the jury is not open with regard to this offence. 13. In short, the objection to the evidence is not sustained. ********** 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