R v J Lucas; R v B Lucas (No 4) [2022] NSWSC 1810

Supreme Court New South Wales

Medium Neutral Citation: R v J Lucas; R v B Lucas (No 4) [2022] NSWSC 1810 Hearing dates: 21 February 2022 Decision date: 21 February 2022 Jurisdiction: Common Law Before: Button J Decision: Evidence of posts of Joshua Lucas is admissible against Benjamin Lucas Catchwords: EVIDENCE – admissibility of online chat posts of one accused against a co-accused in context of joint commission offence alleged against co-accused – where posts are being used to show interest in political ideology – where posts are not being used to prove the truth of their contents – where the rule against hearsay is not engaged Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 Tripodi v R (1961) 104 CLR 1; [1961] HCA 22 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

Judgment

Introduction 1. 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. 2. 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. 3. 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.