R v J Lucas; R v B Lucas (No 5) [2022] NSWSC 1811

Supreme Court New South Wales

Medium Neutral Citation: R v J Lucas; R v B Lucas (No 5) [2022] NSWSC 1811 Hearing dates: 23 February 2022 Decision date: 28 February 2022 Jurisdiction: Common Law Before: Button J Decision: Various discrete rulings made Catchwords: EVIDENCE – admissibility of evidence pursuant to Evidence Act 1995 (NSW) s 87(1)(c) – whether representations are capable of being characterised as "in furtherance of the common purpose" – discussion of principles underpinning the "co-conspirator's rule" at common law and pursuant to Evidence Act – admissibility for hearsay purpose of representations determined on their own facts and in their own contexts Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 Landini v State of New South Wales & Ors [2007] NSWSC 259 R v Dolding [2018] NSWCCA 127 Texts Cited: Shorter Oxford English Dictionary, 6th ed (2022) 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. The next issue that I have been asked to resolve on the voir dire is whether certain posts alleged to have been made by Joshua Lucas are admissible as to the truth of their contents against Benjamin Lucas, pursuant to ss 59, 81, and, in particular, 87 of the Evidence Act 1995 (NSW). 2. The Crown prosecutor made it clear that the particular subsection relied upon is s 87(1)(c) of that Act. 3. It was made clear for Benjamin Lucas that the real point of resistance was as follows. I was asked to reflect whether, bearing in mind s 142 of the Evidence Act, the Crown had discharged the onus on the voir dire, on the balance of probabilities, of demonstrating that it was reasonably open to find that the representations said to be contained in the posts had been made "in furtherance of" the common purpose alleged to have existed between Joshua Lucas and Benjamin Lucas to commit the offence of joint commission in count 3. 4. The background appears sufficiently in the judgments on the voir dire that I have already delivered, and I shall not repeat it. 5. As before, this judgment does not deal with any asserted "discretionary" exclusion that may subsequently be relied upon for Benjamin Lucas.