R v J Lucas; R v B Lucas (No 8) [2022] NSWSC 1813

Supreme Court New South Wales

Medium Neutral Citation: R v J Lucas; R v B Lucas (No 8) [2022] NSWSC 1813 Hearing dates: 3 March 2022 Decision date: 03 March 2022 Jurisdiction: Common Law Before: Button J Decision: Oral evidence of two witnesses is excluded pursuant to Evidence Act 1995 (NSW) s 137 Catchwords: EVIDENCE – admissibility of oral evidence of two young, female witnesses – where accused would have been forensically forced to reveal prejudicial material in order to impugn the credibility of witnesses – focus of s 137 on "danger" of unfair prejudice and thereby potentiality – documentary evidence pertaining to two witnesses admissible – oral evidence excluded Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Cook [2004] NSWCCA 52 The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 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: Pseudonyms adopted for children

Judgment

Introduction 1. This judgment resolves an application on behalf of Joshua Lucas for exclusion of the oral evidence of two witnesses. Because they were juveniles at the time of some of the events in question, I shall refer to them as ZP and CT. 2. It was conceded that the evidence passes the broad test of relevance in s 55 of the Evidence Act 1995 (NSW). 3. The application was made pursuant to s 137 of the same Act. In a nutshell, the submission was that, although certain probative evidence in the Crown case could be "shorn" of prejudicial material, in order to impugn the credibility of the two witnesses giving that probative evidence, Joshua Lucas would be forensically forced to introduce it himself. 4. Reliance was placed upon the well-known decision of R v Cook [2004] NSWCCA 52, in which the awkwardness of the position in which the appellant had been placed at trial – whereby, in a practical sense, he was forced to reveal other criminality in order to explain acts seemingly done in consciousness of guilt – had led to the conviction being quashed, on the basis that the Crown evidence should not have been permitted to be placed before the jury.