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. Background 1. The broad context of the impending trial by jury of two brothers on an indictment containing three counts has been sketched in earlier judgments of mine. 2. In this particular context, the Crown case is as follows. Joshua Lucas communicated online with the two witnesses over a number of years. That commenced when they were both young girls, aged 13 years, and when he was aged about 17 years. Posts of typewritten words and transmission of images by Joshua Lucas to each of those recipients demonstrate an interest in, indeed an adherence to, right-wing extremist ideology. Although the authorities have retrieved digital products from devices of both ZP and CT, each of them is able to give oral evidence of further inculpatory interactions that have not been so captured. Submissions for Crown 1. The Crown accepted that there was a great deal of other, broadly similar evidence in its case against Joshua Lucas. But the point was made that this evidence has some specific features that give it probative value above and beyond that other material. 2. First, these communications were in private between individuals. They were not to a chat group featuring a large number of interlocutors. That intimate setting might make them more sincere and revelatory. 3. Secondly, these interactions extended over years. In contrast, unless I am mistaken, the other material commences in March 2019. 4. Thirdly, other interlocutors with whom Joshua Lucas communicated appear themselves to have subscribed to right-wing extremism. One might infer that fact from the names of the chat groups to which they subscribed, the usernames which they adopted, and, of course, their posts themselves. 5. Here, in contrast, most of the oral evidence from ZP and CT is to the effect that they were disapproving of the ideological positions advanced by Joshua Lucas. In other words, the Crown submission would be to the jury that this could not have been "big noting" or "one-upmanship" to a receptive audience. To the extent that senior counsel for Joshua Lucas had foreshadowed an alternative rational hypothesis, consistent with innocence, based upon Joshua Lucas insincerely posting rubbish in which he did not believe for his own psychological gratification, the evidence would be important in rebutting that hypothesis. 6. The Crown accepted that a significant part of the contact between Joshua Lucas and the two young girls, who were three years short of the age of consent when it began, was intimate and indeed sexualised. It was made clear that all of that material, whether in posts or proposed oral evidence, would be excised. 7. It was also accepted that opinions expressed by both witnesses in their statements were also to be excised as inadmissible, because they were experts about nothing. 8. In similar vein, what each witness has said about the psychological effect upon herself of the contact with Joshua Lucas over the years would also be excised as irrelevant to the facts in issue in the trial. 9. It was also submitted that the witnesses could give evidence by AVL, and that there need be no explicit reference to their age. 10. In short, accepting that the statements of ZP of 17 February 2021 and CT of 4 November 2020 are too amorphous and discursive to comply with the rules of evidence, it was made clear that the Crown evidence from each of them would be limited as follows. 11. The material that Joshua Lucas transmitted to them (typewritten words, still images, videos, and so forth), a proportion of which has been captured by the authorities and can be put before the jury as primary evidence. To be clear, to the extent that any alleged transmission had not been captured, the witness would be entitled to give oral evidence, as best she could remember and specify, of what Joshua Lucas had expressed to her about right-wing extremism. 12. For example, although none of the online exchanges between Joshua Lucas and ZP mention them, at [24] of her statement ZP states that she recalls Joshua Lucas bragging "about unusual things such as having lots of knives or possessing syringes", and that he sent her photographs of the latter. She also speaks of Joshua Lucas being a fan of certain Australian rappers. 13. In similar vein, at [37], she claims that "[o]n 20 July 2019, Josh randomly sent me a photograph of a turquoise taped covered item with something poking out of it and laid out on a computer desk." That asserted image is not captured in the material placed before me on the voir dire as being available to the prosecution as "raw product" derived from a device of ZP. 14. In similar vein, at [42] of her statement CT says that she "can recall Josh sending me a photograph of a bomb on one occasion, probably around August to late November 2019. The bomb in the photograph was located on his desk and looked like a mix of things taped together with wires. It was 40cm tall and 20cm wide. It had a white plastic container in the middle with a little bit on the side with wires." She goes on to give evidence about the forum in which that image was posted and about a subsequent image from Joshua Lucas, from the combination of which one might infer that he was asking CT to keep quiet about the image of the "bomb". 15. Again, neither of those images has been placed before me on the voir dire as having been retrieved from a device associated with CT. In other words, the evidence of it could only come from her orally. 16. In short, the position of the Crown was that the evidence has significant probative value, in that in a number of ways it goes beyond other evidence available to the Crown; it will be shorn of all prejudicial effect to the extent reasonably practicable; it is common for accused persons in criminal trials to make difficult forensic choices about the advantages and disadvantages of tactical and strategic courses; that R v Cook was a particularly acute case in which the appellant would have been forced to reveal separate but similar criminality to that averred in order to explain the inculpatory evidence; and that, in all the circumstances, s 137 of the Evidence Act was not engaged. Submissions for Joshua Lucas 1. On behalf of Joshua Lucas, the following mechanism of "the danger of unfair prejudice" was explained. It was said that it is certainly open to question the accuracy and truthfulness of the evidence of each of the witnesses; in particular, their own asserted roles as unwilling recipients of right-wing extremist material or perhaps as willing participants in the expression of such views. 2. It was also said that it would be impossible to impugn effectively the oral evidence without the age of each witness being revealed, and the sexualised nature of the contact of each of them with Joshua Lucas. That is because their statements themselves identify their animus against Joshua Lucas for having mistreated them sexually when very young. 3. By way of example, I was taken to [9] of the statement of CT. There she had said " [i]n learning of his arrest, I also felt relief that he would not be able to prey on any other young girls like he had done to me when he was taking advantage of me and grooming me. I also felt that his arrest would deny me closure in relation to what he had done to me as his condition seemed final and it was robbing me of an apology I deserved." 4. By way of further example, he submitted that the statement of ZP is replete with negative statements by the witness about Joshua Lucas, based not upon his expression of ideological matters, but rather upon his sexualised behaviour towards her. (I interpolate here for the convenience of the reader at this stage that [16], [17], [24], [26], [27], [41], [42], [46], [49], and [50](e) could, on my reading, be interpreted in that way.) 5. In short, there are ample paths for impugning the credibility of both witnesses on the basis that each is very aggrieved against Joshua Lucas for his sexualised behaviour towards her. And yet, in order to undertake that process, Joshua Lucas must reveal conduct on his part that Australian society undoubtedly abhors: sexual contact with a child. And that abhorrence, it was submitted, arises whether or not the alleged perpetrator is a teenager or a very old person. 6. Furthermore, that prejudice, it was said, would arise in the context of a great deal of evidence about the state of mind of Joshua Lucas, relevant to the counts brought against him, that will itself run a serious risk of inflaming twelve members of the community against him. 7. Turning then to assessing the probative value of the evidence proffered by the Crown, counsel for Joshua Lucas agreed that one must take it at its highest, in accordance with IMM v The Queen (2016) 257 CLR 300 at pp 314-316; [2016] HCA 14 at [49]-[54], as explained in The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56 at pp 91-92; [2018] HCA 40 at [69]. But this proffered evidence should not be looked at in isolation: it must be seen in the context of the plethora of other evidence of posts (defined broadly) made by Joshua Lucas available to the Crown. Reflected on in that way, the evidence does not advance the Crown case very much. 8. Furthermore, over objection, the Crown case will also feature alleged right-wing extremist sentiments expressed by Joshua Lucas during a camping trip with friends to celebrate a birthday party. In other words, the Crown will already have statements made by Joshua Lucas "in real life" in a friendly setting, not to a chat group in which one might be tempted to big-note oneself to seemingly like-minded people. 9. And in any event, by way of Crown voir dire exhibits D and E, the Crown will also have available posts of Joshua Lucas to other individuals, some of whom at least appear not to be right-wing extremists. 10. I understood him to mean, by way of example, that the interlocutor "musical_hamster" responds to some of the posts of Joshua Lucas with "Oh dear" and "That's a bit too extreme." In another example, the interlocutor "rabidcab00se" responds to a post by Joshua Lucas with "Jesus". 11. In other words, the point was made that the Crown will have available other online interactions in which Joshua Lucas was expressing a right-wing extremist ideology, and the recipient was not expressing encouragement or approval. That means that the Crown will have material available upon which the submission about sincerity could readily be based. 12. Turning to R v Cook, it was accepted that the dilemma with which Joshua Lucas would be confronted is not as "poignant" as that confronting the appellant in that case, in terms of needing to admit explicit criminality. But in a sense, it is more extreme, because of the condemnation of undoubtedly sexualised conduct with a child, even if it has not been, and could not be, framed as a particular criminal offence. 13. As for the section itself, it was said that it is not a matter of me judging whether the probative value of the evidence is outweighed by its unfair prejudice. The use by Parliament of the phrase "the danger of unfair prejudice" is important, because it commands me to focus upon potential outcomes, or contingencies, not states of affairs that I am convinced will arise. 14. Finally, counsel emphasised that the section does not repose in me a true discretion. If I am satisfied that the latter component "outweighs" the former, exclusion is mandated. Determination 1. The matter is very finely balanced, and I have taken time to reflect. Included in that reflection has been a review of evidence otherwise available to the Crown, on the assumption that all of the material placed before me by all parties on the voir dire is in truth derived from the "prosecution brief". 2. Turning first to probative value, I think it is correct to look at the proffered evidence in the context of everything else available to the Crown. On the material placed before me on the voir dire, there is a great deal of online activity by Joshua Lucas that would have the potential to suggest his commitment to right-wing extremism. To be weighed against that is the fact that each of these witnesses speaks of contact to that effect that extended over many years. To be further weighed against that last proposition is that the dates in counts 1 and 3 are those that are ultimately in question in terms of proof of guilt, not the course of years. 3. Furthermore, I think that the evidence of the conversations on the camping trip, and the interactions with other interlocutors in Crown voir dire exhibits D and E, provide the Crown with material upon which it can submit to the jury that Joshua Lucas was prepared to express these views to individuals, some of whom were not approving, indeed disapproving, and furthermore "in real life". 4. As for the description by ZP of the tightly wrapped turquoise item depicted in a photograph sent to her by Joshua Lucas, something very similar was seemingly captured from his mobile phone by the authorities. I refer to voir dire exhibit 1B, image numbers 225 – 231, 237 – 240, 244 – 245, perhaps image 70, 327 – 331, 332, and 337 – 338. 5. This judgment assumes – although that material was placed before me on the voir dire on behalf of Benjamin Lucas – that those images will be available to be tendered by the Crown. 6. In short, it is true that ZP can give important oral evidence of having seen a photograph sent to her by Joshua Lucas that has not been captured on her device. But in my opinion, one can very readily infer that the photographs captured from his device are similar if not identical to the photograph of which she could speak. 7. To be clear then: exclusion of her oral evidence will not, in that regard, detract overly from the Crown case. 8. Speaking more generally about the evidence of ZP above and beyond the "raw material" available, apart from the temporal aspect, I do not believe that it takes the Crown case much further. That is because, as I have said, the Crown has a plethora of statements seemingly in support of right-wing extremism made by Joshua Lucas. 9. The same can be said about the proposed oral evidence of CT, except as follows. As far as I understand the Crown case, the photograph of which she speaks, but which has not been captured from her device, does not appear elsewhere inferentially in the Crown brief. Having said that, the Crown does have available to it image 784 appearing at page 541 of voir dire exhibit 1B. Again, although tendered for Benjamin Lucas on the voir dire, I infer that that image is available to the Crown in the trial. 10. It is true that the description of the image described by CT and the image delineated above are not identical. For example, the latter is sitting upon a floor rug (perhaps the rug depicted in image 487 at page 335 of volume 2 of voir dire exhibit 1B). The former is described as having been on a desk. Other aspects of the image described and the image available do not correlate. 11. Having said that, it seems that the Crown will have available to it an image of what could be a home-made IED having been found on the device of Joshua Lucas, as noted above. It will also have, as I understand it, evidence upon which it relies to say that Joshua Lucas played a central role in the detonation of two "sparkler bombs". 12. In other words, I accept that the description of CT of having received a photograph of a "home-made bomb" has obvious probative value to the issues in this trial. Having said that, seen in the context of the other evidence available to the Crown, it may not take its case very much further. 13. In short, because of the temporal aspect of the contact between the two witnesses and Joshua Lucas, I think that the evidence of each of them has a reasonable degree of probative value. That of CT has rather more, because of the observed but unavailable photograph that I have been discussing. 14. Turning to the danger of unfair prejudice, the decision in R v Cook demonstrates that circumstances, in which a forensic disadvantage arises whereby an accused person is incapable of effectively answering inculpatory evidence without tendering prejudicial evidence "against themselves", can fall within the concept. 15. I accept the submission that one can readily expect that a jury of members of the community will recoil from some aspects of the Crown case against Joshua Lucas; for example, his seeming approval of the Christchurch massacre, and his promulgation of Nazi symbols. Of course, with the assistance of the parties, I shall do my best by way of directions to forestall that reaction. But it would be foolish not to accept that possible phenomenon as a context in which I must assess the danger of unfair prejudice arising from Joshua Lucas being exposed to the completely separate opprobrium that is visited upon persons who have sexual contact with children. 16. To repeat: the matter is finally balanced, in particular whether one "incommensurable" outweighs the other within the statutory test. Ultimately, focusing not on unfair prejudice itself but the danger thereof, I believe that the section is engaged. Conclusion 1. To summarise in the interests of clarity: the Crown will be permitted to tender all posts between Joshua Lucas and ZP and CT, devoid of sexualised content. 2. This judgment is predicated on the understanding that, apart from any discrete matters subject to objection, the Crown will be permitted to tender voir dire exhibits D and E. 3. It is also predicated on the understanding that the other images to which I have referred above, placed before me on the voir dire for Benjamin Lucas, will also be available to the Crown for tender before the jury. 4. On all of those assumptions, the oral evidence of ZP and CT is excluded pursuant to s 137 of the Evidence Act. ********** 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