R v J Lucas; R v B Lucas [2022] NSWSC 1807

Supreme Court New South Wales

Medium Neutral Citation: R v J Lucas; R v B Lucas [2022] NSWSC 1807 Hearing dates: 18 February 2022 Decision date: 18 February 2022 Jurisdiction: Common Law Before: Button J Decision: Evidence admitted Catchwords: EVIDENCE – admissibility of evidence – whether images downloaded by one accused are admissible against a co-accused where joint commission is the basis of the offence alleged against the co-accused – agreement to commit an offence an element of count – where downloaded images are to be used for the purpose of proving state of mind of first accused – counsel for co-accused submitted the downloads were inferred representations about state of mind of first accused and therefore inadmissible hearsay evidence against co-accused – evidence admitted Legislation Cited: Criminal Code Act 1995 (Cth) s 11.2A Evidence Act 1995 (NSW) Cases Cited: Lee v The Queen [1998] HCA 60; 195 CLR 594 R v Dolding [2018] NSWCCA 127 Category: Procedural rulings Parties: Regina Joshua Lucas (Accused) Benjamin Lucas (Accused) Representation: Counsel: C O'Donnell SC with R Taylor (Crown) M Avenell SC with J Brock (J Lucas) S Howell with 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 1. On 18 February 2022, I ruled that the alleged downloading of certain digital items by Mr Joshua Lucas was admissible in the Crown case against Mr Benjamin Lucas. The following constitutes my reasons for doing so. 2. The background can be shortly stated. The two men are brothers in their early 20s. At the relevant times, they lived separately on the South Coast of New South Wales. By way of an indictment of 5 May 2021, three counts are to be averred against them in a trial by jury that will commence shortly. 3. The first is that Joshua Lucas, between about 15 March 2019 and 14 March 2020, did acts in preparation for, or planning, a terrorist act (or acts). The second is that Joshua Lucas, between the same dates, intentionally advocated the doing of a terrorist act (or acts), being reckless as to whether another person will engage in a terrorist act (or acts). The third count alleges that, between about 1 July 2019 and 14 March 2020, Benjamin Lucas jointly committed an offence with Joshua Lucas, namely acts in preparation for, or planning, a terrorist act (or acts). 4. Because the application for exclusion was brought by counsel for Benjamin Lucas, this judgment focuses on the third count. 5. Pursuant to s 11.2A of the Criminal Code Act 1995 (Cth), in order to prove the third count against Benjamin Lucas, the Crown will need to prove beyond reasonable doubt that he and Joshua Lucas entered into an agreement to commit an offence, and furthermore that, either in accordance with that agreement or in the course of carrying it out, the offence contained in count 3 was committed by Joshua Lucas or Benjamin Lucas or both.