Citation: R v J Lucas; R v B Lucas [2022] NSWSC 1807
Court: Supreme Court of New South Wales
Date: 18 February 2022
Judge: Button J
Background
Two brothers faced charges arising from alleged right-wing extremist activity on the New South Wales South Coast. The elder brother faced two counts on his own: acts in preparation for or planning a terrorist act, and intentionally advocating a terrorist act. A third count alleged that the younger brother jointly committed acts in preparation for or planning a terrorist act with the elder brother, relying on the joint commission provisions in s 11.2A of the Criminal Code Act 1995 (Cth).
The Crown's evidence included a large volume of right-wing extremist material downloaded by the elder brother, together with evidence of shared activities between the two men, such as daubing a vehicle with extremist slogans and detonating a homemade device. The younger brother's counsel sought a pre-trial ruling that the elder brother's downloads were inadmissible against the younger brother.
This ruling addressed only the admissibility of the downloads by the elder brother. Questions about his social media posts, any application under s 87 of the Evidence Act 1995 (NSW), and any application for discretionary exclusion were reserved for separate rulings.
Legal Issues
- Whether digital material downloaded by the elder brother constituted a "representation" within the meaning of the Evidence Act 1995 (NSW), such that the hearsay rule in s 59 would render it inadmissible against the younger brother.
- Whether the downloads were relevant to proving an element of the joint commission count against the younger brother, namely that the elder brother entered into the relevant agreement.
- Whether any lack of commonality between the material downloaded by each man affected admissibility.
Decision
Issue 1: Whether the hearsay rule applied
The younger brother's counsel characterised the downloads as inferred representations of the elder brother's state of mind, bringing them within the broad definition of "representation" in the Evidence Act dictionary and thus engaging the hearsay rule. Button J rejected this characterisation. Drawing on Lee v The Queen [1998] HCA 60 and R v Dolding [2018] NSWCCA 127, his Honour held that even a representation inferred from conduct must rest on an intended assertion by the actor (at [21]). The act of downloading extremist material might permit an inference about state of mind, but it did not involve the elder brother intending to assert that state of mind (at [21]-[22]). Accordingly, the hearsay rule was not engaged (at [22], [28]).
Issue 2: Relevance to the joint commission count
To prove the third count against the younger brother, the Crown needed to establish beyond reasonable doubt that the two men agreed to commit an offence and that the offence was committed in accordance with or in the course of that agreement (at [5]). The elder brother's agreement was itself a state of mind to be proved, and his downloads were conduct from which that state of mind could be inferred (at [17], [25]-[26]). Button J also held that evidence of state of mind is not confined to the dates charged: acts before and after the pleaded period can establish state of mind at the relevant time, provided the broad relevance test in s 55 of the Evidence Act is satisfied (at [18]-[19], [27]).
Issue 3: Commonality between the two men's material
The submission that the disparity in volume and content between the downloads of each man undermined admissibility was rejected. The central question was the elder brother's state of mind at the time of the alleged agreement, and his own conduct remained relevant to that question regardless of whether it matched the younger brother's conduct (at [23], [29]). Button J added that, in any event, there was sufficient commonality of subject matter and chronology between the two men's downloads to support admissibility on this alternative basis (at [24], [30]).
Orders Made
- Evidence admitted.
Key Takeaways
- Acts of downloading digital material do not constitute a "representation" for hearsay purposes unless the actor intended to assert the state of mind that might be inferred from those acts, following Lee v The Queen and R v Dolding (at [21]-[22]).
- Where joint commission under s 11.2A of the Criminal Code Act 1995 (Cth) is alleged, evidence of a co-accused's conduct is admissible to prove that co-accused's state of mind, including the fact of agreement, as an element of the count against the other accused (at [17], [25]-[26]).
- Evidence of a person's state of mind is not temporally limited to the precise dates charged: conduct before and after the pleaded period can be relevant under the broad potentiality test in s 55 of the Evidence Act 1995 (NSW) (at [18], [27]).
- Commonality between the acts of each co-accused is not a precondition to admissibility where the evidence is directed at proving the state of mind of one of them rather than their shared conduct (at [23], [29]).
- The ruling was confined in scope: admissibility of social media posts, any s 87 application, and any application for discretionary exclusion were expressly reserved for separate determination (at [14]-[16]).
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth) s 11.2A
- Evidence Act 1995 (NSW)
Cases
- Lee v The Queen [1998] HCA 60; 195 CLR 594
- R v Dolding [2018] NSWCCA 127