Citation: R v J Lucas; R v B Lucas (No 2) [2022] NSWSC 1808
Court: Supreme Court of New South Wales
Date: 23 February 2022
Judge(s): Button J
Background
The accused Ben Lucas was facing charges that included a terrorism-related offence (count 3). The Crown sought to lead evidence that Ben Lucas had destroyed his computer and hard drive, and to submit to the jury that this destruction demonstrated a consciousness of guilt in relation to that charge.
The alleged destruction was said to have occurred shortly after Ben Lucas learned from his mother that his father's home, where his brother Josh Lucas was living, had been raided by a police counter-terrorism group. During a police interview in March 2020, Ben Lucas referred to his brother and acknowledged that items on the damaged computer were things he believed authorities could misinterpret, though he characterised them as jokes.
The defence objected to the Crown leading this evidence and opening on it in those terms. Button J ruled on the objection in an ex tempore (on-the-spot) judgment following a voir dire (a preliminary hearing to determine the admissibility of evidence).
Legal Issues
- Whether evidence of the alleged destruction of a computer and hard drive was admissible as consciousness of guilt evidence against Ben Lucas in relation to count 3.
- Whether the so-called "bootstrapping" problem, a risk of circular reasoning where the jury uses the alleged guilty act to infer guilt of the very offence that must first be established, was fatal to admissibility.
- Whether the existence of alternative innocent explanations for the destruction precluded the evidence from being placed before the jury.
- Whether the framing of the relevant offence, which criminalises conduct at an unusually early stage, prevented this category of reasoning being available to the jury at all.
Decision
Button J admitted the evidence, finding it passed the threshold of "potentiality": a reasonable jury could use it as part of the circumstantial case against Ben Lucas on count 3. The relevant test, drawn from Edwards v The Queen, does not require that the act conclusively demonstrate consciousness of guilt of every element of the offence. It is sufficient that it has the potential, in the jury's ultimate assessment, to support that inference.
His Honour also noted that, under Edwards, the act need not be proved to carry a consciousness of guilt flavour beyond reasonable doubt, unless it constitutes an indispensable intermediate fact of the kind described in Shepherd v The Queen. That higher threshold was not engaged here.
On the question of alternative explanations, Button J drew on the High Court's reasoning in R v Baden-Clay, which moved away from permitting trial judges to exclude consciousness of guilt evidence simply because innocent explanations exist. That decision emphasised jury empowerment over judicial gatekeeping, even where a plausible alternative explanation was present.
Button J acknowledged the bootstrapping danger but held it could be addressed through careful jury directions, to be given well before the summing-up. He also rejected the argument that the early-stage nature of the offence meant the usual reasoning was unavailable to the jury in this context.
Orders Made
• The objection to the evidence is not sustained
• The evidence can be led
• The Crown should be permitted to open in that way
Key Takeaways
- The admissibility of consciousness of guilt evidence turns on potentiality: the act need not conclusively prove guilt of all elements of the offence, only have the potential to support that inference in the jury's assessment, applying Edwards v The Queen (1993) 178 CLR 193.
- Under Edwards, such an act need not be proved beyond reasonable doubt to carry a guilty conscience flavour, unless it is an indispensable intermediate fact within the meaning of Shepherd v The Queen.
- Following R v Baden-Clay (2016) 258 CLR 308, the existence of alternative innocent explanations for a defendant's act is not, on its own, a sufficient basis for a trial judge to exclude consciousness of guilt evidence or prevent the Crown from making related submissions to the jury.
- The "bootstrapping" risk inherent in consciousness of guilt reasoning is a matter for careful jury direction rather than a ground for exclusion, provided appropriate directions are given.
- Button J confirmed that the unusual structure of a terrorism offence that criminalises conduct at an early stage does not, without more, render this category of jury reasoning unavailable.
Legislation and Cases Referenced
Cases:
- Edwards v The Queen (1993) 178 CLR 193 (HCA)
- Kuehne v R [2014] NSWCCA 22
- R v Baden-Clay (2016) 258 CLR 308 (HCA)
- Shepherd v The Queen [2011] NSWCCA 245
Legislation: No specific legislation was identified in the text provided.