Citation: R v J Lucas; R v B Lucas (No 4) [2022] NSWSC 1810
Court: Supreme Court of New South Wales
Date: 21 February 2022
Judge(s): Button J
Background
Two brothers, referred to here as the first accused and the second accused, faced charges including a count alleging that the second accused committed an act in preparation for a terrorist act through the Commonwealth criminal doctrine of "joint commission" with the first accused. An essential element of joint commission is that the two accused entered into an agreement to commit the relevant offence.
The Crown sought to tender online chat posts made by the first accused in evidence against the second accused. Those posts related to right-wing extremist subject matter. The admissibility of the posts, specifically whether they could be used against the second accused without offending the hearsay rule, was the subject of this ruling.
The court had earlier provided the ruling itself on 21 February 2022. This judgment sets out the reasons for that ruling.
Legal Issues
- Whether the online posts of the first accused constituted hearsay when tendered against the second accused, and whether the prohibition in s 59 of the Evidence Act 1995 (NSW) applied
- Whether the posts were admissible as "verbal acts" to show the first accused's state of mind and, in turn, his likely entry into the alleged agreement with the second accused
- Whether pre-existing authority on the admissibility of one conspirator's acts and declarations against a co-conspirator applied equally to joint commission offences
- Whether other "external" evidence of agreement was a precondition to admitting the verbal acts of the first accused against the second accused at this stage of analysis
Decision
Issue 1: Hearsay and the verbal acts doctrine
Button J accepted the Crown's submission that the posts were not being tendered to prove the truth of their contents. Rather, the act of composing and transmitting posts about right-wing extremist topics, directed to particular chat groups, was itself treated as conduct capable of demonstrating the first accused's state of mind, namely an interest in or familiarity with the relevant subject matter (at [7], [27]). Because the purpose was not to establish the truth of any assertion in the posts, s 59 of the Evidence Act was not engaged, and the hearsay rule did not apply (at [26]-[27]).
Issue 2: Probative value against the second accused
His Honour reasoned that the first accused's state of mind, as revealed by the posts, was probative of whether he entered into the agreement alleged as an element of count 3 against the second accused (at [7], [22]). Posts made outside the temporal boundaries of the charged agreement were not excluded for that reason alone, as acts occurring before or after the relevant period may still shed light on a party's state of mind within it (at [22]).
Issue 3: Application of conspiracy authorities to joint commission
Button J held that the established principle from conspiracy cases, that the acts and declarations of one accused may be led against another to prove the existence of the alleged agreement and the first accused's entry into it, applies equally wherever agreement is an element of the offence charged (at [28]-[29]). The fact that the count relied on joint commission rather than conspiracy did not distinguish the applicable doctrine. His Honour noted that an early foundational authority in this area, Tripodi v R, did not itself involve a conspiracy count (at [29]).
Issue 4: Precondition of independent evidence of agreement
Button J found that other evidence of agreement (variously described as preconcert, combination, or common purpose) is not a precondition at this stage of the analysis. Such external evidence becomes relevant only if the further question of s 87 of the Evidence Act is reached (at [30]). His Honour added that, even if he were wrong on that point, there was significant evidence on the voir dire of acts by both accused suggestive of agreement (at [31]).
Orders Made
- Evidence of the posts of the first accused is admissible against the second accused.
Key Takeaways
- Under the verbal acts doctrine, written or spoken words tendered not to prove the truth of their contents but to demonstrate a person's state of mind do not engage the hearsay rule in s 59 of the Evidence Act 1995 (NSW) (at [26]-[27]).
- Button J confirmed that the principle permitting one accused's acts and declarations to be led against a co-accused to prove the existence of an agreement extends beyond conspiracy counts to any offence where agreement is an essential element, including joint commission (at [28]-[29]).
- Evidence of the first accused's posts about right-wing extremism was capable of circumstantially establishing that he entered into the alleged agreement, which was itself a necessary element of the offence charged against the second accused (at [7], [33]).
- Independent or external evidence of preconcert is not a precondition to admitting the verbal acts of one accused against another at the hearsay admissibility stage; that requirement arises only if s 87 of the Evidence Act is under consideration (at [30]).
- Button J acknowledged that, if the posts are ultimately admitted against the second accused for the non-hearsay purpose, careful jury directions will be required to ensure the jury understands the limited basis on which the evidence may be used (at [35]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
- Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303
- Tripodi v R (1961) 104 CLR 1; [1961] HCA 22