Citation: R v J Lucas; R v B Lucas (No 5) [2022] NSWSC 1811
Court: Supreme Court of NSW
Date: 28 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 of joint commission of an offence. The trial involved a voir dire (a preliminary hearing to determine the admissibility of evidence) in which the Crown sought to use online posts allegedly made by the first accused as evidence against the second accused.
The Crown's mechanism was s 87(1)(c) of the Evidence Act 1995 (NSW), which allows a representation made by one person to be treated as an admission by another person where it was made in furtherance of a common purpose shared between them. Earlier rulings on the voir dire had already dealt with the admissibility of the first accused's acts, and his posts as "verbal acts" for non-hearsay purposes. This decision addressed a distinct and further question: whether those posts could be attributed to the second accused as his own admissions.
The posts in question covered a wide range of online activity, including discussions of weapons, survivalist equipment, visits to an electricity substation, affiliation with a right-wing extremist organisation called The Base, and various statements about the first accused's associates.
Legal Issues
- Whether the Crown discharged its onus of proving, on the balance of probabilities, that specific representations in the first accused's posts were made "in furtherance of" the common purpose alleged to exist between the two accused, as required by s 87(1)(c) of the Evidence Act.
- What "in furtherance of" means in the context of s 87(1)(c), and whether representations characterised as online narrative, boasting, philosophising, or discursive commentary can satisfy that test.
- Whether the Crown's broader argument, that building an online presence to connect with like-minded individuals could constitute furtherance of the alleged common purpose, was sustainable.
- Whether inferred or implied representations (derived from conduct rather than explicit words) could be attributed to the second accused under s 87.
Decision
The governing principles:
Button J confirmed that the Crown bore the onus on the balance of probabilities to demonstrate it was "reasonably open to find" that each representation was made in furtherance of the specific common purpose alleged between the two brothers (at [3]-[10]). His Honour adopted the approach in R v Dolding [2018] NSWCCA 127, emphasising that the relevant common purpose is the one actually averred in the indictment, not any other (at [11]). Drawing on Landini v State of New South Wales [2007] NSWSC 259, his Honour confirmed that "in furtherance" carries its ordinary English meaning of helping forward or advancing something, and that mere commentary, narrative, philosophising, or boasting cannot satisfy it (at [15]-[16]). The court also held that s 87 requires an assessment of each representation individually, not a global approach (at [35]).
The Crown's "online presence" thesis rejected:
The Crown argued that posts which appeared to be mere narrative or boasting could nonetheless be in furtherance of the common purpose because they helped build an online presence, enabling the first accused to connect with like-minded people for future assistance. Button J rejected this reasoning. What is required is furtherance of the specific common purpose alleged between the two accused, not some other purpose the first accused may have pursued independently or with others in the future (at [29]-[30]).
Representations excluded:
The majority of the posts were excluded. Representations in CCS about preparing, hoarding guns and ammunition, and training were characterised as online philosophising about gun control and related topics, with no mechanical or logistical connection to advancing the common purpose (at [26]-[31]). The saving and altering of substation photographs without promulgation could not itself constitute furtherance (at [36]-[37]). Posts in CCS about "boys getting white utes" and references to Taliban and ISIS, as well as representations in CCS about a visit near Sydney Airport and "domestic terrorism," were found to be narrative or discursive discussion incapable of advancing the specific common purpose (at [47]-[49], [53]-[55]). Posts in CCS,,,,, and were similarly excluded on analogous grounds, including that the last involved an apparent anti-recruiting message rather than furtherance of any common purpose (at [61]-[65]).
Representations admitted:
Three sets of representations were admitted. Representations in CCS, in which the first accused discussed seeking to join The Base and mentioned having four to eight friends also keen to join, were found to be reasonably open to characterisation as in furtherance of the common purpose (at [60]). Representations in CCS, involving an online discussion about explosive substances and the posting of a substation photograph with an accompanying explicit statement, were admitted as reasonably open to characterisation as an information-gathering exercise in furtherance of the common purpose, though no broader inferred representation was admitted (at [41]-[44]). Representations in CCS about survival kits and military equipment were admitted on the basis that it was reasonably open to find the first accused was seeking information for survivalist purposes in furtherance of the common purpose (at [51]-[52]).
Orders Made
Various discrete rulings made across the individual representations assessed.
Key Takeaways
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Under s 87(1)(c) of the Evidence Act 1995 (NSW), a representation by one accused can be treated as an admission by a co-accused only where it is reasonably open to find the representation was made in furtherance of the specific common purpose alleged between them. The Crown bears that onus on the balance of probabilities (at [3]-[10]).
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"In furtherance" carries its ordinary meaning of advancing or helping forward the common purpose. Representations that amount to narrative, boasting, philosophising, or discursive commentary fall outside the concept, even where a broad reading of the evidence might otherwise be available (at [15]-[16]).
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A general thesis that an accused was building an online presence for future networking with like-minded individuals does not, without more, establish furtherance of the particular common purpose averred in the indictment (at [29]-[30]).
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Section 87 requires each individual representation to be assessed on its own facts and in its own context, not as part of a global or cumulative assessment (at [35]).
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Where a representation is implied or inferred from conduct rather than expressed explicitly, courts will approach attribution to a co-accused with particular caution, given the obvious difficulty in ascribing a representation of uncertain content to another person's mouth (at [42]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
- Landini v State of New South Wales & Ors [2007] NSWSC 259
- R v Dolding [2018] NSWCCA 127