Citation: R v J Lucas; R v B Lucas (No 8) [2022] NSWSC 1813
Court: Supreme Court of NSW
Date: 3 March 2022
Judge: Button J
Background
Two brothers were facing trial by jury on a three-count indictment relating to right-wing extremist activity. This judgment concerns a pre-trial application by one accused, Joshua Lucas, to exclude the proposed oral evidence of two witnesses, referred to as ZP and CT to protect their identities as former juveniles.
The Crown alleged that Joshua Lucas had communicated online with both witnesses over a number of years, beginning when each was 13 years old and he was approximately 17. Those communications included the transmission of words, images, and videos said to demonstrate adherence to right-wing extremist ideology. While authorities had retrieved some of this digital content from the witnesses' devices, a portion of the inculpatory interactions had not been captured and could only be proven through the oral evidence of ZP and CT.
The Crown proposed to excise all sexualised and intimate material from the witnesses' evidence before it was placed before the jury, leaving only the ideologically relevant content. Joshua Lucas applied to exclude the oral evidence altogether under s 137 of the Evidence Act 1995 (NSW), arguing that the danger of unfair prejudice outweighed its probative value.
Legal Issues
- Whether the oral evidence of ZP and CT was admissible under s 137 of the Evidence Act 1995 (NSW), which requires exclusion where the danger of unfair prejudice outweighs probative value
- Whether the forensic disadvantage created by the need to reveal prejudicial material in order to attack witness credibility could constitute a "danger of unfair prejudice" within s 137
- What weight to assign to the probative value of the oral evidence when considered alongside the broader body of Crown evidence
Decision
Probative value of the oral evidence
Button J assessed the probative value of the oral evidence in the context of all other evidence available to the Crown, consistent with IMM v The Queen and The Queen v Dennis Bauer. The Crown had available a substantial volume of online posts by Joshua Lucas, evidence of his expression of right-wing extremist views during a camping trip, and online exchanges with interlocutors who were not approving of his views (at [38]-[39]). Taken together, this existing material substantially addressed the Crown's forensic purpose of establishing sincerity of belief.
Regarding ZP's oral account of an image of a tightly wrapped turquoise item sent to her, the court found that similar photographs appeared to have been captured from Joshua Lucas's own mobile phone, which significantly diminished the additional value her oral evidence would contribute (at [40]-[43]). CT's oral evidence of receiving a photograph of what appeared to be a home-made bomb carried rather more probative value, as that specific image had not been captured elsewhere in the Crown brief, though even that evidence was weighed against the other material available to the Crown concerning improvised devices (at [48]-[49]).
Danger of unfair prejudice
The court accepted that in order to effectively challenge the credibility of either witness, Joshua Lucas would need to reveal that each witness harboured significant grievances against him arising from sexualised conduct when they were children (at [23]-[27]). This created a forensic trap: the only effective pathway to attacking credibility required exposing the accused to condemnation for sexual contact with children, which is conduct that attracts profound community opprobrium regardless of the ages of those involved (at [27]).
Drawing on R v Cook [2004] NSWCCA 52, the court confirmed that this kind of structural forensic disadvantage, where an accused cannot answer inculpatory evidence without tendering prejudicial material against himself, can fall within the concept of unfair prejudice under s 137 (at [50]). The court further noted that this danger would arise in a trial already featuring deeply inflammatory material, such as apparent approval of a mass casualty terrorist attack and the dissemination of Nazi symbols, against which backdrop any additional revelation of sexual conduct with children posed a real risk of cumulative prejudice (at [51]).
Application of s 137
Button J emphasised that s 137 directs attention to the "danger" of unfair prejudice, not its certainty, thereby commanding focus on potential outcomes rather than only those the court is satisfied will materialise (at [35]). Describing the balance as "finely balanced," the court ultimately concluded that the danger of unfair prejudice outweighed the probative value of the oral evidence, engaging the mandatory exclusion requirement of s 137 (at [52]). The documentary evidence, being posts and retrieved digital material stripped of sexualised content, remained admissible.
Orders Made
- The oral evidence of witnesses ZP and CT is excluded pursuant to s 137 of the Evidence Act 1995 (NSW).
- The Crown is permitted to tender all posts between Joshua Lucas and the two witnesses, devoid of sexualised content.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), the relevant statutory focus is on the "danger" of unfair prejudice, meaning the court must assess the potential for prejudice rather than only prejudice it is certain will occur (at [35]).
- The Supreme Court confirmed that a forensic disadvantage, whereby an accused cannot effectively challenge the credibility of Crown witnesses without revealing separately prejudicial material about his own conduct, can constitute a "danger of unfair prejudice" within s 137, applying the principle from R v Cook (at [50]).
- Probative value under s 137 is assessed in the context of all other evidence available to the Crown, not in isolation. Where a substantial body of other evidence serves the same forensic purpose, the incremental value of specific oral testimony may be reduced (at [38]-[39]).
- Excluding oral evidence under s 137 does not necessarily preclude the admission of related documentary evidence. Here, retrieved digital posts were admissible while the witnesses' oral accounts were excluded (at [53]).
- Where a trial already involves material carrying a serious risk of inflaming the jury, that broader context is a relevant factor when assessing the cumulative danger of unfair prejudice arising from additional prejudicial revelations (at [51]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Cook [2004] NSWCCA 52
- The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40