Citation: R v J Lucas; R v B Lucas (No 7) [2022] NSWSC 1814
Court: Supreme Court of New South Wales
Date: 1 March 2022
Judge(s): Button J
Background
Two accused, Joshua Lucas and Benjamin Lucas, faced counts in an indictment that included an allegation of acts undertaken in preparation for politically motivated violence. The Crown proposed to call two expert witnesses: an Australian academic specialising in terrorism studies, and a senior investigative researcher from the Anti-Defamation League's Center on Extremism in the United States. Between them, the witnesses had prepared five reports covering the history, ideology, symbols, and activities of various extreme right-wing groups.
Counsel for Joshua Lucas, supported by counsel for Benjamin Lucas, objected to significant portions of the proposed expert evidence. The objection was taken on voir dire (a preliminary hearing to determine admissibility before the jury hears the evidence). The core complaint was that the evidence went far beyond what was necessary or relevant to the elements the Crown had to prove.
Button J ruled on 1 March 2022, delivering reasons for admitting the evidence.
Legal Issues
- Whether the proposed expert evidence met the relevance threshold under s 55 of the Evidence Act 1995 (NSW)
- Whether the witnesses were sufficiently qualified to give expert opinion under s 79 of the Evidence Act 1995 (NSW)
- Whether the breadth and detail of the reports rendered portions of the evidence irrelevant or insufficiently connected to the conduct alleged against the accused
- Whether expert evidence about ideological matters risked being given undue weight by a jury and should be restricted to concise factual statements
Decision
Issue 1: Relevance under s 55
Button J accepted that the states of mind of both accused were central to the prosecution, but noted that, unusually, the counts also required proof of an element of politically motivated violence, making evidence about political ideology centrally relevant (at [16]-[17]). The voir dire evidence showed that both men had used particular catchphrases and promulgated particular images consistent with extreme right-wing ideology (at [18]-[19]).
His Honour found that an Australian jury in 2022 could not be assumed to possess the knowledge necessary to interpret the meaning or significance of those symbols and terms without assistance (at [20]-[21]). He rejected the submission that the Crown should be confined to brief factual statements about the attributes of political movements or the meanings of symbols. In his Honour's view, the Crown was entitled to provide reasonably expansive explanation, including expert opinion on how the alleged interests and activities of each accused appeared to align with those of extreme right-wing groups (at [22]-[25]).
Issue 2: The scope of relevant expert opinion
Button J found the contents of both experts' reports sufficiently connected to the evidence of what each man was alleged to have said and done (at [25]). He did not consider the reports so discursive as to become irrelevant. He expressly noted that some symbols in the evidence were, on their face, anodyne or even visually appealing, with no obvious historical association apparent to a lay jury, such as a green cartoon frog appearing throughout the material. This reinforced the need for expert interpretation beyond what counsel conceded was permissible (at [23]).
Issue 3: Qualifications under s 79
His Honour was satisfied that each witness was well qualified by training, study, or experience to provide the proffered evidence (at [25]).
Issue 4: Mandatory exclusion under s 137
Button J held that s 137 of the Evidence Act, which requires exclusion of evidence whose probative value is outweighed by the danger of unfair prejudice, was not engaged on the facts before him (at [25]).
Issue 5: Remaining matters
Button J noted that certain specific matters, including a question about whether Ms Mendelson's second report (which offered opinion on particular images drawn from the voir dire evidence) fell within the same analysis, remained open for further argument if necessary (at [26]-[27]).
Orders Made
- The expert evidence is admissible.
Key Takeaways
- Expert evidence about extreme right-wing ideology, symbols, and organisations was held relevant and admissible in a prosecution where an element of politically motivated violence had to be proven, because the jury could not be assumed to possess the knowledge needed to interpret the material without assistance (at [17]-[21]).
- The Supreme Court rejected the proposition that the Crown must confine ideological expert evidence to brief, concise factual statements. A reasonably expansive explanation of history, ideology, and symbolism may be appropriate where the evidence on voir dire demonstrates a genuine connection to the accused's alleged conduct (at [22]-[25]).
- Where symbols are superficially innocuous and carry no well-known historical meaning, the case for expert evidence explaining their significance is stronger, not weaker (at [23]).
- Under s 79 of the Evidence Act 1995 (NSW), a witness may qualify as an expert through practical investigative experience in tracking extremism, not only through formal academic credentials (at [25]).
- Button J left open for further argument specific questions about the admissibility of opinion evidence directed at particular images derived from the voir dire, illustrating that admissibility rulings of this kind may require refinement as the evidentiary record develops (at [26]-[27]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 55 and 79
Cases
- Not stated