Citation: R v J Lucas; R v B Lucas (Bail) (No 11) [2022] NSWSC 1817
Court: Supreme Court of New South Wales
Date: 4 July 2022
Judge(s): Button J
Background
Two brothers were arrested in March 2020 and charged with terrorism-related offences. They had been held in very constrained custodial conditions ever since. A joint jury trial commenced approximately two years later in the Supreme Court at Parramatta.
The jury returned a guilty verdict on count 2 against the elder brother (intentionally advocating a terrorist act, carrying a maximum of five years imprisonment). On the two most serious counts, however, the jury was discharged without reaching a unanimous verdict: count 1 against the elder brother (acts in preparation for or planning a terrorist act, carrying a maximum of life imprisonment) and count 3 against the younger brother (the same preparation offence, alleged on the basis of joint commission).
Both brothers then brought bail applications. The matter was heard by Button J, who had presided over the entirety of the jury trial and therefore had detailed familiarity with the Crown case.
Legal Issues
- Whether each applicant had established "exceptional circumstances" as required by s 15AA of the Crimes Act 1914 (Cth), which creates a presumption against bail for terrorist offences
- If exceptional circumstances were established, whether any unacceptable risks existed under s 17 of the Bail Act 2013 (NSW) that could not be adequately addressed by bail conditions
- The relevance of the strength of the Crown case to the exceptional circumstances inquiry, in circumstances where the trial judge had heard the entirety of the evidence
Decision
Issue 1: Bail for the elder brother (count 1 and count 2)
Button J accepted that several factors weighed in the elder brother's favour: his youth, his lack of criminal convictions, his very demanding conditions of custody, and the delay of at least three years before any retrial. On count 2, the elder brother had almost certainly already served more time than any sentence that would be imposed for that offence (at [24]). However, the court did not accept that the Crown case on count 1 was weak (at [31]).
Despite the jury's failure to reach a verdict, Button J assessed the circumstantial case against the elder brother as "quite strong," pointing to: screenshots of mosques and synagogues near his home created shortly after the Christchurch massacre; numerous posts expressing admiration for the Christchurch perpetrator and suggestive of right-wing extremism; online references to and downloads of materials about building improvised explosive devices; possession of explosive propellant on arrest; and meticulous records of sparkler bomb construction (at [32]-[34]). The court acknowledged the powerful alternative hypothesis that some activities were mere playacting, but did not find this sufficient to characterise the case as weak (at [33]-[34]). Exceptional circumstances were not established (at [35]).
On unacceptable risk, the court found that the proposed bail address, the elder brother's family home, was not appropriate because his father had at least tolerated his son's extremist statements, and there would be an unacceptable risk of the commission of a serious offence if bail were granted on the terms proposed (at [36]-[37]).
Issue 2: Bail for the younger brother (count 3)
The Crown case against the younger brother rested entirely on joint commission of his brother's preparatory acts, with the ultimate terrorist act also alleged to be intended for the elder brother to carry out (at [40]). Button J examined each of the seven particularised acts in detail and found the case against the younger brother to be "quite weak" (at [41]-[52]).
The court identified alternative rational hypotheses for each particular: the sparkler bomb detonations could be explained as immature entertainment; the daubing of the vehicle took place at a police officer's home and was left there; the substation and airport visits were consistent with role-playing or playacting; and the camping and outdoor equipment could be explained by a genuine interest in outdoor activities rather than preparation for extremist action (at [42]-[50]). Taken as a whole, the alternative hypothesis that the younger brother was an unsophisticated young man attracted to the outlandish rather than a committed co-conspirator could not be readily discounted (at [51]).
Combining the weakness of the Crown case with the younger brother's youth, lack of criminal record, otherwise good character, and extended detention in difficult conditions, the court was satisfied that exceptional circumstances had been established (at [53]-[54]). On risk, the court accepted that the younger brother's partner, who had supported him throughout his incarceration and gave credible evidence at trial, provided a stable and appropriate proposed residence. A regime of conditions of the utmost rigour was found to render all risks acceptable (at [55]-[56]).
Orders Made
- Joshua Lucas is refused bail
- Benjamin Lucas is granted bail on conditions of the utmost rigour
Key Takeaways
- Under s 15AA of the Crimes Act 1914 (Cth), there is a presumption against bail for terrorism offences, and applicants bear the burden of establishing exceptional circumstances before a court can consider releasing them; exceptional circumstances can be established by a combination of factors (at [29]-[30]).
- A trial judge's unique position of having heard the entirety of the Crown evidence before a bail application can be brought to bear in assessing the strength of the Crown case as part of the exceptional circumstances inquiry, as Button J explicitly noted (at [34]).
- A jury's failure to reach a verdict does not, without more, render the Crown case weak for bail purposes; the court conducted its own assessment of the evidence and found the case against the elder brother to be "quite strong" despite the hung jury (at [31]-[34]).
- Where the Crown case rests on the doctrine of joint commission and each individual act is susceptible to an alternative rational hypothesis consistent with innocence, the overall case may be characterised as quite weak, contributing to a finding of exceptional circumstances (at [41]-[52]).
- The suitability of proposed bail accommodation is a relevant consideration in assessing unacceptable risk; the court rejected a proposed address where the household member had tolerated, rather than discouraged, the extremist conduct underlying the charges (at [36]-[37]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW)
- Bail Amendment Act 2022 (NSW)
- Crimes Act 1914 (Cth)
- Criminal Procedure Act 1986 (NSW)
Cases
- Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232
- Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186
- R v Khayat (No 11) [2019] NSWSC 1320
- R v Naizmand [2016] NSWSC 836
- R v NK [2016] NSWSC 498
- R v Uweinat [2021] NSWSC 1256