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Supreme Court 16 October 2023

R v Lucas

[2023] NSWSC 1195

Public order & justice offences
CRIMINAL PROCEDURE D IRECTIONS TO THE JURY P REPARATORY ACTS NO SUCH REQUIREMENT

Citation: R v Lucas [2023] NSWSC 1195
Court: Supreme Court of New South Wales
Date: 16 October 2023
Judge(s): Lonergan J

Background

The accused faced a charge under s 101.6(1) of the Criminal Code Act 1995 (Cth) of doing acts in preparation for, or planning, a terrorist act or acts. The Crown alleged that between March 2019 and March 2020, the accused engaged in 57 acts across four categories, including researching potential targets, assembling improvised explosive devices, obtaining firearms, and assembling survival materials. The Crown characterised these acts as a course of conduct in furtherance of planning for a terrorist act directed at a government or military facility, critical infrastructure, or a place of worship, motivated by White Supremacist ideology.

Importantly, the Crown did not allege that the accused was planning a specific terrorist act. As the trial moved toward closing addresses, counsel for the accused raised a question about the content of directions to the jury, particularly whether a unanimity direction should extend beyond agreement on specific preparatory acts to agreement on the category of intended target.

The Crown accepted that its course-of-conduct approach required a direction that the jury be unanimous about at least two identified preparatory acts. The dispute centred on whether the jury also had to be unanimous about which category of target (government or military facility, critical infrastructure, or place of worship) the preparatory acts were directed toward.

  • Whether, given the Crown's course-of-conduct framing, the jury must be unanimous not only as to at least two specific preparatory acts but also as to the particular category of target for the planned or prepared-for terrorist act
  • Whether the phrase "in furtherance of" in the Crown's particulars document introduced a requirement to prove a necessary relationship between the preparatory acts and a specific type of desired result
  • Whether directing the jury to be unanimous about a target category would conflict with the terms of s 101.6 of the Criminal Code Act 1995 (Cth)

Decision

Lonergan J ruled that the extended unanimity direction should be given in the form proposed by defence counsel, but with the final paragraph omitted. The final paragraph was the part that would have required the jury to be unanimous as to at least one category of target.

The court reasoned that s 101.6(2) expressly provides that an offence is committed even where the preparatory act is not done in planning or preparation for a specific terrorist act, and can be done in planning for more than one terrorist act. To direct the jury that they must unanimously identify a category of target would impose a level of specificity that the legislation itself explicitly does not require.

Requiring unanimity about a target category would, in the court's view, be in direct conflict with the statutory text. The phrase "in furtherance of" in the Crown's particulars did not import a requirement that the Crown prove a necessary relationship between the preparatory acts and a specific desired result. The Crown's obligation was to establish unanimity on at least two identified acts that were, beyond reasonable doubt, done in planning or preparation for a terrorist act or acts.

The court noted that Parliament's clear policy intention, reinforced by amendments in the Anti-Terrorism Act 2005 (Cth), was to criminalise preparatory conduct at an early stage, before any specific plan has crystallised. Imposing a unanimity requirement as to target category would undermine that legislative purpose.

Orders Made

• The extended unanimity direction will exclude the final paragraph as proposed
• The jury must be unanimous as to the two specific acts determined to have been done in planning or preparation for a terrorist act or acts
• The jury will not be directed to be unanimous regarding the category of target

Key Takeaways

  • Under s 101.6(1) of the Criminal Code Act 1995 (Cth), preparatory acts need not be directed toward a specific terrorist act, and a person can be guilty even where no particular target has been decided upon, reflecting a deliberate legislative choice to capture conduct at an early stage.
  • Where the Crown runs a course-of-conduct case under s 101.6, a jury unanimity direction must require the jury to agree on at least two specific identified preparatory acts; the Supreme Court confirmed this extended unanimity obligation in this decision.
  • A unanimity direction extending to the category of intended target is not required and would be wrong in law, because it conflicts with the express terms of s 101.6(2), which contemplates preparation for non-specific and multiple terrorist acts.
  • The phrase "in furtherance of" in a Crown particulars document does not, of itself, introduce a requirement to prove a necessary relationship between preparatory acts and a specific intended result or target type.
  • The precise scope of any unanimity direction will depend on the particular way the Crown has framed its case, including the content of the indictment and particulars provided to the jury.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 101.6 (preparatory acts offence) and s 100.1 (definition of terrorist act)
- Anti-Terrorism Act 2005 (Cth)

Cases
- Chapman v R (2013) 232 A Crim R 500; [2013] NSWCCA 91
- Gould v R [2021] NSWCCA 92
- Lane v R (2018) 265 CLR 196; [2018] HCA 28
- Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121
- R v Pratten [2014] NSWCCA 117
- Walsh v R (2002) 131 A Crim R 299; [2002] VSCA 98