R v Lucas

1. [1]

   The Crown case against Joshua Lucas is that between about 12 March 2019 and about 14 March 2020, he did an act or acts in preparation for or planning a terrorist act or acts in contravention of s 101.6(1) of the Criminal Code Act (Cth).

2. [2]

   In the Indictment provided to the jury on 4 September 2023 during the Crown’s opening address, the physical aspect of the terrorist act or acts were particularised to involve: “an action or threat of action directed towards a government or military facility, critical infrastructure building and/or place of worship involving the use of an improvised explosive device and/or firearms”.

3. [3]

   Particulars of the charge were provided to the accused’s legal representatives on 23 August 2023. The particulars document commenced as follows:

4. [4]

   This introductory statement is followed by 57 acts arranged under four categories: (1) researching and undertaking reconnaissance of potential terrorist act targets, (2) researching, acquiring components of, assembling and detonating improvised explosive devices, (3) researching, obtaining and experimenting with improvised and simulated firearms and (4) assembling a “Boogaloo” survival kit and obtaining other clothing and materials.

5. [5]

   The Crown’s opening address was structured consistently with these particulars, including, as specified in the Indictment, that the terrorist act or acts planned or prepared for were done with the intention of advancing a political or ideological cause, namely White Supremacism.

6. [6]

   In the context of discussions about the form and content of directions to be provided to the jury given the evidence was complete and closing addresses were soon to begin, counsel for the accused proposed via written submissions on 29 September 2023 that given the Crown case was expressed in the particulars document in terms of a “course of conduct” said to be “in furtherance” of the accused’s planning and preparation, the jury must also be satisfied unanimously of the type of target to which the terrorist act (or acts) would be directed, that being one of the identified categories referred to: a government or military facility, a critical infrastructure building or a place of worship.

7. [7]

   The direction requested was as follows:

8. [8]

   The Crown accepted that the course of conduct approach that it had taken necessitated unanimity in respect of at least two identified acts in preparation for or planning a terrorist act or acts, and acknowledged that the categories of target should be confined to those three it had identified in the Indictment, but opposed any direction that included a requirement of unanimity as to the specific category of target.

9. [9]

   I ruled that the unanimity direction should be given in the form proposed except for the final paragraph. These are my reasons for making that ruling.

Relevant statutory provisions

1. [10]

   Part 5.3 of the Criminal Code (Cth) deals with “Terrorism” and contained s 101.6 (the offence provision) and definition of a terrorist act in s 100.1.

2. [11]

   Section 101.6 provides:

3. [12]

   The definition of terrorist act is contained in s 100.1:

Accused’s submissions

1. [13]

   The accused submitted that because the Crown was running what was in effect a course of conduct case, as a matter of logical reasoning the jury must in addition to unanimity about the (at least) two acts, be unanimous as to the particular type of terrorist act that such acts were intended to “further”.

2. [14]

   Because the phrase “course of conduct” means more than one act, and the phrase “in furtherance of” used in the Crown’s particulars document (but not in the Indictment), implied a “necessary relationship between the preceding act and the desired result”, the particular target had to be the subject of unanimity otherwise there could be a duplicity or coherence problem.

3. [15]

   An example was given that if the acts relied upon by the jury were two instances of taking screenshots of the locations of synagogues and mosques in April 2019 (Acts 3 and 4 in the Particulars document), for those acts to be in furtherance of a terrorist act, the jury must also find that those two acts were related to a terrorist act (or acts) directed to a place of worship.

4. [16]

   The argument relied upon the approach discussed in Walsh v R (2002) 131 A Crim R 299; [2002] VSCA 98 (“Walsh”) cited with approval in Gould v R [2021] NSWCCA 92 (“Gould”) per Bathurst CJ at [9]-[12], R v Pratten [2014] NSWCCA 117 (“Pratten”) at [36] and Chapman v R (2013) 232 A Crim R 500; [2013] NSWCCA 91 (“Chapman”) at [28]-[29].

5. [17]

   In Gould, Bathurst CJ provided this analysis at [9]-[12]:

6. [18]

   As noted by Bathurst CJ, Walsh was cited with approval by the High Court in Lane v R (2018) 265 CLR 196; [2018] HCA 28.

7. [19]

   Walsh had also been cited with approval in Pratten at [36] by the Court comprising Meagher JA and Fullerton and Hamill JJ, and in Chapman at [28] and [29] per Adamson J (as her Honour then was) with whom Hoeben CJ at CL and Davies J agreed.

The Crown’s position

1. [20]

   The Crown objected to the final paragraph of the proposed direction because it does not follow that the jury must be unanimous about the category of target in circumstances where the offence provision disclaims a need for any specificity at all as to how, when or where any terrorist act was to be carried out, or that the planning or preparation was for any specific terrorist act or acts.

2. [21]

   The Crown argued that the analysis of Spigelman CJ in Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121 at [65]-[66] provides emphasis to the statutory context of s 101.6 and the scope and purpose of the legislative scheme:

Decision

1. [22]

   As noted in Walsh, application will depend on, among other things, the precise nature of the charge and the nature of the prosecution case.

2. [23]

   The policy judgment behind the creation of this very particular type of offence is clear and that is to specifically create criminal responsibility for certain conduct at an early stage in order to hopefully prevent acts of terrorism and to seriously punish conduct planned to lead to such acts.

3. [24]

   The Crown here has appropriately agreed that given the course of conduct approach it has taken to the charge, an extended unanimity direction should be given to ensure that the jury is unanimous as to the two specific acts that are determined by them to have been, beyond reasonable doubt, acts done in planning or preparation for a terrorist act or acts.

4. [25]

   It would be contrary to the text of the offence-creating provision to direct the jury that they must also be unanimous regarding the category of target, in circumstances where the legislation specifically contemplated - and since the Anti-Terrorism Act 2005 (Cth) specifically states - that the planning and preparation need not be for a specific act and can be for more than one terrorist act.

5. [26]

   The final paragraph of the proposed extended unanimity direction suggests to the jury that a level of specificity for a future terrorist act must be unanimously found in requiring them to identify a category of target. This would be in direct conflict with what s 101.6 says that the preparation and planning need not entail.

6. [27]

   It would be wrong to give such a direction and so the extended unanimity direction will exclude the final paragraph.