Lucas ex parte g470 v SD 2025 SDCR 7
Lucas ex parte g470_ v State of SimDemocracy [2025] SDCR 7
| Date | 12th October 2025 |
| Judges |
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| Held |
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| Ruling | 3-0 |
| Applicable precedent |
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MAJORITY OPINION by Judge Brandmal
(With Judge Hmquestionable and Judge Confused agreeing)
Introduction
[1] The petitioner appealed SD v g470 [2025] Crim 113 ex parte. They argue that the judge applied the wrong statutory language, as the statute in question (harassment) was changed between the commitment of the crime and the rendering of the verdict. Additionally, they claimed that by applying In re Restraining Order Act [2019] SDSC 1 to the freedom of expression, Judge Terak ignored the changed constitutional language in Art. 18 §3. and §3.1. that explicitly sets criteria that ought to be satisfied to convict anybody on the basis of speech alone.
On changed language
[2] In order to resolve the first issue of changed language, this court will turn to the law first. Article 21 §5. of the Constitution reads:
“§5. No person shall be guilty of a criminal offense on account of any act or omission which did not constitute a criminal offense at the time when it was committed, nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offense was committed.”
[3] Additionally, precedent on the matter exists. In Spade Law Firm, ex parte State of SimDemocracy (Appellant) v Freax (Respondent) [2020] SDSC 24 the Supreme Court analysed the predecessor of the current Art. 21 §5, which, as it held, contained an extensive prohibition of ex post facto criminal laws. As later affirmed and applied by the inferior courts (see SD v mayuuii [2025] Crim 84), that includes the increase of sentencing guidelines.
[4] Regarding the timeline at the time the potentially criminal act was committed and up until a few hours before closing statements (signed here and first closing statement then) the language of the law was as follows:
"Article 56. Harassment §1. A person commits first degree harassment if they: §1.1. Caused a person or group of persons to feel undue or unjustifiable apprehension, and §1.2. Had the intention to cause apprehension, or acted with reckless disregard as to whether their actions would cause apprehension. §2. A person commits second degree harassment if they caused a person or group of persons to feel undue or unjustifiable apprehension. §3. A person who causes a person or group of persons to feel undue or unjustifiable apprehension shall be rebuttably presumed to have done so with the intention to cause apprehension. §4. The sentences available for first degree harassment shall be a ban of duration above six (6) months. §5. The sentences available for second degree harassment shall be a ban between one (1) month and one (1) year."
[5] After the law was signed, but before the verdict, the statutory language was as follows:
"Article 56. Harassment §1. A person commits first degree harassment if they: §1.1. Caused a person or group of persons to feel undue or unjustifiable apprehension, alarm, or distress, and §1.2. Had the intention to cause apprehension, or acted with reckless disregard as to whether their actions would cause apprehension. §2. A person commits second degree harassment if they caused a person or group of persons to feel undue or unjustifiable apprehension, alarm, or distress. §3. A person who causes a person or group of persons to feel undue or unjustifiable apprehension, alarm, or distress shall be rebuttably presumed to have done so with the intention to cause apprehension. §4. The sentences available for first degree harassment shall be a ban of duration above six (6) months. §5. The sentences available for second degree harassment shall be a ban between one (1) month and one (1) year."
[6] The petitioner focuses on the differences between apprehension, which was the old standard and apprehension/alarm/distress, which is the new broader standard. Judge Terak in his verdict indeed applies this newer standard, specifically “distress”. That would be correct insofar as the new language was, after being signed, the law of the land. However, the Constitution, as applied by the Supreme Court, makes an exception from the principle that Judges ought to apply the current law when said law would lead to a punishment for an act that would not constitute a crime at the time it was committed. Although the Respondent argued that the new language was effectively the same as the old, the new text clarifies apprehension OR distress, suggesting these are different standards.
[7] Accordingly, applying the broadened standard from the newly amended version of the Criminal Code was ex post facto punishment for an act that might not have constituted a crime beforehand. This Court says might because it sees no reason to effectively substitute the Court of first instance. The trial itself obviously did not violate any constitutional principles, which is why it must not be repeated. The Court finds that violating the most important principles of criminal law in a verdict however, like the prohibition of ex post facto punishment, is a grave miscarriage of justice that warrants a retrial as defined under Art. 9 §1. of the Judiciary Act. Therefore, the matter is remanded to the Court of first instance in order to issue a lawful verdict applying the old language and pursuant to Art. 8 §1. and Art. 9 §1. of the Judiciary Act.
On freedom of expression
[8] The Court will also briefly touch on this point. The Constitution in Art. 18 protects freedom of speech as one of the forms of freedom of expression. It is clear that the only applicable version of freedom of expression the defendant in the original case could have enjoyed was the freedom of speech. However, in In re Restraining Order Act [2019] SDSC 1, the Supreme Court held that harassment is not protected by the freedom of expression as it is no legitimate means to convey a belief or conviction. Regardless of any possible doubts this Court might have towards this limitation of the freedom of expression, it is bound by Supreme Court precedent. If speech is not protected under the freedom of expression it can necessarily not be protected under the freedom of speech. If it is not protected under the freedom of speech, any conviction based upon it is not made purely on the basis of the exercising of free speech (see Art. 18 §3. Constitution). The Court points to the useful distinction of what is protected under a Right and only if the behaviour is protected whether any infringement can be justified. Here, no behaviour was even protected.
- [8.1] The petitioners' argument that In re ROA has been limited by the addition of section 3. and 3.1. in Article 18 is rejected by this court in the same manner it has been rejected in dominax273 (Appellant) v State of SimDemocracy (Respondent) [2025] SDCR 1.
[9] The Court acknowledges the problem with allowing the state to effectively legislate the freedom of expression away by just calling certain behaviours “harassment”. That is why the standard for excluding any behaviour from the protection of freedom of speech is NOT the statutory designation of the behaviour but rather the standard established by In re Restraining Order Act [2019] SDSC 1. The Court of first instance did just that and no arguments were provided that it did so incorrectly. Hence, the verdict is affirmed in that regard.
Dicta (no direct precedential value)
[10] This Court urges all Courts of first instance to apply In re Restraining Order Act [2019] SDSC 1 to all cases where a conviction based on speech is a possibility, in order to find out whether the freedom of speech is applicable. Said verdict has not been overturned, nor has it been supplanted by constitutional amendment. The persuasive precedent of SD v thesigmasquad (Remanded) [2025] Crim 38 finding that it has been (partially) supplanted may therefore be de facto true but not de jure. Inferior Courts should refrain from using that precedent as a description of the law.