Marsh v Mukhin (No 3) - [2021] ACTSC 182

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Marsh v Mukhin (No 3)
Citation:	[2021] ACTSC 182
Hearing Date:	19 July 2021
DecisionDate:	17 August 2021
Before:	Burns J
Decision:	See [24]–[25]
Catchwords:	APPEAL – MAGISTRATE COURT APPEAL – Appeal against conviction imposed in appellant’s absence – whether determination to proceed in absence of appellant was a denial of procedural fairness which led to miscarriage of justice – where proceeding commenced by way of charge – whether letter directed to be sent by magistrate was a “summons” under s 110 of the Magistrates Court Act 1930 (ACT) – exercise of Magistrate’s power under s 85 of the Magistrates Court Act 1930 (ACT) – where person claiming to be appellant called court registry advising he was ill – whether Magistrate could safely draw the inference that the appellant was not ill and simply feigning illness – whether appellant voluntarily waived right to be present during hearing of charge
Legislation Cited:	Magistrate Court Act 1930 (ACT) Part 3.3, Divisions 3.3.3, 3.3.3A, ss 37, 38, 41, 53(2), 85, 110 Personal Violence Act 2016 (ACT) s 35(2)
Cases Cited: Parties:	R v Ali [2017] ACTSC 366 R v Jones [1998] SASC 7021; 72 SASR 281 Williams v The Queen [2012] NSWCCA 286; 229 A Crim R 67 Luke Arthur Marsh (Appellant) Alexey Mukhin (Respondent)
Representation:	Counsel J Cooper (Appellant) K McCann (Respondent)
Solicitors Aboriginal Legal Service (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 9 of 2021
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 18 September 2020 and 11 March 2021 Case Title: The Police v Marsh Court File Number: CC 6504 of 2018

BURNS J:

The appellant, Luke Arthur Marsh, was convicted by a Magistrate on

18 September 2020 of an offence alleging that on 14 May 2018 he contravened a protection order contrary to s 35(2) of the Personal Violence Act 2016 (ACT). The appellant had previously entered a plea of not guilty to that charge and the matter was listed for a contested hearing before the Magistrate on 18 September 2020. The appellant did not appear at Court on that day, and the Magistrate took evidence from the prosecution witnesses in the absence of the appellant and found the offence proved. The Magistrate then issued a warrant for the arrest of the appellant but ordered that the warrant lie in the Registry until 1 October 2020.

According to the Magistrates Court bench sheet, the appellant appeared in person on 1 October 2020. On that occasion, the charge was remanded to 12 January 2021 for sentence and bail was continued. On 3 October 2020, the appellant was brought before the Magistrates Court for a breach of bail, and he was then remanded in custody to 12 January 2021 part heard for sentence at 2:15pm. On 8 October 2020, however, the appellant was again granted bail to appear on 12 January 2021 at 2:15pm. On 18 December 2020 the appellant was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marsh v Mukhin (No 3)

Details

AGLC: Marsh v Mukhin (No 3) [2021] ACTSC 182
Case: [2021] ACTSC 182
Decision Date

CaseChat Overview and Summary

Luke Arthur Marsh appealed against his conviction and sentences imposed by the ACT Magistrates Court. Marsh was convicted of contravening a protection order contrary to s 35(2) of the Personal Violence Act 2016 (ACT) and sentenced to an aggregate term of eight months’ imprisonment, backdated to 27 January 2021, with a term of four months to be served by way of full-time imprisonment and the balance suspended. Marsh’s sole ground of appeal against conviction was that the determination by the Magistrate to proceed to hear the charge in his absence was a denial of procedural fairness which led to a miscarriage of justice. The appeal against sentence was based on a ground that the sentences were manifestly excessive. The court held that the Magistrate had the power under s 85 of the Magistrates Court Act 1930 (ACT) to hear the charge in the absence of Marsh. However, the court held that Marsh had not clearly waived his right to be present during the hearing of the charge. The decision of the Magistrate to proceed in his absence involved a breach of procedural fairness. The appeal against conviction was upheld, and the conviction and sentences imposed were set aside and the charge was remitted to the Magistrates Court for rehearing.

Orders