R v Marsh
[2011] ACTSC 48
•8 March 2011
R v MARSH [2011] ACTSC 48 (8 March 2011)
EX TEMPORE JUDGMENT
Evidence Act 1995 (Cth), s 138
No. SCC 67 of 2011
Judge: Higgins CJ
Supreme Court of the ACT
Date: 8 March 2011
IN THE SUPREME COURT OF THE )
) No. SCC 67 of 2011
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
MICHAH MARSH
ORDER
Judge: Higgins CJ
Date: 8 March 2011
Place: Canberra
THE COURT ORDERS THAT:
The decision of Magistrate Walker on 7 March 2011 be set aside.
The application to revoke Mr Marsh’s bail be refused.
This is an application to review the decision of the learned magistrate to revoke bail and, although it was not expressed that way, I accept that that was what her Honour, in substance, did or purported to do.
It was in response to an allegation, that was then only in writing and I presume Constable Langlands was the source of it, that Mr Marsh had been found in the vicinity of the Northbourne Flats, in the circumstances which are set out in the statement of facts relating to the breach of bail, which simply indicate that a male person, who we now assume this to be the applicant, was seen in the vicinity of Block 11.
That is consistent with the evidence that he was attending to visit his father. Of course, they wanted to speak to him in relation to the disturbance. That was a disturbance which had been reported. It is not stated in this statement of facts that police had been able to ascertain whether there had, indeed, been a disturbance.
The impression given by these facts is that the report of the disturbance might be thought to be related to Mr Marsh and that was why he was called out to, and he no doubt would have, you would assume, excited suspicion by “beginning to run away from police in the direction of Forbes Street despite police request for him to stop”, quoting from the statement.
He was apprehended and, in effect, there was blood observed on his chest and arm; that seems to be a bit of a mystery as to where that came from. In any event, he was taken to the ground after refusing to comply with a police request. It does not say what the request was, but he was placed on the ground and handcuffed.
He gave his name and that was apparently his correct name, according to a proof of age card. Constable Langlands, who is no doubt referred to here as “police”, smelt intoxicating liquor, observed slurring of words and formed the opinion that he was moderately intoxicated.
He had by then assumed, no doubt perhaps from recollection, that Mr Marsh was in breach of a condition of bail and confirmed that he was, indeed, subject to a bail condition not to consume intoxicating liquor.
There had been a request to submit to a breath test, which Mr Marsh declined to co-operate with. It is apparent on those facts, particularly as supplemented by Constable Langlands, who I must say gave evidence very frankly about this as he could have attempted to make it sound better than it was, but he did not, that he had no reasonable grounds to pursue Mr Marsh. He had no reasonable grounds to take hold of him. He had no reasonable grounds to bring him to the ground and handcuff him.
That being so, those actions on his part constituted, arguably at least, an assault, false imprisonment and, within the meaning of s 138 of the Evidence Act 1995 (Cth), an act of impropriety.
As a result of that act of impropriety, of course, he ascertained Mr Marsh’s identity and formed the opinion that he had consumed intoxicating liquor in breach of a bail condition and then placed him in custody.
Of course, if he had simply found Mr Marsh in a public place without any of the attending circumstances, knew who he was and smelt liquor on his breath, he might have done that lawfully. As it happened, he did not.
The question is, what is the response to that? Of course, s 138 does not mandate that evidence be rejected on the grounds of impropriety. It empowers its rejection.
It seems to me, in the circumstances, that the allegation of breach, which then was ascertained, or then was formulated, was attended by some doubt. I do not say that it is such that it would be completely rejected but it is attended by some doubt. I make no positive finding as to whether Mr Marsh was or was not a person who had, at that point, consumed some liquor. He might or might not have. I am just not persuaded one way or the other really as to that.
Certainly, the Constable’s evidence is indicative of the proposition that he had, but bearing in mind the circumstances which attend the obtaining of that evidence, I exclude it in the exercise of my discretion. It follows that there was no evidence upon which an application to revoke bail could have been founded and in that case, that application would have to be refused.
It follows therefore that Mr Marsh’s bail is not revoked but I do think that the conditions as to bail are somewhat uncertain and do need a degree of clarification in everyone’s interests.
He is on conditions that he not use intoxicating liquor or drugs. I would accept that use, in that context, does include consumption. Indeed, that is the usual understanding of it. That does not need clarification.
What does need clarification is, when Mr Marsh is to submit to breath analysis, in particular, and, of course, urinalysis otherwise, I agree with Ms Warwick that in context, the submission to urinalysis should be noted as being upon attending Corrective Services. I imagine really there would not be an occasion for it otherwise, in any event. I direct that condition be clarified so that “To submit as and when required by Corrective Services to urinalysis” should be inserted under condition (e), that is by the Chief Executive or the Chief Executive’s delegate and that would be a reasonable direction, which under condition (a) could be given.
As to condition (d), “To submit as and when required to breath analysis”. It seems to me, it is reasonable that that should be either when reporting or when otherwise required by a police officer, but it should be made quite clear that it is not anybody at random who can come up to Mr Marsh and ask him to submit to a breath analysis. It must be a police officer, either on reporting or otherwise. The condition is, after all, to abstain from the use of alcohol, not to abstain from the use of alcohol only before reporting.
I add to the end of condition (d), “in a public place”.
Mr Marsh, just to be clear about it, if you are in a private place, be it your father’s flat, or your own tent, or someone else’s tent, or caravan, or whatever, you are in a private place.
If you are outside on the lawns, outside Parliament House, within the precinct of the embassy, or otherwise, that is a public place. You are required, if a member of the Australian Federal Police so asks, to submit to breath analysis.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 22 March 2011
Counsel for the DPP: Mr A Williamson
Solicitor for the DPP: ACT Director of Public Prosecutions
Counsel for the offender: Ms T Warwick
Solicitor for the Offender:
Date of hearing: 8 March 2011
Date of judgment: 8 March 2011
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