In the matter of an application for bail by Luke Marsh [2013] ACTSC 16 (16 January 2013)

4. Since being released on bail in March 2012, however, Mr Marsh has been arrested on two further occasions. On 9 July 2012, Mr Marsh was arrested when police attended at a house in Kambah, where Mr Marsh's partner complained of being assaulted and a neighbour complained of being threatened by Mr Marsh. He is said to have been aggressive and belligerent with police and was charged with offences of assault occasioning actual bodily harm, assault and resisting a Commonwealth official in the execution of their duty. I am told that he proposes to defend the charges. The statement of facts which I have seen shows a strongly arguable case for the prosecution.

5. Mr Marsh was apparently granted bail again at some stage. It appears that he entered into a bail agreement at least on 10 October 2012. One of the conditions of that bail was that he was not to consume intoxicating liquor, another was that he was to report to the officer in charge of City Police Station three times a week. A further condition was that he was to submit to breath analysis when directed to do so by a police officer. The statement of facts tendered before me in respect of this incident set out that, when reporting on 26 December 2012 to City Police Station, Mr Marsh was directed to submit to breath analysis. That, the statement of facts continued, showed a positive reading of 0.018 grams of alcohol per 210 litres of breath; evidence of a breach of the condition not to consume intoxicating liquor.

6. The statement of facts further stated that Mr Marsh was told that he had returned a positive screen and that Mr Marsh then ran from the police station, but was chased by an officer who suspected that he had breached his bail. The statement then set out that Mr Marsh picked up a mountain bike and threw it at the police officer, striking him with considerable force and causing him to stumble. The police officer, the statement continued, followed Mr Marsh, eventually catching up with him and arresting him, though Mr Marsh tried to break free. He was charged with causing harm to a Commonwealth public official who is a Commonwealth law enforcement officer. On this occasion he was refused bail on 28 December 2012. I understand that he may be defending this charge also, but again the statement shows a strongly arguable case for the prosecution.

7. He applied for bail on 4 January 2013 and was granted bail for four days so that he could travel to Melbourne to scatter the ashes of his father. He did not actually go to Melbourne but returned to Court on the following Monday morning, well before the bail period expired, and surrendered himself. The Magistrates Court accepted that this was to his credit. I was told that he did not travel to Melbourne because he expected a payment from Centrelink which would have funded his trip to Melbourne, but it did not eventuate, and so he was unable to travel.

8. Despite surrendering himself, he was refused further bail. He applied again on 10 January 2013 but bail was again refused.

9. I did not have details of these bail applications because the documents usually provided by the Magistrates Court when a review of a bail decision is sought in this Court were not available. I cannot, therefore, say with certainty that this most recent decision of the Magistrates Court was a review of the bail decision under s 42A of the Bail Act 1992 (ACT), which is required before this Court can review a decision of the Magistrates Court. An inspection of these papers, especially of the annotation recommended by Burns J in Re an application for bail by Holmes [2011] ACTSC 187 at [10] had been made, may have resolved this issue.

10. The parties told me, however, that a review had been conducted. This is a troubling matter, for the issue is not one merely of passing interest; it goes to jurisdiction.

Jurisdiction of the Supreme Court to review a Magistrates Court bail decision

11. The power of the court to review a decision of the Magistrates Court is set out in s 43A of the Bail Act. That section provides:

(1) This section applies if a decision in relation to bail for an accused person has been made by -

(a) the Magistrates Court in accordance with section 42A (Power of Magistrates Court to review - decision of Magistrates Court); or

(2) The Supreme Court may, on application under this division, review the decision of the court, only if the court is satisfied that the applicant has shown -

(a) a change in circumstances relevant to the granting of bail since the court's decision; or

(b) the availability of fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the court made the decision.

The requirement for a decision under s 42A

12. This Court simply does not have power to review a bail decision of the Magistrates Court unless, relevantly, the Magistrates Court has made a decision under s 42A of the Bail Act to review a decision about bail. Jurisdiction cannot be granted by consent. See Luck v University of Southern Queensland [2009] FCAFC 73; (2009) 176 FCR 268 at 292; [92] per Rares J.

13. Nevertheless, where the parties are agreed, the Court may only need slight inquiry, as Barton J said Federated Engine Drivers & Fireman's Association of Australasia v Broken Hill Proprietary Company Limited [1911] HCA 31; (1911) 12 CLR 398 at 428:

[W]here the jurisdiction is not contested by the party defending, very slight inquiry may be adequate, and many cases will to the mind of the tribunal be so plainly within its competence that it will rightly forego inquiry unless the objection is taken, and the objector tenders proof of facts in its support.

14. In this case, the admitted course of proceedings in the Magistrates Court satisfied me that I had jurisdiction to proceed, though neither counsel were particularly helpful to me about the question, neither, it appears, having turned their minds to it. It may, however, be necessary for applicants to turn their minds to this question in the future, particularly if there is an objection from the respondent. Thus, I proceeded with the application.

15. There are, however, other hurdles for the applicant to overcome. The next requirement set out in s 43A(2) of the Bail Act is for there to be a relevant change in circumstances or the availability of relevant fresh evidence or information unavailable at the time of the earlier decision of the Magistrates Court.

16. In this case, Mr T Crispin, who appeared for Mr Marsh, tendered a certified copy of a medical certificate of Centrelink completed by a medical practitioner at Winnunga Nimmityjah Aboriginal Health Service ("Winnunga"). This certified that Mr Marsh's mother had been diagnosed with major depression, a temporary condition "likely to show considerable improvement within two years."

17. The respondent, represented by Ms A Clarke, submitted that the issue of Mr Marsh's mother had been agitated before the Magistrates Court, and so this was not new evidence.

18. Mr Crispin responded that Mr Marsh had not been believed as to his mother's condition by the learned Magistrate when submitting that his mother was suffering from a condition that required his assistance and that the certificate had not then been available to him but was now evidence that this, in fact, was so and therefore was fresh and relevant to the granting of bail.

19. Ms Clarke said, however, that the Magistrate, to the contrary, did not reject the assertion that Mr Marsh's mother had the condition, but considered that it did not, in the circumstances, justify a grant of bail.

Interpretation of s 43A(2) in light of the Human Rights Act

20. The apparently high threshold that s 43A(2) requires may need to be carefully construed in the light of the right to liberty set out in s 18 of the Human Rights Act 2004 (ACT). See, for example, Re an application for bail by Rodrigues

[2008] ACTSC 50 at [20]. As I said in R v Kristiansen [2008] ACTSC 83 at [20], this requires "a liberal interpretation" to be given to this requirement. This shows the problem of the complexity of this legislation, where genuine issues of jurisdiction have to be decided, sometimes without the necessary material - such as a transcript of the Magistrates Court proceedings - to be able to make a proper decision.

21. The fact that bail involves the liberty of persons in the criminal justice system means that such decisions are often required to be made at short notice and the Bail Act itself makes clear that the material on which the Court may rely does not need to meet the stringent provisions of the Evidence Act 2011 (ACT): see s 19(2) of the Bail Act;

Re an application for bail by Merritt [2009] ACTSC 56 at [41].

22. I am very doubtful that the certificate amounts, in the circumstances, to fresh evidence or information of the kind that would justify a review by the Court of the decision of the Magistrates Court. Nevertheless, Mr Marsh has also made an appointment at the Canberra Men's Centre for an initial counselling session, "to address issues of depression, anger management and counselling generally." There is no doubt that these are issues that Mr Marsh needs to address. That he is taking positive steps to do so seems to me to be relevant to bail.

Whether the evidence adduced shows changed circumstances

23. Whether that is a change of circumstance is problematic, because prior to the second of the applications for bail, he already had an appointment arranged for a consultation with a psychiatrist at Winnunga on 17 January 2013, where clearly these issues would be addressed. I shall come back to this issue.

SECTION 9D OF THE BAIL ACT

24. Because of the possibility that the requirement of s 43A(2) had been met, I heard the substantive application. This required a consideration of s 9D of the Bail Act. That section provides, relevantly:

(b) the person is alleged to have committed the offence while a charge against the person for another serious offence is pending or outstanding.

(2) A court or an authorised officer must not grant bail to the accused person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.

(3) However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering -

(a) for an adult - the matters mentioned in section 22 (Criteria for granting bail to adults); or

(b) for a child - the matters mentioned in section 23 (Criteria for granting bail to children).

(4) Also, if the serious offence mentioned in subsection (1) (a) or (b) is a domestic violence offence, an authorised person must not grant bail to the accused person if satisfied that refusal of bail is required under section 9F (Domestic violence offence - bail by authorised officer).

outstanding - a charge against a person for an offence is outstanding -

(a) until the charge is finally dealt with in any of the following ways:

(iii) the person is discharged by the Magistrates Court following a committal hearing;

(iv) the person is acquitted or found guilty by a court of the offence; and

serious offence means an offence punishable by imprisonment for 5 years or longer (other than an offence in relation to which an election for summary disposal has been made under the Crimes Act 1900, section 374 (Summary disposal of certain cases at prosecutor's election).

Serious offence: s 9D of the Bail Act

25. There is no doubt that the charge of assault occasioning actual bodily harm preferred as a result of the incident on 9 July 2012 is a serious offence for s 9D of the Bail Act. Section 24 of the Crimes Act 1900 (ACT) provides for a maximum penalty on conviction of five years' imprisonment.

26. Similarly, causing harm to a Commonwealth official who is a Commonwealth law enforcement officer is a charge proffered following the incident on 26 December 2012 is also a serious offence. Section 147.1(1) of the Criminal Code Act 1995 (Cth) provides for a maximum penalty of 13 years' imprisonment.

Consistency with the Human Rights Act

27. It may be that s 9D is inconsistent with the Human Rights Act. See the argument and decision in Re the application for bail by Islam (2010) 4 ACTLR 235 in respect of a similar provision, s 9C of the Bail Act. I was not asked to consider this and, even were it to be inconsistent, I would still be obliged to follow it until the legislature decides otherwise.

28. The Human Rights Act may, however, also require "special and exceptional circumstances" to be approached in a human rights compliant way. For example, if the case for a grant of bail substantively was very strong, then it may be that the level at which the circumstances may need to be special or exceptional may be affected. That is to say, the Court may be able to consider the merits of the application as part of the consideration of whether special or exceptional circumstances have been shown. I do not so find conclusively, as I did not hear argument on the matter.

Consideration - 'special or exceptional circumstances'

29. The requirement of s 9D, thus, is that Mr Marsh has to show special or exceptional circumstances existing which favour the grant of bail before I can proceed to consider the criteria under s 22 of the Bail Act.

30. I have considered these terms "special or exceptional circumstances" in Re an application for bail by Massey [2008] ACTSC 145 at [7] - [8]. I decided that the applicant has to "establish that there are some unusual or uncommon circumstances which justify the granting of bail, and those circumstances must relate to the granting of bail." I also held at [28] that, even if a circumstance by itself does not amount to a special or exceptional circumstance, such may exist by a combination of matters, though each by itself would not satisfy the test.

31. The first matter relied on was the fact that Mr Marsh has an appointment with a psychiatrist, there being difficulty for persons, relying on Medicare to cover the cost of such consultations, gaining such an appointment and on reasonable notice. Mr Crispin relied on a forensic report prepared by Dr Stephen Allnutt, Forensic Psychiatrist, who had examined Mr Marsh in October 2012. Dr Allnutt reported that, as a result of being the victim of an assault in 2009, Mr Marsh was suffering from "ongoing symptoms of posttraumatic stress, but probably to an ameliorated degree with associated depressive symptoms". Dr Allnutt further opined that, "It is likely that his increased irritability [a symptom of the posttraumatic stress] played some part in his impulsive and at times aggressive behaviour; thus contributing to [a] degree to his criminal behaviour". He would also be more vulnerable to using alcohol and cannabis to manage his symptoms which, in turn, would contribute to disinhibition, Dr Allnutt considered.

32. Mr Crispin pointed out that it was clearly in the community's interest for Mr Marsh to be treated, so that the factors that contribute to his criminal behaviour could be resolved and reduce the likelihood of his reoffending.

33. There would be greater force in these submissions were Mr Marsh's violence more evident since 2009. That is not so. He has, prior to 2009, a number of relevant offences of which he has been convicted or found guilty. These include an offence of assault occasioning actual bodily harm, two offences of common assault and two offences of assaulting a police officer. In addition, he has on his record convictions or findings of guilt for offences of disorderly behaviour or conduct, or fighting (nine offences), threatening or insulting words, (two offences), resisting arrest (two offences) and obstructing a police officer (two offences). His violent behaviour, which may of course have been exacerbated by the 2009 incident, preexisted the incident and the posttraumatic stress symptoms.

34. I also have regard to the fact that he can obtain psychiatric treatment if it is necessary whilst in custody. I note that among the underpinning principles of the ACT Health 'Adult Corrections Health Services Plan 2008-2012' (March 2008) are (at 7; [2.3]):

• Health is a complete state of physical, mental and social wellbeing not merely the absence of disease or infirmity.

• People in custodial sentences have the right to health services, prevention, education and health promotion initiatives that are equal to those applying to the broader population, recognising the constraints of the correctional setting in which they are located.
• The Corrections health program will provide care that is equal to that provided in the general community in a culturally sensitive service model.

35. I note, too, that so far as Mental Health is concerned the plan specifies (at 24; [4.3.9]):

1. Equivalence to the nonoffender. All prisoners will have the same rights to availability, access and quality of mental health care as the general population. As such there will be appropriate equipment and trained staff available on site to provide services that are to a standard that are comparable to expected community standards.

...

4. Access and Early intervention - Prisoners and remandees will have timely referral and access to specialist mental health services when appropriate. This will mean that prisoners receive mental health assessment upon arrival to the Alexander Maconochie Centre.

5. Comprehensive forensic mental health services - ACT Health, amongst other services, will provide a specialist mental health service. This will include an integrated inpatient service, prison mental health service, court liaison service and community mental health service, in a coordinated clinical and administrative stream.

36. The second matter was the need for Mr Marsh to care for his mother. The information as to this was sparse. I accept that she suffers from a major depression. The level of disability that this presents, however, was quite unclear. No doubt a dutiful son would be of great assistance to a mother suffering such a condition, but the special needs, if any, were entirely unspecified. It was said that Mr Marsh's mother lives in Canberra's inner north and her only other available family members live in the inner south, with only access to public transport, which it was said was impractical for daily assistance. Such a trip, however, is much like what many Canberran's daily undertake when going to work. The basis for such a need to reach the level of special or exceptional circumstances was quite limited and vague. I am not satisfied that these matters, individually or together, amount to special or exceptional circumstances.

37. The case for bail was not strong. Mr Marsh has a long criminal record. It includes, as noted above, a significant number of offences of violence and similar street offences. In addition, he has convictions or findings of guilt for eight offences of breaching a bail undertaking, though the last such offence was in 2008. Nevertheless, his current position is that he has been charged with serious offences committed on his current bail on two occasions, one of which arose out of an apparent breach of the conditions of his bail. He also has on his record four convictions or findings of guilt for breaches of court orders.

38. Although he has been on bail for a considerable period of time since his sentence there was no evidence of any significant attempt to address the matters that are said to contribute to his offending behaviour, even after the first time he was arrested in July 2012. The first appointment with the Canberra Men's Centre seems to have been made on 14 January 2013 for 17 January 2013. Why that could not have been made in early or at least mid2012 is entirely unexplained. Given that Mr Marsh has yet to address these issues there is, in Dr Allnutt's opinion, a likelihood of further offending while on bail.

39. The Human Rights Act does require, and with respect quite rightly in my view, that the rights of people coming before the courts be respected. A civilised society should expect no less. Nevertheless, as often happens, there are other interests and the rights of other people which must also be balanced, and that is a difficult judgement which can only be made if the relevant facts are placed before the Court.

40. Despite the capable, comprehensive and carefully prepared and presented submissions of Mr Crispin, who said all that could be said for Mr Marsh, I am not at all convinced that the necessary conditions for a review of bail exist, nor that, should I review the bail, Mr Marsh has shown special or exceptional circumstances favouring the grant of bail. If all those hurdles were surmounted I am still not at all persuaded that it would be appropriate to grant bail. The application must be dismissed.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions