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[2021] ACTSC 182
General information, not legal advice.
Supreme Court of the ACT
2021-08-17
Burns J
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Marsh v Mukhin (No 3)
Citation: [2021] ACTSC 182
Hearing Date: 19 July 2021
Decision Date: 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: 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
Parties: 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 again brought before the Magistrates Court for a breach of bail, but on this occasion bail was not revoked. On 12 January 2021, a different Magistrate made an order in chambers, by consent, vacating the date of 12 January 2021 and re-listing the matter to 8 February 2021 at 9:30am. On 29 January 2021, another Magistrate made an order in chambers, by consent, vacating the date of 8 February 2021 and re-listing the matter on 11 March 2021 at 9am.
The appellant appeared before the Magistrate who subsequently heard the charge on 11 March 2021, represented by a lawyer. The appellant gave evidence before the Magistrate. After submissions were made on behalf of both the appellant and the prosecution, the Magistrate formally convicted the appellant and imposed a sentence of six months’ imprisonment. Due to the recording of this conviction, the appellant was in breach of four Good Behaviour Orders imposed as part of suspended sentence orders. The Magistrate cancelled the Good Behaviour Orders and imposed the periods of imprisonment which had been suspended. The effect of the sentences imposed by the Magistrate was that the appellant was liable to serve an aggregate term of eight months’ imprisonment. The commencement of that aggregate term was backdated to commence on 27 January 2021 to allow for pre-sentence custody. The Magistrate ordered that the period from 27 January 2021 to 25 April 2021 be served by way of full-time imprisonment, with the balance suspended and subject to a Good Behaviour Order for a period of 12 months from 26 April 2021. The effect of the orders made by the Magistrate was that the appellant would be returned to custody for the period 11 March 2021 to 25 April 2021.
On the same day that the appellant was sentenced by the Magistrate, he filed a Notice of Appeal in this Court. The following day, 12 March 2021, he was granted bail by a judge of this Court, and he remained on bail until the hearing of the appeal before me on 19 July 2021.
The appeal came to be heard based on an Amended Notice of Appeal filed in Court on 19 July 2021. The appellant appealed against both his conviction for the offence of contravening a protection order and against the sentences imposed by the Magistrate. The sole ground of appeal against conviction was that the determination by the Magistrate to proceed to hear the charge in the absence of the appellant was a “denial of procedural fairness which led to a miscarriage of justice”. With regard to the sentence appeals, the appellant pleaded a ground that the sentences were manifestly excessive.
Did the Magistrate have power to hear the charge in the absence of the appellant?
110 Hearing in absence of defendant (1) If a summons has been served in accordance with section 41 and the defendant does not appear when called, the court may either— (a) proceed to hear and decide the case in the absence of the defendant; or (b) on oath being made before it, substantiating the matter of the information to its satisfaction, issue a warrant for the arrest of the defendant and to bring the defendant before the court to answer to the information and be further dealt with according to law. (2) If the court proceeds under subsection (1) (a) — (a) the evidence of the informant or another person may be given orally; or (b) a written statement made by the informant or another person may be admitted as evidence of the matters contained in it. (3) A written statement admitted in evidence constitutes the depositions of the person who made the statement. (4) A written statement must not be admitted in evidence unless it is sworn before— (a) a lawyer; or (b) a justice of the peace; or (c) the registrar; or (d) a person prescribed by regulation or rule. (5) If the court admits a written statement in evidence it may, on its own initiative, adjourn the hearing of the information and require the person who made the statement to attend before the court to give evidence. (6) Although a part of a written statement tendered in evidence under this section is inadmissible according to the rules of evidence, the statement is nevertheless admissible under this section as evidence of the matters contained in the remainder of that statement, but, if the court admits such a statement, the court must identify the part that is inadmissible and must, with reference to that part, write on the statement ‘ruled inadmissible’ or words to that effect. (7) The court must not sentence a defendant to imprisonment for an offence if the court has heard and decided the case under subsection (1) (a) in the absence of the defendant. (8) The court must set aside an order made in hearing and deciding a case under subsection (1) (a) if— (a) the defendant applies under the rules to have the order set aside; and (b) the court is satisfied on reasonable grounds that the defendant— (i) did not know the hearing date; or (ii) did not understand that the court could proceed to hear and decide the case in the defendant’s absence if the defendant failed to appear; or (iii) otherwise had a reasonable excuse for failing to appear.
85 Proceeding if either party not present at adjourned hearing (1) This section applies if either or both of the parties do not appear personally or by lawyers or anyone else appearing for them at the time and place to which the hearing or further hearing is adjourned. (2) The court may— (a) go ahead with the hearing or further hearing as if the party or parties were present; or (b) if the informant does not appear—dismiss the information, with or without costs as the court considers just.
There can be no doubt that the proceeding against the appellant for the charge of contravention of a protection order was not commenced by way of summons. The Magistrates Court record shows that the appellant was arrested by police at 3:30pm on 14 May 2018 and appeared in custody before the Magistrates Court the following morning. The proceeding was therefore commenced by way of charge. The submission by the appellant that the power being exercised by the Magistrate was that found in s 110 of the MCA was based on the proposition that a “summons” had been issued by the Magistrate directed to the appellant part way through the proceeding. It is necessary to briefly refer to some of the history of the charge in order to understand this submission.
On 4 December 2019, the Magistrate heard a preliminary objection to the admissibility of certain evidence which the Crown proposed to lead at the hearing of the charge. Part way through that proceeding, the appellant dismissed his lawyer and left the courtroom. The Magistrate continued and made a ruling, at which time he adjourned the proceedings to 20 March 2020. As the appellant had left the courtroom before the Magistrate adjourned the proceedings, the Magistrate directed that copies of the appellant’s Notice of Continuance of Bail be sent to the Legal Aid Office, to the Aboriginal Legal Service, to the Office of the DPP for the informant to serve on the appellant, and lastly to the appellant by post, care of a post office box address he had given the Court.
On 20 March 2020 the appellant did not appear. The Magistrate was concerned that the appellant may not be aware that the matter had been listed on that day. The Magistrate further adjourned the matter to 18 September 2020 and gave the following directions:
I direct that a letter be prepared to the defendant, this will be prepared by the court, of course, sending him the bail continuance notice, advising him that the hearing is to take place on 18 September this year, advising him that the hearing may take place in his absence if he does not appear and further, sending him the transcript of the decision on the voir dire. I direct that that letter and the notice of continuance of bail and the transcript be sent to firstly the legal aid office, secondly the aboriginal legal service, thirdly to the defendant care of the Braddon post office and fourthly to you, senior Constable, being the informant, and I direct that you as the informant attempt personal service on the defendant and that you notify the Director of Public Prosecutions of the outcome of your attempt to serve it.
A letter complying with the directions of the Magistrate was prepared by the Registrar of the Magistrates Court on 20 March 2020 and forwarded as directed by the Magistrate. It is not in dispute that the appellant received a copy of that letter and as such was aware that the proceedings were listed for a continuation of the hearing before the Magistrate on 18 September 2020, and that if the appellant did not appear on that date the hearing could be conducted in his absence.
The appellant’s submission is that the letter dated 20 March 2020 forwarded to the appellant was a “summons” for the purposes of s 110 of the MCA. This submission should be rejected. The word “summons” is not found in the Dictionary to the MCA. As used in s 110, the word must take its meaning from the MCA as a whole. Section 37 of the MCA provides that if an information is laid before a magistrate, the magistrate may issue a summons. A summons issued in the case of an information must be directed towards the defendant and must state shortly the matter of the information and require the defendant to appear at a certain time and place before the court to answer to the information and to be further dealt with according to law: s 38 of the MCA. These provisions are found in Part 3.3 of the MCA, headed “Beginning criminal proceedings”. It is abundantly clear that the word “summons” as used in s 110 of the MCA refers to a court process issued after the laying of an information for the purpose of bringing an accused person before the court. The letter forwarded by the Registrar in accordance with the directions of the Magistrate on 20 March 2020 was not a summons for the purposes of the MCA, and in particular for the purpose of s 110. It is not to the point that the contents of the letter had information similar to that which would have been provided in a summons, or that the purpose of the letter, to bring the appellant before the Court, was similar to the purpose of a summons. It was not a process commencing a proceeding against the appellant.
For completeness, I will note that a court attendance notice under Division 3.3.3A of the MCA is taken, for all purposes, to be a summons served under Division 3.3.3 of the MCA. This does not assist the appellant. Court attendance notices are a form of process designed to commence proceedings and to bring an accused person before the Magistrates Court as quickly as possible and without the delays inherent in laying an information and serving a summons. The letter forwarded by the Registrar on 20 March 2020 was not a court attendance notice for the purposes of the MCA.
As a summons had not been served on the appellant in accordance with s 41 of the MCA, the provisions of s 110 of the MCA simply did not apply. If the Magistrate had power to hear the charge against the appellant in his absence, that power must be found in s 85 of the MCA. That section is clear in its terms. It empowers the Magistrates Court to proceed in the absence of a defendant where he or she does not appear personally or by a lawyer at the time and place to which a hearing or further hearing has been adjourned. I am satisfied that the Magistrate had the power under s 85 of the MCA to hear the charge in the absence of the appellant.
Was there a breach of procedural fairness?
By virtue of s 53(2) of the MCA, a defendant may “fully answer and defend personally or by a lawyer”, may give evidence and may examine and cross-examine witnesses in any criminal proceeding. The provisions of s 85 of the MCA give the Magistrates Court power to proceed with a hearing or further hearing of a charge where a defendant does not appear personally or by lawyer at the time and place set for the hearing of the charge. The provisions of s 85 do not make it mandatory for the Court to proceed with such a hearing in the absence of the defendant, nor do they speak of the circumstances in which it may be appropriate to exercise the power. The power granted by the section must be exercised judicially with due regard to procedural fairness.
In R v Jones [1998] SASC 7021; 72 SASR 281, Lander J, with whom the other members of the Court of Criminal Appeal agreed, stated that the seriousness of an offence with which an accused person is charged is a relevant consideration in determining whether a court should proceed to determine the offence in the absence of the accused. His Honour then went on to say at [94] – [96]:
In my opinion a court may proceed with a trial in the absence of an accused person. It may do so in circumstances where the accused person has indicated that he or she waives a right to be present. An accused person will waive a right to be present when that person, during the currency of the trial, for example, escapes from custody; or where the accused person unlawfully absents himself or herself in breach of a bail agreement; or where, without any good excuse or explanation, the person absents himself or herself from the proceedings. In any of those cases if the court is satisfied that the accused has waived his or her right to be present during the trial, and that the trial may proceed without any injustice to that person, except the injustice caused by the accused’s own waiver, then the court may proceed with the accused’s trial. Any discretion to proceed in the absence of the accused, however, should be exercised sparingly.
In R v Ali [2017] ACTSC 366, I directed that the trial of the accused, Haider Ali, continue in circumstances where overnight in the middle of the trial the accused fled the ACT, and boarded a plane in Sydney and travelled to Pakistan. He did not alert his lawyers or his close friends of his proposed course of action, nor did he attempt to have any contact with them after he fled. After referring to the decision in Williams v The Queen [2012] NSWCCA 286; 229 A Crim R 67, at [92] – [95], I determined that the accused person had voluntarily waived his right to be present during the remainder of his trial, and I directed that his trial continue.
On 18 September 2020, the Magistrate took evidence from the informant responsible for the charge against the appellant to the effect that the informant had personally served the appellant with the papers as directed by the Magistrate on 20 March 2020. In the middle of taking that evidence, the Magistrate received a note prepared by a court clerk in the Court Registry to the effect of that the appellant had telephoned saying that he is sick and would not be able to attend Court. The Magistrate interrupted the evidence of the informant and took evidence from the court clerk who took the telephone call from the appellant. That court clerk indicated that the appellant had said that he was sick and would not be able to attend Court, but he terminated the call before any further details could be obtained.
After taking this evidence, the prosecutor submitted that:
I understand it’s not usual certainly to proceed with a hearing in the absence of the defendant. I do note that someone who claimed to be him did call and say he was sick, but that doesn’t give us a great deal to work with.
On the basis of the absence of any supporting evidence before me in support of his claim, I think I can fairly decide to proceed, in any event. I suppose that involves a conclusion that it’s not contrary to the interests of justice to do so.
It is true that an examination of the bench sheet from the Magistrates Court for the charge of contravention of a protection order reveals a sorry history of multiple adjournments of the proceeding, frequently on the basis of the appellant’s failure to appear or, at least, to appear on time. I can find no record on the bench sheet of the appellant having failed to appear previously in circumstances where he had claimed ill-health. One can sympathise with the frustration clearly felt by the Magistrate and his Honour’s desire to bring the proceeding to an end, but I do not think that the Magistrate could safely draw the inference that the appellant was not ill and was simply feigning illness to frustrate the hearing of the charge. Certainly, the fact that the appellant telephoned the Court Registry to advise that he was ill and could not attend Court that day is contrary to an inference that he was clearly and voluntarily waiving his right to be present at the hearing of the charge.
The Magistrate had other options available to him. His Honour could have adjourned the hearing of the charge to another date and directed that the appellant provide evidence of his incapacity to attend Court on 18 September 2020. His Honour could also have issued a warrant for the arrest of the appellant, and then determined whether to make a further grant of bail to the appellant after he next appeared in Court and depending upon whether any evidence was available to support the appellant’s assertion of illness on 18 September 2020 such that he could not attend Court.
Orders
In my opinion, the appellant had not clearly waived his right to be present during the hearing of the charge and the decision of the Magistrate to proceed in his absence involves a breach of procedural fairness. Regrettably, I must set aside the conviction on the charge of contravention of a protection order and the subsequent sentence imposed on that offence, and on the breach matters, and remit the charge to the Magistrates Court for rehearing.
In these circumstances I do not need to further consider the appeal against sentence.
I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.
Associate:
Date:
Marsh
Mukhin
Counsel for the appellant submitted that the power granted to the Magistrates Court under s 85 of the MCA should be read down by reference to the limitations found within s 110. In particular, the appellant submitted that it was not open to the Magistrate to impose a sentence of imprisonment where the court has heard and determined a charge in the absence of the defendant: s 110(7). Due to the course which I intend to take in this appeal, it is unnecessary for me to determine the relationship, if any, between the powers granted to the Magistrates Court under ss 85 and 110 of the MCA. I will simply add that I doubt the correctness of the appellant’s submission.