LUKE MARSH v GRANT BLUETT [2012] ACTSC 32 (7 March 2012)

PROCEDURE – Supreme Court Procedure – application to set aside Supreme Court order dismissing appeal from Magistrates Court – appellant not present at appeal hearing – appellant had been “in the Magistrates Court” – no evidence of any compulsion to be in the Magistrates Court instead of the Supreme Court – no other basis to set aside order – application  dismissed – anticipatory bail application not heard – further application to set aside not to be listed unless accompanied by more detail of applicant’s presence in Magistrates Court.

Bail Act 1992 (ACT)
Magistrates Court Act 1930 (ACT), s 216
Court Procedures Rules 2006 (ACT), r 5140(3)

Cameron v The Queen (2002) 209 CLR 339 
Dietrich v The Queen (1992) 177 CLR 292
Re Pinkstone’s Applications (2003) 200 ALR 325

No. SCA 92 of 2011

Judge:	Penfold J
Supreme Court of the ACT
Date:	7 March 2012

IN THE SUPREME COURT OF THE	)
	)	No. SCA 92 of 2011
AUSTRALIAN CAPITAL TERRITORY	)

BETWEEN:	LUKE MARSH
		Applicant

AND:	GRANT BLUETT
		Respondent

ORDER

Judge:	Penfold J
Date:	29 February 2012
Place:	Canberra

THE COURT ORDERED THAT:
(a)	The application to set aside the decision of Burns J dismissing the applicant’s appeal from the Magistrates Court be dismissed.
(b)	The anticipatory bail application not be heard.
(c)	No further application to set aside Burns J’s decision be listed unless accompanied by a more detailed statement or affidavit explaining the applicant’s absence from the hearing of his appeal in the Supreme Court.

Background
The Magistrates Court orders
1.	On 20 September 2011, in a contested hearing, Luke Marsh was found guilty of four offences and sentenced to a term of 15 months imprisonment with a nine-month non-parole period.  The sentences were as follows:
(a)	for one count of common assault, six months imprisonment to be served starting on 20 September 2011;
(b)	for two counts of common assault, six months imprisonment each, to be served consecutively on the first sentence and concurrently with each other, starting on 20 March 2012; and
(c)	for obstructing a Territory public official, three months imprisonment to be served consecutively on the second and third sentences, starting on 20 September 2012.
2.	The non-parole period was to expire on 19 June 2012.
Appeal to Supreme Court
3.	On 28 September 2011, Mr Marsh lodged an appeal against his convictions.  The notice of appeal, which he prepared without legal assistance, indicated that he wished to tender new evidence, being material about his health and a letter of complaint about his ex-lawyer not following instructions. The grounds of appeal were specified as “unfairly represented didn’t follow instructions”.  The order sought was a re-trial.
Grant of bail
4.	Mr Marsh was granted “appeal bail” by Burns J in the Supreme Court on 15 November 2011.  Because his Magistrates Court sentences had been stayed by the institution of the appeal (Magistrates Court Act 1930 (ACT), s 216), he was able to be granted bail under and in accordance with the Bail Act 1992 (ACT).  Mr Marsh was bailed to appear in the Supreme Court on 5 December 2011 for the hearing of his appeal.
The appeal hearing
5.	On 5 December Mr Marsh did not appear.  His appeal was dismissed by Burns J who said:
I note that there has been no appearance by the appellant with respect to this appeal.  I further note that virtually nothing has been done by the appellant to progress this appeal since he lodged his Notice of Appeal.  I have had regard to the Notice of Appeal and also to the material that was provided from the Magistrates Court, including the pre-sentence report and a number of letters.  I have also had regard to the statement of facts and the transcript of proceedings before the learned Magistrate.
In the absence of the appellant it is quite clear that the appeal must be dismissed and that is the order that I make.  I may say that I am comforted in making that order by reference to the material to which I have referred, which suggests to me that there were very little prospects of success on the appeal. 
6.	After dismissing the appeal, Burns J issued a warrant for Mr Marsh’s arrest.  The warrant was apparently executed in the precincts of the Supreme Court shortly after being issued.  Burns J then re-sentenced Mr Marsh to take account of the time he had already spent in custody, both as a sentenced prisoner and as a remand prisoner.
Appeal to Court of Appeal
7.	On 16 December 2011 Mr Marsh appealed to the Court of Appeal from the decision of Burns J dismissing his Supreme Court appeal.  Again the appeal was prepared without legal assistance.  The Notice of Appeal stated that the ground of appeal was that “Sgt Sebagitio [sic] perverted the course of Justice”. The notice stated that the appellant would put further evidence before the Court of Appeal, being “transcripts proving Sgt Sebagitio [sic] committed a offence”, and sought “Dismissal of charges”.  
Application for bail
8.	On 11 January 2012 Mr Marsh lodged a bail application. This application, in the Court of Appeal, was listed before the Master, who adjourned it to be heard by a judge, apparently because of Mr Marsh’s status as a sentenced prisoner subject to a Supreme Court sentence whose bail application was based on an appeal to the Court of Appeal. 
9.	The application in due course came before me.  It did not address Mr Marsh’s status as a sentenced prisoner, which continued because an appeal from an order of a Supreme Court judge does not automatically stay the order.  I indicated that I would not consider Mr Marsh’s bail application without an accompanying application to stay the sentence imposed in the Supreme Court by Burns J.   
10.	In the absence of any identification by Mr Marsh of any particular ground for staying the Supreme Court order, I considered the matter on the basis that he might serve a substantial part of his non-parole period before his appeal to the Court of Appeal could be considered. However, there were two problems with this as a basis for staying the Supreme Court orders.  
11.	First, there was nothing in any of Mr Marsh’s documents which indicated that, despite the comments of Burns J quoted at [5] above, his appeal had any reasonable, or indeed any, prospects of success.  
12.	Secondly, during the hearing, Mr Marsh expanded on his appeal ground (being the alleged perversion of the course of justice) by making a number of assertions about his original hearing in the Magistrates Court and specifically claiming that one of the police complainants had perjured himself because he gave evidence at the hearing that did not accord exactly with the material in his original witness statement.  However, this evidence seemed to relate only to one of the common assault offences, and the sentence for that offence was one of the two assault sentences to be served entirely concurrently.  This meant that even had an appeal against his conviction for that offence been upheld, it would have made no difference to the period Mr Marsh was obliged to serve in custody.  
13.	No other grounds relating to Mr Marsh’s original convictions and sentences, and no grounds at all in relation to his appeal from Burns J’s decision, were mentioned. 
14.	In those circumstances, I declined to stay the Supreme Court order and accordingly refused the bail application.
Possibility that dismissal of Supreme Court appeal could be set aside
15.	During the course of that bail hearing, however, it had also emerged that Mr Marsh’s explanation for having failed to appear at his first appeal hearing was that he was “in the Magistrates Court”.  In further discussion, Mr Marsh claimed that he had attended the Magistrates Court because he had breached his bail reporting conditions for the previous few days, had assumed that there would be a bench warrant out for him because of that breach, and had assumed that he would need to appear in the Magistrates Court to have his breach of bail dealt with before attending the Supreme Court. 
16.	In those circumstances, I suggested to Mr Marsh that if there were a proper explanation for his failure to appear at the hearing of his appeal to the Supreme Court there might be scope for setting aside the dismissal of the appeal under r 5140(3) of the Court Procedures Rules 2006 (ACT).  I advised him that he would need to lodge an application for the decision to be set aside, accompanied by an affidavit about the circumstances of his failure to appear.
17.	In response to an assertion by Mr Marsh that he was unable to swear an affidavit in the Alexander Maconochie Centre because of the absence of any Justice of the Peace (which seemed unlikely to be true but not worth arguing about in the circumstances), I gave him leave to attach to his application simply a written statement setting out the circumstances in which he had been in the Magistrates Court while his appeal was being heard in the Supreme Court, noting that if necessary he could give sworn evidence when the matter came on for hearing, but stressing that his statement needed to give sufficient details for his claims to be checked by the Director of Public Prosecutions before the hearing of the application.  I also told Mr Marsh that he could lodge a bail application in anticipation of a decision to set aside the Supreme Court dismissal of his appeal.  However, I refused to set a date for the application, and instead ordered that it should not be listed until Mr Marsh had provided the required paperwork.
The applications
18.	In due course Mr Marsh lodged both an application to set aside Burns J’s decision, and an anticipatory bail application, and the two applications were listed for hearing before me on 29 February 2012.  
Set-aside application
19.	Mr Marsh’s set-aside application was accompanied by a statement which simply repeated the basic claim that he had not appeared in the Supreme Court because he had been in the Magistrates Court for several hours, as follows:  
I was in Magistrates court trying to hand myself in for a bench warrant I believed I had due to not signing in to Civic police station on 30/11/11 and 02/12/11.  I sat in the court room for over 3 hours and was then told the magistrate wouldn’t hear my matter.
20.	The statement specified the dates on which, Mr Marsh said, he had failed to report to police, but did not contain the more detailed assertions he had earlier made in court about his attendance at the Magistrates Court and the specific dealings he had had with Magistrates Court staff, or his claims that he was told by a court staff member to wait in the Magistrates Court to be dealt with by a Magistrate.  Nor did it contain any attempt to identify the Magistrate concerned, to specify which court staff he had spoken to, where in the court he had made contact with court staff, which court staff member had finally told him that the Magistrate could not deal with his matter, or any other information from which court staff could be identified or particular court records checked. 
21.	Mr Marsh asserted during the hearing that he had gone to the Magistrates Court because his bail was from the Magistrates Court.  However, as already noted (at [4] above), Mr Marsh had in fact been granted bail in the Supreme Court, and in terms which would have required him to report to police at the City police station on the dates specified in his statement (that is, there is no basis to assume that Mr Marsh also had a separate grant of bail from the Magistrates Court with a reporting requirement that he had breached).  
22.	In summary, there was no assertion in his statement that he was in the Magistrates Court under any kind of compulsion, there was no information suggesting any kind of compulsion that could have been investigated by the DPP, and there was no indication of any explanation for why he had not made any effort either to attend the Supreme Court or to get a message to the Supreme Court about his inability to appear at the hearing of the appeal.  When I questioned Mr Marsh about the absence of any of this information, he said that the reason he had not appeared in the Supreme Court was simply because he had been in the Magistrates Court. 
23.	It is appropriate to record, given the confusion that emerged during the hearing, that Mr Marsh has never to my knowledge claimed that he failed to appear at the appeal hearing because of his arrest under the warrant issued by Burns J.  Before me, his claim has always been that before he was arrested, he was in the Magistrates Court, and that, not his subsequent arrest, was why he did not attend the Supreme Court. 
24.	If Mr Marsh had been unable to attend the Supreme Court because he was, for instance, under arrest or otherwise in custody, there might have been a basis for setting aside the dismissal of his original appeal and relisting that appeal for a further date to be heard on the merits.  Mr Marsh’s mere presence in the Magistrates Court instead of in the Supreme Court, without more, provides no basis for such a decision. 
25.	Mr Marsh thus had not established any basis on which to set aside the decision of Burns J and to reinstate his appeal to the Supreme Court.
Absence of legal assistance
26.	It is appropriate to mention briefly Mr Marsh’s lack of legal assistance.  Over the course of several appearances before me, Mr Marsh said:
(a)	that he could not obtain legal aid from Aboriginal Legal Aid because he was in dispute with that organisation over his earlier representation by one of its staff;
(b)	that he had been refused legal aid for his appeal by the Legal Aid Office, although he believed that decision was under review (documents attached to one of Mr Marsh’s earlier bail applications set out the Legal Aid Office’s decision to refuse legal aid for Mr Marsh’s appeal to the Supreme Court because it was assessed as not meeting the threshold test of “more likely than not to succeed”); and
(c)	that he had rejected assistance from a lawyer identified through the Law Society’s pro bono scheme because the lawyer had the same surname as a person who had previously represented him (although he was not in fact the same person) and because the lawyer identified by the Law Society “worked with the DPP” (which turned out to mean that the lawyer in question had his office in the same building as that occupied by the DPP).
27.	On two occasions when he was before me, Mr Marsh had sought brief adjournments of hearings because his mother was trying to arrange legal assistance.  On the first occasion his matter was stood down, and after several hours Mr Marsh’s mother came to court, but without any legal advisers.  On the second occasion Mr Marsh’s request was refused and the matter proceeded; his mother came to court, again without any legal advisers, during the hearing. 
28.	While it is unfortunate that Mr Marsh remained unrepresented, it is not clear that anything further could have been done to provide him with representation.  Mr Marsh at one point asked me to provide him with a lawyer, but having regard to Mr Marsh’s previous attempts to obtain help (at [26] above), I could not identify any way in which the Court could assist.
29.	Mr Marsh did not mention the decision in Dietrich v The Queen (1992) 177 CLR 292 (Dietrich), in which the right to a fair trial was found, in effect, to include the right not to be tried for certain kinds of offences without legal representation – a right effected not by recognition of any entitlement to legal representation but by recognition of a judicial discretion to stay proceedings if necessary to protect the right to a fair trial. However, it is clear that the principle in Dietrich has not so far been applied in relation to appeals by persons who were represented at first instance.  That prospect, including specifically its impact on a bail application by an appellant, was contemplated by Kirby J in Cameron v The Queen (2002) 209 CLR 339 at [97], but several subsequent cases, including Re Pinkstone’s Applications (2003) 200 ALR 325 at [27] (Kirby J sitting alone), have noted that the principle in Dietrich does not apply to appeals. 
Orders
30.	Since, for the reasons above, Mr Marsh had not satisfied me that there was any basis to make an order setting aside Burns J’s decision dismissing Mr Marsh’s appeal from the Magistrates Court, I refused his application for such an order, and accordingly did not deal with the anticipatory bail application.
31.	I further ordered that any subsequent application by Mr Marsh to have Burns J’s decision set aside should not be listed unless and until it was accompanied by a more detailed statement or affidavit explaining Mr Marsh’s absence from the hearing of his appeal in the Supreme Court.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:	

Date:		7 March 2012

Counsel for the applicant:	Self represented
Counsel for the respondent:	Mr A Williamson
Solicitor for the respondent:	ACT Director of Public Prosecutions
Date of hearing:	29 February 2012
Date of reasons for judgment:	7 March 2012