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Supreme Court of the ACT |
Last Updated: 7 February 2011
IN THE MATTER OF AN APPLICATION FOR BAIL BY LUKE MARSH
[2011] ACTSC 8 (15 November 2010)
BAIL – bail applicant charged with numerous offences – bail applicant has applied on numerous occasions for bail – likelihood of re-offending an important consideration – turns on its own facts.
EX TEMPORE JUDGMENT
No. SCC 292 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 15 November 2010
IN THE SUPREME COURT OF THE )
) No. SCC 292 of 2009
AUSTRALIAN CAPITAL TERRITORY )
IN THE MATTER OF AN APPLICATION FOR BAIL BY LUKE MARSH
ORDER
Judge: Refshauge J
Date: 15 November 2010
Place: Canberra
THE COURT ORDERS THAT:
1. Mr Marsh be granted bail to appear in the ACT Magistrates Court on 16 November 2010 and thereafter as and when required on the following conditions:
1. The applicant, Luke Marsh, applies for bail. The circumstances in which he is in custody are as follows.
2. Mr Marsh was charged with damaging property on 26 October 2009. He was bailed to appear in court on 15 March 2010 but failed to do so. On 11 May 2010, he attended the City Police Station and was arrested. He was described as being polite and co-operative with police.
3. He was ultimately sentenced for the charge of damaging property on 30 September 2010 and sentenced to one month’s imprisonment which amounted to the period of custody he had already served.
4. On 18 May 2010, he was arrested for driving with more than the prescribed blood alcohol concentration and being an unlicensed driver, a third drink driving offence with which he had been charged. On 25 August 2010 he pleaded guilty to both these charges.
5. On 4 June 2010, he was arrested for a breach of the peace. He was released the next day, when sober, upon signing an undertaking to keep the peace. Unfortunately, he returned, apparently soon after his release, to the same premises where he had been arrested and from which, in the undertaking, he had agreed not to visit.
6. He was aggressive and threatened the occupant of the premises, a woman with whom he had had a relationship. Police attended and he refused to leave, acting aggressively, apparently well affected by alcohol. He was subsequently arrested for refusing to leave the premises and entered a plea of guilty to that charge on 30 June 2010. He appears to have been refused bail.
7. On 23 June 2010, the former husband of the occupant of those premises, Mr Marsh’s former partner, obtained a Personal Protection Order against Mr Marsh which was served on him on 7 July 2010. The Personal Protection Order prohibited Mr Marsh from contacting the former husband or his children.
8. Despite this, on 23 August 2010, by which time Mr Marsh must have been released on bail, he rang one of the children which upset her. He then contacted his former partner and launched into a tirade of unpleasant and unacceptable abuse. Subsequently, he contacted his former partner and threatened to burn her house down “with everything in it” and “get your kids”. He later made a further phone call in which he made a revolting threat towards his former partner’s children, which “freaked out” his ex-partner. She told police she was scared of Mr Marsh.
9. Police attended at Mr Marsh’s home and, after abusing them, Mr Marsh is said to have attacked them. He was ultimately arrested.
10. On 25 August 2010, he pleaded guilty to breaching the Personal Protection Order and using a carriage service in an offensive manner to threaten a third person and in a menacing manner. He was also charged with threatening to harm a public official and two counts of hindering a public official, but has pleaded not guilty to those latter charges.
11. He appears to have been refused bail on these offences. He seems to have been in custody for some time at various periods for he has made applications for bail as follows:
12. I note that in addition to these offences, he has admitted a breach of a good behaviour order made in conjunction with a suspended sentence. The good behaviour order included a probation condition. He failed to report on 4 January, 9 and 18 February and 2 March 2010. He appears to have made no contact with his supervisor in this period as directed.
13. His arrest for the offences in August were followed by the four appearances in September 2010 in this court, to which I have referred (at [11]), and ultimately his successful application for bail on 1 October 2010.
14. In support of the application a CADAS report was tendered which reported that he told CADAS he had not consumed alcohol since July 2010 and that he no longer considered alcohol to be an issue for him. He had made contact with Winnunga Nimmityjah but had not yet started counselling. He had been accepted into Arcadia House for an eight week residential rehabilitation program but that there would be a six week to two month wait for a place there.
15. There was also a Mental Health Report which opined that he had no mental illness or impairment but that he was being treated with antidepressants which the psychiatrist described as for “his general sense of depression more in terms of ‘unhappiness’, as opposed to a pervasive depression”. He was said, apparently, to satisfy the criteria for an unsocialised conduct disorder of childhood and adolescence in association with an antisocial personality disorder in later life.
16. A police report expressed concern at the likelihood of re-offending because of his history, and noted the contribution that alcohol had made to his offending. After hearing the matter he was granted bail. The grant of bail was made with the following conditions:
17. Less than one month later he was in trouble again. He has, however, pleaded not guilty to all the charges that arose out of the incident which is said to have occurred on 29 October 2010. Accordingly, while I have to remind myself that the charges are not proved, for the purposes of the bail application I have to assume that they are able to be proved, subject to any evidence I hear.
18. I heard evidence, in fact, from three of the people involved in the incident, including Mr Marsh.
19. Evidence was given that Police received a transmission about a disturbance involving a woman screaming from a flat in [a suburb in Canberra’s inner north]. Neither Mr Marsh nor the woman in the flat admitted to calling police. It may have been a neighbour. The police officer who gave evidence before me did not take the complaining call, so he could not say who made it, though he said he was told by Police Operations that the female caller was sobbing and expressing fear on the phone.
20. Police attended and saw what they considered to be signs of a disturbance, being mountain bikes “strewn about the stairwell and the entrance metal security door to the flat pushed open and bent ajar on its frame”.
21. The occupant of the flat, who gave evidence before me, said that while one bike may have fallen over, the other, hers, was locked against the wall and she had, she said, a photo of it, though she did not show it to me. She also said that the door was not bent but was ajar because it was held open by a metal piece on the shutter.
22. The police called out “It’s the police. Is everyone okay?”. In evidence, Sergeant Michael Serbatoio said he could hear a female voice inside the flat crying and a muted male voice. They also heard a baby crying.
23. The flat’s occupant said that she was in fact arguing with Mr Marsh, whom she wished to leave the premises but that she was not sobbing or crying. She did say that her baby had woken because of her argument with Mr Marsh and that she was awoken again by the police and then started screaming loudly. She did say that when the police arrived she herself began crying uncontrollably “due to the fact that [Mr Marsh and she] had been having arguments and [she] wanted him out of the house”. Thus, her description of what was happening was not much different from that given by Sergeant Serbatoio.
24. The police noticed six empty cans of whisky and cola pre-mixed drinks and a bottle of vodka in the premises. There was a dispute about the brand of the canned drinks, but that is of no consequence in this application.
25. Police formed the view that Mr Marsh was intoxicated and affected by drugs. Sergeant Serbatoio, a very experienced officer who had undertaken a number of courses which included training about intoxicated and drug affected persons and how to observe them, described Mr Marsh as intoxicated and affected by drugs. He said this because he observed Mr Marsh having a very tense lower jaw, the pupils of his eyes were “blown” and did not go up or down when moving into or out of the light, with shakiness of his lower limbs, adversely affected motor skills, his personality fluctuating widely, especially with violence, and his skin was pale and clammy. Sergeant Serbatoio noted that these were common symptoms amongst amphetamine users.
26. Mr Marsh denied being affected by alcohol or drugs. The female occupier of the premises said in evidence before me that she had, during the night, consumed all the cans of alcohol and that the bottle of vodka had been drunk another night and not on this occasion. She admitted that she had lied to police by informing them that Mr Marsh had drunk alcohol because she wanted to get Mr Marsh out of the flat.
27. This, of course, was a serious matter. Sergeant Serbatoio formed the view of Mr Marsh’s lack of sobriety, and that was confirmed by the female occupier in her statement to police. This justified the police in arresting Mr Marsh, for he was then in breach of his bail conditions, and they had reasonable views for taking that approach.
28. No doubt, Mr Marsh, if, in fact he had not consumed alcohol or drugs, felt the arrest was unfair. Regrettably, he responded aggressively, and this led to the incident I will later describe, resulting in charges. If the woman had told the police what she told me instead of a lie, the arrest may not have occurred.
29. In any event, three police officers escorted Mr Marsh out of the flat and into the stairwell without the need for force, though he was verbally abusive, using unpleasant and quite unnecessary language. He was said to be highly aggressive.
30. Police checked with their Operations area and found out about the bail conditions to which Mr Marsh was subject, and one of them informed him that he was under arrest for breaching them. This was said to have inflamed him. I was told he demanded to be allowed back into the flat, and when this was denied he was said to have lunged at the police and attempted to head-butt one of them and kicked the officer in the abdomen.
31. In his evidence, Mr Marsh said that he was assaulted and that he was sprayed with oleoresin capsicum (OC) spray into his face, including his eyes and mouth, which caused him to spit at the police and perhaps accidentally kick the officers.
32. Sergeant Serbatoio confirmed that OC spray was used in the incident and he also stated that Mr Marsh had spat at the officers into their faces. This would be a serious issue, for the transfer of saliva can transfer infection.
33. As can be seen, the two perspectives of the incident are very different, though, in essence, they may be describing the same facts.
34. The police, who were responding to a call they had been told was from a sobbing distressed and fearful woman could reasonably have expected that when they arrived to find Mr Marsh arguing with the female occupier that this was a family violence incident. In some ways it was, for Mr Marsh was refusing to leave the flat when he had no right to do so. The female then lied to police by saying that he had been drinking and so when they escorted him from the flat which, despite the quite unacceptable abuse, was accomplished peaceably and without incident, they found out about his bail conditions and had no alternative but to arrest him.
35. If, in fact, Mr Marsh had not been drinking, his aggressive manner, by, for example, even on his own version, demanding re-admission to the flat to which he had no right, is a worry.
36. I had several references about Mr Marsh, including one from his former partner who described him as an “exceptional citizen” with a “calm, placid, polite demeanour [which] makes him very approachable”. She put his unacceptable behaviour, much of which is evidenced by his long and troubling prior history and the pleas of guilty to the recent offences, to his excessive alcohol consumption.
37. If, in this case, his behaviour was as unacceptable but without the trigger of alcohol, then his antisocial behaviour is escalating.
38. She also referred to what she described as a “post-traumatic response”. I do not know what that is. It is not a diagnosis that was in the psychiatrist’s report, the CADAS report, the report of the general practitioner or those of the other agencies.
39. Quite frankly, it seems to me more like an antagonism to the police, whether he sees it as justified or not, which inevitably means that things get out of hand and escalate instead of being resolved. For example, even if he had been arrested for breaching bail, it is likely that he would have had his bail extended, but the escalation of the matter has now led to further charges which, if they are proved, may reduce the likelihood of him escaping a custodial sentence when the now 14 charges are dealt with.
40. Despite Mr Marsh’s aggressively negative view of the police action, from their perspective and from the knowledge that they have, they behaved impeccably and as one would expect when attending a family violence incident. Nevertheless, I now have sworn evidence from the female occupier and this paints a different story.
41. This is not to say that Mr Marsh’s behaviour was excusable or appropriate. He clearly has to contain his anger and his patent dislike of the police or he will find that he will be in further trouble in the future.
42. Before me, however, the evidence of the female occupier and Mr Marsh were not challenged in cross-examination. They were, as I say, from a different perspective, but that aside, largely consistent with the facts of the police evidence, though Mr Marsh did minimise the aggression he was said to have displayed.
43. Accordingly, I am satisfied that, having been granted bail before, this incident should not continue to deny Mr Marsh bail but I am concerned about his circumstances and consider that more precise and stringent conditions need to apply. For example, Mr Marsh said that he asked the police to breathalyse him and that he could show them that he was not affected by alcohol. That, of course, would have been an excellent idea, as there would then be a reliable decision as to whether he breached his bail or not. Unfortunately, the bail condition did not allow that. It only allowed police to administer a breathalyser test when Mr Marsh reports to the officer-in-charge of City Police Station. While consent may permit them to administer a breathalyser test, the consent of what they believed was an intoxicated man is very problematic.
44. I note that Mr Marsh has 35 warrants issued from Western Australia for his arrest. Of these, however, only three appear to relate to charges he has not yet faced. They relate to breaches of a community order, drink driving, driving without a licence, disorderly behaviour and carrying an article with intent to cause fear. The other 33 warrants appear to be warrants of commitment for, presumably, unpaid fines, by the look of the nature of the charges. While they do cause a problem, I note that they were all before the Chief Justice when he granted bail. It is, however, up to the Western Australian authorities to decide whether to extradite him or not.
45. I also note that up to 27 May 2010, Mr Marsh’s compliance with his obligations to report for bail supervision has been poor. If that continues under the bail I propose that he will find himself back in custody. He must notify the officer supervising him of his postal address and then he cannot claim not to have been advised of appointments.
46. The matter of bail is finely balanced. Mr Marsh clearly needs to learn that when the occupier of any premises withdraws permission for him to be there, he is required to leave forthwith. This is the second occasion on which this has happened, with different people, and has resulted in charges. Argument only makes matters worse. He also needs to learn to moderate his aggression.
47. I am, however, not sentencing Mr Marsh, but these are relevant to an important bail consideration, namely, whether he is likely to re-offend.
48. In all the circumstances, but with much hesitation, I am prepared to grant Mr Marsh bail, but on very strict conditions with which I expect that he will comply and if he does not, so far as I am concerned, he can expect to remain in custody until his matters have finally been dealt with by the courts.
49. Accordingly, I grant Mr Marsh bail to appear in the ACT Magistrates Court on 16 November 2010 and thereafter as and when required on the following conditions:
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 13 January 2011
Counsel for the prosecution: Mr T Jackson
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the defendant: Mr L Marsh
Solicitor for the defendant: Self represented
Date of hearing: 9 November 2010
Date of judgment: 15 November 2010
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