Luke Arthur Marsh wins appeal against conviction in ACT Supreme Court after public housing eviction

In an ACT Supreme Court judgment on Tuesday, Justice John Burns upheld Luke Arthur Marsh's appeal against a magistrate convicting him in his absence when he claimed to have been ill.

The court previously heard Mr Marsh was getting frustrated with the housing officers before he began to drink then threatened them during the eviction in May 2018.

On September 18 last year, a magistrate convicted Mr Marsh after he pleaded not guilty and was set for hearing on that date.

He did not appear and in the middle of the hearing, he called the court to say he was ill, but he ended the call before more information could be obtained.

That information was passed to the magistrate, who said: "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," the magistrate said.

A warrant was issued and Mr Marsh appeared in October but the sentencing was moved to March 11 this year after a number of appearances and date changes in between.

Marsh was sentenced to six months jail but his total sentence was eight after the conviction breached four good behaviour orders as part of a previous suspended sentence.

The jail term was backdated to January and suspended after three months with a good behaviour order for 12 months after.

On the same day he was sentenced, he filed an appeal.

Marsh's lawyer, Johnathon Cooper, argued that the magistrate held the hearing via a summons being served after Marsh received a letter from the court in March 2020 and therefore the court should not have sentenced Marsh to jail in his absence.

Mr Cooper also argued that the court should have set aside the case in September because the defendant had a reasonable excuse for failing to appear.

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Katie McCann for the respondent, the ACT Director of Public Prosecutions, argued that the magistrate held the hearing under a different part of the relevant legislation that allowed the court to go ahead as if an absent party were present.

In his decision to uphold the appeal, Justice John Burns said that while he could find no record about the appellant failing to appear because of illness, he did not think Mr Marsh waived his right to be present at the hearing.

"The appellant had not clearly waived his right and the decision of the magistrate to proceed in his absence involves a breach of procedural fairness," he said.

Justice Burns said he could "sympathise with the frustration clearly felt by the magistrate and his honour's desire to bring the proceedings to an end" after a "sorry history of multiple adjournments" mostly caused by the appellant's failure to appear.

"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," he said.

"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."

Justice Burns said the magistrate could have also issued a warrant for Mr Marsh's arrest then determined whether to grant bail and assess the evidence about his illness.

He said the hearing was started via a charge instead of summons because police had arrested Marsh in mid-May and he fronted the court the next day.

The conviction and sentence have been set aside the matter will go back to the magistrates court for a hearing.

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