Marsh v Mukhin (No 2)

[2021] ACTSC 84

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Marsh v Mukhin (No 2)

Citation:

[2021] ACTSC 84

Hearing Date:

6 May 2021

DecisionDate:

6 May 2021

Before:

Elkaim J

Decision:

The condition is varied so that it reads: “not use, possess or obtain any illegal drug”

Catchwords:

APPEAL – BAIL – Bail Variation – Variation of condition on cannabis use – offending not connected to drug use – bail varied   

Cases Cited:

Marsh v Mukhin [2021] ACTSC 36

Parties:

Luke Arthur Marsh ( Appellant)

Alexey Mukhin ( Respondent)

Representation:

Counsel

D Turner ( Appellant)

N Deakes ( Respondent)

Solicitors

Aboriginal Legal Service ( Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 09 of 2021

ELKAIM J:

1. In this matter the applicant wishes to vary the bail that I granted on 12 March 2021. The circumstances behind the granting of bail are set out in Marsh v Mukhin [2021] ACTSC 36, which I delivered on 12 March 2021.

1. The basis for the application is to remove a condition of the bail. The condition currently states: “Not use illegal drugs, including cannabis, or any other drug illegally obtained”.

1. The application was opposed by the Crown.

1. Essentially Mr Marsh wishes to use cannabis. He says that it is permissible because within the limits dictated by the law as it now is, any resident of the ACT is entitled to possess up to 50 grams of cannabis or have up to four plants in his or her possession. Mr Marsh says, why should he be any different to anybody else?

1. The Crown says that there is a concern that if he uses cannabis it is just going to get him into trouble. There is probably some substance in that, but the difficulty is that the offences in respect of which the applicant is currently on bail have nothing to do with taking drugs.

1. The Crown also pointed to a breach of the bail I had granted about seven days after the grant. I think it is clear from the details provided of the breach that it was associated with the overconsumption of alcohol and was not derived from the use of cannabis. 

1. The question then is whether a condition of bail should include an activity that is legally available to any other person in the ACT but is denied to the person on bail.

1. To give an example, a bail condition for a person who drives illegally might include not driving a car. That would be quite reasonable. But a bail condition that says don’t drive when the relevant offences have nothing to do with driving would be quite unreasonable.

1. I think that Mr Marsh is entitled to have the condition varied. But I intend to change it to make sure that there is no doubt that he does not contravene the current laws in relation to any illegal drug including cannabis.

1. Accordingly, I vary the condition so that it reads: “not use, possess or obtain any illegal drug”.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment his Honour Justice Elkaim

Associate:

Date: 6 May 2021