Markovic v Director of Public Prosecutions (NSW)

[2024] NSWCCA 251

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Markovic v Director of Public Prosecutions (NSW) [2024] NSWCCA 251

Hearing dates:

13 December 2024

Date of orders:

20 December 2024

Decision date:

20 December 2024

Before:

Davies J at [1]
Yehia J at [1]
R A Hulme AJ at [1]

Decision:

Variation made to daily reporting hours. Variation application otherwise dismissed.

Catchwords:

CRIMINAL LAW – bail – application to vary bail by deleting all bail conditions – where bail was granted in the Supreme Court and subsequently varied in the Local Court – Court had jurisdiction to hear the application where the bail decision in the Supreme Court remained operative – application determined on merits

Legislation Cited:

Bail Act 2013 (NSW), ss 4(1), 8 16A, 17, 18, 19, 20A, 50, 61, 67(1) 68, 69, 77, 78

Crimes Act 1900 (NSW), ss 319, 249K(1)(a)

Category:

Principal judgment

Parties:

Duro Markovic (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Counsel:
In person (Applicant)
J Styles (Respondent)

Solicitors:
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2024/410443

Publication restriction:

Nil

HEADNOTE

[This headnote is not part of the judgment]

The applicant is due to stand trial in the District Court for serious indictable offences contrary to the Crimes Act 1900 (NSW). He was granted bail in the Supreme Court and has brought an application to this Court to vary bail by revoking all existing bail conditions. The Crown contended that the Court did not have jurisdiction to hear the application on the basis that the bail decision made in the Supreme Court was superseded by a subsequent decision in the Local Court to continue and vary the applicant’s bail.

The Court held that it did have jurisdiction to hear the application pursuant to s 67(1)(e) of the Bail Act 2013 (NSW). The Local Court had not made a “bail decision” as defined in the Act, only a decision to vary the bail conditions originally imposed by the Supreme Court.

When assessing the application on its merits and considering the bail concerns posed, the Court determined that there was no case for removing any of the existing bail conditions and that there should only be an amendment of the hours for daily reporting. The bail variation application was otherwise dismissed.

JUDGMENT

1. THE COURT: This is an application under s 51 of the Bail Act 2013 (NSW) by Duro George Markovic for a bail decision to be varied by deleting all bail conditions.

2. Mr Markovic is due to stand trial in the District Court at Sydney on 24 February 2025 upon an indictment charging offences of perverting the course of justice and blackmail in the following terms:

1. On 16 March 2023 at Taren Point offered Mark Prior a sum of money, and further threatened him with future serious harm or death if he did not accept the offer, to end proceedings in a civil case currently before the Federal Court of Australia, intending thereby to pervert the course of justice, and

2. On or about 24 March 2023, in Sydney did make an unwarranted demand of Mark Prior, with menaces, with the intention of causing a loss to Mark Prior.

3. These are serious indictable offences contrary to ss 319 and 249K(1)(a) of the Crimes Act 1900 (NSW) for which the maximum penalties are imprisonment for 14 years and 10 years respectively.

4. Mr Markovic was arrested and charged on 8 May 2023. Bail was refused by police and by the Local Court but was granted by Hamill J in the Supreme Court on 19 December 2023.

5. As to the prosecution case, his Honour observed, “the facts alleged by the prosecution represent a grave example of each of those offences”.

6. The applicant was required to show cause why his detention was not justified pursuant to s 16A of the Bail Act 2013 (NSW) because he was alleged to have committed serious indictable offences while on bail for other charges. His Honour was satisfied that cause was shown and so the matter turned upon a consideration of whether there were unacceptable risks in relation to any of the bail concerns listed in s 17 of the Act.

7. His Honour found that each of those concerns were present, namely whether Mr Markovic would fail to appear, would commit a serious offence, would endanger the safety of victims, individuals and the community, and would interfere with witnesses and/or evidence. Having regard to the conditions of bail he was minded to impose he was satisfied there were no unacceptable risks. His Honour said:

I am satisfied that the conditions of bail that I will presently announce will mitigate the risk to such a degree that the concerns raised by the prosecution are not unacceptable risks for the purposes of s 18 [scil. s 19]. As I have said, the conditions that I propose are much stricter than those proposed by the applicant’s legal representatives. They will have him living more than 50km from the place where the offences were allegedly committed, on a form of house arrest with very limited and specific exceptions. There will also be a requirement to report twice daily to [a police station] and to keep the officer-in-charge of that station abreast of his movements to and from medical and psychologist appointments. There will be enforcement conditions and a requirement that he at least approach a local GP for a mental health or treatment plan.

8. Before announcing the conditions, his Honour said to Mr Markovic:

I am going to ask you to read them every morning when you wake up because any breach of these conditions, even the slightest, and you will be back in gaol in a flash.

9. The applicant came before Sweeney J on 6 May 2024 with an application to vary his bail by removing all, or most, of the conditions. Her Honour made an order that is recorded in JusticeLink in the following terms:

The Bail Acknowledgement entered by Duro George Markovic on the 21 December 2023 is continued and varied: … [it then set out the conditions and the variations].

10. The variations were minor adjustments to exceptions to the home detention condition so that on three days per week Mr Markovic could travel to his place of business by public transport and when he did so he need not be accompanied by his mother.

11. On 28 September 2024, Mr Markovic was alleged to have breached a bail condition. He was arrested and taken to Surry Hills Correctional Centre from where he appeared the next day via AVL before Parramatta Local Court. JusticeLink records that an order was made that the bail acknowledgement entered on 21 December 2023 was “continued and varied”. The variations were that he did not have to be in the presence of his mother when exercising certain exceptions to the home detention condition, namely reporting to police, attending medical appointments or seeking emergency medical treatment. Further, he was permitted to attend the local shops when reporting to police but not so as to be absent from home for more than an hour and to make only one such visit to the shops per day.

This Court’s jurisdiction to hear an application to vary bail

12. Mr Markovic filed an application in this Court on 5 November 2024 seeking that all of his bail conditions be revoked. It is a “variation application” under s 51 of the Act.

13. The term “bail application” is defined in s 4(1) of the Act and includes a variation application. This Court has jurisdiction to hear a bail application if proceedings for the offence in question are pending in the Court (s 61). The proceedings are not pending in this Court; they are pending in the District Court.

14. The Court has “additional powers” to hear bail applications in the circumstances listed in s 67(1):

(a) the Court has ordered a new trial and the new trial has not commenced, or

(b) the Court has made an order under section 8A(1) of the Criminal Appeal Act 1912 and the person is before the Court, or

(c) the Court has directed a stay of execution of a conviction and the stay is in force, or

(d) an appeal from the Court is pending in the High Court, or

(e) a bail decision has been made by the Land and Environment Court, the Industrial Court or the Supreme Court. (Emphasis added)

15. Only (e) could apply but that depends upon the bail decision made by Hamill J on 19 December 2023 being operative. The Crown contended that a bail decision was made by the Local Court on 29 September 2024 which, in effect, superseded that of Hamill J and so the Court had no jurisdiction. The question is whether the Local Court made “a bail decision”.

16. Section 8 defines what a “bail decision” is:

(1) The following decisions (each of which is a “bail decision”) can be made under this Act in respect of a person accused of an offence—

(a) a decision to release the person without bail for the offence,

(b) a decision to dispense with bail for the offence,

(c) a decision to grant bail for the offence (with or without the imposition of bail conditions),

(d) a decision to refuse bail for the offence.

17. The Crown contended that the Local Court dealt with the matter under s 50 which provides for detention applications made by prosecutors. It was submitted that the Local Court made a bail decision under s 50(3) to grant Mr Markovic bail and then exercised a power under s 50(4) as a consequence of that grant of bail to vary the bail.

18. The Local Court cannot have heard and determined a detention application under s 50 of the Act because it had no jurisdiction to do so.

19. Part 6 of the Act provides for “Powers to hear bail applications” and it includes ss 68 and 69.

20. Section 68(1) provides that the Local Court cannot hear a bail application (which includes a detention application under s 50) in certain circumstances, including if “proceedings for the offence are pending in a court (other than the Local Court) and the accused person has made his or her first appearance before the court in those proceedings”. In the present case the accused had already made his first appearance in the District Court.

21. Section 69 provides, relevantly, that the Local Court may hear a bail application for an offence when a bail decision has been made by the Supreme Court only if proceedings for the offence are pending in the Local Court, which was not the case here.

22. The only source of jurisdiction for the Local Court to deal with Mr Markovic on 29 September 2024 was under Part 8 (“Enforcement of bail requirements”). Section 60 specifically provides that Part 6 does not limit the power of a court or authorised justice under Part 8 or 9. In addition, s 69(3) provides that s 69 does not prevent a court from hearing a detention application under Part 8.

23. Part 8 contains provisions concerning the powers available to police and the courts to deal with breaches or impending breaches of bail. Section 77 is concerned with the actions that may be taken by a police officer who believes on reasonable grounds that a person has failed, or is about to fail, to comply with their bail. The range of actions include arresting the person and taking them as soon as practicable before a court or authorised justice. It is assumed that this was how Mr Markovic was arrested and placed (via AVL) before Parramatta Local Court.

24. Section 78 provides for the powers of a “relevant bail authority” before whom such a person is brought or appears. If the relevant bail authority (defined in s 78(6) to include the Local Court) is satisfied of the breach, or an imminent breach, pursuant to s 78(1) it may:

(a) release the person on the person’s original bail, or

(b) vary the bail decision that applies to the person.

25. The term “vary the bail decision” is defined in s 4(3) of the Act as including:

(a) a power to revoke the bail decision and substitute a new bail decision, and

(b) a power to vary bail conditions.

26. While there was no transcript or other evidence to confirm how the Local Court dealt with Mr Markovic’s appearance on 29 September 2024, it must be assumed that it acted within its jurisdiction and therefore in accordance with s 78. As indicated earlier (above at [11]) the official record indicates that an order was made that the bail acknowledgement made as a consequence of the bail decision of Hamill J was “continued and varied”. That was within its powers under s 78(1)(b) when read with s 4(3)(b). The Local Court thereby did not make a “bail decision”.

27. The bail decision of Hamill J of 19 February 2033 remains operative and this Court has jurisdiction under s 67(1)(e).

Evidence and submissions in support of the application

28. Mr Markovic represented himself in making written and oral submissions in support of his application. He relied upon bundles of documents intended to support his claim of innocence and sought to characterise the prosecution as being sourced to a longstanding conspiracy against him by a magistrate, prosecutors, police, lawyers, his ex-wife and others.

29. None of this addressed the relevant legislative concepts of bail concerns (s 17 of the Act), the matters required to be considered in relation to such concerns (s 18) and the question of whether there are unacceptable risks in relation to any of the bail concerns (s 19). There was no submission that the existing bail conditions were not reasonable or appropriate for the bail concerns that might be present (s 20A).

30. This is not a criticism of Mr Markovic. While he has some experience with criminal law it has been in the context of being on the receiving end of it and not in forensic advocacy. He readily conceded at the outset of the hearing that, in effect, he was out of his depth in addressing the legal merits of his application.

31. There is no evidence before the Court that would gainsay the assessment of the prosecution case set out in the judgment of Hamill J as involving allegations of the commission of very serious offences, nor his assessment of the prosecution case as “one of substance” and “reasonably very strong”. Mr Markovic, however, vehemently protests his innocence. He is entitled to. The outcome will be determined in the District Court in due course.

32. The nature of the allegations give rise to some of the bail concerns insofar as they involve an attempt to interfere with judicial proceedings by threats of serious violence to a principal participant. Mr Markovic’s criminal record supports others. For example, it includes a number of instances of breaching bail and conditional court orders. There are some quite serious offences, albeit in the earlier history. Recent offences have included intimidating, resisting and assaulting police officers and being found in custody of a knife in public.

33. No case was established for removing any of the existing bail conditions. However, the Crown proposed there could be a slight expansion of the hours during which Mr Markovic is required to report each morning and afternoon in order to alleviate the difficulty in him travelling on certain days of the week to and from his place of business which is a significant distance from his home. That variation should be made.

Orders

34. The following orders are made:

1. The bail acknowledgement entered by Duro George Markovic on 21 December 2023 is varied by amending the hours of daily reporting to police from between 7.00am and 10.00am to between 5.00am and 10.00am and from between 3.00pm and 5.00pm to between 3.00pm and 9.00pm.

2. The bail variation application is otherwise dismissed.

*********

Decision last updated: 20 December 2024