Markovic v The Queen (No. 1)

[2022] NSWDC 353

District Court

New South Wales

Medium Neutral Citation:

Markovic v R (No. 1) [2022] NSWDC 353

Hearing dates:

11 August 2022

Date of orders:

11 August 2022

Decision date:

11 August 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

The application is incompetent and therefore refused

Catchwords:

APPEALS — Jurisdiction of appellate court — District Court

CRIME — Appeal and review — Appeal from Local Court to District Court

Legislation Cited:

Crimes (Appeal and Review) Act 2001

District Court Act 1973

Road Transport Act 2013

Category:

Principal judgment

Parties:

Duro George Markovic (Appellant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Sasha Milanovic (counsel for the Appellant)

Stephen Makin (solicitor for the Respondent (ODPP))

File Number(s):

2020/00337582

REVISED EX TEMPORE JUDGEMENT

Introduction

1. This is the judgement in the application made by way of court file 2020/00337582.

2. Duro George Markovic was convicted after a hearing on 22 April 2021 in the Local Court at Manly of an offence of driving whilst disqualified on 27 November 2020 contrary to s 54(1)(a) Road Transport Act 2013. The maximum penalty specified for the offence is imprisonment for six months, with a fine of $3,300, and an automatic period of disqualification of six months that might be reduced to three months in the discretion of the Court.

3. The magistrate had the applicant enter a Community Corrections order from 22 April 2021 for 12 months, accompanied by a fine of $1,100 with a disqualification of six months. An appeal was lodged on the same day, 22 April 2021. A stay was granted.

The Offence

4. The offence occurred when at 12.45am on 27 November 2022 police travelling in Pittwater Road, Narrabeen, by way of the automatic number recognition system, detected a warning in respect of a black Ford motor vehicle, with the registered number specified in the material before me. The information provided was that the driver of the vehicle was likely to be suspended. The vehicle was caused to be stopped; the applicant was driving. He produced a licence with his image. The police inquiries on their system revealed that his licence was disqualified due to fine default on 16 October 2020 and until 16 October 2025. The police sought to ask him questions, but the applicant remained silent. He was on bail at the time. He was later charged.

The Application

5. The appeal, according to the Court file, came before Robinson DCJ on 12 October 2021. According to the Court file the appeal was withdrawn. This must have been upon an application made to withdraw the appeal. It was consequently dismissed and the conviction and orders of the magistrate were confirmed.

6. The reasons behind that outcome are not before the Court, but a question arises as to whether this Court in the circumstances has power to do anything in respect of that matter.

7. These proceedings are governed by the Crimes (Appeal and Review) Act 2001. Section 21:

“(1) If an appeal or application for leave to appeal is dismissed because of the appellant’s failure to appear, the registrar of the District Court for the proclaimed place (within the meaning of the District Court Act 1973) at which the appeal or application is dismissed must cause notice of that fact to be served on the appellant.

(2) Such a notice must state the following—

(a) that the District Court has dismissed the appeal or application,

(b) that the appellant is entitled to apply for the setting aside of the order by which the order dismissing the appeal or application was made,

(c) that any such application must be made within 12 months after the date on which the order dismissing the appeal or application was made.”

8. Section 22 provides:

“(1) An application may be made to the District Court for the setting aside of an order under s 21 that has dismissed an appeal or application for leave to appeal because of the appellant’s failure to appear (a dismissal order).

(2) An application under this section must be made within 12 months after the date on which the dismissal order is made.

(3) After hearing such an application, the District Court may set aside the dismissal order, either unconditionally or subject to conditions, if it is satisfied—

(a) that the appellant has shown sufficient cause for the failure to appear, and

(b) that it is in the interests of justice that the appeal or application be heard.

(4) Section 60 applies to any sentence in respect of which a dismissal order is set aside.

(5) No action lies against any person for anything done or omitted to be done by the person in good faith, and without notice of the setting aside of a dismissal order, for the purpose of enforcing the conviction or sentence the subject of the appeal to which the order relates.”

9. Counsel for the applicant can advance no other provision that might provide for the resurrection of this appeal. It is not said that s 21 and s 22 of the Act in combination provide a basis upon which the relief sought on this occasion can be provided.

Decision

10. I am unaware of any provision in this or any other legislation that would allow this Court to go behind the orders Robinson DCJ made on 12 October 2021. Accordingly the application is incompetent in my assessment and therefore it is refused.

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Decision last updated: 18 August 2022