Markovic v The Queen (No. 2)

[2022] NSWDC 354

District Court

New South Wales

Medium Neutral Citation:

Markovic v R (No. 2) [2022] NSWDC 354

Hearing dates:

11 August 2022

Date of orders:

11 August 2022

Decision date:

11 August 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Remit the proceedings to the Local Court at the Downing Centre on 18 August 2022 for further management of the proceedings

Catchwords:

APPEALS — Jurisdiction of appellate court — District Court

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

Legislation Cited:

RoadTransport Act 2013

Crimes (Appeal and Review) Act 2001

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):

2021/00071644

REVISED EX TEMPORE JUDGEMENT

Introduction

1. On 16 September 2021 Duro George Markovic was convicted before a magistrate in the Local Court in the Downing Centre of driving a vehicle with an illicit drug present in his blood, a second offence, contrary to s 111(1)(a) RoadTransport Act 2013. The date of the offence was 28 January 2021. His penalty was a fine of $1,100 and a disqualification of 12 months dating from 16 September 2021.

2. He was not present in Court when the conviction was entered against him and a penalty imposed, thus as the Court file has informed me, he was dealt with in his absence.

The Notice of Appeal

3. He lodged a notice of appeal to the District Court on 7 October 2021. These asserts:

“I am appealing on the following grounds:

I am appealing against the above conviction, and sentence BECAUSE I AM NOT GUILTY AND BECAUSE THE SENTENCE IS TOO SEVERE.”

4. Endorsed on the bottom of the document in handwriting is the following:

“Client advised to lodge an annulment application. Client refused to lodge such application and insisted to lodge a District Court appeal.”

5. There is a signature, the date 7/10/2021 and “Wyong Local Court”.

6. The use of the term “client” in respect of the appellant does not suggest to me that that was made by a solicitor but was rather made by the person with whom he dealt in the Local Court at Wyong in the registry for his or her purposes.

Consideration

7. Relevant to this matter is s 4 Crimes (Appeal and Review) Act 2001 providing for the annulment of convictions or sentences imposed in the Local Court, which may be ordered at the place in which the original Local Court proceedings were held. This can only be made in respect of an annulment of conviction if the appellant was not in appearance before the Local Court when the conviction was made, or in the case of an application to the annulment of a sentence he was not in appearance at the Local Court when the sentence was imposed: s 4(1) and s 4(1)(A) respectively.

8. The appellant has two years from the conviction and sentence in which to pursue an application for an annulment: s 4(2). The application must be in writing and must be lodged with the registrar of the Local Court: s 4(4).

9. There is no power in this Court to hear an appeal other than by way of an appeal from conviction and a sentence or an appeal from a decision not to grant an annulment made in the Local Court: s 11A Crimes (Appeal and Review) Act 2001.

Decision

10. The appeal as filed is incompetent in my view. The Crown cover sheet advises that leave is required pursuant to s 12 Crimes (Appeal and Review) Act 2001. Section 12 deals with appeals requiring leave where a person who has been convicted in the Local Court suffered that outcome in his or her absence or following a plea of guilty. Importantly s 12(2) provides:

“An application for leave to appeal may not be made in relation to a conviction in respect of which the defendant—

(a) is entitled to make an application under s 4 but has not done so, or

(b) has made an application under s 4 but the application has not been disposed of under Part 2.”

11. Accordingly this Court has no jurisdiction to do anything in this case other than to remit the proceedings to the Local Court at the Downing Centre and I shall do so. I shall adjourn the proceedings to 18 August 2022 to that Court for the further management of the proceedings.

12. No bail was granted in respect of this application for the proceedings to be brought to this Court. I do not see any need to impose bail in the circumstances, however I do not excuse the appellant’s attendance on 18 August, I require him to attend Court. I note that date is available to his counsel who appears today.

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Decision last updated: 18 August 2022