Markovic v The Queen (No. 4)

[2022] NSWDC 742

District Court

New South Wales

Medium Neutral Citation:

Markovic v R (No. 4) [2022] NSWDC 742

Hearing dates:

11 August 2022

Date of orders:

11 August 2022

Decision date:

11 August 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

(1) In each case the appeal is dismissed

(2) The findings of guilt are confirmed

(3) The appellant seeks leave to withdraw the appeals from the sentences imposed by the magistrate

(4) Leave granted

(5) Confirm the convictions in each case and confirm the orders of the magistrate

(6) The CCOs will commence from today

Catchwords:

APPEALS — Jurisdiction of appellate court — District Court

APPEALS — Nature of appeal — Appeal by rehearing — Whether rehearing de novo

Legislation Cited:

Crimes Act 1900

Crimes Appeal and Review Act 2001

Law Enforcement Powers and Responsibilities Act 2002

Road Rules 2014

Supreme Court Act 1970

Cases Cited:

Charara v R [2006] NSWCCA 244

Director of Public Prosecutions New South Wales v Lucas [2014] NSWSC 1441

Grajewski v DPP New South Wales [2019] HCA 8

Hammond v R (2013) 85 NSWLR 303

Lunney v DPP [2021] NSWCA 18

McNab v DPP 2021 NSW CA 298

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):

2020/00295833

 Decision under appeal 

Court or tribunal:

Manly Local Court

Jurisdiction:

Criminal

Date of Decision:

26 November 2021

Before:

B Williams LCM

File Number(s):

2020/00295833

Revised ex tempore JUDGeMENT

Introduction

1. The appellant in this case is Duro George Markovic. He was convicted in the Local Court at Manly on 26 November 2021 by a magistrate of three offences.

2. Sequence one, contrary to s 60(1) Crimes Act 1900 of intimidating a police officer in execution of duty.

3. Sequence four, contrary to s 68 (1) Road Rules 2014, not stopping at or before a stop line or stop sign.

4. Sequence Five, contrary to s 195 (1)(a) Crimes Act 1900 of damaging property.

Factual Matters

5. The brief facts upon which the prosecution advanced are that on 14 October 2020, two police officers, the senior of whom were Senior Constable Richard Giblin, at the time on duty with Constable Meriki Ann Buckman as the junior member of the team, a female.

6. The events began when around 9.45pm, the two officers were patrolling in a Hyundai marked police vehicle, a sedan, in Ponderosa Parade, Warriewood. Ahead of the vehicle was a black utility. A Ford, which had a distinctive red decal down the sides.

7. The police officers saw the vehicle proceed through an intersection at Jubilee Avenue, without stopping at the stop sign erected at the intersection. It turned right onto Warriewood Road. This was observed after the police officers had seen three vehicles. They were intending to stop one of them for the purposes of a random breath test in accordance with their patrol duties, until it appears by the decision of the driver of the Ford utility to proceed through the stop sign.

8. According to Senior Constable Buckman, the vehicle continued toward Hill Street, at which point Senior Constable Giblin said, “Jump on the radio.” Her response was, “What do you want me to say? They might not realise it is a police car driving behind them. Let’s activate the lights and sirens and see if they slow down and stop.” The Senior Constable activated the lights and sirens. He was driving a police vehicle. The vehicle turned left into Hill Street. As the police car made that turn, the two officers lost sight of the Ford utility, and did not know at that point whether to turn left or right into a cross-street ahead of them. The police turned right into that street, Elimatta Road. it took them onto Pittwater Road. They still could not see the other vehicle.

9. Senior Constable Giblin said to his partner, “I reckon that car is stolen.” He broadcast on the radio, “Northern Beaches cars, keep a lookout for a black Ute with a red stripe down the length of the vehicle. It took off from police at high speed in Elimatta Road Mona Vale.”

10. The police car was turned around and driven down Warriewood Road, patrolling. In the course of looking for the vehicle, Senior Constable Giblin said, “That’s the car” again on the radio, at which point the constable saw the black utility exit Alameda Way and turn left on Warriewood Road, driving directly toward the police car. Senior Constable Giblin activated the lights and sirens and drove the vehicle to the incorrect side of the road, in front of the Ford. Both came to a stop.

11. She activated her body worn video camera, broadcast that they had stopped the vehicle, and Senior Constable Giblin exited and walked towards the driver’s door.

12. He drew his firearm, and said to the driver, “Put your hands up. Put your hands up and hand me the keys now. Put your hands up. Put your hands up now. Put your hands on your head.” He thereupon holstered his firearm and took out his OC spray which he held in his left hand as depicted in the video recording played. Thereafter, the statement provided by the constable exhibited before the magistrate provides some of the abuse and profanity that came from the appellant, directed toward Senior Constable Giblin.

13. At one point, he said to Senior Constable Giblin, “Why are you fucking trying to twist my arms for? I will rip your fucking eyeballs out you motherfucker.” He was then told he was under arrest for assaulting police because of the threat to rip his eyeballs out.

14. The other police officers provided statements which were exhibited before the magistrate. They were not required to give evidence, and correspondingly, were not required for cross-examination.

15. Senior Constable Giblin’s statement was not tendered, but he gave evidence on 26 November 2021. In response to examination-in-chief, he described incomparable terms what the statement from Constable Buckman provided. He was cross-examined.

16. The appellant was unrepresented and conducted the case alone, and thus was properly permitted significant latitude in the topics that he pursued testing the evidence of the senior constable.

17. It was revealed in the course of the cross-examination that the appellant and the senior constable at some point in the past had some contact with each other. Little turns upon it in the circumstances. The telling part of this case is that there were body worn cameras activated by both Senior Constable Giblin and Constable Buckman and others, in the sequence of events from when the police officer approached the driver’s door of the car, which graphically captured the aggression demonstrated by the appellant from the very start of his interaction with the police.

18. What seems to have been the catalyst for all of it, was the fact that the police officer drew his pistol for that brief period immediately after the vehicle was stopped.

19. There is no doubt in my mind, having looked at the recordings and observed them as they were each played in Court, that the appellant was intimidating the police officer as he was in the performance of his duty. No other conclusion could be drawn from the recordings that were played.

20. The magistrate heard submissions from the prosecution and the appellant, who tended to amplify the material upon which the magistrate was required to come to a decision, effectively, giving in some instances, unsworn versions of what occurred. Accordingly, there was no evidence of those matters before the Court. As the magistrate correctly observed at p 56 in the reasons for the decision at line 42, the allegation against the accused as he was then, came out of the video and spoke for itself.

The Nature of the Appeals

21. The conduct of appeals to this Court from decisions by magistrates, challenging the convictions suffered in the Local Court, is governed by the Crimes Appeal and Review Act 2001.

22. It is now the law according to authority in the Court of Appeal in New South Wales, that an appellant must show that there has been some legal, factual or discretionary error on the part of the magistrate in coming to their decision in the Local Court, in the absence of which, there is no obligation upon the appellate Court to determine an appeal. I shall go to the commentary in the practice by Johnson & Howie upon s 18. I quote at [4 - s 18.1]:

“In the context of an appeal to the District Court against the making of an apprehended personal violence order, it was said in Dyson Butterworth [2015] NSWCA 52, that:

a) An appeal under s 18(1) is not an appeal de novo (at [26]).

b) The approach to be taken on a s 18 rehearing is an analogous that taken on a civil appeal under s 75(A), Supreme Court Act 1970 - the judge forms his or her judgment of the facts. recognising the advantage of the magistrate who heard and saw the witnesses in the Local Court (At [8], [27])..

c) The powers of the District Court under s 18(1) are exercisable where an appellant demonstrates the order the subject of the appeal is the result of legal, factual or discretionary error, in which case the Court can substitute its own decision based on the facts and law they then stand (at [28])..

23. The direction in s 18 of the conviction appeal under s 11 is to be heard ‘by way of a rehearing on the basis of evidence given in the Local Court proceedings’ is not to be construed as a direction that the District Court must, in every case, undertake a complete review of the whole of the evidence and form its own view as to the appellant’s guilt regardless of issues raised by the appellant.; the extent of the review required in an individual case will depend on the circumstances of the case and the kind of error alleged; Lunney v DPP [2021]NSWCA 186.

24. In McNab v DPP 2021 NSW CA 298. It was held that;

1. An appeal to the District Court under s 18 does require a demonstration of a factual, legal or discretionary error in order to succeed (at [24], [83] – [90].

2. The fact that the appellant must demonstrate error on appeal does not reverse the onus of proof, in that the prosecution at all material times bares the onus of establishing guilt upon reasonable doubt (at [26] and [91]).”

25. I have read the evidence that was put before the magistrate and the reasons that were given by the magistrate for coming to the decision as I was permitted to do in accordance with Charara v R [2006] NSWCCA 244. I found no legal, factual or discretionary error that vitiates the reasoning or the ultimate decisions to which the magistrate came, and none was identified in the conduct of this appeal.

26. This notwithstanding, bearing in mind the appellant was unrepresented in the Local Court, and following upon the valued assistance provided by Mr Milanovic in the conduct of the appeals here today, I have taken the course of looking at the material to decide whether it persuades me beyond reasonable doubt that the guilt of the accused has been established on each of these offences.

Assessment of the Evidence and Principles

27. I am satisfied that each of the offences is made out, including disobeying the traffic sign or stop line, the allegation in sequence four, and the allegation of damaging property, subject of sequence five.

28. These appeals are, as I have noted, pursuant to s 18 Crimes Appeal and Review Act 2001. The section provides that the appeal is to be by way of a rehearing on the basis of the evidence given in the original Local Court proceedings, except as provided by s 19. Nothing has occurred in the conduct of this matter to engage that provision. There has been no application to adduce fresh evidence as is permitted by s 18(2), but only by leave which may be granted if the Court is satisfied that it is in the justice just fresh evidence be given.

29. The onus of proof is upon the Crown beyond reasonable doubt. The accused bears no onus. He chose not to give evidence in the Local Court as was his right. He could remain mute and require the prosecution to prove its case. The analysis required is to consider the evidence in the Crown prosecution case and decide whether each of the elements of the offences have been established, to the criminal standard beyond reasonable doubt. As I say, I have come to the view that they have been proven.

30. It was advanced in respect of sequence five that there is some argument available as to whether or not the conduct amounted to an offence of damaging property, contrary to s 195 (1)(a) Crimes Act 1900. The evidence regarding that is found in para 13 of the statement by one of the police officers tendered in the Local Court. Constable Aiden Murphy. The allegation at para 13 of that statement is in the following terms:

“Around midnight, I saw Duro Markovic standing with his feet shoulder width apart facing the left wall of the dock. I exited the custody manager’s office as I believed he was about to urinate. While walking to his dock, I said to him ‘If you need to go to the toilet, I will take you. Don’t piss here.’ In the middle of saying this, Duro Markovic began to urinate against the dock wall. After finishing urinating, he sat back down on the seat.”

31. The submission made drew upon a decision in the High Court. Grajewski v DPP New South Wales [2019] HCA 8. The case concerned an appellant who bound himself to a ship loader at a coal terminal. The loader could not be safely used until he was removed. The safety of concern was the safety of the appellant. The case turned upon the question whether the act of the accused so attaching himself to the equipment, rendering the loader inoperable for a number of hours, amounted to damage, such as to give rise to a charge contrary to s 195(1) Crimes Act 1900.

32. The Court of Criminal Appeal answered that question in the affirmative, but the High Court took a different view, noting that the language used in the provision would be strained to interpret it as including conduct which obstructed or rendered useless property without in any way altering the physical integrity of the property. Inoperability may be the product of damage done, but it does not of itself constitute damage to the property. Nothing in the authorities, the Court held, justified the interpretation of the expression destroys or damages to extend to contact which did not in any respect alter the physical integrity of the thing said to be damaged.

33. Their Honours has referred to Hammond v R (2013) 85 NSWLR 303. The case concerned a person charged having spat mucus and spit onto a seat. The Court of Criminal Appeal determined that matter and held that the facts that were put before the Court by way of a stated case, were not sufficient to establish the proposition that there had been damage caused to the property such as to alter the physical integrity of the property. The consideration of the question included questions that were not answered and information that was not presented to the Court, such as the area that was affected, and the size of the structure upon which the substance had been projected, amongst other things.

34. In Director of Public Prosecutions New South Wales v Lucas [2014]NSWSC 1441, it was held that an act of deflating a tyre on the complainant’s car, was capable of supporting a conclusion that there had been an interference with the functionality of the tyre and the car itself by necessitating that the complainant take it to a service station to pump air into the tyre before normal function was restored, and thus constituted damage under s 195(a) Crimes Act 1900.

35. The circumstances of this offence include that the appellant urinated in the dock. The need that arose there upon was to have the dock cleaned and no doubt disinfected, both in the interest of the health and safety of the police officers who were employed in the police station, and any other hapless member of the community who might have been arrested and brought into custody and required to occupy that part of the police station. In my opinion, that section applies to such conduct. I do not accept the submission that has been made upon that point.

36. In regard to the intimidation allegation, I have had regard to s 60(1) Crimes Act 1900. The officer intimidated was a police officer, and his evidence was unequivocal that he was frightened by the threats made by the appellant, as I described when reading the statement provided by constable Buckman. There was some discussion before the luncheon adjournment as to whether or not that was to be heard on the recording. Over the luncheon adjournment I confirmed that it could be heard, and upon resumption, the recording was played.

37. The recording begins with the sequence captured in the police vehicle, continuing through to when the appellant was taken from the vehicle in handcuffs. Although it is not easy to hear the words, upon careful listening to what fell after he was removed from the vehicle in handcuffs and was being moved away from the vehicle, he is heard to utter those words. In addition, proximate to that point, he said to the constable, “I will bite you.” This is a matter that impacts upon the question of credit.

38. Although, the appellant did not give evidence, there is a recording of him as he was yelling abuse and profanity and making the threats to the police officer, demonstrating significant aggression. I have no doubt the police officers were acting sensibly in applying handcuffs to him at that point and restraining him. My observation of the recording is that the handcuffs were not placed on his wrists in such a fashion as to be too tight. Indeed, at the police station, because of his persistent complaint, another set of handcuffs were placed upon his wrists that were clearly not tight before the others were removed.

39. At the police station in the back of the vehicle, he was apparently unconscious. As he was removed from the pod on the back of the police vehicle, he had to be helped to a place on the floor where he laid down. He sat up for a period of time. He made a noise consistent with someone dry retching, consistently with him trying to make himself sick, but not responding to, what were in my view, reasonable and gentle efforts by the police to have him respond to them. He was laid in the recovery position. Again, presenting as someone who was not conscious.

40. The police officers called for an ambulance to come as the sequence was unfolding, and then at some point, he woke, quite suddenly, and asked questions about what was being done to him. It was shortly after that fresh handcuffs were applied and the others removed. Before that occurred, he was screaming loudly and suggested that he was in extreme pain. I find it extraordinary that he would be in such discomfort that he would react in such a way at that point, after he was representing himself to be unconscious.

41. It is odd that he was not in any distress from the point when he became conscious until shortly after that point, when he decided to become more voluble. It appeared to me that he was feigning the whole thing.

42. I finally should turn to the question that was raised in the submissions on his behalf, regarding whether the police were justified in stopping him. I was invited to the Law Enforcement Powers and Responsibilities Act 2002, s 99, which provides for the powers of arrest.

(1) A police officer may without a warrant, arrest a person if;

(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and

(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons.

(i) to stop the person repeating or committing another offence,

(ii) to stop the person fleeing from a police officer or from the location of the offence,

(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or the police officer subject on reasonable grounds that the identity information that was provided is false,

(iv) to ensure that the person appears before a Court in relation to the offence,

(v) to obtain property in the possession of the person that is connected with the offence,

(vi) to preserve evidence of the offence or prevent the fabrication of evidence,

(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,

(viii) to protect the safety and the welfare of any person, (including the person arrested},

(xi) because of the nature and seriousness of the offence.

Conclusions

43. I am satisfied upon the information provided and the evidence presented to the magistrate that there were reasonable grounds for the police to suspect that the appellant had committed the traffic offences of disobeying the stop sign and driving in excess of the speed limit, between the point when they first saw the vehicle and when ultimately they came to intercept it. I am also satisfied that those circumstances gave a reasonable basis to be suspicious that the vehicle was fleeing for some reason, perhaps because it was a stolen vehicle. I am satisfied that the police officer was justified in affecting the arrest, to stop the appellant committing further offences as was demonstrated in his response to the police when he was confronted.

44. I do not believe I could find that he was demonstrating any intention to flee, but his presentation was such that there was justification in coming to the view that he might be willing to offer violence to these police officers. For that reason, I am satisfied there was a need to protect the safety and welfare of both the police officers and the appellant in the circumstances.

45. The offences were established.

46. There was no justification for the appellant to have behaved as he did in the face of the police officers exercising their powers, which I believe they were doing appropriately in the circumstances.

47. Accordingly, the appeals from the convictions in each case are dismissed and the findings of guilt confirmed. I shall leave the documents on file for whatever need the parties might have for them. I will also include the written submissions provided by the Crown and the appellant.

48. The appellant seeks leave to withdraw the appeals from sentence. Leave is granted. Confirm the convictions in each case and the orders imposed by the magistrate.

49. In each case the CCO will commence from today. The appellant is to report to St Leonards Community Corrections office within 7 days from today.

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Decision last updated: 06 June 2023