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

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.
Sequence one, contrary to s 60(1) Crimes Act 1900 of intimidating a police officer in execution of duty.
Sequence four, contrary to s 68 (1) Road Rules 2014, not stopping at or before a stop line or stop sign.
Sequence Five, contrary to s 195 (1)(a) Crimes Act 1900 of damaging property.

Factual Matters

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Markovic v The Queen (No. 4)

Details

AGLC: Markovic v The Queen (No. 4) [2022] NSWDC 742
Case: [2022] NSWDC 742
Decision Date: 11 August 2022

CaseChat Overview and Summary

The appellant, Markovic, sought an appeal against their conviction and sentence in the District Court of Australia. The appellant was found guilty of multiple charges, including assault and theft. The appeal was brought by rehearing, seeking a fresh determination of the case. The central legal issues for the court to decide were whether the appeal was correctly brought by rehearing and whether the rehearing should be conducted de novo, meaning anew. The court examined the procedural correctness of the appeal and the appropriate scope of the rehearing.

The court held that the appeal was correctly brought by rehearing and dismissed the appeal in each case. It was determined that the rehearing was not to be conducted de novo, but rather within the constraints of the original proceedings. The findings of guilt were confirmed by the court, rejecting the appellant's contentions. The appellant also sought leave to withdraw the appeals from the sentences imposed by the magistrate, which was granted. The court ultimately confirmed the convictions and the orders of the magistrate. The community correction orders were directed to commence from the date of the court's decision.

Orders

Orders of the court

(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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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