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District Court 14 December 2022

Markovic v R (No. 3)

[2022] NSWDC 675

Public order & justice offences

Citation: Markovic v R (No. 3) [2022] NSWDC 675
Court: District Court of New South Wales
Date: 14 December 2022
Judge(s): Bennett SC DCJ

Background

The appellant had brought multiple proceedings in the District Court challenging decisions made in the Local Court across several files. The matters included an application for leave to appeal a conviction (following a guilty plea) and two severity-of-sentence appeals. Earlier related proceedings had already been disposed of by the same judge in two prior judgments.

Throughout the District Court proceedings, the appellant had a history of non-attendance, non-compliance with court orders, and difficulties with representation. On 18 November 2022, his counsel withdrew after receiving no further instructions, and the appellant directed verbal abuse toward a court officer in the presence of other counsel.

By the final hearing date of 14 December 2022, the appellant had not appeared in person, had not contacted the Court by audio-visual link or telephone despite requests from the Registry, and had made no contact by 11.00am. The judge proceeded to deliver a final determination.

  • Whether the remaining appeals and application for leave to appeal should be dismissed for want of prosecution given the appellant's continued non-attendance.
  • Whether recusal of the presiding judge was warranted (an application apparently raised by the appellant in a document he sought to tender on 18 November 2022).
  • Whether jurisdiction existed to hear an appeal where a guilty plea had been entered in the Local Court without a prior unsuccessful application under section 4 of the Crimes (Appeal and Review) Act 2001.
  • Whether the magistrate's orders should be confirmed upon dismissal of the appeals.

Decision

His Honour dismissed all remaining matters for want of prosecution. The appellant had been expressly warned at the previous mention that the matters would be dismissed if he failed to appear in person or by representation, and that warning had been communicated to him in writing. By the morning of 14 December 2022, he had made no contact whatsoever with the Court, and his Honour concluded that the resources of the Court had been sufficiently consumed by the history of the proceedings.

The recusal application was rejected. His Honour found no basis for disqualification, noting that the conduct underpinning the application consisted largely of the appellant's own behaviour, including his verbal abuse of court staff and his attempts to place unilateral documents before the Court without affording the Crown the opportunity to respond.

On the earlier jurisdictional issues resolved in Markovic v R (No. 1) and (No. 2), the Court had already found that one appeal was incompetent (having been previously withdrawn and confirmed by an earlier judge) and another lacked the necessary jurisdictional foundation under the Crimes (Appeal and Review) Act 2001 because no annulment application had first been made.

Upon dismissing the remaining matters, his Honour confirmed the orders of the magistrate in each case and gave directions for the Registry to notify the appellant of his rights under section 22 of the Act within 12 months.

Orders Made

  • All remaining matters (files 2020/00121158, 2020/00117336, and 2020/00236206) dismissed for want of prosecution.
  • Magistrate's orders confirmed in each matter.
  • Community Corrections Order of two years: 14 December 2022 to 13 December 2024.
  • Fine of $2,000 confirmed.
  • Licence disqualification of 12 months: 14 December 2022 to 13 December 2023.
  • Fine of $400 for refusing or failing to provide an oral fluid sample confirmed.
  • Fine of $500 for refusing or failing to provide an oral fluid test confirmed.
  • Fine of $1,100 and six-month disqualification (14 December 2022 to 13 June 2023) for driving with illicit drug present in blood confirmed.
  • Fine of $300 and six-month disqualification (14 December 2022 to 13 June 2023) for driving while suspended confirmed.
  • Registry directed to notify the appellant of the decision and of rights under section 22 of the Crimes (Appeal and Review) Act 2001.

Key Takeaways

  • The District Court confirmed that persistent non-attendance, combined with prior express warnings that proceedings would be dismissed, can justify dismissal for want of prosecution under the Crimes (Appeal and Review) Act 2001.
  • A recusal application will not succeed where the conduct forming the basis of the application is substantially the applicant's own behaviour during proceedings, rather than any conduct revealing actual or apprehended bias on the part of the judge.
  • Under the Crimes (Appeal and Review) Act 2001, an appeal following a conviction in absence requires a prior unsuccessful annulment application under section 4 before the District Court has jurisdiction to hear the matter on leave under section 12.
  • In dismissing appeals for want of prosecution, the District Court confirmed the magistrate's original orders, giving practical effect to the Local Court penalties including licence disqualifications, fines, and the community corrections order from the date of the District Court's final judgment.
  • Section 21 of the Crimes (Appeal and Review) Act 2001 obliges the Registry to notify an unsuccessful appellant of the decision and of the avenue for further review under section 22 within 12 months.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 12, 21, 22

Cases
- Markovic v R (No. 1) [2022] NSWDC 353
- Markovic v R (No. 2) [2022] NSWDC 354
- Parker v The Director of Public Prosecutions (1992) 28 NSWLR 282