Citation: Markovic v Director of Public Prosecutions (NSW) [2024] NSWCCA 251
Court: Court of Criminal Appeal
Date: 20 December 2024
Judge(s): Davies J, Yehia J, R A Hulme AJ
Background
The applicant faced a District Court trial, listed for February 2025, on charges of perverting the course of justice and blackmail. Both offences are serious indictable offences carrying maximum penalties of 14 and 10 years' imprisonment respectively. Police and the Local Court had refused bail, but the Supreme Court granted it in December 2023 on strict conditions, including a form of home detention, twice-daily police reporting, and a requirement to reside more than 50 kilometres from where the alleged offences occurred.
After bail was granted, two further court appearances resulted in minor variations to the conditions. In September 2024, following an alleged breach, the applicant appeared before Parramatta Local Court, which continued and again slightly varied the existing conditions. The applicant then filed an application in the Court of Criminal Appeal (CCA) in November 2024, seeking to have all bail conditions revoked.
The Crown opposed the application on two grounds: first, that the CCA lacked jurisdiction to hear it, and second, on the merits.
Legal Issues
- Whether the CCA had jurisdiction under s 67(1)(e) of the Bail Act 2013 (NSW) to hear the bail variation application, given subsequent Local Court orders had been made after the original Supreme Court bail grant.
- Whether the Local Court's September 2024 order constituted a "bail decision" within the meaning of s 8 of the Bail Act 2013, thereby superseding the Supreme Court's original decision.
- Whether, on the merits, there was a case for removing any or all of the existing bail conditions.
Decision
Jurisdiction: The CCA held that it did have jurisdiction under s 67(1)(e) of the Bail Act 2013, which confers jurisdiction where a bail decision has been made by the Supreme Court. The question turned on whether the Local Court's September 2024 order had made a new "bail decision" that displaced the Supreme Court's original grant. The CCA found it had not.
A "bail decision" is defined in s 8 of the Act as a decision to release without bail, dispense with bail, grant bail, or refuse bail. The Local Court's orders in September 2024 merely continued and varied the existing conditions of the Supreme Court bail; they did not constitute an independent grant or refusal of bail. Moreover, under ss 68 and 69 of the Act, the Local Court lacked jurisdiction to make a substantive bail decision in respect of these charges, because the proceedings were pending in the District Court and the Supreme Court had already made a bail decision. The original Supreme Court bail grant therefore remained operative, and the CCA's jurisdiction was engaged.
Merits: The CCA assessed the application against the bail concerns in s 17 of the Act, the factors relevant to those concerns under s 18, and the question of unacceptable risks under s 19. The applicant, who appeared without legal representation, was unable to mount a substantive forensic argument for removing the conditions. The court noted that the prosecution case, as assessed by Hamill J, remained one of substance and was described as "reasonably very strong." The nature of the alleged offences, including threats of serious violence to a participant in judicial proceedings, combined with the applicant's criminal history (including prior bail breaches and recent offences involving intimidation and a knife), supported the existing conditions.
The CCA found no basis to remove any of the existing bail conditions. However, it accepted a Crown proposal to extend the permitted daily reporting windows, which would ease the burden of travelling to the applicant's place of business on certain days. All other aspects of the variation application were dismissed.
Orders Made
- The bail acknowledgement entered on 21 December 2023 is varied by amending the morning reporting window from 7.00am–10.00am to 5.00am–10.00am, and the afternoon reporting window from 3.00pm–5.00pm to 3.00pm–9.00pm.
- The bail variation application is otherwise dismissed.
Key Takeaways
- Under s 67(1)(e) of the Bail Act 2013, the CCA retains jurisdiction to hear a bail application where the operative bail decision was made by the Supreme Court, provided that decision has not been displaced by a subsequent "bail decision" as defined in s 8 of the Act.
- A Local Court order that merely continues and varies conditions attached to an existing Supreme Court bail grant does not constitute a new "bail decision" within the meaning of s 8, and therefore does not supersede the Supreme Court's original decision for jurisdictional purposes.
- Sections 68 and 69 of the Bail Act 2013 restrict the Local Court from making substantive bail decisions where proceedings are pending in a higher court and a Supreme Court bail decision is already in place, reinforcing the primacy of the original Supreme Court grant.
- In refusing to remove the conditions, the court reaffirmed the importance of the bail concerns in s 17, particularly where allegations involve threats to participants in judicial proceedings and the accused has a history of breaching bail and court orders.
- Appearing unrepresented on a complex bail variation application placed the applicant at a significant disadvantage; the court noted his inability to address the legal merits, though it still assessed the application on its substantive terms.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 4(1), 8, 16A, 17, 18, 19, 20A, 50, 51, 61, 67(1), 68, 69, 77, 78
- Crimes Act 1900 (NSW), ss 319 (perverting the course of justice), 249K(1)(a) (blackmail)
Cases: No cases were cited in the portions of the judgment provided.