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Court of Criminal Appeal 12 October 2026

Markovich v R

[2026] NSWCCA 161

Public order & justice offences
CRIME APPEALS INTERLOCUTORY APPEAL

Citation: Markovich v R [2026] NSWCCA 161
Court: Court of Criminal Appeal
Date: 12 October 2026
Judge(s): Mitchelmore JA, Dhanji J, Emmett J (joint judgment of Emmett J, Mitchelmore JA and Dhanji J agreeing)

Background

The applicant was convicted in the District Court of two offences: perverting the course of justice under section 319 of the Crimes Act 1900 (NSW) (count 1) and making an unwarranted demand with menaces under section 249K(1)(a) (count 2). Count 1 arose from events on 16 March 2023, when the applicant visited a Mr Prior, who was a party to three sets of proceedings then reserved before the Full Court of the Federal Court. The Crown alleged that the applicant offered Mr Prior large sums of money to end the litigation, threatened to have him killed if he refused, and warned him against contacting police or his lawyer.

The Federal Court proceedings concerned patent infringement, trademark registration disputes, and related cross-claims between parties who all had significant connections to New South Wales. The jury returned a majority verdict of guilty on count 1 on 1 April 2025.

Before sentencing, the question arose whether a State offence had been properly charged and proved, given the existence of a federal equivalent offence under section 43 of the Crimes Act 1914 (Cth). The trial judge adjourned sentencing, and the applicant sought leave to appeal to the Court of Criminal Appeal on a discrete question of statutory construction.

Legal Issues

  • Whether section 319 of the Crimes Act 1900 (NSW) can be engaged where the conduct was intended to pervert the course of justice in Federal Court proceedings, rather than proceedings "in and of" New South Wales.
  • Whether the expression "course of justice" in sections 312 and 319 of the Crimes Act must be read, by operation of section 12(1)(b) of the Interpretation Act 1987 (NSW), as confined to justice administered in or for the polity of New South Wales.
  • Whether the territorial nexus provisions in Part 1A of the Crimes Act displace any further geographic restriction on the expression "course of justice."

Decision

Leave to appeal: The Court granted leave to appeal before sentence, accepting that the discrete question of law was of wider significance and that the interests of justice warranted it. The Court emphasised this should not be taken as encouragement for other accused to appeal before sentencing (at [4], [22]).

Ground 1 (sections 1(a) and 1(b) together): Whether "course of justice" is confined to New South Wales proceedings

The Court rejected the applicant's argument that the "course of justice" in sections 312 and 319 must be read down to proceedings that are "in and of" or "in and for" New South Wales. Emmett J held that applying section 12(1)(b) of the Interpretation Act to the concept of "course of justice" in this way would produce incoherence, for several interconnected reasons (at [55]).

First, Commonwealth and State legislation together form a single, composite body of law in force in New South Wales (at [81]). Confining "the administration of law" in section 312 to State legislation alone would be incoherent given that rights and liabilities arising under State law are frequently enforced in federal courts, and federal jurisdiction can be attracted at any stage of proceedings (at [81]-[82]).

Second, the statutory definition of "judicial tribunal" in Part 7 expressly extends to arbitral panels whose authority derives from the parties' consent. This plainly demonstrates that Part 7 does not require an "essential institutional relationship" between the relevant tribunal and the polity of New South Wales, and makes a purely territorial reading of "judicial tribunal" untenable (at [93]-[94]).

Third, confining section 319 to contemplated proceedings "in and of" New South Wales would create significant practical and forensic difficulties. It will often be unknown before (or even well after) proceedings commence whether they will attract federal or State jurisdiction, or whether they might be transferred between courts. The central focus of section 319 is the accused's intention to pervert the course of justice, and most accused could not be expected to have adverted to whether the relevant proceeding had a particular State nexus (at [82], [106]-[111]).

Fourth, Part 7 abolished the common law offence of perverting the course of justice. The common law offence plainly extended to acts intended to pervert the course of justice in federal courts. Accepting the applicant's construction would mean Parliament replaced a broader common law protection with a narrower statutory one, an outcome inconsistent with the stated legislative purpose of consolidating and enlarging public justice offences (at [101]-[103]).

The Court confirmed that section 319 still requires a geographical nexus of the kind set out in Part 1A of the Crimes Act. Parliament, by enacting Part 1A, has expressly determined the required nexus with New South Wales and displaced any further implied territorial restriction (at [41]-[42], [98]).

On R v Lowe: The Court distinguished its earlier decision in R v Lowe [2003] NSWCCA 150, which quashed a conviction under section 322(a) where the threatened witness was involved in Victorian committal proceedings. That case concerned a different provision. In Lowe, Handley JA had expressly noted that section 319 "may have been available although the course of justice was in Victoria," and the Court in the present case noted Lowe did not require a different outcome (at [115]-[119]).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • An offence of perverting the course of justice under section 319 of the Crimes Act 1900 (NSW) can be committed by conduct intended to pervert the course of justice in Federal Court proceedings, even where no State legislation is being applied or enforced in those proceedings (at [3]).
  • The "course of justice" in sections 312 and 319 is not confined to proceedings "in and of" New South Wales. Commonwealth and State legislation form a single, composite body of law, and rights arising under State law are frequently litigated in federal courts. Confining the offence to proceedings in State jurisdiction would produce incoherence (at [55], [81]-[82]).
  • Under section 319, the central element is the accused's intention to pervert the course of justice; proof that the course of justice was actually perverted is not required, nor is it necessary under the statute to prove the impugned conduct had a tendency in fact to pervert the course of justice (at [24]).
  • Part 7's definition of "judicial tribunal" extending to arbitral panels whose authority derives from parties' consent confirms that Part 7 was not intended to be confined to tribunals with an institutional relationship to the New South Wales polity (at [93]-[94]).
  • Section 319 does require a geographical nexus, but that nexus is provided by Part 1A of the Crimes Act. Parliament's enactment of Part 1A displaced any further implied territorial restriction, and no additional requirement that the "course of justice" itself be "in and of" New South Wales is to be read into the provision (at [41]-[42], [98]).

Legislation and Cases Referenced

Legislation
- Commercial Arbitration Act 1984 (NSW)
- Commercial Arbitration Act 2010 (NSW)
- Constitution Act 1902 (NSW) , s 5
- Costs in Criminal Cases Act 1967 (NSW)
- Crime Commission Act 2012 (NSW) , s 35A
- Crimes Act 1900 (NSW), Pts 1A, 7, s 249K(1)(a)
- Crimes Act 1914 (Cth) , s 43
- International Arbitration Act 1974 (Cth)
- Interpretation Act 1987 (NSW) , ss 12(1)(a), 12(1)(b)
- Judiciary Act 1903 (Cth) , ss 39(2), 78B

Cases
- Agtrack (NT) v Hatfield (2005) 223 CLR 251; [2005] HCA 38
- Anderson v Eric Anderson Radio & TV (1965) 114 CLR 20; [1965] HCA 61
- Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087; [1907] HCA 76
- BHP Group v Impiombato (2022) 276 CLR 611; [2022] HCA 33
- Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168; [1953] HCA 62
- D151 v New South Wales Crime Commission (2017) 94 NSWLR 738; [2017] NSWCA 43
- DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242
- Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12
- Grannall v C Geo Kellaway and Sons Pty Ltd (1955) 93 CLR 36; [1955] HCA 5
- Insight Vacations v Young (2011) 243 CLR 149; [2011] HCA 16
- Ishac v R [2011] NSWCCA 107; (2011) 211 A Crim R 102
- Johnston v R (2019) 99 NSWLR 585; [2019] NSWCCA 108
- Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24
- Law Society of New South Wales v Glenorcy Pty Ltd (2006) 67 NSWLR 169; [2006] NSWCA 250
- O’Connor v Healey (1967) 69 SR (NSW) 111
- Pantazis v R (2012) 38 VR 446; [2012] VSCA 160
- R v Beckett (2015) 256 CLR 305; [2015] HCA 38
- R v Einfeld (2008) 71 NSWLR 31; [2008] NSWCCA 215
- R v Lowe (2003) 57 NSWLR 102; [2003] NSWCCA 150
- R v MAJW [2007] NSWCCA 145; (2007) 171 A Crim R 407
- R v Murphy (1985) 158 CLR 596; [1985] HCA 50
- R v Porter (2004) 61 NSWLR 384; [2004] NSWCCA 353
- R v Rogerson (1992) 174 CLR 268; [1992] HCA 25
- R v Vreones [1891] 1 QB 360
- Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 43
- Sayer-Jones v R (2024) 114 NSWLR 134; [2024] NSWCCA 54
- Seaegg v The King (1932) 48 CLR 251; [1932] HCA 47
- Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47
- Thompson v The Queen (1989) 169 CLR 1; [1989] HCA 30