Markovic v R

Markovic v R - [2022] NSWDC 675 - NSWDC 2022 case summary — Zoe

[4]

THE HISTORY OF THE DISTRICT COURT PROCEEDINGS

The applicant first came before me on 15 June 2022. This was in respect of file 2020/00295833 before the Court as a conviction appeal. The applicant was unrepresented and advised that he was not ready to proceed. He sought an adjournment so that he might arrange counsel. There was no compliance with orders previously made by her Honour Judge Yehia SC for the provision of material. I re-published those and informed the applicant that he must comply. The proceedings were adjourned to 21 June 2022 for hearing. The proceedings returned on 21 June 2022 with the addition of files 2020/337582 and 2021/0071644. He did not appear but was represented by counsel. His absence was explained in an email from the applicant to the Court Registry advising that his mother had COVID and he had flu-like symptoms. My associate sent an email with an audio video link but the applicant would not make contact because of technology issues where he was. His counsel, Mr Sasha Milanovic, was not yet instructed in the first of the matters brought before me, file number 2020/00295833. The parties were encouraged to consult upon further documents required for the appeals, including transcript, and provide an estimate for the hearing. The parties gave an estimate of one day.
To accommodate the solicitor appearing for the office of The Director of Public Prosecutions the matter was adjourned for mention on 12 July 2022. I directed the applicant to appear in person. 11 August 2022 was allocated for the hearing. I was unwell on 12 July 2022 and the day before caused the parties to be notified that I was unavailable. In the email exchange with my associate on 11 July 2022, in the absence of the solicitor from the office of the Director of Public Prosecutions then on leave, his managing lawyer advised that the material upon which the Crown relied had been served upon the applicant's counsel and the estimate of one day was confirmed. The applicant's counsel acknowledged receipt of the material and confirmed that all these matters then before me could be heard together.
On 10 August 2022 the associate to his Honour Judge Gartlemann SC notified my associate of other proceedings involving the applicant in the list court in which he was presiding. The applicant's counsel suggested to his Honour that these further matters be allocated to my Court for determination concurrently with the hearing of the matters already before me. I accepted the subsequent transfer of these additional matters; the additional file references were: 1. 2020/00121158; 2. 2020/00117336; 3. 2020/00236206.
On 11 August 2022 the hearing commenced after some of the matters were dealt with but others remained for further consideration.
Proceedings before the Court in file 2020/00337582 were determined, I delivered judgement. Those proceedings began as an appeal from the Local Court in respect of which an application for leave to withdraw the appeal was granted by Judge Robinson on 12 October 2021 and the magistrate's orders confirmed. The application to appeal from that decision was incompetent. There was no basis upon which this Court could allow resurrection of the appeal and the application was dismissed: Markovic v R (No. 1) [2022] NSWDC 353.
The proceedings before the Court in file 2021/00071644 were determined. Mr Markovic lodged a notice of appeal on 7 October 2021 from the Local Court decision on 16 September 2021 when he was convicted in his absence of an offence of driving with an illicit drug in his blood. He asserted in the notice that he was not guilty and that the sentence was too severe. According to an endorsement on the document he was advised to lodge an annulment application but refused to do so insisting upon lodgement of a notice of appeal. The appeal required the Court's leave: s 12 Crimes (Appeal and Review) Act 2001 which could be sought from the outcome in the Local Court only if there was beforehand an unsuccessful application under s 4 of the Act. There was no jurisdiction to hear the appeal and it was dismissed. Markovic v R (No. 2) [2022] NSWDC 354. The proceedings were remitted to the Local Court, listed on 18 August 2022.
The proceedings before the Court in file 2020/002905833 were determined. These were appeals from conviction and sentence. In each case the appeals from convictions were dismissed whereupon leave was sought to withdraw the appeals from sentence. The penalties imposed by the magistrate were confirmed.
Proceedings before the Court in files 2020/00121158, 2020/00117336 and 2020/00236206 commenced but were adjourned part heard. The applicant appeals from the conviction in the proceedings in the file 2020/00236206 and from the severity of the sentences in the proceedings in files 2020/00121158 and 2020/00117336. The Crown tendered its bundle marked Exhibit A and the proceedings were adjourned to 26 October 2022. The appeal from conviction requires leave since the outcome in the Local Court in this and the other two matters followed pleas of guilty. The applicant's counsel required additional time to file affidavits and a timetable was set for the service on the Crown of the material intended to be advanced, on or before 9 September 2022 with the Crown to respond on or before 30 September 2022, and any reply thereto to be provided on or before 14 October 2022.
On 26 October 2022 the matter did not proceed when the applicant did not appear. He emailed the Court Registry that day asserting that he was unwell and asked for the matter to be adjourned to the following week or a date convenient to the Court. The proceedings were adjourned to 18 November 2022. His counsel appeared, there was no information beyond what the email represented, and counsel could not assist with more precise details. I directed that the applicant was to attend in person on the next occasion, the Registry to send notices to the two addresses that the applicant had used up to this time and to the email address. I directed that the notice should advise that the matter would proceed on the next occasion and that should the applicant not appear in person or by representation the matters would be dismissed for want of prosecution. I advised counsel that should the application to reverse the plea of guilty entered in the Local Court fail the applicant would be warned in accordance with Parker v The Director of Public Prosecutions [1992] 28 NSWLR 282, upon my assessment of the evidence relevant to that matter currently before the Court, and the penalty imposed in the Local Court, to ensure the applicant was afforded procedural fairness.
On 18 November 2022 I was presiding in two trials, one in which the jury was on verdict and the other in progress. I could not reach the matter until the afternoon but in the luncheon adjournment the applicant sought to have a document presented to me by way of the court officer. A copy of the document was filed in the Registry and delivered to my chambers but I refused to examine it until it was provided to the Crown for the opportunity to consider whether to oppose the tender. Pursuant to my instructions the court officer told the applicant this, whereupon he offered verbal abuse which was reported to me. This occurred in the presence of defence counsel in the trial as she was preparing to leave the courtroom. When I resumed after the luncheon adjournment, I called the matter forward to announce that I would return to it at 3 o'clock. Mr Milanovic announced that he must withdraw for he had no instructions to appear further. I asked him to delay his departure after I gave leave for his withdrawal because of my intention to call evidence from the court officer and defence counsel in the trial. It appeared on the face of matters that this might have provided evidence of contempt of the Court.
When the matter resumed the evidence was given but I would not allow the applicant to cross-examine until he had the opportunity to have advice with the benefit of the transcript of the evidence describing his behaviour. This notwithstanding he addressed from the floor of the Court admitting at least some of the abuse to the court officer. The applicant also proffered the document he wanted me to read. I confirmed that I would not do so unless the Crown consented to that course. I provided the Crown with a copy. The Crown offered no objection but submitted that the document was not relevant to the proceedings. I read the document and adjourned the hearing until 23 November 2022 to allow me to consider the applicant's representations more carefully. The document is relevant to the application for my recusal from the proceedings.
On 23 November 2022 the applicant appeared unrepresented. The document he provided I marked Exhibit 1, not as evidence as to the facts expressed in the document, but as evidence of a production to the Court of the document in which the applicant makes a series of complaints about my role in the proceedings. These are not entirely accurate. The cover sheet on the document is addressed to the Judicial Commission of New South Wales but I do not know whether it was transmitted to that body. The essence of the representations is that the applicant would have me disqualified from hearing these proceedings further.
I informed the applicant and the Crown that I had requested the transcript of all proceedings in this and the related matters in which I presided. I referred earlier to my judgements on Caselaw disposing of two of the proceedings. I need not return to them but the third will require a review of my judgement on the transcript of proceedings which led to it. I informed the parties that I would review the transcripts of the proceedings in which it is alleged that I misconducted myself and compare the record with the applicant's assertions. Any view I come to adverse to the applicant would be announced before my final decision upon this question and copies of the transcripts made available to the parties for their consideration and the preparation of any further submissions.
I announced further that if I decided that it was not appropriate to recuse myself from the proceedings, I would then be required to consider the application for leave to appeal, the determination of which would require me to consider evidence relevant to that question. The applicant, when asked, said that he would "absolutely not" waive his client/legal privilege attaching to the Local Court proceedings from which the application for leave is brought. He expressed this view in terms on other occasions leading to this day notwithstanding the importance of evidence that might be available from the lawyer or lawyers who represented him in those proceedings and notwithstanding that I informed him that he had the onus of persuading the Court to grant the relief he sought. I informed him that in the absence of further evidence I would therefore determine the issue upon the material otherwise tendered but noted that he had offered no evidence at all save for an affidavit in support of the notice of motion seeking this relief.
I adjourned to 14 December 2022 today for the continuation of the hearing with a two-and-a-half-hour estimate. This morning at 9.09am my associate received an email from the Registry. After salutation the email referred to the earlier email which the Registry had received. This was from Duro Markovic care of DuroMarkovic@AOL.com. It was sent today at 7.19am. It is in the following terms: "Good morning I have a matter in Court this morning. I am sorry to say I will not be abel (sic) to attend as I have come down with some virus. Duro Markovic".
Upon my direction the Registry replied at 9.38am today: "Dear Mr Markovic, his Honour Judge Bennett SC asks that you attend Court via AVL, please use this link from a computer or smart device": And then particulars of the link were provided.
The email continued: "Should you be unable to connect using the link then you may dial in on": A telephone number and a meeting ID was then provided and it continued: "If you do not attend at 10.00am this morning via AVL or telephone then the matter will be dismissed for want of prosecution. Please do not hesitate to contact this office via return email if you require further assistance".
I came onto the Court at 10.15am. Mr Makin appeared on behalf of the office of The Director of Public Prosecutions. There was no appearance in person by the applicant/appellant. There was no communication either by way of the AVL link or by telephone by the applicant/appellant.

[5]

THE APPLICATION FOR RECUSAL

The first page of this document is styled Complaint Against a Judicial Officer. There are particulars provided by the applicant/appellant including an address, a phone number, and an email address consistent with what I specified earlier. The complaint is couched in the following terms. "Please see attached statement." There appears to be something of an initial and then the words attachment A.
Of note before I embark upon this document the cover page to which I have referred. First of all I note it was written in hand, the balance of it is typewritten and of course the emails are typewritten. On the occasion when the applicant/appellant first came before my Court he represented from the body of the Court that he could not read or write, which I understood to be the representation that he could not read or write English; that clearly is not true. It is apparent that he has limited understanding of English grammar but not so profound as to render his communications incomprehensible. He is able to make himself clear and has sufficient proficiency in English and capacity to write which puts to the lie what he represented to the Court.
In attachment A as he described it he addressed the document "To Whom It May Concern". He wrote that he wishes to make a complaint about Judge J Bennett from The Downing Centre District Court. He wrote that in order to understand his complaints he first needs to raise other court matters which are currently before the Courts which will support what he says of me as biased and can no longer be the Judge in his further matters that I have before me.
He then continues in the next paragraph: "Due to so much police corruption and manipulation by Police Prosecutors misleading the Courts and the Magistrate entertains fraudulent documents being handed up as part of the evidence which was used to convicted me and being sent to gaol and arrested and bail refused on many different charges and different times and continues to this day which I have filed many complaint with a number of different Departments. The complaint I wish to bring to your attention is to do with a matter which I was charged by police and later found guilty on by Manly Local Court for intimidating a police officer who assaulted me while he was putting the handcuffs on me. Which the police officer said that I said I will poke his eyes out. And for this charge I was fined and placed on 12 mth court order and if I breach the order I was to return back before the magistrate to be resented (sic) for breaching the court order. I logged appeal to the District Court which Judge J Bennett had carriage to hear my appeal. The evidence which was relied upon was the police body worn camera which was played in court before Judge Bennett and the DPP and my legal counsel three time the same recording which on all three times played nobody could confirm if it was what was said, Judge Bennett called for a short break to listen to it in his chambers on a different DVD player, in a small room instead of over the courtroom speakers. When we returned back in Court Judge Bennett said that he still could not confirm if this was said after listening to it and went onto say that his assistant listened to the DVD and who is much younger then him and who has much better hearing then he said, after he listened to the DVD he has confirmed that I did say (will poke your eye out). Judge J Bennett then dismissed my appeal and then resented me and said you are to attended (sic) Probation and Parole offices no later than seven days placing me on 18 mth community corrections order and telling me if I don't turn up I was to be returned back before him to be re-sentenced for breaching the order. He dismissed all the other evidence and just went on roasting me and showed absolutely hate towards me and made it his mission to destroy me and any other matters I would have in the District Court. Which he then sent his assistant to get into another Court to get my other matter of another Judge who had carriage over another appeal which was set down for hearing on the request of the DPP to hear my other appeals. The DPP who was used in my appeal was a very very old school Prosecutor who has been around for a long time and who has not done a unlicensed driving matter or intimate (sic) police in well over 25 years, Just on his presence and his respect with the Judge in the case was enough for Judge Bennett to dismiss my appeal".
Dealing with these topics, it is true that there was difficulty that I experienced hearing the words to which the document speaks and there were steps taken to determine whether or not they could be heard with resort to another device. Insofar as the matters came to my Court to be heard concurrently, that was a decision I made in response to notification from Judge Gartlemann's court upon the application made by counsel then appearing for the appellant. It is absolute nonsense that any decision I made with regard to the appeals that were determined was premised upon whatever the qualities or characteristics of the person said to be "a very very old school Prosecutor that has been around for a long time". I don't immediately have before me the words I used upon the orders I made confirming what had happened in the Local Court but it is probable that I informed the appellant of the consequences should he fail to attend Probation and Parole or Community Corrections for the arrangement of supervision. I reject outright the suggestion that I "roasted" or that I showed "absolute hate" or that I made it "my mission to destroy the appellant/applicant".
The document then continues beneath the heading, and I quote, "TO SHOWING HOW JUDGE J BENNETT IS BIASED AND HOW HE HAS TAKEN THINGS PERWONAL AND HOW THREATS WAS DIRECTED AT ME IF I DID NOT DO AS JUDGE BENNETT HAS DIRECTED ME TO DO".
The document continues, "As mentioned, I have other matters from the Local Court which I have appealed to the District Court. All these matters I was charged with back in 2019, 2020 which has been a living hell for me and finally after I went throw (sic) and fighting Police Prosecutors' dirty tricks and Police corruption and magistrate making rulings and orders only to be removed to another Court then saying they never made that order or they don't recall I finally got hearing date and a judge to hearing my appeal. Then while I was before Judge J Bennett he ordered his assistant to go and get my other appeals that I have in the dissect court (sic) to come before me as he will deal with the appeal on request of the DPP. On one of my appeals which we argued before another judge mth (sic) before why I was 1 week late in filing my appeal and after being sworn an affidavit was granted and set down for hear. Judge Bennett then turned around after my sentencing listening to the DPP bring it to his attention other matters I have in the District Court which are from the Local Court, warming (sic) me that he is now taking a five week break and will be travelling overseas and if I don't sign documentation signing my rights away to giving the DPP access to my previous lawyer who was representing me in a driving matter saying YOU MAKE SHORE YOU SIGN GIVING DPP TO SPEAKING WITH YOUR LAWYER IF IT'S NOT. How ever one wishes to interrupting then words (sic) it then it all come back to the same road and the same meaning which is I will hang you if you do sign it or if you don't sign it you will still hung regardless".
My associate helpfully provided me with page 29 of the transcript of 11 August 2022. This page begins with some discussion about the filing and serving of documents upon which the Crown might rely in reply. This is consistent with my intended departure for overseas. I said at line 8 on that page, "And those documents are to be filed and served. I can't give the parties liberty to apply because I won't be here, other than to communicate with my associate. I think that is the safest way, communicate with my associate, and I'll be accessing him from where I am so I can keep an eye on things. There is no bail required in respect of this?"
Mr Milanovic advised "no". I then continued. "Mr Milanovic, thank you for your assistance in the matter, and Mr Crown, and get your client down to level 3 to sign the paperwork. I'll have the orders signed shortly. And make sure he gets up to Community Corrections to get the supervision. If that is not done that will be a breach and we will get to meet again, I'll make sure I am available before I jump on the aeroplane".
Mr Milanovic invited me to enjoy my holiday and I adjourned.
Dealing first with the topic that was offered by the applicant/appellant in an attempt to demonstrate my bias, I refute the applicant/appellant's description of what I said. It is true clearly that I advised I would be out of the country and it is probable that I communicated with Mr Milanovic in terms that the traditional approach taken in such matters where application for leave to appeal is made looking to go behind a plea of guilty is that the lawyers representing the applicant would be made available to have evidence of the advice and guidance that they provided to the applicant/appellant in the Local Court proceedings.
My associate has once again helpfully provided transcript of 18 November 2022 beginning at page 12. Mr Makin referred to the affidavit and notice of motion filed by the applicant in respect of the application for leave to appeal. He noted that there was no waiver of legal privilege that was sought by the Crown. At line 7 I said, "Mr Milanovic said on the last occasion I think - I think it was Mr Milanovic said that the appellant refused to waive client legal privilege for the purposes of the traversal of plea".
I then said to the applicant/appellant. "Okay, what's your position with regard to that, Mr Markovic? Do you still maintain the position that you do not intend to waive your client legal privilege in respect of the lawyers who represented you in those proceedings that you were looking to go behind -"
The appellant said, "Well the last time it was before the Court, your Honour, it was before a - the Judge of the District Court who himself warned the DPP 'Don't you dare contact his lawyer unless I give authorisation' and then he adjourned the matter for me to seek legal advice and then after seeking legal advice it was set down for a hearing date and for some reason you sent your assistant to take that matter to put it before you, then you went on a five week holiday and you said 'make sure that it is signed before I get back".
I then said "I think - " but was interrupted by the appellant who said, "And I took that as a threat, that is how I look at it".
I said, "That's right, you haven't - if that is a true representation of your understand you have a misunderstanding of what occurred and what was said on your behalf and what I said to the Court in your absence - "
The appellant said, "That matter had been dealt with about two months before and a date was set down for hearing for that so I am not sure why we are - "
I then said, "I do not know what matter you are talking about".
He said, "Well okay".
I said, "What matter are you speaking about now, there is only one group of proceedings that are still on foot because the other matters have been dealt with".
He said, "The matter was before another judge in this Court which has been going on for about 12 months".
I alerted him to the concern that the present proceedings followed his plea of guilty in the Local Court. He said at page 13 line 12, "I never pleaded guilty. Stop saying I pleaded guilty when I never did".
I said, "The record reflects that you pleaded guilty. That's what appears to be the case. But in determining whether or not you should be allowed to go behind that plea of guilty, of whatever resulted in the determination by the magistrate, it's traditional and sensible for an applicant in your position to waive the client legal privilege [that] might have attached to the relationship you had with your former lawyers so that evidence can be put on for this Court to be able to decide whether or not to allow you to go behind your plea or pleas of guilty, but you've chosen to refuse to waiver that privilege. Is that still your position?"
He said, "Correct".
I said, "I want you to clearly understand, in the absence of that opportunity for the matter to be properly investigated it makes your position quite difficult because you have to show me that you should be allowed to go behind your plea of guilty and have the matter start afresh".
He said, "I'll show you okay, I've got plenty of documents to show you".
I said, "No, that's the point. The question is this; do you waive the client legal privilege so that your lawyers, your former lawyers, can come and give evidence either for or against you in the application?"
He said he would not be signing the document and that he made that very clear. I said, "Do you consent to your lawyers giving evidence in the application"?
He said, "I won't be signing or consenting to anything, your Honour"
And, "Doesn't matter which way you turn, the answer will be no all the time".
The applicant/appellant either has an inadequate memory of what occurred in the Court when I contrast what he provided in this complaint document and what is on the record of the proceedings or he blatantly misrepresented the facts.
He then continued in his document with a heading The same issue was argued before another judge about my signing. He deals with that in some detail. I do not need to go through all of the content of that document. It reflects his representation that whoever the judge was made it clear that the DPP were not under any circumstances to speak to his former legal representatives.
He continued in this section though that he instructed new counselor (sic) to represent him as he did not understand what was going on. All he understood was that people, "… in very high power have gone out of there (sic) way to doing whatever necessary evil to stop me from speaking myself in Court and to stop me asking the very same questions that I have been asking for the last 4 years, who created this legal document which was used to convict me and to this day I still have not got a (sic) answer to my question but I have been sent to hell and back trying to find the answers and the only good that has come from me trying to seek the answers is to seeing".
He then wrote of people perverting the course of justice, fabricating evidence, having him charged with crimes that never took place and so forth. He wrote about how many days he has lost doing nothing more than attending Court and how often he has been arrested and refused bail. He concluded, "And now that Judge J Bennett has returned back from his five week overseas relaxing holiday has now done the following. (GIVEN A PARKER WARNING). how did he come to this discussion with out the matter or the evidence even before him yet. Therefore I cannot see this judge working in the interests or justice or how he could possibly be unbiased or even listen to any other matters to do with me and I would like this to be investigated".
As I indicated my purpose in referring to the decision in The DPP v Parker ibid was to ensure that the applicant/appellant had procedural fairness. Upon my assessment of the material before me the penalties against his antecedent history and the subjective case that might have been presented on his behalf, which was at that stage not precisely defined, the magistrate's decision might be below what the applicant/appellant ought to have suffered in those proceedings.
I reject outright the allegations that are made in this document that I have demonstrated bias. I assert that I have been assiduous in ensuring that all that was to be said was on the record and available for those who might wish to scrutinise what occurred in the Court. I have not in any way pre-judged any of these matters. I have looked at each of them on their merit. Counsel who represented the applicant/appellant in this Court did not make any submissions or advance any argument consistent with what the applicant has provided in this document.
I do not see any basis upon which I should disqualify myself from further hearing of the matter in the document provided by the appellant. It is not for the applicant/appellant to dictate who will hear and determine matters in a Court in which he is a litigant. If he is unsatisfied with the outcome in the proceedings he has remedies available. If I am thought to be wanting in any respect in these matters there is not only the transcript of the proceedings but a sound recording as well of what occurred in court.
With regard to what I thought might amount to contempt of court when the appellant offered abuse to the court officer who was deployed to assist me on that occasion, I have the benefit of evidence from counsel, Ms Leah Rowan, who described her perception of what occurred, and from the court officer whose name I will not include in this judgement. His evidence and counsel's evidence were sound recorded; a transcript will be available if it becomes necessary. As offensive as his behaviour was, which included, amongst other things, abuse directed towards me from the floor of the Court, I am not minded to take proceedings for contempt, by hearing argument as to whether I should take action immediately or refer the matter to the Supreme Court. I can see nothing to be gained from doing so at this point in the proceedings.

[6]

CONCLUSION

There are three matters: there is the application for leave to appeal, there are the two sentence appeals. I am not minded to allow this matter to continue. The history of these proceedings including in the Local Court revealed a difficult litigant. In the circumstances the resources of this Court have been consumed enough in these proceedings. There has been no contact by the applicant/appellant, either by way of the audio-visual link or telephone in response to the request that he do so transmitted from the Registry this morning. It is now 11.00am. Accordingly all of the matters that remain are dismissed for want of prosecution. Section 21 Crimes (Appeal and Review) Act 2001 requires the Registry notify the applicant/appellant of the decision and that he has rights under s 22 of the Act if he wishes to pursue them within 12 months of today. They are directed to comply with that requirement. I will leave all the material on file for the benefit of those who might have to hear that application in due course.
In each case the orders of the magistrate are confirmed. The disqualification period, and the community corrections order will commence today.
The Community Corrections Order is for two years from 14 December 2022 to expire on 13 December 2024. I note that he was fined $2,000; that shall remain.
The disqualification of 12 months shall commence today on 14 December 2022 until 13 December 2023. I note that there was a stay in respect of all of these orders.
For refusing or failing to provide the oral fluid sample he was fined $400 and for refusing or fail to provide oral fluid test he was fined $500. The conviction and fines are confirmed in each case.
For drive motor vehicle with illicit drug present in blood he received a $1,100 fine and was disqualified for six months, concurrent with the other disqualification. I confirm those orders; that disqualification commence son 14 December 2022, expire on 13 June 2023.
For driving while suspended, he was fined $300, disqualified for six months. This licence disqualification also starts 14 December 2022 to 13 June 2023. The fine is confirmed.

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Cases Cited (2)

Cited By (1)