Markovic v R

The Nature of the Appeals

1. The conduct of appeals to this Court from decisions by magistrates, challenging the convictions suffered in the Local Court, is governed by the Crimes Appeal and Review Act 2001.
2. It is now the law according to authority in the Court of Appeal in New South Wales, that an appellant must show that there has been some legal, factual or discretionary error on the part of the magistrate in coming to their decision in the Local Court, in the absence of which, there is no obligation upon the appellate Court to determine an appeal. I shall go to the commentary in the practice by Johnson & Howie upon s 18. I quote at [4 - s 18.1]: "In the context of an appeal to the District Court against the making of an apprehended personal violence order, it was said in Dyson Butterworth [2015] NSWCA 52, that: a) An appeal under s 18(1) is not an appeal de novo (at [26]). b) The approach to be taken on a s 18 rehearing is an analogous that taken on a civil appeal under s 75(A), Supreme Court Act 1970 - the judge forms his or her judgment of the facts. recognising the advantage of the magistrate who heard and saw the witnesses in the Local Court (At [8], [27]).. c) The powers of the District Court under s 18(1) are exercisable where an appellant demonstrates the order the subject of the appeal is the result of legal, factual or discretionary error, in which case the Court can substitute its own decision based on the facts and law they then stand (at [28])..
3. The direction in s 18 of the conviction appeal under s 11 is to be heard 'by way of a rehearing on the basis of evidence given in the Local Court proceedings' is not to be construed as a direction that the District Court must, in every case, undertake a complete review of the whole of the evidence and form its own view as to the appellant's guilt regardless of issues raised by the appellant.; the extent of the review required in an individual case will depend on the circumstances of the case and the kind of error alleged; Lunney v DPP [2021] NSWCA 186.
4. In McNab v DPP 2021 NSW CA 298. It was held that; 1. An appeal to the District Court under s 18 does require a demonstration of a factual, legal or discretionary error in order to succeed (at [24], [83] - [90]. 2. The fact that the appellant must demonstrate error on appeal does not reverse the onus of proof, in that the prosecution at all material times bares the onus of establishing guilt upon reasonable doubt (at [26] and [91])."
5. I have read the evidence that was put before the magistrate and the reasons that were given by the magistrate for coming to the decision as I was permitted to do in accordance with Charara v R [2006] NSWCCA 244. I found no legal, factual or discretionary error that vitiates the reasoning or the ultimate decisions to which the magistrate came, and none was identified in the conduct of this appeal.
6. This notwithstanding, bearing in mind the appellant was unrepresented in the Local Court, and following upon the valued assistance provided by Mr Milanovic in the conduct of the appeals here today, I have taken the course of looking at the material to decide whether it persuades me beyond reasonable doubt that the guilt of the accused has been established on each of these offences.

Assessment of the Evidence and Principles

1. I am satisfied that each of the offences is made out, including disobeying the traffic sign or stop line, the allegation in sequence four, and the allegation of damaging property, subject of sequence five.
2. These appeals are, as I have noted, pursuant to s 18 Crimes Appeal and Review Act 2001. The section provides that the appeal is to be by way of a rehearing on the basis of the evidence given in the original Local Court proceedings, except as provided by s 19. Nothing has occurred in the conduct of this matter to engage that provision. There has been no application to adduce fresh evidence as is permitted by s 18(2), but only by leave which may be granted if the Court is satisfied that it is in the justice just fresh evidence be given.
3. The onus of proof is upon the Crown beyond reasonable doubt. The accused bears no onus. He chose not to give evidence in the Local Court as was his right. He could remain mute and require the prosecution to prove its case. The analysis required is to consider the evidence in the Crown prosecution case and decide whether each of the elements of the offences have been established, to the criminal standard beyond reasonable doubt. As I say, I have come to the view that they have been proven.
4. It was advanced in respect of sequence five that there is some argument available as to whether or not the conduct amounted to an offence of damaging property, contrary to s 195 (1)(a) Crimes Act 1900. The evidence regarding that is found in para 13 of the statement by one of the police officers tendered in the Local Court. Constable Aiden Murphy. The allegation at para 13 of that statement is in the following terms: "Around midnight, I saw Duro Markovic standing with his feet shoulder width apart facing the left wall of the dock. I exited the custody manager's office as I believed he was about to urinate. While walking to his dock, I said to him 'If you need to go to the toilet, I will take you. Don't piss here.' In the middle of saying this, Duro Markovic began to urinate against the dock wall. After finishing urinating, he sat back down on the seat."
5. The submission made drew upon a decision in the High Court. Grajewski v DPP New South Wales [2019] HCA 8. The case concerned an appellant who bound himself to a ship loader at a coal terminal. The loader could not be safely used until he was removed. The safety of concern was the safety of the appellant. The case turned upon the question whether the act of the accused so attaching himself to the equipment, rendering the loader inoperable for a number of hours, amounted to damage, such as to give rise to a charge contrary to s 195(1) Crimes Act 1900.
6. The Court of Criminal Appeal answered that question in the affirmative, but the High Court took a different view, noting that the language used in the provision would be strained to interpret it as including conduct which obstructed or rendered useless property without in any way altering the physical integrity of the property. Inoperability may be the product of damage done, but it does not of itself constitute damage to the property. Nothing in the authorities, the Court held, justified the interpretation of the expression destroys or damages to extend to contact which did not in any respect alter the physical integrity of the thing said to be damaged.
7. Their Honours has referred to Hammond v R (2013) 85 NSWLR 303. The case concerned a person charged having spat mucus and spit onto a seat. The Court of Criminal Appeal determined that matter and held that the facts that were put before the Court by way of a stated case, were not sufficient to establish the proposition that there had been damage caused to the property such as to alter the physical integrity of the property. The consideration of the question included questions that were not answered and information that was not presented to the Court, such as the area that was affected, and the size of the structure upon which the substance had been projected, amongst other things.
8. In Director of Public Prosecutions New South Wales v Lucas [2014] NSWSC 1441, it was held that an act of deflating a tyre on the complainant's car, was capable of supporting a conclusion that there had been an interference with the functionality of the tyre and the car itself by necessitating that the complainant take it to a service station to pump air into the tyre before normal function was restored, and thus constituted damage under s 195(a) Crimes Act 1900.
9. The circumstances of this offence include that the appellant urinated in the dock. The need that arose there upon was to have the dock cleaned and no doubt disinfected, both in the interest of the health and safety of the police officers who were employed in the police station, and any other hapless member of the community who might have been arrested and brought into custody and required to occupy that part of the police station. In my opinion, that section applies to such conduct. I do not accept the submission that has been made upon that point.
10. In regard to the intimidation allegation, I have had regard to s 60(1) Crimes Act 1900. The officer intimidated was a police officer, and his evidence was unequivocal that he was frightened by the threats made by the appellant, as I described when reading the statement provided by constable Buckman. There was some discussion before the luncheon adjournment as to whether or not that was to be heard on the recording. Over the luncheon adjournment I confirmed that it could be heard, and upon resumption, the recording was played.
11. The recording begins with the sequence captured in the police vehicle, continuing through to when the appellant was taken from the vehicle in handcuffs. Although it is not easy to hear the words, upon careful listening to what fell after he was removed from the vehicle in handcuffs and was being moved away from the vehicle, he is heard to utter those words. In addition, proximate to that point, he said to the constable, "I will bite you." This is a matter that impacts upon the question of credit.
12. Although, the appellant did not give evidence, there is a recording of him as he was yelling abuse and profanity and making the threats to the police officer, demonstrating significant aggression. I have no doubt the police officers were acting sensibly in applying handcuffs to him at that point and restraining him. My observation of the recording is that the handcuffs were not placed on his wrists in such a fashion as to be too tight. Indeed, at the police station, because of his persistent complaint, another set of handcuffs were placed upon his wrists that were clearly not tight before the others were removed.
13. At the police station in the back of the vehicle, he was apparently unconscious. As he was removed from the pod on the back of the police vehicle, he had to be helped to a place on the floor where he laid down. He sat up for a period of time. He made a noise consistent with someone dry retching, consistently with him trying to make himself sick, but not responding to, what were in my view, reasonable and gentle efforts by the police to have him respond to them. He was laid in the recovery position. Again, presenting as someone who was not conscious.
14. The police officers called for an ambulance to come as the sequence was unfolding, and then at some point, he woke, quite suddenly, and asked questions about what was being done to him. It was shortly after that fresh handcuffs were applied and the others removed. Before that occurred, he was screaming loudly and suggested that he was in extreme pain. I find it extraordinary that he would be in such discomfort that he would react in such a way at that point, after he was representing himself to be unconscious.
15. It is odd that he was not in any distress from the point when he became conscious until shortly after that point, when he decided to become more voluble. It appeared to me that he was feigning the whole thing.
16. I finally should turn to the question that was raised in the submissions on his behalf, regarding whether the police were justified in stopping him. I was invited to the Law Enforcement Powers and Responsibilities Act 2002, s 99, which provides for the powers of arrest. (1) A police officer may without a warrant, arrest a person if; (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons. (i) to stop the person repeating or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or the police officer subject on reasonable grounds that the identity information that was provided is false, (iv) to ensure that the person appears before a Court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety and the welfare of any person, (including the person arrested}, (xi) because of the nature and seriousness of the offence.

Conclusions

1. I am satisfied upon the information provided and the evidence presented to the magistrate that there were reasonable grounds for the police to suspect that the appellant had committed the traffic offences of disobeying the stop sign and driving in excess of the speed limit, between the point when they first saw the vehicle and when ultimately they came to intercept it. I am also satisfied that those circumstances gave a reasonable basis to be suspicious that the vehicle was fleeing for some reason, perhaps because it was a stolen vehicle. I am satisfied that the police officer was justified in affecting the arrest, to stop the appellant committing further offences as was demonstrated in his response to the police when he was confronted.
2. I do not believe I could find that he was demonstrating any intention to flee, but his presentation was such that there was justification in coming to the view that he might be willing to offer violence to these police officers. For that reason, I am satisfied there was a need to protect the safety and welfare of both the police officers and the appellant in the circumstances.
3. The offences were established.
4. There was no justification for the appellant to have behaved as he did in the face of the police officers exercising their powers, which I believe they were doing appropriately in the circumstances.
5. Accordingly, the appeals from the convictions in each case are dismissed and the findings of guilt confirmed. I shall leave the documents on file for whatever need the parties might have for them. I will also include the written submissions provided by the Crown and the appellant.
6. The appellant seeks leave to withdraw the appeals from sentence. Leave is granted. Confirm the convictions in each case and the orders imposed by the magistrate.
7. In each case the CCO will commence from today. The appellant is to report to St Leonards Community Corrections office within 7 days from today.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2023