Markovic v Director of Public Prosecutions (NSW)

1. [1]

   THE COURT: This is an application under s 51 of the Bail Act 2013 (NSW) by Duro George Markovic for a bail decision to be varied by deleting all bail conditions.

2. [2]

   Mr Markovic is due to stand trial in the District Court at Sydney on 24 February 2025 upon an indictment charging offences of perverting the course of justice and blackmail in the following terms:

3. [3]

   These are serious indictable offences contrary to ss 319 and 249K(1)(a) of the Crimes Act 1900 (NSW) for which the maximum penalties are imprisonment for 14 years and 10 years respectively.

4. [4]

   Mr Markovic was arrested and charged on 8 May 2023. Bail was refused by police and by the Local Court but was granted by Hamill J in the Supreme Court on 19 December 2023.

5. [5]

   As to the prosecution case, his Honour observed, “the facts alleged by the prosecution represent a grave example of each of those offences”.

6. [6]

   The applicant was required to show cause why his detention was not justified pursuant to s 16A of the Bail Act 2013 (NSW) because he was alleged to have committed serious indictable offences while on bail for other charges. His Honour was satisfied that cause was shown and so the matter turned upon a consideration of whether there were unacceptable risks in relation to any of the bail concerns listed in s 17 of the Act.

7. [7]

   His Honour found that each of those concerns were present, namely whether Mr Markovic would fail to appear, would commit a serious offence, would endanger the safety of victims, individuals and the community, and would interfere with witnesses and/or evidence. Having regard to the conditions of bail he was minded to impose he was satisfied there were no unacceptable risks. His Honour said:

8. [8]

   Before announcing the conditions, his Honour said to Mr Markovic:

9. [9]

   The applicant came before Sweeney J on 6 May 2024 with an application to vary his bail by removing all, or most, of the conditions. Her Honour made an order that is recorded in JusticeLink in the following terms:

10. [10]

    The variations were minor adjustments to exceptions to the home detention condition so that on three days per week Mr Markovic could travel to his place of business by public transport and when he did so he need not be accompanied by his mother.

11. [11]

    On 28 September 2024, Mr Markovic was alleged to have breached a bail condition. He was arrested and taken to Surry Hills Correctional Centre from where he appeared the next day via AVL before Parramatta Local Court. JusticeLink records that an order was made that the bail acknowledgement entered on 21 December 2023 was “continued and varied”. The variations were that he did not have to be in the presence of his mother when exercising certain exceptions to the home detention condition, namely reporting to police, attending medical appointments or seeking emergency medical treatment. Further, he was permitted to attend the local shops when reporting to police but not so as to be absent from home for more than an hour and to make only one such visit to the shops per day.

12. [12]

    Mr Markovic filed an application in this Court on 5 November 2024 seeking that all of his bail conditions be revoked. It is a “variation application” under s 51 of the Act.

13. [13]

    The term “bail application” is defined in s 4(1) of the Act and includes a variation application. This Court has jurisdiction to hear a bail application if proceedings for the offence in question are pending in the Court (s 61). The proceedings are not pending in this Court; they are pending in the District Court.

14. [14]

    The Court has “additional powers” to hear bail applications in the circumstances listed in s 67(1):

15. [15]

    Only (e) could apply but that depends upon the bail decision made by Hamill J on 19 December 2023 being operative. The Crown contended that a bail decision was made by the Local Court on 29 September 2024 which, in effect, superseded that of Hamill J and so the Court had no jurisdiction. The question is whether the Local Court made “a bail decision”.

16. [16]

    Section 8 defines what a “bail decision” is:

17. [17]

    The Crown contended that the Local Court dealt with the matter under s 50 which provides for detention applications made by prosecutors. It was submitted that the Local Court made a bail decision under s 50(3) to grant Mr Markovic bail and then exercised a power under s 50(4) as a consequence of that grant of bail to vary the bail.

18. [18]

    The Local Court cannot have heard and determined a detention application under s 50 of the Act because it had no jurisdiction to do so.

19. [19]

    Part 6 of the Act provides for “Powers to hear bail applications” and it includes ss 68 and 69.

20. [20]

    Section 68(1) provides that the Local Court cannot hear a bail application (which includes a detention application under s 50) in certain circumstances, including if “proceedings for the offence are pending in a court (other than the Local Court) and the accused person has made his or her first appearance before the court in those proceedings”. In the present case the accused had already made his first appearance in the District Court.

21. [21]

    Section 69 provides, relevantly, that the Local Court may hear a bail application for an offence when a bail decision has been made by the Supreme Court only if proceedings for the offence are pending in the Local Court, which was not the case here.

22. [22]

    The only source of jurisdiction for the Local Court to deal with Mr Markovic on 29 September 2024 was under Part 8 (“Enforcement of bail requirements”). Section 60 specifically provides that Part 6 does not limit the power of a court or authorised justice under Part 8 or 9. In addition, s 69(3) provides that s 69 does not prevent a court from hearing a detention application under Part 8.

23. [23]

    Part 8 contains provisions concerning the powers available to police and the courts to deal with breaches or impending breaches of bail. Section 77 is concerned with the actions that may be taken by a police officer who believes on reasonable grounds that a person has failed, or is about to fail, to comply with their bail. The range of actions include arresting the person and taking them as soon as practicable before a court or authorised justice. It is assumed that this was how Mr Markovic was arrested and placed (via AVL) before Parramatta Local Court.

24. [24]

    Section 78 provides for the powers of a “relevant bail authority” before whom such a person is brought or appears. If the relevant bail authority (defined in s 78(6) to include the Local Court) is satisfied of the breach, or an imminent breach, pursuant to s 78(1) it may:

25. [25]

    The term “vary the bail decision” is defined in s 4(3) of the Act as including:

26. [26]

    While there was no transcript or other evidence to confirm how the Local Court dealt with Mr Markovic’s appearance on 29 September 2024, it must be assumed that it acted within its jurisdiction and therefore in accordance with s 78. As indicated earlier (above at [11]) the official record indicates that an order was made that the bail acknowledgement made as a consequence of the bail decision of Hamill J was “continued and varied”. That was within its powers under s 78(1)(b) when read with s 4(3)(b). The Local Court thereby did not make a “bail decision”.

27. [27]

    The bail decision of Hamill J of 19 February 2033 remains operative and this Court has jurisdiction under s 67(1)(e).

28. [28]

    Mr Markovic represented himself in making written and oral submissions in support of his application. He relied upon bundles of documents intended to support his claim of innocence and sought to characterise the prosecution as being sourced to a longstanding conspiracy against him by a magistrate, prosecutors, police, lawyers, his ex-wife and others.

29. [29]

    None of this addressed the relevant legislative concepts of bail concerns (s 17 of the Act), the matters required to be considered in relation to such concerns (s 18) and the question of whether there are unacceptable risks in relation to any of the bail concerns (s 19). There was no submission that the existing bail conditions were not reasonable or appropriate for the bail concerns that might be present (s 20A).

30. [30]

    This is not a criticism of Mr Markovic. While he has some experience with criminal law it has been in the context of being on the receiving end of it and not in forensic advocacy. He readily conceded at the outset of the hearing that, in effect, he was out of his depth in addressing the legal merits of his application.

31. [31]

    There is no evidence before the Court that would gainsay the assessment of the prosecution case set out in the judgment of Hamill J as involving allegations of the commission of very serious offences, nor his assessment of the prosecution case as “one of substance” and “reasonably very strong”. Mr Markovic, however, vehemently protests his innocence. He is entitled to. The outcome will be determined in the District Court in due course.

32. [32]

    The nature of the allegations give rise to some of the bail concerns insofar as they involve an attempt to interfere with judicial proceedings by threats of serious violence to a principal participant. Mr Markovic’s criminal record supports others. For example, it includes a number of instances of breaching bail and conditional court orders. There are some quite serious offences, albeit in the earlier history. Recent offences have included intimidating, resisting and assaulting police officers and being found in custody of a knife in public.

33. [33]

    No case was established for removing any of the existing bail conditions. However, the Crown proposed there could be a slight expansion of the hours during which Mr Markovic is required to report each morning and afternoon in order to alleviate the difficulty in him travelling on certain days of the week to and from his place of business which is a significant distance from his home. That variation should be made.

Orders

1. [34]

   The following orders are made:

   1. (1)

      The bail acknowledgement entered by Duro George Markovic on 21 December 2023 is varied by amending the hours of daily reporting to police from between 7.00am and 10.00am to between 5.00am and 10.00am and from between 3.00pm and 5.00pm to between 3.00pm and 9.00pm.

   2. (2)

      The bail variation application is otherwise dismissed.