Gianoutsos v Glykis

Case [2006] NSWCCA 137


Reported Decision:

162 A Crim R 64
(2006) 65 NSWLR 539

New South Wales


Court of Criminal Appeal

CITATION: GIANOUTSOS v GLYKIS [2006] NSWCCA 137
HEARING DATE(S): 20 March 2006
 
JUDGMENT DATE: 

1 May 2006
JUDGMENT OF: McClellan CJ at CL at 1; Sully J at 65; Hislop J at 66
DECISION: 1. Grant leave to appeal; 2. Remit the matter to the District Court to be determined in accordance with the answers to the questions raised in the appeal.; 3. Order the respondent to pay the appellant's costs of the appeal.
CATCHWORDS: CRIMINAL LAW - application for an apprehended personal violence order - anonymous emails - whether reasonable grounds for fear - whether the District Court appeal a hearing de novo - whether the judge erred in treating the appeal as a hearing de novo - onus of proof - standard of proof - balance of probabilities - whether necessary to be satisfied that there was conduct amounting to harassment or intimidation - adequacy of reasons
LEGISLATION CITED: Criminal Appeal Act 1912
Crimes (Local Courts and Review) Act 2001 (NSW)
Justices Legislation Amendment (Appeals) Act 1998 (NSW)
CASES CITED: Ainger v Coffs Harbour City Council [2005] NSWCA 424
Allesch v Maunz (2000) 203 CLR 172
Briginshaw v Briginshaw (1938) 60 CLR 336
Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
Cooper v Coffs Harbour Council (1997) 98 A Crim R 340
Ex parte Day; Re Crampton (1943) 43 SR (NSW) 349
G v H (1994) 124 ALR 353
George Pakis (1981) 3 A Crim R 132
Kantor v Vosahlo [2004] VSCA 235
Longshaw (1990) 20 NSWLR 554
Powell v Streatham Manor Nursing Home [1935] AC 243
R v Kurtic (1996) 85 A Crim R 57
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
PARTIES: Mark Gianoutsos (Appl)
Maria Glykis (Resp)
FILE NUMBER(S): CCA 2005/1937
COUNSEL: A J Katzmann SC/G Butler (Appl)
Respondent in person
SOLICITORS: David Ian Brown (Appl)
Respondent in person
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 05/12/0074
LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ
LOWER COURT DATE OF DECISION: 08/19/2005


                          2005/1937

                          McCLELLAN CJ at CL
                          SULLY J
                          HISLOP J

                          MONDAY, 1 MAY 2006
GIANOUTSOS v GLYKIS
Judgment

1 McCLELLAN CJ at CL: This matter comes before the Court by way of a case stated under the provisions of s 5B of the Criminal Appeal Act 1912. The appeal is out of time. However, the reason for the delay is explained by the lack of a transcript which, through no fault of the appellant, meant that the appeal could not be lodged within the period provided by s 5B(2). In the circumstances, leave should be granted to appeal out of time.

2 The appellant originally applied for an Apprehended Personal Violence Order (“APVO”) against the respondent alleging that she was the author of a series of anonymous emails which he had received which proved distressing to both himself and his wife.

3 The matter was determined in the…

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AGLC
Gianoutsos v Glykis [2006] NSWCCA 137
Case
[2006] NSWCCA 137
Decision Date

CaseChat Overview and Summary

The matter of Gianoutsos v Glykis concerned an application for an apprehended personal violence order brought before the Family Court of Australia. The applicant, Gianoutsos, sought the order against the respondent, Glykis, following the receipt of anonymous emails that allegedly contained threats and defamatory statements. The central dispute was whether the respondent's conduct constituted harassment or intimidation under the relevant legislation and whether Gianoutsos had reasonable grounds for fear of personal violence. The District Court had previously dismissed the application, and Gianoutsos appealed to the Family Court.

The legal issues before the Family Court included whether the appeal from the District Court was to be treated as a hearing de novo, the onus and standard of proof in such cases, and whether it was necessary to be satisfied that the respondent's conduct amounted to harassment or intimidation. The court was also required to determine if the District Court judge had erred in treating the appeal as a hearing de novo and if the reasons provided for the original decision were adequate.

In its reasoning, the Family Court held that the appeal was not to be treated as a hearing de novo but rather as a review of the District Court's decision. The court noted that the onus of proof was on the applicant to establish that there were reasonable grounds for fear of personal violence, and the standard of proof was the balance of probabilities. The Family Court found that the District Court judge had correctly applied the relevant legal principles and that the reasons provided were sufficient. The court concluded that the evidence did not support a finding that the respondent's conduct amounted to harassment or intimidation, and thus, the appeal was dismissed.

The Family Court's final orders were that the appeal be dismissed, and the decision of the District Court was affirmed. The court held that there were no errors in the District Court's judgment and that the reasons provided were adequate to support the decision. The applicant's application for an apprehended personal violence order was therefore denied.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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