Gianoutsos v Glykis

[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 Local Court and an interim APVO was granted in February 2004. The application was heard over four days in September and December 2004. Ms Glykis appeared in person at the hearing.

4 The evidence at the Local Court included oral evidence from the appellant, his wife, Associate Professor Peter Collins, (Head of the Linguistic Department of the University of New South Wales), Gail Kay (the appellant’s receptionist) and the respondent. Numerous documents were tendered including emails which the respondent admitted she had created and sent.

5 The matter was heard before Bradd SM who determined to make the order. His Honour found that the emails were of an harassing nature and, having regard to the evidence, including the expert evidence, found that they had been authored by the respondent. His Honour said:

“So all that evidence together is such that I am satisfied that the only rational inference that can be drawn is that Ms Glykis was the author of the emails.
…
Dr Gianoutsos has given evidence that he has continuing fears. He says he feels threatened and concerned. His wife has also given evidence of her fears and actions have been taken by them to increase security at their home which indicates they have fears. I am satisfied on the balance of probabilities that given the nature of the emails that the fears are reasonable.”

6 Ms Glykis appealed to the District Court where, after receiving limited further evidence, Puckeridge DCJ upheld the appeal.

7 In his reasons for judgment Puckeridge DCJ noted that Professor Collins had concluded from emails, which were admittedly sent by the respondent, that the emails about which complaint was made were also sent by her. His Honour noticed that Mr Bell, who had given evidence on behalf of the respondent, was of the opinion that the emails were “what he referred to as cut and paste and could have been cut and pasted by the recipient.” His Honour does not resolve this disagreement but said:

“As I had indicated at an early stage in making a ruling on 23 March 2005, the issue before the court on the appeal was whether or not the appellant on the probability was the author of the emails exhibits 2, 3, 4, 5 and 15 in the Local Court. Having considered those emails I consider those emails do amount to harassment within the meaning of s 562AI of the Crimes Act .”

8 His Honour then notes that the appellant gave evidence before the District Court in which he indicated that he still maintained fears in relation to the respondent. His Honour accepted that the appellant had “reasonable grounds for his fear” and continued saying:

“That being the case I consider I have to be comfortably satisfied that the appellant was indeed the author of these emails. Counsel for the respondent has submitted the test is the test of the probabilities, I accept that. In view of the nature of the fear I consider that whilst the court has to be satisfied on the balance of probabilities within the meaning of Briginshaw v Briginshaw I consider that the case is such that the court would have to be comfortably satisfied.”

9 His Honour indicates that he has had regard to the evidence of Professor Collins and the other experts. He also notes that the respondent says that she did not author the emails. His Honour notes that the appellant:

“relies on the circumstantial evidence that the email address in relation to Dr Gianoutsos was only given to the appellant on 17 December 2003 by the (appellant’s) secretary at the time. The (appellant) submits that it would have to be more than mere coincidence for emails to be sent to that same email address the next day. The (appellant) submits that when you take that into account together with the evidence of Professor Collins and Mr Skinner, the court could be satisfied on the probabilities, indeed comfortably satisfied that the author of the emails was the appellant.”

10 Having provided this short summary of the position of the respective parties and without any further analysis of the evidence his Honour expresses the following conclusion:

“Whilst there is force to this submission I am not satisfied on all the evidence that the appellant was the author of the email. I cannot be satisfied on the evidence that the appellant was also the person who made harassing phone calls.”

11 Accordingly, his Honour determined that the appeal should be upheld and dismissed the apprehended violence order.

An outline of the facts

12 The appellant is a plastic surgeon who has been practising at the Prince of Wales Hospital for six years. During 2001 and 2002 he worked fulltime in the Prince of Wales Hospital campus, that is, in his rooms at the Private Hospital, the public hospital and the Sydney Children’s Hospital. He worked at the Sydney Children’s Hospital, Prince of Wales campus, from 21 January 2001 up until December 2002.

13 The respondent gave evidence that in November 2001 she interviewed Dr Gianoustos in his office and “his jaw dropped, he had a good perve, he was looking at her breasts, drooling.” She claimed that she later invited him to a Christmas party, that they both attended, but they had no actual contact there.

14 In February 2003 Ms Glykis broke up with Dr Arthur Grillas with whom she had a relationship which she said had damaged her self-esteem. The respondent contacted the appellant on 6 March 2003 seeking advice concerning treatment.

15 The appellant was then a widower. In April 2003 he announced his engagement to the future Mrs Gianoutsos (Melanie). Before their marriage the appellant received a typed anonymous letter saying certain things about Melanie and querying whether the marriage should go ahead. The letter distressed both of them and they decided to destroy it.

16 In July 2003 the appellant and Melanie were married. The wedding was publicised in the social pages of a Sydney newspaper. On 4 August 2003 Melanie started working at the appellant’s practice. At about that time the practice started to receive a large number of nuisance telephone calls. Between 19 September 2003 and 5 October 2003 the appellant and Melanie were overseas. When they returned they turned on the computer. They opened 3 emails, one dated 21 September 2003 and two dated 24 September 2003. Each of them was addressed to “Mark.” There was evidence that the email server for the two anonymous emails was a company called Betrusted Pty Ltd which was the internet service provider for the Commonwealth Department of Health and Ageing. The respondent worked for the Commonwealth Department of Health and Ageing between August and November 2003.

17 The first of the emails (dated 21 September 2003) which was sent shortly after the wedding suggested that the appellant should have married “a stunning Greek woman – like the red head at POWH” who had never married and had no children, and who used to model. There was evidence that the respondent was Greek, that she was redheaded and had worked at the Sydney Children’s Hospital at POWH where the appellant was also employed. The respondent had never married and had no children. Her curriculum vitae, which was in evidence, indicated that she had been a model.

18 The appellant and his wife were distressed by the emails and approached the police. A further email was received on 13 October 2003 which was distressing and after which the appellant took steps to increase his security at home.

19 On 17 December 2003 Melanie received a phone call from a person identifying herself as Maria asking about impulse light machine and associated skin care. Approximately 4 hours later on 17 December 2003 there was evidence that the respondent attended the appellant’s surgery. The evidence was that she asked for “Melanie” and was introduced to Melanie Gianoutsos with whom she then spoke. She also met the receptionist, Gail Kay, who introduced herself as “Gail.” Mrs Gianoutsos gave evidence that the respondent was behaving bizarrely and seemed angry. Ms Kay gave evidence that the respondent seemed “quite agitated.”

20 The respondent was handed documents and then left the surgery but returned later. On her return she had a further conversation with Melanie Gianoutsos about scientific components and skin cream. Due to her behaviour Melanie wrote on a “post-it” note a “red headed Greek girl”, which she placed with the respondent’s file. The meeting with the respondent on 17 December 2003 made Melanie Gianoutsos feel frightened. She also gave evidence that on this occasion she handed the respondent a document bearing the email address [email protected] which she said was the first time the practice had used this email address.

21 The next day a woman telephoned the appellant’s rooms and asked whether “Mark” received all his emails. She was told that he did and that the emails were printed off and not filtered by staff. Gail Kay, the receptionist said she recognised the voice as that of the respondent. Later that day Melanie opened an email addressed to the appellant purporting to come from “Iggi Michael.” It was sent to both of the appellant’s email addresses. This was the first anonymous email to be sent to the email address at [email protected]. The email complained about one of the appellant’s secretaries identified as “Melissa” or “Melanie”, spoke of her in derogatory and offensive terms, pitied the man who was married to her and contrasted her with “Gail.”

22 This exchange caused the appellant and his wife to become even more concerned for their security and shortly afterwards these proceedings were commenced.

23 The case stated raises six questions.

Question 1 – Was the appeal to the District Court a hearing de novo?

24 In his reasons for judgment Puckeridge DCJ described the appeal as “a hearing de novo.” This was not correct.

25 The appeal was required to be dealt with as if it was an appeal against conviction under Part 3 of the Crimes (Local Courts and Review) Act 2001. Section 18 of that Act provides that the appeal is to be dealt with “by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings … .”

26 Subsection 2 provides that fresh evidence may be given “but only by leave of the District Court which may be granted only if the court is satisfied that it is in the interests of justice that the fresh evidence be given.”

27 In George Pakis (1981) 3 A Crim R 132 at 136, O’Brien CJ of Cr D said that “[t]he expression ‘by way of rehearing’ may in some contexts give rise to difficulties.” This is because, as Viscount Sankey LC noted in Powell v Streatham Manor Nursing Home [1935] AC 243 at 249, “There are different meanings to be attached to the word ‘rehearing.’” The meaning given to the word will differ according to the type of appeal in question. The following passage from Glass JA’s decision in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-298 is illuminating:

“Appeal is a term loosely employed to denote a number of different litigious processes which have few unifying characteristics. They vary greatly in the extent to which the appellate court may interfere with the result below. Graded in ascending order, in accordance with the width of the corrective power exercised by the appeal court, they are as follows:
(a) Appeals to supervisory jurisdiction . Only errors going to jurisdiction or denials of natural justice can be ventilated.
(b) Appeals on questions of law only , e.g. from the Workers' Compensation Commission. Undetermined or wrongly determined issues of fact must be remitted.
(c) Appeals after a trial before judge and jury . The result below will be disturbed if the judge fell into error of law, or if the jury's errors of fact transcend the bounds of reason. But, except for the assessment of damages, issues of fact must be redetermined in a new trial.
(d) Appeals from a judge in the strict sense , e.g. appeals to the High Court. If the judge has fallen into error of law, or has made a finding of fact which is clearly wrong, the appellate court will substitute its own judgment. Only such judgment can be given as ought to have been given at the original hearing. Later changes in the law are disregarded and additions to the evidence are not allowed: Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v Dignan [(1931) 46 C.L.R. 73, at p. 107].
(e) Appeals from a judge by way of rehearing, e.g. appeals under s. 75A of the Supreme Court Act, 1970. Judicial opinion differs on whether a power to receive fresh evidence is implied: Ex parte Currie; Re Dempsey [(1968) 70 S.R. (N.S.W.) 1; 88 W.N. (Pt. 2) 193]. Almost invariably, however, it is expressly conferred. If errors of law or wrong findings of fact have occurred below, the appellate court will try the case again on the evidence used in the court below, together with such additional evidence as it thinks fit to receive. Since it will decide the appeal in the light of the circumstances which then exist, changes in the law will be regarded: Ex parte Currie; Re Dempsey [(1968) 70 S.R. (N.S.W.) 1; 88 W.N. (Pt. 2) 193] Edwards v. Noble (1971) [125 C.L.R. 296, at p. 304].
(f) Appeals involving a hearing de novo , e.g. appeals from a Court of Petty Sessions to a Court of Quarter Sessions. All the issues must be retried. The party succeeding below enjoys no advantage, and must, if he can, win the case a second time: Sweeney v. Fitzhardinge [(1906) 4 C.L.R. 716].”

28 As Glass JA notes in point (f) above, appeals from a Court of Petty Sessions to a Court of Quarter Sessions were historically a hearing de novo. It was pointed out in the debate prior to the enactment of the Justices Legislation Amendment (Appeals) Act 1998 (NSW) that “the de novo appeal phenomenon dates back to a time when magistrates were not legally qualified and when the record of proceedings before magistrates was grossly inadequate” (Legislative Council, Hansard, 23/9/1998, p. 7787). The Justices Legislation Amendment (Appeals) Act 1998 (NSW) inserted s 132 into the now repealed Justices Act 1902 (NSW). Section 132 is substantially the same as s 18 of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW). The purpose of s 132 of the Justices Act 1902 was to modernise the way appeals from the Local Court were conducted in light of the fact that magistrates are now legally qualified and that records of Local Court proceedings are now of a much higher standard. Specifically, the system of conducting appeals by way of a hearing de novo was to be replaced by a system of rehearings on the transcript of the proceedings before the magistrate. Fresh evidence could be adduced, but only with leave.

29 In Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 the Court of Criminal Appeal interpreted s 5AA of the Criminal Appeal Act 1912. As it stood at the time, s 5AA relevantly provided that:

“(3) Any such appeal shall be by way of re-hearing on the evidence, if any, given in the proceedings before the Supreme Court in its summary jurisdiction and on any evidence in addition to or in substitution for the evidence so given.”

30 Section 5AA(3) – which is similar in terms to s 18 of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) – was held to provide for a rehearing rather than a hearing de novo (at 687-692).

31 It is clear from the terms of s 18 that an appeal to the District Court by a defendant in the Local Court is not merely a mechanism which, once invoked, allows the trial to be started afresh. The appeal is to be conducted on the basis of certified transcripts of the evidence given in the Local Court, and fresh evidence may only be given with the leave of the court.

32 Question one should be answered: No

Question 2 – Did I err in law in treating it as such?

33 After indicating that the former s 5AA of the Criminal Appeal Act 1912 provided for a rehearing rather than a hearing de novo, Kirby P (Campbell J and James J agreeing) in Camilleri’s Stock Feeds at 692 stated that:

“This Court must therefore proceed to consider the appellant’s culpability upon the basis of the evidence which was tendered before the trial court and any additional or substituted evidence admitted by the Court. Ultimately, it is for this Court, having considered all of the evidence then finally before it, to resolve for itself, afresh, the ultimate issue for decision. ” (emphasis added).

34 Subsequent to the decision in Camilleri’s Stock Feeds, s 5AA(3) of the Criminal Appeal Act 1912 was amended and a new subsection 3A was inserted. The section then provided as follows:

“(3) Any such appeal is to be by way of re-hearing on the evidence (‘the original evidence’), if any, given in the proceedings before the Supreme Court in its summary jurisdiction.
(3A) The Court of Criminal Appeal may however give leave to adduce fresh, additional or substituted evidence but only if the court is satisfied that there are special grounds for doing so. If the court does give leave, the appeal is to be by way of rehearing on the original evidence and on any fresh, additional or substituted evidence so adduced.”

35 In Cooper v Coffs Harbour Council (1997) 98 A Crim R 340 at 342, Howie AJ (with whom Hunt CJ at CL and Smart J agreed) stated that these amendments did nothing more than confirm the correctness of Kirby P’s judgment in Camilleri’s Stock Feeds. Importantly, his Honour said (at 341) that “an appeal under s 5AA is not restricted to a determination of whether the decision of the court below was infected with error.” His Honour went on to say (at 342) that:

“Although this Court is concerned primarily to redetermine the charge on the evidence before the trial court, it does not follow that the hearing of the appeal is limited only to a review of that evidence even if no other evidence is adduced on the hearing of the appeal…As Hunt J (as he then was) said in Huntley Colliery Pty Ltd v State Pollution Control Commission [(unreported, NSWCCA, 5 June 1991)] “the appeal is on almost all fours with an appeal from the decision of a magistrate to the District Court…The difference in the nature of an appeal to this Court and an appeal from a magistrate to the District Court, is that an appeal under s 5AA is not a new hearing in which the prosecutor is required to lead the evidence to support the charge afresh.”

36 Of course, Howie AJ was referring to an appeal from a magistrate to the District Court before the enactment of the Justices Legislation Amendment (Appeals) Act 1998 (NSW). At 342 his Honour cites the decisions in Ex parte Day; Re Crampton (1943) 43 SR (NSW) 349 at 351 and Longshaw (1990) 20 NSWLR 554 at 559-561, which make plain that at the time Cooper was decided an appeal from a magistrate to the District Court was a “hearing de novo in which there is a completely new trial where in the prosecutor must begin again.” However, an appeal under s 18 of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) is not a hearing de novo. Rather, it is a rehearing of a similar nature to a rehearing under the former s 5AA of the Criminal Appeal Act 1912 (s 5AA was amended in 2000 so that it now provides for an appeal in the strict sense rather than an appeal by way of rehearing).

37 In Allesch v Maunz (2000) 203 CLR 172 the High Court considered the appeal provisions under the Family Court Act. In the course of the joint judgment of Gaudron, McHugh, Gummow and Hayne JJ their Honour’s said at 180:

“For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error (see CDJ v VAJ (1998) 197 CLR 172 at 201-202), whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised regardless of error. ” (emphasis added)

38 In the present case, the legislation does indicate that the District Court’s appellate powers may be exercised regardless of error. Section 20 of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) provides that on an appeal from a magistrate the District Court may either set aside a conviction (or in this case an APVO), or it may dismiss the appeal. The District Court is not limited to ordering fresh proceedings in the court below. Indeed, unlike the Supreme Court (see s 55(1)(b) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW)), the District Court is given no express power to remit the matter back to the Local Court for redetermination in accordance with its directions. In R v Kurtic (1996) 85 A Crim R 57, Hunt CJ at CL noted that the power to determine an appeal otherwise than by ordering fresh proceedings would indicate that a court with such a power is not a court of error (at 59-60).

39 The District Court has power to rehear issues at trial but does not have power to remit the matter back to the Local Court. It follows that the District Court’s powers under s 18 of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) are not dependent upon a finding of error at the original trial.

40 An appeal under s 18 of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) is an appeal of this nature.

41 Question two should be answered: Yes, but this was not material to the resolution of the matter.

Question 3: Which party bore the onus of proof?

42 Although the appeal was by way of rehearing the onus remained on the appellant (Dr Gianoutsos) to prove his case to the relevant standard. The duty of the District Court judge was to determine the matter having regard to the evidence tendered in the Local Court and any further evidence admitted on the appeal: (see Camilleri’s Stock Feeds Pty Ltd at 692).

43 The answer to question 3 is that, although the proceedings were an appeal by way of rehearing, the respondent to that appeal (Dr Gianoutsos) continued to carry the onus of proving his case.

Question 4: Did I misdirect myself in stating that the facts must be proved to the comfortable satisfaction of the Court and in accordance with the principles in Briginshaw v Briginshaw (1938) 60 CLR 336?

44 Section 562AI(1) of the Crimes Act provides that the court may make an APVO “if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears” one of the identified matters. In the present case the relevant matters were:

“(b) the engagement of the other person in conduct amounting to harassment or molestation of the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order, or

(c) the engagement of the other person in conduct in which the other person:
(i) intimidates the person, or
… .”

45 Puckeridge DCJ accepted that the appellant had reasonable grounds for his fear that the author of the emails displayed irrationality and delusions which left himself and his family potentially at risk of physical harm. Having made that finding his Honour said that he “had to be comfortably satisfied that the appellant (now the respondent) was indeed the author of the emails.” His Honour accepted that satisfaction was required on the balance of probabilities within the meaning of Briginshaw v Briginshaw (1938) 60 CLR at 336 and said “I consider that the case is such that the court would have to be comfortably satisfied.”

46 With all due respect, it is difficult to discern the approach to the factual dispute which his Honour had in mind. His use of the expression “comfortable satisfaction” does not explain the task which his Honour set for himself. Briginshaw is concerned with the circumstances when the obligation falling upon a moving party requires proof to the “reasonable satisfaction” of the judicial decision maker. That question will be informed by the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding” (Briginshaw at 362).

47 When allegations which are being investigated or pursued in civil litigation involve a finding that a crime has been committed, application of the “Briginshaw test” as it has come to be identified has few difficulties. Weight must be given to the presumption of innocence and exactness of proof is expected (Briginshaw at 363). However, in other cases, which may include paternity questions under the Family Law Act 1975, the form of the legislation may require a different approach. In G v H (1994) 124 ALR 353 Deane, Dawson & Gaudron JJ said (at 362):

“It has been clear since the decision in Briginshaw v Briginshaw that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved so that ``[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal'’ ((1938) 60 CLR at 362 per Dixon J; Newis v Lark (1571) 2 Plowd 403 at 412; Cooper v Slade (1858) 6 HLC 746 at 772-3; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-50). Thus, if there is an issue of ``importance and gravity'’, to use the words of the trial judge, due regard must be had to its important and grave nature.

Not every case involves issues of importance and gravity in the Briginshaw v Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing, as in Briginshaw v Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when that case was decided (see (1938) 60 CLR at 347, 350, 353, 368, 372; Helton v Allen (1940) 63 CLR 691 at 701, 712; Rejfek v McElroy (1965) 112 CLR 517 at 521-2) Paternity is a serious matter, both for father and for child. However, it is not clear that the question of paternity should be approached on the basis that it involves a grave or serious allegation in the Briginshaw v Briginshaw sense when what is at issue is the maintenance of a child and the evidence establishes that the person concerned is more likely than anyone else to be the father. After all, paternity can be determined easily and, for practical purposes, conclusively. And now that that is so, it is difficult to see why, if a person who could be the father declines to participate in procedures which will provide proof one way or the other, the child's rights to maintenance and support should none the less depend on the biological fact of paternity being established on the basis that, so far as the putative father is concerned, the biological fact involves an allegation in much the same category as an allegation of moral or criminal wrongdoing. Moreover, while a determination of parentage for the purposes of Family Law Act proceedings is obviously a serious matter for both the child and the putative parent, such a determination cannot properly be regarded as a declaration of paternity in the traditional sense. As Strauss J pointed out in the Full Court, there is some doubt as to whether the Family Court has the power to make such a declaration, and it is ``neither necessary nor desirable'’ that such a declaration be made in a case such as the present ((1993) 16 Fam LR at 534. See also Re C (No 2) (1992) 15 Fam LR 355 at 365; Duroux and Martin (1993) 17 Fam LR 130 at 134).”

48 As their Honours point out the approach to the making of conclusions considered by Dixon J in Briginshaw, in the well known passage to which their Honours refer, should not be understood as imposing a test in civil litigation other than the balance of probabilities. However, what is required is that when loading the scales appropriate weight is given to the matters to which Dixon J referred.

49 The “Briginshaw standard” is often spoken of quite loosely and as if it is a third standard of proof sitting somewhere between the balance of probabilities and beyond reasonable doubt. This is wrong. As Dixon J points out the civil standard of proof is proof on the balance of probabilities requiring the relevant party to prove the elements of its case to that standard.

50 In Kantor v Vosahlo [2004] VSCA 235 the issue for resolution was the testamentary capacity of the testator. The trial judge said that the executors bore a “heavy onus” in proving that the testator had testamentary capacity at the time she wrote her will. On appeal, Ormiston JA (at [24]) was of the opinion that by referring to the onus of proof in this way the trial judge had misdirected himself. In their joint judgment Buchanan and Phillips JJA said at [56]:

“There is no warrant, then, for describing the onus on the propounders in this case as "heavy" or the standard as other than the ordinary one applicable in a civil suit. Of course the cogency of the evidence necessary to discharge the onus will depend upon the circumstances of the case, as it always does; the source of the doubt as to capacity will say much about what must be proved to dispel the doubt. But the onus was fixed below on the appellants (as was acknowledged) and the standard of proof was on the balance of probabilities.”

51 To say that a court must be “reasonably satisfied” (Briginshaw per Dixon J at 362) or “affirmatively satisfied” (Kantor per Buchanan and Phillips JJA at [54]) is one thing, but to say as did Puckeridge DCJ that the court must be “comfortably satisfied” is another thing altogether. His Honour appears to have been implying that proof to a higher standard than the balance of probabilities was required. If so, he was in error.

52 Although it could not be doubted that some people against whom an APVO is sought are likely to be deeply offended by the allegation which the applicant makes it is important to bear in mind that the court is only concerned to determine whether a person “has reasonable grounds to fear and in fact fears.” Such a determination does not necessarily require a finding that any particular event has occurred (although such a finding could be made) and does not require a finding that a criminal act may have been committed.

53 Furthermore, the making of an APVO may not necessarily have severe consequences or indeed any practical consequences at all for the person against whom it is made. If it be the case, as the respondent suggested in this matter, that she did not want to have anything further to do with the respondent the orders will have no effect on the way she conducts herself and lives her life. It is possible that it may affect her reputation but, having regard to the threshold the statute requires, the making of the allegation would be likely to have as much impact as the making of an order.

54 In these circumstances his Honour was required to consider the question raised by s 562AI of the Crimes Act giving appropriate weight to the fact that the appellant had made a serious allegation. But he was not required to determine whether the respondent had in fact authored the emails. His Honour was only required to consider whether the fears which he found the appellant held were founded on reasonable grounds. Accordingly, to isolate and decide the matter by consideration of whether he was “comfortably satisfied” that the respondent had authored the emails was not appropriate. The appropriate question was whether having regard to the available evidence, including evidence as to the author of the emails, the appellant had reasonable grounds for his fears justifying the making of an order against Ms Glykis.

55 The answer to question 4 is: Yes.

Question 5: Did I err in considering that it was necessary for me to be satisfied that the appellant engaged in conduct amounting to harassment or intimidation?

56 As I have indicated s 562AI(1) of the Crimes Act provides that a court may make an APVO if it is satisfied on the balance of probabilities that a person “has reasonable grounds to fear, and in fact fears”, the engagement of that other person in conduct amounting, inter alia, to harassment or intimidation and the conduct is sufficient to warrant the making of the order. Accordingly, the inquiry which the court must undertake is whether the complainant has reasonable grounds to fear and in fact fears the engagement of the other person in the relevant conduct. Before coming to that conclusion it is not necessary for the court to determine that the other person has in fact engaged in that conduct but, only, that the complainant has a fear which is based on reasonable grounds. Of course, if the court was satisfied that the other person had not conducted him or herself in the manner which the complainant alleged this would be relevant to a consideration of whether or not the court should be satisfied in the particular case and may prove fatal to the application. However, by confining the relevant question to whether or not the other person had actually sent the emails Puckeridge DCJ, in my opinion, was diverted from the inquiry which the section requires.

57 Question 5 should be answered: Yes.

Question 6: Were the reasons for my decision adequate, having regard to the test to be applied for an apprehended personal violence order s 562A I of the Crimes Act 1900?

58 His Honour stated that he had had regard to the evidence of Professor Collins and the other experts but gave no reason, based upon that evidence, as to why he reached the conclusion that he was “not satisfied” that the appellant was the author of the emails. Beyond the evidence of the experts, as I have already indicated, there was significant circumstantial evidence which pointed to the respondent as being the author of the emails. Before reaching a conclusion as to whether the respondent was the author his Honour should have analysed that evidence. Beyond the fact that his Honour said that he had had regard to “all the evidence” no indication is given of the basis upon which he reached his conclusion.

59 In Ainger v Coffs Harbour City Council [2005] NSWCA 424 the Court of Appeal had occasion to consider the significance of adequate reasons and the part they play in the judicial process. McColl JA with whom Mason P and Hunt AJA agreed said:

“Adequacy of reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes ‘a sense of grievance’ and denies ‘both the fact and the appearance of justice having been done’, thus working a miscarriage of justice: Misfud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA.
The primary judge was not obliged to spell out every detail of his process of reasoning ( Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 171, 182), however he was obliged to expose his reasons for resolving a point critical to the contest between the parties: North Sydney Council v Lygon (1995) 87 LGERA 435 at 442 per Kirby ACJ; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270 per Mahoney JA, at 280 per McHugh JA. This obligation lay upon him to enable the parties to identify the basis of his decision and the extent to which their arguments had been understood and accepted: Soulemezis at 279 per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 at [129] it was necessary that the primary judge “ ‘enter into’ the issues canvassed and explain why one case was preferred over another”.

60 I appreciate the burdens the workload of the Court imposes on District Court judges. This will impose practical limits on the length and detail required in reasons for judgment. However, in the present case, even if his Honour correctly identified the question he was required to answer as being whether or not he could be satisfied that the appellant was the author of the emails, his reasons for his conclusion were wholly inadequate. Before he could come to any conclusion on this issue his Honour should, at least, have identified the relevant evidence and explained whether he accepted that the events, which allegedly surrounded the sending of the emails and were said to involve the respondent, had occurred. In my opinion these events point, with considerable force, to the likelihood that the respondent was the author of the emails and required analysis in his Honour’s reasons before he could resolve the issue which he had set for himself.

61 The answer to question 6 is: No.

One other matter

62 The Court received lengthy and detailed submissions from each party. Much of those submissions was devoted to factual matters not requiring resolution by this Court in which jurisdiction is confined to resolving the questions which have been asked.

Conclusion

63 In my opinion the appeal should be upheld and the following orders made:

64 1. Grant leave to appeal.

2. Answer the questions asked as follows:
Question1: No.
Question 2: Yes, but this was not material to the resolution of the matter.
Question 3: The respondent to the appeal (Dr Gianoutsos) continued to carry the onus of proving his case.
Question 4: Yes.
Question 5: Yes.
Question 6: No.
3. Remit the matter to the District Court to be determined in accordance with the answers to the questions raised in the appeal.
4. Order the respondent to pay the appellant’s costs of the appeal.

65 SULLY J: I agree with McClellan CJ at CL.

66 HISLOP J: I agree with McClellan CJ at CL.

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