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
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 COURTJUDICIAL 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 Act1912. 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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.