Paul Garde v MD - [2009] NSWDC 389

CITATION: Paul Garde v MD [2009] NSWDC 389

HEARING DATE(S): 07/12/2009 and 08/12/2009

JUDGMENT DATE:
10 December 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Appeal dismissed.
2 year APVO with the mandatory A, B & C orders imposed by the learned magistrate confirmed. Costs of appeal as assessed to be paid by appellant.
Orders of court costs as imposed by the learned magistrate confirmed.
The two orders, now lo longer having relevance, imposed by the learned magistrate quashed:

CATCHWORDS: Criminal Law - Local Court Appeal to District Court - against Apprehended Personal Violence Order - objective and aims of domestic violence legislation - scope of appellate jurisdiction - rehearing - not to abe on basis law and events are frozen to time original application heard - evidence rejected at first instance may be admissible on appeal - Local Court judgment can be received at appeal hearing - what constitutes intimidation - publications may constitute intimidation - findings of intimidation - fear and reasonable grounds for fearing.

LEGISLATION CITED: s. 84 Crimes (Domestic and Personal Violence) Act 2007
s. 18 Crimes (Appeal and Review) Act 2001
Criminal Procedure Act 1986

CASES CITED: Edwards v Noble (1971) 125 CLR 298 at E304
Camilleri Stock Feeds Ply v EPA (1993) 32 NSWLR 683 at p 689
Gianoutsos v Glykis (2006) 65 NSWLR 539 at 544 at [31]
Charara v The Queen [2006] NSWCCA 244
Ex Parte Currie v Dempsey (1968) 70 SR 1 at p10
Queen v Apostolides (1984) 154 CLR 563
Fox v Percy (2003) 214 CLR 118

PARTIES: Paul Garde
MD

FILE NUMBER(S): 2009/00010081

COUNSEL: Respondant: M England
Appellant: D Hand

JUDGMENT
1. The Crimes (Domestic and Personal Violence) Act 2007 (the Act) was enacted to protect persons from domestic and personal violence. Listed among the objects for the Act is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship. The Act aims to achieve that objective by numerous means, including ensuring that access to the courts is safe, speedy, inexpensive and simple, as is consistent with justice.

2. Frankly, that has not occurred in this case. Events giving rise to the issues between the appellant and respondent began in and, on one view of the case before, 2006.

3. The court journey began on 3 November 2006 when MD, the respondent and hereafter the complainant, sought protection offered by the Act based upon writings, principally letters, authored by Paul Garde, the appellant and hereafter the defendant. As a consequence of the complaint, the defendant was summonsed to appear in the Local Court on 17 November 2006 to answer the complaint and be dealt with according to law.

4. There were five appearances before the Local Court, before a hearing was embarked upon before Magistrate Forbes on 29 June 2007. It was adjourned part-heard. A further date was set for early October. On that occasion the defendant failed to attend. It proceeded ex parte. Further evidence was led on that occasion,…

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.

Continue reading Paul Garde v MD

Details

AGLC: Paul Garde v MD [2009] NSWDC 389
Case: [2009] NSWDC 389
Decision Date: 10 December 2009

CaseChat Overview and Summary

In the case of Paul Garde v MD, the appellant, Paul Garde, sought to appeal a decision made by a magistrate in the Local Court of New South Wales. The original matter involved an application for an Apprehended Personal Violence Order (APVO) under the Domestic Violence Act 1994 (NSW), which was granted by the Local Court. The appellant contested the validity of the APVO, arguing that it should not have been issued due to insufficient evidence of intimidation and fear. The appeal was heard in the District Court of New South Wales.

The court had to address several legal issues, including the scope and objectives of the domestic violence legislation, the parameters of appellate jurisdiction, and the admissibility of evidence that was previously rejected in the Local Court. The court also needed to determine whether the findings of intimidation were supported by the evidence and whether the appellant's actions constituted intimidation under the Act. Furthermore, the court had to consider the implications of the appellant's publications and their potential to intimidate the respondent.

The court found that the objectives of the domestic violence legislation were to protect individuals from violence and intimidation within domestic relationships. The appeal was not a rehearing of the original matter but rather an examination of the legal correctness of the magistrate's decision. The court could consider evidence that was not presented in the Local Court and could also reassess the magistrate's findings. After reviewing the evidence and arguments presented, the court determined that the magistrate's findings of intimidation and reasonable grounds for fear were well-founded and supported by the evidence. The court dismissed the appeal, confirmed the 2-year APVO with the mandatory orders, and imposed costs of the appeal on the appellant.

The final orders of the court included the dismissal of the appellant's appeal, the confirmation of the 2-year APVO with the mandatory orders, and the imposition of the costs of the appeal on the appellant. The court also confirmed the orders for court costs as imposed by the magistrate. Additionally, two orders that were no longer relevant were quashed.

Orders

Orders of the court

Appeal dismissed.

2 year APVO with the mandatory A, B & C orders imposed by the learned magistrate confirmed. Costs of appeal as assessed to be paid by appellant.

Orders of court costs as imposed by the learned magistrate confirmed.

The two orders, now lo longer having relevance, imposed by the learned magistrate quashed:

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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CITATION:	Paul Garde v MD [2009] NSWDC 389
HEARING DATE(S):	07/12/2009 and 08/12/2009
JUDGMENT DATE:	10 December 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Appeal dismissed. 2 year APVO with the mandatory A, B & C orders imposed by the learned magistrate confirmed. Costs of appeal as assessed to be paid by appellant. Orders of court costs as imposed by the learned magistrate confirmed. The two orders, now lo longer having relevance, imposed by the learned magistrate quashed:
CATCHWORDS:	Criminal Law - Local Court Appeal to District Court - against Apprehended Personal Violence Order - objective and aims of domestic violence legislation - scope of appellate jurisdiction - rehearing - not to abe on basis law and events are frozen to time original application heard - evidence rejected at first instance may be admissible on appeal - Local Court judgment can be received at appeal hearing - what constitutes intimidation - publications may constitute intimidation - findings of intimidation - fear and reasonable grounds for fearing.
LEGISLATION CITED:	s. 84 Crimes (Domestic and Personal Violence) Act 2007 s. 18 Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986
CASES CITED:	Edwards v Noble (1971) 125 CLR 298 at E304 Camilleri Stock Feeds Ply v EPA (1993) 32 NSWLR 683 at p 689 Gianoutsos v Glykis (2006) 65 NSWLR 539 at 544 at [31] Charara v The Queen [2006] NSWCCA 244 Ex Parte Currie v Dempsey (1968) 70 SR 1 at p10 Queen v Apostolides (1984) 154 CLR 563 Fox v Percy (2003) 214 CLR 118
PARTIES:	Paul Garde MD
FILE NUMBER(S):	2009/00010081
COUNSEL:	Respondant: M England Appellant: D Hand