Citation: GIANOUTSOS v GLYKIS [2006] NSWCCA 137
Court: New South Wales Court of Criminal Appeal
Date: 1 May 2006
Judge(s): McClellan CJ at CL; Sully J; Hislop J
Background
The appellant, a plastic surgeon, applied for an Apprehended Personal Violence Order (APVO) against the respondent, alleging she was the author of a series of anonymous and distressing emails received by him and his wife. The respondent had briefly been a patient of the appellant and had separately admitted to sending some emails, though she denied authoring the specific emails the subject of the complaint.
The Local Court magistrate made the APVO, finding on the balance of probabilities that the respondent had authored the harassing emails and that the appellant's fear was reasonable. That finding rested on oral evidence from multiple witnesses, expert linguistic analysis, and circumstantial evidence, including the timing of when the appellant's private email address was first disclosed.
The respondent appealed to the District Court, where Puckeridge DCJ upheld the appeal and set aside the order, concluding he was not satisfied the respondent had authored the emails. The appellant then brought proceedings in the Court of Criminal Appeal by way of case stated, challenging several aspects of the District Court's approach.
Legal Issues
- Whether the District Court appeal was a hearing de novo (a fresh hearing from scratch) or a rehearing on the record
- Whether the District Court judge erred in treating the appeal as a hearing de novo
- Where the onus of proof lay on appeal, and what the applicable standard of proof was
- Whether the District Court was required to be satisfied that the conduct amounted to harassment or intimidation before making an APVO
- Whether the District Court judge's reasons for dismissing the application were adequate
Decision
The Court of Criminal Appeal answered each of the stated questions in turn. On the first question, the Court found that the District Court appeal was not a hearing de novo but a rehearing, meaning the District Court was required to evaluate the evidence from the Local Court rather than start afresh. Although the District Court had treated the appeal as a de novo hearing, the Court found this procedural error was not material to the final outcome.
On the question of onus of proof, the Court confirmed that the respondent to the appeal (that is, the original applicant for the APVO, Dr Gianoutsos) continued to carry the onus of proving his case throughout the District Court proceedings. The applicable standard was the balance of probabilities, informed by the Briginshaw principle, meaning the seriousness of the matter required the evidence to produce actual persuasion before the tribunal could be satisfied of a fact.
The Court found that the District Court was required to be satisfied that the relevant conduct amounted to harassment or intimidation, and that this requirement had not been properly addressed. Crucially, the Court also found that the District Court's reasons were wholly inadequate. Puckeridge DCJ had failed to identify the relevant evidence bearing on authorship of the emails, engage with the circumstantial case pointing to the respondent, or explain why he was not satisfied on the evidence. This fell short of the obligation on judicial officers to provide reasons that enable parties to understand how the decision was reached.
The matter was remitted to the District Court to be determined in accordance with the Court of Criminal Appeal's answers to the stated questions.
Orders Made
- Leave to appeal granted (out of time)
- The stated questions answered as follows:
- Question 1: No (the appeal was not a hearing de novo)
- Question 2: Yes, but not material to the resolution
- Question 3: The respondent to the appeal (Dr Gianoutsos) retained the onus of proving his case
- Question 4: Yes
- Question 5: Yes
- Question 6: No (the District Court's reasons were not adequate)
- Matter remitted to the District Court to be determined in accordance with the answers to the questions raised
- Respondent ordered to pay the appellant's costs of the appeal
Key Takeaways
- A District Court appeal from a Local Court APVO decision is a rehearing, not a fresh hearing de novo; the District Court must engage with the evidence already before the lower court rather than conduct an entirely new proceeding.
- The original applicant for an APVO retains the onus of proving their case on appeal to the District Court, notwithstanding the change in the procedural posture of the parties.
- Under the Briginshaw standard, a tribunal applying the balance of probabilities to serious allegations must be genuinely persuaded by the evidence; the standard is not heightened beyond the civil balance of probabilities, but it does require actual satisfaction proportionate to the gravity of the matter.
- Where conduct is alleged to amount to harassment or intimidation in APVO proceedings, the court must be satisfied that the conduct crosses that threshold before making an order.
- Insufficient reasons from a judicial officer will constitute legal error; a judge must identify the relevant evidence, engage with the competing arguments, and explain why one version of events was preferred over another.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW)
- Crimes (Local Courts and Review) Act 2001 (NSW)
- Justices Legislation Amendment (Appeals) Act 1998 (NSW)
- Crimes Act 1900 (NSW), s 562AI
Cases:
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Allesch v Maunz (2000) 203 CLR 172
- Ainger v Coffs Harbour City Council [2005] NSWCA 424
- Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
- Cooper v Coffs Harbour Council (1997) 98 A Crim R 340
- Kantor v Vosahlo [2004] VSCA 235
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
- Jones v Bradley [2003] NSWCA 81
- G v H (1994) 124 ALR 353
- Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
- Powell v Streatham Manor Nursing Home [1935] AC 243