Citation: Paul Garde v MD [2009] NSWDC 389
Court: District Court of New South Wales
Date: 10 December 2009
Judge(s): Nicholson SC DCJ
Background
The complainant first sought protection under the Crimes (Domestic and Personal Violence) Act 2007 in November 2006, based on a series of letters and publications authored by the defendant. The underlying dispute concerned residents of a strata complex, with the defendant directing written communications at the complainant that the complainant described as harassing and intimidating.
After protracted Local Court proceedings, including an adjournment, an ex parte hearing, an annulment, and a change of magistrate, Magistrate Curran made a two-year Apprehended Personal Violence Order (APVO) against the defendant in March 2009. The mandatory conditions (commonly referred to as orders A, B and C) prohibited intimidation, along with additional orders restricting the defendant from posting material on the owners' corporation noticeboard and distributing personal or financial information about the complainant to other residents.
The defendant appealed to the District Court, challenging both the jurisdiction exercised and the substantive finding that his conduct constituted intimidation warranting an APVO.
Legal Issues
- Whether a District Court rehearing of an APVO appeal is confined to the law and facts as they existed at the time of the original Local Court hearing, or whether the court can apply current law and consider subsequent events.
- Whether evidence rejected at first instance can be retendered on appeal if circumstances have changed.
- Whether the Local Court judgment itself is admissible at the appeal hearing.
- Whether the defendant's publications and written communications constituted "intimidation" within the meaning of the Act.
- Whether the complainant had reasonable grounds to fear, and actually feared, conduct by the defendant sufficient to warrant the continuation of the APVO.
Decision
Scope of the rehearing: The District Court held that an appeal by way of rehearing under s 18 of the Crimes (Appeal and Review) Act 2001 is not frozen to the law and events at the time of the original hearing. Drawing on Edwards v Noble (1971) 125 CLR 298, Camilleri Stock Feeds v EPA (1993) 32 NSWLR 683, and Gianoutsos v Glykis (2006) 65 NSWLR 539, the Court confirmed that it may apply the law as it currently exists and consider the evidence in the light of any additional material admitted by leave. A rehearing is not a retrial, but it is not a purely historical exercise either.
Admissibility of previously rejected evidence and the Local Court judgment: The Court held that evidence previously rejected at first instance may be admissible on appeal if circumstances have changed, subject to the interests of justice test for fresh evidence. The Local Court judgment was also received in evidence at the appeal hearing.
Intimidation through publications: The Court found that publications, including letters distributed knowingly or recklessly so that the complainant would become aware of them, can constitute intimidation under the Act. The defendant's writings were found to contain vitriolic and extravagant allegations amounting to harassment. This conduct, the Court held, was sufficient to ground a finding of intimidation.
Fear and reasonable grounds: The Court was satisfied on the balance of probabilities that the complainant both genuinely feared future conduct by the defendant and had reasonable grounds for that fear, based on the nature and pattern of the defendant's past publications. Accordingly, the appeal was dismissed and the APVO confirmed, subject to the removal of two conditions the Court considered no longer relevant.
Orders Made
- Appeal dismissed.
- Two-year APVO with mandatory A, B and C conditions (including prohibition against intimidation) confirmed, with the commencement date of 6 March 2009 preserved.
- The two additional conditions (prohibiting posting on the owners' corporation noticeboard and distributing personal or financial information to other residents) quashed as no longer relevant.
- Costs of the Local Court proceedings as ordered by the magistrate confirmed.
- Defendant to pay the complainant's costs of the appeal as assessed.
Key Takeaways
- A District Court rehearing of an APVO appeal is not confined to the law and circumstances as they stood at the original hearing. The court applies current law and may consider additional evidence admitted in the interests of justice.
- Evidence rejected at first instance is not permanently excluded. It may be admissible on appeal where circumstances have changed and the interests of justice warrant its reception.
- Publications and written communications can constitute "intimidation" under the Crimes (Domestic and Personal Violence) Act 2007, particularly where they contain harassing content and are distributed with knowledge or recklessness as to whether the protected person will become aware of them.
- Under the Act's test, a finding that a protected person fears future conduct requires satisfaction both that the fear is genuine and that there are objectively reasonable grounds for it. The standard is assessed on the balance of probabilities.
- In dismissing the appeal, the District Court also quashed two specific ancillary conditions that had become otiose through the passage of time, illustrating that an appellate court on rehearing can refine the terms of an order even while confirming its substance.
Legislation and Cases Referenced
Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 84
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Criminal Procedure Act 1986 (NSW)
Cases:
- Edwards v Noble (1971) 125 CLR 298
- Camilleri Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
- Gianoutsos v Glykis (2006) 65 NSWLR 539
- Charara v The Queen [2006] NSWCCA 244
- Ex Parte Currie v Dempsey (1968) 70 SR 1
- R v Apostolides (1984) 154 CLR 563
- Fox v Percy (2003) 214 CLR 118