Paul Garde v MD [2009] NSWDC 389

Paul Garde v MD [2009] NSWDC 389

The appellant's publications constituted conduct amounting to harassment and thus intimidation under the Act, supporting the confirmation of the apprehended personal violence order, as the respondent continues to subjectively fear, on reasonable grounds, further similar conduct. The statutory requirements for the order are met and the mandatory orders A, B & C were properly imposed. Two additional orders were otiose and are quashed. The trial below and costs orders are affirmed.

Parties
Appellant: Paul Garde; Respondent: MD
Jurisdiction
Australia
Judgment Date
10 December 2009
Procedural Posture
Local Court Appeal to District Court / Appeal Judgment
Outcome
Appeal dismissed; APVO confirmed with modifications; costs to respondent.
Legal Topics
Apprehended Personal Violence Orders, Domestic Violence Legislation, Scope of Appellate Jurisdiction, Rehearing on Appeal, Intimidation Harassment, Fresh Evidence
Criminal Law Apprehended Personal Violence Orders Domestic Violence Legislation Scope of Appellate Jurisdiction Rehearing on Appeal Intimidation Harassment Fresh Evidence

Case Brief

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Parties

Paul Garde

Appellant

MD

Respondent

Procedural Posture

Local Court Appeal to District Court / Appeal Judgment

Legal Issues

  1. 1 Whether the publications by the appellant constitute intimidation and harassment under the Act
  2. 2 Whether the complainant continues to have a subjective fear and reasonable grounds for that fear justifying an Apprehended Personal Violence Order
  3. 3 The nature and scope of a rehearing under s 18 Crimes (Appeal and Review) Act 2001 and s 84 Crimes (Domestic and Personal Violence) Act 2007

Ratio Decidendi

The appellant's publications constituted conduct amounting to harassment and thus intimidation under the Act, supporting the confirmation of the apprehended personal violence order, as the respondent continues to subjectively fear, on reasonable grounds, further similar conduct. The statutory requirements for the order are met and the mandatory orders A, B & C were properly imposed. Two additional orders were otiose and are quashed. The trial below and costs orders are affirmed.

Court Disposition

Appeal dismissed; APVO confirmed with modifications; costs to respondent.

Orders

  • Mandatory A, B & C orders (Apprehended Personal Violence Order) confirmed for 2 years from 6 March 2009
  • Two specific orders imposed by Magistrate (regarding posting on noticeboard and distribution to Durham Village residents) quashed as now irrelevant