Citation: R v Gittany (No 2) [2013] NSWSC 1599
Court: Supreme Court of NSW
Date: 4 November 2013
Judge: McCallum J
Background
The accused stood trial before McCallum J, sitting alone without a jury, charged with the murder of his fiancée. The deceased died almost instantly after falling from the balcony of their 15th-floor Sydney apartment on 30 July 2011. The Crown alleged the accused held her horizontally in his arms and deliberately dropped her over the external railing. The accused contended she ran to the balcony herself, climbed over, and either slipped or fell from an awning below.
Both the Crown and the defence led evidence about the nature of the couple's relationship. The Crown called the deceased's mother, a personal trainer, and a counsellor, much of whose evidence consisted of statements the deceased had made to them. The accused objected to portions of that evidence. Separately, the Crown objected to defence evidence in cross-examination concerning a film of the deceased in which she appeared happy and playful.
The trial was judge-alone, and the parties agreed that final rulings on many evidentiary objections could appropriately be deferred until the close of the Crown case, so the court could assess the evidence with a fuller understanding of the Crown's case. This judgment delivers those rulings.
Legal Issues
- Whether evidence of the relationship between the accused and the deceased was relevant to a fact in issue in the proceedings
- Whether any exclusionary provisions under the Evidence Act 1995 applied to specific items of relationship evidence, including hearsay statements by the deceased
- Whether particular items of evidence should be excluded under ss 135 to 137 of the Evidence Act 1995 on grounds of unfair prejudice or limited probative value
- Whether the film of the deceased in which she appeared happy and playful was admissible in cross-examination
Decision
Issue 1: General framework for relationship evidence
McCallum J affirmed that relationship evidence is admissible only if it is relevant to a fact in issue. Her Honour followed the approach in R v Frawley, preferring to ask whether specific evidence directly establishes a fact relevant to an issue, rather than assuming relationship evidence is broadly admissible or inadmissible in homicide cases. Relevance turns on the particular circumstances, and the reception of such evidence also requires consideration of exclusionary provisions and the court's general discretion under ss 135 to 137.
Issue 2: Relevance of the Crown's relationship evidence
The Crown's case was that the accused subjected the deceased to a slow, escalating pattern of domination and control over approximately 18 months, culminating in her decision to leave the relationship shortly before her death. The court found that evidence of that pattern of conduct was directly relevant to the central factual question: whether the deceased climbed over the balcony herself or was lifted and thrown over by the accused. The relevance was analogous to Wilson v R, where the High Court held that relationship evidence bore on whether the accused performed the act charged. Her Honour also noted that the accused had opened his case on the basis that the relationship was loving but complex, and had given notice of tendency evidence that the deceased was prone to self-harm and dangerous conduct, further engaging the relevance of the Crown's relationship evidence.
Issue 3: Specific evidentiary rulings
Evidence from the deceased's mother about the accused taking away the deceased's key and passport was found to be relevant but excluded under s 135. The court concluded the evidence was liable to cause unfair prejudice in the form in which it was given, given its ambiguity as to occasion, timing, and whether the deceased was describing something the accused had done or threatened to do. Certain text messages from the accused to the deceased (texts 16, 17, and 18) were rejected for lack of probative value. Texts 21 and 22, which illustrated the kind of controlling conduct alleged by the Crown, were admitted as relevant. Text 23, which appeared to have been included in the objection by mistake, was not pressed.
Issue 4: Film of the deceased
The Crown objected to defence evidence elicited in cross-examination about a film of the deceased appearing happy and playful, recorded before October 2010. The court accepted that the accused's contention about a loving and affectionate relationship was important to his case. However, the court found the film carried so little weight on that issue as to warrant exclusion, and rejected the evidence accordingly.
Orders Made
- Rulings on evidence
Key Takeaways
- Relationship evidence in homicide proceedings is admissible only when it is directly relevant to a specific fact in issue, not merely because the accused and deceased were in a relationship. The court applied the Frawley principle, asking whether each specific item of evidence bore on an identifiable fact in dispute.
- A slow, escalating pattern of control and domination, built up through many individually minor acts over time, can collectively satisfy the relevance threshold where the Crown's theory of motive and act depends on that cumulative pattern.
- Evidence that is relevant may nonetheless be excluded under s 135 of the Evidence Act 1995 where its form is ambiguous, its timing unclear, and its reception would risk unfair prejudice disproportionate to its probative value.
- Where an accused gives notice of tendency evidence concerning the deceased's own conduct, that circumstance can itself inform the relevance of the Crown's relationship evidence led in response.
- Defence evidence elicited in cross-examination is subject to the same exclusionary analysis as Crown evidence. Low probative weight on a contested issue can justify exclusion even where the topic of the evidence is genuinely in dispute.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- R v Clark [2001] NSWCCA 494
- R v Frawley (1993) 69 A Crim R 208
- R v Toki (No 3) [2000] NSWSC 999
- Wilson v R (1970) 123 CLR 334