Citation: R v Gittany (No 4) [2013] NSWSC 1737
Court: Supreme Court of New South Wales
Date: 27 November 2013
Judge: McCallum J
Background
The accused was charged with the murder of his fiancée, who died on 30 July 2011 after falling from the balcony of their apartment on the 15th floor of a building in Liverpool Street, Sydney. The couple had been living together and were engaged to be married. Her death from injuries sustained in the fall was not disputed.
The central factual contest was whether the death resulted from an act of the accused or from the deceased's own conduct. The Crown alleged the accused deliberately lifted her over the balustrade and dropped her. The accused maintained she had climbed over the balustrade of her own accord and either slipped or allowed herself to fall.
The accused elected to be tried by judge alone. The trial ran for four weeks from 21 October 2013, attracting significant public attention.
Legal Issues
- Whether the Crown proved beyond reasonable doubt that the accused committed the physical act causing the deceased's death
- Whether, if the physical act was proved, the necessary intention (to kill, inflict grievous bodily harm, or recklessness) was also established
- Whether the defence of provocation was available on the evidence, and if so, whether it could reduce the offence below murder
- The proper approach to hearsay evidence given the deceased could not be cross-examined, and the weight to be accorded to witness accounts of things she had said
Decision
McCallum J conducted a detailed assessment of the relationship evidence, which was admitted not as tendency evidence but for other limited purposes. A substantial portion of that evidence came from the deceased's mother, her personal trainer, and her counsellor, all of whom recounted things the deceased had said to them. Her Honour carefully identified the inherent risks in hearsay evidence, particularly the inability to test the deceased's accounts under cross-examination, the possibility of misremembering or misunderstanding, and the potential for inadvertent bias. The deceased's mother was ultimately found to be a straightforward, honest, and mostly reliable witness.
The relationship evidence established, to her Honour's satisfaction, that the accused had exercised extensive and escalating control over the deceased in the months before her death. By the time of her death, the deceased's social world had been reduced to a personal trainer and a recently retained counsellor, and she was subject to a high degree of surveillance and control in her daily life.
On the critical events of the morning of the death, her Honour rejected the accused's account that the deceased climbed over the balustrade unaided. His evidence that he quickly regained composure after a physical struggle at the apartment door was found to be inherently implausible. Her Honour accepted the evidence of an independent witness, Mr Rathmell, without entertaining any reasonable doubt as to its reliability. She found it likely the deceased was rendered unconscious following the struggle, and was satisfied beyond reasonable doubt that the accused, maintaining his state of rage, carried the deceased to the balcony and dropped her over the edge.
On provocation, her Honour considered whether the accused's conduct could have been triggered by a loss of self-control induced by the deceased's conduct that morning, including her attempts to leave. While her Honour could not exclude the reasonable possibility that the accused had in fact lost control, she was satisfied beyond reasonable doubt that the deceased's conduct was not capable of inducing an ordinary person in the accused's position to lose self-control to the degree required. The accused's expectations about the degree of control he was entitled to exercise over a partner were not to be attributed to the ordinary person. Provocation was therefore rejected.
Orders Made
• The accused is found guilty of the murder of Lisa Cecilia Harnum
Key Takeaways
- McCallum J found the accused guilty of murder, being satisfied beyond reasonable doubt that he deliberately carried the deceased to the balcony and dropped her over the edge while in a sustained state of rage.
- Hearsay evidence from witnesses recounting the deceased's own statements was admitted under exceptions to the hearsay rule, but the Supreme Court emphasised the need for careful evaluation of such evidence, including the risk of misremembering, the inability to cross-examine the deceased, and the potential for inadvertent bias in close relationships.
- In a judge-alone trial attracting extensive media coverage, the court expressly acknowledged the need to guard against sympathy for the victim's family and against any negative or positive sentiment toward the accused generated by the evidence.
- The defence of provocation was assessed by reference to the ordinary person standard: the accused's particular views about the degree of surveillance and control he was entitled to exercise over his partner could not be attributed to the ordinary person, and the deceased's conduct in attempting to leave did not meet the threshold required.
- Relationship evidence admitted for limited purposes, and not as tendency evidence, can still form part of the factual context against which a court evaluates the plausibility of an accused's account and the circumstances surrounding a death.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 59 (hearsay rule)
Cases
- R v Gittany [2013] NSWSC 1503 (application for judge-alone trial)
- R v Gittany (No 2) [2013] NSWSC 1599 (evidentiary rulings)
- Mahmood v Western Australia (2008) 241 ALR 606
- Thwaites v The State of Western Australia [2004] WASCA 197