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Court of Criminal Appeal 19 August 2016

Gittany v R

[2016] NSWCCA 182

Homicide
APPEAL CRIMINAL CONVICTION LEAVE TO APPEAL CHALLENGE TO FINDINGS IN JUDGE ALONE TRIAL WITNESS TESTIMONY

Citation: Gittany v R [2016] NSWCCA 182
Court: NSW Court of Criminal Appeal
Date: 19 August 2016
Judge(s): Basten JA; R A Hulme J; Fagan J

Background

The applicant was convicted of murder following a judge-alone trial in November 2013. The charge arose from the death of his then partner, who fell from the balcony of a 15th floor apartment in Liverpool Street, Sydney, on 30 July 2011. The trial judge, McCallum J, delivered her verdict on 27 November 2013.

The prosecution case relied significantly on the evidence of an eyewitness, Mr Joshua Rathmell, who was walking near Hyde Park at the time of the death. His evidence was that he observed the applicant "unload" something over the edge of the balcony, which he later understood to be the deceased. The trial judge herself identified this evidence as critical to the finding of guilt.

The applicant sought leave to appeal his conviction in December 2015, more than two years after the verdict. Three grounds were advanced: that the trial judge had wrongly discounted the evidence of a forensic psychology expert, that she had failed to properly assess the reliability of Mr Rathmell's evidence, and that the verdict was unreasonable.

  • Whether the trial judge erred in discounting the opinion evidence of Dr Richard Kemp, an Associate Professor of Forensic Psychology, concerning the contamination and reconstruction of eyewitness memory.
  • Whether the trial judge failed to properly assess the reliability of Mr Rathmell's eyewitness account, such that a reasonable doubt ought to have arisen.
  • Whether, taken together, those matters rendered the verdict unreasonable.
  • Whether leave to appeal was required under s 5(1) of the Criminal Appeal Act 1912 (NSW), given that the grounds did not raise a question of law alone.

Decision

The Court granted leave to appeal, accepting that the grounds raised matters of sufficient seriousness, given the nature of the charge and the acknowledged centrality of Mr Rathmell's evidence to the conviction. However, the Court ultimately dismissed the appeal on all grounds.

Dr Kemp's evidence concerned the psychological phenomenon of unconscious memory contamination: the process by which a witness may reconstruct their understanding of what they actually perceived, filling in gaps using subsequently acquired information or general knowledge about how events unfold. The applicant argued that the trial judge had wrongly discounted this evidence when assessing Mr Rathmell's account. The Court carefully examined the basis on which Dr Kemp's opinion was advanced and the extent to which the factual premises for his theory of contamination were actually established in the evidence. The Court found no error in the trial judge's treatment of Dr Kemp's evidence.

On the question of Mr Rathmell's reliability, the applicant did not contest that Mr Rathmell had a sufficient opportunity to observe events at the balcony. The sole argument was that he had unconsciously reconstructed his recollection after the fact. The Court examined the chronology of when Mr Rathmell gave his account (including his initial telephone account to police approximately 1.5 hours after the death), the degree of post-event information he was said to have received, and whether the conditions for contamination as described by Dr Kemp were actually present. The Court found the reasoning of the trial judge on these points was sound and disclosed no error warranting appellate intervention.

The Court also refused the Crown's application to undertake a view of the location from which Mr Rathmell had observed the events. That application was based on the trial judge's observation that viewing the location had profoundly affected her assessment. However, the Court noted that the impact of the view related to whether Mr Rathmell had a good opportunity to observe, and the applicant expressly did not contest that point. Given the confined scope of the grounds, the view would not have assisted the Court.

Orders Made

  • Leave to appeal granted pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW).
  • Appeal against conviction dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that leave to appeal is required under s 5(1) of the Criminal Appeal Act 1912 (NSW) where grounds do not raise a question of law alone, even in serious cases such as murder.
  • Expert psychological evidence on unconscious memory contamination is a recognised category of opinion evidence in criminal trials, but a trial judge is not required to accept such evidence uncritically; its weight depends on whether the factual conditions necessary to support the theory are actually established on the evidence.
  • In dismissing the appeal, the Court emphasised the confined scope of the grounds: because the applicant conceded that Mr Rathmell had the opportunity to observe the relevant events, the challenge was limited entirely to whether his memory had subsequently been contaminated, making that the sole question for appellate scrutiny.
  • No error was established in the trial judge's assessment of eyewitness reliability, even where the judge had taken the additional step of conducting a view of the observation point, provided the appellate challenge does not turn on the matters illuminated by that view.
  • A verdict will not be set aside as unreasonable where the specific evidential challenges raised on appeal do not displace the basis on which the trial judge was satisfied of guilt beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), s 133

Cases:
- Filippou v The Queen [2015] HCA 29; 89 ALJR 776
- R v Gittany (No 4) [2013] NSWSC 1737