Gittany v The Queen - [2016] NSWCCA 182

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Gittany v R [2016] NSWCCA 182
Hearing dates: 10 June 2016
Decision date: 19 August 2016
Before: Basten JA at [1];
R A Hulme J at [118];
Fagan J at [119]
Decision:
(1) To the extent necessary, grant the applicant leave to appeal under s 5(1) of the Criminal Appeal Act.
(2) Dismiss the applicant’s appeal against conviction.
Catchwords:
APPEAL – criminal conviction – leave to appeal – challenge to findings in judge-alone trial – assessment of expert evidence as to reliability of eye-witness testimony – whether verdict unreasonable

CRIME – murder – leave to appeal conviction – judge- alone trial – expert evidence on witness testimony and memory contamination – whether error in discounting evidence of expert witness – whether failure to assess reliability of evidence of key witness
EVIDENCE – expert evidence – forensic psychology – reliability of witness’ memory – expert evidence on phenomenon of unconscious contamination of perceptions by subsequently acquired information and internal processes of reconstruction – whether reasoning as to contamination based on misunderstanding of witness’ evidence – whether evidence of post-event information supported theory of witness’ memory contamination – whether delay in giving of witness’ account supported contention of contamination
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Procedure Act 1986 (NSW), s 133
Cases Cited: Filippou v The Queen [2015] HCA 29; 89 ALJR 776
Category: Principal judgment
Parties: Simon Gittany (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr S Odgers SC/Ms A Francis (Applicant)
Ms S Dowling SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2011/250258
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal

Citation:

R v Gittany (No 4) [2013] NSWSC 1737

Date of Decision:

27 November 2013

Before:

McCallum J

File Number(s):

2011/250258

Judgment

BASTEN JA: The applicant, Simon Gittany, seeks leave to appeal from his conviction on a single charge of murder. The charge arose from the death of his then partner, Lisa Cecilia Harnum, who, on 30 July 2011, plunged to her death from the balcony of a 15th floor apartment in Liverpool Street, Sydney.
At the applicant’s request, he was tried by judge alone, the trial extending from 21 October until 15 November 2013. On 27 November 2013 McCallum J delivered judgment finding the accused guilty of the murder of Ms Harnum. [1]
1. R v Gittany (No 4) [2013] NSWSC 1737 (“Gittany”).
The application for leave to appeal was not filed until 22 December 2015. The grounds identified were as follows:

1.   A miscarriage of justice resulted from the trial judge erroneously discounting the evidence of Dr Richard Kemp.
2.   A miscarriage of justice resulted from the trial judge failing properly to assess the reliability of the evidence of Joshua Rathmell.
3.   The verdict was unreasonable.

Because the grounds did not raise a question of law alone, senior counsel for the applicant accepted that leave was required pursuant to s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gittany v The Queen

Details

AGLC: Gittany v The Queen [2016] NSWCCA 182
Case: [2016] NSWCCA 182
Decision Date: 19 August 2016

CaseChat Overview and Summary

In Gittany v The Queen, the appellant sought leave to appeal his conviction for the murder of a young woman. The case was heard and determined by the High Court of Australia. The appellant challenged the findings made by the trial judge who had presided over a judge-alone trial, arguing that the verdict was unreasonable due to the trial judge's assessment of expert evidence regarding the reliability of eyewitness testimony.

The legal issues before the court involved the trial judge's handling of expert evidence from a forensic psychologist concerning the reliability of the key witness's memory. The appellant contended that the trial judge had erred in discounting the evidence of the expert witness, who had testified about the phenomenon of unconscious contamination of perceptions by subsequently acquired information and internal processes of reconstruction. The appellant also argued that the trial judge had failed to assess the reliability of the evidence provided by the key witness.

The court considered whether the trial judge had misunderstood the expert's evidence regarding memory contamination, whether the evidence of post-event information supported the theory of memory contamination, and whether the delay in the witness's account supported the contention of contamination. Ultimately, the court found that the trial judge had not erred in the way he assessed the expert evidence or the reliability of the key witness's testimony, and therefore, the appellant's appeal was dismissed.

The final orders of the court were that the appeal be dismissed, and the conviction and sentence imposed by the trial judge were upheld.

Orders