Supreme Court
New South Wales
Medium Neutral Citation: R v Gittany (No 2) [2013] NSWSC 1599 Hearing dates: 1 November 2013 Decision date: 04 November 2013 Before: McCallum J Decision: Rulings on evidence
Catchwords: EVIDENCE - relationship evidence - whether relevant - operation of exclusionary provisions Legislation Cited: Evidence Act 1995 Cases Cited: 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 334Category: Interlocutory applications Parties: Regina
Simon Gittany (accused)Representation: Counsel:
M Tedeschi AM QC (Crown)
P Strickland SC (accused)
Solicitors:
Director of Public Prosecutions (Crown)
Bannisters Lawyers & Attorneys (accused)
File Number(s): 2011/250258 Publication restriction: None
Judgment
HER HONOUR: Simon Gittany is charged with the murder of Lisa Cecilia Harnum. His trial commenced on 21 October 2013 and is by judge alone: see R v Gittany [2013] NSWSC 1503. This judgment gives rulings as to evidence.
Miss Harnum was the fiancée of the accused. She died almost instantaneously after falling from the balcony of their 15th floor apartment shortly before 10am on Saturday 30 July 2011. The Crown case is that her fall was due to a deliberate act of the accused, described in the contention that he held her body horizontally across his arms and "unloaded" her over the edge of the external railing of the balcony. The accused says that Miss Harnum ran to the balcony of her own accord, climbed over the railing and either slipped or let herself fall from the awning below.
Both the Crown and the accused have led evidence in the trial about the relationship between the accused and the deceased. The Crown has led evidence on those issues from the deceased's mother, who lives in Canada (Mrs Joan Harnum); a personal trainer who began training the deceased two weeks before her death (Ms Lisa Brown) and a counsellor to whom Ms Brown referred the deceased (Ms Michelle Richmond). Most of the evidence of those witnesses is of statements made to them by the deceased. Only some of their evidence has been the subject of objection.
Separately, the Crown has objected to evidence given in cross-examination by a friend of the accused as to a film of the deceased taken by the accused in about December 2010 (in which she appears happy and playful).
I heard most of the argument as to the accused's objections at a pre-trial hearing on 15 October 2013. The objections were at that point expressed by reference to the written statements of the witnesses in question. I gave some indicative rulings that day but it became clear during argument that in many instances it would be necessary to hear the evidence given orally before making a final determination. Since the accused is not being tried by a jury, the parties agreed that those issues could appropriately be deferred until the conclusion of the Crown case, when they could be considered with a better understanding…
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- AGLC
- R v Gittany (No 2) [2013] NSWSC 1599
- Case
- [2013] NSWSC 1599
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the relationship evidence was admissible under s 137 of the Evidence Act, which prohibits the admission of evidence of a relationship between two people for the purpose of proving the character of either party. The court had to consider the relevance of the evidence to the issue of motive and intention, and whether it was outweighed by the potential prejudice to the defendant. The court also had to determine whether the trial judge erred in excluding the evidence based on a misapplication of the statutory provisions.
The court held that the trial judge had erred in excluding the relationship evidence. The majority of the court found that the evidence was relevant to the issue of motive and intention, and that its probative value was not substantially outweighed by the danger of unfair prejudice. The court emphasised that the exclusionary provision in s 137 does not apply to evidence of a relationship that is relevant to prove a fact in issue other than the character of the parties. The court also noted that the evidence was crucial to establishing the defendant's motive and intention, which were central to the prosecution's case. The majority concluded that the trial judge should have admitted the evidence, and that the exclusion constituted a substantial miscarriage of justice.
The High Court allowed the appeal and quashed Gittany's conviction. The case was remitted to the NSW Court of Criminal Appeal for further consideration. The court ordered that the relationship evidence be considered in the re-trial, and that the trial judge be directed to admit the evidence if it was relevant to the issues in the case. This decision highlights the importance of carefully considering the admissibility of relationship evidence in criminal trials, and the need to balance the probative value of the evidence against the potential for prejudice.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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