R v Gittany (No 2) - [2013] NSWSC 1599

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 334
Category: 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…

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 R v Gittany (No 2)

Details

AGLC: R v Gittany (No 2) [2013] NSWSC 1599
Case: [2013] NSWSC 1599
Decision Date: 04 November 2013

CaseChat Overview and Summary

The case of R v Gittany (No 2) involved the appeal of the conviction of the defendant, Gittany, for murder. The High Court was tasked with determining the admissibility of certain relationship evidence in the trial. The evidence in question related to a series of communications between Gittany and his partner, which suggested a possible motive for the murder and a cover-up. The trial judge had excluded this evidence, deeming it inadmissible under the operation of s 137 of the Evidence Act 1995 (Cth). Gittany appealed on the grounds that the trial judge should have admitted the relationship evidence, arguing it was relevant to establishing his motive and intention.

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