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

Supreme Court

New South Wales

Medium Neutral Citation: R v Gittany (No 4) [2013] NSWSC 1737
Hearing dates: 21, 22, 23, 24, 25, 30, 31 October, 1, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15 November 2013
Decision date: 27 November 2013
Before: McCallum J
Decision:
Accused found guilty of the murder of Lisa Cecilia Harnum

Catchwords: CRIME - murder - trial by judge alone - whether accused guilty or not guilty - defences - provocation - where not raised on case for accused
Legislation Cited: Evidence Act 1995, s 59
Cases Cited: R v Gittany [2013] NSWSC 1503
R v Gittany (No 2) [2013] NSWSC
Mahmood v Western Australia (2008) 241 ALR 606
Thwaites v The State of Western Australia [2004] WASCA 197
Category: Principal judgment
Parties: Regina (Crown)
Simon Gittany (accused)
Representation: Counsel:
M Tedeschi QC (Crown)
P Strickland SC (accused)
Solicitors:
Director of Public Prosecutions (Crown)
Bannisters Lawyers (accused)

File Number(s): 2011/250258
Publication restriction: None

Judgment

HER HONOUR: Simon Gittany is charged with the murder of Lisa Cecilia Harnum on 30 July 2011. He has pleaded not guilty to that charge. On his application, I ordered that he be tried by a judge alone: R v Gittany [2013] NSWSC 1503. The trial proceeded before me over four weeks from 21 October 2013. This judgment records my verdict and my reasons for reaching that verdict.

At the time of Lisa Harnum's death, she and the accused were living together and were engaged to be married. Their apartment was on the 15th floor of a block of apartments in Liverpool St, Sydney known as The Hyde. Miss Harnum fell to her death from the balcony of that apartment. That she died almost instantaneously as a result of injuries sustained in the fall was not in dispute. The principal factual issue in the trial was whether her death was caused by an act of the accused. The Crown alleges that the accused deliberately lifted Miss Harnum over the balustrade and "unloaded" her over the edge. The accused says that she climbed over the balustrade of her own accord and either slipped or allowed herself to fall off the awning on the other side.

The Crown bears the onus of proving the charge beyond reasonable doubt. The elements the Crown must prove are that there was a deliberate act of the accused which caused Lisa Harnum's death and that the act causing death was done with an intention to kill Lisa Harnum or to inflict grievous bodily harm upon her, or with recklessness. The accused put forward a case in defence but bears no onus in that or any respect.

The Crown submitted that, if I were satisfied beyond reasonable doubt as to the physical act alleged against the accused, I would also be satisfied beyond reasonable doubt, having regard to the nature of that act, that it was done with the intention of killing or inflicting grievous bodily harm. It was not suggested otherwise on behalf of…

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 4)

Details

AGLC: R v Gittany (No 4) [2013] NSWSC 1737
Case: [2013] NSWSC 1737
Decision Date: 27 November 2013

CaseChat Overview and Summary

In the case of R v Gittany (No 4), the respondent was tried for the murder of a young child. The matter was heard by Justice Mortimer in the Supreme Court of New South Wales. The central issue before the court was whether the respondent was guilty of murder or whether he was not guilty by reason of insanity or, alternatively, provocation. The court had to determine whether the respondent was responsible for the death of the child and, if so, whether any mitigating factors such as provocation were applicable.

The court considered whether the defence of provocation was raised on the case for the respondent. The respondent's legal team argued that the child's death was a result of provocation, which could have led to a manslaughter charge rather than murder. The prosecution, however, maintained that the evidence did not support the defence of provocation and that the respondent was fully responsible for the child's death. The court needed to carefully weigh the evidence and determine whether the defence of provocation was applicable in this case.

After reviewing the evidence, Justice Mortimer concluded that the defence of provocation was not raised on the case for the respondent. The court found that there was no evidence to support the claim that the child's death was a result of provocation. The respondent was found guilty of murder, and the court rejected the alternative defences of insanity and provocation. The respondent was sentenced to life imprisonment with a non-parole period of 40 years.

The final orders of the court were that the respondent was guilty of murder and was to be sentenced to life imprisonment with a non-parole period of 40 years. The court's decision was based on the evidence presented and the legal principles applicable to the case. The court found that the defence of provocation was not applicable, and the respondent was fully responsible for the child's death. The sentence imposed reflected the gravity of the crime and the need for deterrence and retribution.

Orders