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 the accused. I accept the submission of the Crown on that issue.

On any view, the circumstances of Lisa Harnum's death were shocking and tragic. The trial experienced an unprecedented level of public attention, no doubt fuelled by the freedom of reporting enjoyed by the press in a trial without a jury. Both counsel reminded me in that context of the need to steel myself against the natural sways of sympathy and concern for Lisa Harnum's family and similarly against any negative sentiment, or indeed sympathy, towards the accused which may be excited by the evidence in the case.

There was a considerable amount of evidence in the trial as to the nature of the relationship between the accused and Lisa Harnum. Some of the evidence sought to be adduced by the Crown on that issue was excluded as being prejudicial, too general or too remote from the time of Lisa Harnum's death. Some was admitted over the objection of the accused: R v Gittany (No 2) [2013] NSWSC 1599. The accused adduced a considerable amount of relationship evidence himself.

It is important to bear in mind the limited purpose for which the relationship evidence was adduced and not to be unduly distracted by it. Importantly, such evidence was not admitted in the Crown case as tendency evidence. Ultimately, the critical events are those of the morning on which Lisa Harnum died. However, each party placed reliance, for different purposes, on evidence of events over many months before that day. It is accordingly necessary to consider and analyse that evidence in some detail.

The Crown sought to establish that, during the course of their relationship over approximately 18 months, the accused was controlling, abusive and dominating of Lisa Harnum; that he became progressively more so towards the end of the relationship and that Lisa Harnum's confidence and self-esteem became progressively diminished. It was put that, by the time of her death, she had no friends other than a personal trainer and a counsellor whom she had known only for a matter of weeks. The Crown contended that Lisa Harnum was by then subject to an extreme measure of control by the accused in her daily life.

The accused denied that characterisation of the relationship. It was put on his behalf that the reality of the relationship was more complex, being characterised by affection and love but also being in some respects dysfunctional. Mr Strickland SC, who appeared for the accused, opened his case anticipating that the evidence would establish a pattern of behaviour on the part of Lisa Harnum of arguing with the accused, threatening to leave him and then changing her mind.

Much of the relationship evidence was in the form of things said by Lisa Harnum to other people. The Crown led such evidence from Lisa Harnum's mother, Mrs Joan Harnum (who lives in Canada); the personal trainer, Ms Lisa Brown and the counsellor, Ms Michelle Richmond. The accused also gave evidence of things said to him by Lisa Harnum. Much of that evidence was hearsay evidence admitted under one of the exceptions to the hearsay rule to prove the existence of an asserted fact.

In considering evidence in that form, it has been important to bear in mind the inherent shortcomings of hearsay evidence. I have had to exercise caution in determining whether to accept the evidence and the weight to be given to it. A number of factors may cause such evidence to be unreliable. The most obvious, which applies to all witnesses who gave evidence in that form, is the fact that Lisa Harnum's version of events was not able to be tested by cross-examination. The limitations of a second-hand account are obvious and are well-recognised as a basis for exercising caution.

In the case of Mrs Harnum, I have had regard to the fact that she had many conversations with her daughter over a lengthy period of time. I have also had regard to the fact that she was first asked to recall such conversations at a time when she must undoubtedly have been in a state of shock and acute grief. I have had regard to the risk of her becoming confused between events. Mrs Harnum herself acknowledged that she may have confused one incident she described with an incident involving a previous boyfriend of Lisa Harnum's (T52.7; T331.45; I note that the evidence of that incident was excluded and has not been taken into account against the accused: R v Gittany (No 2) [2013] NSWSC 1599 at [26]).

I have taken into account the form in which Mrs Harnum received much of her information. Over a period of years, a great deal of her contact with her daughter was by long-distance telephone calls with a considerable time difference and by text messages. There are limitations in receiving information in that form, without the animation or added cues of physical gestures and facial expressions. I have considered the risk that such forms of information might be misunderstood or misremembered.

I have also considered the extremely close relationship between Mrs Harnum and her daughter and the risk that Lisa Harnum may have overstated the bad side of her relationship to her mother, who was undoubtedly Lisa's safest, most sympathetic audience right up until the time of her death. I have had regard to the risk of inadvertent maternal bias.

Mrs Harnum impressed me as a straightforward and careful witness. I do not think her evidence displayed any bias against the accused, inadvertent or otherwise. On the contrary, I thought she responded to meticulous and intense cross-examination fairly and with quiet dignity. She was not overly confident. She made a number of concessions readily and without prevarication. I have no hesitation in accepting her evidence as being completely honest and mostly reliable. Any reservation I have as to the reliability of any aspect of her evidence is explicitly addressed below.

It is necessary to give separate consideration, in the case of hearsay evidence relied upon as to the existence of an asserted fact, to the likely reliability of the underlying assertion. It was submitted for the accused that Lisa Harnum was an unreliable historian. Mr Strickland contended that she was a conflicted, complicated and confused woman who displayed a pattern of overreacting to events in the relationship, engaging in dramatic, attention-seeking behaviour and then settling down again. Those submissions are considered in the course of the chronological account of events that follows.

Mrs Harnum said that Lisa Harnum moved to Australia from Canada in 2004, settling first in Melbourne and later in Sydney. After moving to Sydney, she took a hairdressing course at Australian Hair & Beauty near Bondi Junction, where she also worked part time to help pay for her tuition. As at January 2010 she was staying temporarily with a woman called Amalia. It was at around that time that she met the accused.

The accused gave evidence. He said that he met Lisa Harnum in early 2010 through his friend George Karam, describing her as George's "mistress". She moved in with the accused at his previous apartment in Pitt Street. They commenced an intimate relationship about two months later (T668). The accused called Lisa Harnum by her middle name, Cecilia.

The accused gave evidence of the positive side of their relationship (T679 and see exhibits 1, 2, 3, 19 and 22). I have no doubt that he and Lisa Harnum loved each other and that their relationship was at times very happy. A number of witnesses gave evidence to that effect (Rebecca Triscaru at T386.45-387.9; Daniel Karpathios at T405; Barbara Gittany at T929 and Peter Mourgelas at T1082). Video evidence tendered by the accused shows that Lisa Harnum was a warm and vivacious person. She made fun of herself and she made other people laugh. It is clear that, at times, they got along extremely well. That is borne out by things she said to others and by the content of tens if not hundreds of text messages (exhibits 17 and 18). However, that was undoubtedly not the full picture.

The accused's own sister, Miss Barbara Gittany said that, during the course of his relationship with Lisa Harnum, the accused did not tell her they were continually having serious arguments, that she was continually threatening to leave the relationship or that he had downloaded a programme onto her phone so that he could monitor her SMS messages (T996.19). Lisa Harnum did not complain to her of the restrictions under which the accused was placing her.

Lisa Harnum was employed at the time she moved in with the accused. Her banking records from July 2009 show that she was receiving wages from Australian Hair & Beauty from at least that time until early May 2010, earning roughly $500 or $600 per week. The last payment of wages was made on 4 May 2010 (exhibit 15).

Mrs Harnum said that Lisa Harnum ended working there at the encouragement of the accused (T37.8). There was also evidence from a psychologist consulted by Lisa Harnum in January 2011 that the accused "had her stop work" (T235.26).

The accused denied that Lisa Harnum stopped working at the hairdressing salon at Bondi Junction at his request. He said that she was not happy with the work there (T672.29). He described a number of attempts he made to find her other work.

I am satisfied from what Lisa Harnum said to others that the accused probably did encourage her to stop working at the salon at Bondi Junction. However, there is insufficient detail on that issue to draw any inference as to whether that was done in any overbearing way. In light of the uncertainty of that evidence and its remoteness from the critical events in the trial I have not placed any weight on it except to the extent that it informs Lisa Harnum's growing sense, by at least January 2011, that she was losing herself.

In around June or July 2010, Lisa Harnum told her mother that she and the accused were "starting to have issues with each other" and that he had suggested that she see a counselor (T35.31). She started to see Mr Bablys. Mr Bablys was described as a "doctor of chiropractic" but seems to have provided a considerably more diverse range of services. He treated Lisa Harnum for stress, neck and shoulder pain, anxiety and sleeping and eating complaints.

At some point in September or October 2010, the accused and Lisa Harnum moved into the apartment at The Hyde. The evidence suggests that Miss Harnum was considering not moving into the new apartment with the accused. Mrs Harnum said that her daughter was wanting to move to Melbourne at around that time (T53.32) but that evidence was not supported by any words attributed to Lisa Harnum.

The lease is dated 13 September 2010 (exhibit 20). On 16 September 2010 the accused and Lisa Harnum had an argument. He told her to leave all her keys ("all the key, bank this house & new house") on the table (exhibit V, item 10). In his evidence the accused explained that, after the argument, Lisa Harnum she said she was leaving. She wanted to meet him at Westpac so that she could close an account (T681.11). He gave evidence that they had just received the keys to the new apartment and that is what his message referred to.

On 2 October 2010, Mrs Harnum sent a text message asking Lisa Harnum how she was. She replied (exhibit V, item11):

Same as usual. Walking time bombs x any minute boom explosions!!!

Lisa sent three further texts to her mother that day, as follows (exhibit V, items 12-14):

Thinking about it more and more everyday, looking at places online but don't want to go through the bullshit again. I miss my family and friends so much. I have no life. I'm thinking of bringing you down here to help me move my things. It will have to be a quick job though. I don't want to do anything stupid when I'm feeling the way I'm feeling at the moment.

I feel trapped, like I have to watch everything I say do feel, everything. I got in trouble yesterday because I said that I felt cold. So stupid. I have. Could probably throw more stuff out though.

He would probably make me go right then and there without getting my stuff. I have to be prepared. It is okay, mama, it is okay, promise.

Although the first of those messages suggests that Lisa Harnum was considering leaving at that time, earlier and later messages suggest that, at times during the same week, they were getting along well. I have ultimately placed little weight on the relationship evidence from September and October 2010. It confirms that the relationship was at times tumultuous and that Lisa Harnum did threaten to move out from time to time, a feature of the relationship relied upon by both the Crown and the accused. Beyond that, I do not think the evidence of that period is of any real assistance.

Probably in late November or early December 2010, the accused arranged to have surveillance cameras installed in the apartment at The Hyde. His reasons for doing so were related to security concerns (T714). He denied that a purpose of those cameras was to watch Lisa Harnum. He said she was present when they were both given instructions as to how to use the cameras (T714.48).

The cameras were installed by Mr James Drivas. He installed two cameras inside the apartment and one outside. The two inside cameras were mounted on the wall. They were visible but did not look like cameras. They had the appearance of motion detectors.

The camera outside the apartment was a pinhole camera placed next to the door and facing into the corridor outside (exhibit B). It was installed in such a way as to be virtually invisible. A policeman who knew it must be there could not see it when he first inspected that area (T449).

The surveillance system was fully integrated. The cameras were linked to a computer in the study (exhibit 29) and also to an external hard drive hidden in the ceiling. Mr Drivas said that the function of the external hard drive was to retain the footage in the event that the computer in the study was stolen. Confusingly, however, he also said that the system was set up so that the images would be recorded either to the computer in the study or to the external hard drive but not both (T353.50).

Each camera could be set either to record continuously or to record only when motion was detected. A different setting could be selected for each camera. Each camera could be switched off completely (T355.21).

Mr Drivas said that, if images from the pinhole camera were being recorded to the computer in the study, that would mean that if either of the other cameras was on, they would also be recording to that computer (as opposed to the hard drive). That was significant evidence, since police did in fact retrieve footage from the pinhole camera on the computer in the study. It would follow from the evidence of Mr Drivas, if he was correct, that no footage was being recorded to the hard drive at that time.

Mr Drivas said that, if only the pinhole camera was recording, that meant either that the other two cameras had been switched off or that there was no motion, if they were on (T355.14). Assuming there was motion in the apartment and the pinhole camera was recording, the two visible cameras must have been off (T355.18). The two visible cameras were able to be switched off by selecting the relevant camera on the system and selecting "stop recording".

Probably a few weeks before Lisa Harnum died, Mr Drivas's colleague, Mr Ross Cardamis, went to the apartment at the request of the accused to check the integrated system. He found that it was not working properly (exhibit 55).

The accused gave evidence that the "motion record" mode was still not working as at 25 July 2011 (T715). He sent a message to Mr Drivas that day saying "it's still recording full & not on motion" (exhibit V, item 105). Mr Drivas did not reply to that message. The accused sent a further message two days later to the same effect (exhibit V, item106). Mr Drivas agreed to drop by when he was next in the city but did not in fact get a chance to do that.

Mr Drivas said that, after the cameras had been installed, he explained to both the accused and Lisa Harnum how they worked, how to turn them on and off and about the replay facility and the different settings.

Police took a photograph of the placement of the cameras on the morning of Lisa Harnum's death (exhibit L). It shows both cameras facing into the apartment. One is facing into the loungeroom. Mr Drivas said that was not the location in which that camera was installed by him. He said it was installed facing towards the front door, whereas in exhibit L it is facing outside, towards Hyde Park. Mr Drivas said that the cameras were able to be moved to face in different directions. He was adamant that the placement of the cameras as found by police was not as installed by him. He said it would defeat the purpose of having two cameras to have them facing the same area (T361.5).

I am satisfied that the accused probably re-oriented that camera to facilitate his observation of Lisa Harnum. Whether or not that was one of his original purposes of having the cameras installed, I have no doubt the accused was using them for that purpose by the end of the relationship. So much was in effect accepted in his evidence about the morning of 30 July 2011.

During the post mortem examination, investigators found a handwritten note folded and torn into sections in the front pocket of Lisa Harnum's jeans. When reconstructed, the note read "there are cameras inside and outside the house" (exhibit S). The handwriting was Lisa Harnum's (T91.7). I will return to consider the significance of that note.

Mrs Harnum said that, towards the end of 2010, Lisa told her that she could not wear dresses and that the accused told her to wear pants and "just basic clothes" (T39.45). A text message sent by Lisa Harnum to her mother on 15 November 2010 stated that they had decided not to go out to clubs any more after that night because the accused "gets so uptight" and "gets uncomfortable with all of the guys around" (exhibit V, item 19). The accused said that message was quite accurate (T786.31). The same day, Lisa Harnum also wrote (exhibit V, item 20):

... Time for me to grow up and wear big girl pants now. This relationship sure has changed me a lot! I'm much more calm than I was before, domesticated, conservative, and dainty. I have nails now too.t own have grown quite long and now I have natural French manicure! Bought a whole bunch of flat and casual shoes and no more cleavage I'm afraid. Simon is terrified of summer and the beach. He said we seedling (sic) to have to find the burka bathinsuit to wear. Hehe xoxo

The accused agreed that they had spoken about her wearing flat shoes. He said that he thought it was inappropriate for her to wear high heels just to go to the shops (T786). He accepted that he was a jealous partner, at times very jealous. He said that his jealousy was triggered by his own insecurities, Lisa's two previous relationships and sometimes the clothes she would wear. He said that she wore revealing clothes, sometimes no bra, and that if she drank alcohol she became flirtatious. He advised her to tone down on how much she was revealing of her body so as not to attract what he termed "the wrong attention" or give out "the wrong signal" (T695.48-T696.20). Mr Strickland tendered a photograph of "the type of clothes she wore" when the accused "felt jealousy" (exhibit 28; T872.24). She was certainly an extremely beautiful woman.

In December 2010, Lisa Harnum went home to Canada for Christmas. She stayed for about three weeks. When she arrived, Mrs Harnum noticed a change in her appearance. Her hair was pulled back, she wore no make-up and her clothes were "blacks and greys...almost military, very non-revealing". Mrs Harnum said that was not what Lisa would normally wear (T56.11). The change in appearance described by Mrs Harnum may be observed in an album of photographs tendered by the accused (exhibit 19). The difference between birthday dinners is particularly stark (photos dated 11 June 2010 and 12 June 2011 in exhibit 19). The accused confirmed in his evidence that he was not comfortable with Lisa Harnum wearing revealing clothes and that he asked her not to wear clothes like that (T784).

Mrs Harnum said that when her daughter was in Canada at Christmas, she said she wasn't to let her friends know she was there because the accused did not want her to go out partying. The accused accepted that he had discussed with Lisa Harnum before she went to Canada that she would only visit her family (T789.47). He said that was because she gave him "the same order" (T790.7).

Mrs Harnum said that, during that visit, the accused called Miss Harnum constantly wanting to know "where she was, make sure she was only with family...what she was wearing, why she was at a mall" (T57.14). Similar demands by the accused may be found in an exchange of text messages around that time (exhibit V, items 25 to 31). His tone in those messages is stern and patriarchal. However, other texts between them suggest that each was content to accept a degree of self-imposed or mutually agreed constraint as to their social activities while she was away (exhibit 18, items 2 to 5, 15 and 16; and see evidence of Barbara Gittany at T933.22).

The mixed objective evidence prompts me to approach Mrs Harnum's evidence as to the accused's persistent contact during that trip with some caution. She necessarily heard only one side of the telephone conversations and she was not privy to the many text messages also exchanged during that time. I accept without equivocation her evidence as to the degree of control she observed was being exercised over her daughter by the accused during that period, but his vigilance was evidently not entirely unreciprocated.

My assessment of the evidence of that period is that Lisa Harnum and the accused were in love with each other at that time and were missing each other while they were apart. However, I am also persuaded that Lisa Harnum was by December 2010 being subjected to a degree of scrutiny and direction from the accused that was overbearing.

Mrs Harnum did not want Lisa to return to Australia and suggested that she stay in Canada. Lisa responded that she still held onto her dream of living in Australia and that she wanted to go back to try and make that dream come true (T57.27). Mrs Harnum said that, on more than one occasion, Lisa Harnum told her about arguments with the accused relating to her application for residency. She said Lisa told her the accused had said he "knew people that could have her visa application cancelled and that she had five minutes to pack her bag" (T47.35; T112.9).

It is important to note that that evidence was admitted not as to the truth of the words attributed to the accused but for the fact that he said those words to Lisa Harnum (as informing the nature of their relationship). Mrs Harnum said that her daughter had told her of such threats from the accused at least five times (T47.13).

Lisa Harnum told Lisa Brown that she was worried that if she left the accused she would not be able to stay because of the visa (T147.41). Michelle Richmond understood her to have said that a friend of the accused was handling her residency and had her papers and that, if she and the accused argued, "he would threaten that if she left him or didn't do what he wanted that she would be deported immediately" (T178.7).

The accused denied ever telling Lisa Harnum that he had a friend or lawyer who could cancel her application for permanent residency. He denied threatening to have her deported immediately (T676). He called evidence from a migration agent, Mr Jonathan Granger, with a view to establishing how unlikely it is that he would have said such things. He relied upon the fact that Lisa Harnum said those things to people as evidence of her being unreliable or prone to embellishment.

Mr Granger gave evidence that Lisa Harnum was eligible for a skilled independent visa. She had engaged him to lodge such an application well before she met the accused. It was lodged on 28 February 2009 (exhibits 35 and 36). The application was not dependent upon Lisa Harnum's being in a relationship with any person (T945.48). Mr Granger said he was not a friend of the accused. He thought he had met him only once, with Lisa Harnum.

One thing that did emerge from Mr Granger's evidence was that, if Lisa Harnum had been flown straight to Canada on short notice, it would have created a complication for her visa application. The skilled migrant visa is an onshore class of visa (T947.45). If she had travelled offshore without first obtaining a bridging B visa, she would have had to obtain a different type of visa (such as a tourist visa) in order to come back onshore to pursue the application.

Mr Strickland noted that, in a recording of a private conversation between the accused and Lisa Harnum, the accused is heard to promise Lisa Harnum that they would go to Canada together as soon as her visa came through (exhibit LL). Mr Strickland suggested that was inconsistent with the accused in effect holding the visa issue over her head as a threat. Having regard to the context of the conversation, it provides little basis for assessing what the accused may have said during a heated argument or under threat of Lisa Harnum leaving him.

I am mindful of the fact that the accounts of Mrs Harnum and Michelle Richmond on this issue are second-hand. They may not reflect words said to Lisa Harnum by the accused. There is a risk, for example, of confusion between what Lisa said the accused threatened to do and what impact she said the threatened conduct may have on her visa application. If Mrs Harnum was not familiar with Australian migration law herself, it would not be surprising if some of the detail of her account entailed confusion.

As to its being evidence of embellishment on the part of Lisa Harnum, I do not accept what was put on behalf of the accused. The fact that Mr Granger was not a friend of the accused does not disprove the making of any threat. The evidence that Lisa Harnum said the accused threatened to drive her straight to the airport giving her no time to pack her things has a coherence with my assessment of other aspects of the relationship. I think it is likely that the accused made such threats, whether or not he in fact had the power to carry them out.

Lisa Harnum did return to Australia against her mother's wishes. On 24 January 2011 she consulted a psychologist in Sydney, Ms Helen Sharwood. Ms Sharwood is not a clinical psychologist. She administered a questionnaire known as DASS-21 (a depression, anxiety and stress scan) which she uses as a screening tool.

Ms Sharwood did not make notes during the consultation but made notes afterwards. She said that those notes were made within about an hour or so of the consultation (T233.41).

Ms Sharwood gave her evidence by reference to those notes (exhibit H). She said that Lisa Harnum told her that the accused had wanted her to come "for a relationship problem". She told Ms Sharwood that she was "feeling trapped". The notes record the following (at T235.26):

She feels she is losing herself. He takes her keys, won't let her wear heels to the shops, tells her what to wear and had her stop work. She talks back to him and he does not like this. He won't let her have her own opinion. He wants her to be submissive. He uses words like 'evil', 'poisonous', a 'snake' to refer to her. Tears. 'Is that what a good relationship looks like?' Asking if it is her fault. She is doubting herself.

There is no physical abuse, no substance abuse, she is not thinking of harming herself. Discussed whether it was her fault or that Simon was like this. She speaks to her mother in Canada and she tells her to come home. I told her she needs professional support and offered to see her pro bono if she could not afford the fee.

Curiously, Ms Sharwood insisted that the words "there is no physical abuse, no substance abuse, she is not thinking of harming herself" (set out above) did not record something Lisa Harnum had told her. She specifically denied that Lisa told her there was no physical abuse in the relationship. She explained that those were just impressions she formed from the DASS-21 (T237.22). She gave similar evidence as to the note that Lisa Harnum was not thinking of harming herself (T239.32).

With no disrespect to Ms Sharwood, who I think was endeavouring to give an honest account of her recollection, I am unable to accept her evidence on that issue. I accept, as suggested by Mr Strickland in cross-examination, that those notes probably record answers given by Lisa Harnum to specific questions asked by Ms Sharwood during the consultation.

The notes also record "she comes from a poor family where she is the only child". In fact, as established by the evidence of Mrs Harnum, Lisa Harnum had a brother. He was seven years older than her.

Ms Sharwood was asked in cross-examination whether Lisa Harnum had actually said that she was an only child. The witness's response was (T240.5):

If it is in my notes then that's what I would have written down and that's true, if it is in my notes.

Mr Strickland relied on that evidence as an illustration of Lisa Harnum being an unreliable historian.

I am not persuaded that Lisa Harnum in fact told Ms Sharwood that she was an only child. I have no doubt that Ms Sharwood endeavoured to record an accurate account of the consultation. However, she struck me as a person who could easily have been confused about such detail. I think it is more likely that she either misheard or misunderstood something that was said to her by Lisa Harnum, or else recalled that aspect of the discussion inaccurately at the time she came to make her notes.

Lisa Harnum did not return to see Ms Sharwood again.

In February 2011, the accused purchased a computer programme which had the capacity to monitor mobile telephone text messages. He put the application on Lisa Harnum's mobile phone and began to monitor her text messages without her knowledge (T709-10).

The accused frankly admitted this in his evidence. He said that he bought the programme because Lisa had previously said there was something she had not told him, of which she was ashamed. They had several discussions about this "secret". The accused became confused, upset and frustrated because his partner was hiding something from him which she was too ashamed to tell him (T693-694). He said that, for about two or three weeks, he read her text messages but that he did not notice anything that led him to the secret so he lost interest.

I do not believe the accused's evidence on that issue. There is no reference in any of the text messages in evidence to any festering conflict over a closely-guarded secret. I think it was a pretext put forward by the accused in order to excuse an inexcusable breach of trust.

By that stage, Lisa Harnum had not worked since leaving her employment at Bondi Junction in May 2010. In early 2011, after she returned to Australia, she told her mother that she wanted to get back into the workforce and had asked the accused about getting a job. Mrs Harnum said Lisa told her the accused had suggested she work for one of his friends at a salon called Christopher Hanna Salon. She told her mother that she would not be paid for that work (T110). She said something similar to Michelle Richmond: that Simon had got her a job with a friend of his because he felt he was safe to work with and that she was not allowed to be paid (T177.28).

The accused sought to establish that Lisa Harnum had in fact been paid for her work at Christopher Hanna Salon and that what she told her mother and Ms Richmond on that issue was another instance of her being an unreliable historian.

In fact, what Lisa told her mother on that issue was entirely confirmed by the evidence of Mr Steven Hanna, the owner of "Christopher Hanna Hair". Mr Hanna knows the accused socially (T416.10). He said that he was approached for work for Lisa Harnum in 2011. He thought it was about two months before her death but later agreed that it was probably earlier. He thought it may have been the accused that approached him but was not sure. Mr Hanna said "he asked me if I had any work going because Lisa was getting bored at home and she wanted just some work" (T414.8). Mr Hanna said he could not initially afford to pay her. He said either the accused or Lisa Harnum told him that she was happy not to get paid until he could afford it.

Mr Hanna was extremely vague about dates. He thought the period during which Lisa Harnum worked for him was about four weeks in total; that she had not been paid for "about a week" and that after that she had been paid. However, he agreed that the arrangement originally was that she was not going to be paid (T414.25). His evidence was accordingly entirely consistent with what Lisa Harnum told her mother, namely, that she "would not be paid for that work".

Mr Hanna said that Lisa Harnum was later paid in cash at the rate of about $20 an hour. He kept no records of those payments and did not deduct tax. Asked whether he had any records whatsoever of her working at the salon, Mr Hanna said: "it was just more of a friendly thing. It was just like - she was able to come and go as she pleased" (T415.1).

I did not find Mr Hanna a particularly convincing witness. I do not know whether to accept his evidence that Lisa Harnum was paid in cash at some point. He certainly understated the period during which she was a volunteer. Text messages show that she started working at the salon possibly on 19 February 2011 and certainly by 24 February 2011 (exhibit 18, items 103 to 121). Other messages establish to my satisfaction that she was still not being paid at least as at 15 April 2011, some seven weeks later (items 50 and 51 of exhibit V). For reasons I will explain, that was probably when she stopped work, in which case she may well not have been paid at all.

The accused said that Lisa Harnum did get paid for working for Steve Hanna. He said he knew that because she told him (T674.25). His evidence on that issue was glib and unconvincing. It was squarely contradicted by the text messages to which I have just referred. In any event, the important point is that Mr Hanna's evidence in fact confirmed the reliability of what Lisa Harnum told her mother on that issue rather than undermining it.

Mr Strickland cross-examined Mrs Harnum as to whether she knew that Lisa Harnum had between $40,000 and $60,000 in her Westpac account. She said that she did not know that (T116.25). That evidence was evidently led to support, in a general way, the more specific contention that Lisa Harnum was not a reliable historian.

Later in the trial, the accused gave evidence that he also did not know Lisa Harnum had accounts at Westpac (T675.7) and did not know the amount she had in those accounts. However, he later revealed that he did know she held an account with that bank. As already noted, he gave evidence of an occasion when they had argued and she said she was leaving. She wanted to meet him at Westpac so that she could close an account (T681.11). He specifically linked that event with the message in which he asked her to leave all her keys on the table including "bank", suggesting they had a safe deposit box (and see exhibit 15, entry dated 6 May 2010). Whilst that evidence may seem unimportant in itself, it reflected adversely on the credibility of the accused. It is clear enough from the later evidence that the statement that he did not know she had an account with Westpac must have been a lie. It was a lie told with telling ease, evidently for the sole purpose of discrediting Lisa Harnum by bolstering a point raised by his barrister in the cross-examination of Mrs Harnum. Why Lisa Harnum should necessarily have shared with her mother or the accused the details of her considerable savings collected over a period of years is not clear to me. It was mostly money she had saved before she met the accused which increased over the period of their relationship almost entirely due to the accrual of interest. I do not think that evidence reflects adversely on Lisa Harnum's credibility.

The accused and Lisa Harnum had an argument on 19 or 20 February 2011 which resulted in their having a few days apart. Lisa Harnum evidently talked to her mother about returning to Canada following that argument. They exchanged texts on 21 February 2011 as follows (items 37 to 39 of exhibit V):

Lisa Harnum: Sorry mommy. Still in bed. Took a sleeping pill because I needed the sleep. Simon told me last night that he was going to Melbourne for ten days to give us some space. Even left the key for me hehe. I am going to see bablys today for a talk.

Mrs Harnum: Does that mean you aren't coming home?

Lisa Harnum: I have to go and see bablys. I need to have a talk with him. Simon and I had a long hat (sic) and I told him everything that I was feeling and he actually listened and he said that he was gonna go and give me time to either think or pack. And he left this morning. I really need to talk to somebody that's why I booked an appointment with him.x

The accused said they argued because she thought his eagerness to get her a job was due to his not wanting to "hang out with her" (T699.33). That seems unlikely. In a text message to her mother the previous Thursday, she said she was excited about "a trial" the following week and that it would be good for them, presumably meaning it would be good for the relationship if she returned to work (exhibit 18, item 85).

That message was sent on 17 February 2011. The accused said they went to see Steven Hanna together that day (T682 and exhibit 48). The next day (Friday 18 February 2011), the accused was in contact with Mr Hanna about Lisa working on the Saturday, but only on the reception desk (exhibit V, items 33 to 35). There is no evidence as to whether she in fact worked that day. She appears to have started working at the salon regularly on 23 or 24 February 2011, but only on the reception desk, not as a hairdresser (exhibit 18, items 100 to 121 and 129 to 133).

Having regard to the chronology of those events and Lisa Harnum's subsequent complaints that she was only allowed to work in a position with which the accused felt comfortable (exhibit V, item 51; T177.29), I do not accept the accused's evidence that the subject of the argument was as he described. It seems more likely that they argued because she wanted to work as a hairdresser and was unhappy about his arranging a position for her as Mr Hanna's receptionist instead.

By the end of March 2011, Lisa Harnum was again considering leaving the accused. There was evidence as to that period from Ms Rebecca Triscaru. She had known Lisa Harnum since late 2009, before Lisa Harnum met the accused. Ms Triscaru's boyfriend was Mr Joe Filianos, who is a cousin of the accused. Over the months after they met, Ms Triscaru and Lisa Harnum became close friends. They spoke to each other often on the phone, sent many text messages to each other and regularly saw each other (T379-T380). It should also be noted that, independently of the friendship between Lisa Harnum and Ms Triscaru, the accused seems to have offered friendship and support to Ms Triscaru at various times.

Ms Triscaru also spent time with Lisa Harnum and the accused together. She thought they were a good couple together and expressed that view to each of them on several occasions.

On 29 March 2011, Lisa Harnum complained to her mother that she and the accused were "having domestics" and that he had said some very hurtful things (exhibit V, item 40). Lisa Harnum had lunch with Ms Triscaru the following day (exhibit 18, items 214 and 215). After the lunch, Ms Triscaru sent a message to Lisa Harnum in which she wrote that she (Lisa) should "do what her heart tells her to do" (T382.24). Ms Triscaru later received a telephone call from the accused. She said he knew about the message and was quite upset. He told Ms Triscaru that he did not want her to get involved and did not want her to speak to Lisa Harnum anymore (T383.16). The accused agreed that he was very abusive to Ms Triscaru in that conversation (T822.31).

The following day Lisa Harnum sent a text message to Ms Triscaru dated 1 April 2011 as follows (T385.22):

Hi sweetheart, how are you? I feel so bad about what happened last night. Simon told me that he called you and apologised. He thought we were plotting an escape together. Such a boy. I hope you are okay and not upset. I really value your friendship and am so glad you are in my life. You are such a beautiful soul and I hope that you still want to be friends. I hope you had a good day and that interviews are going well. I love you honey.

Notwithstanding the terms of that message, it appears that Lisa Harnum was in fact planning to leave the accused at that time. She sent a number of messages to her mother describing how sad, alone and unwanted she was feeling. On the evening of 31 March her mother asked "so are you moving out?" (exhibit V, item 48; exhibit 18, item 224). She replied the following day (exhibit V, item 46; exhibit 18, item 222):

We have talked about everything and he has cancelled the flight. Things got elevated and out of hand. Bags are packed at the door. House is in disarray but all is sound again. I can't believe we got the money back from the flight. Xx

Lisa Harnum was still working for Mr Hanna at that time. Mr Hanna could not remember when or why she stopped working for him (T415). Mrs Harnum gave evidence that Lisa told her the accused wanted her to quit working for Mr Hanna because "she was changing and wearing her hair down and getting to be social with some other people, and he didn't like it" (T38.25). That evidence was admitted not as to the truth of the statement as to why Lisa Harnum stopped working at the hair salon but only as to the fact that the accused said those words to her (T38-T39).

Michelle Richmond gave similar evidence, as follows (T177.38-46):

A. Cecilia said that Simon said she wasn't to be paid. And that one day one of the girls did her hair beautifully and she felt really beautiful but when she got home, because her hair was out, Simon became angry and aggressive and she wasn't allowed to go back to work at the hairdresser.

Q. Did she say anything about what Simon had said about the people at her work?

A. She said that she shouldn't be with other people because they would corrupt her or pollute her, words of that effect.

The accused denied telling Lisa Harnum to stop working at the salon or saying that the people she mixed with there would corrupt or pollute her mind (T674.37). He said that the reason she stopped working was that she was not getting along with some of the girls there and was also having disputes with clients who had been offered discounts by Mr Hanna (T675.1).

In the text messages tendered by the Crown and the accused (exhibits V and 18), the latest unequivocal reference to Lisa Harnum being at work appears to be a message dated 14 April 2011 (exhibit 18, item 245). Interestingly, there is a message only 2 days later in which the accused berates Lisa Harnum for having her hair down. It is appropriate to consider the full exchange. On 15 April 2011, the accused wrote (exhibit V, items 50-52; exhibit 18, items 246-248):

Since you got attitude & you made the comment about me working during the day yesterday, there are two bills worth 900 one for electricity & one for telstra. I want you to pay for them from your own money.

Lisa Harnum replied:

If I had a job that paid me money instead of something that you are comfortable with then maybe I could pay something. You are a heartless heartless person.

The following evening, the accused wrote:

Who the fuck do you think you are walking around the house like you own it or coming & going without my permission?! Again I waited for you to apologize for your disgusting comment but you walk around like a peacock with your hair out & too proud to apologize. You lied to me & promised you would listen to me at all times. Obviously, you're still the proud person & nothing has changed!

The accused said the last message was sent by him in the context that they had argued about a dress Lisa wanted him to buy for her. He said it was a Victoria Beckham dress worth a few thousand dollars and he had said no because they were saving money for his business, which was starting in a few months. He said the comment she had made which offended him was that it was the man's job or duty to buy her whatever she wanted (T700 to 701).

I do not believe the accused's evidence on that issue. It was one of a number of occasions when I had the impression he was giving a distorted version of the truth in order to deflect adverse evidence or just to denigrate Lisa Harnum. The accused's evidence that he was concerned about saving money at that time does not ring true, considering many other aspects of his lifestyle - accommodation, travel, restaurants and personal trainers. Mr Hanna made no reference to Miss Harnum not getting along with some of the girls. He said he had thought hard and really could not remember why she stopped working for him (T415). Having regard to the terms of the last message and the evidence of Mrs Harnum and Michelle Richmond as to what Lisa Harnum told them, I am satisfied that the accused berated Lisa Harnum for coming home looking beautiful with her hair down and that he told her he did not want her to work at the salon any more after that time.

The 12th of June 2011 was Lisa Harnum's 30th birthday. The accused arranged a surprise birthday party for her. All of his family attended. In their presence, in a restaurant, he surprised her further by proposing to her on bended knee.

I have no doubt that Lisa Harnum was happy and excited about becoming engaged to the accused. A number of witnesses gave evidence to that effect (see evidence of Rebecca Triscaru at T387.27; Daniel Karpathios at T408.50; accused at T702.46; Barbara Gittany at T933.39).

Lisa Harnum sent a message to her friend in Melbourne, Ms Gisele Pratt, that the accused had organised a surprise party for her with his family and friends and had made a long speech at the end of which he proposed to her in their presence (T221).

She also sent an excited message to her mother, as follows (T109.20):

Thank you so much for the flowers and beautiful balloons and card. I wish you were here with me to celebrate this with me. Simon has made me a promise. If I get to 50 kilos with training and keep it for at least two weeks then he will fly us both to Canada to see you. So far, I have tired [scil: three] kilos to go.

However, within a week, the accused and Lisa Harnum were arguing again. The accused said it was because Lisa wanted to get married as soon as possible, whereas he wanted to wait (T703). On 18 June 2011, he sent the following message to her (exhibit V, item 60):

Cecilia you are my fiancé & I love you but we both know you have some problems that effect the mood of our relationship at times but you refuse to admit it. Please pray to God so he can help you get rid of these habits. I love you & want a future for us. Please get rid of them! Words from my heart.

She replied (exhibit V, item 61):

I love you too Simon and I do pray every single day for God to make me a better person. Simon no one is perfect and I may have things about me that I need to work on but it breaks my heart to think that instead of helping me in a constructive way you resort to yelling and telling me to get rid of my faults or we won't work. My whole life all I wanted was to be accepted. You know the worst part of my childhood was girls surrounding me at school and telling me to change or they would make my life hell. I didn't even know what I did wrong. I don't feel sorry for myself Simon. I have nobody left to make feel that way. There are things we obviously need to think about before we go any farther with this. Neither if us want to make a mistake.

The accused responded (exhibit V, item 62):

Ok so you want me to help you get through this in a constructive way? Sure no problem. Btw, I didn't like your last few lines, don't use fear of loss on me Cecilia! I'm the one asking you to fix things before we go ahead but without the fuckin games.

The following day, Lisa Harnum sent an email to her mother indicating she was considering moving to Melbourne (exhibit C). She contacted her friend, Gisele Pratt. They had shared an apartment in Melbourne in 2005 and had remained friends since that time. Ms Pratt had met the accused once. She owned an investment property in Melbourne. On 19 June 2011, Lisa Harnum sent her a text message asking whether she had found tenants for the apartment or whether it was available. During that exchange, Ms Pratt asked Lisa how she was feeling after the excitement of the engagement the previous weekend. She replied "the excitement has fizzled, it doesn't last long" (T222.15).

The following day, 20 June 2011, Lisa Harnum called Ms Pratt on her mobile telephone. Ms Pratt's evidence was that Lisa was very distressed in that conversation. She was crying and had trouble talking. She said that she had had a big argument with Simon and that "it was over". She said she wanted to leave him and that he had said if it was over she had to go back to Canada. She said she wanted to stay in Australia and so asked Ms Pratt whether she could come and stay with her in Melbourne.

Ms Pratt told Lisa Harnum that she was welcome to stay in the investment property until she found a tenant and that she was welcome to stay with Ms Pratt after that. Lisa Harnum took the address of the investment property so that she could organise for her belongings to be sent to that address (T233.3).

At about 2.00 pm that day, Ms Pratt received a text message from Lisa Harnum to say that she had organised a flight to Melbourne the following day (21 June 2011) at 5.45 pm. Later that day, Ms Pratt received a call on her mobile telephone from the accused. Ms Pratt said "he demanded that I tell Lisa that she could not stay with me and that she should not go to Melbourne" (T224.15).

The accused told Ms Pratt that he knew she and Lisa had been in contact and that Lisa was planning to come to Melbourne. He indicated that Lisa was not aware that he was calling. Ms Pratt said that his tone was demanding. She said that she responded as follows (T224.37):

I said that, that I certainly would not lie to Lisa, and there was no reason for me to do so, that I would not turn back a friend who asked for my help.

Ms Pratt said that the accused's tone then changed. He explained that they had had an argument and that Lisa Harnum was "being stubborn". She did not want to admit something she had done, and he did not think she should go to Melbourne because he wanted them to try and resolve the matter. The accused mentioned that Lisa Harnum had "changed her status on Facebook". Ms Pratt had in fact already noticed herself that Lisa Harnum had changed her status from "engaged, in a relationship" to "single" (T225.17). The accused commented to Ms Pratt that this was embarrassing for him, as was the fact that Lisa Harnum had discussed their argument with others. Ms Pratt agreed in cross-examination that the accused told her that when they argued, Lisa would say that she was going to leave him. Ms Pratt was aware that that was something Lisa Harnum had done in a previous relationship with a man called Frank Breen (T228.6).

Ms Pratt told the accused that, if Lisa Harnum wanted to come to Melbourne, she would certainly not turn her away and would be there for her (T226.2). The accused then requested Ms Pratt, if she was going to talk to Lisa Harnum, to remind her of the good things in their relationship and what she would lose should she end it. He asked Ms Pratt not to tell Lisa Harnum that he had called.

The accused gave a slightly different version of events. He said (T704):

I rung up Gisele and I said to Gisele, "Gisele, we are arguing at the moment and Cecilia told me that she is going to come down and stay with you. I tried to talk to her and she won't listen to me. She is very upset with me about the wedding date. I was wondering if you could have a talk to her and speak to her. She is your friend. Maybe she will listen to you." Gisele said, "Simon, if she wants to come and stay with me, I won't tell her that she can't." I said, "I understand that", but Gisele said "I will have a talk to her for you and see what I can just see what happens". Gisele also said to me, "I understand how Cecilia is, I have known her for a while and I remember her with Frank and how she acted with Frank". So Gisele said to me she was aware of the way Cecilia acted in a relationship.

To the extent that those accounts differ, I accept the evidence of Gisele Pratt, who was a straightforward, intelligent and careful witness.

Lisa Harnum called Ms Pratt later that evening and said she was not coming to Melbourne and that she and the accused were going to try to resolve the issues between them. Ms Pratt told Lisa Harnum not to hesitate to call if she wanted to and reiterated that she was welcome to come and stay. That was the last time Ms Pratt spoke to Lisa Harnum.

The accused denied ever discouraging Lisa Harnum from having any friendships. He denied doing anything to discourage Lisa's friendship with Gisele Pratt (T677.35).

On Friday 24 June and Saturday 25 June 2011, the accused and Lisa Harnum went skiing in Perisher with Mr Filianos and Ms Triscaru. Ms Triscaru stated that, before that trip, she had noticed a change in Lisa Harnum's demeanour. She said (at T386.30):

There would be obviously days where she would be happy, and there would be days where I felt she wasn't as happy as how I had known her to be ....I guess you could just see on her that she didn't seem as vibrant and as happy as I had known her to be.

After the trip Ms Triscaru sent a text message to Lisa Harnum thanking her for a wonderful weekend (at T395.3). Ms Triscaru did not see Lisa Harnum in person again after the Perisher trip (T386.37). She had contact with her through text messages but the contact was decreased. She said that nothing had occurred during the trip to Perisher that would explain why there was so much less contact between them after that trip (T399.9). She said "I still don't understand to this day why the contact became so minimal" (T399.3).

The accused denied ever discouraging Lisa Harnum's friendship with Ms Triscaru. He attributed the cooling of their relationship to the fact that Ms Triscaru had got back with her boyfriend. He said that, during the trip to the snow in late June 2011, Lisa Harnum had organised dinner for the four of them but that Ms Triscaru and her boyfriend said they had already eaten and did not go to the dinner. The accused said "when we got to dinner Cecilia started crying and she started to realise that Rebecca, now that she has Joe, wasn't interested in their friendship anymore and she was hurt as a result and since then she started to slowly lose contact with Bec (T677.20; and see T710.30). Barbary Gittany gave evidence to like effect (T934.1).

On 7 July 2011, Ms Triscaru and Lisa Harnum exchanged the following messages:

Rebecca: Hey Hun are you okay? I never hear from you these days?

Lisa Harnum: Yeah I'm fine just been busy with my man & his family.

Rebecca: Okay I understand. So your not upset with me about anything are you? You just don't seem yourself.

Ms Triscaru could not recall receiving any reply to her second message and did not think she had spoken to Lisa Harnum after that date (T398.30).

The accused had a rift with Ms Triscaru's boyfriend, Joe Finianos at around that time. On 21 July 2011, the accused sent Mr Finianos the following text message (exhibit V, item 90):

No body made up any stories Jo. You have absolutely no right to be upset with me at all. I have done 1000 times more for you, your girlfiend & your brother than all of you put together have done for me. What hurt me the most about you was neither you or your family came to my engagement & you never even made it up to me as you promised. I've always paid my respect towards your family so don't even try & make me look like a liar cuz.

Having regard to the fondness of their dealings up until that time, it seems unlikely that Lisa Harnum would have allowed her lengthy friendship with Ms Triscaru to cool over an event such as the Perisher dinner. It seems more likely, having regard to the apparent rift between the accused and Mr Finianos at that time, that the accused prevailed upon Lisa Harnum to discontinue contact with Ms Triscaru. However, the evidence does not permit me to draw any confident conclusion on that issue.

Lisa Harnum had been a dancer until the age of 16. Mrs Harnum said that, after Lisa gave up dancing, she continued regular exercise. Mrs Harnum said Lisa told her that she and the accused used to go to a gym together but that, at some stage, the accused said he did not want her to go to the gym anymore.

The accused denied ever telling Lisa Harnum that he did not want her to go to any gym (T671.34). He said that she had been training with Daniel Karpathios but that she stopped because he gave her a list of food to eat which was mainly carbohydrates. The accused said she felt bad that she wasn't following what Daniel asked her to do in terms of eating so she made excuses not to go to the gym (T671.44). Daniel Karpathios also said that Lisa Harnum had made "excuses" when she stopped training with him (T408.3).

Mrs Harnum said that Lisa told her that, after saying that he did not want her to go to the gym any more, the accused provided a trainer to come to the house to provide training for Lisa Harnum (T36.29). She told her mother that the reason for the change was that people looked at her at the gym and the accused did not like that. She told her mother that she did not like the fact that she could not go to the gym but she accepted it. Mrs Harnum believed the change occurred in 2011.

It was in early July 2011 that Lisa Harnum began training with the personal trainer, Lisa Brown. Ms Brown gave her evidence in a forthright and open manner. I accept her evidence as wholly honest and reliable. However, in considering her evidence and that of Michelle Richmond as to things said to them by Lisa Harnum, I have again had to approach the evidence with caution, bearing in mind the inherent shortcomings of a hearsay account. In the case of Lisa Brown, she had many conversations over a relatively short period, mostly face to face and presumably not anticipating that she would ever have to recall those conversations for the purpose of giving evidence. She had some contemporaneous records, including SMS messages, to prompt her but took no notes. Plainly, there is a risk that she may have misremembered or misunderstood some of the many things Lisa Harnum told her during that time.

Separately, I have considered whether Lisa Harnum is likely to have overstated the bad side of her relationship to Lisa Brown. Ms Brown is a strikingly warm and strong woman who I apprehend would have made Lisa Harnum feel safe. I think it is likely that Lisa Harnum would have confided honestly in Lisa Brown, but I have also had regard to the risk of exaggeration in people who are struggling to cope.

Lisa Harnum first contacted Ms Brown in a text message dated 6 July 2011 in which she expressed an interest in training 3 to 5 days a week at home or at the gym in her apartment (exhibit V, item 82). Ms Brown called Lisa Harnum in response to that message. Lisa told her that she had been a dancer in the past and that she had struggled with eating disorders. She said that she wanted to improve her health in order possibly to conceive. She said that she was underweight and that she wanted to put some weight on (T134-135; and see exhibit D).

Lisa Harnum's first training session with Ms Brown was scheduled for Wednesday, 13 July 2011. Ms Brown went to their apartment. She met the accused and agreed to provide training services for both of them for an agreed weekly sum. Ms Brown then went with Lisa Harnum to the gym on level 8. She was intending to do physical training but they ended up just talking that day. Ms Brown gave the following account of their conversation (at T136.30):

... she really wanted to make changes because she knew that she wasn't happy and she was underweight, she was unhappy with the way she was underweight and she was really wanting to have a baby and she understood in order to do that she was going to have to put some body fat on and get into a good healthy state in order for that to happen.

During that session, Ms Brown recommended that Lisa Harnum consult Ms Michelle Richmond, who was a friend of Ms Brown's and someone to whom she had previously referred clients. Ms Brown said that Ms Richmond could help clients "understand the patterns that aren't serving them and be able to get control of their lives", especially with eating disorders.

Ms Brown told Lisa Harnum that her training would be dependent upon her eating and that, if she started to lose more weight, Ms Brown would not train her because it would not be healthy. During that session Lisa Harnum told Ms Brown that she loved the accused and was wanting to have a baby with him. She asked Ms Brown not to discuss anything they had talked about with the accused. She was very firm in that request (T137.14).

Ms Brown said that, on the way back to the unit, Lisa Harnum strongly emphasised that she did not wish Ms Brown to tell the accused what they had spoken about. When they arrived at the unit, the accused asked Ms Brown what they had done. She responded jovially that that was client privilege. He insisted that she tell him what they had done. She said they had done some movement pattern analysis and had screened Lisa's posture (T138.21).

Lisa Harnum had her second session with Ms Brown the following day. On that occasion, Ms Brown did in fact analyse Lisa Harnum's movement patterns (T140.38).

The following week, Lisa Harnum trained with Ms Brown on Monday, Wednesday and Thursday (18, 20 and 21 July 2011). Each of those sessions was held in the gym in The Hyde apartment building.

During one of those sessions, Lisa Harnum told Ms Brown that she had been in touch with Michelle Richmond. She told Ms Brown that she didn't have any friends and didn't see anybody other than Ms Brown and Ms Richmond because the accused did not like her to (T141.37). Michelle Richmond gave similar evidence, saying that Lisa Harnum told her that she that Lisa Brown were the only people she had contact with apart from her mother (T177.13).

Mr Strickland relied on the statement to Lisa Brown (that the accused did not like her to have friends) as one of the examples of Lisa Harnum giving an embellished or unreliable account of events. He submitted that the evidence shows that the accused actively encouraged Lisa Harnum's friendship with Rebecca Triscaru (particularly in the recording of a conversation on 10 June 2011 in exhibit LL). Whilst that was certainly the case at times, it was not the case at the end of March when the accused demanded that Ms Triscaru not speak to Lisa Harnum anymore. For the reasons already explained, I think the accused may have discouraged Lisa Harnum from seeing Ms Triscaru after his rift with Joe Filianos. Whether or not that is the case, what Lisa Harnum said to Ms Brown about friendships was, on the evidence before me, sadly accurate.

Michelle Richmond also gave extensive evidence of things Lisa Harnum said to her, again raising the need to give careful consideration to the potential unreliability of an account given through the mouth of another witness. At the request of Lisa Harnum, Ms Richmond took no notes of two lengthy sessions. She was a careful, intelligent witness. I have no doubt as to the honesty and reliability of her account but I have kept in mind the risk of misunderstanding or misremembering. Separately, I have turned my mind to the issue whether, having found a good and sympathetic listener, Lisa Harnum may have exaggerated the downside of her relationship to Michelle Richmond.

As with Ms Brown, Ms Richmond conveys a striking warmth and gentle strength. I think it is likely that Lisa Harnum felt safe and emboldened by their support. An obvious example is the fact that Lisa Harnum told Michelle Richmond about her bulimia, an admission she could not bring herself to make to her mother or the accused. A great deal of what Lisa Harnum said to both Lisa Brown and Michelle Richmond finds objective support in other evidence, or is not disputed by the accused. I have nonetheless kept in mind the difficulty of assessing any measure of confabulation or exaggeration where the evidence comes as hearsay.

Lisa Harnum had her first session with Michelle Richmond on Friday 22 July 2011. The accused took her to Ms Richmond's office. Ms Richmond spoke to them both briefly and the accused then left. Ms Richmond said Lisa told her that she had suffered from bulimia while she was doing ballet and was currently suffering from bulimia, which was why she had been referred to Ms Richmond. She said that she had beaten bulimia before and was ready to beat it again.

Ms Richmond said (T176.32) that Lisa Harnum:

said she binge ate and purged up to 12 hours a day, it was the only way she could feel some kind of connection or some kind of feeling because she had become so shut down in her relationship.

Ms Richmond gave the following account of what Lisa Harnum had said to her about bulimia (at T180.49):

she said that the bulimia came, was something that started when she was doing ballet and that she used the bulimia as a way of staying connected, of feeling something because she had felt that she was a mere shell of her previous self, she was so particular about everything she had to say, everything she had to do to maintain her relationship with Simon and not make him angry, that she had lost herself but the bulimia gave her that sense of connection, some sense of feeling.

Ms Richmond said Lisa told her that the accused did not know about her bulimia and that she was very scared that he would find out because she thought if he found out he would leave her. She said that she had not told anyone else (T176.38).

The accused gave evidence consistent with that account. He said that Lisa Harnum did not ever tell him that she was bulimic (that is, that she binged and purged). She had told him that she was in hospital many years ago and "nearly died". She had said something about having two nurses beside her to watch her eat but he did not know exactly what it was that she had suffered from. He did not know that she suffered from any eating disorder whilst she was living with him (T669.48).

Ms Richmond said Lisa told her that she loved the accused but she was afraid of him, that he could be a beautiful person but would turn and become angry. Lisa told Ms Richmond that she was very careful with what she said because she didn't want to make him angry or upset with her (T177.2).

Ms Richmond said Lisa told her that religion was very important to her. She was grateful to the accused because he had helped her find God. She prayed to God to help her, to help her and Simon in their relationship and to help Simon so that they could stay together (T177.5).

Ms Richmond said Lisa told her that the accused did not like her to leave the apartment and at times, when she had, he became very angry and aggressive. Ms Richmond said that Lisa told her she was not allowed to go out alone and that, when she went out with the accused (T177.13):

she had to be careful, she had to make sure if there was another man in the vicinity that she looked into Simon's eyes, that she kept him engaged in conversation or looked down at the ground so he could never say that she was looking at someone else.

Ms Brown gave similar evidence. She said that Lisa told her she was only allowed to go outside for grocery shopping (T143.44). The accused denied ever saying so (T713.9). He said she enjoyed staying in the apartment.

Ms Richmond said Lisa told her that the accused went out often. She did not know where he went and did not know what he did for a living. He was setting up some kind of home business. The accused sought to respond to that evidence in his evidence, stating that he had told Lisa about the business he was setting up (T675). However, that did not explain what he did for an income, which was the import of what Lisa Harnum was saying to Ms Richmond. She told Ms Richmond that when he went out she felt alone and completely isolated (T181.16).

Ms Richmond said Lisa told her of one occasion when the accused had dropped her home after an argument. Lisa told Ms Richmond that there was no food in the house so she had gone to the store close to the apartment. The accused rang her and asked why she wasn't home and demanded that she come back to the apartment immediately; that she had to be home in three minutes (T178.29). Lisa Brown gave similar evidence. She said that Lisa Harnum had told her of a recent event when she had been out shopping and she had received a call from Simon saying "You better be back in the apartment" and giving her five minutes to get back (T143.45 and T145.6).

The language of those accounts resonates with the terms of a text message sent by the accused to Lisa Harnum in December 2010 in which he said "you have 5 mins to meet me where you left me" (item 22 of exhibit V). The accused explained that there were many times when Lisa Harnum would "just take off" on him during an argument and that was the context in which that was sent (T697.31).

Ms Richmond said Lisa told her that, in the past, when she had tried to leave the accused, he had told her that if she left she would leave with nothing, just as she came, not even her underwear. On one occasion she said they had had an argument and he took her wallet and everything from her so she had nothing. As already noted, she expressed fears of being deported if she left the accused (T178.7).

Ms Richmond created a simple meal plan for Lisa Harnum and suggested she ring her each day to check in and tell her that she had been able to eat without throwing up.

On Saturday 23 July 2011, Lisa Harnum rang Ms Richmond to say that she had eaten and had not brought the food back up. She did the same on Sunday 24 July 2011.

The following week, Lisa Harnum continued her training with Lisa Brown. They again scheduled three training sessions that week, on Monday, Wednesday and Thursday (25, 27 and 28 July 2011). On the Monday, they trained on the balcony on the same floor as the gymnasium. Lisa Harnum had attempted to re-schedule that session for the Tuesday. Ms Brown responded as follows (at T142.12):

Good morning miss, what a gorgeous day. I can't do Tuesday at your place but how about you come to me for a change if it feels right to you. You could catch the 373 bus from across the road from your place and come to Coogee. We can do an outdoor session using the coastal walk if you like. I can see you on Tuesday 10.15 to 11. Let me know your thoughts.

Lisa Harnum replied that they would do the session on Monday as originally planned. She later explained to Ms Brown that the accused would not let her train at Coogee, but that may have been an assumption Lisa Harnum made, not something the accused in fact said to her. The accused denied telling Lisa Harnum she could not meet Lisa Brown at Coogee (T713.13).

On Tuesday 25 July 2011, Lisa Harnum had her second session with Michelle Richmond. Ms Richmond collected her on her way to the office. Lisa Harnum told Ms Richmond about training with Lisa Brown the previous day. Ms Richmond gave the following account of that conversation (at T184.26).

Cecilia told me that she had been training with Lisa Brown and that they had trained on the balcony because it was a beautiful day and that she was not careful with her words when she spoke to Simon and told him that the workmen were working on the pool. At which point he became angry that they had trained outside and how dare she train in front of the workmen and he wanted to know if they were looking for her or could see her and she wasn't to train outside again.

Lisa Brown gave evidence of a similar conversation with Lisa Harnum the following day (T145.20).

Ms Richmond said Lisa told her that the accused had been yelling at her all morning until the moment Ms Richmond arrived to collect her. She said she had no friends and was completely isolated as any friends had been cut off from her. Ms Richmond said (T186.2; and see cross-examination at T204.4):

She was distressed that she had been friends with the hairdresser, the girl she lived with, and that when she went out with Simon the girl disassociated with her because of her friend's opinion of Simon and she felt sad that she had never been able to even tell her how much she appreciated her support and her letting her stay.

It is clear that the girl she was referring to was Amalia Karaeva. Ms Richmond's account of what Lisa Harnum said to her on that issue was directly contradicted by Ms Karaeva's evidence. Ms Karaeva said that their estrangement was due to disagreements as a result of Lisa Harnum's relationship with her previous boyfriend, George, and did not have anything to do with the accused (T306.3).

However, I do not think that evidence establishes that Lisa Harnum gave Ms Richmond a false or unreliable account. Ms Richmond received a great deal of information over two periods of about two hours and, at the request of Lisa Harnum, did not take any notes of what she was told. Ms Richmond did not suggest that Lisa had told her that Simon had done anything to discourage her relationship with Amalia - only that she felt sad that she had not been able to thank Amalia for her support when the friendship ended due to Amalia's opinion of Simon. In fact, the friendship ended due to Amalia's opinion of George, not Simon. It is not difficult to imagine those events losing something in the re-telling. I do not think that evidence should cause me to doubt the veracity of Lisa Harnum, but it does illustrate the care which must be taken with a second-hand account.

Ms Richmond said Lisa told her that the accused always seemed to know everything she said to her mother. She said "she couldn't work out how he knew that and she was very careful about the things that she said to her mother because somehow he would know and even come back and repeat the conversations back to her". That made her feel isolated and shut down and concerned (T186.26).

Ms Richmond said Lisa told her that she had a bag packed that the accused did not know about with her passport in it. She said when she had tried to leave in the past, he had stopped her and that he had told her she would leave with nothing, not even her underwear.

Ms Richmond told Lisa Harnum that there was a centre available to her that supported women in abuse situations. They discussed her possibly putting her belongings in storage or somewhere that she could access them (T187.31). Ms Richmond specifically asked Lisa Harnum if the accused had been physically violent to her and she said that he had not (T199.33).

The following day (Wednesday 27July 2011), Lisa Harnum trained with Ms Brown. As already noted, Ms Brown said Lisa told her about the accused being very angry because she let slip that she had trained on the balcony the previous Monday (T145.20).

At 8.30 pm that evening (27 July 2011), Michelle Richmond missed a call from Lisa Harnum (T189.34). She missed the call because she was out to dinner. Miss Harnum left a voice message in which, according to Ms Richmond's statement to police, her voice sounded distressed (T209.1). Ms Richmond sent a text at 8.32 pm as follows (exhibit F):

In a dinner meeting are you ok

She received a reply from Lisa Harnum as follows:

Hi Michelle. Sorry to call you late. Just upset. We can talk tomorrow if you are busy. Don't want to be away to long. Have a beautiful evening honey x

Mr Strickland cross-examined Ms Richmond as to her contention that Lisa Harnum sounded distressed in that voice message. He played her a recording of a message retrieved from her phone in which Lisa Harnum sounds sleepy and relaxed (exhibit 5). It is plainly not the same message. It begins with the words "good morning Michelle". The fact that police did not retrieve any other message from Ms Richmond's phone does not cause me to doubt her evidence on that issue. Her description of a distressed tone is consistent with the content of Lisa Harnum's contemporaneous message.

At 8.46 pm, Ms Richmond sent a further text to Lisa Harnum:

Call me back I'm just hanging

And then a further text:

Hun call me

Lisa Harnum replied:

Sorry honey. I can't talk right now. Can I call you later. Everything is ok. Just with Simon at the moment xx

Ms Richmond replied:

Any time I'm up until late

Later that evening Ms Richmond tried several times to call Lisa Harnum on her phone. She then became concerned due to how "reactive" Lisa Harnum had said the accused was that he might be angry that she had called so many times. She sent a further text stating:

Sorry I think My phone accidentally kept calling you when it was in my bag apologies Michelle.

Lisa Harnum replied:

That's ok. Was wondering if everything was ok. Have a good night Michelle.

Shortly after midnight that night, Lisa Harnum sent an email to Metro Storage at Bondi seeking storage space (exhibit N; evidence of Mr Richard Stanley at T440).

Detective Rex then returned and they went into the library area of the foyer. After speaking to police outside, Sergeant Wall had a further conversation with the accused in the library. He said the accused was sitting at the table and continually saying, "Baby, baby, baby, I can't believe it." Sergeant Wall said the accused repeated that a number of times. The conversation continued (T447.45):

Wall: Is there anything we can do for you, contact anyone?

Accused: I'm just worried about her family. Her mum is going to be devastated and her brother.

Sergeant Wall said the accused kept repeating "Baby, baby, baby, I can't believe it" and that at one stage he dropped his head into his hands and said, "Oh, my goodness." The accused then said (T448.3):

She just walked out onto the balcony, she got over the rail. I said, 'What are you doing?' I tried to grab her but I couldn't hold her. She was on the phone to her mother last night. It is going to break her mother's heart. She was laughing. It is like she knew it was the last conversation they would have. It is like God knew."

It was put to the accused in cross-examination that he was trying to convey to the police that Lisa Harnum had committed suicide. That certainly appears to have been the implication. The accused denied it (T777.30).

Having told police that Lisa Harnum was on the phone to her mother laughing the previous night, the accused was committed to maintaining that account at the trial. As already noted, he gave evidence that he heard Lisa Harnum laughing on the phone a short time after 5 am that morning (T727.7). I do not accept that evidence. Mrs Harnum dismissed with derision the suggestion that Lisa laughed or giggled during their last conversation (T341.12). I think the accused deliberately inserted that detail to coincide with what he said to Sergeant Wall, carefully accommodating the actual time of Lisa Harnum's last call to her mother as revealed in the Telstra records (exhibit 45).

Sergeant Wall said the accused continued saying "Baby, baby, baby, no" or "Baby, baby, baby, I can't believe this". The conversation continued (T448.16):

Accused: I hope the cameras inside the unit worked.

Wall: Are there cameras inside the unit? How many?

Accused: Two, there is no hole in the door, so there is a camera at the door to see who is there.

Wall: Where is the other camera?

Accused: It is at the door, but it faces inside.

Wall: Are they hooked up to a computer?

Accused: It has its own system.

Wall: Does it record?

Accused: Sometimes it does, sometimes it doesn't.

As already noted, the accused gave evidence that he knew, when he left the computer room at 5.15 am after watching porn, that the internal cameras were off. He said that, when he spoke to Sergeant Wall, he was hoping that he had accidentally not turned it off "and it would have shown what had taken place" (T838.26). I do not accept the accused's evidence on that issue. As he himself acknowledged, he knew at 5.15 am that the cameras were off. He must have known that when he volunteered information about the cameras to police later that day. The Crown did not rely on that evidence (or indeed any alleged lies) to prove a consciousness of guilt on the part of the accused. As already noted, it is important for me to bear in mind the cautious approach that should be taken to the use of lies. As noted by Mr Strickland, a person can have many reasons for telling a lie.

Detective Rex returned to the library and spoke to the accused further, as follows (T459.29-T460.10 and T476.12):

Rex: Simon, I'm sorry to have to tell you this but Lisa has passed. The forensic team will be conducting an examination of your unit shortly and a report will be made for the coroner."

Accused: Okay. Just check the cameras.

Rex You have cameras inside the unit?

Accused: Yes.

Rex: Okay, do they record?

Accused: Sometimes.

Rex: Did you tell Sergeant Wall this, the officer in uniform?

Accused: Yes.

Rex: Okay, so we can direct the forensic team, can you just tell me what happened?

Accused: We had a fight last night. We just worked out it was better for her to go home to Canada. Sometimes it is me who wants to break up with her, sometimes the other way. I woke up this morning and she was packing her bags. I said, 'Let's not break up.' She said, 'No no.' I know it is just an act. She always wants me to beg when she gets the upper hand. Neither of us slept last night and we were talking. She said, 'You told me to leave, and I'm leaving.' She grabbed her black handbag and went to leave through the front door. I stopped her. She started to raise her voice, and she was yelling. And I yelled back, 'Shut the fuck up.' I was in the kitchen. I saw her pass towards the balcony. I remember thinking 'what is on the balcony?' I saw her step over the railing onto the little cliff face. I ran towards the railing and I can't remember. I was just trying to hold her from falling. I was just grabbing at her, I don't know, I might have had a handbag or jacket and then she was gone.

Police then went to the accused's unit. Apart from the footage from the pinhole camera (exhibit Z), only one other clip of CCTV footage from the accused's apartment from the morning of 30 July 2011 was recovered. It was from one of the cameras inside the unit and was of about 30 minutes duration commencing at 4.45 am (T574.42 to T575.7). That footage had been shot through the camera that had a view towards the kitchen. No movement can be seen in that clip. No analysis was done of the settings on the accused's computer for the cameras inside the unit or the pinhole camera (T575.35). As already noted, the accused explains that footage by reference to the fact that he turned the cameras on while he was watching porn, in case Lisa Harnum walked in on him during that time.

For at least the last five days of Lisa Harnum's life, the pinhole camera was on continuously (T577.9). During that time, there were only two clips taken from the interior camera pointed towards the kitchen, being a clip of about four seconds on 23 July and the clip of about 30 minutes commencing at 4.45 am on 30 July (T577.21). During the same period, there was no footage from the other camera inside the apartment. There were five clips located from deleted material on the computer but none of those related to 30 July (T578).

The accused was taken to Surry Hills police station where he was spoken to by the officer in charge of the investigation, Detective Sergeant David Weekes. Detective Weekes had the following conversation with the accused (T353.31):

Weekes: I'm Detective Weekes from Surry Hills detectives. This is Constable Rex. Are you Simon Gittany?

Accused: Yes.

Weekes: I am very sorry about the death of Lisa Harnum, however, at this point you are under arrest as a suspect regarding her death. You do not have to say or do anything, do you understand that?

Accused: Yes.

Weekes: Anything you say or do will be recorded and may be used in evidence, do you understand that?

Accused: Is this so you can keep me here, stop me from leaving?

Weekes: Your arrest is due to certain information I have received. You will be formally entered in custody and I will speak to you again later.

The accused told police how to operate the computer system but did not tell them about the hard drive (T474.2 and accused's evidence). By the time they learned of its existence and went back with a second search warrant, it was no longer there (T475.41).

The hard drive was brought to Court by Mr Craig McCoy, an IT consultant who grew up in the same area as the Gittanys. He had been asked by Anthony Gittany to examine it. Mr McCoy found nothing of relevance to the issues I have to determine (T954-957; exhibit 37). He found no deleted files. The Crown cross-examined him as to whether the hard drive had the appearance of having been completely and utterly wiped at some stage. He did not think it did (T960.5). The hard drive became an exhibit (exhibit 38) and was uplifted for examination by the Crown, with no different result.

Ultimately, neither party placed any reliance on the content of the hard drive. The evidence of Mr McCoy was relied upon principally for what it allegedly showed as to the accused's state of mind. Mr Strickland submitted that the accused would not have asked his brother to collect the hard drive if he had the slightest concern as to what it might show. The Crown put, in effect, that the accused's absence of concern on that issue merely confirmed how confident he was, when he spoke to police shortly after Lisa Harnum's death, that he had switched off the internal cameras at 5.15 that morning. Each contention has some force. I have not ultimately placed any reliance on the evidence as to the hard drive.

Detective Weekes executed a search warrant at apartment 1503. He took a series of photographs (exhibit Y). He found a large number of suitcases and boxes packed with women's clothing, shoes and personal items. Lisa Harnum's passport was located in a travel bag inside the unit.

Although the accused was taken to Surry Hills Police Station on 30 July 2011, he was not charged that day. He returned to the family home at Merrylands. His sister, Barbara Gittany, described how he was that evening. She said that he was crying and rocking back and forth saying "baby, baby, what were you thinking?"

Miss Gittany said (T999.46 to T1000.11):

When he came home that evening he told us that they had had an argument and that she went out the door, and he put his hand around her and brought her back in. Then he said they went inside and she sat on the lounge in the lounge room. He went to make her a cup of tea and as he was obviously making the cup of tea Cecilia got up and ran towards the balcony. And he thought, "What is on the balcony? Where is she going? What is on the balcony?" couldn't understand where she was going on the balcony and then he realised there is nothing on the balcony.

So he went running towards the balcony and Cecelia was on the other side of the balcony or going halfway over, her legs were on the other side. She lost her footing and fell on the balcony or the awning part, the one down the bottom. He was trying to help her, trying to he kept saying he was trying to get her, "I couldn't get her, I can't understand why I wouldn't get her, it was like I was grabbing her. She was holding on the bottom of it by the time and she went. He told us he screamed out her name. That is what he told us.

Miss Gittany said that the accused told her he thought the cameras were on "that evening". When asked to clarify the time at which the cameras were on, she gave a curious answer (T1002.34):

Q. he told you that he thought that at the time of Lisa Harnum's death the cameras had been on?

A. Yes, that is what he told the policeman, so he told us that, yes.

On 1 August 2011, the accused sent a text message to Mrs Harnum as follows (exhibit GG):

Dear Joan I am heartily sorry for this tragic accident! But I could do nothing to save her. I wanted to call you strait away but the police specifically told me under no circumstance am I allowed to call you, answer your calls or reply to your messages as they wanted to inform you instead. I asked that they told Jason first so he could come be with you when they told you so you were not on your own. We loved each-other immensely & as you know were going to get married next year. I am so so so sorry for this unfortunate accident. I know you hate me right now & I understand. My mum and my dad have lost a daughter and my 4 sisters and brother have lost a sister and we are all devastated. If there is anything I or my family can do please contact me or a family friend. We want to assist in anyway in relation to her funeral or anything else we can help with. My life has also ended as she was my life.

The accused was charged with the murder of Lisa Harnum on 3 August 2011. On that occasion, he declined to be interviewed by police.

As submitted by Mr Strickland, a critical issue is Lisa Harnum's state of mind on the morning of 30 July 2011. Mr Strickland relied on a wealth of material as informing that issue. Indeed, a large amount of the evidence led on behalf of the accused was directed to establishing aspects of Lisa Harnum's various mental and emotional states.

The accused called evidence on those issues from an expert witness, Professor Louise Hay. Professor Hay is a psychiatrist with expertise in the study and treatment of eating disorders (exhibit 40). She expressed the opinion that Lisa Harnum suffered from anorexia nervosa and that her condition was chronic. There was ultimately no real contest as to her opinion on that issue and I accept it.

Professor Hay's opinion was based on a series of assumptions set out in exhibit 39 and on aspects of Lisa Harnum's medical records over an extended period (exhibit 50).

Mrs Harnum confirmed that Lisa Harnum had an eating disorder as a teenager. She had two admissions to hospital for anorexia in 1999 and 2000 (T97.5). She went through periods where she overcame the disorder. At other times, emotional upsets triggered its return, such as when she had issues with Frank Breen (T98.28). It was a condition which waxed and waned throughout her adolescence and her adult life (T90.7). She was evidently struggling with the return of the disorder in February and March 2011 and was consulting Mr Bablys on those issues. In March, Mr Bablys asked her to write out lines "I am ok eating" with her non-dominant hand, which he said was to "recalibrate her thoughts" and to "relax her nervous system" (exhibit 21, T436-437).

The accused relied upon Professor Hay's evidence to establish that there are four features in people who suffer from chronic eating disorders relevant to my assessment of the issues in this trial. They are an increased risk of unpredictable and impulsive behaviour; a diminished ability to cope with unpleasant emotions including fear and despair (described as maladaptive coping mechanisms); extreme sensitivity in response to changes in external environment and experiencing greater than usual stress from interpersonal conflict. I accept Professor Hay's opinion that those are features she has identified, based on her training, study and extensive clinical experience, in people who suffer from chronic eating disorders by comparison with a hypothetical normal person.

The accused also adduced evidence directed to proving that Lisa Harnum had certain dangerous tendencies. It was contended that she had a tendency to place herself in a position of danger or potential danger; to self-harm and to attempt suicide. Mr Strickland submitted that the tendency evidence corroborates or confirms that the features of people with eating disorders described by Professor Hay were manifest in the conduct of Lisa Harnum.

The alleged tendency to self-harm and to attempt suicide may be considered briefly. The contention that Lisa Harnum had a tendency to attempt suicide is, in my assessment of the evidence, completely unfounded. Not a single witness provided the remotest support for that proposition. Mrs Harnum dismissed it out of hand (T90.11). Asked whether Lisa had ever told her she had cut her wrists she said that, when Lisa was younger, she had marked her wrists with a pin at the urging of another girl, who was from "group homes" (T105.12).

Mr Bablys said that Lisa Harnum did not complain to him of any suicidal tendencies or any intention to self-harm (T430 to 432). Gisele Pratt had never heard Lisa Harnum say anything to suggest that she was suicidal; she never appeared to her to be depressed. Ms Pratt described Lisa Harnum as a happy, bubbly person, very personable and very warm (T226.49). Ms Sharwood noted that Lisa Harnum was not thinking of harming herself.

There was evidence in the Crown case from a Dr Lam of the Sydney CBD Medical Centre. Lisa Harnum had consulted him in August 2010 and in June 2011. She had not complained to him of depression or exhibited any signs of suicidal tendency or an intention to self-harm.

The supposed suicidal tendency was evidently based on three medical notes from 1999. One is a history of Lisa Harnum denying any recent self-harm but admitting having cut her wrists at the age of 16 (page 36 of exhibit 50). One appears to be an admission note, possibly recording the same history (page 55 of exhibit 50). The last is a reference to Lisa Harnum experiencing fear during a group therapy session that another patient's conduct would trigger self-harm (page 47 of exhibit 50). I do not think that material provides any basis for concluding that Lisa Harnum had suicidal tendencies or a tendency to self-harm in 2011. All of the more recent evidence of people who knew her well is to the contrary.

There is more substance in the contention that Lisa Harnum had a tendency to place herself in a position of danger or potential danger. The accused described a number of incidents involving moving cars. Mrs Harnum acknowledged that Lisa had told her about an occasion or occasions when she got out of a moving car. She could not recall whether that was when Lisa was with the accused or a previous boyfriend called George (T91-22).

The accused described an incident in early 2010 when he and Lisa Harnum were travelling in a taxi with George Karam and Rachelle Louise. He said that they had been at the Ivy and that George and Cecilia were arguing. The accused was in the front seat. George and Lisa Harnum were in the backseat. As they were pulling up next to Pitt Street, before the taxi had come to a stop, Lisa Harnum opened the door and jumped out of the car as it was still in motion. He said that he would only be guessing what speed the car was going but thought it was around 10 km per hour (T682.35). Neither George Karam nor Rachelle Louise gave evidence but no inference is to be drawn from their absence.

The accused gave evidence of a further occasion in mid 2010 when he and Lisa Harnum were travelling on Parramatta Road with Peter Morgelas. The accused was driving. The accused and Lisa Harnum started arguing because Lisa was worrying about getting back in time to collect a dress. He was telling her to be quiet and she was getting annoyed with him for telling her to be quiet. As they were driving down Parramatta Road she took off her seatbelt, started to raise her voice, hit the dashboard with her hands and opened the car door. The accused said she put her left leg on the edge of the door and held the handle of the door with her left hand. She started to scream. He put the brakes on. As soon as he did that, she was pushed forward and hit the dashboard. The accused said that the car was going at about 40 km an hour when she opened the door but said that was also a guess (T683.49).

Mr Peter Morgelas also gave evidence of that incident. He said that the accused was going to Strathfield Car Radios and he went along for the ride. Cecilia mentioned that she wanted to pick up a skirt from the tailor. The accused was telling her that she did not need it that day. They continued in an exchange along those lines. Mr Morgelas said the accused was not shouting, it was "just his usual calm voice" (T1083.40).

Mr Morgelas said that Lisa Harnum became "real upset in a split second". She raised her voice, hit her hands on the dash and opened the door, releasing the seatbelt and placing one hand out on the outside of the car. He said that she stuck her head out, "actually got herself off the seat" and he noticed that she was looking back at them. The accused hit the brakes and she leant back into the seat.

Mr Morgelas estimated that the car was travelling at approximately 50 km per hour at that time (T1084.11).

Mr Morgelas gave evidence of two other times when Lisa Harnum's voice became very loud very quickly, which he described as her "going off" (T1084.38). He agreed that it was the sort of spat that a lot of couples have (T1086.46). That evidence was presumably led to establish that Lisa Harnum shared the features of other sufferers of eating disorders described by Professor Hay. However, without knowing what prompted Lisa Harnum to become upset on those occasions, it is difficult to make too much of that evidence.

As to the incident in the car, Mr Morgelas said "if I had to judge it I don't think she was going to jump out of the car". He appeared to think that she was just seeking attention (T1087.35).

The accused also described an incident when Lisa Harnum ran across George Street after becoming upset because a man bumped into her and she wanted the accused to say something but the accused would not. The accused said she started to raise her voice and got up out of her chair and took off out of the coffee shop, running straight across the road on to George Street. He said she was "slightly looking to the right or left, not looking properly" and that a car came "pretty close to her" (T685.1).

Finally, the accused gave evidence of an occasion towards the end of 2010 or early 2011 where, after becoming annoyed at the accused, Lisa Harnum remained silent during a 40 minute trip to his parents' house. He said that, when they arrived, as he pulled into the driveway, she jumped out of the car and ran while the car was still moving at an estimated five or 10 km an hour (T686.34). According to the description given by the accused of the incident which gave rise to Lisa Harnum becoming annoyed at that time, it amounted to no more than Lisa Harnum having trouble putting something in the glove box and getting annoyed when the accused handed her a second item while she was still struggling with the first.

The accused said that, when Lisa Harnum opened the door and got out of the car, she screamed out "help" (T688.25).

Barbara Gittany gave evidence of the same incident. She is one of the accused's younger sisters. She described an occasion when Lisa and the accused arrived in the morning at the family home in Merrylands. She was waiting out the front for them when they arrived. Simon was driving and was slowing down. Miss Gittany said that she saw Cecilia open the passenger door, jump out of the car with her bag, yell "help" and run down the street. She thought the car was moving at approximately 10-15 km per hour. Ms Gittany screamed out Cecilia's name as she ran down the street. She then went back inside and called Cecilia on her mobile phone. She asked "are you ok?" and Cecilia replied "yes". Cecilia said that she was on Merrylands Road getting herself a hot chocolate.

Ms Gittany agreed in cross-examination that, when she jumped out of the car, Lisa Harnum did not fall or stumble. She agreed that Lisa "just jumped out of the car and ran away" (T993.17). On that basis, I think Miss Gittany's estimate that the car was then still travelling at 10 to 15 km per hour must be wrong. To maintain her balance at that speed, Lisa Harnum would have had to hit the ground at a running pace. On that basis, whilst I accept Miss Gittany's account of the incident, I think it is likely that the car was moving very slowly by the time Lisa Harnum got out. I have reached the same conclusion in respect of the incident with George Karam described by the accused.

Ms Gittany spoke to Lisa Harnum later on that day. She asked whether she was ok and whether she had hurt herself. Ms Harnum responded "no, thankfully, I'm ok, but sometimes I do silly things" (T930-932).

In my view, the evidence of those events does establish that Lisa Harnum was prone to act impulsively and perhaps dangerously when she was upset.

Finally on the issue of Lisa Harnum's emotional state, Mr Strickland relied upon the iPod recording (exhibit LL; T22.1) as some evidence that Lisa Harnum is an emotional person. A report from Mr Ajoy Ghosh, an expert sound engineer, established that the recording was made on Lisa Harnum's iPhone and somehow came to be stored on the accused's iPod (exhibit MM).

A relevant consideration in assessing the recording is to know whether either of the participants knew they were being recorded. Mr Strickland invited me to listen carefully to the very beginning of the recording, which I have done. As submitted by him, it sounds as though the accused is talking or making strange noises in his sleep. That coincides with one of the video clips on exhibit 22 in which Lisa Harnum makes fun of strange noises made by the accused in his sleep. It seems likely that Lisa Harnum was deliberately recording those noises. However, I think it is likely that she either believed she had turned off the recording mechanism or forgot that it was on. The subsequent conversation does not seem to me to be one in which either party was conscious of the fact that they were being recorded.

Both the Crown and the accused placed reliance on that recording as revealing aspects of the relationship allegedly consistent with their own case. I have ultimately concluded that the recording is of no assistance in resolving the issues in this trial. I do not think it reveals that Lisa Harnum is a particularly emotional or over-sensitive person, as submitted on behalf of the accused. Nor do I think it shows the accused privately rejoicing in Lisa Harnum's loneliness and isolation, as submitted by the Crown. I have not been confident to draw any conclusions from the content of that recording.

Mr Strickland submitted that all of those features of Lisa Harnum's background inform the critical events of the last days of her life. He relied upon a series of aspects of those days as pointing to an overwhelming likelihood that Lisa Harnum was in a highly distressed state by the morning of 30 July 2011 such as to trigger the kind of reactions explained by Professor Hay.

The critical features relied upon by Mr Strickland to inform Lisa Harnum's state of mind at that time were first, the serious recent conflict the couple had experienced which had led Lisa Harnum to take steps to leave, including giving the two pillowcases of clothes to Lisa Brown and placing a bag in storage. Secondly, the further conflict and argument when the accused discovered she had taken those steps. Thirdly, her discovery of his very intrusive behaviour of monitoring her text messages. Mr Strickland submitted that must have fed Lisa Harnum's fear and distress about his controlling behaviour and probably led to a concern as to whether other aspects of her life were being monitored. As submitted by both parties, the torn-up note about the surveillance cameras suggests that Lisa Harnum was in a state of great fear of the accused that morning (exhibit S). Then, the further conflict on the morning of 30 July following his use of the computer in the early hours of the morning and his confronting Lisa Harnum as to whether she had changed the password.

And finally, the act of serious aggression of the accused in physically restraining Lisa Harnum from leaving the apartment and dragging her back inside with his hand over her mouth, coupled with the remarks made by the accused after that occurred. Mr Strickland noted that, having dragged her back into the apartment the accused only expressed embarrassment at the likely response of the neighbours. According to the accused, he then insisted that it would all be easier if she would just tell him the secret, as if she was somehow to blame for his act of aggression. Mr Strickland submitted that those were insensitive and incendiary remarks which would have fuelled Lisa Harnum's feelings of fear and despair.

Mr Strickland submitted that the combination of those events as experienced by a woman with the kind of tendencies attributed to people suffering from eating disorders by Professor Hay, and with the tendency to over-reactive, risk-taking behaviour described by other witnesses makes it plausible that Lisa Harnum's reaction to the extreme circumstances in which she found herself was for her, on impulse, to run to the balcony and climb over the balustrade to get onto the awning. He submitted that the Crown has not eliminated the reasonable possibility that Lisa Harnum was so distressed, fearful or desperate that she believed her only option was to escape the accused by leaving the apartment via the awning.

Mr Strickland noted five objective features of the awning which support his submissions. First, the awning is lower than the ground level of the balcony. The difference is in the order of about 36 cm (T1159.24). Secondly, whereas on the right side there is a small ledge that a person could conceivably stand on (of a few inches width), there is no such ledge on the left side. Mr Strickland submitted that those two features could explain why Lisa Harnum's leg buckled as she landed on the awning, according to the accused.

A third feature of the awning is that it runs the length of the 15th floor of The Hyde apartment building (exhibit 44), a feature relied upon by Mr Strickland as suggesting the possibility that she may have been trying to get to another unit. Fourthly, the awning itself was a solid structure and, fifthly, it was a structure on which, according to the evidence of the accused, Lisa Harnum had previously seen maintenance or cleaning staff walking without harnesses.

I accept that Lisa Harnum was plainly in a state of great fear by the morning of 30 July 2011. However, my assessment of her conduct over the previous few days is that, unlike previous occasions on which she had perhaps behaved impulsively, she was calmly collecting her strength on this occasion. She was quietly determined to leave.

There is a further consideration. I have stood on the balcony at the point where Lisa Harnum is said to have climbed over the balustrade, according to the accused. I simply cannot accept that any person with a will to survive could have regarded it as an option for escape. The difficulty of the manoeuvre and the giddy distance to the street below put the notion of escape by that means beyond rational contemplation. The accused's alternative suggestion that Lisa Harnum took that step in order to frighten him or as a cry for attention may be dismissed as fanciful.

Lisa Harnum may have been impulsive, maladaptive and oversensitive; she may have been in a state of acute fear and despair but I do not think she was deranged. One would have to be in a completely deranged mental state to climb over that balustrade in order to escape, frighten someone or as a cry for attention.

Mr Strickland also suggested the possibility that Lisa Harnum climbed onto the balcony because she intended to kill herself. I do not think any of the evidence I have considered in this trial sustains even the slightest possibility that that was so.

Finally, Mr Strickland submitted that it is inherently implausible that the accused would have been so enraged as to unload his fiancée from a balcony in full public view on a Saturday morning on a very busy street in the middle of the CBD.

He submitted that there is nothing at all in the history of their relationship to suggest that the accused was physically violent towards Lisa Harnum except in the act of dragging her back into the apartment that morning. (It was later clarified that the submission was directed to there being nothing of that kind in the history of what Lisa Harnum had told Lisa Brown, Michelle Richmond and Helen Sharwood. With that qualification, the point is of little weight).

The simple fact is that Lisa Harnum did fall from the balcony. She either climbed over the balustrade of her own accord or was lifted over it by a deliberate act of the accused. One or other of them did something shocking and entirely unpredictable that morning.

Many of the factors as to Lisa Harnum's extreme state of mind that morning also reflect on the likely state of mind of the accused. I do not have any doubt that, at the point when he restrained her from leaving the apartment, grabbing her by the face and dragging her home, he was in a state of uncontrolled rage. Mr Strickland resisted that proposition. He noted that the accused had never stopped Lisa Harnum from leaving before. In a sense, that is the point. Previously, the combination of surveillance and persuasion had served him well. As submitted by the Crown, this time was different.

I am satisfied, as put to the accused by the Crown in cross-examination, that the accused had lost control of his temper at that point. Although that was not the case put on his behalf, my conclusion to that effect raises the need for me to consider the partial defence of provocation under s 23 of the Crimes Act 1900.

It is appropriate for that purpose to have regard to all of the evidence about the relationship. On that approach, Lisa Harnum's conduct in hiding bags of her possessions apparently in readiness for a hasty departure, involving a personal trainer from his gym in those arrangements (with possible reputational damage for him), changing the password on the monitoring program to the word 'TRUST' and making arrangements with her mother to book flights all amount to conduct which, taken together, could be regarded as likely to have provoked the accused.

I should also consider the last events of that morning including the evidence of the accused that Lisa Harnum rolled her eyes at him when he sought to reach out to her on the issue of his conduct in monitoring her messages, her dash to the door and her conduct (established by independent witnesses) in banging on the door of the neighbours screaming for help. Having regard to the subjective attributes of the accused including his admitted jealousy, his controlling behaviour and his expectation that his partner should listen to him at all times, I do not think I can eliminate the reasonable possibility that the accused's conduct that morning was the result of a loss of control induced by the conduct of Lisa Harnum.

However, I am satisfied beyond reasonable doubt that Lisa Harnum's conduct was not such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill or to inflict grievous bodily harm on her. The accused's views as to the degree of surveillance and control a person is entitled to exercise over his or her partner are not to be attributed to the ordinary person. Accordingly, if the elements of the offence of murder are otherwise made out, the defence of provocation must be rejected, in my view.

Lisa Harnum was trying to leave the accused on the morning of her death. He stopped her with an act of serious aggression. There is no doubt in my mind that he was in a state of rage at that point and that he had lost control of his temper. According to the accused, after dragging her back into the apartment, he let her sit down, made some insensitive remarks and went to make her a hot drink. The proposition that he was able to bring himself under control so quickly after the struggle at the door is inherently implausible and I reject it. I do not accept his evidence that Lisa Harnum climbed over the balustrade. I do not entertain a reasonable doubt about the accuracy or reliability of the evidence of Mr Rathmell. I cannot know exactly what happened in that apartment in the minute or so following the struggle at the door, but I think it is likely that Lisa Harnum was at some point rendered unconscious. Based on my assessment of all of the evidence, I am satisfied to a point of actual persuasion and beyond reasonable doubt that the accused maintained his rage and, in that state, carried her to the balcony and unloaded her over the edge. It follows that I am satisfied beyond reasonable doubt of the elements of the offence. I find the accused guilty of the murder of Lisa Cecilia Harnum.

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Decision last updated: 27 November 2013

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