Supreme Court New South Wales

• Medium Neutral Citation: R v Gittany (No 2) [2013] NSWSC 1599
• Hearing dates: 1 November 2013
• Decision date: 04 November 2013
• Before: McCallum J

Decision

Rulings on evidence

• Catchwords: EVIDENCE - relationship evidence - whether relevant - operation of exclusionary provisions
• Legislation Cited: Evidence Act 1995
• Cases Cited: R v Clark [2001] NSWCCA 494; R v Frawley (1993) 69 A Crim R 208; R v Toki (No 3) [2000] NSWSC 999; Wilson v R (1970) 123 CLR 334
• Category: Interlocutory applications
• Parties: Regina; Simon Gittany (accused)
• Representation: Counsel: M Tedeschi AM QC (Crown); P Strickland SC (accused); Solicitors: Director of Public Prosecutions (Crown); Bannisters Lawyers & Attorneys (accused)
• File Number(s): 2011/250258
• Publication restriction: None

Judgment

1 HER HONOUR: Simon Gittany is charged with the murder of Lisa Cecilia Harnum. His trial commenced on 21 October 2013 and is by judge alone: see R v Gittany [2013] NSWSC 1503. This judgment gives rulings as to evidence.

2 Miss Harnum was the fiancée of the accused. She died almost instantaneously after falling from the balcony of their 15th floor apartment shortly before 10am on Saturday 30 July 2011. The Crown case is that her fall was due to a deliberate act of the accused, described in the contention that he held her body horizontally across his arms and "unloaded" her over the edge of the external railing of the balcony. The accused says that Miss Harnum ran to the balcony of her own accord, climbed over the railing and either slipped or let herself fall from the awning below.

3 Both the Crown and the accused have led evidence in the trial about the relationship between the accused and the deceased. The Crown has led evidence on those issues from the deceased's mother, who lives in Canada (Mrs Joan Harnum); a personal trainer who began training the deceased two weeks before her death (Ms Lisa Brown) and a counsellor to whom Ms Brown referred the deceased (Ms Michelle Richmond). Most of the evidence of those witnesses is of statements made to them by the deceased. Only some of their evidence has been the subject of objection.

4 Separately, the Crown has objected to evidence given in cross-examination by a friend of the accused as to a film of the deceased taken by the accused in about December 2010 (in which she appears happy and playful).

5 I heard most of the argument as to the accused's objections at a pre-trial hearing on 15 October 2013. The objections were at that point expressed by reference to the written statements of the witnesses in question. I gave some indicative rulings that day but it became clear during argument that in many instances it would be necessary to hear the evidence given orally before making a final determination. Since the accused is not being tried by a jury, the parties agreed that those issues could appropriately be deferred until the conclusion of the Crown case, when they could be considered with a better understanding of the Crown case. My consideration of those issues and my rulings as to the remaining objections are as follows.

6 Evidence as to the relationship between an accused person and the person against whom he or she is alleged to have committed an offence is admissible only if it is relevant to a fact in issue in the proceedings. There is a rich body of careful jurisprudence on that issue, presumably reflecting the inherent subjectivity of the question. In R v Frawley (1993) 69 A Crim R 208, Gleeson CJ observed "it is not particularly helpful to begin with an assumption that, in a case of homicide involving a man and a woman, evidence of their relationship is admissible" (at 220). His Honour preferred to approach the matter not in terms of generality as to "relationship" but, rather, to consider "whether the evidence in question is direct evidence of any fact relevant to a fact in issue" (at 222; Carruthers J agreeing).

7 In R v Clark [2001] NSWCCA 494, Heydon JA noted, unexceptionably, that the reception of such evidence turns on three issues: whether the specific forms of it that are tendered are relevant; whether, if any exclusionary provisions apply, their operation can be avoided and whether an order should be made under any of sections 135-137.

8 The decision of the High Court in Wilson v R (1970) 123 CLR 334 provides an illustration of a case in which the issue of relevance was relatively straightforward. In that case, the accused was charged with the murder of his wife. She had died of gunshot wounds received while she was driving a tractor pulling a load of hay on a property managed by the accused. He accepted that he was present at the time she was shot. He had borrowed a shotgun from a neighbour the previous day, allegedly for the purpose of shooting rabbits. He had placed the shotgun on the load of hay. He claimed that it had discharged accidentally, perhaps when a dog jumped up on the hay. Evidence of their relationship was held admissible on the basis that it was relevant to the question whether the accused in fact did the act charged (firing the gun). Barwick CJ observed (at 337):

"evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility".

9 The issue of relevance is more complex in the present case. The Crown case may be summarised as follows: that, from the beginning of their relationship of about eighteen months, the accused subjected the deceased to increasing domination, control and abuse, starting in small ways and becoming more severe; that, over a period of time and by degrees, the deceased thus became isolated from friends and family and subject to complete restriction by the accused in many aspects of her daily life; that she had considered leaving the relationship in the past but had always recanted; that, shortly before her death, she decided for the final time to leave the relationship; that, after discussing practicalities with Ms Richmond, she took active steps towards leaving, including giving two bags of clothes to Ms Brown to mind and placing a third in storage; that the accused found out that she had done so and became enraged, cutting her off from Ms Brown and Ms Richmond, who were at that time her only sources of support in Australia; that she was determined this time to leave the relationship and that the accused, realising that to be the case, became incensed at his loss of control over her.

10 Thus the way in which the Crown puts its case is that, by the morning of 30 July 2011, the deceased and the accused had a dysfunctional relationship in which he was determined to control her and that he was enraged by her recent determination to escape his control.

11 The Crown case includes CCTV evidence showing that, on the morning of her death, the deceased left their apartment by the front door. It is anticipated that there will be evidence from neighbours that she was banging on their door and screaming for help at that point. The CCTV footage shows the accused stopping her and taking her back into the apartment. According to the Crown case, her body landed on the footpath outside the apartment no more than 69 seconds later.

12 An issue of fact is thus raised by the Crown case as to whether the accused was determined to control the deceased even if she wanted to leave the relationship. The Crown will submit that the alleged control and domination of the deceased by the accused and his consequent enragement at the steps she had taken behind his back in preparation to leave him induce the conclusion that it was the accused who put her over the balcony. As in Wilson, the evidence is put as being relevant to the issue whether Lisa Harnum climbed over the balcony herself or was lifted and dropped over the balcony by an enraged accused. The Crown does not rely upon any of the evidence for the purpose of establishing that the accused has a tendency to act in a particular way.

13 An important aspect of the case on that issue is that the Crown seeks to establish that the degree of control being exercised by the accused over the deceased by the time of her death was reached by a slow, attritional process consisting of many acts over an extended period. On that basis, it was submitted that many events which may appear to be of little moment taken alone are relevant as steps in that process.

14 The admissibility of the evidence should also be considered having regard to the case opened by the accused at the outset of the trial. Mr Strickland stated that the reality of the relationship is a far more complex one than that portrayed by the Crown. He described the relationship as being characterised by love and affection but also dysfunctional. Mr Strickland said that there was a pattern in the relationship, which would be very important for me to consider, of arguments, an overreaction by the deceased threatening to leave and then reconciliation.

15 It is also relevant to note that the accused has given notice under s 97 of the Evidence Act 1995 that he intends to lead evidence that the deceased had a tendency to act dangerously, to self-harm and to be suicidal. No doubt that evidence, if admitted, will be relied upon to support the existence of a reasonable doubt as to the act charged. I apprehend that it will be contended that, having regard to previous dangerous conduct alleged against the deceased, I should conclude that she was the kind of person to take the dangerous course of climbing over a balcony onto an awning high above the ground (I do not think the proposal to call such evidence had been foreshadowed at the time I ruled on the accused's application for a trial by a judge alone).

16 The Crown is thus on notice that the accused will seek to establish a different picture of the dealings and attitudes between him and the deceased from that presented by the Crown. The Crown is entitled to address those issues in its own case.

17 Mr Strickland accepted that evidence as to dealings and attitudes between the deceased and the accused is potentially relevant in this trial. Indeed, as already explained, the accused himself relies on aspects of those dealings as inducing to the conclusion that there was a pattern in the deceased's behaviour of overreaction to arguments, with threats to leave, followed by reconciliation. Mr Strickland submitted that there are nonetheless constraints on the admissibility of such evidence. Much of the material objected to was said to be simply too remote in time to meet the test of relevance in s 55 of the Evidence Act.

18 As to the operation of any exclusionary provisions, as already noted, much of the evidence of Mrs Harnum, Ms Brown and Ms Richmond was evidence of things said to them by the deceased. Evidence in that form is not admissible to prove the existence of any fact the deceased can reasonably be supposed to have intended to assert unless falling within an exception to the hearsay rule: s 59 of the Evidence Act.

19 The Crown relied upon the operation of three exceptions to the rule. First, it was submitted that some of the things said by the deceased to the witnesses were contemporaneous representations about her health, feelings, sensations, knowledge or state of mind and so were admissible under s 66A of the Act.

20 Secondly, the Crown relied upon the exception in s 65 of the Act for representations made by a person who is not available to give evidence in the trial about an asserted fact. In particular, the Crown relied on subss 65(2)(b) and (c) and, to a lesser extent, subs 65(2)(d). For example, Mrs Harnum gave evidence of an occasion between June and December 2010 when the deceased told her that she and the accused had a fight. The deceased said she picked up her purse to leave and the accused grabbed it and yanked at it, breaking her finger (statement dated 8 August 2011 at paragraph 37). The deceased called her mother during the fight and said "Mum, mum you gotta help me". I rejected the evidence as to the injury to the finger but indicated that I would be inclined to admit the evidence as to the fight and the attempt to leave. That preliminary ruling is re-visited below.

21 The third category of exception relied upon by the Crown also invoked s 65 but related to instances where the asserted fact relied upon was the fact that the accused had said particular words to the deceased, which were put as being relevant to his alleged exercise of control or domination over her. The Crown referred to those as "verbal acts".

22 Mr Strickland accepted that his objections fell to be determined within that framework. However, he submitted that where, as here, the evidence is potentially broad-ranging and relating to a lengthy period, there should be some limit on the evidence. A similarly lengthy period of relationship evidence was considered in a decision relied upon by Mr Strickland of R v Toki (No 3) [2000] NSWSC 999. That was a case in which the Crown sought to adduce a considerable amount of evidence of a history of domestic violence against the deceased at the hands of the accused. After considering the limitations that should be imposed on the admission of such evidence, Howie J indicated that he would exclude general statements made by the deceased that the accused was assaulting her where such statements were not related to particular injuries. His Honour considered that such statements did not have sufficient proximity to the asserted fact to fall within s 65(2)(b) and that he could not be satisfied that they met the more onerous test under s 65(2)(c). Mr Strickland maintained a number of specific objections by reference to that approach.

23 As to the discretionary and mandatory exclusions under ss 135 to 137 of the Act, Mr Strickland acknowledged that, in the case of a trial by a judge alone, the risk of unfair prejudice, while not completely eliminated, is substantially reduced. He submitted, however, that the discretion to exclude evidence under s 135(c) was very much enlivened in a trial by judge alone, particularly in the circumstances of this case. That section confers power to exclude evidence if its probative value is substantially outweighed by the danger that the evidence might cause or result in undue waste of time. Mr Strickland submitted that a number of the generalised accounts of complaints about the accused given by the deceased to her mother fall within that category, particularly since it is anticipated that the accused will give evidence and will thus be expected to make an answer to each such account. Mr Strickland warned that the evidence in response would have to be detailed and would inevitably take some time.

24 The objections addressed on 15 October 2013 were argued and determined (in most instances provisionally) within that framework. Mr Strickland's remaining objections at the conclusion of the Crown case were set out in a document marked MFI 35. My rulings on those objections are as follows.

25 The first category of objection related to evidence given by Mrs Harnum as to things Lisa Harnum said to her during a trip home to Canada in June 2010. The material objected to appears at T41.27, T42.35, T43.10 to T43.39 and T45.20 to T46.46. The basis for the objection was that the evidence was too remote in time from the event of Lisa Harnum's death and so either was not relevant at all or, if relevant, was such as to warrant exclusion under s 135(c). The Crown did not seek to be heard in response to that submission save as to evidence of a telephone conversation between the accused and the deceased during which Mrs Harnum took the phone and spoke directly to the accused (T45.20 to T46.46). Mrs Harnum gave an account of the gist of the conversation but could not remember what was said with specificity. I have concluded that all of the evidence objected to in respect of the deceased's trip to Canada in June 2010 is too remote in time and too generalised to warrant its admission. That evidence is rejected.

26 The next passage of evidence objected to appears at T48.10 to T52.18. That was evidence given by Mrs Harnum in relation to a phone call she received from the deceased on 1 September 2010 and some text messages exchanged on that date; a text message she received on 6 September 2010 and a phone call and text message about a further argument on 8 September 2010. The objection extended to the first four messages in a schedule of text messages tendered by the Crown (exhibit V). In my view, that evidence must also be excluded. The effect of the evidence as to 1 September was that Mrs Harnum heard screaming over the phone and the deceased said "Mummy, you have to come and help me" before the phone went dead. The messages exchanged later were to the effect that the accused had calmed down and the deceased was ok. There was no further detail provided. With no specificity as to the terms or topic of the argument, and having regard to the lack of proximity to the date of Lisa Harnum's death, I think it would be very difficult for the accused to make an answer to that evidence. The risk of unfair prejudice is therefore high. The same may be said of the evidence as to the argument, phone call and text message of 8 September 2010.

27 The text message dated 6 September (at T50.47) is potentially confusing. It appeared to be put as relating to plans the deceased had at that time to move back to Melbourne but may equally refer to an impending move by both the accused and the deceased to their apartment at the Hyde and the deceased's plans to return to Canada that Christmas.

28 Accordingly, I am satisfied that, although the evidence is relevant and admissible under s 65, I should exercise my discretion under s 135 to exclude that material.

29 The next objection is to Mrs Harnum's evidence at T54.15 to T55.37 and texts numbered 11 to 14 in exhibit V, all dated 2 October 2010. It is clear from the transcript references given that the objection was intended to extend to texts 19 and 20 in exhibit V, each dated 15 November 2010. The oral evidence added nothing to the texts except to confirm their receipt.

30 All of those texts are from the deceased to her mother. In my view, they are relevant and admissible. The four texts dated 2 October 2010 are admissible under s 66A as contemporaneous representations about the deceased's feelings, intentions and state of mind. They suggest that she was at that time feeling sad in the relationship and was considering moving out. Such representations are relevant to the Crown's case as outlined above. I am not persuaded that there is any basis for excluding that evidence.

31 The two messages dated 15 November 2010 contain some representations as to the accused's state of mind ("Simon gets so uptight" and "he gets uncomfortable with all of the guys around") together with statements relating to the deceased's feelings, intentions and state of mind. In my view the statements as to the accused's state of mind should not be admitted other than as recording what the deceased felt about him. The messages are otherwise relevant and admissible under ss 66A. I am not persuaded that I should exclude that evidence.

32 The next passage of Mrs Harnum's evidence objected to appears at T56.25 to T57.28 relating to Lisa Harnum's return home to Canada at Christmas in 2010. Mrs Harnum said that the accused constantly called Lisa during that period. Lisa told Mrs Harnum that he was asking what she was wearing, what she was doing, where she was, making sure she was only with family. In my view, that evidence is relevant, admissible and not liable to be excluded under ss 135 to 137.

33 The accused also objected to evidence at T58.40 of a telephone conversation described by Mrs Harnum as follows: "basically in the context of she was trying to arrange to leave him through a friend of hers". Mrs Harnum was not able to say when that conversation took place or what was said. I think that evidence is too general and must be excluded.

34 The last objection to Mrs Harnum's evidence was to the following evidence at T59.18 to T59.26:

Q. You have told us she told you she wanted to leave Simon. Did she tell you what Simon did when she wanted to leave?

A. He would take away her key to the apartment and he would take her passport so she couldn't leave.

Q. Did she say anything about where that left her?

A. She couldn't, if she walked out of the apartment without the key and her passport, she would have to ask him permission to get back in, so she was stuck.

35 That evidence is plainly relevant to the issues of fact explained above. The difficulty is with its form. It is not clear whether Mrs Harnum was speaking of one occasion or more than one. She appears to be describing something the deceased said the accused had done (not something he had said he would do) but that is not entirely clear. There is no specificity as to dates including when the conversation took place compared with when the events described took place. In my view the evidence, whilst relevant, has not been established to meet any of the tests for previous representations in s 65(2) and in any event should be excluded under s 135 as being liable to cause unfair prejudicial in the form in which it was given.

36 Finally, the accused objects to text messages numbered 16 to 23 in exhibit V. I have already considered texts 19 and 20. Texts 16, 17 and 18 are messages from the accused to the deceased. They amount to little more than evidence of an argument between them with no context. I do not think they are of any real probative value. I reject that evidence. Texts 21 and 22 are also messages from the accused to the deceased. They provide examples of the kind of conduct towards the deceased which the Crown alleges characterised the relationship. In my view, those texts are relevant and should be admitted.

37 Text number 23 is innocuous (indeed, supportive of the case for the accused) and appears to have been included in the objection by mistake.

38 As noted above, the Crown objects to evidence given in cross-examination by a friend of the accused as to a film of the deceased (in which she appears happy and playful). The witness said that the film was taken at the Pitt St apartment, before the accused and the deceased moved to the Hyde apartments, which would place it before October 2010. Whilst I understand the importance to the accused of the contention that his relationship with the deceased was loving and affectionate, and not as characterised by the Crown, the film is in my view of so little weight on that issue as to warrant its exclusion.

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Decision last updated: 13 November 2013