R v Gittany [2013] NSWSC 1503

Supreme Court New South Wales

Medium Neutral Citation: R v Gittany [2013] NSWSC 1503 Hearing dates: 4, 10 October 2013 Decision date: 14 October 2013 Jurisdiction: Common Law Before: McCallum J Decision: Application by accused for trial by a judge alone granted. Catchwords: CRIME - application for trial by a judge alone - whether in the interests of justice -case not involving a factual issue that requires the application of objective community standards - where accused had been refused legal aid and had limited access to private funds - where adjournment of trial could result in unavailability of important crown witness Legislation Cited: Criminal Procedure Act 1986, s 131; s 132 (4) & (5)i; s 132A Legal Aid Commission Act 1979, s 57 Cases Cited: R v Belghar [2012] NSWCCA 86; (2012) A Crim R 1 R v Dean [2013] NSWSC 661 Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 R v Fardon [2010] QCA 317 R v Stanley [2013] NSWCCA 124 Category: Procedural and other rulings 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 stands charged with the murder of Lisa Harnum on 30 July 2011. His trial is listed to commence on 21 October 2013. This judgment determines his application for an order pursuant to s132 of the Criminal Procedure Act 1986 that he be tried by a judge alone. 2. Section 132A of the Act provides that such an application must be made not less than 28 days before the date fixed for trial, except with the leave of the Court. The present application was foreshadowed at a directions hearing on 4 September 2013, within the time frame contemplated under the section, but, to accommodate other commitments of counsel appearing for the Crown, was not heard until 4 October 2013. The notice of motion was filed in the Registry the day before that hearing. In those circumstances, the Crown did not oppose the grant of leave to make the application fewer than 28 days before the date fixed for trial. I am satisfied that it is appropriate to grant leave. 3. The Crown opposed the making of a trial by judge order. Section 131 of the Criminal Procedure Act provides that, except as otherwise provided by the Act, criminal proceedings in the Supreme Court or the District Court are to be tried by jury. If both the accused and the prosecutor agree to a trial by judge order, the Court must make the order. However if, as in the present case, the prosecutor does not agree, the matter is left to the discretion of the Court. 4. The power to make an order that the accused be tried by a judge alone is engaged only if the Court considers it is in the interests of justice to do so: see s 132(4). 5. Section 132(5) provides: (5) Without limiting subsection (4), the Court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness. 1. In the decision of the Court of Criminal Appeal in R v Belghar [2012] NSWCCA 86; (2012) A Crim R 1, McClellan CJ at CL expressed the view (at [96]) that s 131 does not have the effect of creating a presumption that a criminal trial should be with a jury, casting a burden of proof on an accused person to establish otherwise. The extent to which those particular remarks carried the agreement of the other two members of the Court is unclear. Each agreed with his Honour that the primary judge had fallen into error but preferred to express no concluded view as to "the wider issues raised by the question of whether a trial should be by jury or by judge alone": at [117] per Hidden J; at [122] per Hislop J. 2. In a short statement of additional remarks, Hidden J thought it unhelpful to speak about presumption or an onus, noting that the scheme of the statute is to require the accused to raise material leading to the conclusion that it is in the interests of justice to depart from that mode of trial. His Honour also noted that, whilst the institution of trial by jury has historically been for the protection of the accused, the statute recognises that there is a community interest in trial by jury which in a particular case might override the accused's preference for a judge alone trial. In that context, his Honour adopted the remarks of Chesterman JA in R v Fardon [2010] QCA 317 at [81] that an accused cannot have a trial by judge alone "for the asking". 3. However, in R v Stanley [2013] NSWCCA 124, a unanimous Court of Criminal Appeal cited the judgment of McClellan CJ at CL in Belghar at [96] as authority for the proposition that "the interplay of ss 131 and 132 should not be regarded as creating a presumption in favour of trial by jury which must be rebutted before an order for trial by judge alone may be made": per Barr AJ at [42]; Macfarlan JA and Campbell J agreeing at [1] and [2] respectively; and see R v Dean [2013] NSWSC 661 at [52] per Latham J. Accordingly, that must now be taken to be a binding statement of principle. 4. It is acknowledged that the accused does bear an evidentiary burden: see Stanley at [42] and Dean at [52]. 5. The principal basis for the application in the present case is that it is in the interests of justice for the Court to grant a judge alone trial because that would increase the likelihood that the accused would be represented at trial. The accused was represented by senior counsel, Mr Strickland, at the hearing of the present application, but Mr Strickland has not yet been retained to appear at the trial, due a shortage of funds. The accused has been refused Legal Aid and an appeal against that refusal has also been refused by the Legal Aid Review Committee. The decision of the Committee is final. The accused contends that a trial by a judge alone will be shorter than a trial with a jury and that the funds he has available to defend the charge are insufficient to meet the estimated costs of a trial with a jury. 6. Two further matters were relied upon in support of the application but it was acknowledged that those matters would not, on their own, warrant a trial by judge order. They were, first, the fact that the matter has been the subject of adverse media reports and, secondly, the contention that the trial involves what were described, broadly, as scientific issues. 7. It was further contended that the case does not involve a factual issue that requires the application of objective community standards so as to attract the guidance of the Court's discretion contained in s 132(5) of the Act (set out above). It is convenient to consider that issue first. 8. For the purpose of understanding the factual issues in the case, the parties agreed that it was appropriate for me to proceed by reference to the Crown statement of facts, as follows: 1. Lisa Harnum, 30 years of age, was a Canadian national who first came to Australia about seven years ago on a working visa. 2. The accused and Ms Harnum met in late 2009 or early 2010. They became engaged to be married at a birthday dinner for Ms Harnum in a Parramatta restaurant on 12 June 2011. They lived together in a home unit in "The Hyde" apartment building in Liverpool Street, Sydney. 3. At about 9.45am on Saturday 30 July 2011, Ms Harnum fell from the fifteenth floor balcony of the unit, landing on the southern footpath of Liverpool Street, Sydney, outside the apartment building. A witness, Mr Josh Rathmell, walking through Hyde Park had heard yelling and looked up to the balcony to see the accused move his arms outward in a throwing motion as the victim left the balcony. 4. A number of witnesses rushed to the aid of Ms Harnum, including a passing orthopaedic surgeon and a medical student who together commenced cardiopulmonary resuscitation. The accused went from the unit to the ground level where he knelt next to the victim. Ambulance officers arrived a short time later and deemed her to be deceased, placing the body into an ambulance. She was formally pronounced dead at St Vincent's Hospital a short time later. 5. Police established crime scenes on the footpath and at the unit. The accused was identified as the fiancé of Ms Harnum. He provided his and her personal details to police. He told police, "We had a fight last night, we just worked out that it was best for her to go home to Canada." He further told police that in the morning Ms Harnum went to leave through the front door and, "I stopped her." The accused stated he was then in the kitchen and saw Ms Harnum run to the balcony and step over the railing onto an outer ledge. He said, "I ran toward 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 her handbag or jacket, then she was gone." 6. The accused accompanied police to the Surry Hills Police Station where it was anticipated a statement would be obtained from him. He provided police signed consent to conduct crime scene examinations in his home unit. Police nonetheless obtained a crime scene warrant for that purpose. The accused informed police that there was a closed-circuit television system installed within the home unit, with footage recorded from a covert camera covering the hallway outside the front door of the home unit. 7. Police accessed the CCTV system and saw that about 9.52am, Ms Harnum left through the front door of the home unit. A witness in a neighbouring unit at that time heard knocking on her door and a female voice screaming, "Please help me, help me, God help me." The witness then heard a male voice and a female scream again before quiet. The accused is depicted on his closed-circuit television moving outside his front door, reaching around Ms Harnum's head with his left arm, placing his hand over her mouth and dragging her back into the home unit. Moments later she fell to her death on the footpath. 8. The accused was arrested and cautioned as a suspect in the death of Ms Harnum. He was entered in custody and his rights under part 9 of the Law Enforcement (Powers and Responsibilities) Act were read to him by the Custody Manager. Sometime later a legal representative arrived at the police station and provided advice to the accused. On behalf of the accused, the legal representative declined for him to participate in an interview or to conduct a re-enactment at the home unit. The accused consented to a forensic procedure and those were completed, namely, photographs and a buccal swab. The accused was released from custody. 9. Investigation continued and witnesses provided police with information relating to the domestic relationship between the accused and Ms Harnum. She had disclosed to those witnesses in the previous two weeks that the accused "absolutely controlled her life". He rarely let her leave their home unit or building and monitored her movements closely if she was out alone. In recent times she had become aware that the accused was tracking her emails, messages and phone calls and that there was a CCTV system installed within their home unit. 10. The relationship between the accused and Ms Harnum was turbulent. 11. She was intending to leave the accused to the point where she told them she had secreted a travel bag and passport in a location away from her home unit. In the days before her death, she expressed to witnesses her real fear of the accused and that she wanted to return home to Canada. 12. The accused was detained outside his apartment building at about 9.30am on Wednesday 3 August 2011. He was told he was under arrest for murder, and he was cautioned before being taken to the Surry Hills Police Station. The accused was entered in custody and his rights under part 9 of LEPRA were read to him by the Custody Manager. Sometime later a legal representative arrived at the police station and provided advice to the accused. 13. The accused refused to participate in any form of interview or to have his refusal electronically recorded. 1. 14The case for the accused will be that he did not "unload" the deceased (as it was put during argument before me) or push or throw her from the balcony but that she voluntarily climbed over the railing and either fell or jumped off the balcony, possibly in an impaired mental state. 2. The accused anticipates calling three experts in support of his case. The first is Dr Gibson, a biomechanical engineer. His report was not put before the court on the present application. 3. The second is Dr Kemp, an experimental psychologist with expertise in the area of eyewitness memory. It will be necessary to return to that evidence. 4. The third is a proposed expert in eating disorders who will be asked to give an opinion as to whether the deceased was suffering from an eating disorder at the time of her death and whether that is likely to have contributed to a decision to act as the accused says she did. That report has not yet been obtained by the accused and, accordingly, was not available for consideration on the present application. 5. It is apparent from the material put before me that the critical issue at the trial will be whether the accused unloaded the deceased from the balcony. It is not suggested that, in the event that the tribunal of fact were satisfied beyond reasonable doubt that the accused did act as alleged by the Crown, there would be any issue as to his intention in doing so. The critical issue is an issue of fact as to whether he did or did not so act. On that basis I accept, as submitted by Mr Strickland, that the case does not involve a factual issue that requires the application of objective community standards, as that expression is understood within the meaning of s 132(5). 6. I turn to consider the specific grounds for the application. It is convenient to deal, first, with the alleged adverse media reporting. The material relied upon was contained in exhibit 1. I accept, as submitted by the Crown, that nothing in that material goes beyond what would be likely to be said in evidence at the trial. Murder trials frequently attract extensive reporting in the media which juries are directed to ignore. I do not think alleged adverse media reporting is a consideration pointing in favour of a judge alone trial in the present case. 7. As to scientific issues, the accused relied specifically on the report of Dr Kemp, which was in evidence before me on the application. The terms of that report are not, in my view, so complex as to be beyond the understanding of a jury, properly directed. Separately, Mr Strickland submitted that, in the case of the consideration of such a report, going as it does to the assessment of the reliability of other evidence in the Crown case, it is preferable, and better serves the interests of justice, for an accused to have a statement of reasons for accepting or rejecting the evidence. I think ultimately that contention is contrary to the authorities dealing with applications for trial by a judge alone, which recognise that either mode of trial must be taken to have advantages and disadvantages and that each mode of trial is acceptable. Accordingly, I have concluded that that is not a consideration pointing one way or the other in favour of a trial by a judge alone. 8. The question of legal representation, which was the primary basis for the application, raises more difficult issues. The evidence and other material brought forward by the accused at the first day of hearing of the application raised three issues: first, the extent of private funds available to the accused; secondly, the availability of Legal Aid; and thirdly, the likely estimate of the trial. 9. As to the funds available to the accused, I do not think it is necessary to summarise the affidavit evidence in detail. In short, the evidence established that the accused has spent a considerable amount of money on the proceedings to date; that the estimated cost of the trial took him by surprise (as being higher than expected); that he had an expectation of receiving considerable further funds by way of further loans from friends and family and that, for various reasons recorded in the affidavit evidence, those expectations have not been fulfilled. The Crown did not submit that I should not accept any of that evidence. 10. The accused had previously retained different solicitors from those presently on the record. The solicitor now acting for the accused is Ms Abigail Bannister of Bannisters Lawyers & Attorneys. The cost of the proceedings before the file was transferred to Ms Bannister was approximately $210,000. That included the cost of a committal hearing in which the accused briefed Mr Bellanto of senior counsel and which went for longer than anticipated, accordingly costing more than had been foreshadowed by those solicitors. I am satisfied on the strength of the affidavit evidence before me that the accused nonetheless had a reasonable expectation that he would be able to obtain substantial further funds but that those expectations will now not be met due to unforeseen changes in the circumstances of other people and through no fault on the part of the accused. I also accept that the accused did not anticipate the extent of the future costs of the proceedings. 11. There was some cross-examination of the accused as to his past and present financial position but the Crown did not ultimately submit that I should not accept the accused's evidence as to the extent of funds now available to him. I am satisfied on the strength of that evidence that the accused does not presently have any further funds available to him beyond those that have been deposited into Ms Bannister's trust account. 12. Separately, there was evidence as to the accused's application for Legal Aid. No application for Legal Aid was made until quite late in the preparation for the present trial. Indeed, it appears that the application may have been made when it was in response to a suggestion from me at one of the directions hearings in the proceedings. The accused had evidently anticipated that, owing to assets or funds held by or available to him, any such application would be unsuccessful. 13. At the first day of the hearing of the present application there was evidence to establish that an application for Legal Aid had finally been made by those representing the accused (on his behalf) and that the application had been refused on the basis that the accused failed the assets test. 14. As to the likely length of the trial, I relied on the estimates of counsel. Mr Strickland estimates that a trial by a judge alone would take approximately four weeks, while a trial with a jury would take approximately six weeks. The estimate of four weeks for a judge alone trial was based upon approximately two to three weeks for the Crown case, one week for the defence case and about two days of legal argument in relation to admissibility. Mr Strickland estimated that the Crown case including legal argument and argument as to admissibility would not exceed three weeks, while the estimate for the defence case would be approximately one week, with addresses taking about a day. 15. As to the estimate for a trial with a jury, Mr Strickland estimated that legal argument would be two to three days, the Crown case would be three to four weeks, the defence case would be one to one-and-a-half weeks and that jury deliberations would be of a duration he could not estimate. 16. Mr Strickland explained the difference in his estimates between the two modes of trial by reference to the following matters. First, he submitted that cross-examination of at least some witnesses and final addresses would be shorter in the case of a trial by a judge alone. He said that there would be many matters which would not need to be spelled out for a judge which would need to be spelled out for a jury. He noted that, in a judge alone trial, there would be no time lost in juries coming in and out of court, looking at exhibits and due to the usual contingencies such as jurors being late, sick or having other appointments. 17. The Crown submitted that the principal difference would be the period of jury deliberation after the conclusion of the trial. He acknowledged that, in the case of a trial with a jury, that would be a period during which counsel for the accused would be required to be available and would, accordingly, be entitled to charge a fee. The Crown accepted that a trial by a judge alone would undoubtedly be shorter but questioned the extent of the saving contended for by Mr Strickland. He submitted that, whilst there is no summing-up in a trial by a judge alone, any savings of time at that stage tend to be consumed by the tendency of counsel in such a trial to engage at greater length with the Court as to the manner in which the judge should direct him or herself. He submitted that the saving of a judge alone trial would be in the order of about 20%. 18. Based on my own experience of jury trials, both as counsel and on the bench, I am satisfied that the difference in estimates proposed by Mr Strickland is realistic. On either view, that is, the view of Mr Strickland or the more conservative view of the Crown, there is a substantial risk in the present case that a trial with a jury would go for considerably longer than four weeks, while there appears to be a good prospect that a trial with a judge alone would be heard within that period. 19. Based on Mr Strickland's estimate of four weeks for a judge alone trial, the cost disclosure that has been given to the accused by Ms Bannister is in the order of $280,000. Based on a six week trial, the disclosure is in the order of $370,000. In each case, those disclosures include the preparation that has been undertaken to date. 20. The Crown did not question those amounts. However, he noted that, according to the evidence before me on the first day of the hearing of the application, the amount held in trust by Ms Bannister included funds held on account of legal services already provided. At that stage, only $170,000 was held on account of future legal services, contrary to the understanding given to the Legal Aid Commission. The Commission had been informed that an amount of almost $223,000 was held in Ms Bannister's trust account (exhibit 4), a matter evidently relied upon by the Commission in reaching its conclusion that the accused failed the assets test for a grant of legal aid. 21. The Crown also questioned whether the amount held on trust should properly be regarded as an asset of the accused (as it appears to have been by the Legal Aid Commission), since it represents funds he has borrowed from family and friends and for which he has a corresponding liability. The Crown noted that, as at that stage (that is, on the first day of the hearing of the application before me), the Legal Aid Commission did not appear to have full information in that respect. Accordingly, he submitted that it could be inferred that the application for legal aid submitted on behalf of the accused had not been put forward seriously. 22. At the same time, the Crown accepted that, in accordance with s 57 of the Legal Aid Commission Act 1979, the Court would have to adjourn the trial to abide the determination of an appeal lodged by the accused to the Legal Aid Review Committee. 23. The accused at that stage undertook to submit to the Legal Aid Review Committee all of the evidence which was then before the Court. Further, at the suggestion of the Crown, a letter was sent to the Legal Aid Review Committee at my request to inform the Committee of the impending trial and to request that the determination of the appeal be expedited, if possible. The hearing of the application for a judge alone trial was stood over to a date following the next anticipated meeting of the Committee. 24. When the hearing before me resumed, Mr Strickland informed the Court that the Committee had been provided with all of the information that had been provided to the Court at the previous day's hearing. The appeal to the Legal Aid Review Committee was nonetheless disallowed. At that stage, Mr Strickland also informed the Court that, if an amount of $30,000 which had been deposited with the court by the accused's sisters by way of cash security as a condition of his bail were released to Ms Bannister, and if the Court were to grant a judge alone trial, Mr Strickland would be briefed to appear at the trial. The Crown did not oppose the variation of the accused's bail conditions to allow the release of that cash. 25. Mr Strickland further stated that he anticipated that, if the application for judge alone trial were refused, the accused would be unrepresented for the trial and would be forced to seek an adjournment so as to attempt to raise further funds or else endeavour to retain lawyers who would conduct the trial at private rates for less than the current estimate provided by Ms Bannister. 26. Two further important considerations arise against the risk of an adjournment. The first is that the mother of the deceased lives in Canada and presently plans to travel to Australia for the trial commencing next Monday. More importantly, the eyewitness, Mr Rathmell, has communicated with the Crown's instructing solicitor by email to say that, if the trial is adjourned, he may not be available. He is due to travel to America, evidently for permanent employment, and has emphasised that it would occasion considerable embarrassment and inconvenience to him if the trial does not proceed within a two-week window evidently notified to him on the strength of the present trial date. 27. In the face of that further evidence and other material, when the hearing of the application resumed before me last Thursday, the Crown stated that, whilst he still formally opposed the application for trial by a judge alone, if it were ultimately a choice between a lengthy adjournment and a trial by judge alone the Crown would prefer a trial by judge alone. 28. I consider that it is in the interests of justice to order a trial by judge alone. I am satisfied on the evidence before me and having regard to the estimates provided by two very experienced counsel that the accused's present legal team has a proper basis for apprehending that a trial with a jury would probably exhaust the accused's available funds well before its conclusion. In that circumstance, I accept unequivocally Mr Strickland's statement to the Court that, if the application were refused, the accused would not have representation for the trial presently listed to commence a week from today. 29. In those circumstances, having regard to the decision of the High Court in Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, the accused would have a compelling basis for obtaining an adjournment. 30. It is important to bear in mind in the present case that the interests of justice are not to be confused with the interests of the accused. As already noted, trial by a judge alone is not available for the asking. However, broader interests are raised by the present application. The basis for the application is not simply a question of invoking considerations of the overall efficiencies in a trial by a judge alone: cf Belghar at [111]. 31. As acknowledged by the Chief Judge at [110] in that case, the comparative likely length of trial by each mode is relevant. In the present case, I am satisfied on the basis of cogent evidence that the difference between the two modes of trial raises the spectre of the accused being left without representation for the trial, with the consequent risk of the need for the Court to grant an adjournment. Plainly, it is in the interests of justice for the trial to proceed next week and to proceed smoothly. A critical consideration in that context is the availability of the eyewitness. A further consideration is the desirability of having the matter brought to trial promptly, an interest in any criminal matter. Finally, I consider the interests of the family of the deceased, who must travel from overseas, to be of some, albeit limited, relevance. 32. The conclusion that it is in the interests of justice to order a trial by judge alone enlivens the power to make an order under s 132, but it is still necessary for the Court to consider whether to exercise its discretion to do so. I have given separate consideration to that issue. The only matter raised at the hearing as militating against making the order sought was the apprehension that the application for legal aid was not put forward seriously and that there may have been an attempt to manipulate a situation where the accused should have a judge alone trial to which he would not otherwise be entitled on any basis. 33. Whilst that concern was in my view properly raised by the Crown, I think it was put to rest by the further evidence at the adjourned hearing, which revealed that, even in the face of all of the evidence before me, the Legal Aid Review Committee refused the appeal. The simple result is that the accused is left without legal aid and is, accordingly, left to fund his trial through sources available to him privately, with the consequences to which I have already referred. 34. For those reasons, I order that the accused be tried by a judge alone.