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

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

The admissibility of the challenged relationship evidence depended on its connection to the Crown issue whether the deceased climbed or fell herself or was put over the balcony by an enraged accused, and on whether hearsay and exclusionary provisions were satisfied. Evidence that was remote, generalised, lacking specificity, difficult for the accused to answer, or of little probative value was excluded, while text messages and evidence sufficiently connected to the deceased's feelings, intentions, state of mind, or the alleged controlling conduct were admitted. The film evidence was excluded because it carried so little weight on the issue of whether the relationship was loving and...

Jurisdiction
Australia
Judgment Date
04 November 2013
Procedural Posture
Criminal Trial for Murder; Interlocutory Evidentiary Rulings / During Judge Alone Trial After Commencement of Crown Case
Outcome
Rulings on evidence: some relationship evidence and text messages admitted, other relationship evidence and the film evidence excluded.
Legal Topics
['relationship Evidence' 'relevance' 'hearsay' 'exceptions to Hearsay Rule' 'discretionary and Mandatory Exclusion of Evidence' 'judge Alone Trial']
['criminal Law' 'evidence'] ['relationship Evidence' 'relevance' 'hearsay' 'exceptions to Hearsay Rule' 'discretionary and Mandatory Exclusion of Evidence' 'judge Alone Trial']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Criminal Trial for Murder; Interlocutory Evidentiary Rulings / During Judge Alone Trial After Commencement of Crown Case

Legal Issues

  1. 1 ['Whether evidence concerning the relationship between the accused and Lisa Cecilia Harnum was relevant to a fact in issue in the murder trial.' 'Whether statements made by the deceased to witnesses were excluded by the hearsay rule or admitted under exceptions in the Evidence Act 1995.' 'Whether evidence should be excluded under ss 135 to 137 of the Evidence Act 1995 because of unfair prejudice, remoteness, generality, low probative value, or undue waste of time.' 'Whether evidence of a film of the deceased appearing happy and playful should be admitted.']

Ratio Decidendi

The admissibility of the challenged relationship evidence depended on its connection to the Crown issue whether the deceased climbed or fell herself or was put over the balcony by an enraged accused, and on whether hearsay and exclusionary provisions were satisfied. Evidence that was remote, generalised, lacking specificity, difficult for the accused to answer, or of little probative value was excluded, while text messages and evidence sufficiently connected to the deceased's feelings, intentions, state of mind, or the alleged controlling conduct were admitted. The film evidence was excluded because it carried so little weight on the issue of whether the relationship was loving and...

Court Disposition

Rulings on evidence: some relationship evidence and text messages admitted, other relationship evidence and the film evidence excluded.

Orders

  • ["Evidence concerning things said during the deceased's June 2010 trip to Canada, including the telephone conversation at T45.20 to T46.46, was rejected as too remote and too generalised." 'Evidence at T48.10 to T52.18, including the first four messages in exhibit V and evidence concerning 1 September, 6 September...