Gittany v R [2016] NSWCCA 182

Gittany v R [2016] NSWCCA 182

Leave to appeal was granted to the extent necessary because the grounds concerned a key element of the prosecution case on a serious murder conviction, but the appeal was dismissed. The trial judge did not err in discounting Dr Kemp's expert evidence because his critical opinion was based on an assumption about what Mr Rathmell had told Constable Rex that was not accepted on the evidence at trial, and important comparative materials relied on by Dr Kemp were not in evidence. The trial judge carefully considered the matters said to undermine Mr Rathmell's reliability, including his conduct after the incident, the timing of his statement, the awning collisions and the evidence of Mr...

Jurisdiction
Australia
Judgment Date
19 August 2016
Procedural Posture
Criminal Appeal Against Conviction for Murder / Application for Leave to Appeal and Appeal Against Conviction in the Court of Criminal Appeal
Outcome
Leave to appeal granted to the extent necessary; appeal against conviction dismissed.
Legal Topics
['murder' 'appeal Against Conviction' 'judge Alone Trial' 'unreasonable Verdict' 'expert Evidence' 'forensic Psychology' 'eyewitness Reliability' 'memory Contamination']
['criminal Law' 'evidence' 'criminal Procedure'] ['murder' 'appeal Against Conviction' 'judge Alone Trial' 'unreasonable Verdict' 'expert Evidence' 'forensic Psychology' 'eyewitness Reliability' 'memory Contamination']

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Procedural Posture

Criminal Appeal Against Conviction for Murder / Application for Leave to Appeal and Appeal Against Conviction in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether leave to appeal against conviction was required and should be granted under s 5(1) of the Criminal Appeal Act 1912 (NSW).' 'Whether a miscarriage of justice resulted from the trial judge erroneously discounting the evidence of Dr Richard Kemp about memory contamination.' 'Whether a miscarriage of justice resulted from the trial judge failing properly to assess the reliability of the evidence of eyewitness Joshua Rathmell.' 'Whether the verdict was unreasonable.']

Ratio Decidendi

Leave to appeal was granted to the extent necessary because the grounds concerned a key element of the prosecution case on a serious murder conviction, but the appeal was dismissed. The trial judge did not err in discounting Dr Kemp's expert evidence because his critical opinion was based on an assumption about what Mr Rathmell had told Constable Rex that was not accepted on the evidence at trial, and important comparative materials relied on by Dr Kemp were not in evidence. The trial judge carefully considered the matters said to undermine Mr Rathmell's reliability, including his conduct after the incident, the timing of his statement, the awning collisions and the evidence of Mr...

Court Disposition

Leave to appeal granted to the extent necessary; appeal against conviction dismissed.

Orders

  • ['To the extent necessary under s 5(1) of the Criminal Appeal Act, grant the applicant leave to appeal.' "Dismiss the applicant's appeal against conviction."]