Gittany v R

1. [1]

   BASTEN JA: The applicant, Simon Gittany, seeks leave to appeal from his conviction on a single charge of murder. The charge arose from the death of his then partner, Lisa Cecilia Harnum, who, on 30 July 2011, plunged to her death from the balcony of a 15th floor apartment in Liverpool Street, Sydney.

2. [2]

   At the applicant’s request, he was tried by judge alone, the trial extending from 21 October until 15 November 2013. On 27 November 2013 McCallum J delivered judgment finding the accused guilty of the murder of Ms Harnum. [1]

3. [3]

   The application for leave to appeal was not filed until 22 December 2015. The grounds identified were as follows:

4. [4]

   Because the grounds did not raise a question of law alone, senior counsel for the applicant accepted that leave was required pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW).

Leave to appeal

1. [5]

   The grounds of appeal, even as developed in written and oral submissions, were confined. They focused upon a submission made for the applicant at trial, and accepted by the trial judge, that the evidence of an eyewitness, Mr Rathmell, was critical to a finding of guilt. [2] Accordingly, if the trial judge ought to have had a reasonable doubt as to the reliability of Mr Rathmell’s evidence, the applicant should have been acquitted.

2. [6]

   The deceased fell from the 15th floor balcony of an apartment facing the southern end of Hyde Park in central Sydney. (The building was known as The Hyde.) The fall occurred at about 10am on a Saturday morning. Mr Rathmell was walking towards the south-western corner of Hyde Park when his attention was drawn to the building from which the deceased fell by a loud guttural noise. The substance of his evidence was that he saw a man, later identified as the applicant, “unload” something over the edge of the balcony being, as he discovered within minutes, the deceased.

3. [7]

   Dr Richard Kemp, an Associate Professor of Forensic Psychology at the University of New South Wales, gave evidence as to the phenomenon of changing memories, resulting from a process of “contamination” by later acquired information and by an internal process of reconstruction. The thrust of his evidence, as applied to Mr Rathmell, was that the latter may not in fact have seen what he thought he saw, but may have unconsciously reconstructed his understanding of his actual observations or perceptions so as to fill in gaps, according to a general understanding of the way in which phenomena relate to each other in the natural world. That process, Dr Kemp explained, would be unconscious.

4. [8]

   Given the careful focus of the proposed appeal on what was undoubtedly a key element in the prosecution case, and given the seriousness of a charge of murder, it is appropriate that the applicant be granted leave to appeal.

Application for a view

1. [9]

   Before identifying the critical evidence relevant to the appeal, it is convenient to address an application made by the respondent Director of Public Prosecutions that the Court embark on a view encompassing the position from which Mr Rathmell observed the events of which he gave evidence. The application was based upon the statement of the trial judge, in considering the reliability of the evidence of Mr Rathmell, that “[t]he opportunity of standing at roughly the point where Mr Rathmell says he stood had a profound impact on my assessment of his evidence.” [3]

2. [10]

   Given that statement, senior counsel for the Director submitted that the Court would be assisted by undertaking the same exercise. However, it is clear that the matters as to which the trial judge was greatly assisted were revealed in her further statement that Mr Rathmell “had a good opportunity to make the observations he described in his evidence”, based on the clarity of the view from that point to the balcony from which the deceased plunged to her death. [4]

3. [11]

   Senior counsel for the applicant expressly disavowed any challenge to the proposition that Mr Rathmell was indeed able to observe persons and events as described in his evidence. The sole basis of challenge was that outlined above, namely that, whatever opportunity he may have had, he did not in fact see a person unloaded or thrown from the balcony, but, for various reasons which counsel outlined in detail, had unconsciously reconstructed a belief as to what he had seen after the event. It was not said that he could not have observed the event had he been looking in the right direction at the right time.

4. [12]

   Given the limited scope of the grounds as thus articulated, the Court was satisfied that it would not be assisted by a view. Accordingly, the application, which had not been supported by the applicant, was refused.

5. [13]

   In order to explain more fully the primary basis of the appeal, it is convenient to deal separately with the evidence of Dr Kemp and that of Mr Rathmell. It will then be appropriate to consider the manner in which the trial judge dealt with their evidence.

Evidence of psychologist

1. [14]

   In addition to his consideration of Mr Rathmell’s evidence, Dr Kemp also referred to the evidence of Mr Yuto Yoshioka. It is therefore desirable, before reviewing the evidence of Dr Kemp, to provide some further background to the circumstances at the time of the death.

2. [15]

   As the trial judge noted, there were three people who saw Ms Harnum’s fall. As well as Mr Rathmell, these were Mr Yoshioka and Ms Cheryl Hardy. In relation to Mr Yoshioka, the judge noted that he was a 15-year old high school student at the time and was waiting at the bus stop on the northern side of Liverpool Street – that is, on the Hyde Park side of the street and a short distance east of the apartment block. Mr Yoshioka said that he was looking at The Hyde building when he heard a loud noise, which he was unable to describe in any detail, looked up and saw a body coming down. [5]

3. [16]

   Mr Yoshioka saw the body hit the ground and looked up and saw a man (with no shirt) leaning forward over the balcony and punching the air with his fist. Mr Yoshioka said he watched the man for approximately two seconds before the man went back into the apartment.

4. [17]

   There were two aspects of Mr Yoshioka’s testimony which are relevant for present purposes. The first concerns its content and the second the process by which it was obtained.

5. [18]

   So far as the content was concerned, counsel for the accused relied upon the description of his conduct on the balcony as contradicting the evidence of Mr Rathmell. The judge was not persuaded that there was inconsistency. [6] However, neither did the judge accept the inference drawn from Mr Yoshioka’s account that the “fist pumping” action bespoke triumph or anger, rather than a gesture of despair, which would have been consistent with the accused’s version of the event. She therefore treated the evidence as neutral. [7]

6. [19]

   Apart from the apparent disparities, it was the process by which Mr Yoshioka’s evidence was obtained which was of some relevance in considering Dr Kemp’s evidence. Thus, although Mr Yoshioka gave his name and contact details to police at the scene, no statement was taken from him at that time. He said that he was contacted by police about a week later and asked to go to a police station, where he described what he had seen. The police apparently took notes but did not ask him to sign the statement as he was too young. If notes were taken, they were lost by the time of the trial. A formal statement was obtained from him only in August 2013, that is a little over two years after the event. [8]

7. [20]

   The third person who saw Ms Harnum’s fall, namely Ms Hardy, was staying at the Hyde Park Inn on Elizabeth Street. Although she saw the body fall, she did not see any person on the balcony of the apartment shared by the accused and the deceased. For present purposes, her evidence was immaterial. [9]

8. [21]

   It is also necessary to record the steps taken to obtain a statement from Mr Rathmell. According to his evidence at trial, Mr Rathmell did not realise, as he observed the event from Hyde Park, that what he saw falling was a body. He first provided an account of what he had seen over the telephone to Senior Constable Jacob Rex, on the day of Ms Harnum’s death and probably about 1.5 hours later. The version given by Mr Rathmell, as recorded by Constable Rex, was tendered by the accused at the trial and read as follows: [10]

9. [22]

   Constable Rex gave evidence as to how he came to record the passage, “Didn’t see jump or push but watched the body fall”. He said that the exchange commenced with him asking Mr Rathmell, “Did you see her jump” and, on receiving the reply “No”, asking “Did you see her get pushed”, to which Mr Rathmell also replied “No”. [11]

10. [23]

    Three days later, on 2 August 2011, Mr Rathmell provided a statement to police. Although extracts were put to him in cross-examination and were referred to in a report prepared by Dr Kemp (in parts which were also not tendered), that statement was not in evidence. Given that Dr Kemp drew inferences from changes in the various accounts given by Mr Rathmell over time, it was of some significance that neither the trial judge nor this Court had access to the first formal police statement taken from Mr Rathmell.

11. [24]

    Four days later, on 6 August 2011, Mr Rathmell undertook a “walk-through”, which was video-recorded, describing the path he took when approaching Liverpool Street through Hyde Park and describing what he saw on 30 July.

12. [25]

    The video recording was tendered at the trial (Ex K), and a transcript of the audio recording was used by the trial judge but not tendered. A copy of the transcript was made available to Dr Kemp. A copy was also provided to this Court and became Ex A on the appeal. It had handwritten markings including crossings out, some of the words being simply deleted and some replaced. These changes were apparently made at the trial, in part to delete prejudicial or inadmissible commentary, presumably on the assumption that the transcript would become part of the evidence. [12] (The video-recording itself was not edited.) Having a copy of the video-recording (as well as the transcript), the Court is able to understand what Mr Rathmell said at various points during the walk-through.

13. [26]

    In due course, the applicant was charged in relation to the death of Ms Harnum and, in January 2013, there was a committal hearing. Mr Rathmell gave evidence on 6 January 2013, a transcript of which was provided to Dr Kemp, but was not before the trial judge, nor before this Court.

14. [27]

    Dr Kemp’s report was dated 30 September 2013. It was, understandably, prepared before Mr Rathmell gave evidence at the trial, on 24 October 2013. Dr Kemp gave evidence on 7 November 2013, but did not comment on the evidence given by Mr Rathmell. Indeed, the prosecutor objected to the evidence given by Dr Kemp on the following basis: [13]

15. [28]

    At that stage, the trial judge understood that Dr Kemp’s evidence was being taken on the voir dire and that she would hear the evidence before ruling on questions of admissibility. [14] After Dr Kemp was excused, the prosecutor stated that there was “only a small part of his evidence we actually object to”, to which the trial judge responded “Can we deal with it tomorrow?” If it was indeed expressly dealt with, the Court was not told where. However, as appears from the prosecutor’s final address, the parties proceeded on the basis that all of the oral testimony of Dr Kemp had been admitted, as had particular paragraphs of his report to which reference will be made below. The same assumption was made on the appeal.

16. [29]

    There were two parts to Dr Kemp’s evidence. One part involved a theoretical explanation of the manner in which perceptions can be contaminated; the second part involved an assessment of the manner in which Mr Rathmell’s evidence may have become contaminated, although Dr Kemp conceded he could not say whether in fact that had happened. Because only part of the comparative material relied upon by Dr Kemp was before the Court, not being Mr Rathmell’s evidence at trial, it is convenient to start with Dr Kemp’s evidence, rather than that of Mr Rathmell. That course accords with the formulation of the grounds of appeal. The miscarriage asserted in ground 2, said to have resulted from a failure to assess the reliability of Mr Rathmell’s evidence, followed primarily from the miscarriage asserted in ground 1, namely the erroneous discounting of Dr Kemp’s evidence.

Evidence of Dr Kemp

1. [30]

   Dr Kemp’s qualifications were not challenged. He is an Associate Professor of Forensic Psychology at the University of New South Wales and has relevant professional memberships. His doctoral research was on human face perception and recognition and his later experimental work included “studies of factors affecting the reliability of eyewitness memory, the effect of post-event information on recall for the details of an event” and other matters. [15] He identified three assumptions he had made in preparing his report, namely:

2. [31]

   Those factors were relevant to the propositions derived from research by experimental psychologists, which he then set out. The conclusions which he reached in relation to Mr Rathmell’s evidence were not admitted by way of the report, although some at least of the material was extracted in his examination-in-chief.

3. [32]

   Somewhat inconsistently with the admission of the three assumptions set out above, paragraph 31 of the report, which contained a “timeline of the witness statements made by Mr Rathmell” (being the detail of that referred to in (b) above), was not included in the tender. Further, passages in Mr Rathmell’s evidence, which were set out in subsequent paragraphs of the report, were also not included in the tender.

4. [33]

   It is convenient to commence with the theoretical framework within which Dr Kemp structured his opinion. The basic proposition was as follows: [17]

5. [34]

   With respect to the initial perception, Dr Kemp noted that “briefly observed or ambiguous details are more likely to be misremembered and subject to memory contamination.” [18] Further, modification can occur not only to “small details of memories” but it is possible to form “false memories of entire episodes.” [19]

6. [35]

   The report was more ambivalent as to the process, stating that, “[m]any researchers believe that the new information either ‘over-writes’ the original memory for the event, or is used to fill gaps in the original memory.” Whatever the process, he opined that “this phenomenon affects most people and … is not a conscious process.” [20]

7. [36]

   Dr Kemp also noted that the degree of contamination has a temporal element, so that a person who “encounters post-event information sometime after the event, is at increased risk of having their memory of the event contaminated”. Further, “an increased delay between the post-event information and the attempt to recall the event is also likely to increase the risk of memory contamination”. [21] Dr Kemp’s conclusion was expressed in the following terms: [22]

8. [37]

   In another passage, Dr Kemp opined: [23]

9. [38]

   Before considering how Dr Kemp applied these principles to the present circumstances, two factors may be noted. The first is that one may or may not know whether, and if so to what extent, an eyewitness has received post-event information. In the present case, one critical piece of information was received after the event was witnessed. That was the knowledge that what fell was not rubbish, as Mr Rathmell originally thought, but a body, indeed a live person. The source of that information was revealed when Mr Rathmell first spoke to Constable Rex, on the day of the event: it was obtained from the council officers within minutes of seeing the event. It is notable that the account he gave to Constable Rex less than two hours later recounted his initial impression and the information he had subsequently obtained and kept the matters separate. In one sense, the original assumption may have affected his perception as to what happened on the balcony (perhaps one is more likely to perceive rubbish being thrown than a person being thrown or unloaded), but that was not explored with Dr Kemp.

10. [39]

    Secondly, the temporal element in the present case, so far as it concerned the conversation with Constable Rex, was, in the order of things, brief. Thus, the known further information was received very shortly after the event (from two council workers at Liverpool Street) and the witness’ account was given two hours thereafter. No great element of delay was involved in that part of the chronology.

11. [40]

    The second part of the exercise undertaken by Dr Kemp was led by way of oral testimony. Dr Kemp’s evidence commenced with the proposition that he was “not able to say in this case whether the evidence of Mr Rathmell is a true memory of what he saw or a false memory”. [24] As Dr Kemp could not have been referring to the evidence given at trial, even the negative statement was unhelpful: it was not explained which of the various statements and transcripts he was referring to.

12. [41]

    He did, however, claim that “there are several factors which would increase the risk of a false memory forming”. [25] He identified the first as “delay”, a term apparently used in a neutral sense to mean the lapse of time. He said that he was referring to “the delay between Mr Rathmell seeing a body falling from the building and both his initial conversation with Constable Rex, which I think was something of the order of four hours later and then his subsequent statement at Surry Hills Police Station which I think is, if I remember correctly, three days after the event, and then the walk-through which is recorded, which I think was something like six or seven days after the event.” [26]

13. [42]

    He was asked whether it mattered whether the first reporting was two and half hours or four hours after the event and replied “Not greatly.” [27] He said that research had compared delays “of the order of minutes with longer delays which may be hours, days or weeks.”

14. [43]

    The defence tendered a paper co-authored by Dr Kemp which assessed experimental results from showing the participants a short filmed event followed by the provision of false information as to the contents of the event, after periods of either 20 minutes or two weeks. (There were other variables considered.) The article provided no direct assistance with the specific issues raised in relation to Mr Rathmell’s evidence.

15. [44]

    Dr Kemp was asked about the rate at which we forget information, stating that “most forgetting occurs very rapidly after the event so we forget very quickly and the rate of forgetting slows over time.” When asked to clarify what was meant by “very quickly” Dr Kemp hesitated to specify a time in terms of hours or days because it would “depend on the nature of the material.” [28] No value was obtained from that evidence.

16. [45]

    Dr Kemp was then asked about the relevance of a person being “repeatedly asked to recollect an event”, which he identified as another factor that can increase the risk of memory contamination. He said the danger was that “at recollection, information which might be unintentionally introduced to the witness can be incorporated into their memory”. [29] If that were a process which occurred in the present case, no reliance could be placed upon it in circumstances where the trial judge did not have evidence of what was said on other occasions (other than the account given to Constable Rex).

17. [46]

    At a higher level of generality, Dr Kemp identified the way in which we may fill gaps in our memories. [30]

18. [47]

    Dr Kemp noted that as well as the factor of delay in recounting his recollections, factors likely to affect Mr Rathmell’s memory included (a) “the long distance from which the event was observed” and (b) “the very brief duration of the event.” [31] He said that “broadly what the research shows is that briefly observed actions which are not as clear or potentially ambiguous are more likely to be subject to memory change.” Dr Kemp continued: [32]

19. [48]

    The thrust of the point being made was, presumably, that if the witness thinks that it is rubbish that he sees falling, being inanimate, he may well assume that it was thrown by a person whom he then saw on the balcony, even if he did not see the action of throwing.

20. [49]

    The evidence then turned to specific opinions that Dr Kemp had formed (though not then in evidence) that there may have been a change from Mr Rathmell’s perception to his recounting of the event. When asked to explain the basis of the opinion he stated: [33]

21. [50]

    As the prosecutor was quick to point out, the assumption was flawed. As Dr Kemp acknowledged, it was based on the initial conversation between Constable Rex and Mr Rathmell in the course of which he had said he did not see the person jump or being pushed. He construed that material to mean that Mr Rathmell “wasn’t looking at the object at the point at which it parted company with the man”. [34]

22. [51]

    After that error was put to rest, the following exchange took place: [35]

Mr Rathmell’s evidence

1. [52]

   The first account given by Mr Rathmell over the telephone to Constable Rex has been set out above in full. In part the meaning is unclear and in part contradictory. For example, the man “standing near the window” was said to be a man “with no shirt” and as “wearing white shirt and pyjama bottoms”. The cryptic references may have been intended to identify the man on the balcony with no shirt as the man later seen at the ground level near where the body fell. There were clearly words missing and Mr Rathmell did not accept that the notes constituted a complete record of what was said, nor that all of the words were his. (Indeed, a passage in quotation marks after the words “body language” had been excised from the tender.) Mr Rathmell said he made three calls to the police that day and spoke to Detective Rex on one call. He was asked if he had given an account of what he had seen in any of those calls and stated: [37]

2. [53]

   He wanted to give a proper statement to police and did not attempt in any of the calls “to give an exhaustive account” of what he had seen. [38] He described the call to Constable Rex as occurring at about mid-day, that is a little under two hours after the event.

3. [54]

   Mr Rathmell described the statement he gave on 2 August 2011 as “exhaustive.” [39] He also gave evidence of a further piece of post-event information, namely that he believed that immediately after the event he saw a man come out of The Hyde lobby whom he believed to be the man he had seen on the balcony, except that he was wearing “a white tee shirt, not no tee shirt as I had previously seen.” [40]

4. [55]

   In the description given by Mr Rathmell in the course of the video-recorded “walk-through” he stopped at one point where he said that he started hearing the screams and continued:

5. [56]

   In the course of the walk-through, he also described what he observed as “someone holding the black object and unloading it almost in a rage.” The last four words were rejected on the basis that the observations which led to the impression needed to be identified. In his oral evidence he explained that he was seeking to convey “[t]he combination of the noise and the motion of throwing something off the balcony [which] appeared to me to be quite an aggressive action.” [41]

6. [57]

   Early in the cross-examination, the following exchange took place: [42]

7. [58]

   Mr Rathmell did, however, agree that when he left the scene to go to work he was “still trying to understand” what he had seen. [43] With respect to post-event information, the following cross-examination took place: [44]

8. [59]

   Mr Rathmell was asked a number of questions about the distinction between “throwing” and “unloading” and accepted that he had used both words to describe the action that he saw. The cross-examiner continued: [45]

9. [60]

   Mr Rathmell was cross-examined in relation to the statement contained in the walk-through that he thought what he saw was “a black suitcase or luggage or several items …”. The questioner continued: [46]

10. [61]

    Mr Rathmell’s account in evidence at the trial was in the following terms, after extracting a number of details of his observations, including measuring indications given with his arms: [47]

Reasoning of trial judge – evidence of Rathmell and Kemp

1. [62]

   The trial judge dealt with the evidence of Mr Rathmell setting out the passages considered above and concluding: [48]

2. [63]

   The judge noted that “Mr Rathmell’s demonstration in court of the unloading action was consistent with the demonstration given by him a week after Lisa Harnum’s death when he did a walk-through with police in which he demonstrated the precise position from which he had made his observations.” [49]

3. [64]

   Noting that there had been no suggestion that Mr Rathmell saw anything other than the falling body of Ms Harnum, the judge stated that “[t]he critical issue as to Mr Rathmell’s evidence was the reliability of his account of his observations.” [50] The judge then examined the aspects of Mr Rathmell’s evidence which had been the subject of cross-examination and of criticism in the submissions for the accused. She then noted: [51]

4. [65]

   It will be necessary to identify some of the ensuing discussion in addressing ground 2 in due course. The trial judge then gave a summary of Dr Kemp’s evidence, consistent with that set out above, which need not be repeated. The passage which was challenged on the appeal appeared within [342], but to understand the significance of the challenge, it is necessary to set out that paragraph in full.

5. [66]

   The primary challenge to this passage focused on the proposition that Dr Kemp was in error in concluding that Mr Rathmell originally indicated that he had not seen the object leave the hands of the man on the balcony. Accordingly, it was submitted, the judge was in error in stating, in the italicised sentence, that there was nothing in Detective Rex’s notes to support that analysis.

6. [67]

   There was no challenge to the first sentence of the paragraph, referring to briefly-observed events which may be “potentially ambiguous”. There was, however, a somewhat muted challenge to what followed. The error, it was submitted, was in transferring the concept of potential ambiguity from briefly-observed events to Mr Rathmell’s observations or his account thereof. [52]

7. [68]

   There may be some justification in the semantic point, but any semantic confusion tended to derive from Dr Kemp’s language, not from the understanding of the trial judge. In the passage set out above at [47], as an example of something which was “potentially ambiguous in what was observed” Dr Kemp was really describing, as the trial judge immediately noted, [53] a process of back-filling. That is, all that is perceived is a falling object and a person in a position from which the object may have commenced its fall. From those two integers, the mind infers a third, which was not perceived, namely that the person threw the object. There was some awkwardness in describing this as a situation of potential ambiguity in an observed action.

8. [69]

   There was also potential confusion in using the same phrase to describe Mr Rathmell’s statement as recorded by Constable Rex. However, as appears from the record set out at [21] above and the explanations given at [22], the account was taken over the telephone, was not taken down verbatim, was not complete and Mr Rathmell was never required to check and sign it. However, it is necessary to expand on that account in order to explain why the applicant’s challenge cannot be accepted.

9. [70]

   In a passage of his report which was not admitted in evidence, Dr Kemp set out extracts from Mr Rathmell’s evidence at a committal hearing on 15 January 2013, which was also not separately in evidence. That became the basis of an objection by the prosecutor with respect to the oral testimony of Dr Kemp, that “the real vice of this evidence, [is] that we know that that assumption that has been made by this witness, a perfectly proper assumption based upon the material he was given, is wrong.” [54] The prosecutor expanded on the point in the following terms: [55]

10. [71]

    Counsel for the accused then sought to clarify the issue. [56]

11. [72]

    What followed shortly thereafter was the passage set out at [51] above.

12. [73]

    As the prosecutor acknowledged in the course of argument, there was no doubt that Dr Kemp was entitled to draw an inference from the extracts of evidence he had been given, that Mr Rathmell had told Constable Rex that he did not see the object at the very point at which it, or more properly she, left the balcony. However, the source of that part of the note (which was in evidence as Ex 14) was explained by Constable Rex in his oral evidence, in the passage set out at [22] above. The verbatim account was confirmed, but not challenged, in cross-examination of Constable Rex. [57] It also appeared to be accepted as the evidence at trial, which thus required modification of Dr Kemp’s opinions.

13. [74]

    In the absence of a jury, it was for the trial judge, not Dr Kemp, to determine what was in fact said in the course of a conversation. If the judge found that what was said was not what Dr Kemp assumed had been said then self-evidently any opinion based on that assumption must fall away.

14. [75]

    It also bears repeating that Dr Kemp’s understanding of Mr Rathmell’s evidence was based in part on what was said by Mr Rathmell at a committal hearing. In the course of an exchange between the judge and the prosecutor at the end of the prosecutor’s address, the trial judge expressly noted “I haven’t seen a single page of the committal hearing”. [58]

15. [76]

    In the written submissions of the applicant in reply, the question was explicitly identified as “whether there was ‘nothing in Constable Rex’s notes to support’ Dr Kemp’s understanding …”. [59] That proposition ignored the point that the judge was reading those notes against the background of the unchallenged evidence of Constable Rex as to what was said, which was, inevitably, accepted.

16. [77]

    For these reasons, Dr Kemp’s opinions were properly discounted, to use the term in the ground of appeal. They had been overtaken by events. One factor was the clarification of the specific words, which did not constitute a verbatim account of the conversation, in Constable Rex’s handwritten note on which Dr Kemp relied. The second factor was the absence from the evidence of Mr Rathmell’s statement to police and his evidence at the committal hearing. Very limited passages were put to Mr Rathmell in cross-examination. There was no doubt a forensic decision to be made as to whether to place all, or at least parts, of the untendered evidence before the trial judge in order to support aspects of Dr Kemp’s opinion, with the possible disadvantage to the accused of demonstrating consistency in other respects. In any event, and for whatever reason, that material was not tendered.

17. [78]

    After identifying a number of aspects of the notes recorded by Constable Rex of the conversation, the applicant’s written submissions asserted: [60]

18. [79]

    The thrust of this submission was unclear. The reference to a “possibility” implied that, unless the judge was satisfied beyond reasonable doubt that Mr Rathmell said, when first giving an account to Detective Rex, that he saw the body leave the arms of the applicant, then the opinions of Dr Kemp were relevant and had to be applied. The submissions then continued: [61]

19. [80]

    The “other evidence” included (a) that Mr Rathmell did not stay to inform police of what he had seen, (b) that he did not tell the two council workers what he had seen, (c) that no formal statement was taken for three days, and various other matters. All of these factors were relevant (and considered by the trial judge) in assessing the reliability of Mr Rathmell’s evidence. However, they were only of the most marginal relevance in determining what Mr Rathmell said to Constable Rex on the telephone.

20. [81]

    In short, Dr Kemp’s evidence was not directed to determining what Mr Rathmell said to Constable Rex: it was based upon an assumption as to what he said, which could then form a base from which to identify changes in his statements over time. If the judge did not accept Dr Kemp’s assumption, the critical change which he had identified and sought to explain either diminished or disappeared. Accordingly, there was nothing (or not the same degree of change) to explain. Accordingly, it is not relevant to ground 1 to consider circumstances which may, objectively, have rendered Mr Rathmell’s evidence unreliable. (Some of the same factors were relied upon in relation to ground 2 and will be addressed in that context.)

21. [82]

    Taking a global view of the issue, there were numerous problems afflicting the force of Dr Kemp’s evidence, as tendered. One aspect which was simply not confronted in the case for the accused was that there was a failure to identify the post-event information which might, at least in theory, have contaminated Mr Rathmell’s understanding of his own perception. As already noted, the closest one came was the identification of the falling object as in fact the body of a young woman. However, that gave rise to two problems for Dr Kemp’s theory. The first was that Mr Rathmell consistently took that factor into account, describing his perception of what he was seeing at the time it occurred as falling rubbish or luggage, and noting that it was only later that he learnt that it was a person (albeit less than two minutes later).

22. [83]

    Secondly, at least on one view, the post-event information that it was a body and not rubbish should have rendered it less, rather than more, likely that his perception would change in favour of seeing the person being thrown. That is, applying a general schema (to adopt Dr Kemp’s term), rubbish is less likely to fall of its own volition than is a person. The strength of Dr Kemp’s evidence lay not in any change in the account, so much as a process aptly described by the trial judge as “backfilling”. There is no reason to doubt that the trial judge correctly (and more precisely than counsel) apprehended the strength of the evidence. There is no basis for saying that she inappropriately discounted its value.

23. [84]

    Before leaving ground 1, it is appropriate to note that the issues raised above were dealt with by the parties at trial with a degree of pragmatism and expedition. It was not necessary at trial, nor has it been necessary on appeal, to consider how expert psychological evidence should be dealt with in a trial with a jury. Nevertheless, one might think that a lot more attention would need to be paid to the precise use which could be made of such evidence before it was allowed to go before a jury.

Reliability of the evidence of Rathmell

1. [85]

   As the applicant’s submissions acknowledged, the challenge to the reliability of Mr Rathmell’s evidence depended in part on the submission that the trial judge had erred in her understanding of the statement made to Constable Rex. That supposed error has been rejected.

2. [86]

   A second basis for the submission was the supposedly erroneous reasoning in which the trial judge stated that “Mr Rathmell’s failure to observe or perceive any collision with the awnings is more difficult to reconcile with the accused’s version of events than with the Crown case.” [62]

3. [87]

   The applicant’s assertion was that if Mr Rathmell had indeed observed the fall from the balcony from the moment that Ms Harnum left the hands of the accused, he would have seen her body land on the 15th floor awning and strike the 14th floor awning with considerable force, events which the judge accepted had happened.

4. [88]

   The judge identified and considered the submission for the accused that if she were to accept that Ms Harnum hit the 15th floor awning, “it followed that Mr Rathmell’s evidence was demonstrably unreliable.” She noted the burden of the submission, namely that “Mr Rathmell’s evidence must be unreliable because he obviously missed something” and “failed to observe or failed to perceive or failed to remember any such collision.” The judge agreed that this was “plainly a relevant factor in assessing the reliability of his evidence.” [63]

5. [89]

   The reason for saying that Mr Rathmell’s failure was difficult to reconcile with the accused’s version of events was that, on his version Ms Harnum “lay horizontally on the awing of the 15th floor momentarily’ …, long enough for him to push himself up on the balustrade, hook his foot under the treadmill and reach down with his arms to save her.” [64] The judge continued:

6. [90]

   The judge further stated: [65]

7. [91]

   In short, the trial judge gave express and appropriate consideration to a submission which sought to cast doubt on the reliability of Mr Rathmell’s evidence, and dismissed it. This particular element was not to be removed from the context of the trial as a whole and analysed in isolation. No error was demonstrated in the reasoning of the trial judge and the conclusion reached was entirely open to her.

8. [92]

   Four further errors were alleged in the reasoning of the trial judge. First, with respect to the failure of Mr Rathmell to stay at the location to wait for police to arrive and inform them of what he had seen, the judge said: [66]

9. [93]

   The applicant submitted that it was erroneous to ask about the “only rational explanation” for him not remaining at the scene, when the appropriate question was whether there was a reasonable possibility that he left because he did not in fact believe that he had seen a crime committed.

10. [94]

    Again the submission takes one sentence out of the context of the trial. As pointed out by counsel for the Director, the passage complained of was a direct response to a specific submission in the following terms: [67]

11. [95]

    The submission itself was, in any event, properly rejected. The cross-examination relied upon was in the following terms: [68]

12. [96]

    Again, this was a specific attack on the credibility and reliability of Mr Rathmell. True it was that the trial judge would have acquitted the accused had she held a reasonable doubt as to the accuracy of Mr Rathmell’s account. To make that assessment it was necessary to consider in turn each of the attacks made on his evidence. It was open to her to reject the submission, as she did, in the terms in which it was expressed.

13. [97]

    The second “specific error” was said to lie in what was little more than an aside in noting that no formal statement was taken from Mr Rathmell until the evening of 2 August 2011, three days after the death. The judge stated: [69]

14. [98]

    The applicant submitted that it was erroneous for the judge to ask herself that question. The “correct question”, it was submitted, was whether the fact that no formal statement was taken for three days “tended to support the possibility that Mr Rathmell had not said, or otherwise asserted, that he saw the man throwing the object (which he knew to be a body) from the 15th floor balcony.” [70]

15. [99]

    If this purported “error” had been reflected in a ground of appeal, it would not have warranted a grant of leave to consider it. The question which the trial judge addressed at [318] was a submission put by counsel for the accused in very similar language to that adopted in the submissions on appeal as “the correct question” to be asked. The sentence appeared in the following context, taking [318] as a whole:

16. [100]

    There was no doubt that when Constable Rex spoke to Mr Rathmell on the telephone later on the day of the death, he (Rex) knew he was investigating a possible murder. He also knew that he was speaking to an eyewitness. It is to be recalled that he asked specific questions of Mr Rathmell to the effect, “Did you see her jump?” and “Did you see her get pushed?” As the trial judge correctly noted, the inference sought to be drawn by counsel for the accused required some grounding in the cross-examination of Constable Rex, which did not occur. It should also be remembered that the other eyewitness, Mr Yoshioka, gave his contact details to the police (after temporarily leaving the scene) and was not contacted by police for a week.

17. [101]

    The third “specific error” was said to be found in the final sentence of [401]. The sentence can only be understood in the context of the whole paragraph which read as follows:

18. [102]

    The complaint focused on the last two words, “demonstrably unreliable.” The submission identified the relevant question as whether this evidence provided some support for the possibility that Mr Rathmell did not see the body leaving the balcony. That was true; however, the careful and lengthy analysis of all the relevant evidence undertaken by the trial judge was directed precisely to that point. There was no ground of appeal suggesting that the judge did not understand the nature of the issue to be resolved, nor that she failed to apply the burden of proof in a criminal trial. The two words identified as revealing error were, again, picking up the language of a submission which was being addressed at that stage in the reasons. Thus, the judge noted at [398]:

19. [103]

    The submission, and the reasons for the judge’s rejection of it, were set out over four paragraphs of reasoning. The only basis for identifying a possible error was achieved by the careful selection of two words, taken out of context. The submission must be rejected.

20. [104]

    The fourth “specific error” identified involved a somewhat abbreviated version of a submission at trial, which the judge rejected, relating to Mr Yoshioka. Mr Yoshioka’s evidence has been referred to above. It differed from Mr Rathmell’s evidence in two respects. First, although his attention, like that of Mr Rathmell, was drawn to the upper floor of The Hyde by a loud noise, he did not say that he saw Ms Harnum leave the balcony. It was not until after the body hit the ground that he looked up and saw a man on the balcony. Secondly, his description of what he saw when he looked up was arguably inconsistent with Mr Rathmell’s description of the movement of the accused immediately after the body left the balcony. Mr Yoshioka said that the man leaned over the balcony and then did a fist pumping action before he went back inside. He said the man was on the balcony for “approximately two seconds, maybe a bit more, before he went inside”. [71]

21. [105]

    The submission that the accounts were inconsistent was based in part on what the man did with his hands and in part on the time he remained on the balcony. Although Mr Yoshioka described seeing the man for “approximately two seconds” counsel noted that the time for the body to fall and hit the ground was 3.7 seconds, so that, on Mr Yoshioka’s account, the person remained on the balcony for 5-6 seconds, which was inconsistent with Mr Rathmell’s description of the man coming out unloading the body and returning inside in “a fluid motion”. That submission was identified by the trial judge at [351]; in the following paragraphs, the trial judge considered whether there was inconsistency and if so, whether it implied unreliability in Mr Rathmell’s description. The trial judge addressed the question in the precise terms in which it was raised by counsel for the accused. The submission that she failed to address the correct question was not tenable and should be rejected.

22. [106]

    Two broader points should be made in respect of the specific errors raised on the appeal. The first is that the judge correctly identified the critical issue in the case in the following terms: [72]

23. [107]

    Further, the judge stated in the following paragraph:

24. [108]

    At no stage in the appeal was it submitted that the judge failed to undertake that exercise. She spent much time identifying and considering the various factors which might have rendered Mr Rathmell’s evidence unreliable.

25. [109]

    The second point is that the judge paid meticulous attention to the submissions of counsel for the accused. There is no suggestion that she failed to address a material submission. In part, the specific challenges reflect the fact that the judge identified and responded expressly to the terms in which the submissions were made. Although there was no jury, the submissions at trial did not adopt the restrained language of “reasonable possibility” but rather included rhetorical flourishes. The proposition that the trial judge was diverted by counsel’s rhetoric from a proper evaluation as to whether she had a reasonable doubt as to the reliability of Mr Rathmell’s evidence, a proposition at least implicit in some of the submissions on appeal, was not tenable. Although the submission was not put expressly in those terms, it provided an undercurrent to several submissions and needs to be exposed in order to be rejected.

Ground 3 – unreasonable verdict

1. [110]

   As counsel for the Director submitted, the submissions in support of ground 3 relied upon the particular matters identified with respect to grounds 1 and 2. Accordingly, if grounds 1 and 2 failed, ground 3 must be rejected. That proposition was not challenged in the written reply or in oral argument.

2. [111]

   Rather, counsel submitted that this Court should approach the judgment, as required by Filippou v The Queen [73] by considering whether it had a reasonable doubt as to the guilt of the accused. Thus, in Filippou, the joint reasons noted that s 133(1) of the Criminal Procedure Act 1986 (NSW) required that the finding of guilt by a judge was to be equated “for all purposes” with a jury verdict. Thus, in considering the first limb of s 6(1) of the Criminal Appeal Act (“the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported, having regard to the evidence”) the Court stated: [74]

3. [112]

   As the joint reasons further noted, “in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced.” As the applicant accepted, if the court is not satisfied that the judge’s advantage in seeing and hearing the evidence is capable of resolving the doubt, the appeal should be allowed.

4. [113]

   Nevertheless, as Gageler J pointed out in his separate reasons in Filippou, the manner in which an appeal is run in this Court may demonstrate that the unreasonableness of the ultimate finding of guilt depends upon identifiable errors on the part of the trial judge. That was so in this case where the applicant’s submissions with respect to ground 3 revisited the arguments as to the existence of a reasonable possibility that Mr Rathmell did not actually see the body of the deceased being unloaded or thrown from the balcony but may have unconsciously constructed a memory in the manner described by Dr Kemp.

5. [114]

   The manner in which an appeal under the first limb of s 6(1) is presented is of particular importance in considering the judgment of a trial judge sitting without a jury. The verdict of a jury is opaque in a way in which a judgment in a judge alone trial can never be, because s 133 of the Criminal Procedure Act requires, in accordance with the attributes of the normal judicial function, that the judge explain in reasons the principles of law applied and the findings of fact which have been made.

6. [115]

   Having rejected the challenges identified under grounds 1 and 2, including the catalogue of specific errors raised by the applicant in submissions, there is no basis for concluding that the judgment was “unreasonable” in the sense identified in s 6(1).

7. [116]

   Accordingly, ground 3 should be rejected.

Conclusion

1. [117]

   The Court should make the following orders:

   1. (1)

      To the extent necessary under s 5(1) of the Criminal Appeal Act, grant the applicant leave to appeal.

   2. (2)

      Dismiss the applicant’s appeal against conviction.

2. [118]

   R A HULME J: I agree with the analysis, conclusions and reasons of Basten JA and I agree with the orders proposed.

3. [119]

   FAGAN J: I agree with Basten JA.