1 HER HONOUR: Simon Gittany is charged with the murder of Lisa Cecilia Harnum on 30 July 2011. He has pleaded not guilty to that charge. On his application, I ordered that he be tried by a judge alone: R v Gittany  NSWSC 1503. The trial proceeded before me over four weeks from 21 October 2013. This judgment records my verdict and my reasons for reaching that verdict.
2 At the time of Lisa Harnum’s death, she and the accused were living together and were engaged to be married. Their apartment was on the 15th floor of a block of apartments in Liverpool St, Sydney known as The Hyde. Miss Harnum fell to her death from the balcony of that apartment. That she died almost instantaneously as a result of injuries sustained in the fall was not in dispute. The principal factual issue in the trial was whether her death was caused by an act of the accused. The Crown alleges that the accused deliberately lifted Miss Harnum over the balustrade and “unloaded” her over the edge. The accused says that she climbed over the balustrade of her own accord and either slipped or allowed herself to fall off the awning on the other side.
3 The Crown bears the onus of proving the charge beyond reasonable doubt. The elements the Crown must prove are that there was a deliberate act of the accused which caused Lisa Harnum’s death and that the act causing death was done with an intention to kill Lisa Harnum or to inflict grievous bodily harm upon her, or with recklessness. The accused put forward a case in defence but bears no onus in that or any respect.
4 The Crown submitted that, if I were satisfied beyond reasonable doubt as to the physical act alleged against the accused, I would also be satisfied beyond reasonable doubt, having regard to the nature of that act, that it was done with the intention of killing or inflicting grievous bodily harm. It was not suggested otherwise on behalf of the accused. I accept the submission of the Crown on that issue.
5 On any view, the circumstances of Lisa Harnum’s death were shocking and tragic. The trial experienced an unprecedented level of public attention, no doubt fuelled by the freedom of reporting enjoyed by the press in a trial without a jury. Both counsel reminded me in that context of the need to steel myself against the natural sways of sympathy and concern for Lisa Harnum’s family and similarly against any negative sentiment, or indeed sympathy, towards the accused which may be excited by the evidence in the case.
6 There was a considerable amount of evidence in the trial as to the nature of the relationship between the accused and Lisa Harnum. Some of the evidence sought to be adduced by the Crown on that issue was excluded as being prejudicial, too general or too remote from the time of Lisa Harnum’s death. Some was admitted over the objection of the accused: R v Gittany (No 2)  NSWSC 1599. The accused adduced a considerable amount of relationship evidence himself.
7 It is important to bear in mind the limited purpose for which the relationship evidence was adduced and not to be unduly distracted by it. Importantly, such evidence was not admitted in the Crown case as tendency evidence. Ultimately, the critical events are those of the morning on which Lisa Harnum died. However, each party placed reliance, for different purposes, on evidence of events over many months before that day. It is accordingly necessary to consider and analyse that evidence in some detail.
8 The Crown sought to establish that, during the course of their relationship over approximately 18 months, the accused was controlling, abusive and dominating of Lisa Harnum; that he became progressively more so towards the end of the relationship and that Lisa Harnum’s confidence and self-esteem became progressively diminished. It was put that, by the time of her death, she had no friends other than a personal trainer and a counsellor whom she had known only for a matter of weeks. The Crown contended that Lisa Harnum was by then subject to an extreme measure of control by the accused in her daily life.
9 The accused denied that characterisation of the relationship. It was put on his behalf that the reality of the relationship was more complex, being characterised by affection and love but also being in some respects dysfunctional. Mr Strickland SC, who appeared for the accused, opened his case anticipating that the evidence would establish a pattern of behaviour on the part of Lisa Harnum of arguing with the accused, threatening to leave him and then changing her mind.
10 Much of the relationship evidence was in the form of things said by Lisa Harnum to other people. The Crown led such evidence from Lisa Harnum’s mother, Mrs Joan Harnum (who lives in Canada); the personal trainer, Ms Lisa Brown and the counsellor, Ms Michelle Richmond. The accused also gave evidence of things said to him by Lisa Harnum. Much of that evidence was hearsay evidence admitted under one of the exceptions to the hearsay rule to prove the existence of an asserted fact.
11 In considering evidence in that form, it has been important to bear in mind the inherent shortcomings of hearsay evidence. I have had to exercise caution in determining whether to accept the evidence and the weight to be given to it. A number of factors may cause such evidence to be unreliable. The most obvious, which applies to all witnesses who gave evidence in that form, is the fact that Lisa Harnum’s version of events was not able to be tested by cross-examination. The limitations of a second-hand account are obvious and are well-recognised as a basis for exercising caution.
12 In the case of Mrs Harnum, I have had regard to the fact that she had many conversations with her daughter over a lengthy period of time. I have also had regard to the fact that she was first asked to recall such conversations at a time when she must undoubtedly have been in a state of shock and acute grief. I have had regard to the risk of her becoming confused between events. Mrs Harnum herself acknowledged that she may have confused one incident she described with an incident involving a previous boyfriend of Lisa Harnum’s (T52.7; T331.45; I note that the evidence of that incident was excluded and has not been taken into account against the accused: R v Gittany (No 2)  NSWSC 1599 at ).
13 I have taken into account the form in which Mrs Harnum received much of her information. Over a period of years, a great deal of her contact with her daughter was by long-distance telephone calls with a considerable time difference and by text messages. There are limitations in receiving information in that form, without the animation or added cues of physical gestures and facial expressions. I have considered the risk that such forms of information might be misunderstood or misremembered.
14 I have also considered the extremely close relationship between Mrs Harnum and her daughter and the risk that Lisa Harnum may have overstated the bad side of her relationship to her mother, who was undoubtedly Lisa’s safest, most sympathetic audience right up until the time of her death. I have had regard to the risk of inadvertent maternal bias.
15 Mrs Harnum impressed me as a straightforward and careful witness. I do not think her evidence displayed any bias against the accused, inadvertent or otherwise. On the contrary, I thought she responded to meticulous and intense cross-examination fairly and with quiet dignity. She was not overly confident. She made a number of concessions readily and without prevarication. I have no hesitation in accepting her evidence as being completely honest and mostly reliable. Any reservation I have as to the reliability of any aspect of her evidence is explicitly addressed below.
16 It is necessary to give separate consideration, in the case of hearsay evidence relied upon as to the existence of an asserted fact, to the likely reliability of the underlying assertion. It was submitted for the accused that Lisa Harnum was an unreliable historian. Mr Strickland contended that she was a conflicted, complicated and confused woman who displayed a pattern of overreacting to events in the relationship, engaging in dramatic, attention-seeking behaviour and then settling down again. Those submissions are considered in the course of the chronological account of events that follows.
17 Mrs Harnum said that Lisa Harnum moved to Australia from Canada in 2004, settling first in Melbourne and later in Sydney. After moving to Sydney, she took a hairdressing course at Australian Hair & Beauty near Bondi Junction, where she also worked part time to help pay for her tuition. As at January 2010 she was staying temporarily with a woman called Amalia. It was at around that time that she met the accused.
18 The accused gave evidence. He said that he met Lisa Harnum in early 2010 through his friend George Karam, describing her as George’s “mistress”. She moved in with the accused at his previous apartment in Pitt Street. They commenced an intimate relationship about two months later (T668). The accused called Lisa Harnum by her middle name, Cecilia.
19 The accused gave evidence of the positive side of their relationship (T679 and see exhibits 1, 2, 3, 19 and 22). I have no doubt that he and Lisa Harnum loved each other and that their relationship was at times very happy. A number of witnesses gave evidence to that effect (Rebecca Triscaru at T386.45-387.9; Daniel Karpathios at T405; Barbara Gittany at T929 and Peter Mourgelas at T1082). Video evidence tendered by the accused shows that Lisa Harnum was a warm and vivacious person. She made fun of herself and she made other people laugh. It is clear that, at times, they got along extremely well. That is borne out by things she said to others and by the content of tens if not hundreds of text messages (exhibits 17 and 18). However, that was undoubtedly not the full picture.
20 The accused’s own sister, Miss Barbara Gittany said that, during the course of his relationship with Lisa Harnum, the accused did not tell her they were continually having serious arguments, that she was continually threatening to leave the relationship or that he had downloaded a programme onto her phone so that he could monitor her SMS messages (T996.19). Lisa Harnum did not complain to her of the restrictions under which the accused was placing her.
21 Lisa Harnum was employed at the time she moved in with the accused. Her banking records from July 2009 show that she was receiving wages from Australian Hair & Beauty from at least that time until early May 2010, earning roughly $500 or $600 per week. The last payment of wages was made on 4 May 2010 (exhibit 15).
22 Mrs Harnum said that Lisa Harnum ended working there at the encouragement of the accused (T37.8). There was also evidence from a psychologist consulted by Lisa Harnum in January 2011 that the accused “had her stop work” (T235.26).
23 The accused denied that Lisa Harnum stopped working at the hairdressing salon at Bondi Junction at his request. He said that she was not happy with the work there (T672.29). He described a number of attempts he made to find her other work.
24 I am satisfied from what Lisa Harnum said to others that the accused probably did encourage her to stop working at the salon at Bondi Junction. However, there is insufficient detail on that issue to draw any inference as to whether that was done in any overbearing way. In light of the uncertainty of that evidence and its remoteness from the critical events in the trial I have not placed any weight on it except to the extent that it informs Lisa Harnum’s growing sense, by at least January 2011, that she was losing herself.
25 In around June or July 2010, Lisa Harnum told her mother that she and the accused were “starting to have issues with each other” and that he had suggested that she see a counselor (T35.31). She started to see Mr Bablys. Mr Bablys was described as a “doctor of chiropractic” but seems to have provided a considerably more diverse range of services. He treated Lisa Harnum for stress, neck and shoulder pain, anxiety and sleeping and eating complaints.
26 At some point in September or October 2010, the accused and Lisa Harnum moved into the apartment at The Hyde. The evidence suggests that Miss Harnum was considering not moving into the new apartment with the accused. Mrs Harnum said that her daughter was wanting to move to Melbourne at around that time (T53.32) but that evidence was not supported by any words attributed to Lisa Harnum.
27 The lease is dated 13 September 2010 (exhibit 20). On 16 September 2010 the accused and Lisa Harnum had an argument. He told her to leave all her keys (“all the key, bank this house & new house”) on the table (exhibit V, item 10). In his evidence the accused explained that, after the argument, Lisa Harnum she said she was leaving. She wanted to meet him at Westpac so that she could close an account (T681.11). He gave evidence that they had just received the keys to the new apartment and that is what his message referred to.
28 On 2 October 2010, Mrs Harnum sent a text message asking Lisa Harnum how she was. She replied (exhibit V, item11):
Same as usual. Walking time bombs x any minute boom explosions!!!
29 Lisa sent three further texts to her mother that day, as follows (exhibit V, items 12-14):
Thinking about it more and more everyday, looking at places online but don’t want to go through the bullshit again. I miss my family and friends so much. I have no life. I’m thinking of bringing you down here to help me move my things. It will have to be a quick job though. I don’t want to do anything stupid when I’m feeling the way I’m feeling at the moment.
I feel trapped, like I have to watch everything I say do feel, everything. I got in trouble yesterday because I said that I felt cold. So stupid. I have. Could probably throw more stuff out though.
He would probably make me go right then and there without getting my stuff. I have to be prepared. It is okay, mama, it is okay, promise.
30 Although the first of those messages suggests that Lisa Harnum was considering leaving at that time, earlier and later messages suggest that, at times during the same week, they were getting along well. I have ultimately placed little weight on the relationship evidence from September and October 2010. It confirms that the relationship was at times tumultuous and that Lisa Harnum did threaten to move out from time to time, a feature of the relationship relied upon by both the Crown and the accused. Beyond that, I do not think the evidence of that period is of any real assistance.
31 Probably in late November or early December 2010, the accused arranged to have surveillance cameras installed in the apartment at The Hyde. His reasons for doing so were related to security concerns (T714). He denied that a purpose of those cameras was to watch Lisa Harnum. He said she was present when they were both given instructions as to how to use the cameras (T714.48).
32 The cameras were installed by Mr James Drivas. He installed two cameras inside the apartment and one outside. The two inside cameras were mounted on the wall. They were visible but did not look like cameras. They had the appearance of motion detectors.
33 The camera outside the apartment was a pinhole camera placed next to the door and facing into the corridor outside (exhibit B). It was installed in such a way as to be virtually invisible. A policeman who knew it must be there could not see it when he first inspected that area (T449).
34 The surveillance system was fully integrated. The cameras were linked to a computer in the study (exhibit 29) and also to an external hard drive hidden in the ceiling. Mr Drivas said that the function of the external hard drive was to retain the footage in the event that the computer in the study was stolen. Confusingly, however, he also said that the system was set up so that the images would be recorded either to the computer in the study or to the external hard drive but not both (T353.50).
35 Each camera could be set either to record continuously or to record only when motion was detected. A different setting could be selected for each camera. Each camera could be switched off completely (T355.21).
36 Mr Drivas said that, if images from the pinhole camera were being recorded to the computer in the study, that would mean that if either of the other cameras was on, they would also be recording to that computer (as opposed to the hard drive). That was significant evidence, since police did in fact retrieve footage from the pinhole camera on the computer in the study. It would follow from the evidence of Mr Drivas, if he was correct, that no footage was being recorded to the hard drive at that time.
37 Mr Drivas said that, if only the pinhole camera was recording, that meant either that the other two cameras had been switched off or that there was no motion, if they were on (T355.14). Assuming there was motion in the apartment and the pinhole camera was recording, the two visible cameras must have been off (T355.18). The two visible cameras were able to be switched off by selecting the relevant camera on the system and selecting “stop recording”.
38 Probably a few weeks before Lisa Harnum died, Mr Drivas’s colleague, Mr Ross Cardamis, went to the apartment at the request of the accused to check the integrated system. He found that it was not working properly (exhibit 55).
39 The accused gave evidence that the “motion record” mode was still not working as at 25 July 2011 (T715). He sent a message to Mr Drivas that day saying “it’s still recording full & not on motion” (exhibit V, item 105). Mr Drivas did not reply to that message. The accused sent a further message two days later to the same effect (exhibit V, item106). Mr Drivas agreed to drop by when he was next in the city but did not in fact get a chance to do that.
40 Mr Drivas said that, after the cameras had been installed, he explained to both the accused and Lisa Harnum how they worked, how to turn them on and off and about the replay facility and the different settings.
41 Police took a photograph of the placement of the cameras on the morning of Lisa Harnum’s death (exhibit L). It shows both cameras facing into the apartment. One is facing into the loungeroom. Mr Drivas said that was not the location in which that camera was installed by him. He said it was installed facing towards the front door, whereas in exhibit L it is facing outside, towards Hyde Park. Mr Drivas said that the cameras were able to be moved to face in different directions. He was adamant that the placement of the cameras as found by police was not as installed by him. He said it would defeat the purpose of having two cameras to have them facing the same area (T361.5).
42 I am satisfied that the accused probably re-oriented that camera to facilitate his observation of Lisa Harnum. Whether or not that was one of his original purposes of having the cameras installed, I have no doubt the accused was using them for that purpose by the end of the relationship. So much was in effect accepted in his evidence about the morning of 30 July 2011.
43 During the post mortem examination, investigators found a handwritten note folded and torn into sections in the front pocket of Lisa Harnum’s jeans. When reconstructed, the note read “there are cameras inside and outside the house” (exhibit S). The handwriting was Lisa Harnum’s (T91.7). I will return to consider the significance of that note.
44 Mrs Harnum said that, towards the end of 2010, Lisa told her that she could not wear dresses and that the accused told her to wear pants and “just basic clothes” (T39.45). A text message sent by Lisa Harnum to her mother on 15 November 2010 stated that they had decided not to go out to clubs any more after that night because the accused “gets so uptight” and “gets uncomfortable with all of the guys around” (exhibit V, item 19). The accused said that message was quite accurate (T786.31). The same day, Lisa Harnum also wrote (exhibit V, item 20):
… Time for me to grow up and wear big girl pants now. This relationship sure has changed me a lot! I’m much more calm than I was before, domesticated, conservative, and dainty. I have nails now too.t own have grown quite long and now I have natural French manicure! Bought a whole bunch of flat and casual shoes and no more cleavage I’m afraid. Simon is terrified of summer and the beach. He said we seedling (sic) to have to find the burka bathinsuit to wear. Hehe xoxo
45 The accused agreed that they had spoken about her wearing flat shoes. He said that he thought it was inappropriate for her to wear high heels just to go to the shops (T786). He accepted that he was a jealous partner, at times very jealous. He said that his jealousy was triggered by his own insecurities, Lisa’s two previous relationships and sometimes the clothes she would wear. He said that she wore revealing clothes, sometimes no bra, and that if she drank alcohol she became flirtatious. He advised her to tone down on how much she was revealing of her body so as not to attract what he termed “the wrong attention” or give out “the wrong signal” (T695.48-T696.20). Mr Strickland tendered a photograph of “the type of clothes she wore” when the accused “felt jealousy” (exhibit 28; T872.24). She was certainly an extremely beautiful woman.
46 In December 2010, Lisa Harnum went home to Canada for Christmas. She stayed for about three weeks. When she arrived, Mrs Harnum noticed a change in her appearance. Her hair was pulled back, she wore no make-up and her clothes were “blacks and greys…almost military, very non-revealing”. Mrs Harnum said that was not what Lisa would normally wear (T56.11). The change in appearance described by Mrs Harnum may be observed in an album of photographs tendered by the accused (exhibit 19). The difference between birthday dinners is particularly stark (photos dated 11 June 2010 and 12 June 2011 in exhibit 19). The accused confirmed in his evidence that he was not comfortable with Lisa Harnum wearing revealing clothes and that he asked her not to wear clothes like that (T784).
47 Mrs Harnum said that when her daughter was in Canada at Christmas, she said she wasn’t to let her friends know she was there because the accused did not want her to go out partying. The accused accepted that he had discussed with Lisa Harnum before she went to Canada that she would only visit her family (T789.47). He said that was because she gave him “the same order” (T790.7).
48 Mrs Harnum said that, during that visit, the accused called Miss Harnum constantly wanting to know “where she was, make sure she was only with family…what she was wearing, why she was at a mall” (T57.14). Similar demands by the accused may be found in an exchange of text messages around that time (exhibit V, items 25 to 31). His tone in those messages is stern and patriarchal. However, other texts between them suggest that each was content to accept a degree of self-imposed or mutually agreed constraint as to their social activities while she was away (exhibit 18, items 2 to 5, 15 and 16; and see evidence of Barbara Gittany at T933.22).
49 The mixed objective evidence prompts me to approach Mrs Harnum’s evidence as to the accused’s persistent contact during that trip with some caution. She necessarily heard only one side of the telephone conversations and she was not privy to the many text messages also exchanged during that time. I accept without equivocation her evidence as to the degree of control she observed was being exercised over her daughter by the accused during that period, but his vigilance was evidently not entirely unreciprocated.
50 My assessment of the evidence of that period is that Lisa Harnum and the accused were in love with each other at that time and were missing each other while they were apart. However, I am also persuaded that Lisa Harnum was by December 2010 being subjected to a degree of scrutiny and direction from the accused that was overbearing.
51 Mrs Harnum did not want Lisa to return to Australia and suggested that she stay in Canada. Lisa responded that she still held onto her dream of living in Australia and that she wanted to go back to try and make that dream come true (T57.27). Mrs Harnum said that, on more than one occasion, Lisa Harnum told her about arguments with the accused relating to her application for residency. She said Lisa told her the accused had said he “knew people that could have her visa application cancelled and that she had five minutes to pack her bag” (T47.35; T112.9).
52 It is important to note that that evidence was admitted not as to the truth of the words attributed to the accused but for the fact that he said those words to Lisa Harnum (as informing the nature of their relationship). Mrs Harnum said that her daughter had told her of such threats from the accused at least five times (T47.13).
53 Lisa Harnum told Lisa Brown that she was worried that if she left the accused she would not be able to stay because of the visa (T147.41). Michelle Richmond understood her to have said that a friend of the accused was handling her residency and had her papers and that, if she and the accused argued, “he would threaten that if she left him or didn’t do what he wanted that she would be deported immediately” (T178.7).
54 The accused denied ever telling Lisa Harnum that he had a friend or lawyer who could cancel her application for permanent residency. He denied threatening to have her deported immediately (T676). He called evidence from a migration agent, Mr Jonathan Granger, with a view to establishing how unlikely it is that he would have said such things. He relied upon the fact that Lisa Harnum said those things to people as evidence of her being unreliable or prone to embellishment.
55 Mr Granger gave evidence that Lisa Harnum was eligible for a skilled independent visa. She had engaged him to lodge such an application well before she met the accused. It was lodged on 28 February 2009 (exhibits 35 and 36). The application was not dependent upon Lisa Harnum’s being in a relationship with any person (T945.48). Mr Granger said he was not a friend of the accused. He thought he had met him only once, with Lisa Harnum.
56 One thing that did emerge from Mr Granger’s evidence was that, if Lisa Harnum had been flown straight to Canada on short notice, it would have created a complication for her visa application. The skilled migrant visa is an onshore class of visa (T947.45). If she had travelled offshore without first obtaining a bridging B visa, she would have had to obtain a different type of visa (such as a tourist visa) in order to come back onshore to pursue the application.
57 Mr Strickland noted that, in a recording of a private conversation between the accused and Lisa Harnum, the accused is heard to promise Lisa Harnum that they would go to Canada together as soon as her visa came through (exhibit LL). Mr Strickland suggested that was inconsistent with the accused in effect holding the visa issue over her head as a threat. Having regard to the context of the conversation, it provides little basis for assessing what the accused may have said during a heated argument or under threat of Lisa Harnum leaving him.
58 I am mindful of the fact that the accounts of Mrs Harnum and Michelle Richmond on this issue are second-hand. They may not reflect words said to Lisa Harnum by the accused. There is a risk, for example, of confusion between what Lisa said the accused threatened to do and what impact she said the threatened conduct may have on her visa application. If Mrs Harnum was not familiar with Australian migration law herself, it would not be surprising if some of the detail of her account entailed confusion.
59 As to its being evidence of embellishment on the part of Lisa Harnum, I do not accept what was put on behalf of the accused. The fact that Mr Granger was not a friend of the accused does not disprove the making of any threat. The evidence that Lisa Harnum said the accused threatened to drive her straight to the airport giving her no time to pack her things has a coherence with my assessment of other aspects of the relationship. I think it is likely that the accused made such threats, whether or not he in fact had the power to carry them out.
60 Lisa Harnum did return to Australia against her mother’s wishes. On 24 January 2011 she consulted a psychologist in Sydney, Ms Helen Sharwood. Ms Sharwood is not a clinical psychologist. She administered a questionnaire known as DASS-21 (a depression, anxiety and stress scan) which she uses as a screening tool.
61 Ms Sharwood did not make notes during the consultation but made notes afterwards. She said that those notes were made within about an hour or so of the consultation (T233.41).
62 Ms Sharwood gave her evidence by reference to those notes (exhibit H). She said that Lisa Harnum told her that the accused had wanted her to come “for a relationship problem”. She told Ms Sharwood that she was “feeling trapped”. The notes record the following (at T235.26):
She feels she is losing herself. He takes her keys, won’t let her wear heels to the shops, tells her what to wear and had her stop work. She talks back to him and he does not like this. He won’t let her have her own opinion. He wants her to be submissive. He uses words like ‘evil’, ‘poisonous’, a ‘snake’ to refer to her. Tears. ‘Is that what a good relationship looks like?’ Asking if it is her fault. She is doubting herself.
There is no physical abuse, no substance abuse, she is not thinking of harming herself. Discussed whether it was her fault or that Simon was like this. She speaks to her mother in Canada and she tells her to come home. I told her she needs professional support and offered to see her pro bono if she could not afford the fee.
63 Curiously, Ms Sharwood insisted that the words “there is no physical abuse, no substance abuse, she is not thinking of harming herself” (set out above) did not record something Lisa Harnum had told her. She specifically denied that Lisa told her there was no physical abuse in the relationship. She explained that those were just impressions she formed from the DASS-21 (T237.22). She gave similar evidence as to the note that Lisa Harnum was not thinking of harming herself (T239.32).
64 With no disrespect to Ms Sharwood, who I think was endeavouring to give an honest account of her recollection, I am unable to accept her evidence on that issue. I accept, as suggested by Mr Strickland in cross-examination, that those notes probably record answers given by Lisa Harnum to specific questions asked by Ms Sharwood during the consultation.
65 The notes also record “she comes from a poor family where she is the only child”. In fact, as established by the evidence of Mrs Harnum, Lisa Harnum had a brother. He was seven years older than her.
66 Ms Sharwood was asked in cross-examination whether Lisa Harnum had actually said that she was an only child. The witness’s response was (T240.5):
If it is in my notes then that’s what I would have written down and that’s true, if it is in my notes.
67 Mr Strickland relied on that evidence as an illustration of Lisa Harnum being an unreliable historian.
68 I am not persuaded that Lisa Harnum in fact told Ms Sharwood that she was an only child. I have no doubt that Ms Sharwood endeavoured to record an accurate account of the consultation. However, she struck me as a person who could easily have been confused about such detail. I think it is more likely that she either misheard or misunderstood something that was said to her by Lisa Harnum, or else recalled that aspect of the discussion inaccurately at the time she came to make her notes.
69 Lisa Harnum did not return to see Ms Sharwood again.
70 In February 2011, the accused purchased a computer programme which had the capacity to monitor mobile telephone text messages. He put the application on Lisa Harnum’s mobile phone and began to monitor her text messages without her knowledge (T709-10).
71 The accused frankly admitted this in his evidence. He said that he bought the programme because Lisa had previously said there was something she had not told him, of which she was ashamed. They had several discussions about this “secret”. The accused became confused, upset and frustrated because his partner was hiding something from him which she was too ashamed to tell him (T693-694). He said that, for about two or three weeks, he read her text messages but that he did not notice anything that led him to the secret so he lost interest.
72 I do not believe the accused’s evidence on that issue. There is no reference in any of the text messages in evidence to any festering conflict over a closely-guarded secret. I think it was a pretext put forward by the accused in order to excuse an inexcusable breach of trust.
73 By that stage, Lisa Harnum had not worked since leaving her employment at Bondi Junction in May 2010. In early 2011, after she returned to Australia, she told her mother that she wanted to get back into the workforce and had asked the accused about getting a job. Mrs Harnum said Lisa told her the accused had suggested she work for one of his friends at a salon called Christopher Hanna Salon. She told her mother that she would not be paid for that work (T110). She said something similar to Michelle Richmond: that Simon had got her a job with a friend of his because he felt he was safe to work with and that she was not allowed to be paid (T177.28).
74 The accused sought to establish that Lisa Harnum had in fact been paid for her work at Christopher Hanna Salon and that what she told her mother and Ms Richmond on that issue was another instance of her being an unreliable historian.
75 In fact, what Lisa told her mother on that issue was entirely confirmed by the evidence of Mr Steven Hanna, the owner of “Christopher Hanna Hair”. Mr Hanna knows the accused socially (T416.10). He said that he was approached for work for Lisa Harnum in 2011. He thought it was about two months before her death but later agreed that it was probably earlier. He thought it may have been the accused that approached him but was not sure. Mr Hanna said “he asked me if I had any work going because Lisa was getting bored at home and she wanted just some work” (T414.8). Mr Hanna said he could not initially afford to pay her. He said either the accused or Lisa Harnum told him that she was happy not to get paid until he could afford it.
76 Mr Hanna was extremely vague about dates. He thought the period during which Lisa Harnum worked for him was about four weeks in total; that she had not been paid for “about a week” and that after that she had been paid. However, he agreed that the arrangement originally was that she was not going to be paid (T414.25). His evidence was accordingly entirely consistent with what Lisa Harnum told her mother, namely, that she “would not be paid for that work”.
77 Mr Hanna said that Lisa Harnum was later paid in cash at the rate of about $20 an hour. He kept no records of those payments and did not deduct tax. Asked whether he had any records whatsoever of her working at the salon, Mr Hanna said: “it was just more of a friendly thing. It was just like – she was able to come and go as she pleased” (T415.1).
78 I did not find Mr Hanna a particularly convincing witness. I do not know whether to accept his evidence that Lisa Harnum was paid in cash at some point. He certainly understated the period during which she was a volunteer. Text messages show that she started working at the salon possibly on 19 February 2011 and certainly by 24 February 2011 (exhibit 18, items 103 to 121). Other messages establish to my satisfaction that she was still not being paid at least as at 15 April 2011, some seven weeks later (items 50 and 51 of exhibit V). For reasons I will explain, that was probably when she stopped work, in which case she may well not have been paid at all.
79 The accused said that Lisa Harnum did get paid for working for Steve Hanna. He said he knew that because she told him (T674.25). His evidence on that issue was glib and unconvincing. It was squarely contradicted by the text messages to which I have just referred. In any event, the important point is that Mr Hanna’s evidence in fact confirmed the reliability of what Lisa Harnum told her mother on that issue rather than undermining it.
80 Mr Strickland cross-examined Mrs Harnum as to whether she knew that Lisa Harnum had between $40,000 and $60,000 in her Westpac account. She said that she did not know that (T116.25). That evidence was evidently led to support, in a general way, the more specific contention that Lisa Harnum was not a reliable historian.
81 Later in the trial, the accused gave evidence that he also did not know Lisa Harnum had accounts at Westpac (T675.7) and did not know the amount she had in those accounts. However, he later revealed that he did know she held an account with that bank. As already noted, he gave evidence of an occasion when they had argued and she said she was leaving. She wanted to meet him at Westpac so that she could close an account (T681.11). He specifically linked that event with the message in which he asked her to leave all her keys on the table including “bank”, suggesting they had a safe deposit box (and see exhibit 15, entry dated 6 May 2010). Whilst that evidence may seem unimportant in itself, it reflected adversely on the credibility of the accused. It is clear enough from the later evidence that the statement that he did not know she had an account with Westpac must have been a lie. It was a lie told with telling ease, evidently for the sole purpose of discrediting Lisa Harnum by bolstering a point raised by his barrister in the cross-examination of Mrs Harnum. Why Lisa Harnum should necessarily have shared with her mother or the accused the details of her considerable savings collected over a period of years is not clear to me. It was mostly money she had saved before she met the accused which increased over the period of their relationship almost entirely due to the accrual of interest. I do not think that evidence reflects adversely on Lisa Harnum’s credibility.
82 The accused and Lisa Harnum had an argument on 19 or 20 February 2011 which resulted in their having a few days apart. Lisa Harnum evidently talked to her mother about returning to Canada following that argument. They exchanged texts on 21 February 2011 as follows (items 37 to 39 of exhibit V):
Lisa Harnum: Sorry mommy. Still in bed. Took a sleeping pill because I needed the sleep. Simon told me last night that he was going to Melbourne for ten days to give us some space. Even left the key for me hehe. I am going to see bablys today for a talk.
Mrs Harnum: Does that mean you aren’t coming home?
Lisa Harnum: I have to go and see bablys. I need to have a talk with him. Simon and I had a long hat (sic) and I told him everything that I was feeling and he actually listened and he said that he was gonna go and give me time to either think or pack. And he left this morning. I really need to talk to somebody that’s why I booked an appointment with him.x
83 The accused said they argued because she thought his eagerness to get her a job was due to his not wanting to “hang out with her” (T699.33). That seems unlikely. In a text message to her mother the previous Thursday, she said she was excited about “a trial” the following week and that it would be good for them, presumably meaning it would be good for the relationship if she returned to work (exhibit 18, item 85).
84 That message was sent on 17 February 2011. The accused said they went to see Steven Hanna together that day (T682 and exhibit 48). The next day (Friday 18 February 2011), the accused was in contact with Mr Hanna about Lisa working on the Saturday, but only on the reception desk (exhibit V, items 33 to 35). There is no evidence as to whether she in fact worked that day. She appears to have started working at the salon regularly on 23 or 24 February 2011, but only on the reception desk, not as a hairdresser (exhibit 18, items 100 to 121 and 129 to 133).
85 Having regard to the chronology of those events and Lisa Harnum’s subsequent complaints that she was only allowed to work in a position with which the accused felt comfortable (exhibit V, item 51; T177.29), I do not accept the accused’s evidence that the subject of the argument was as he described. It seems more likely that they argued because she wanted to work as a hairdresser and was unhappy about his arranging a position for her as Mr Hanna’s receptionist instead.
86 By the end of March 2011, Lisa Harnum was again considering leaving the accused. There was evidence as to that period from Ms Rebecca Triscaru. She had known Lisa Harnum since late 2009, before Lisa Harnum met the accused. Ms Triscaru’s boyfriend was Mr Joe Filianos, who is a cousin of the accused. Over the months after they met, Ms Triscaru and Lisa Harnum became close friends. They spoke to each other often on the phone, sent many text messages to each other and regularly saw each other (T379-T380). It should also be noted that, independently of the friendship between Lisa Harnum and Ms Triscaru, the accused seems to have offered friendship and support to Ms Triscaru at various times.
87 Ms Triscaru also spent time with Lisa Harnum and the accused together. She thought they were a good couple together and expressed that view to each of them on several occasions.
88 On 29 March 2011, Lisa Harnum complained to her mother that she and the accused were “having domestics” and that he had said some very hurtful things (exhibit V, item 40). Lisa Harnum had lunch with Ms Triscaru the following day (exhibit 18, items 214 and 215). After the lunch, Ms Triscaru sent a message to Lisa Harnum in which she wrote that she (Lisa) should “do what her heart tells her to do” (T382.24). Ms Triscaru later received a telephone call from the accused. She said he knew about the message and was quite upset. He told Ms Triscaru that he did not want her to get involved and did not want her to speak to Lisa Harnum anymore (T383.16). The accused agreed that he was very abusive to Ms Triscaru in that conversation (T822.31).
89 The following day Lisa Harnum sent a text message to Ms Triscaru dated 1 April 2011 as follows (T385.22):
Hi sweetheart, how are you? I feel so bad about what happened last night. Simon told me that he called you and apologised. He thought we were plotting an escape together. Such a boy. I hope you are okay and not upset. I really value your friendship and am so glad you are in my life. You are such a beautiful soul and I hope that you still want to be friends. I hope you had a good day and that interviews are going well. I love you honey.
90 Notwithstanding the terms of that message, it appears that Lisa Harnum was in fact planning to leave the accused at that time. She sent a number of messages to her mother describing how sad, alone and unwanted she was feeling. On the evening of 31 March her mother asked “so are you moving out?” (exhibit V, item 48; exhibit 18, item 224). She replied the following day (exhibit V, item 46; exhibit 18, item 222):
We have talked about everything and he has cancelled the flight. Things got elevated and out of hand. Bags are packed at the door. House is in disarray but all is sound again. I can’t believe we got the money back from the flight. Xx
91 Lisa Harnum was still working for Mr Hanna at that time. Mr Hanna could not remember when or why she stopped working for him (T415). Mrs Harnum gave evidence that Lisa told her the accused wanted her to quit working for Mr Hanna because “she was changing and wearing her hair down and getting to be social with some other people, and he didn’t like it” (T38.25). That evidence was admitted not as to the truth of the statement as to why Lisa Harnum stopped working at the hair salon but only as to the fact that the accused said those words to her (T38-T39).
92 Michelle Richmond gave similar evidence, as follows (T177.38-46):
A. Cecilia said that Simon said she wasn’t to be paid. And that one day one of the girls did her hair beautifully and she felt really beautiful but when she got home, because her hair was out, Simon became angry and aggressive and she wasn’t allowed to go back to work at the hairdresser.
Q. Did she say anything about what Simon had said about the people at her work?
A. She said that she shouldn’t be with other people because they would corrupt her or pollute her, words of that effect.
93 The accused denied telling Lisa Harnum to stop working at the salon or saying that the people she mixed with there would corrupt or pollute her mind (T674.37). He said that the reason she stopped working was that she was not getting along with some of the girls there and was also having disputes with clients who had been offered discounts by Mr Hanna (T675.1).
94 In the text messages tendered by the Crown and the accused (exhibits V and 18), the latest unequivocal reference to Lisa Harnum being at work appears to be a message dated 14 April 2011 (exhibit 18, item 245). Interestingly, there is a message only 2 days later in which the accused berates Lisa Harnum for having her hair down. It is appropriate to consider the full exchange. On 15 April 2011, the accused wrote (exhibit V, items 50-52; exhibit 18, items 246-248):
Since you got attitude & you made the comment about me working during the day yesterday, there are two bills worth 900 one for electricity & one for telstra. I want you to pay for them from your own money.
95 Lisa Harnum replied:
If I had a job that paid me money instead of something that you are comfortable with then maybe I could pay something. You are a heartless heartless person.
96 The following evening, the accused wrote:
Who the fuck do you think you are walking around the house like you own it or coming & going without my permission?! Again I waited for you to apologize for your disgusting comment but you walk around like a peacock with your hair out & too proud to apologize. You lied to me & promised you would listen to me at all times. Obviously, you’re still the proud person & nothing has changed!
97 The accused said the last message was sent by him in the context that they had argued about a dress Lisa wanted him to buy for her. He said it was a Victoria Beckham dress worth a few thousand dollars and he had said no because they were saving money for his business, which was starting in a few months. He said the comment she had made which offended him was that it was the man’s job or duty to buy her whatever she wanted (T700 to 701).
98 I do not believe the accused’s evidence on that issue. It was one of a number of occasions when I had the impression he was giving a distorted version of the truth in order to deflect adverse evidence or just to denigrate Lisa Harnum. The accused’s evidence that he was concerned about saving money at that time does not ring true, considering many other aspects of his lifestyle – accommodation, travel, restaurants and personal trainers. Mr Hanna made no reference to Miss Harnum not getting along with some of the girls. He said he had thought hard and really could not remember why she stopped working for him (T415). Having regard to the terms of the last message and the evidence of Mrs Harnum and Michelle Richmond as to what Lisa Harnum told them, I am satisfied that the accused berated Lisa Harnum for coming home looking beautiful with her hair down and that he told her he did not want her to work at the salon any more after that time.
99 The 12th of June 2011 was Lisa Harnum’s 30th birthday. The accused arranged a surprise birthday party for her. All of his family attended. In their presence, in a restaurant, he surprised her further by proposing to her on bended knee.
100 I have no doubt that Lisa Harnum was happy and excited about becoming engaged to the accused. A number of witnesses gave evidence to that effect (see evidence of Rebecca Triscaru at T387.27; Daniel Karpathios at T408.50; accused at T702.46; Barbara Gittany at T933.39).
101 Lisa Harnum sent a message to her friend in Melbourne, Ms Gisele Pratt, that the accused had organised a surprise party for her with his family and friends and had made a long speech at the end of which he proposed to her in their presence (T221).
102 She also sent an excited message to her mother, as follows (T109.20):
Thank you so much for the flowers and beautiful balloons and card. I wish you were here with me to celebrate this with me. Simon has made me a promise. If I get to 50 kilos with training and keep it for at least two weeks then he will fly us both to Canada to see you. So far, I have tired [scil: three] kilos to go.
103 However, within a week, the accused and Lisa Harnum were arguing again. The accused said it was because Lisa wanted to get married as soon as possible, whereas he wanted to wait (T703). On 18 June 2011, he sent the following message to her (exhibit V, item 60):
Cecilia you are my fiancé & I love you but we both know you have some problems that effect the mood of our relationship at times but you refuse to admit it. Please pray to God so he can help you get rid of these habits. I love you & want a future for us. Please get rid of them! Words from my heart.
104 She replied (exhibit V, item 61):
I love you too Simon and I do pray every single day for God to make me a better person. Simon no one is perfect and I may have things about me that I need to work on but it breaks my heart to think that instead of helping me in a constructive way you resort to yelling and telling me to get rid of my faults or we won’t work. My whole life all I wanted was to be accepted. You know the worst part of my childhood was girls surrounding me at school and telling me to change or they would make my life hell. I didn’t even know what I did wrong. I don’t feel sorry for myself Simon. I have nobody left to make feel that way. There are things we obviously need to think about before we go any farther with this. Neither if us want to make a mistake.
105 The accused responded (exhibit V, item 62):
Ok so you want me to help you get through this in a constructive way? Sure no problem. Btw, I didn’t like your last few lines, don’t use fear of loss on me Cecilia! I’m the one asking you to fix things before we go ahead but without the fuckin games.
106 The following day, Lisa Harnum sent an email to her mother indicating she was considering moving to Melbourne (exhibit C). She contacted her friend, Gisele Pratt. They had shared an apartment in Melbourne in 2005 and had remained friends since that time. Ms Pratt had met the accused once. She owned an investment property in Melbourne. On 19 June 2011, Lisa Harnum sent her a text message asking whether she had found tenants for the apartment or whether it was available. During that exchange, Ms Pratt asked Lisa how she was feeling after the excitement of the engagement the previous weekend. She replied “the excitement has fizzled, it doesn’t last long” (T222.15).
107 The following day, 20 June 2011, Lisa Harnum called Ms Pratt on her mobile telephone. Ms Pratt’s evidence was that Lisa was very distressed in that conversation. She was crying and had trouble talking. She said that she had had a big argument with Simon and that “it was over”. She said she wanted to leave him and that he had said if it was over she had to go back to Canada. She said she wanted to stay in Australia and so asked Ms Pratt whether she could come and stay with her in Melbourne.
108 Ms Pratt told Lisa Harnum that she was welcome to stay in the investment property until she found a tenant and that she was welcome to stay with Ms Pratt after that. Lisa Harnum took the address of the investment property so that she could organise for her belongings to be sent to that address (T233.3).
109 At about 2.00 pm that day, Ms Pratt received a text message from Lisa Harnum to say that she had organised a flight to Melbourne the following day (21 June 2011) at 5.45 pm. Later that day, Ms Pratt received a call on her mobile telephone from the accused. Ms Pratt said “he demanded that I tell Lisa that she could not stay with me and that she should not go to Melbourne” (T224.15).
110 The accused told Ms Pratt that he knew she and Lisa had been in contact and that Lisa was planning to come to Melbourne. He indicated that Lisa was not aware that he was calling. Ms Pratt said that his tone was demanding. She said that she responded as follows (T224.37):
I said that, that I certainly would not lie to Lisa, and there was no reason for me to do so, that I would not turn back a friend who asked for my help.
111 Ms Pratt said that the accused’s tone then changed. He explained that they had had an argument and that Lisa Harnum was “being stubborn”. She did not want to admit something she had done, and he did not think she should go to Melbourne because he wanted them to try and resolve the matter. The accused mentioned that Lisa Harnum had “changed her status on Facebook”. Ms Pratt had in fact already noticed herself that Lisa Harnum had changed her status from “engaged, in a relationship” to “single” (T225.17). The accused commented to Ms Pratt that this was embarrassing for him, as was the fact that Lisa Harnum had discussed their argument with others. Ms Pratt agreed in cross-examination that the accused told her that when they argued, Lisa would say that she was going to leave him. Ms Pratt was aware that that was something Lisa Harnum had done in a previous relationship with a man called Frank Breen (T228.6).
112 Ms Pratt told the accused that, if Lisa Harnum wanted to come to Melbourne, she would certainly not turn her away and would be there for her (T226.2). The accused then requested Ms Pratt, if she was going to talk to Lisa Harnum, to remind her of the good things in their relationship and what she would lose should she end it. He asked Ms Pratt not to tell Lisa Harnum that he had called.
113 The accused gave a slightly different version of events. He said (T704):
I rung up Gisele and I said to Gisele, “Gisele, we are arguing at the moment and Cecilia told me that she is going to come down and stay with you. I tried to talk to her and she won’t listen to me. She is very upset with me about the wedding date. I was wondering if you could have a talk to her and speak to her. She is your friend. Maybe she will listen to you.” Gisele said, “Simon, if she wants to come and stay with me, I won’t tell her that she can’t.” I said, “I understand that”, but Gisele said “I will have a talk to her for you and see what I can just see what happens”. Gisele also said to me, “I understand how Cecilia is, I have known her for a while and I remember her with Frank and how she acted with Frank”. So Gisele said to me she was aware of the way Cecilia acted in a relationship.
114 To the extent that those accounts differ, I accept the evidence of Gisele Pratt, who was a straightforward, intelligent and careful witness.
115 Lisa Harnum called Ms Pratt later that evening and said she was not coming to Melbourne and that she and the accused were going to try to resolve the issues between them. Ms Pratt told Lisa Harnum not to hesitate to call if she wanted to and reiterated that she was welcome to come and stay. That was the last time Ms Pratt spoke to Lisa Harnum.
116 The accused denied ever discouraging Lisa Harnum from having any friendships. He denied doing anything to discourage Lisa’s friendship with Gisele Pratt (T677.35).
117 On Friday 24 June and Saturday 25 June 2011, the accused and Lisa Harnum went skiing in Perisher with Mr Filianos and Ms Triscaru. Ms Triscaru stated that, before that trip, she had noticed a change in Lisa Harnum’s demeanour. She said (at T386.30):
There would be obviously days where she would be happy, and there would be days where I felt she wasn’t as happy as how I had known her to be ….I guess you could just see on her that she didn’t seem as vibrant and as happy as I had known her to be.
118 After the trip Ms Triscaru sent a text message to Lisa Harnum thanking her for a wonderful weekend (at T395.3). Ms Triscaru did not see Lisa Harnum in person again after the Perisher trip (T386.37). She had contact with her through text messages but the contact was decreased. She said that nothing had occurred during the trip to Perisher that would explain why there was so much less contact between them after that trip (T399.9). She said “I still don’t understand to this day why the contact became so minimal” (T399.3).
119 The accused denied ever discouraging Lisa Harnum’s friendship with Ms Triscaru. He attributed the cooling of their relationship to the fact that Ms Triscaru had got back with her boyfriend. He said that, during the trip to the snow in late June 2011, Lisa Harnum had organised dinner for the four of them but that Ms Triscaru and her boyfriend said they had already eaten and did not go to the dinner. The accused said “when we got to dinner Cecilia started crying and she started to realise that Rebecca, now that she has Joe, wasn’t interested in their friendship anymore and she was hurt as a result and since then she started to slowly lose contact with Bec (T677.20; and see T710.30). Barbary Gittany gave evidence to like effect (T934.1).
120 On 7 July 2011, Ms Triscaru and Lisa Harnum exchanged the following messages:
Rebecca: Hey Hun are you okay? I never hear from you these days?
Lisa Harnum: Yeah I’m fine just been busy with my man & his family.
Rebecca: Okay I understand. So your not upset with me about anything are you? You just don’t seem yourself.
121 Ms Triscaru could not recall receiving any reply to her second message and did not think she had spoken to Lisa Harnum after that date (T398.30).
122 The accused had a rift with Ms Triscaru’s boyfriend, Joe Finianos at around that time. On 21 July 2011, the accused sent Mr Finianos the following text message (exhibit V, item 90):
No body made up any stories Jo. You have absolutely no right to be upset with me at all. I have done 1000 times more for you, your girlfiend & your brother than all of you put together have done for me. What hurt me the most about you was neither you or your family came to my engagement & you never even made it up to me as you promised. I’ve always paid my respect towards your family so don’t even try & make me look like a liar cuz.
123 Having regard to the fondness of their dealings up until that time, it seems unlikely that Lisa Harnum would have allowed her lengthy friendship with Ms Triscaru to cool over an event such as the Perisher dinner. It seems more likely, having regard to the apparent rift between the accused and Mr Finianos at that time, that the accused prevailed upon Lisa Harnum to discontinue contact with Ms Triscaru. However, the evidence does not permit me to draw any confident conclusion on that issue.
124 Lisa Harnum had been a dancer until the age of 16. Mrs Harnum said that, after Lisa gave up dancing, she continued regular exercise. Mrs Harnum said Lisa told her that she and the accused used to go to a gym together but that, at some stage, the accused said he did not want her to go to the gym anymore.
125 The accused denied ever telling Lisa Harnum that he did not want her to go to any gym (T671.34). He said that she had been training with Daniel Karpathios but that she stopped because he gave her a list of food to eat which was mainly carbohydrates. The accused said she felt bad that she wasn’t following what Daniel asked her to do in terms of eating so she made excuses not to go to the gym (T671.44). Daniel Karpathios also said that Lisa Harnum had made “excuses” when she stopped training with him (T408.3).
126 Mrs Harnum said that Lisa told her that, after saying that he did not want her to go to the gym any more, the accused provided a trainer to come to the house to provide training for Lisa Harnum (T36.29). She told her mother that the reason for the change was that people looked at her at the gym and the accused did not like that. She told her mother that she did not like the fact that she could not go to the gym but she accepted it. Mrs Harnum believed the change occurred in 2011.
127 It was in early July 2011 that Lisa Harnum began training with the personal trainer, Lisa Brown. Ms Brown gave her evidence in a forthright and open manner. I accept her evidence as wholly honest and reliable. However, in considering her evidence and that of Michelle Richmond as to things said to them by Lisa Harnum, I have again had to approach the evidence with caution, bearing in mind the inherent shortcomings of a hearsay account. In the case of Lisa Brown, she had many conversations over a relatively short period, mostly face to face and presumably not anticipating that she would ever have to recall those conversations for the purpose of giving evidence. She had some contemporaneous records, including SMS messages, to prompt her but took no notes. Plainly, there is a risk that she may have misremembered or misunderstood some of the many things Lisa Harnum told her during that time.
128 Separately, I have considered whether Lisa Harnum is likely to have overstated the bad side of her relationship to Lisa Brown. Ms Brown is a strikingly warm and strong woman who I apprehend would have made Lisa Harnum feel safe. I think it is likely that Lisa Harnum would have confided honestly in Lisa Brown, but I have also had regard to the risk of exaggeration in people who are struggling to cope.
129 Lisa Harnum first contacted Ms Brown in a text message dated 6 July 2011 in which she expressed an interest in training 3 to 5 days a week at home or at the gym in her apartment (exhibit V, item 82). Ms Brown called Lisa Harnum in response to that message. Lisa told her that she had been a dancer in the past and that she had struggled with eating disorders. She said that she wanted to improve her health in order possibly to conceive. She said that she was underweight and that she wanted to put some weight on (T134-135; and see exhibit D).
130 Lisa Harnum’s first training session with Ms Brown was scheduled for Wednesday, 13 July 2011. Ms Brown went to their apartment. She met the accused and agreed to provide training services for both of them for an agreed weekly sum. Ms Brown then went with Lisa Harnum to the gym on level 8. She was intending to do physical training but they ended up just talking that day. Ms Brown gave the following account of their conversation (at T136.30):
… she really wanted to make changes because she knew that she wasn’t happy and she was underweight, she was unhappy with the way she was underweight and she was really wanting to have a baby and she understood in order to do that she was going to have to put some body fat on and get into a good healthy state in order for that to happen.
131 During that session, Ms Brown recommended that Lisa Harnum consult Ms Michelle Richmond, who was a friend of Ms Brown’s and someone to whom she had previously referred clients. Ms Brown said that Ms Richmond could help clients “understand the patterns that aren’t serving them and be able to get control of their lives”, especially with eating disorders.
132 Ms Brown told Lisa Harnum that her training would be dependent upon her eating and that, if she started to lose more weight, Ms Brown would not train her because it would not be healthy. During that session Lisa Harnum told Ms Brown that she loved the accused and was wanting to have a baby with him. She asked Ms Brown not to discuss anything they had talked about with the accused. She was very firm in that request (T137.14).
133 Ms Brown said that, on the way back to the unit, Lisa Harnum strongly emphasised that she did not wish Ms Brown to tell the accused what they had spoken about. When they arrived at the unit, the accused asked Ms Brown what they had done. She responded jovially that that was client privilege. He insisted that she tell him what they had done. She said they had done some movement pattern analysis and had screened Lisa’s posture (T138.21).
134 Lisa Harnum had her second session with Ms Brown the following day. On that occasion, Ms Brown did in fact analyse Lisa Harnum’s movement patterns (T140.38).
135 The following week, Lisa Harnum trained with Ms Brown on Monday, Wednesday and Thursday (18, 20 and 21 July 2011). Each of those sessions was held in the gym in The Hyde apartment building.
136 During one of those sessions, Lisa Harnum told Ms Brown that she had been in touch with Michelle Richmond. She told Ms Brown that she didn’t have any friends and didn’t see anybody other than Ms Brown and Ms Richmond because the accused did not like her to (T141.37). Michelle Richmond gave similar evidence, saying that Lisa Harnum told her that she that Lisa Brown were the only people she had contact with apart from her mother (T177.13).
137 Mr Strickland relied on the statement to Lisa Brown (that the accused did not like her to have friends) as one of the examples of Lisa Harnum giving an embellished or unreliable account of events. He submitted that the evidence shows that the accused actively encouraged Lisa Harnum’s friendship with Rebecca Triscaru (particularly in the recording of a conversation on 10 June 2011 in exhibit LL). Whilst that was certainly the case at times, it was not the case at the end of March when the accused demanded that Ms Triscaru not speak to Lisa Harnum anymore. For the reasons already explained, I think the accused may have discouraged Lisa Harnum from seeing Ms Triscaru after his rift with Joe Filianos. Whether or not that is the case, what Lisa Harnum said to Ms Brown about friendships was, on the evidence before me, sadly accurate.
138 Michelle Richmond also gave extensive evidence of things Lisa Harnum said to her, again raising the need to give careful consideration to the potential unreliability of an account given through the mouth of another witness. At the request of Lisa Harnum, Ms Richmond took no notes of two lengthy sessions. She was a careful, intelligent witness. I have no doubt as to the honesty and reliability of her account but I have kept in mind the risk of misunderstanding or misremembering. Separately, I have turned my mind to the issue whether, having found a good and sympathetic listener, Lisa Harnum may have exaggerated the downside of her relationship to Michelle Richmond.
139 As with Ms Brown, Ms Richmond conveys a striking warmth and gentle strength. I think it is likely that Lisa Harnum felt safe and emboldened by their support. An obvious example is the fact that Lisa Harnum told Michelle Richmond about her bulimia, an admission she could not bring herself to make to her mother or the accused. A great deal of what Lisa Harnum said to both Lisa Brown and Michelle Richmond finds objective support in other evidence, or is not disputed by the accused. I have nonetheless kept in mind the difficulty of assessing any measure of confabulation or exaggeration where the evidence comes as hearsay.
140 Lisa Harnum had her first session with Michelle Richmond on Friday 22 July 2011. The accused took her to Ms Richmond’s office. Ms Richmond spoke to them both briefly and the accused then left. Ms Richmond said Lisa told her that she had suffered from bulimia while she was doing ballet and was currently suffering from bulimia, which was why she had been referred to Ms Richmond. She said that she had beaten bulimia before and was ready to beat it again.
141 Ms Richmond said (T176.32) that Lisa Harnum:
said she binge ate and purged up to 12 hours a day, it was the only way she could feel some kind of connection or some kind of feeling because she had become so shut down in her relationship.
142 Ms Richmond gave the following account of what Lisa Harnum had said to her about bulimia (at T180.49):
she said that the bulimia came, was something that started when she was doing ballet and that she used the bulimia as a way of staying connected, of feeling something because she had felt that she was a mere shell of her previous self, she was so particular about everything she had to say, everything she had to do to maintain her relationship with Simon and not make him angry, that she had lost herself but the bulimia gave her that sense of connection, some sense of feeling.
143 Ms Richmond said Lisa told her that the accused did not know about her bulimia and that she was very scared that he would find out because she thought if he found out he would leave her. She said that she had not told anyone else (T176.38).
144 The accused gave evidence consistent with that account. He said that Lisa Harnum did not ever tell him that she was bulimic (that is, that she binged and purged). She had told him that she was in hospital many years ago and “nearly died”. She had said something about having two nurses beside her to watch her eat but he did not know exactly what it was that she had suffered from. He did not know that she suffered from any eating disorder whilst she was living with him (T669.48).
145 Ms Richmond said Lisa told her that she loved the accused but she was afraid of him, that he could be a beautiful person but would turn and become angry. Lisa told Ms Richmond that she was very careful with what she said because she didn’t want to make him angry or upset with her (T177.2).
146 Ms Richmond said Lisa told her that religion was very important to her. She was grateful to the accused because he had helped her find God. She prayed to God to help her, to help her and Simon in their relationship and to help Simon so that they could stay together (T177.5).
147 Ms Richmond said Lisa told her that the accused did not like her to leave the apartment and at times, when she had, he became very angry and aggressive. Ms Richmond said that Lisa told her she was not allowed to go out alone and that, when she went out with the accused (T177.13):
she had to be careful, she had to make sure if there was another man in the vicinity that she looked into Simon’s eyes, that she kept him engaged in conversation or looked down at the ground so he could never say that she was looking at someone else.
148 Ms Brown gave similar evidence. She said that Lisa told her she was only allowed to go outside for grocery shopping (T143.44). The accused denied ever saying so (T713.9). He said she enjoyed staying in the apartment.
149 Ms Richmond said Lisa told her that the accused went out often. She did not know where he went and did not know what he did for a living. He was setting up some kind of home business. The accused sought to respond to that evidence in his evidence, stating that he had told Lisa about the business he was setting up (T675). However, that did not explain what he did for an income, which was the import of what Lisa Harnum was saying to Ms Richmond. She told Ms Richmond that when he went out she felt alone and completely isolated (T181.16).
150 Ms Richmond said Lisa told her of one occasion when the accused had dropped her home after an argument. Lisa told Ms Richmond that there was no food in the house so she had gone to the store close to the apartment. The accused rang her and asked why she wasn’t home and demanded that she come back to the apartment immediately; that she had to be home in three minutes (T178.29). Lisa Brown gave similar evidence. She said that Lisa Harnum had told her of a recent event when she had been out shopping and she had received a call from Simon saying “You better be back in the apartment” and giving her five minutes to get back (T143.45 and T145.6).
151 The language of those accounts resonates with the terms of a text message sent by the accused to Lisa Harnum in December 2010 in which he said “you have 5 mins to meet me where you left me” (item 22 of exhibit V). The accused explained that there were many times when Lisa Harnum would “just take off” on him during an argument and that was the context in which that was sent (T697.31).
152 Ms Richmond said Lisa told her that, in the past, when she had tried to leave the accused, he had told her that if she left she would leave with nothing, just as she came, not even her underwear. On one occasion she said they had had an argument and he took her wallet and everything from her so she had nothing. As already noted, she expressed fears of being deported if she left the accused (T178.7).
153 Ms Richmond created a simple meal plan for Lisa Harnum and suggested she ring her each day to check in and tell her that she had been able to eat without throwing up.
154 On Saturday 23 July 2011, Lisa Harnum rang Ms Richmond to say that she had eaten and had not brought the food back up. She did the same on Sunday 24 July 2011.
155 The following week, Lisa Harnum continued her training with Lisa Brown. They again scheduled three training sessions that week, on Monday, Wednesday and Thursday (25, 27 and 28 July 2011). On the Monday, they trained on the balcony on the same floor as the gymnasium. Lisa Harnum had attempted to re-schedule that session for the Tuesday. Ms Brown responded as follows (at T142.12):
Good morning miss, what a gorgeous day. I can’t do Tuesday at your place but how about you come to me for a change if it feels right to you. You could catch the 373 bus from across the road from your place and come to Coogee. We can do an outdoor session using the coastal walk if you like. I can see you on Tuesday 10.15 to 11. Let me know your thoughts.
156 Lisa Harnum replied that they would do the session on Monday as originally planned. She later explained to Ms Brown that the accused would not let her train at Coogee, but that may have been an assumption Lisa Harnum made, not something the accused in fact said to her. The accused denied telling Lisa Harnum she could not meet Lisa Brown at Coogee (T713.13).
157 On Tuesday 25 July 2011, Lisa Harnum had her second session with Michelle Richmond. Ms Richmond collected her on her way to the office. Lisa Harnum told Ms Richmond about training with Lisa Brown the previous day. Ms Richmond gave the following account of that conversation (at T184.26).
Cecilia told me that she had been training with Lisa Brown and that they had trained on the balcony because it was a beautiful day and that she was not careful with her words when she spoke to Simon and told him that the workmen were working on the pool. At which point he became angry that they had trained outside and how dare she train in front of the workmen and he wanted to know if they were looking for her or could see her and she wasn’t to train outside again.
158 Lisa Brown gave evidence of a similar conversation with Lisa Harnum the following day (T145.20).
159 Ms Richmond said Lisa told her that the accused had been yelling at her all morning until the moment Ms Richmond arrived to collect her. She said she had no friends and was completely isolated as any friends had been cut off from her. Ms Richmond said (T186.2; and see cross-examination at T204.4):
She was distressed that she had been friends with the hairdresser, the girl she lived with, and that when she went out with Simon the girl disassociated with her because of her friend’s opinion of Simon and she felt sad that she had never been able to even tell her how much she appreciated her support and her letting her stay.
160 It is clear that the girl she was referring to was Amalia Karaeva. Ms Richmond’s account of what Lisa Harnum said to her on that issue was directly contradicted by Ms Karaeva’s evidence. Ms Karaeva said that their estrangement was due to disagreements as a result of Lisa Harnum’s relationship with her previous boyfriend, George, and did not have anything to do with the accused (T306.3).
161 However, I do not think that evidence establishes that Lisa Harnum gave Ms Richmond a false or unreliable account. Ms Richmond received a great deal of information over two periods of about two hours and, at the request of Lisa Harnum, did not take any notes of what she was told. Ms Richmond did not suggest that Lisa had told her that Simon had done anything to discourage her relationship with Amalia – only that she felt sad that she had not been able to thank Amalia for her support when the friendship ended due to Amalia’s opinion of Simon. In fact, the friendship ended due to Amalia’s opinion of George, not Simon. It is not difficult to imagine those events losing something in the re-telling. I do not think that evidence should cause me to doubt the veracity of Lisa Harnum, but it does illustrate the care which must be taken with a second-hand account.
162 Ms Richmond said Lisa told her that the accused always seemed to know everything she said to her mother. She said “she couldn’t work out how he knew that and she was very careful about the things that she said to her mother because somehow he would know and even come back and repeat the conversations back to her”. That made her feel isolated and shut down and concerned (T186.26).
163 Ms Richmond said Lisa told her that she had a bag packed that the accused did not know about with her passport in it. She said when she had tried to leave in the past, he had stopped her and that he had told her she would leave with nothing, not even her underwear.
164 Ms Richmond told Lisa Harnum that there was a centre available to her that supported women in abuse situations. They discussed her possibly putting her belongings in storage or somewhere that she could access them (T187.31). Ms Richmond specifically asked Lisa Harnum if the accused had been physically violent to her and she said that he had not (T199.33).
165 The following day (Wednesday 27July 2011), Lisa Harnum trained with Ms Brown. As already noted, Ms Brown said Lisa told her about the accused being very angry because she let slip that she had trained on the balcony the previous Monday (T145.20).
166 At 8.30 pm that evening (27 July 2011), Michelle Richmond missed a call from Lisa Harnum (T189.34). She missed the call because she was out to dinner. Miss Harnum left a voice message in which, according to Ms Richmond’s statement to police, her voice sounded distressed (T209.1). Ms Richmond sent a text at 8.32 pm as follows (exhibit F):
In a dinner meeting are you ok
167 She received a reply from Lisa Harnum as follows:
Hi Michelle. Sorry to call you late. Just upset. We can talk tomorrow if you are busy. Don’t want to be away to long. Have a beautiful evening honey x
168 Mr Strickland cross-examined Ms Richmond as to her contention that Lisa Harnum sounded distressed in that voice message. He played her a recording of a message retrieved from her phone in which Lisa Harnum sounds sleepy and relaxed (exhibit 5). It is plainly not the same message. It begins with the words “good morning Michelle”. The fact that police did not retrieve any other message from Ms Richmond’s phone does not cause me to doubt her evidence on that issue. Her description of a distressed tone is consistent with the content of Lisa Harnum’s contemporaneous message.
169 At 8.46 pm, Ms Richmond sent a further text to Lisa Harnum:
Call me back I’m just hanging
And then a further text:
Hun call me
170 Lisa Harnum replied:
Sorry honey. I can’t talk right now. Can I call you later. Everything is ok. Just with Simon at the moment xx
Ms Richmond replied:
Any time I’m up until late
171 Later that evening Ms Richmond tried several times to call Lisa Harnum on her phone. She then became concerned due to how “reactive” Lisa Harnum had said the accused was that he might be angry that she had called so many times. She sent a further text stating:
Sorry I think My phone accidentally kept calling you when it was in my bag apologies Michelle.
172 Lisa Harnum replied:
That’s ok. Was wondering if everything was ok. Have a good night Michelle.
173 Shortly after midnight that night, Lisa Harnum sent an email to Metro Storage at Bondi seeking storage space (exhibit N; evidence of Mr Richard Stanley at T440).
174 On the morning of Thursday 28 July 2011, the accused went to a meeting (T716.37). CCTV footage shows that he left the apartment at 9.39 am (exhibit 52). At 9.56 am, he sent a message to Lisa Harnum as follows (item 459 of exhibit 18):
I’m heading out west as I have meeting today @ 12 & either before it or after it I want to put side steps on. I have prayed about our situation & I am confused about what to do. I don’t want us to regret this decision years from now. I have gym later so will talk then.
175 As to the remark that he had prayed about their situation and did not know what to do, the accused explained in his evidence that he and Lisa Harnum had had an argument and had broken up (T716.47).
176 Lisa Harnum left the apartment at 11.29 am (exhibit 52). She was due to train with Lisa Brown at 11.30 am. When Ms Brown arrived at The Hyde, Miss Harnum met her in the lobby. Ms Brown stated that she was “very agitated and nervous and I would say jumpy” (T146.15). Ms Brown gave the following account of their conversation (T146.21):
She told me that she was planning to leave Simon and that Michelle Richmond had told her that it was ok to give me some clothes and things of hers for me to look after until she was able to leave.
177 Ms Brown described Lisa Harnum as looking “petrified”. She said “she kept looking around everywhere, nervously, looking to see if anybody was around” (T146.30). They went to the gym, where Lisa Harnum had hidden two pillow cases full of clothes and shoes behind some equipment. They took the pillow cases downstairs to Ms Brown’s car. They then went back up to the gym on the eighth floor but did not train. They just talked. Ms Brown said that Lisa Harnum was talking about the accused and “the way that things were for her and how she felt about things and how unhappy she was” (T147.42).
178 Ms Brown said that Lisa Harnum told her she wanted to leave the accused but she wanted to stay in Australia and that she was worried that if she left him she wouldn’t be able to stay because of the visa. Lisa Harnum told Ms Brown that she had no friends, that she missed her friends and that she wanted to live a different life. She said that she missed working as a hairdresser and that the accused did not want her to work and that he would give her money and she did not have to work but she wanted to and she wanted to go back into hairdressing (T148).
179 Ms Brown told Lisa Harnum that, if she wanted to leave, Michelle would “know the right people from her work”. Ms Brown said (T149-150):
I said if her current situation was worse than the fear of the unknown then that was the time that she would know was right to leave.
180 Lisa Harnum told Lisa Brown that she was also going to place clothing in storage in Bondi Junction (T150.36).
181 Ms Brown said (at T150.18):
She said she loved [the accused] but she didn’t love all parts of him, and there were parts of him that she didn’t like and she said she kept waiting for those parts to dissipate so she could have the parts of him that she loved and we talked about that for a while.
182 At 1.30 pm that day, after her session with Lisa Brown, Lisa Harnum took a bag of personal possessions to Metro Storage in Bondi (T441.38; T571; exhibit EE). She entered into a storage contract for one month. The application form requested her to identify the persons who would have access to the storage unit. She listed Michelle Richmond and Lisa Brown (T442.35). Mr Stanley lifted the bag into the unit for her. She told him that she would be returning with more clothes (T443.32).
183 The accused returned to the apartment at 3.59 pm and left again at 4.46 pm to go to the gym (exhibit 52). Mr Strickland noted that, since the accused was out for most of the day, it could scarcely be suggested that Lisa Harnum was unable to leave at that time, had she been desperate to do so. With no disrespect to Mr Strickland, I think that submission overlooks the emotional complexity of the choices faced by Lisa Harnum at that time. Plainly, she could have walked out the door with whatever she could carry and be physically free, but she would have faced a deal of angst and guilt had she taken that course. That she did not speaks equally of strength of character as of an absence of real fear. Leaving aside anything else, it is clear that she cared enough about the accused that she would have wanted them to separate amicably, if possible. She may also have been unsure as to her decision to leave.
184 At 5.52 pm, Lisa Harnum sent a message to Michelle Richmond, as follows (item 109 of exhibit V; exhibit G):
Hi Michelle. I just wanted to touch base with you as I know you are really busy today. I spoke to Lisa today and have (sic) her a few bags to give to you. I opened up to her about a few things as I am sure the pillow cases full of clothes was a bit odd. He was away most of the day so I packed another big bag of things and took it to a storage centre. He is coming home after training and I think he wants to talk. I am very nervous. I am so sorry to bother you Michelle. I hope you are having a good day honey x
185 Ms Richmond responded as follows (exhibit G):
Hi lovely you can call me I’m free now … Say little and just listen keep breathing Mx
186 After that message was sent, Lisa Harnum called Michelle Richmond (T193.4). Ms Richmond’s evidence-in-chief was that she received that call “shortly after” the messages at 5.52 pm (T193.4). It was put to her in cross-examination that the call was about two hours later but she did not accept that was so (T211.20). During that call, Lisa Harnum told Michelle Richmond that the accused was out and was coming home. Ms Richmond said to hang up the phone if he came home. Lisa Harnum told Ms Richmond that she had put clothes in storage. She sounded stressed (T193.22).
187 Ms Richmond agreed in cross-examination that, during that conversation, Lisa Harnum told her that the accused had said he was going to leave; that they were going to separate and that he wanted her out of the apartment (T211.27). That accords with the accused’s evidence as to the argument he and Lisa Harnum had that morning.
188 Michelle Richmond said that, towards the end of the call, the accused came home and she said “hang up” (T193.26). The CCTV footage shows that the accused returned to the apartment at 6.16 pm (exhibit 52). On that basis, I am satisfied that the conversation between Michelle Richmond and Lisa Harnum took place shortly after 5.52 pm as remembered by Michelle Richmond, and not two hours later as put to her on behalf of the accused.
189 The accused gave evidence that, when he got home, he accessed the monitoring programme and read the message Lisa Harnum had sent to Michelle Richmond. He said that, after reading that text, he spoke to Lisa Harnum. He said (T718.11):
I don’t recall word for word what was said but I remember asking to speak to Cecilia. We sat down, I sat down on the lounge, she sat down on the other lounge. And I said to Cecilia, “What bags did you give to Lisa Brown today?” And Cecilia said, “What are you talking about?” I said, “I was just at the gym and I saw Lisa Brown. Did you give her some bags today?” And she said, “No I didn’t give Lisa any bags, what are you talking about?” And I said, “Cecilia, I know I spoke to Lisa Brown and I know that you gave her some bags.” Cecilia was still not admitting to the fact that she gave bags to Lisa Brown and so I said to her, I said to Cecilia, “There’s no point hiding it, I have been monitoring your messages and that’s how I found out about the bag”.
190 The accused admitted in his evidence that Lisa Brown had not in fact told him about the bags (T718.37). His statement to that effect to Lisa Harnum was a lie. It is important in that context for me to bear in mind the cautious approach that should be taken to the use of lies. As noted by Mr Strickland, a person can have many reasons for telling a lie which do not inform the question of guilt one way or the other.
191 The accused said (at T718.25):
Cecilia started crying and she said, “It wasn’t my idea, it was Michelle who advised me to put bags in storage. I didn’t want to do it. I was afraid in case you found out.” I said to her, “Why would you put bags in storage, I don’t understand. If you want to leave, leave.” She said, “I don’t want to leave. Michelle advised me to put bags in storage as she thought it would be a good idea in case I wanted to leave in the future.”
192 Lisa Brown said that she missed a call from Lisa Harnum at about 6 pm that evening. Lisa Harnum left a message asking Ms Brown urgently to get in touch with her. Ms Brown stated that Lisa Harnum’s tone of voice was “frantic” (T151.25).
193 At about 7pm, Ms Richmond received a call from Lisa Harnum’s mobile telephone number. She said that nobody spoke on the other end. She then called the number back and the accused answered. She pretended she did not know who the call was from, saying “Hi, I just received a missed call from this number”.
194 Ms Richmond said (at T194.21) that the accused said to her:
Michelle, you fucking bitch, if you ever come near Cecilia again, try to contact or meet her, have anything to do with her, I know where you live. I will fucking harm you.
195 Ms Richmond stated that he continued with that monologue until she hung up because she could not cope with the abuse. She said that he was angry and was screaming and that there were no gaps between the words, that it was “just a monologue of abuse” (T194.34).
196 It was put to her that, when the accused spoke to her by telephone that evening, he had asked her why she got Lisa Harnum to hide bags in storage and that he said “Cecilia told me you told her to put the bags in storage”. She denied that there was any such conversation (T212.19).
197 It was also put to Ms Richmond in cross-examination that the accused had not threatened her. She disagreed. In re-examination she said that she had never heard anyone “so enraged and out of control”. She said (T214.15):
The dialogue of abuse was continual. There was no conversing. There was no – I asked him where it was coming from, he didn’t respond, he just kept screaming at me.
198 The accused frankly acknowledged that he was very upset with Michelle Richmond at that time and that he swore at her and told her off (T719.29). He denied threatening her. I do not accept his denial. I have no hesitation in accepting the evidence of Michelle Richmond on that issue.
199 At around the same time, Lisa Brown was listening to the message left earlier by Lisa Harnum when she missed her call. As she was listening to that message, Michelle Richmond called her. Ms Brown thought that was around 7 pm (T151.33). After talking to Ms Richmond, Ms Brown did not return Lisa Harnum’s call (T157.20).
200 The accused gave evidence of his conversation with Lisa Harnum after he had called Michelle Richmond. He gave the following evidence (T719.46):
A. After I got off the phone, I was just really confused and hurt about what had just happened, what I just found out and I said to Cecilia, “I don’t understand, I just don’t get what it is and why you would listen to someone who you have only known for like a week. Can you imagine if we were married and times were tough? How easily persuaded are you?” So I said to Cecilia, “This is not going to work so I would like you to leave, please”.
Q. Was your voice raised at any stage?
A. At this stage it was, yes.
Q. What did she do or say?
A. She continued to cry.
Q. What happened then?
A. She was crying and then she said to me, “I just want to get married and have kids.”
201 At 7.53 that evening, Ms Richmond received a text message from Lisa Harnum’s telephone as follows (exhibit V, item 110):
Leave me alone you have ruined my relationship. Drop all my stuff off at my concierge by no later than tomorrow 10 am. OK?
202 The Crown submitted that the accused either sent that message or made Lisa Harnum send it. As I will explain, I have little doubt that is the case.
203 Mrs Harnum gave evidence of a conversation with Lisa Harnum about those events. That evidence was admitted to prove the existence of the facts asserted by Lisa Harnum (T82-83). Mrs Harnum said the conversation was “pretty much within the same day” as the events Lisa Harnum was describing. It seems likely that it was part of a lengthy conversation Mrs Harnum had with her daughter the following morning (based on Telstra records, exhibit 45).
204 Mrs Harnum said that Lisa told her that, when she got home after giving a bag to Lisa Brown, the accused came home; that he knew she had given a bag to Lisa Brown and put another in storage and that he was very angry with her. Mrs Harnum said (T81.8):
he took her to go and get the bag from Lisa and took her to get the bag from the lock up and bring it back to the apartment and then he said that that was very embarrassing for him to give the bag to Lisa because Lisa was from his gym.
205 Mrs Harnum said Lisa told her that Simon had made her call both Lisa Brown and Michelle Richmond and tell them that she hated them and did not want to have anything further to do with them (T81.28). Lisa told her (T81.42) the accused had:
started yelling at her and telling her that she shouldn’t embarrass him, that she was to do as she was told, that she should submit and he had her on her knees in front of him. He had her kneel in front of him.
206 Mrs Harnum said Lisa told her that, after that incident, she felt very afraid and very sad (T82.38).
207 Mr Strickland submitted that Mrs Harnum’s account of that conversation provided another example of Lisa Harnum being an unreliable historian. He submitted that the evidence could not be relied upon as to the truth of what Lisa Harnum said. He noted the objective evidence that the accused and Lisa Harnum did not in fact go to collect the bags together. The two pillowcases given to Lisa Brown were returned by her to the concierge, while the bag placed in storage at Bondi was still there when police went to search the storage unit.
208 I think those inconsistencies are most likely explained by a combination of Mrs Harnum misremembering exactly what was said to her about the bags and, possibly, her inadvertently adding detail or making an assumption. There was in fact a demand to Lisa Brown that she return the pillow cases. I do not think the inconsistencies relied upon by Mr Strickland should excite any doubt as to Lisa Harnum’s account of those events.
209 The accused denied forcing Lisa Harnum to kneel and asking her to submit to him (T679.8). I do not accept his denial. I am satisfied that the accused would have responded to what he learned that afternoon with nothing short of rage. For all his vigilance, his errant fiancée had found a means of secretly moving her belongings out of the house. She was paying more attention to two women she had just met than to him. The accused acknowledged that his voice was raised at this stage (T720.4). Even so, his assertion that he confined himself to the polite observation, “This is not going to work so I would like you to leave, please” is manifestly implausible and I reject it. I think it is highly probable that he reacted in the manner described by Lisa Harnum to her mother.
210 The relationship evidence thus paints a mixed picture. I accept that the relationship saw times of close affection and deep love. The accused and Lisa Harnum plainly took care of each other. They made each other laugh. As noted by Mr Strickland, she had described it as the most important relationship of her life, and had told Lisa Brown she was wanting to put on weight so that she could have a baby with the accused. I accept that her position at that point was not one of a prisoner in her own home who was desperate to leave but was being restrained from doing so.
211 But the relationship was undoubtedly also tumultuous. Mr Strickland submitted that it was characterised by a pattern of over-reactive behaviour on Lisa Harnum’s part in which she would respond to trivial arguments by threatening to leave and then recanting. Nothing in the evidence has persuaded me of any such tendency on her part. The characterisation of her reasons for declaring an intention to leave from time to time as “trivial” is an evaluative judgment based on indeterminate or subjective considerations not borne out by my assessment of the evidence.
212 I do not think there can be any doubt that the accused was controlling, dominating and at times abusive. The force of his jealous and controlling personality met mixed resistance from Lisa Harnum, who was at times defiant, at times submissive to an inexplicable degree. I am satisfied that, by the end of July 2011, those tensions had reached a point of crisis. The accused’s sense of right to control Lisa Harnum was itself sliding out of control and she in turn was galvanising herself for a resolution of some kind.
213 The intractable point they had reached in those last days is relied upon as much by the accused as the Crown. Mr Strickland submitted that, even if I were to accept every submission put by the Crown as to the controlling, intimidating and abusive behaviour of the accused towards Lisa Harnum, that only increases the likelihood that she may have sought to escape him by climbing over the balustrade on the morning of her death. That submission highlights the critical importance of the events that follow.
214 On the morning of Friday 29 July 2011 at about 10 am, Lisa Brown returned the two pillow cases to the concierge at The Hyde apartment building (T157.36). The accused said that he collected the bags from the concierge (T721.38; exhibit E).
215 It is difficult to be confident as to the precise chronology of some of the subsequent events and conversations of that day. At 10.42 am, Lisa Harnum made the lengthy call to her mother to which I have already referred. The call was made from the landline using an international access call card for a duration of 5162 seconds, almost one and a half hours (exhibit 45).
216 Mrs Harnum gave evidence of a conversation in which Lisa called her and said “mummy please come and get me”. That request was probably part of that long call (see T338). Mrs Harnum asked how urgent it was and said she could come down on August 6 (T84.2). Mrs Harnum said that they spoke back and forth about flights after that (T338.26).
217 Mrs Harnum said that Lisa “went on line because she wanted to book the tickets herself and she wanted to book her return ticket one way”. She said there were two calls that day and that, during one of those calls, she told her daughter “if things got really bad just to grab her purse and her passport and get out, that her things didn’t matter” (T84.19).
218 Mrs Harnum’s recollection that Lisa said she wanted to book a one-way ticket to Canada is corroborated by the evidence of Mr Granger. He received a call from Lisa Harnum at 1:42 pm in the afternoon on 29 July 2011 (T947.11; exhibit 45). She told him she had been to the Department of Immigration that day and had attempted to obtain a Bridging B visa to permit her to travel to Canada. She had been advised by the Department that she was ineligible for such a visa, as she had already had two trips out of the country in the previous 12 months (in July 2010 and December 2010) (T947.28).
219 Mr Granger said that Miss Harnum asked him what would be the risk factor to her application for permanent residency if she travelled to Canada without a Bridging B visa. He advised her that her Bridging A visa (a visa held pending the determination of an application for residency) would cease. Her departure would not cancel the application for residency but she would need to return to Australia on another visa such as a tourist visa in order to re-access the application (since the skilled visa is an on shore class of visa) (T947.45).
220 That evidence shows that Lisa Harnum was considering flying to Canada at that time, which is consistent with Mrs Harnum’s evidence as to the discussion of flights that morning. As submitted by Mr Strickland, it also suggests that Lisa Harnum was not planning to leave Australia permanently as at that date, or was at least wanting to keep her options open, but it provides compelling support for the Crown’s contention that she was planning to leave the accused.
221 Lisa Brown said that she received a call from Lisa Harnum at about 2 pm that day. I do not think the evidence established the basis on which she was able to fix the call of that time. The call was not made from the landline (exhibit 45). Ms Brown said (T158-160)
She told me that I had told Simon about the clothes … I told her that I hadn’t … I told her that I didn’t say anything about the bags of clothes to Simon. I asked her why she would think that. She told me that Simon had said to her that I had told him about the bags of clothing on Thursday afternoon, the previous day, at George Street Platinum Fitness First.
222 Ms Brown said that Lisa Harnum was very distressed during that conversation and said (T158.25):
Please don’t ever contact me again. I don’t want to hear from you. You have ruined my life. Tell Michelle not to contact me.
223 Ms Brown said (at T158.36):
I said we were only here to help her, or words to the effect, if I recall, and I told her that I was always here for her and that I wished her love and light and she could call me at any time if she needed to.
224 Ms Brown said Lisa Harnum told her that she was in a hotel room when she was making that call. Ms Brown said she could hear noise in the background as though Lisa was outdoors and she could hear somebody talking in the background. She said that it was a male voice but she did not recognise the voice (T160). She agreed in cross-examination that she had not mentioned the male voice in the background to police when making her statement (T168.14). Nonetheless, I do not doubt that evidence. It seems likely that the accused was present when Lisa Harnum made that call, but I cannot be certain of that. The reference to her being in a hotel room is a mystery, especially if the call was indeed made within 20 minutes after the call to Mr Granger from the landline.
225 According to the accused’s version of events, he had owned up to Lisa Harnum the previous day about monitoring her text messages. That evidence is difficult to reconcile with the evidence of the phone call to Lisa Brown, which suggests that Lisa Harnum was still, the following day, labouring under the misapprehension that Ms Brown had effectively dobbed on her.
226 I raised that issue before the conclusion of the accused’s evidence so as to give him an opportunity to address it. In his further evidence he said that he had not admitted to Lisa Harnum that he had lied as to having learned about the bags from Lisa Brown. The suggestion was that, although he had told her about monitoring her messages, he had also maintained the lie about having spoken to Lisa Brown at the gym. Mr Strickland emphasised that point in his submissions. But if Lisa Harnum had been told about the secret monitoring of her messages, she would surely have realised that it was not Lisa Brown who had given her away. Her conversation with Lisa Brown makes no sense if she knew of the secret monitoring by that time.
227 Further, the accused’s account of his conversation with Lisa Harnum the previous day is inherently improbable. According to his version of the conversation, when he told Lisa Harnum that he had been monitoring her messages, effectively spying on her private communications, she uttered not a single word of complaint. According to the accused, she professed no surprise, indignation, curiosity or even relief at finally understanding how he had been able to read her mind for so long. She simply cried, blamed Michelle Richmond for the idea of putting bags in storage and told the accused that all she wanted was to get married and bear his children.
228 I do not accept the accused’s evidence that he told Lisa Harnum on 28 July 2011 that he was monitoring her messages. I am satisfied that is a discovery she made herself the night before her death.
229 At 2.17 pm on 29 July 2011 Ms Richmond received a text message from Lisa Harnum’s telephone as follows (exhibit V, item 111):
I wish I never met you because you have ruined my life & I have been kicked out of the house by simon. I had everything with simon but you brain washed me Michelle & now I am out on the street with nothing! I want the money I paid you for ruining my life as I am broke & need money. You should be ashamed of yourself. Thank you for this big mess you created!
230 At around or soon after the time of Lisa Harnum’s distressed call to Lisa Brown and that vitriolic message to Michelle Richmond, the accused says he and Lisa Harnum were out shopping together, holding hands and kissing (T723.32). He said they went to buy some skin cream for his brother. He said that, while they were out shopping, Lisa Harnum told him that she regretted listening to Michelle Richmond and Lisa Brown and taking their advice and that she blamed their advice for the break-up (T722-723).
231 The Crown contends that the accused wrote the message to Ms Richmond, or else made Lisa Harnum write it. The accused denies doing so. An issue I raised during the trial was the fact that the message contains an ampersand, which is a far more common feature in messages sent by the accused than in those sent by Lisa Harnum. After receiving further evidence (including exhibit 23) and hearing from the parties on that issue, I accept that is an unsafe basis alone on which to draw an inference.
232 At some point that day, Lisa Harnum told her mother that the accused had taken her cell phone away (T84). It is difficult to be confident when that was, but it is an additional factor pointing to the possibility that the accused wrote the message.
233 Leaving aside those matters I think it is likely, based on the content of the message considered in context, that the accused either wrote or made Lisa Harnum write that message. However, I accept that I could be wrong about that. As submitted by Mr Strickland, Lisa Harnum was probably very conflicted at that point. I cannot be sure that she did not respond to the crisis over the bags by lashing out at the women who were trying to help her.
234 Mrs Harnum said she spoke to Lisa Harnum again at some point that day. She gave evidence that Lisa told her that Simon had found out she was trying to book Mrs Harnum’s flight. Lisa said she had found some files on the computer that showed he had been tracking her messages and her emails and she was very upset and he was upset with her. She said that she was going to try and find a way to leave (T84). It seems likely that was in fact one of a number of conversations very early the following morning.
235 At 7.08 pm on the evening of 29 July 2011, Mrs Harnum sent a message to Lisa Harnum saying “Hi sweetie. Are you ok?” (exhibit 18, item 465).
236 The accused gave evidence that a friend of his, Mr Paul Rokobaro, came to their apartment that evening. He gave a curious answer as to how he and Lisa Harnum were getting on at that time (T722.49):
Lisa and I were getting on well after I broke up with her and our walk during the day, we were talking, and it was clear we were being really civil and still very much in love with each other.
237 Mr Rokobaro gave evidence for the accused. Mr Rokobaro is a large man whose daunting physical presence belies a gentle soul. He has been friends with the accused since high school (T916.30). He confirmed that he had visited them that evening. He arrived at 7.20 pm (exhibit 52). He identified himself in CCTV footage taken from the pinhole camera (T914.42; exhibit 34).
238 Mr Rokobaro said that what he remembered about that night was that the accused and Lisa Harnum were “a loving couple” (T913.44). He repeated that phrase five times during his evidence (T914.11; T914.15; T915.33; T915.35; T916.32).
239 In cross-examination, he agreed that he did not know the accused and Lisa Harnum had discussed separating on many occasions; that Lisa Harnum was planning to leave the accused at that time; that she had taken steps to hide some clothes in a storage unit or that she had given clothes to her personal trainer to keep for her (T915.40).
240 The Crown cross-examined Mr Rokobaro as to his awareness of the cameras in the unit. Surprisingly, it was one of the most suspenseful moments of the trial. He said that he knew there was a hidden camera in the wall but could not recall when he became aware of that fact or who told him. He knew there were cameras inside the unit and said that he thought he found that out before Ms Harnum’s death. He thought it was both the accused and Lisa Harnum who told him. The cross-examination concluded with the following exchange (at T917.28)
Q. Did Lisa Harnum ever show you a note about cameras inside the apartment?
A. No, she knew about it, because she told me.
Q. Did she ever show you a note about cameras inside the apartment?
A. No, not to my recollection, no.
241 The reason his evidence created suspense was that, when answering questions about his knowledge of the cameras, Mr Rokobaro paused at great length. He was visibly moved during those questions. The answers that came were at odds with the measure of angst apparently felt by the witness before giving them. A frustrating sense of incompleteness remained after he left the witness box. However, I have ultimately been persuaded by Mr Strickland that I cannot safely draw any conclusions from Mr Rokobaro’s demeanour in the witness box. I accept that any number of things could have unsettled him and probably nothing more than the awful experience of seeing his long-time friend facing such a serious charge.
242 At 8.24 pm Lisa Harnum replied to her mother’s earlier text, “I am okay. How about you?” (exhibit 18, item 467).
243 Mr Strickland put to Mrs Harnum that she called Lisa at about 8.10 pm that evening and that they spoke for “approximately 9 to 10 minutes” (T338.36). Notwithstanding the specificity with which those matters were put, no record was tendered to support those details. The accused did not give evidence of any such call. In any event, at 9.15 pm Mrs Harnum sent a text to Lisa Harnum saying that there was a flight on Friday coming back on Sunday “for 1600″, presumably a reference to the price (exhibit V, item 14). It seems likely that they spoke by telephone between such messages.
244 Lisa later sent a text to her mother “Done. What airline? I’m okay x” but according to the evidence before me, the time ascribed to that message is 1.35 am on the Saturday morning. Having regard to the sense and sequence of the messages, that may be wrong. It seems more likely to have been a response to the message to which I have just referred.
245 At 9.28 pm, a man from a Thai restaurant delivered take away (exhibit 34). The accused said Mr Rokobaro ate with them (T722.42).
246 At 9.37 pm, Mrs Harnum wrote (exhibit V, item 116):
Air canada and united. I will book from here. It is cheaper. How is everything
247 At 10.36 pm, Mrs Harnum wrote (exhibit V, item 118):
Good night sweetie. Sweet dreams. Love you. Xoxoxo
248 At 11.27 pm Lisa Harnum wrote (exhibit V, item 113):
I am okay mama, everything has calmed down. I told him you were coming down. Hope you still will. Let me know the dates and I will buy you a ticket. I will call You tomorrow when I can to talk to you more about it. Did you get tour (sic) results back from the doctor? I love you xoxoxoxo”.
249 The accused gave evidence consistent with that message. He said that Lisa Harnum told him her mother was coming to spend time with her because she (Lisa) was upset about the break-up. He said that Lisa did not say anything about booking a one-way ticket from Australia to Canada.
250 The accused said that, after Paul Rokobaro left, he and Lisa Harnum went to bed and chose “a movie called Romeo and Juliet”. He said that they were lying in bed watching the movie arm in arm and that he fell asleep before the movie finished.
251 Shortly after midnight Lisa Harnum sent a message to her mother asking if she was okay (item 466 of exhibit 18). At 2.15 am, Lisa wrote “good night mama. I hope you have a beautiful day today” (exhibit V, item 117).
252 The accused said he woke up at around 3 or 4 o’clock in the morning. He said that Lisa Harnum was “still watching the cooking shows” and he could not get back to sleep. He went to the computer room and tried to log in to the monitoring system but could not get in (T725.10). He said that, because he could not sleep, he thought he would watch some porn. He said he pressed the record button on the camera in case Lisa Harnum walked in.
253 CCTV footage shows that one of the cameras was switched on at 4.45 am and switched off at 5.15 am. The accused agreed that he switched the camera off at the end of the half hour. He said he knew when he left the study at about 5.15 am that both internal cameras were switched off (T837).
254 The accused said that, after watching some porn, he again tried to get into the monitoring program but the password was still not working. He went to the bedroom and asked Lisa whether she had changed the password. She mumbled something and he knew she had. He said (at T726.11) “Cecilia, you know you should have just asked me, we could have spoken about this. You know it is all to do with the secret. If you just tell me the secret then that wouldn’t even exist”. She said “I’m not ready to tell you the secret”. The accused said he then got upset and told her to pack her bags and leave in the morning. He told her that if she was honest with him at the beginning they wouldn’t be in that situation or he wouldn’t have to do something that he didn’t want to do or didn’t feel comfortable with (the monitoring of her messages).
255 I accept that there was almost certainly some conversation between Lisa Harnum and the accused that morning after 5.15 am (when he turned the cameras off). However, I very much doubt that the conversation was as recounted by the accused.
256 The accused said (T727.7):
Cecilia left the room and I went to bed. I was lying in bed but I was having a restless sleep and I woke up. I fell asleep and remember waking up I don’t know what time it was that I went to bed, 4.30, 5, but I woke up a short time later, and I remember hearing loud laugh, it sounded like Cecilia was on the phone, and I remember her laughing. I believe, I don’t know who it was, but I think she was on the phone with her mother, and I remember hearing a laugh from Cecilia and I woke up.
257 As with other parts of the accused’s evidence, that evidence sounded more like an echo of evidence in the Crown case than a genuine account of any real event.
258 Telstra records of the outgoing calls on the accused’s landline show three consecutive calls in short succession using the international access card early that morning (exhibit 45, showing a call of 64 seconds at 5.38 am, one of 3 seconds at 5.39 am and one of 2176 seconds or about 36 minutes at 5.41 am). The third of those calls was the last outgoing call on that line. I am satisfied that those were calls made by Lisa Harnum to her mother.
259 Mrs Harnum said that the last time she spoke to Lisa Harnum was in a phone call which she understood was made by Lisa on the house phone from the bathroom. As already noted, Mrs Harnum gave evidence of a conversation in which Lisa told her that the accused had found out she (Lisa) was trying to book a flight for Mrs Harnum (T84.30). Mrs Harnum said Lisa also told her that the accused had taken her cell phone away. Lisa said she had found some files that showed the accused had been tracking her messages and her emails. She said each was very upset with the other. Mrs Harnum said Lisa told her that she was going to try and find a way to leave (T84.48).
260 There may be some confusion in that account, since it appears from the text messages that Lisa Harnum had already told the accused by that time that Mrs Harnum was coming to Australia. It seems likely that Mrs Harnum has conflated some of the detail with that of an earlier conversation. It does, however, seem likely that the last call touched on Lisa Harnum’s discovery that the accused had been tracking her messages and emails. For reasons already explained, I think it is likely that she made that discovery for the first time that night. I also believe that she was very upset by that discovery, as she told her mother.
261 Mrs Harnum said that, during that last call, Lisa Harnum told her that she loved her and Jason with all her heart. Mrs Harnum said “What’s wrong?” Lisa Harnum was very upset and said that she was going to try to leave. She said “Mommy, if anything happens to me, please contact Michelle”. She made Mrs Harnum take down Michelle Richmond’s details and read them back to her. Mrs Harnum described her as “frantic” and said that she said “please contact Michelle if something happens to me” (T342.22). Mrs Harnum said Lisa told her that she would contact her as soon as she could, however she could, the next morning. Lisa Harnum then said that she was going to go to sleep. They said their goodbyes. That was the last time Mrs Harnum heard from her daughter (T88.7).
262 Mrs Harnum explained that she thought that phone call was made on the Friday night (Sydney time) because Lisa had said she was going to bed (T337.15, T341.39, T341.48). It is clear enough from the phone records that the last overseas call was made early on the Saturday morning.
263 Mr Strickland noted that one of the things Mrs Harnum said about the last call was that Lisa said the accused was in a meeting in the building (T336.12). He noted that she was very specific about that detail and that I should therefore conclude that she was confused about the sequence of those calls. As already indicated, I accept there is some confusion as to the detail. However, there is one aspect of the evidence as to which I have no doubt. Mrs Harnum recalls that one of the last things her daughter said was that she loved her mother and Jason with all her heart and that if anything happened to her, for them to contact Michelle. That is a conversation a mother would be unlikely to forget as she ruminated over the death of her daughter a short time later from the other side of the world. I do not doubt the reliability of that part of Mrs Harnum’s account of the call.
264 My analysis of those matters leads me to conclude that Lisa Harnum was in a state of absolute fear and despair by 6 am on the morning of her death. I am satisfied that the events of the evening had caused her to think that she needed to “try and find a way to leave” and that something might happen to her.
265 I find it difficult to accept the accused’s evidence about watching porn at that time. I think it is more likely that he spent that half hour checking Lisa Harnum’s emails and internet usage or trying to get into her SMS messages. As noted by Mr Strickland, there is no evidence that she had in fact booked a one-way ticket at that time. But her conversation with Mr Granger certainly shows that she was considering doing so. It seems very likely that she would have left some forensic trail, which the accused would have found during the time he says he was watching porn, revealing that she was not just planning to bring her mother to Australia but was in fact planning to return to Canada with her. Even if that is wrong, his discovery that she had changed the password to his spying programme was, in my view, enough to send him into a quiet rage.
266 The accused said that, after he heard Cecilia on the phone, he went back to sleep and woke up at around 9 or 9.30 am. He said that his heart was still not at peace with the break-up. He stood outside the spare room and saw that Lisa Harnum had packed some bags. He said “when I first looked at her I noticed that she was ripping up a piece of paper. I said to her ‘what are you doing?’. She said ‘nothing, I was just writing something for mum, but she was just being her paranoid self’”. I really do not know what to make of that evidence.
267 The accused said he asked Lisa Harnum whether she had changed the password and she said that she had changed it to “TRUST”. The accused said (at T728.28):
I then said to her, “I think that is a good topic and I think that we should discuss trust. Can we talk about that?” Cecilia said, “Yes, let me just change.” So she put on pants that were on the bed, jeans. And I think she put some deoderant on because she hadn’t slept, and then she came, I sat on the lounge facing the TV and Cecilia sat on the seat which was the dining table chair.
I then started to talk to Cecilia, and I said to her, “I’m really sorry about monitoring your messages. I was not comfortable in doing that. I understand you must be upset at that, but you have to understand, if I had a secret and I was too ashamed to tell you, that you would also have some trust issues as well.” Cecilia wasn’t really responding to what I was saying.
268 The accused said that she then rolled her eyes and said “you told me to leave, so I’m leaving” (T729.16). According to the accused, he then said “can you show me the booking please”. He explained that, if she was saying she was leaving, he wanted to see the booking that she was leaving.
269 That evidence was curious. I do not understand why the accused would assume that, if Lisa Harnum was moving out, she would necessarily be flying somewhere. I think that was more probably a deliberately distorted but accidentally revealing version of true events. It suggests that the accused had ascertained by his own surveillance that there was a booking and was demanding an explanation of the kind he demanded when he found out about the bags given to Lisa Brown. Even if that is wrong, it confirms his preconception (of which she spoke to others) that if she left him, she had to get out of town.
270 The accused said that, as soon as he asked Lisa Harnum to show him the booking, she got up, grabbed her handbag and ran for the door. He said he ran behind her and got to her before she got out the door. He said (at T729.48):
The door was open, she got to the door and opened it, and I got to her at the door entrance. I was holding her so she wouldn’t run outside, cause a scene and she started to scream, as I had hold of her, I think I had hold of her waist, I’m not too sure, at the door. And she might have been hitting or banging on something, I don’t know exactly what it was. As soon as she screamed, I instantly thought of the neighbours and how embarrassing.
271 He said he put his hand on her mouth to stop the scream and brought her straight inside.
272 The door of unit 1503 was immediately next to and perpendicular to the door of unit 1504. As at 30 July 2011, the occupants of that unit were Mrs Susan Glanville and Mr Charles Glanville. Mrs Glanville had met the accused in passing. She did not ever meet Lisa Harnum. On the morning of 30 July 2011, shortly before 10 am, Mrs Glanville heard banging on her door and, with the banging, a woman’s voice screaming “please help me, help me, God help me” (T611.14). Mrs Glanville was a firm and forthright witness who gave a compelling account of what she heard. She said she knew it was her front door that was being knocked on because, as she heard the banging, she approached the door and could see it shaking. She heard a man’s raised voice yelling. She could not discern any words.
273 Mrs Glanville said that, as she was walking towards the door, there was silence. The screaming and yelling lasted for just a few seconds and then it stopped dead. She locked the door.
274 Mr Glanville also heard banging on the door and screams (T617.17). He said it was a lady screaming. She was screaming “help me, help me, please God, help me” in a very distressed manner. He walked to the corridor where his wife was. The screaming had stopped by that stage. He said that it stopped suddenly (T617.38). He did not open the door.
275 After the screaming stopped, Mr Glanville went back into the bedroom where he was working on a fax machine. Mrs Glanville said that the next thing she heard was “a very, really piercing scream” from outside the unit. It was a female scream (T612.14). She said that it appeared to come from outside. She agreed in cross-examination that the scream could have come from the street. Mr Glanville said that Mrs Glanville came into the bedroom and said “oh, did you hear that?” but he had not heard anything (T618.5).
276 They later went downstairs and saw the accused. Mr Glanville agreed that the accused was staring into space like he was in a daze (T619.8).
277 Mr Glanville had met the accused in passing on a number of occasions and on one occasion had been introduced to his fiancée. He agreed that they both appeared to be very happy on that occasion (T619.16).
278 The moment when the accused put his hand over Lisa Harnum’s mouth was captured on CCTV footage from his own pinhole camera. The footage begins at 9.54 am (T450; exhibit Z and see stills of the relevant images in exhibit A).
279 Police checked the correctness of the timing recorded on the accused’s computer and on the CCTV system at The Hyde. The accused’s computer was 47 seconds slow compared with a known time source, while The Hyde system was 60 seconds slow. By reference to those findings, a summary was prepared showing the adjusted time of the events depicted on the footage from each source (exhibit CC). I have been careful to make my own observations as to the timing of the events shown at the beginning of exhibit Z. However, the reconciliation allows a calculation of the timing of events shown on other footage.
280 Detective Weekes calculated that the lapse of time between when the accused grabbed Lisa Harnum before taking her back into the unit and the time when Lisa Harnum dropped to the footpath of Liverpool Street was 69 seconds (T570.27). The time between when the accused grabbed Lisa Harnum and the accused first left the unit was 83 seconds (a further 14 seconds). After first leaving the unit, the accused spent 33 seconds going back into the unit and leaving for the second time (with a shirt on) (T570.35). He would have had time when he went back into the unit to check whether the cameras were on or off, but he was not asked about that.
281 An interesting feature of the pinhole footage is that it clearly shows Lisa Harnum heading in the direction of the lift, not towards the door of Mr and Mrs Glanville’s unit, at the time the accused grabs her by the face (see exhibit B; exhibit W as marked by Detective Weekes at T557.45). The accused agreed that Lisa Harnum was attempting to go towards the lift at that time (T750.31). It is accordingly difficult to reconcile the sequence of objectively established events with the evidence of the accused as to what happened at the door. There is no reason to doubt that Lisa Harnum did bang on the door of unit 1504 and scream for help. Mrs Glanville was a robust witness as to those events.
282 A careful review of the footage has left me in considerable doubt as to whether the banging on the Glanvilles’ door could have occurred before the event depicted in the footage of the accused reaching out and grabbing Lisa Harnum as she ran for the lift. If she banged on the door of unit 1504 before she was grabbed by the accused, it must have been extremely quick – only one or two seconds pass between the opening of the door and the point where he grabbed her. If she banged on the door of unit 1504 after the event depicted in the footage, there was more of a struggle in the doorway than suggested by the accused in his evidence. I am unable to be certain one way or the other as to the resolution of that issue.
283 The accused said that, as soon as he and Lisa Harnum came inside, he let go of her mouth, they closed the door or the door closed by itself and they both went quiet (T730.18). The door had a self-closing hinge mechanism (exhibits 26 and 51). The accused said that Lisa Harnum went and sat at the lounge and he went into the kitchen to make her a hot drink. Mr Strickland emphasised that photographs taken by police show the kettle with the lid open (exhibits Y and 27). I accept that evidence is consistent with the accused’s account. However, it is not unequivocal. The kettle may equally have been left in that position before Lisa Harnum ran for the door.
284 The accused said he then said to Lisa Harnum (T730.43):
I can’t believe what just happened at the door. I’m so embarrassed. The neighbours are probably outside right now and probably heard everything.
He then said:
Would you please just tell me what this secret is. It will all be easy if you just tell me the secret.
285 The accused said that he was not shouting at that stage and was as calm as he could be (T731.12).
286 The accused said that Lisa Harnum then ran outside the balcony door. He was still in the kitchen. He said he thought to himself “why is she running to the balcony? What is on the balcony?” He ran towards the balcony to see where she was going. He said when he stepped outside onto the balcony, his first vision of Lisa Harnum was that she was already over the balcony rail facing him with just her left leg still on the inside of the balcony (but see exhibit 27, which suggests that he should have been able to see what she was doing before he got to the balcony). He said that he might have screamed out her name and he ran straight towards her with both arms to try to get hold of her or a part of her just to stop her from what she was doing. He said that as she got her left leg over, handbag still in her hand, she jumped or released herself down onto the awning. As she was doing this he was coming towards her to try and get to her. As she released herself onto the awning her right leg instantly buckled and she fell to her right (his left). He said she landed on the awning, lying across the awning with her head facing west. At that stage, one of her legs was off the awning.
287 The accused said (at T732.16):
A. Cecilia looked at me. I instantly threw, pushed myself up onto the balcony rail and rested my chest or my not even my chest, my lower below my belly button onto the balcony rail, and I reached out as far as I could to get a hand or two hands or anything to try and get hold of Cecilia’s legs or any part of Cecilia.
288 The accused’s barrister specifically asked him whether he saw Lisa Harnum’s face when she was on the awning of the 15th floor (T742.9). He said that he did. He described the moment before her fall as follows (at T733.2):
I was reaching, yes. I’m not too sure if I screamed at this stage. I know I screamed at least twice. Cecilia, after I couldn’t reach her, just it was like she disappeared or let go, I’m not too sure, and as soon as that happened, I screamed her name out and instantly she hit the 14th awning from her waist and above with massive impact and that acted like a springboard and sprung her out, forward, and then Cecilia began to free fall.
289 He said that he screamed her name out in despair and shock and pushed himself as far as he could to keep his eyes on her until she hit the ground.
290 The level of detail in the description of the body hitting the 14th floor awning was at odds with the glib account given to Detective Rex, who recorded the accused as having said, within hours after Lisa Harnum’s death:
I ran towards 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 and then she was gone.
291 It is difficult to articulate my impression of that evidence except to say that I found it unconvincing. To an extent, I am referring to the demeanour of the accused in the witness box. Mr Strickland reminded me of the need for caution in placing reliance on an accused person’s demeanour, citing possibly the most famous example in the history of Australian criminal justice, Lindy Chamberlain, whose demeanour in the witness box was regarded as being inconsistent with that which the community expects of a grieving mother. That is a cautionary tale, but I do not think I should put aside my impressions of the accused altogether. At many times in his evidence, the accused struck me as a person playing a role, telling a story which fitted neatly with the objective evidence but which did no more than that. His account often appeared to rest on borrowed detail, lacking the richness and subtlety of actual experience.
292 Three people saw Lisa Harnum’s body fall. Of those only one, Mr Josh Rathmell, was put forward by the Crown as an eyewitness to the act alleged against the accused of throwing or unloading Lisa Harnum over the balustrade. I accept, as submitted on behalf of the accused, that if I were to entertain a reasonable doubt about the accuracy or reliability of Mr Rathmell’s evidence, I should find the accused not guilty.
293 I also accept, as submitted by Mr Strickland, that there is some analogy between evidence of the kind given by Mr Rathmell and identification evidence and that Mr Rathmell’s evidence must accordingly be carefully analysed with a view to identifying any factors that may render it unreliable.
294 As at 30 July 2011, Mr Rathmell worked as the assistant editor in the news department of the ABC in Harris Street, Ultimo. It was his practice each day to walk to work. His regular route took him along a diagonal footpath from the War Memorial in Hyde Park to the entrance to Museum Station on the corner of Liverpool and Elizabeth Streets (see Google map, exhibit J). He was some way along that path when he saw the events described in his evidence. He said there was a beautiful blue sky that day and that it was very clear.
295 As Mr Rathmell was walking along the path, he heard what he described as “deranged screaming” from a male voice. That evidence was admitted as providing a term descriptive only of the sound, not of the accused (T248.11). As far as Mr Rathmell could tell, there was only one voice (the male voice). Mr Rathmell was standing in front of The Hyde building at that time. He looked up and saw the incident which he later reported. He said (at T249.4):
To be more specific and to put it in different terms, I saw a man with no shirt carrying what at the time as I have described to be black luggage or duffle bag or a black object and that was the action that my eyes were immediately drawn to when I registered the screaming.
296 It was not disputed that the man Mr Rathmell saw was the accused. Mr Rathmell said that the black object was longer than it was tall. He indicated an object something between a metre and a metre and a half wide (T249.32). He said that the object was being held horizontally in the man’s arms and that the man’s arms were outstretched with the object laying across.
297 Mr Rathmell said (at T250.13):
I saw the man unload the object off the balcony and in what I described as a fluid motion almost, completely immediately turn and bounce straight back into the apartment.
298 Mr Rathmell was asked to demonstrate that action out of the witness box. In doing so (at T250.22), he identified the notional horizontal edge of the balcony and demonstrated the “unloading”. He said:
There was possibly a moment where the hands met the balcony railing [demonstrating hands on the railing] and then pushing and going straight back into the apartment.
299 It was a careful and compelling account, descriptive of a deliberate act of unloading an object over the railing of a balcony.
300 Mr Rathmell’s demonstration in court of the unloading action was consistent with a 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. The walk-through was recorded by police (exhibit K; parts of the descriptions given by Mr Rathmell on that video were excluded from evidence: see T256 to T258). During the walk-through, Mr Rathmell was asked whether he saw what turned out to be a body in the hands of the man without a shirt. He said that was definitely his perception. He said it was someone holding the black object and unloading it.
301 Mr Rathmell gave evidence that, when the man unloaded the object, it began to fall. His view of the object was obstructed. His attention was still on the man when the man ran inside. At that stage, Mr Rathmell did not know that the object was a body.
302 Mr Rathmell described the object as being black in colour. That was one of the points taken by the accused in respect of the reliability of the evidence. Photographs reveal that Lisa Harnum was in fact dressed in clothes that were blue, not black (T1205.17). However, the blue was quite a dark blue (see exhibit KK) and her hair was black.
303 There was a tree in the foreground of the scene Mr Rathmell saw which, from that angle, reached up to the fifteenth floor of The Hyde. Mr Rathmell said that it had no leaves at that time, since it was the middle of winter (T254.43). Photographs taken by Detective Weekes a week after Lisa Harnum’s death from the point on the pathway where Mr Rathmell says he stood confirm the absence of leaves at that time (T538.5; exhibit T).
304 It was submitted on behalf of the accused that, even without leaves, the tips of the branches partially obscured or obstructed Mr Rathmell’s view. In order to assess that submission I have, as invited by Mr Strickland, looked carefully at the walk-through video again, as well as the photographs in exhibit T, on which Detective Weekes identified the relevant balcony. That material establishes to my satisfaction that there was no real obstruction to Mr Rathmell’s view (exhibits K and T).
305 Mr Rathmell said that, after pausing for a while to observe, and in slight confusion, he continued to walk down the path. When he reached Museum Station, he saw two labourers. By that time, from observing the reactions of people on the street, he thought it was a human body rather than luggage that he had seen. He said to the labourers “mate is that a body?” and one of them confirmed that it was. Mr Rathmell then continued walking to work.
306 It was submitted on behalf of the accused that, if Mr Rathmell had seen a deliberate unloading of the object as he described, and realised shortly afterwards that the object was a human body, it is inconceivable that he would have continued on to work rather than remain at the scene to give a statement immediately. It was submitted that the only rational hypothesis is that he was at that time “infected with doubt” as to what he had seen (T1206-1207).
307 I do not think there is anything particularly troubling or surprising about the fact that Mr Rathmell did not remain at the scene. He said that he had already decided at the scene that he was going to make a statement to police. He frankly acknowledged that, when he got to work, he was trying to process what he was thinking (T252.15). He said that it did not occur to him to make a report to anybody at the scene. He was on his way to work and he had decided that he would make a statement. He did not realise it was of importance to make it in person. There are many reasons a young man in Mr Rathmell’s position may have taken that approach. I do not accept that the only rational explanation for his not remaining at the scene is the existence of doubt in his mind as to what he had seen.
308 Mr Rathmell made three calls to police that day and was told each time that he would be making a statement at some time shortly thereafter. However, that did not happen. Ultimately, the following Tuesday evening, he went to Surry Hills police station to give his account in person. He said that, at the time he made his statement, the events he had witnessed on the Saturday were still fresh in his mind. The walk-through was done the following Saturday.
309 Mr Rathmell described the noise he heard from the male on the balcony as “guttural” (T259.10). He said that the combination of the noise and the motion of throwing something off the balcony appeared to him to be quite an aggressive action (his previous description on the walk-through of that action as “almost in a rage” was excluded from evidence). He described the voice as incomprehensible, loud, slightly manic screaming.
310 It was not suggested to Mr Rathmell in cross-examination that the object he saw falling was anything other than what turned out to be the body of Lisa Harnum. There was no suggestion that any other object fell from The Hyde apartments onto the footpath at that time that morning. The critical issue as to Mr Rathmell’s evidence was the reliability of his account of his observations.
311 For example, in the walk-through video, Mr Rathmell had described the accused as wearing red pyjama pants, whereas in his statement to police he had described him as wearing striped pyjama pants. He explained that his memory was that the man was wearing pyjama pants “striped with an accented red colour; red was the main colour” (T261.45). That is a good description of the pants in fact worn by the accused that morning, as depicted in exhibit 7.
312 Mr Rathmell accepted that it was possible he had not said to anyone at the scene that he saw a man unload an object from a balcony or window. It was put to him that he did not say such a thing to any person at the scene because he did not in fact see anyone unload an object from a balcony or a window. He replied (at T263.36) “I may not have said that but I remain adamant that I did see that”.
313 Mr Rathmell was cross-examined as to evidence he gave at the committal hearing in these proceedings. In those proceedings, he was asked why he had not spoken to anyone at the scene, such as a police officer. He said: “to be honest, it didn’t occur to me. At that stage I was still trying to understand what I had seen”.
314 Mr Rathmell confirmed in the trial that, at the stage when he left the scene to go to work, he was “still trying to understand” exactly what he had seen. He agreed that, in one of his conversations with police on the day of the incident, he had said “I couldn’t tell what it was, I thought it was a junkie throwing rubbish out the window”.
315 In one of Mr Rathmell’s three calls to police that day, he spoke to Detective Rex. The Detective made the following notes of that conversation (exhibit 14):
Walking through Hyde Park, heard a bunch of screams, sounded like a man but muffled couldn’t hear what was said. Looked up towards apartments I couldn’t tell what is was (sic), thought it was a junkie throwing rubbish out window. Saw it falling and saw a man standing near the window looking like he was grasping looking down.
316 The notes also recorded the following: “didn’t see jump or push but watched the body fall”. Detective Rex explained that note, saying that he asked Mr Rathmell a question “did you see her jump?” and Mr Rathmell replied “no”; he asked “did you see her get pushed?” and Mr Rathmell replied “no” (T476).
317 I accept, as submitted on behalf of the accused, that those notes are likely to be accurate notes of what was said but they do not purport to provide a complete account by any means. Mr Rathmell does not appear to have been given the opportunity to adopt the notes at any stage. In his evidence in the trial, he maintained that he could not recall the precise words he said to Detective Rex.
318 Mr Strickland submitted that, if Mr Rathmell had said words to Detective Rex to the effect that he had witnessed a murder, Detective Rex would not have waited several days before chasing him up. He relied upon that as a factor relevant to the consideration of Mr Rathmell’s evidence. No questions were directed to Detective Rex on that issue. I do not think I can draw any reliable conclusion from the order in which police attended to the many tasks they faced at that time.
319 Mr Strickland submitted that Mr Rathmell gave inconsistent versions at different times. One of the alleged inconsistencies was his use of the verb “unloading” in his evidence in the trial compared with his use of the verb “throwing” when he first spoke to Detective Rex and in his written statement to police. Mr Rathmell said it was very possible he used the word “throwing” in his conversation with Detective Rex but that it was also possible he did not (T273.47).
320 Mr Strickland’s cross-examination of Mr Rathmell included the following exchange (at T274.10):
Q. Throwing something and unloading something are two very different things, aren’t they?
A. I think I have been very clear
Q. Answer that question, please.
A. “Throwing” and “unloading” in this case I don’t believe are very different things.
Q. They are different things, aren’t they?
A. I’m not sure how to answer this question.
Q. Just answer it with the truth?
321 After dealing with an objection, the exchange continued:
Q. I will repeat the question. Do you accept the word “throw” do you accept that “throwing” something and “unloading” it are two different things?
322 Mr Rathmell did not accept anything put to him as to the precise words he said to Detective Rex, adding “but I have used the word “throw” and “unloading” to describe the same action that I saw” (T276.16). In fact, during the walk-through, Mr Rathmell used both of those terms in the same sentence (exhibit K).
323 Mr Rathmell did not see the object hit any ledge or awning (T294.1). The bottom part of the fall was completely obstructed from his view by traffic. He did not at any time see the object in the vertical or standing position (T299.4). He did not at any time see the object lying on an awning of the 15th floor or lying on an awning outside the balcony where the man was standing (T299.10).
324 Mr Rathmell was asked whether he saw the man “look like he was grasping at something whilst he was looking down”, as noted by Detective Rex. He responded (T276.45):
Perhaps very momentarily. I have always maintained he went straight back into the apartment, that is, pushing off the balcony railing. There was no loitering on the balcony. He was not stationary.
325 Mr Strickland submitted that, having regard to his acceptance of that account, it is most likely that the witness saw Lisa Harnum when she was lying on the awning of the 15th floor and the accused was grasping down at her with his arms outreached (in the manner demonstrated by the accused during his own evidence). Mr Strickland submitted that would explain why Mr Rathmell did not see Lisa Harnum vertical at any stage, as she must have been on the accused’s account (T1208).
326 That submission overlooks the description Mr Rathmell gave of the grasping action. Asked whether he accepted that, even momentarily, he saw a man looking like he was grasping whilst he was looking down, Mr Rathmell said (T277.1):
I accept that I saw a man unload, perhaps grasp for a tiny moment in which to push off from the railing, and then in a very circular motion go straight back into the apartment.
327 Whilst giving that last answer, when saying that he saw the man “perhaps grasp for a tiny moment”, the witness was holding his hands directly in front of him with his palms down and his hands slightly rounded, horizontal to each other and open, as if demonstrating the act of holding the railing of the balcony. He later repeated that action with a gesture akin to pushing away from a horizontal railing in front of him (T277.44). The action demonstrated was not consistent with arms and hands stretching out to reach the awning.
328 Mr Rathmell was asked whether he accepted the reasonable possibility that what he saw was a man stretching his arms out grasping towards the object without actually touching the object. He said (T298.17):
I don’t really feel comfortable speculating. I feel like I have clearly stated what I saw.
329 The Crown prosecutor measured the distance between Mr Rathmell’s hands when he repeated the demonstration of the size of the object thrown. It was exactly 1 metre.
330 Mr Strickland submitted that the dimensions of the object as described by Mr Rathmell were significantly smaller than Lisa Harnum’s body (T1205.12). As with a number of issues in this trial, that is a point which cuts both ways. If she was lying on the awning of the 15th floor at that point, her body would have appeared just as long if not longer than if she was being held limp in the arms of the accused.
331 Mr Strickland identified a series of other reasons why I would entertain doubt as to the reliability of Mr Rathmell’s evidence. A number of those submissions require consideration of the evidence of Dr Richard Kemp, an expert in forensic psychology called as a witness for the accused.
332 Dr Kemp has expertise in both applied and theoretical aspects of human memory, especially eye witness memory and memory for faces. He has extensive professional study and experience in those fields, including a PhD in Psychology from the University of London on a topic related to the perception of faces (his curriculum vitae is exhibit 31).
333 Dr Kemp prepared a written report for the purpose of these proceedings but parts of the report were not in admissible form. The whole of the report was marked as an exhibit (exhibit 32) but only paragraphs 5 to 12 and 20 to 30 of the report were admitted into evidence (T887.12).
334 In his written report, Dr Kemp described how exposure to post-event information can cause significant changes to a witness’s memory for an event without their being aware of those changes. He stated that several decades of scientific research into human memory by experimental psychologists has demonstrated that human memory does not provide an exact or veridical record of an event. Interpretation of an event and subsequent recollection of it can be influenced by a variety of factors, significantly including exposure to post-event information.
335 Dr Kemp referred to that phenomenon as the “post-event information” effect or the “misinformation effect”. Experimental research in that field has demonstrated that many participants will incorporate information received after an event through suggestive or leading questions into their memory for the original event. Importantly, Dr Kemp noted that this is not a conscious process and that even a warning that the participant may have been exposed to this information did not assist them to correct their memory for the event. He expressed the opinion that witnesses are unable to distinguish between “real” memories and “false memories created as a result of exposure to post-event information”. Dr Kemp stated that such witnesses are likely confidently and sincerely to report a clear memory of the original event and to deny that their memory had been affected by post-event information.
336 Whilst, to a degree, those are matters of common sense which accord with my own experience in assessing the evidence of witnesses, I accept that it is important for me to have regard to the fact that such common experience finds support in extensive, peer-reviewed studies, which Dr Kemp says have shown that the post-event information effect is a robust and reliable phenomenon.
337 Some attention must be paid to the studies referred to by Dr Kemp. He described some in which participant witnesses were shown a mock crime and exposed to both correct information and misinformation about the event. He gave the example of one experiment in which participants were shown doctored photographs depicting an invented childhood event which did not in fact occur. With encouragement, about 50% of participants began to “remember” that event, many describing feelings and reporting high levels of confidence in such memories. There is no suggestion of false information having been pressed upon the eye witnesses in the present case.
338 In his oral evidence, Dr Kemp expanded on the opinions expressed in his report. He said that a witness’s raw perception of an event tends to be “fairly piecemeal” and that there is a tendency for people to incorporate information received after an event or from their own every day experience to fill the gaps (T894.40).
339 Dr Kemp related his study of the post-event information effect to the evidence of Mr Rathmell. He acknowledged that he is not able to say in the present case whether the evidence of Mr Rathmell is a true memory or a false memory. However, he expressed the opinion that there are factors in this case that increase the likelihood that Mr Rathmell has formed a false memory of what he claims he saw (T890.16).
340 Amongst the factors identified by Dr Kemp were delay, forgetting and repeated recollection. He also said that the long distance from which the event was observed and the very brief duration of the event were relevant factors (T896.49; T905.19). Each of those was a factor pointing to an increased risk of incorporating post-event information or information drawn from a person’s own expectations or experience of life to fill a gap or resolve an ambiguous observation.
341 Dr Kemp noted the delay of about four hours between when Mr Rathmell spoke to Detective Rex, the further delay of three days before he made his statement at Surry Hills police station and the delay of seven days before he did the walk-through. Dr Kemp said that a witness who encounters post-event information sometime after the event is at increased risk of having their memory of the event contaminated by post-event information (exhibit 32, paragraph 27). He provided an article of which he was one of the authors to support that opinion. The findings presented in the article were that misinformation has a particularly strong effect when it is presented after a long delay (exhibit 33).
342 Dr Kemp said that briefly-observed events that are potentially ambiguous are more likely to be subject to memory change (T897.6). He initially expressed the opinion that Mr Rathmell’s observations were potentially ambiguous. However, it became clear during his evidence that the potential ambiguity to which he was referring was one based on what I would regard to be a misapprehension of Mr Rathmell’s evidence. Dr Kemp had evidently construed Mr Rathmell’s first account, as recorded by Detective Rex in his notes, to be that Mr Rathmell had not in fact seen the man holding the luggage. Dr Kemp suggested that Mr Rathmell may have incorporated that, effectively as a piece of misinformation, by tracing back up from the falling object, seeing a man on the balcony and filling the gap to reach a false memory of having seen the object leave the man’s hands. However, there is nothing in Detective Rex’s notes to support that analysis. On the contrary, the notes record that Mr Rathmell told Detective Rex he had seen an action he described as throwing. The notes say he heard screams, looked up towards the apartments, could not tell what it was and thought it was a junkie throwing rubbish out the window.
343 The second eyewitness to Lisa Harnum’s fall was Mr Yuto Yoshioka. Mr Yoshioka was a high school student doing the HSC exams at the time of the trial. As at 30 July 2011, he was aged 15 years. He was waiting at the bus stop on the northern side of Liverpool Street. He heard a noise but, by the time of the trial, could not remember anything about the noise except that it was loud and that it was coming from above. He was already looking at The Hyde building at that time. He looked up and saw a body coming down (T464).
344 Apart from the body, Mr Yoshioka also saw an object but did not know what it was. He saw the body hit the ground. After the body hit the ground he heard another sound but could not remember what that sound was.
345 After the body hit the ground Mr Yoshioka looked up and saw a man tilting forward. Straight after that he saw the man with two hands up. He demonstrated the man’s action with what would commonly be described as a fist-pumping action, punching into the air (T466). He recalled that the man was not wearing a top. After the man leaned over the balcony and then did the fist pumping action, he went back inside (T466.49). Mr Yoshioka said the man was on the balcony for approximately two seconds, maybe a bit more, before he went inside (T471.21).
346 Mr Yoshioka left straight away because his bus arrived. However, as the bus went up Oxford Street, he saw an ambulance and police vehicles going the other way. He decided he should get off the bus and go back to the scene. He gave his contact details to police. Approximately a week later he was contacted by police. He said went to a police station and told them what he had seen. The police took notes but did not ask him to sign them, as he was too young. It was only in August of this year that he received a request from police to make a formal statement (T468.49).
347 Mr Strickland called for the notes taken when Mr Yoshioka went to the police station a week after the event. The Crown was unable to produce any such notes.
348 Mr Yoshioka did not hear any noise from the body other than the sound it made when it hit the ground (T469). The body did not look like it was struggling or moving at all. It was falling (T470.33).
349 In cross-examination, Mr Yoshioka did not accept that he was mistaken about the fist pump movement. He did not agree that he saw the man with arms outstretched (in the manner later demonstrated by the accused in his evidence) (T471.47).
350 The policeman to whom Mr Yoshioka spoke at the scene was Detective Paul. He said he took no notes other than contact details and a date of birth. On 4 August 2011, Detective Paul made an entry on Eagle that Mr Yoshioka had seen the body fall (exhibit 13). However, no statement was taken from Mr Yoshioka until about two years later.
351 Mr Strickland submitted that Mr Yoshioka’s evidence directly contradicts Mr Rathmell’s evidence. He relied on the fact that Mr Rathmell described the accused as having gone back into the apartment in “a fluid motion”, whereas, on Mr Yoshioka’s account, he remained on the balcony throughout the time it took the body to fall and for a couple of seconds thereafter. Mr Strickland said that, adding the time it took the body to fall (of 3.7 seconds) to Mr Yoshioka’s 2 seconds, the accused was on the balcony for 5 seconds, which he submitted was inconsistent with Mr Rathmell’s description of the man immediately bouncing back into the apartment after unloading the object.
352 I am not persuaded that is an inconsistency, let alone one that speaks of unreliability. Mr Rathmell’s description of “a fluid motion” must be assessed in the context that his attention was mainly focused on the man, whereas Mr Yoshioka followed the path of the body to the ground. Mr Rathmell’s view of the body was obscured before it hit the ground. It may well have landed before, on Mr Rathmell’s account, the accused pushed against the railing and turned to go back into the apartment. His impression of immediacy could well comprehend a period of 5 or 6 seconds.
353 A similar consideration arises as to the fist-pumping action described by Mr Yoshioka. I have considered whether such an action is inconsistent with Mr Rathmell’s account. Mr Yoshioka’s description of the action was convincing. It is not irreconcilable with Mr Rathmell’s evidence. Mr Yoshioka viewed the incident from a more acute angle than Mr Rathmell. To some degree, he was better placed to see horizontal movement while Mr Rathmell was better placed to see vertical movement. Mr Yoshioka may, from his angle, have percieved a pumping movement of the accused’s hands not perceived by Mr Rathmell. Mr Rathmell may, in turn, have been better placed to see the “grasping” action demonstrated by a placement of hands as if on a railing and may have missed a pumping action, depending on the angle of the action. The pumping action described by Mr Yoshioka may have been part of the “pushing off from the railing” action described by Mr Rathmell.
354 Mr Yoshioka’s account of a fist-pumping action speaks of triumph or anger in the accused. However, I am wary of relying on it as a gesture of that kind. Mr Yoshioka may equally have observed a gesture of despair consistent with the accused’s version of events. My conclusion in respect of Mr Yoshioka’s evidence is that, whilst I accept it as an honest and careful account, it neither supports nor derogates from either the Crown case or the defence case.
355 The third person who saw Lisa Harnum’s body fall was Ms Cheryl Hardy. Ms Hardy was staying at the Hyde Park Inn on Elizabeth Street that day. The face of that hotel is perpendicular to that of the building known as The Hyde. Ms Hardy was looking in the direction of The Hyde at about 10 am and saw a body falling from that building towards the ground. She said that the body was not moving at all, except down. The arms and legs were not flailing at all. She heard no sound like screaming coming from the body. She saw the body hit the ground. She also saw a white object that hit the ground separately from the body.
356 The two council labourers Mr Rathmell saw were Mr Wayne Steel and Mr Paul Baker. They were called by the Crown as witnesses at the request of the accused. They were working on a pavement near the pedestrian entrance to the Museum railway station at the south-west corner of Hyde Park. Mr Steel said that he heard a noise “like a squawk” and then straight after that heard a thump (T423.35). He said that the noise came from up high. Mr Baker also heard a noise coming from above him. He described it as “sort of a groan” (T426.32). He agreed that it was a deep guttural type noise (T427.34).
357 Neither Mr Steel nor Mr Baker remembered any person telling them he had seen the body fall (T423-425; T426-428)
358 On the application of the Crown (T3.15), I went to inspect apartment 1503 and the point in Hyde Park identified by Mr Rathmell as the position from which he saw the accused on the balcony. Mr Strickland did not oppose that application (T24.26).
359 The inspection took place on the afternoon of 25 October 2013. Outside the unit, I was shown the position where the pinhole camera had been located. I was also shown the door of unit 1504, where Mr and Mrs Glanville lived.
360 I was asked to observe the different lighting on the external wall when the door to apartment 1503 is opened (T363.50). That was relevant to an analysis of the events depicted on the CCTV footage, but the Crown ultimately submitted that it would be unsafe for me to place any reliance on the lighting alone to determine when the door was open or shut. In particular, there was evidence that the foyer had sensor lights (exhibit 53).
361 Detective Weekes pointed out where the two internal cameras were and stated that, at the time the unit was first seen by police on 30 July 2011, one was pointed towards the kitchen and one was pointing down the length of the loungeroom. There was a small study off to the right from the entrance to the apartment. I was shown where the computers had been. I was also shown a point in the ceiling where police understand the external hard drive was hidden.
362 I was also shown the balcony. At the time of the inspection by me, different furniture was placed in that area. The furniture on the balcony as at 30 July 2011 was as depicted in exhibit M.
363 On both the Crown case and the case for the accused, the space through which Lisa Harnum’s body exited the balcony was not in dispute. It is depicted in exhibit M in the top left hand corner. The Crown case is that the accused lifted Lisa Harnum’s body over the top of the glass panel depicted in that photograph and unloaded her from the building. The case for the accused is that she climbed over that same panel and onto the awning below, from which she either jumped or slipped. The inspection gave me an opportunity to consider those two scenarios.
364 Mr Strickland pointed out that, on the left hand panel of the balcony, there is no ledge on the outside, whereas there is a ledge on the right hand side (T367.1). He also invited me to consider the view staring down for someone standing at the left hand panel. I noticed that, standing back from the panel, it can readily be seen that the awning is a metal structure with open slits and curving down at the outer edge towards the ground. Viewed from that perspective, it was my impression that one would not think it was safe to stand on (in fact, the evidence of Dr Gibson was that the awning is capable of bearing a load of up to 110 kg (T1266.49) and the accused gave evidence that he and Lisa Harnum had seen maintenance men standing on the awning at times).
365 In any event, the significance of that observation is that the awnings have a considerably more solid appearance from the perspective to which Mr Strickland invited my attention, looking down over the edge of the balcony at all of the awnings in alignment.
366 The Crown invited me to consider in my own mind the possibility of a person reaching over to grab someone who was lying horizontally on the awning (T367.15). I observed that a person on the balcony would have no prospect of reaching anywhere near a person lying on the awning. The awning sits below the level of the balcony. This point is perhaps best explained by reference to exhibit M, in which the edge of the awning can just be seen protruding past the bottom railing of the balcony, but that photograph does not fully convey the perspective from the position of a person standing at the glass panel.
367 From the balcony, Detective Weekes pointed out the position from which Mr Rathmell made his observations and the location of the two council labourers, Mr Steel and Mr Baker.
368 The inspection then moved to Hyde Park. I stood at the point identified by Detective Weekes as the point identified to him by Mr Rathmell. As the inspection took place in late October after a warm spring, the trees between that point and The Hyde apartment building at that time had a lush growth of green leaves. I was shown a photograph of the same trees taken on 30 July 2011, in the middle of winter. The trees had no leaves at that time.
369 At the time of the inspection, the lowest balcony that could be seen with a view unobstructed by leaves was the 17th floor. The accused and Lisa Harnum lived on the 15th floor.
370 Mr Strickland’s closing submissions noted a number of matters as to the evidence of Mr Rathmell which draw support from the opinions of Dr Kemp. The inspection assisted my consideration of those submissions. First, Mr Strickland noted that Mr Rathmell had no more than a fleeting glimpse of the event and saw it only once. Second, he was about 93.6 metres away (exhibit 47). I found that bare measurement less helpful in describing the impact of distance on the reliability of the evidence than the assistance I obtained from the inspection.
371 The opportunity of standing at roughly the point where Mr Rathmell says he stood had a profound impact on my assessment of his evidence. Assuming he stood where I stood and observed the accused on the balcony of unit 1503 on a clear day, I am persuaded that he had a good opportunity to make the observations he described in his evidence. The clarity of the view from that point to a balcony one or two stories above unit 1503 (the view of that unit presently being obscured by green leaf growth) surprised me. I have given careful consideration to the physical constraints to observation described by Dr Kemp of time, distance and visual obstruction from trees. Those considerations have not caused me to doubt the clarity of Mr Rathmell’s view of the action he saw.
372 However, it is also necessary to consider the impact of those features in the context of the phenomenon of post-event misinformation explained by Dr Kemp. Mr Strickland also relied on the so-called ambiguity of the event, to adopt Dr Kemp’s expression. As already explained, the ambiguity perceived by Dr Kemp was based on what I would regard as a misapprehension of Mr Rathmell’s evidence. Separately, however, Mr Strickland noted that Mr Rathmell had at first described the object as “rubbish” and later as “luggage”. He also noted that, during the walk-through, Mr Rathmell said he thought there may have been “several items” of luggage. Mr Strickland referred to aspects of the language used by Mr Rathmell at various times suggesting doubt or uncertainty as to what he had seen. Finally, Mr Strickland noted that I should be wary of the seductive impact of a confident eyewitness. He noted that Dr Kemp’s research reveals that witnesses who have acquired false memories can be very confident as to the reliability of what they recall. It does not of course follow that all confident witnesses are unreliable – that would be a false syllogism.
373 I have given careful consideration to the matters raised by Mr Strickland by reference to the opinions of Dr Kemp. Those matters have not shaken my assessment of Mr Rathmell as a reliable witness. The fact that he resiled from his description of “one item or several items” in his evidence at the trial is interesting. The one piece of post-event information he is known to have received is that the item “or several items” of luggage he perceived falling were in fact a single human body. His initial perception that he may have seen more than one object is perhaps not inconsistent with the way in which a limp body may have tumbled over two awnings before falling to the ground. I do not think it is a feature of his account that undermines the reliability of his evidence. My assessment of Mr Rathmell is not based on his degree of confidence but on a careful analysis of the content of his description of what he saw, particularly his faithful description of something he later knew was wrong (that he thought it was a junkie throwing rubbish out a window). Far from revealing contamination by post-event information, in my assessment that account revealed that he took care to record his actual observation with accuracy.
374 Mr Strickland submitted that, on the strength of the evidence of the eye witnesses, Lisa Harnum must have been rendered unconscious before she fell off the awning of the 15th floor. He relied on that as an inherently implausible feature of the Crown case.
375 The descriptions of two of the eyewitnesses (Mr Yoshioka and Ms Hardy) certainly suggest that Lisa Harnum was unconscious as she fell to the ground. Mr Rathmell’s account was silent as to whether the body was moving as it fell. He was focused on the man. He described hearing a scream but was clear that it was a male voice he heard (T248.1; T248.22; T266.34). The parties accepted that his evidence as to the scream was consistent with either case.
376 On the accused’s case, if Lisa Harnum was unconscious as she fell, she must have been rendered unconscious by hitting the awning on the 14th floor. Injuries consistent with such a collision are shown in exhibit R. As already noted, the accused said she looked at him from the awning and Mr Strickland specifically led evidence that the accused saw her face at that point (T732.16; T742.9).
377 Mr Strickland’s point was that, on the Crown case, it was most likely that Lisa Harnum was rendered unconscious in the apartment. He noted that Dr Gibson, a biomechanical engineer called in the defence case, had suggested that if she was conscious when she was being lifted over the balcony, she would have struggled. Dr Gibson expressed the opinion that a struggling, conscious victim would most likely make the unloading action described by Mr Rathmell ineffective and not result in a clean fall (exhibit 42, paragraph 63; T1200.29). Whilst I accept that as a matter of common sense, it is hardly a matter calling on Dr Gibson’s specialised knowledge.
378 Mr Strickland noted that there was no evidence of any injuries inflicted on Lisa Harnum before she was thrown over the balcony such as may have rendered her unconscious. He asked rhetorically how, if she was unconscious, does one explain the fact that she was holding a handbag.
379 The evidence of the forensic pathologist who performed the post mortem examination, Dr Bailey, was that Lisa Harnum died of multiple blunt force injuries consistent with a fall from height. That evidence neither supports nor excludes the proposition that she was rendered unconscious in the unit. As to the handbag, according to the accused she had it when she attempted to leave the unit by the front door. It is possible, if she was quickly made unconscious after being dragged back inside by the accused, that he then carried her body to the balcony, handbag and all. That is perfectly plausible, in my assessment of the evidence. If he grabbed her in a haste of rage, he would scarcely have stopped to spare the handbag.
380 I accept that Lisa Harnum was unconscious by the time she fell from the awning. I also accept that, if the Crown case is to be accepted, she was probably (but not necessarily) rendered unconscious in the unit. However, I do not think that is an implausible feature of the Crown case. Indeed, one might equally consider the inherent implausibility of a conscious person who had fallen sideways onto the awning by accident and who wanted to stay alive simply slipping over the edge, neither screaming nor putting up an almighty struggle to hold on. In my view, there is nothing inherently implausible in the proposition that Lisa Harnum was quickly and easily rendered unconscious by the accused after he dragged her back into the unit.
381 In addressing this submission, I have been careful not to reverse the onus of proof. I understand that it is for the Crown to prove its case beyond reasonable doubt and I accept that a circumstantial feature of the case is the likelihood that Lisa Harnum was rendered unconscious in the unit. I am simply rejecting the submission that that is inherently implausible.
382 A further matter relied upon by Mr Strickland as an inherently implausible feature of the Crown case was the absence of any evidence whatsoever of a struggle. Mr Strickland submitted that, whether Lisa Harnum was conscious or unconscious as she fell, there must have been a desperate struggle between her and the accused in those final 69 seconds.
383 Photographs of the unit show that the whole area was indeed immaculately neat (exhibit Y). Mr Strickland noted that there was no evidence of blood, ripped clothes or any injury to the accused (exhibit 7). He reminded me in that context of Lisa Brown’s evidence that she was surprised at how strong Lisa Harnum was for someone so lean (T161 to T164.14), suggesting that she would have been well able to defend herself. He also noted that there was no evidence of any struggle or the displacement of any object on the balcony.
384 Whilst I accept that the absence of any evidence of a struggle is a relevant factor, I do not think it renders the Crown case inherently implausible. A person can be rendered unconscious without any struggle at all. It is relevant in that context to note the speed and strength with which the accused was able to overcome Lisa Harnum as she ran for the lift, as depicted in the pinhole camera footage.
385 The question of consciousness leads me to another submission made by Mr Strickland as to the alleged unreliability of Mr Rathmell’s evidence. As already noted, the accused called evidence from an expert biomechanical engineer, Dr Thomas Gibson. Dr Gibson has extensive qualifications in the areas of accident reconstruction, biomechanics and injury causation. His expertise in those fields is beyond question.
386 The principal purpose of Dr Gibson’s report was to provide an opinion based on the trajectory of Lisa Harnum’s fall. He did so by reference to three scenarios assumed by him, namely, that Lisa Harnum was “thrown” from the balcony; that she was “unloaded” from the balcony, and that she fell after having climbed over the balustrade. Dr Gibson expressed the opinion that it is unlikely she was thrown. He said that the scenarios of being unloaded and falling after climbing over the balustrade of her own accord were equally likely having regard to the trajectory of her fall (exhibit 42). To that extent, his evidence was uncontroversial and was embraced by both parties. The Crown did not allege that the accused threw Lisa Harnum from the balcony in the sense in which that term was evidently understood by Dr Gibson.
387 Dr Gibson noted that the freefall of an object is a matter of basic physics. The trajectory of the fall is a function of the initial velocity of the object, the height of the fall and gravity. Where the initial velocity has a horizontal component, the trajectory of the fall is parabolic (exhibit 42, paragraph 41). In order to express his opinions as to the likely trajectory of the body, it was necessary for Dr Gibson to postulate assumptions as to the initial horizontal velocity of the body. For that purpose, he drew on the work of Cross, who measured the horizontal velocity achieved by a large strong male throwing a 61 kg female into a swimming pool using a variety of techniques. The maximum throw speed achieved was 4.85 metres per second using a “spear throw” technique with an efficient hold on the body of the volunteer allowing the thrower to push the volunteer in such a way as to avoid rotation of the body and taking several running steps before the throw.
388 Dr Gibson calculated that a trajectory from the top of the balustrade to the position at which Lisa Harnum landed (eight metres from the front edge of the building) would have required an initial horizontal velocity of about 2.6 metres per second. At that horizontal velocity, the body would have cleared both awnings (exhibit 42, paragraph 51). He said the required horizontal velocity to miss the 15th floor awning was approximately 1.62 metres per second (exhibit 42, paragraph 53; T1064.10).
389 Whilst acknowledging that this was within the maximum throw velocity achieved in the tests conducted by Cross (of 4.85 metres per second), Dr Gibson thought the difficulty of the throw in the present case, particularly having regard to the need to clear the 1.15 metre high balustrade, rendered a clear throw unlikely (exhibit 42, figure 5 and paragraph 52). Without doubting the force of that opinion, I would observe that the female volunteer in the tests conducted by Cross was 61 kg (exhibit 42, paragraph 44) whereas Lisa Harnum was only 50 kg as at the date of her death.
390 Cross conducted separate tests also referred to by Dr Gibson as to the velocity at which subjects can be “pushed”. For those tests, he used small female subjects of 48-52 kg. However, Cross noted that the reduced horizontal velocity achieved by pushing (of about 1.5 metres per second) is due to the fact that the feet remain on the ground during the push. There is no suggestion that Lisa Harnum was pushed with her feet remaining on the ground. Dr Gibson’s reliance on that data for comparison with the unloading action described by Mr Rathmell was, with respect, speculative to some degree. In any event, I accept that it is unlikely that Lisa Harnum was thrown clear of both awnings by the unloading action described by Mr Rathmell.
391 The second trajectory postulated by Dr Gibson involved the body falling from the balustrade and coming into contact with each of the awnings on the 15th and 14th floor. He said (exhibit 42, paragraph 52):
For the falling body to contact both the first and second awnings, requires a low horizontal velocity during the fall between the 15th and 14th floors. Due to this horizontal velocity, Ms Harnum most likely dropped onto the 15th floor awning, which halted or slowed her fall, and then slid off the edge of the 15th floor awning to fall almost vertically to hit the 14th floor awning. It is possible that sliding off the edge of the awning with low horizontal velocity could induce some rotation of the body. Such rotation is also consistent with Ms Harnum attempting to hang onto the 15th floor awning before slipping and falling off.
392 Dr Gibson volunteered that this second trajectory was not consistent with the description of the witness, Mr Rathmell, who did not recall the object hitting either awning (T293.43). In saying so, I think Dr Gibson strayed outside his province as an expert witness. I would prefer to rely on my own assessment of the consistency of Mr Rathmell’s description with the kinematics of the fall.
393 Dr Gibson divided the second trajectory into three sections, from the balustrade to the first awning (1.5 metres); from the first awning to the second awning (3.03 metres with a fall time of .8 seconds) and from the second awning to the ground (42.5 metres with a fall time of 2.5 seconds).
394 As already noted, he thought that, in order to collide with the second awning, the body had to have a low horizontal velocity as it left the first. He said (T1067.37):
The low horizontal velocity of this section of her fall is likely due to her having slipped over the edge of the awning of the 15th floor.
395 His opinion that the body probably “slipped” is consistent with either a conscious or an unconscious body.
396 Dr Gibson expressed the opinion that the collision with the second awning deflected the vertical fall, reducing downward vertical velocity and giving the body the required horizontal velocity to land where it did (exhibit 42, paragraph 61). He stated that the second fall trajectory entailing an initial horizontal speed of less than 1.62 metres per second was consistent with the unloading scenario suggested by Mr Rathmell, again adding the uninvited observation that Mr Rathmell did not see Miss Harnum collide with the two awnings. Dr Gibson stated that the second fall trajectory was also consistent with the scenario described by the accused.
397 It is clear enough from photographs in evidence that the awning on the 14th floor was slightly dislodged (evidence of Constable Nayel at T482; exhibit O). The awning on the 15th floor was dislodged to a lesser degree (exhibit 24; exhibit 30, photograph marked A by the accused at T877.39). There was no evidence as to the degree of force that would be required to cause such displacements.
398 Mr Strickland submitted that, if I were to accept that Lisa Harnum hit the 15th floor awning, it followed that Mr Rathmell’s evidence was demonstrably unreliable. He noted that, according to Dr Gibson, it is unlikely that the body merely glanced or clipped the 15th floor awning as opposed to dropping onto it and sliding off the edge, since on that scenario, the initial horizontal velocity would have tended to take the body further away from the front of the building such that it would most likely have missed the 14th floor awning (T1066.44).
399 The burden of the submission was that Mr Rathmell’s evidence must be unreliable because he obviously missed something. Lisa Harnum probably collided with both awnings as she fell, and he failed to observe or failed to perceive or failed to remember any such collision. That is plainly a relevant factor in assessing the reliability of his evidence. However, it does not follow inexorably that his evidence must be rejected. A credible account does not have to be a perfect account.
400 On my assessment of the evidence, 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. On the accused’s version, Lisa Harnum lay horizontally on the awning of the 15th floor “momentarily” (T771.29), long enough for him to push himself up on the balustrade, hook his foot under the treadmill (T744) and reach down with his arms to try to save her (T775.30-46). I accept that those steps described by the accused may have happened in very short succession but his account plainly contemplates a slower series of events or a less fluid fall than that postulated on the Crown case.
401 Two pieces of evidence to be reconciled, if they can, are that the body did in fact probably collide with both awnings and that Mr Rathmell did not perceive those collisions. It is more likely that he would have failed to perceive that contact if events happened quickly than if Lisa Harnum momentarily lay on the 15th floor awning in the manner described by the accused, looking at his face. An interesting feature of Mr Rathmell’s evidence is his initial description of what he saw as having the appearance of a man throwing rubbish out the window. That perception is more readily understood if what he in fact saw was a sliding, unconscious body rather than the series of events described by the accused. It must be remembered that Mr Rathmell has always said his attention was on the man, not the object. I do not think the fact that Mr Rathmell did not see or perceive any contact between the body of Lisa Harnum and either awning renders his evidence demonstrably unreliable.
402 The accused tendered a report from an expert optometrist, Professor Stephen Dain (exhibit 43). He was not called as a witness and I do not think either party addressed his evidence in submissions. Professor Dain appears to have made an assumption that, on the accused’s version of events, Mr Rathmell would have seen two objects (the accused and the body of Lisa Harnum) one behind the other (paragraph 17). I do not think that assumption is established on the evidence. Professor Dain explained that, from a distance, it is easy to discern which of two objects is nearer and which is further away but that the identification of any separation of two such objects is much less easily made (paragraph 29). Whilst I accept that evidence, I do not think it is of much assistance in my determination of the issues in this trial. On my assessment of the accused’s evidence, there would have been some vertical distance between the accused’s outreached hands and Lisa Harnum’s body when she lay horizontally on the awning (so that the two objects were not “one behind the other”), whereas on Mr Rathmell’s evidence she was held across the accused’s arms at the height of his elbows.
403 According to the accused, what Mr Rathmell in fact saw (contrary to his evidence) was a conscious Lisa Harnum lying on the awning looking at the accused while he balanced himself precariously on the edge of the balustrade reaching down towards her. The distance from the top of the balustrade to the awning is 1.51 m (exhibit 42, paragraph 58). That is nothing like what Mr Rathmell says he saw.
404 Lisa Harnum died almost instantaneously as a result of the injuries she sustained in the fall. An orthopaedic surgeon, Dr Angus Grey, was in a car in Liverpool St at that time and saw her body hit the ground. He pulled over and found Lisa Harnum lying on her side, her back and one leg clearly broken. He quickly assessed that she had no cardiac output and attempted cardio-pulmonary resuscitation. She had a flailed chest (meaning that the ribs of both sides of the chest were broken). She also had a fracture dislocation of the spine, which is an indication of tremendous injury. She had no pulse.
405 The accused said that, as soon Lisa Harnum hit the ground, he ran straight to the lift. He said that the reality of what he had just witnessed was sinking in and he could not explain what he was doing at that time. While he was waiting for the lift, he noticed that he had no shirt on. The lift was not coming so he ran back inside and grabbed a shirt. Those movements are captured on exhibit Z.
406 Police obtained CCTV footage of the accused in the lift on the way down to the ground floor (exhibit AA). The accused said that he did not remember how he felt when he went down in that lift (T734.49). It is difficult to describe his actions in the CCTV footage. He is alone in the lift. In what is plainly an unguarded moment, he appears to be throwing his arms in frustration. As the lift nears the ground floor, he composes himself and straightens his shirt before running out into the foyer as the doors open. I am mindful of Mr Strickland’s reminder that I should be wary of placing too much weight on demeanour or my own expectations as to how the accused ought to have reacted at that time on his version of events. The requirement to exercise caution is not, however, a direction to ignore relevant evidence. I consider that the CCTV footage in the lift shows the accused in a state of anger or remonstration with himself. I have, however, borne in mind that such emotion is not necessarily inconsistent with the accused’s version of events and that anger may be an aspect of grief.
407 Mr Lachlan Langdien was having breakfast with his girlfriend at the Canopy Café on Liverpool Street that morning. He heard an unusual sound and turned to see Lisa Harnum on the ground. He saw a handbag lying on the pavement some distance from the body. He also saw a shoe in the same vicinity. He collected the handbag and the shoe and placed them on the ground near the body. The handbag did not contain Lisa Harnum’s passport. (A sketch plan of the location of those items was tendered as exhibit DD; photographs of the contents of the handbag were exhibits FF and HH).
408 Mr Langdien saw the accused coming out of The Hyde building. He estimated that it was at least five minutes between when the body hit the ground and when the accused came out of The Hyde, possibly even longer (T309.52). The CCTV footage shows that was an overestimate. Mr Langdien agreed that the accused said “she fell from the 15th floor”. He thought the accused went to around about where the body was.
409 Mrs Rae Cornish was also having breakfast at the Canopy Café. She was sitting with her husband (then her boyfriend) inside the café. At some stage, her boyfriend said that it appeared somebody had jumped from the building. She raced over to the body. She saw that the woman appeared to have broken her back. A doctor arrived and she stayed near the doctor to stop people from getting in his way. At some stage she saw the accused coming out of the building. She could not say the exact time between when the body hit the ground and when he came out of the building but said “it seemed like quite a long time” (T 313.50). She said that the accused came out of the building at “a slow stroll”, which she found odd. She said it was a slow stroll, then a pause (T314.5).
410 Mrs Cornish said that the accused stopped about three metres back from the body. She asked who he was and he said he was the fiancé. He strolled up closer to the body but then turned around and started to walk back inside. Mrs Cornish followed him and asked how far the girl had fallen. He said she lived on the 15th floor.
411 There was CCTV footage in evidence taken from a camera in the foyer of The Hyde (exhibit BB). The footage was played to Mrs Cornish in cross-examination. It shows the accused jogging through the foyer. Mrs Cornish was asked whether the action she had described as “the slow stroll” was the action she saw him do in that footage. She explained that she did not see the full run from the building. She was helping the doctor. She turned around and the only time she saw the accused was within a few metres of where she was. She said “it was only a very slow walk at that time”. By reference to the video, she said that she only saw probably the last five steps, which was a slow approach to the body.
412 The video shows the accused walking back into the building being comforted by Mrs Cornish and then shows him walking out again. She said that the accused spoke to Lisa Harnum at that point, saying “come back baby, come back”. She said that at that point in time he was kneeling down next to Lisa Harnum poking her head in a very unusual poking manner to the point where the doctor asked her to get him out of the way. She remembered saying to the accused “just let them do their job”. The witness illustrated that evidence by poking the middle of her own forehead quite hard repeatedly with her forefinger (T315.26). She agreed that she had told police that the man “knelt down next to the lady and started touching her head” (T316; exhibit 46). The notes do not make reference to the poking action.
413 The accused denied poking Lisa Harnum’s head in that way (T742.4). I accept the evidence of Mrs Cornish on that issue. I accept that the action she described reveals that he was angry at that time but I accept that anger is not necessarily inconsistent with grief.
414 The concierge at The Hyde that morning was Mr Daniel Ratcliffe. He saw out of the corner of his eye an object falling on the footpath and later realised it was Lisa Harnum. He then saw the accused entering the foyer from the lifts. He said that the accused seemed to be in complete shock and disbelief. I understood his evidence to be to the effect that the accused was running when he entered the foyer but that he then walked outside, sat down next to Miss Harnum and started stroking her hair (T319.24). Mr Ratcliffe said he did not have any conversation with the accused (T319.36; T329.27).
415 A third year medical student also happened to be outside The Hyde apartment building when Lisa Harnum’s body fell. Dr Kieran McCaffrey, now a qualified medical practitioner, said that he heard a very loud sound behind him and turned to see the body on the ground. He said there was a qualified doctor who appeared to be feeling for signs of life (presumably Dr Grey). At some stage, Dr McCaffrey noticed the accused appear next to him. Dr McCaffrey said that the man did not initially identify himself as Lisa Harnum’s fiancé. Dr McCaffrey said (T346.8):
He asked initially what happened and I didn’t answer him. Shortly after he walked around and then mentioned that that was his fiancée on the ground.
416 Dr McCaffrey said that the man seemed “fairly calm about what had happened”. He said “he didn’t look upset. He didn’t look panicked.” (T346.37).
417 Dr McCaffrey asked the accused to get a first aid kit. The accused returned shortly afterwards without the first aid kit. He said that the accused crouched down next to Lisa Harnum holding her head and saying “she’ll be ok”. Dr McCaffrey agreed that he could not say whether the accused was in deep shock when he saw him. He did not see the accused poking Lisa Harnum’s head with any force. He just remembered his hands on her head.
418 Some of those events were captured on CCTV footage taken from the foyer of The Hyde apartment building (exhibit BB). The footage shows the accused for extended periods while being spoken to by police and sitting alone at times. Whilst certain observations can be made as to his demeanour during that period, I do not feel confident drawing any conclusions on that basis.
419 The post mortem examination was conducted by a forensic pathologist, Dr Bailey. Dr Bailey concluded that Lisa Harnum died of multiple blunt force injuries consistent with having fallen from a height. Apart from a non-toxic level of paracetamol, no alcohol or drugs were detected in her blood (T523.7). She had abrasions and bruising to her face consistent with impact with a flat surface or broad edge. Dr Bailey agreed that those injuries could be from striking the awning during her fall (T524.9; exhibit R).
420 The accused’s apartment was cleaned every Saturday or Sunday by Ms Tien Dang. As at 30 July 2011, she had last cleaned the apartment on Sunday 23 July 2011 (T375.22). Ms Dang stated that she dusted along the handrail with a wet cloth. On the glass part of the balcony, she said she cleaned “just the top” (T377.1).
421 Police examined the balcony for fingerprints. The examination was conducted by a Crime Scene Officer attached to the Fingerprint Operations Section of the Forensic Services Group, Ms Lisa Gordon (T486.5). Ms Gordon was eminently qualified in that role. She attended the unit at 4pm on 30 July 2011 (T486.45).
422 The balcony has a glass pane and a horizontal metal railing. Ms Gordon said those are both exceptionally good surfaces for obtaining fingerprints because they are smooth and fingerprint powders adhere well to them (T508.45).
423 Ms Gordon examined the entire internal surface of the glass pane including all four sides of the railing (487.45). She also examined the entirety of the three vertical pillars up to the height of her colleague, who is 5’10” (T487.30). Leaning over the balcony to the exterior surface, Ms Gordon examined all the way across and as far down as she could reach, which was approximately 30cm down (T487.20). She did not examine the external awning (T547.45).
424 Ms Gordon said that she was unable to obtain any fingerprints from the treadmill due to its dust-resistant surface (T496). She agreed that there were a lot of smudged areas on that surface due to sweat (T548.05).
425 Ms Gordon was able to obtain a number of fingerprints and palm prints from the glass which she compared with samples received from the accused and from Lisa Harnum (T488.15). She identified no fingerprints or palm prints as belonging to Lisa Harnum on any part of the balcony (T488.15). Ms Gordon acknowledged that the absence of prints does not establish that a person has not touched a surface. I have considered her evidence on that issue. Nonetheless, the absence of any prints of Lisa Harnum on the balcony is a relevant piece of evidence. Miss Harnum could not have done what the accused says she did without touching the glass panel of the balcony.
426 Ms Gordon found a number of fingerprints and palm prints which she identified as being those of the accused. Her results are set out in exhibit P (and see exhibit U). The position of prints identified as either belonging to the accused or having ridge detail consistent with his prints is depicted in exhibit Q. Subject to one issue, I have ultimately concluded that those results are consistent with both the Crown case (Mr Rathmell’s description of the man grasping the railing) and the case for the accused (the action of jumping up onto the balustrade). However, it is necessary to consider the impression identified as W7.
427 W7 is an impression found on the inside of the glass panel with ridge detail consistent with the left palm of the accused. Ms Gordon gave evidence as to the alignment of that print. She described it as pointing diagonally downwards. Mr Strickland submitted that the orientation of that palm impression is more consistent with the action the accused would have had to make to ease himself back down off the balustrade than with Mr Rathmell’s description of a fluid motion in which the accused turned and went back into the apartment. I have carefully examined the placement of all of the impressions recorded on exhibit Q. I am unpersuaded that any of those prints points to one scenario rather than the other. I do not think W7 is inconsistent with anything said by Mr Rathmell and I do not think it necessarily supports the evidence of the accused.
428 Police did not take possession of the awning or take any steps to have it forensically examined for fingerprints or dust particles or marks matching Miss Harnum’s shoes (T583, T586.12; photographs of the distinctive soles of the shoes may be seen in exhibit 16).
429 Mr Strickland submitted that a deficiency in a police investigation and a resulting absence of evidence to refute an accused’s version of events can allow the tribunal of fact to find the existence of a reasonable doubt as to the guilt of the accused. He submitted that the failure to examine the awning in this case fell into that category.
430 Mr Strickland relied upon two authorities to support that submission: Thwaites v The State of Western Australia  WASCA 197 and Mahmood v Western Australia (2008) 241 ALR 606. Those decisions acknowledge a principle that a seriously deficient investigation or a significant absence of evidence may entitle an accused to an acquittal. The principle is probably best understood as an aspect of the over-arching requirement for a fair trial and is enlivened where the police investigation is so deficient as to threaten that right.
431 I do not think the principle is enlivened in the present case. In my view, the criticism implicitly directed at police during the trial was unwarranted. Even if the version of events given by the accused at the scene ought to have alerted them to the significance the awning would assume in this trial, which may be doubted, the fact is that on either case Miss Harnum probably came in contact with the awning. I do not think the fact that it was not examined should of itself excite a reasonable doubt.
432 The first police to arrive at the scene were Detective Rex and Detective Paul (T456.35). The accused was standing on the street when they arrived. Detective Rex approached the accused and they had the following conversation (T457.21):
Rex: Mate, do you know her?
Accused: She is my fiancée, is she alive? Please just tell me.
Rex: I’m not sure at this time, mate, they are working on her. Come inside so we can talk. How far has she fallen?
Accused: From the 15th floor.
433 They then went into the lobby area of The Hyde apartment building and had the further following conversation:
Accused: Is she alive? Can you find out? What happens now? Why would she do this? Oh my God.
Rex: I will find out what I can as soon as I can, okay? What is happening is we are erecting a crime scene out the front. Can you tell me your name?
434 Detective Rex took the accused’s details. He then learned from Detective Paul that Lisa Harnum had died. He obtained the accused’s consent to search his apartment. Detective Rex then went to make a phone call while the accused had a conversation with Sergeant Wall, as follows (T447.10):
Wall: My name is Brett Wall. I am a Sergeant from Surry Hills Police. I will explain to you what is going on.
Accused: Is she dead?
Wall: I believe so.
435 The accused then asked the concierge for a glass of water. The conversation continued (T447.21):
Wall: We are beginning an investigation on behalf of the Coroner. We investigate all types of deaths, so that will involve getting statements from witnesses and documenting the locale of any such incident.
436 Detective Rex then returned and they went into the library area of the foyer. After speaking to police outside, Sergeant Wall had a further conversation with the accused in the library. He said the accused was sitting at the table and continually saying, “Baby, baby, baby, I can’t believe it.” Sergeant Wall said the accused repeated that a number of times. The conversation continued (T447.45):
Wall: Is there anything we can do for you, contact anyone?
Accused: I’m just worried about her family. Her mum is going to be devastated and her brother.
437 Sergeant Wall said the accused kept repeating “Baby, baby, baby, I can’t believe it” and that at one stage he dropped his head into his hands and said, “Oh, my goodness.” The accused then said (T448.3):
She just walked out onto the balcony, she got over the rail. I said, ‘What are you doing?’ I tried to grab her but I couldn’t hold her. She was on the phone to her mother last night. It is going to break her mother’s heart. She was laughing. It is like she knew it was the last conversation they would have. It is like God knew.”
438 It was put to the accused in cross-examination that he was trying to convey to the police that Lisa Harnum had committed suicide. That certainly appears to have been the implication. The accused denied it (T777.30).
439 Having told police that Lisa Harnum was on the phone to her mother laughing the previous night, the accused was committed to maintaining that account at the trial. As already noted, he gave evidence that he heard Lisa Harnum laughing on the phone a short time after 5 am that morning (T727.7). I do not accept that evidence. Mrs Harnum dismissed with derision the suggestion that Lisa laughed or giggled during their last conversation (T341.12). I think the accused deliberately inserted that detail to coincide with what he said to Sergeant Wall, carefully accommodating the actual time of Lisa Harnum’s last call to her mother as revealed in the Telstra records (exhibit 45).
440 Sergeant Wall said the accused continued saying “Baby, baby, baby, no” or “Baby, baby, baby, I can’t believe this”. The conversation continued (T448.16):
Accused: I hope the cameras inside the unit worked.
Wall: Are there cameras inside the unit? How many?
Accused: Two, there is no hole in the door, so there is a camera at the door to see who is there.
Wall: Where is the other camera?
Accused: It is at the door, but it faces inside.
Wall: Are they hooked up to a computer?
Accused: It has its own system.
Wall: Does it record?
Accused: Sometimes it does, sometimes it doesn’t.
441 As already noted, the accused gave evidence that he knew, when he left the computer room at 5.15 am after watching porn, that the internal cameras were off. He said that, when he spoke to Sergeant Wall, he was hoping that he had accidentally not turned it off “and it would have shown what had taken place” (T838.26). I do not accept the accused’s evidence on that issue. As he himself acknowledged, he knew at 5.15 am that the cameras were off. He must have known that when he volunteered information about the cameras to police later that day. The Crown did not rely on that evidence (or indeed any alleged lies) to prove a consciousness of guilt on the part of the accused. As already noted, it is important for me to bear in mind the cautious approach that should be taken to the use of lies. As noted by Mr Strickland, a person can have many reasons for telling a lie.
442 Detective Rex returned to the library and spoke to the accused further, as follows (T459.29-T460.10 and T476.12):
Rex: Simon, I’m sorry to have to tell you this but Lisa has passed. The forensic team will be conducting an examination of your unit shortly and a report will be made for the coroner.”
Accused: Okay. Just check the cameras.
Rex You have cameras inside the unit?
Rex: Okay, do they record?
Rex: Did you tell Sergeant Wall this, the officer in uniform?
Rex: Okay, so we can direct the forensic team, can you just tell me what happened?
Accused: We had a fight last night. We just worked out it was better for her to go home to Canada. Sometimes it is me who wants to break up with her, sometimes the other way. I woke up this morning and she was packing her bags. I said, ‘Let’s not break up.’ She said, ‘No no.’ I know it is just an act. She always wants me to beg when she gets the upper hand. Neither of us slept last night and we were talking. She said, ‘You told me to leave, and I’m leaving.’ She grabbed her black handbag and went to leave through the front door. I stopped her. She started to raise her voice, and she was yelling. And I yelled back, ‘Shut the fuck up.’ I was in the kitchen. I saw her pass towards the balcony. I remember thinking ‘what is on the balcony?’ I saw her step over the railing onto the little cliff face. I ran towards 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 a handbag or jacket and then she was gone.
443 Police then went to the accused’s unit. Apart from the footage from the pinhole camera (exhibit Z), only one other clip of CCTV footage from the accused’s apartment from the morning of 30 July 2011 was recovered. It was from one of the cameras inside the unit and was of about 30 minutes duration commencing at 4.45 am (T574.42 to T575.7). That footage had been shot through the camera that had a view towards the kitchen. No movement can be seen in that clip. No analysis was done of the settings on the accused’s computer for the cameras inside the unit or the pinhole camera (T575.35). As already noted, the accused explains that footage by reference to the fact that he turned the cameras on while he was watching porn, in case Lisa Harnum walked in on him during that time.
444 For at least the last five days of Lisa Harnum’s life, the pinhole camera was on continuously (T577.9). During that time, there were only two clips taken from the interior camera pointed towards the kitchen, being a clip of about four seconds on 23 July and the clip of about 30 minutes commencing at 4.45 am on 30 July (T577.21). During the same period, there was no footage from the other camera inside the apartment. There were five clips located from deleted material on the computer but none of those related to 30 July (T578).
445 The accused was taken to Surry Hills police station where he was spoken to by the officer in charge of the investigation, Detective Sergeant David Weekes. Detective Weekes had the following conversation with the accused (T353.31):
Weekes: I’m Detective Weekes from Surry Hills detectives. This is Constable Rex. Are you Simon Gittany?
Weekes: I am very sorry about the death of Lisa Harnum, however, at this point you are under arrest as a suspect regarding her death. You do not have to say or do anything, do you understand that?
Weekes: Anything you say or do will be recorded and may be used in evidence, do you understand that?
Accused: Is this so you can keep me here, stop me from leaving?
Weekes: Your arrest is due to certain information I have received. You will be formally entered in custody and I will speak to you again later.
446 The accused told police how to operate the computer system but did not tell them about the hard drive (T474.2 and accused’s evidence). By the time they learned of its existence and went back with a second search warrant, it was no longer there (T475.41).
447 The hard drive was brought to Court by Mr Craig McCoy, an IT consultant who grew up in the same area as the Gittanys. He had been asked by Anthony Gittany to examine it. Mr McCoy found nothing of relevance to the issues I have to determine (T954-957; exhibit 37). He found no deleted files. The Crown cross-examined him as to whether the hard drive had the appearance of having been completely and utterly wiped at some stage. He did not think it did (T960.5). The hard drive became an exhibit (exhibit 38) and was uplifted for examination by the Crown, with no different result.
448 Ultimately, neither party placed any reliance on the content of the hard drive. The evidence of Mr McCoy was relied upon principally for what it allegedly showed as to the accused’s state of mind. Mr Strickland submitted that the accused would not have asked his brother to collect the hard drive if he had the slightest concern as to what it might show. The Crown put, in effect, that the accused’s absence of concern on that issue merely confirmed how confident he was, when he spoke to police shortly after Lisa Harnum’s death, that he had switched off the internal cameras at 5.15 that morning. Each contention has some force. I have not ultimately placed any reliance on the evidence as to the hard drive.
449 Detective Weekes executed a search warrant at apartment 1503. He took a series of photographs (exhibit Y). He found a large number of suitcases and boxes packed with women’s clothing, shoes and personal items. Lisa Harnum’s passport was located in a travel bag inside the unit.
450 Although the accused was taken to Surry Hills Police Station on 30 July 2011, he was not charged that day. He returned to the family home at Merrylands. His sister, Barbara Gittany, described how he was that evening. She said that he was crying and rocking back and forth saying “baby, baby, what were you thinking?”
451 Miss Gittany said (T999.46 to T1000.11):
When he came home that evening he told us that they had had an argument and that she went out the door, and he put his hand around her and brought her back in. Then he said they went inside and she sat on the lounge in the lounge room. He went to make her a cup of tea and as he was obviously making the cup of tea Cecilia got up and ran towards the balcony. And he thought, “What is on the balcony? Where is she going? What is on the balcony?” couldn’t understand where she was going on the balcony and then he realised there is nothing on the balcony.
So he went running towards the balcony and Cecelia was on the other side of the balcony or going halfway over, her legs were on the other side. She lost her footing and fell on the balcony or the awning part, the one down the bottom. He was trying to help her, trying to he kept saying he was trying to get her, “I couldn’t get her, I can’t understand why I wouldn’t get her, it was like I was grabbing her. She was holding on the bottom of it by the time and she went. He told us he screamed out her name. That is what he told us.
452 Miss Gittany said that the accused told her he thought the cameras were on “that evening”. When asked to clarify the time at which the cameras were on, she gave a curious answer (T1002.34):
Q. he told you that he thought that at the time of Lisa Harnum’s death the cameras had been on?
A. Yes, that is what he told the policeman, so he told us that, yes.
453 On 1 August 2011, the accused sent a text message to Mrs Harnum as follows (exhibit GG):
Dear Joan I am heartily sorry for this tragic accident! But I could do nothing to save her. I wanted to call you strait away but the police specifically told me under no circumstance am I allowed to call you, answer your calls or reply to your messages as they wanted to inform you instead. I asked that they told Jason first so he could come be with you when they told you so you were not on your own. We loved each-other immensely & as you know were going to get married next year. I am so so so sorry for this unfortunate accident. I know you hate me right now & I understand. My mum and my dad have lost a daughter and my 4 sisters and brother have lost a sister and we are all devastated. If there is anything I or my family can do please contact me or a family friend. We want to assist in anyway in relation to her funeral or anything else we can help with. My life has also ended as she was my life.
454 The accused was charged with the murder of Lisa Harnum on 3 August 2011. On that occasion, he declined to be interviewed by police.
455 As submitted by Mr Strickland, a critical issue is Lisa Harnum’s state of mind on the morning of 30 July 2011. Mr Strickland relied on a wealth of material as informing that issue. Indeed, a large amount of the evidence led on behalf of the accused was directed to establishing aspects of Lisa Harnum’s various mental and emotional states.
456 The accused called evidence on those issues from an expert witness, Professor Louise Hay. Professor Hay is a psychiatrist with expertise in the study and treatment of eating disorders (exhibit 40). She expressed the opinion that Lisa Harnum suffered from anorexia nervosa and that her condition was chronic. There was ultimately no real contest as to her opinion on that issue and I accept it.
457 Professor Hay’s opinion was based on a series of assumptions set out in exhibit 39 and on aspects of Lisa Harnum’s medical records over an extended period (exhibit 50).
458 Mrs Harnum confirmed that Lisa Harnum had an eating disorder as a teenager. She had two admissions to hospital for anorexia in 1999 and 2000 (T97.5). She went through periods where she overcame the disorder. At other times, emotional upsets triggered its return, such as when she had issues with Frank Breen (T98.28). It was a condition which waxed and waned throughout her adolescence and her adult life (T90.7). She was evidently struggling with the return of the disorder in February and March 2011 and was consulting Mr Bablys on those issues. In March, Mr Bablys asked her to write out lines “I am ok eating” with her non-dominant hand, which he said was to “recalibrate her thoughts” and to “relax her nervous system” (exhibit 21, T436-437).
459 The accused relied upon Professor Hay’s evidence to establish that there are four features in people who suffer from chronic eating disorders relevant to my assessment of the issues in this trial. They are an increased risk of unpredictable and impulsive behaviour; a diminished ability to cope with unpleasant emotions including fear and despair (described as maladaptive coping mechanisms); extreme sensitivity in response to changes in external environment and experiencing greater than usual stress from interpersonal conflict. I accept Professor Hay’s opinion that those are features she has identified, based on her training, study and extensive clinical experience, in people who suffer from chronic eating disorders by comparison with a hypothetical normal person.
460 The accused also adduced evidence directed to proving that Lisa Harnum had certain dangerous tendencies. It was contended that she had a tendency to place herself in a position of danger or potential danger; to self-harm and to attempt suicide. Mr Strickland submitted that the tendency evidence corroborates or confirms that the features of people with eating disorders described by Professor Hay were manifest in the conduct of Lisa Harnum.
461 The alleged tendency to self-harm and to attempt suicide may be considered briefly. The contention that Lisa Harnum had a tendency to attempt suicide is, in my assessment of the evidence, completely unfounded. Not a single witness provided the remotest support for that proposition. Mrs Harnum dismissed it out of hand (T90.11). Asked whether Lisa had ever told her she had cut her wrists she said that, when Lisa was younger, she had marked her wrists with a pin at the urging of another girl, who was from “group homes” (T105.12).
462 Mr Bablys said that Lisa Harnum did not complain to him of any suicidal tendencies or any intention to self-harm (T430 to 432). Gisele Pratt had never heard Lisa Harnum say anything to suggest that she was suicidal; she never appeared to her to be depressed. Ms Pratt described Lisa Harnum as a happy, bubbly person, very personable and very warm (T226.49). Ms Sharwood noted that Lisa Harnum was not thinking of harming herself.
463 There was evidence in the Crown case from a Dr Lam of the Sydney CBD Medical Centre. Lisa Harnum had consulted him in August 2010 and in June 2011. She had not complained to him of depression or exhibited any signs of suicidal tendency or an intention to self-harm.
464 The supposed suicidal tendency was evidently based on three medical notes from 1999. One is a history of Lisa Harnum denying any recent self-harm but admitting having cut her wrists at the age of 16 (page 36 of exhibit 50). One appears to be an admission note, possibly recording the same history (page 55 of exhibit 50). The last is a reference to Lisa Harnum experiencing fear during a group therapy session that another patient’s conduct would trigger self-harm (page 47 of exhibit 50). I do not think that material provides any basis for concluding that Lisa Harnum had suicidal tendencies or a tendency to self-harm in 2011. All of the more recent evidence of people who knew her well is to the contrary.
465 There is more substance in the contention that Lisa Harnum had a tendency to place herself in a position of danger or potential danger. The accused described a number of incidents involving moving cars. Mrs Harnum acknowledged that Lisa had told her about an occasion or occasions when she got out of a moving car. She could not recall whether that was when Lisa was with the accused or a previous boyfriend called George (T91-22).
466 The accused described an incident in early 2010 when he and Lisa Harnum were travelling in a taxi with George Karam and Rachelle Louise. He said that they had been at the Ivy and that George and Cecilia were arguing. The accused was in the front seat. George and Lisa Harnum were in the backseat. As they were pulling up next to Pitt Street, before the taxi had come to a stop, Lisa Harnum opened the door and jumped out of the car as it was still in motion. He said that he would only be guessing what speed the car was going but thought it was around 10 km per hour (T682.35). Neither George Karam nor Rachelle Louise gave evidence but no inference is to be drawn from their absence.
467 The accused gave evidence of a further occasion in mid 2010 when he and Lisa Harnum were travelling on Parramatta Road with Peter Morgelas. The accused was driving. The accused and Lisa Harnum started arguing because Lisa was worrying about getting back in time to collect a dress. He was telling her to be quiet and she was getting annoyed with him for telling her to be quiet. As they were driving down Parramatta Road she took off her seatbelt, started to raise her voice, hit the dashboard with her hands and opened the car door. The accused said she put her left leg on the edge of the door and held the handle of the door with her left hand. She started to scream. He put the brakes on. As soon as he did that, she was pushed forward and hit the dashboard. The accused said that the car was going at about 40 km an hour when she opened the door but said that was also a guess (T683.49).
468 Mr Peter Morgelas also gave evidence of that incident. He said that the accused was going to Strathfield Car Radios and he went along for the ride. Cecilia mentioned that she wanted to pick up a skirt from the tailor. The accused was telling her that she did not need it that day. They continued in an exchange along those lines. Mr Morgelas said the accused was not shouting, it was “just his usual calm voice” (T1083.40).
469 Mr Morgelas said that Lisa Harnum became “real upset in a split second”. She raised her voice, hit her hands on the dash and opened the door, releasing the seatbelt and placing one hand out on the outside of the car. He said that she stuck her head out, “actually got herself off the seat” and he noticed that she was looking back at them. The accused hit the brakes and she leant back into the seat.
470 Mr Morgelas estimated that the car was travelling at approximately 50 km per hour at that time (T1084.11).
471 Mr Morgelas gave evidence of two other times when Lisa Harnum’s voice became very loud very quickly, which he described as her “going off” (T1084.38). He agreed that it was the sort of spat that a lot of couples have (T1086.46). That evidence was presumably led to establish that Lisa Harnum shared the features of other sufferers of eating disorders described by Professor Hay. However, without knowing what prompted Lisa Harnum to become upset on those occasions, it is difficult to make too much of that evidence.
472 As to the incident in the car, Mr Morgelas said “if I had to judge it I don’t think she was going to jump out of the car”. He appeared to think that she was just seeking attention (T1087.35).
473 The accused also described an incident when Lisa Harnum ran across George Street after becoming upset because a man bumped into her and she wanted the accused to say something but the accused would not. The accused said she started to raise her voice and got up out of her chair and took off out of the coffee shop, running straight across the road on to George Street. He said she was “slightly looking to the right or left, not looking properly” and that a car came “pretty close to her” (T685.1).
474 Finally, the accused gave evidence of an occasion towards the end of 2010 or early 2011 where, after becoming annoyed at the accused, Lisa Harnum remained silent during a 40 minute trip to his parents’ house. He said that, when they arrived, as he pulled into the driveway, she jumped out of the car and ran while the car was still moving at an estimated five or 10 km an hour (T686.34). According to the description given by the accused of the incident which gave rise to Lisa Harnum becoming annoyed at that time, it amounted to no more than Lisa Harnum having trouble putting something in the glove box and getting annoyed when the accused handed her a second item while she was still struggling with the first.
475 The accused said that, when Lisa Harnum opened the door and got out of the car, she screamed out “help” (T688.25).
476 Barbara Gittany gave evidence of the same incident. She is one of the accused’s younger sisters. She described an occasion when Lisa and the accused arrived in the morning at the family home in Merrylands. She was waiting out the front for them when they arrived. Simon was driving and was slowing down. Miss Gittany said that she saw Cecilia open the passenger door, jump out of the car with her bag, yell “help” and run down the street. She thought the car was moving at approximately 10-15 km per hour. Ms Gittany screamed out Cecilia’s name as she ran down the street. She then went back inside and called Cecilia on her mobile phone. She asked “are you ok?” and Cecilia replied “yes”. Cecilia said that she was on Merrylands Road getting herself a hot chocolate.
477 Ms Gittany agreed in cross-examination that, when she jumped out of the car, Lisa Harnum did not fall or stumble. She agreed that Lisa “just jumped out of the car and ran away” (T993.17). On that basis, I think Miss Gittany’s estimate that the car was then still travelling at 10 to 15 km per hour must be wrong. To maintain her balance at that speed, Lisa Harnum would have had to hit the ground at a running pace. On that basis, whilst I accept Miss Gittany’s account of the incident, I think it is likely that the car was moving very slowly by the time Lisa Harnum got out. I have reached the same conclusion in respect of the incident with George Karam described by the accused.
478 Ms Gittany spoke to Lisa Harnum later on that day. She asked whether she was ok and whether she had hurt herself. Ms Harnum responded “no, thankfully, I’m ok, but sometimes I do silly things” (T930-932).
479 In my view, the evidence of those events does establish that Lisa Harnum was prone to act impulsively and perhaps dangerously when she was upset.
480 Finally on the issue of Lisa Harnum’s emotional state, Mr Strickland relied upon the iPod recording (exhibit LL; T22.1) as some evidence that Lisa Harnum is an emotional person. A report from Mr Ajoy Ghosh, an expert sound engineer, established that the recording was made on Lisa Harnum’s iPhone and somehow came to be stored on the accused’s iPod (exhibit MM).
481 A relevant consideration in assessing the recording is to know whether either of the participants knew they were being recorded. Mr Strickland invited me to listen carefully to the very beginning of the recording, which I have done. As submitted by him, it sounds as though the accused is talking or making strange noises in his sleep. That coincides with one of the video clips on exhibit 22 in which Lisa Harnum makes fun of strange noises made by the accused in his sleep. It seems likely that Lisa Harnum was deliberately recording those noises. However, I think it is likely that she either believed she had turned off the recording mechanism or forgot that it was on. The subsequent conversation does not seem to me to be one in which either party was conscious of the fact that they were being recorded.
482 Both the Crown and the accused placed reliance on that recording as revealing aspects of the relationship allegedly consistent with their own case. I have ultimately concluded that the recording is of no assistance in resolving the issues in this trial. I do not think it reveals that Lisa Harnum is a particularly emotional or over-sensitive person, as submitted on behalf of the accused. Nor do I think it shows the accused privately rejoicing in Lisa Harnum’s loneliness and isolation, as submitted by the Crown. I have not been confident to draw any conclusions from the content of that recording.
483 Mr Strickland submitted that all of those features of Lisa Harnum’s background inform the critical events of the last days of her life. He relied upon a series of aspects of those days as pointing to an overwhelming likelihood that Lisa Harnum was in a highly distressed state by the morning of 30 July 2011 such as to trigger the kind of reactions explained by Professor Hay.
484 The critical features relied upon by Mr Strickland to inform Lisa Harnum’s state of mind at that time were first, the serious recent conflict the couple had experienced which had led Lisa Harnum to take steps to leave, including giving the two pillowcases of clothes to Lisa Brown and placing a bag in storage. Secondly, the further conflict and argument when the accused discovered she had taken those steps. Thirdly, her discovery of his very intrusive behaviour of monitoring her text messages. Mr Strickland submitted that must have fed Lisa Harnum’s fear and distress about his controlling behaviour and probably led to a concern as to whether other aspects of her life were being monitored. As submitted by both parties, the torn-up note about the surveillance cameras suggests that Lisa Harnum was in a state of great fear of the accused that morning (exhibit S). Then, the further conflict on the morning of 30 July following his use of the computer in the early hours of the morning and his confronting Lisa Harnum as to whether she had changed the password.
485 And finally, the act of serious aggression of the accused in physically restraining Lisa Harnum from leaving the apartment and dragging her back inside with his hand over her mouth, coupled with the remarks made by the accused after that occurred. Mr Strickland noted that, having dragged her back into the apartment the accused only expressed embarrassment at the likely response of the neighbours. According to the accused, he then insisted that it would all be easier if she would just tell him the secret, as if she was somehow to blame for his act of aggression. Mr Strickland submitted that those were insensitive and incendiary remarks which would have fuelled Lisa Harnum’s feelings of fear and despair.
486 Mr Strickland submitted that the combination of those events as experienced by a woman with the kind of tendencies attributed to people suffering from eating disorders by Professor Hay, and with the tendency to over-reactive, risk-taking behaviour described by other witnesses makes it plausible that Lisa Harnum’s reaction to the extreme circumstances in which she found herself was for her, on impulse, to run to the balcony and climb over the balustrade to get onto the awning. He submitted that the Crown has not eliminated the reasonable possibility that Lisa Harnum was so distressed, fearful or desperate that she believed her only option was to escape the accused by leaving the apartment via the awning.
487 Mr Strickland noted five objective features of the awning which support his submissions. First, the awning is lower than the ground level of the balcony. The difference is in the order of about 36 cm (T1159.24). Secondly, whereas on the right side there is a small ledge that a person could conceivably stand on (of a few inches width), there is no such ledge on the left side. Mr Strickland submitted that those two features could explain why Lisa Harnum’s leg buckled as she landed on the awning, according to the accused.
488 A third feature of the awning is that it runs the length of the 15th floor of The Hyde apartment building (exhibit 44), a feature relied upon by Mr Strickland as suggesting the possibility that she may have been trying to get to another unit. Fourthly, the awning itself was a solid structure and, fifthly, it was a structure on which, according to the evidence of the accused, Lisa Harnum had previously seen maintenance or cleaning staff walking without harnesses.
489 I accept that Lisa Harnum was plainly in a state of great fear by the morning of 30 July 2011. However, my assessment of her conduct over the previous few days is that, unlike previous occasions on which she had perhaps behaved impulsively, she was calmly collecting her strength on this occasion. She was quietly determined to leave.
490 There is a further consideration. I have stood on the balcony at the point where Lisa Harnum is said to have climbed over the balustrade, according to the accused. I simply cannot accept that any person with a will to survive could have regarded it as an option for escape. The difficulty of the manoeuvre and the giddy distance to the street below put the notion of escape by that means beyond rational contemplation. The accused’s alternative suggestion that Lisa Harnum took that step in order to frighten him or as a cry for attention may be dismissed as fanciful.
491 Lisa Harnum may have been impulsive, maladaptive and oversensitive; she may have been in a state of acute fear and despair but I do not think she was deranged. One would have to be in a completely deranged mental state to climb over that balustrade in order to escape, frighten someone or as a cry for attention.
492 Mr Strickland also suggested the possibility that Lisa Harnum climbed onto the balcony because she intended to kill herself. I do not think any of the evidence I have considered in this trial sustains even the slightest possibility that that was so.
493 Finally, Mr Strickland submitted that it is inherently implausible that the accused would have been so enraged as to unload his fiancée from a balcony in full public view on a Saturday morning on a very busy street in the middle of the CBD.
494 He submitted that there is nothing at all in the history of their relationship to suggest that the accused was physically violent towards Lisa Harnum except in the act of dragging her back into the apartment that morning. (It was later clarified that the submission was directed to there being nothing of that kind in the history of what Lisa Harnum had told Lisa Brown, Michelle Richmond and Helen Sharwood. With that qualification, the point is of little weight).
495 The simple fact is that Lisa Harnum did fall from the balcony. She either climbed over the balustrade of her own accord or was lifted over it by a deliberate act of the accused. One or other of them did something shocking and entirely unpredictable that morning.
496 Many of the factors as to Lisa Harnum’s extreme state of mind that morning also reflect on the likely state of mind of the accused. I do not have any doubt that, at the point when he restrained her from leaving the apartment, grabbing her by the face and dragging her home, he was in a state of uncontrolled rage. Mr Strickland resisted that proposition. He noted that the accused had never stopped Lisa Harnum from leaving before. In a sense, that is the point. Previously, the combination of surveillance and persuasion had served him well. As submitted by the Crown, this time was different.
497 I am satisfied, as put to the accused by the Crown in cross-examination, that the accused had lost control of his temper at that point. Although that was not the case put on his behalf, my conclusion to that effect raises the need for me to consider the partial defence of provocation under s 23 of the Crimes Act 1900.
498 It is appropriate for that purpose to have regard to all of the evidence about the relationship. On that approach, Lisa Harnum’s conduct in hiding bags of her possessions apparently in readiness for a hasty departure, involving a personal trainer from his gym in those arrangements (with possible reputational damage for him), changing the password on the monitoring program to the word ‘TRUST’ and making arrangements with her mother to book flights all amount to conduct which, taken together, could be regarded as likely to have provoked the accused.
499 I should also consider the last events of that morning including the evidence of the accused that Lisa Harnum rolled her eyes at him when he sought to reach out to her on the issue of his conduct in monitoring her messages, her dash to the door and her conduct (established by independent witnesses) in banging on the door of the neighbours screaming for help. Having regard to the subjective attributes of the accused including his admitted jealousy, his controlling behaviour and his expectation that his partner should listen to him at all times, I do not think I can eliminate the reasonable possibility that the accused’s conduct that morning was the result of a loss of control induced by the conduct of Lisa Harnum.
500 However, I am satisfied beyond reasonable doubt that Lisa Harnum’s conduct was not such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill or to inflict grievous bodily harm on her. The accused’s views as to the degree of surveillance and control a person is entitled to exercise over his or her partner are not to be attributed to the ordinary person. Accordingly, if the elements of the offence of murder are otherwise made out, the defence of provocation must be rejected, in my view.
501 Lisa Harnum was trying to leave the accused on the morning of her death. He stopped her with an act of serious aggression. There is no doubt in my mind that he was in a state of rage at that point and that he had lost control of his temper. According to the accused, after dragging her back into the apartment, he let her sit down, made some insensitive remarks and went to make her a hot drink. The proposition that he was able to bring himself under control so quickly after the struggle at the door is inherently implausible and I reject it. I do not accept his evidence that Lisa Harnum climbed over the balustrade. I do not entertain a reasonable doubt about the accuracy or reliability of the evidence of Mr Rathmell. I cannot know exactly what happened in that apartment in the minute or so following the struggle at the door, but I think it is likely that Lisa Harnum was at some point rendered unconscious. Based on my assessment of all of the evidence, I am satisfied to a point of actual persuasion and beyond reasonable doubt that the accused maintained his rage and, in that state, carried her to the balcony and unloaded her over the edge. It follows that I am satisfied beyond reasonable doubt of the elements of the offence. I find the accused guilty of the murder of Lisa Cecilia Harnum.