Innocent Until Proven?

Source: SMH/Dallas Kilponen

On 27 November 2013, Simon Gittany was found guilty of the murder of his girlfriend, Lisa Harnum. On 11 February 2014, Gittany was sentenced to 26 years in prison, with a non-parole period of 18 years. In a case that is of such great interest to the public, it is human nature to take a side. In this instance, the general public had pretty much already decided that Gittany was guilty. Is that fair? It is a cornerstone of any modern legal system that a person has the right to a presumption of innocence. Was Gittany robbed of this? Is it realistically possible to be tried objectively?

It’s not quite Underbelly, but it’s pretty close.

It is with a giddy fascination that we follow cases such as Gittany’s. We love to be entertained by the follies of the rich and beautiful, and a crime of passion fuelled by the jealousy of a controlling boyfriend is the Everest of courtroom clichés. The media attention surrounding this case rivals some of the other famous criminal cases in Australian law – the cases against Gordon Wood and Lindy Chamberlain in particular. And, of course, with such great media attention comes great prejudice; whether caused by biased reporting, or just people quick to come to their own conclusions, we will undoubtedly see Gittany through a biased lens.

Gittany’s defence was quick to apply for a trial in front of a judge alone, as opposed to in front of a jury – usually in criminal matters that reach the Supreme Court, the accused must be tried by a jury, but the defence relied upon legislative provisions to get around that. This application was based upon two grounds – Gittany did not have the funds to hire legal counsel for the amount of time a jury case can stretch to, and because of the Gittany’s poor public image following an early trial-by-media. Against the wishes of the prosecutors, this application was granted in October last year. And so, Gittany sidestepped his worst-case scenario – being tried in front of a jury who are already convinced of his guilt.

In 1995, 25-year-old model Caroline Byrne was found dead at the bottom of a cliff at The Gap in Sydney. In 2008, Gordon Wood was convicted of her murder and spent three years in prison. In the thirteen years between hear death and Wood’s conviction, the case took many spectacular twists and turns, and similarly to the case of Simon Gittany, it was of great public interest. This can be credited to the high-profile personalities associated with the case – union kingpin Graham Richardson and shonky investor Rene Rivkin, just to name a couple – and to Caroline Byrne’s beauty and modelling career.

It’s not quite Underbelly, but it’s pretty close.

Originally, Byrne’s death was ruled to be suicide. Her father campaigned for years, eventually gaining the support of Christian Democrat Fred Nile, which led to the case being reopened and Wood being charged with her murder. Wood was tried twice – the first declared a mistrial, as one juror had already become so convinced of Wood’s guilt that he began to bully the other jurors into agreeing with him. You really can’t make this stuff up. Again, the presumption of innocence that Wood was entitled to – regardless of whether or not logic would contend that he committed the act – was compromised by the same elements that compromised Simon Gittany.

In 1980, two-month-old Azaria Chamberlain was killed during a family trip to Uluru. This is a story that we all know pretty well, and it’s another example of a criminal case that took many twists and turns, and was followed closely by the Australian people – however, in this circumstance, it was the bizarre Chamberlain family and the tragedy of the Azaria’s death that led to heightened public interest, as well as the decision to broadcast the findings of the initial inquest on television.

Even after 32 years, this case still manages to find new ways to captivate us – in 2012, the findings from yet another inquest were handed down, this time concluding that Azaria was killed by a dingo. With such a huge profile, how could Lindy Chamberlain possibly be tried objectively by anyone? It’s simply impossible to ignore the intense media storm that follows an important criminal trial, let alone a matter that would become embedded in the very roots of Australian popular culture.

These cases are all related in that they have attracted huge public interest. And yes, it is important that the community at large is involved – to an extent – in the sentencing and punishment of criminals – after all, the courts in theory are designed to act on our behalf. One might argue, however, that the amount of public insight into criminal matters has proven so extensive that it has begun to compromise the strength of an accused’s defense.

What I’m saying here is that the right to a fair trial may be escaping us. Our access to information is now so immediate, and so simple, that before a matter can be objectively judged, we’ve already made our minds up. The presumption of innocence only exists in matters hidden from the public, or of so little consequence that nobody cares enough to read about them.

This is not a proclamation of Simon Gittany’s innocence. It is merely a reminder that, at the end of the day, unless new evidence is brought forward, only two people will know what happened in that room, and unfortunately one of them is now deceased. Yes, we can make informed assumptions – Gittany was a controlling, abusive boyfriend, and there is no doubt at all that Lisa Harnum’s death was a tragedy, caused in some part by him.

However, the fact remains that in November last year, when Justice McCallum handed down her verdict, all that was decided was that it was ‘beyond reasonable doubt’ that Gittany murdered Lisa Harnum, not that he ‘definitely’ did it. A small distinction, perhaps, but a distinction nonetheless.

You can find Gittany’s sentencing hearing here, and a copy of Justice McCallum’s original judgment here. Gordon Wood’s 2008 sentencing can be found here, and a copy of Lindy and Michael Chamberlain’s appeal to the High Court can be found here.