1HER 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 [2013] 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.

2At 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.

3The 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.

4The 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.

5On 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.

6There 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) [2013] NSWSC 1599. The accused adduced a considerable amount of relationship evidence himself.

7It 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.

8The 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.

9The 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.

10Much 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.

11In 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.

12In 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) [2013] NSWSC 1599 at [26]).

13I 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.

14I 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.

15Mrs 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.

16It 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.

17Mrs 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.

18The 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.

19The 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.

20The 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.

21Lisa 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).

22Mrs 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).

23The 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.

24I 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.

25In 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.

26At 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.

27The 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.

28On 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!!!

29Lisa 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.

30Although 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.

31Probably 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).

32The 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.

33The 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).

34The 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).

35Each 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).

36Mr 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.

37Mr 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".

38Probably 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).

39The 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.

40Mr 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.

41Police 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).

42I 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.

43During 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.

44Mrs 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

45The 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.

46In 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).

47Mrs 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).

48Mrs 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).

49The 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.

50My 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.

51Mrs 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).

52It 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).

53Lisa 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).

54The 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.

55Mr 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.

56One 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.

57Mr 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.

58I 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.

59As 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.

60Lisa 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.

61Ms 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).

62Ms 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.

63Curiously, 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).

64With 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.

65The 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.

66Ms 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.

67Mr Strickland relied on that evidence as an illustration of Lisa Harnum being an unreliable historian.

68I 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.

69Lisa Harnum did not return to see Ms Sharwood again.

70In 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).

71The 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.

72I 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.

73By 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).

74The 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.

75In 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.

76Mr 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".

77Mr 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).

78I 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.

79The 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.

80Mr 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.

81Later 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.

82The 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

83The 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).

84That 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).

85Having 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.

86By 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.

87Ms 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.

88On 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).

89The 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.

90Notwithstanding 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

91Lisa 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).

92Michelle 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.

93The 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).

94In 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.

95Lisa 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.

96The 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!

97The 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).

98I 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.

99The 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.

100I 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).

101Lisa 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).

102She 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.

103However, 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.

104She 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.

105The 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.

106The 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).

107The 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.

108Ms 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).

109At 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).

110The 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.

111Ms 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).

112Ms 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.

113The 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.

114To the extent that those accounts differ, I accept the evidence of Gisele Pratt, who was a straightforward, intelligent and careful witness.

115Lisa 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.

116The accused denied ever discouraging Lisa Harnum from having any friendships. He denied doing anything to discourage Lisa's friendship with Gisele Pratt (T677.35).

117On 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.

118After 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).

119The 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).

120On 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.

121Ms 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).

122The 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.

123Having 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.

124Lisa 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.

125The 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).

126Mrs 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.

127It 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.

128Separately, 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.

129Lisa 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).

130Lisa 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.

131During 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.

132Ms 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).

133Ms 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).

134Lisa 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).

135The 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.

136During 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).

137Mr 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.

138Michelle 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.

139As 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.

140Lisa 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.

141Ms 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.

142Ms 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.

143Ms 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).

144The 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).

145Ms 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).

146Ms 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).

147Ms 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.

148Ms 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.

149Ms 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).

150Ms 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).

151The 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).

152Ms 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).

153Ms 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.

154On 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.

155The 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.

156Lisa 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).

157On 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.

158Lisa Brown gave evidence of a similar conversation with Lisa Harnum the following day (T145.20).

159Ms 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.

160It 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).

161However, 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.

162Ms 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).

163Ms 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.

164Ms 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).

165The 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).

166At 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

167She 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

168Mr 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.

169At 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

170Lisa 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

171Later 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.

172Lisa Harnum replied:

That's ok. Was wondering if everything was ok. Have a good night Michelle.

173Shortly 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).

174On 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.

175As 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).

176Lisa 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.

177Ms 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).

178Ms 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).

179Ms 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.

180Lisa Harnum told Lisa Brown that she was also going to place clothing in storage in Bondi Junction (T150.36).

181Ms 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.

182At 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).

183The 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.

184At 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

185Ms Richmond responded as follows (exhibit G):

Hi lovely you can call me I'm free now … Say little and just listen keep breathing Mx

186After 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).

187Ms 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.

188Michelle 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.

189The 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".

190The 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.

191The 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."

192Lisa 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).

193At 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".

194Ms 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.

195Ms 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).

196It 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).

197It 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.

198The 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.

199At 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).

200The 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."

201At 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?

202The 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.

203Mrs 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).

204Mrs 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.

205Mrs 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.

206Mrs Harnum said Lisa told her that, after that incident, she felt very afraid and very sad (T82.38).

207Mr 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.

208I 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.

209The 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.

210The 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.

211But 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.

212I 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.

213The 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.

214On 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).

215It 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).

216Mrs 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).

217Mrs 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).

218Mrs 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).

219Mr 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 Aust