Simon Gittany guilty – how the judge decided

 In Decision-making, Insights, People decisions, Realizer Blog

Simon Gittany guilty – how the Judge decided

The whole of Australia has been following this sensational murder trial, where Simon Gittany was found guilty of throwing his fiancée Lisa Harnum off the balcony of their 15th floor apartment one Saturday morning in July 2011.

Unfortunately for Gittany there was a surprising array of useful evidence, in particular:

  • Eyewitness testimony of the events on the balcony.
  • Video of Gittany grabbing Lisa round the face and dragging her back into their apartment when she ran for help to a neighbour – recorded on one of three surveillance cameras he’d installed.
  • Video of Gittany coming out of his apartment after the fall, then going back in to put a tshirt on before heading downstairs to see the body.
  • Forensic analysis of the balustrade which showed none of Lisa’s fingerprints.

Yesterday the judge gave her verdict and reasoning over a 5 hour period. You can read all of it online if you have a couple of hours to spare. It makes sad but fascinating reading – better than any crime novel.

I wanted to highlight some aspects of the judge’s decision-making and see what we can learn from it.

Reliability of memory & eyewitness testimony

First of all is the question of how much weight she gave to different bits of evidence. In particular, the testimony of the key witness who reported seeing Gittany “throw some rubbish off his balcony”. The defence brought a memory expert to the stand to talk about the lack of reliability of memory, the judge considered this and discarded it, concluding that the eyewitness had a consistent and reliable memory. Given a large and alarming body of evidence around the unreliability of eyewitness testimony, it was good to see this very issue brought up to ensure the judge could consider the likely reliability of the eyewitness testimony. If there is to be an appeal, expect this testimony to be crucial. Without it, it’s much less likely he would have been found guilty beyond reasonable doubt.

Implication for every day: We are all over confident in our own memory. When it comes to decisions at work, we often remember being supportive of what turned out to be the right solution, even though others may remember us having actually supported the other option. Keep a record of decisions so you can learn when you got it right and wrong, and improve.

Judgements of the defendant’s character

The judge was consistently scathing of Gittany’s character and truthfulness. She caught him out on a few lies, and although the defence made it clear that just because you lie in one situation doesn’t mean you lie in all situations, or that you are a murderer. We all lie sometimes, and for a myriad of reasons. Again this was an interesting debate about truth and fiction, and it went against Gittany. It seems like the judge didn’t believe much of what he said, particularly around the critical times in the case. She commented that his versions of events lacked the clarity and subtlety of actual remembered events. Whilst, I don’t disagree with the judge’s verdict, it does seem possible that she formed an early negative impression of Gittany and interpreted his subsequent comments negatively.

Implication for every day: In interviews, the same thing can happen. Someone says one innocuous thing wrong at the start of the interview, and we write them off, just going through the motions for the remaining minutes. Practice behavioural interviewing to try and minimize bias.

Filling in the gaps to make a cohesive story

Court cases are about two sides telling a story of the events, and then trying to show their version matches the facts better and the opposition’s version is impossible. When it comes to history and court cases, we humans love to construct easy linear stories, where people are of consistent character and do things for logical reasons. Thus the idea that Gittany dragged her back into the apartment, and then within seconds was calmly making her a hot drink (his version of events) does not fit what we’d expect in that situation. If he was lying he didn’t pick a particularly believable lie.

Yet life isn’t always as straightforward as this, even though historians like to pick causal events – like how some say the assassination of Franz Ferdinand “caused” the First World War.

Implication for every day: you can actually leverage the brain’s ability to construct stories and fill in the gaps for good. A technique called the Pre-Mortem is where you imagine that something you’re working on has failed some time in the future and construct the story of why it failed. This technique surfaces many real risks which you might not have thought of without constructing the failure story.

Summing up

Are judges good decision-makers in the end?

Justice McCallum seems to have carefully weighed all the evidence. Even judges can be affected by factors they’re not aware of though: I refer you, my learned colleagues, to a ground breaking study of Judges’ decision-making which reveals their decisions can be heavily influenced by…wait for it…. whether they are tired or hungry!

Posted by Rob Pyne