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Representation: Counsel / Solicitors:
J Harris (applicant Robert Samuel Geeves)
M.P King (applicant Anne Margaret Geeves)
C Curtis (Crown on the application for costs only)
P Kerr (Crown at the trial)
Solicitors:
Legal Aid NSW (Robert Samuel Geeves)
Longman Hill Solicitors (Anne Margaret Geeves)
Office of the Director of Public Prosecutions NSW (Crown)

File Number(s): 2022/00128350
2022/00128454

Publication restriction: Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) applies to protect the identity of Amber Haigh’s child. Any publication of that child’s name or anything that might identify that child is prohibited.

JUDGMENT

1. On 4 May 2022, Anne Geeves (“Anne”) and her husband Robert Geeves (“Robert”) were arrested and charged with the murder of Amber Haigh. Amber has not been seen since June 2002. Her body has never been found. After a trial before me commencing on 21 June 2024 and ending on 14 August 2024, I acquitted them both of the charge of murder for the reasons set out in my judgment delivered on 16 September 2024: R v Geeves; R v Geeves (No 7) [2024] NSWSC 1168 (“the Judgment”).

2. Within the following two days, the solicitor for each applicant wrote to the solicitor with conduct at the Office of the Director of Public Prosecutions (“DPP”) seeking costs pursuant to s 3 of the Costs in Criminal Cases Act 1967 (NSW) (“the Act”) and enclosing consent orders to give effect to those applications. The arguments in support of the applicants were outlined in those letters. Self-evidently, the initiation of these applications was as fast as could reasonably be expected.

3. The DPP solicitor replied to this correspondence in March 2025 to the effect that the Crown would not agree to filing consent orders, given the granting of such a Certificate is a discretionary matter for the Court, (s 2 of the Act), but if applications to that effect were listed before the Court, the Crown would not oppose them.

4. On 6 March 2026, Anne filed a notice of motion seeking an order that the Court grant a certificate under s 2(1)(a) of the Act. That motion was supported by a lengthy affidavit of her solicitor, Clive Hill, affirmed 27 February 2026.

5. On 10 March 2026, Robert filed a notice of motion seeking an order in the same terms, supported by an affidavit of his solicitor at trial, Joanne Harris, sworn 10 March 2026.

6. The notices of motion were listed for hearing on 18 March 2026, in particular to clarify on the record the position of the Crown. Mr King appeared for Anne and Ms Harris for Robert. The Crown was represented by Ms Curtis on the application for costs only. Ms Curtis was not the Prosecutor at trial. Ms Curtis confirmed that the Crown did not wish to file any evidence or make any submission, other than to re-state that it was a matter for the Court whether to exercise the discretion to award costs or not.

7. Joint written applicants’ submissions dated 17 April 2026 authored by Michael King, counsel for Anne and Joanne Harris, solicitor for Robert were filed. These submissions were thorough, focused and well-directed to the issues I must consider before granting any such application.

8. Persuaded by those submissions, and for the reasons that follow, I have decided that the Certificates sought should be granted.

Principles and statutory framework

9. The provisions of the Act relevant to the applications are as follows:

2 Certificate may be granted

(1) The Court or Judge in any proceedings relating to any offence, whether punishable summarily or upon indictment, may—

(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or

(b)…

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.

(3) ….

3 Form of certificate

(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge granting the certificate—

(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and

(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.”

10. The Act should not be narrowly construed so as to defeat the achievement of its general purposes, which includes the beneficial purpose of conferring valuable privileges upon persons who succeed in criminal prosecutions: Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510 at [36]; Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 per Kirby P.

11. The applicants bear the onus of establishing that it was not reasonable to institute the proceedings. The Crown does not bear any onus of establishing the contrary proposition: R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 (“Manley”) at [15] per Wood CJ at CL and at [17] and [29] per Simpson J.

12. The task of the Court is to ask the hypothetical question whether, if the prosecution had the evidence of all the relevant facts immediately before the proceedings had been instituted, it would not have been reasonable to institute the proceedings: Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 559-560.

13. There is no exhaustive list of what constitutes the test in s 3(1)(a), but it is different to the test used by prosecution agencies (reasonable prospect of conviction), and it is different to the test formerly applied by magistrates under the Justices Act 1902 (NSW), (no reasonable jury would be likely to convict).

14. It is reasonable to expect a prosecutor to make some evaluation of the evidence: Manley at [12] per Wood CJ at CL.

15. Section 3 requires an objective analysis of the whole of the relevant evidence, including assessment of any inherent weakness in the prosecution case: Manley at [14] per Wood CJ at CL.

16. Section 3(1)(b) specifically recognises the right of a defendant to maintain some element of tactical surprise. However in circumstances where there has been deliberate withholding of information or positive acts done to mislead the prosecution, these may be acts or omissions that fall into the category of not being reasonable in the circumstances and so would be a disqualifying feature.

17. There is no suggestion that there was any such disqualifying matter relevant to these applications.

18. Delay in foreshadowing and making the application may be relevant to the exercise of the discretion as to whether to grant a certificate: Manley at [6] per Wood CJ at CL.

19. The judgment must deal with the matters for consideration in ss 3(1)(a) and (b) and must consider specifically the residual discretion provided in s 2.

The affidavit evidence tendered on the applications

(i) Affidavit of solicitor for Anne – Clive Hill

20. Mr Hill’s affidavit of 27 February 2026 provided an outline of the proceedings, including that Anne and Robert attended Young Police Station to report Amber missing. Despite two thorough investigations led initially by Sgt Crae and later, in 2005, Chief Inspector Cockram, charges were not laid until after a third strike force set up by the Unsolved Homicide Squad began sometime after in 2017 under the lead of Detective Senior Constable Amanda Cary (DSC Cary).

21. Mr Hill also relevantly stated that initially he was retained on and from 5 May 2022 on a private basis, and that his client Anne was refused Legal Aid on more than one occasion. He appended a tax invoice for work done not covered by Legal Aid between 5 May 2022 and 22 December 2022, being the date to which her ultimately successful Legal Aid application was backdated.

22. The affidavit does not state whether the invoice was paid. It includes only a general description for the gross figure of $40,000.00 for professional costs for that period, with no dates or times allocated for any court appearances, conferences, phone call meetings or dates for reading or assessing evidence. The invoice does explain that an itemised invoice can be requested and sets out Anne’s various rights to have the costs assessed. The Court however does not need to be concerned with any of this as assessment and payment of costs is a matter for the Director-General Attorney General’s Department: ss 1A and 4 of the Act; Rodden v R (2023) 112 NSWLR 162; [2023] NSWCCA 202 (“Rodden”) at [117].

23. The evolution of the Crown case via the Crown Case Statement(s), as well as various correspondence was annexed to Mr Hill’s affidavit. The affidavit included some contentious correspondence regarding the question of whether the Crown had adequately identified its circumstantial case against Anne. This included correspondence while the trial was running, particularly about the use of the witness James Arber, given the contents of DSC Cary’s Investigators Note dated 3 November 2022 (that became Exhibit AG19 in the trial). That Investigators Note stated that the critical date in James Arber’s statement could not have been 5 June 2002 as asserted and sets out reasons why that was so. DSC Cary’s note concludes that “by the description of the baby, it could possibly have been on the 19 February 2002”.

24. For reasons I will come to, this date problem fatally undermined the relevance of James Arber’s evidence. This problem is separate and in addition to the fact that his evidence was contrary to that given by his father Peter in his statement to police (Exhibit 118) dated 28 September 2021, also tendered in the Crown case. The way in which James Arber’s statement came to identify the date of 5 June 2002 was only after unfortunate interventions in the statement taking process by DSC Cary: Judgment at [350] to [356].

25. Mr Hill’s affidavit also dealt with the issue of the alleged “enhanced” listening device product which was asserted by the Crown to allow various admissions by Anne and Robert set out in the Crown Case Statement to be heard. This “enhanced” recording never appeared.

26. Finally, Mr Hill’s affidavit dealt with the charge made by Legal Aid over the residential property owned with Robert as a condition of the grant of Legal Aid, and a short explanation as to the delays with pursuit of the costs application related to Anne’s ill-health.

(ii) Affidavit of solicitor for Robert – Joanne Harris

27. The affidavit of Ms Harris was sworn on 10 March 2026. It augmented matters set out in Mr Hill’s affidavit that had dealt with matters common to both defendants. Relevantly Ms Harris foreshadowed this application for costs on 18 September 2024, two days after the Judgment. The affidavit reminded me that because of the very significant misstatements in the Crown Prosecutor’s closing address, counsel for Robert, Mr Paul Coady, prepared a table of those significant misstatements and requested the Crown withdraw them. There were 44 separate untenable submissions.

28. I provided the Crown with an overnight opportunity to consider and withdraw those inaccurate submissions and misstatements. Some were withdrawn, but some were pressed and had to be the subject of rulings because the submission was either seriously inaccurate, did not correlate to any evidence, or did not reflect the evidence led at the trial. Whilst not a matter that inevitably leads to any particular conclusion in the context of this application for costs, it is a matter that underscores the cognitive dissonance on display at the trial between the case that the Prosecution thought it had and had asserted was available on the evidence, and the far more limited case that was in fact available. This is particularly so in relation to what was alleged to have been heard by DSC Cary in the listening device recordings. No one else, among the multiple police officers who listened to these recordings, gave evidence that they heard those alleged admissions. As I stated in the Judgment, there were no such admissions. It was entirely appropriate for the defence to contest the transcript where no such utterances can be heard.

29. Ms Harris deposed in par 9(h) of her affidavit to what she described as the “opacity” of the Crown case persisting to the conclusion of the evidence and into the Crown’s closing address. Although critical and evaluative, this is a reasonable statement by Ms Harris. The correspondence between the Prosecutor and counsel for Anne annexed to Mr Hill’s affidavit indicated a problematic approach to the disclosure of this asserted listening device material, holding out until the last minute, claiming that these “enhanced recordings” revealed alleged “admissions” and “incriminating utterances”. Those “enhanced recordings” never materialised.

30. The last minute about face regarding whether the Crown’s case was a “strands in the cable” circumstantial or a “links in the chain” case relying on indispensable intermediate facts, also remained unexplained. Just prior to closing submissions, the Prosecutor agreed with defence counsel that the Crown case did rely on two indispensable intermediate facts. If not these two facts were not able to be found beyond reasonable doubt, the Crown case failed. Those two facts were:

(i) that the Geeves had the shared motive to kill Amber in order to assume full parental control of (the baby); and (ii) that they did not take her to Campbelltown Railway Station on 5 June 2002, (and as part of this, Amber could not have withdrawn money from her bank account in Campbelltown).

31. There was no concession in correspondence that the Crown case changed between the initial Crown Case Statement and what was alleged to have been the Prosecution case at trial. It remained opaque as to what assessment of the evidence had been made by the Prosecutor, and whether he had satisfied himself that the evidence corresponded to the assertions made in the Crown Case Statement(s), particularly regarding the alleged admissions and “incriminating utterances” in the listening device product, and the fatal problems with the evidence of James Arber.

Unreasonableness of the Prosecution in proceeding against Robert and Anne Geeves

32. The overall submission put by the applicants jointly is that when all relevant facts are considered, it was not reasonable to prosecute. There is no need for this Court to consider what facts a “hypothetical prosecutor” might have had. Nothing new of any moment emerged during the trial. It was submitted, firmly and fairly, that the facts known to the real prosecutor clearly established that it was not reasonable to institute the proceedings. In particular, reliance on evidence proved to be wrong in a material respect by investigating police, or known to be unreliable, were still pressed as viable pillars of the proceedings when they could never be such.

(i) Relevant known facts

33. The relevant known facts were identified by the applicants in their submissions as follows:

(i) Amber Haigh was last independently seen on 2 June 2002 by Angelina Goode and Leon Henry; and on a day or two later by Reuben Spicer;

(ii) Amber Haigh was reported missing to the police by the applicants on 19 June 2002;

(iii) both applicants participated in recorded interviews with police on 25 June and 18 July 2002 in which they made no admissions as to their involvement in the disappearance of Amber Haigh;

(iv) both applicants told police that they had driven Amber Haigh to Campbelltown on 5 June 2002 in order for her to catch a train from there to an unnamed hospital in which her dying father was a patient;

(v) both applicants had told police that Amber Haigh had withdrawn money from an ATM near Campbelltown;

(vi) on 18 July 2002 police had installed listening devices in the applicants' home and vehicle;

(vii) police had not charged the applicants after their initial investigation from 2002-2005, due to insufficient evidence;

(viii) although he strongly suspected the involvement of the applicants in the disappearance of Amber Haigh, during the time that Sgt Crea was officer-in-charge of the case, there was not sufficient evidence to lay a charge of murder against them;

(ix) when he took over as officer-in-charge of the case Inspector Cockram ordered a review of the listening device material from the home of the applicants from July 2002, and by August 2005 had satisfied himself that they were accurate;

(x) police had thoroughly investigated the version given to police by the applicants that they had driven Amber Haigh to Campbelltown railway station on 5 June 2002 and could not disprove that as a possible version;

(xi) no fresh evidence was identified in the 2011 coronial inquest, such as to cause the coroner to refer the applicants to the crown, but rather the file was referred to the police Unsolved Crime Unit, where it apparently sat until 2019;

(xii) in 2019 DSC Amanda Cary was appointed as a case officer in the reinvestigation of the allegations against the applicants; and

(xiii) DSC Cary had claimed to identify fresh evidence against the applicants, namely:

(a) evidence from James and Peter Arber as to a possible sighting of Amber Haigh in the presence of the applicants either on or around 5 June 2002, contrary to their versions to police; and

(b) her opinion evidence that she had re-listened to all of the listening device material taken from the home and vehicle of the applicants on and after July 2002 and had identified a number of 'incriminating words' uttered by the applicants.

34. The applicants submitted that first, James Arber’s evidence was of no value and was known to be of no value at the time of the trial (and known as early as November 2022 to be wrong in material respects). Second, the listening device material alleged by DSC Cary to contain admissions or “incriminating utterances” by the applicants simply did not exist, and this was known, or ought to have been known by the Prosecutor. It was submitted that given the obligation since 2019 for there to be certification of indictable charges by a Crown Prosecutor, rather than committal proceedings before the Local Court, that certifying prosecutor has a far greater responsibility to scrutinise evidence while the changes still remain in the Local Court. In this case, the Prosecutor, on 4 November 2022, certified the charge of murder was to proceed against each applicant.

35. The obvious problems with the evidence of James Arber were appropriately described, with relevant emphasis, in the applicants’ written submissions, as follows:

“The Arber evidence

Arber's contact with police

26. James Arber first called Crimestoppers on 6 July 2021 offering possible information about the disappearance of Amber Haigh. In that report he said he saw her:

... on a date and time unknown but believed it may have been the end of May 2002. [1]

27. DSC Cary first spoke to James Arber by telephone on 9 August 2021. The conversation took about 2 hours. In that first conversation James Arber told her that he had seen Amber Haigh 'around June 2022'. [2] He then gave a version that changed significantly over time.

28. Initially he said that he was working at a local butchers' shop at the time and finished for the day at 6.00pm. [3] He told DSC Cary that shortly after he saw Amber Haigh and the applicants at his grandmothers house, who spoke about planning to going to Sydney but did not nominate when (didn't say when or why they needed to go); [4] and then he saw them again at a petrol station in Boorowa later than night, probably about 8.00pm. [5] He said that Amber Haigh was no longer with the applicants. This was obviously an important detail. DSC Cary asked him to think about his timeline.

29. DSC Cary agreed at the trial that without this connection, i.e the meeting at the grandmothers, when the applicants allegedly said that they were travelling to Sydney that night, and then seeing them at the petrol station not long after on the same night without Amber Haigh, that information would not take the investigation any further. [6]

30. James Arber spoke again to DSC Cary on 22 August 2022. [7] He again confirmed that his sighting of Amber Haigh was around June 2022, but said that he got that date from watching a 60 Minutes episode on the internet. [8] He also told her that he now remembered that he was not working at the butcher's shop on that day, because his boss' wife was having an operation in Canberra. [9] This shifted his timeline of sighting Amber and the Geeves up by about 2 hours. [10]

31. DSC Cary started taking James Arber's written statement by telephone on 6 September 2021 and this process continued until 21 September 2021. At its completion it was sent to Queensland, where Mr Arber signed it on 2 November 2021.

32. In the statement James Arber did not nominate the day or even month that he saw Amber Haigh at his grandmother's house, and later saw the applicants at a petrol station without Amber, but the latter fact remained from his earlier conversations with DSC Cary. [11] Again, this was obviously a very important fact, at least from DSC Cary 's perspective.

33. What is clear however is that James Arber in his statement signed by him on 2 November 2011 never nominated the 5 June 2002 as the day of his sightings of Amber Haigh, indeed not even the month.

34. Significantly, in cross examination DSC Cary said this:

Q. Just before we move away from Mr Arber, I was asking you before lunch to confirm that at no stage did James Arber tell you that the sighting he had made that we've been talking about was on 5 June?

A. No. [12]

35. This concession is highly significant in the context of this application for two reasons:

a. it demonstrates awareness by DSC Cary that his version was of no real assistance; and

b. it gives the lie to later assertions by DSC Cary and the prosecutor that the sighting occurred on 5 June 2002.

36. There were other significant problems with the version given by James Arber that were known to DSC Cary and the prosecutor. Cary took a statement from James' father, Peter on 28 September 2021, barely a week after she finished the statement of James Arber.

37. Peter Arber gave a very different version of this meeting with Amber Haigh and the applicants at his mother's place. He too was unable to put a date on it, other than it was after 24 November 1998, when he bought a particular Ford vehicle. [13] His version of what happened at the meeting was similar to that of James, including a mention of some light rain. [14]

38. However, that was where the important similarity ended. In Peter Arber's version Amber (the thin girl) had a baby which was ‘pretty young. It looked new’ and the meeting was on a weekend around 10am. [15] Crucially also Peter Arber’s statement made it clear that the occasion when he saw the applicants at a petrol station without Amber Haigh was not later the same night but it was sometime later and disconnected in time. [16]

39. In this regard he said that after the first occasion, he saw Amber again in the applicant's yard. She had a pram and the baby was still small but bigger and older than the first time he saw them at his mother's house. [17]

40. He then saw the applicants again, on a later occasion at the petrol station, and this version aligned with that of his son.

41. Obviously, the versions of James and Peter Arber could not stand together on this issue. However, when asked in evidence as to whether these crucial discrepancies caused her any concern about the version of James Arber, DSC Cary said this:

It did. And also the reliability of Peter's as well. He actually told me that his memory isn't the greatest with anything back from historical - so he said "If James is different to mine I would be more relying on James’s memory than mine because I'm vague." Is what Peter told me. [18]

42. It is submitted that this is an example of DSC Cary's cognitive dissonance on this issue. The problems with the version given by James Arber were in front of her face, and it seems she needed a way to ignore all of them in her quest to put James Arber forward as a reliable witness, in order to support her decision to charge the applicants.

43. True it is that DSC Cary later came to doubt the version of James Arber, but this reluctance did not extend to the prosecutor in the manner in which he chose to present Arber's evidence - that is, by relying on it at all.

44. Notwithstanding that DSC Cary knew about the fundamental problems with the version of James Arber, she chose to put it forward as accurate and reliable, when in truth it was neither.

45. When DSC Cary arrested Anne Geeves on 4 May 2022, she said to her:

l bet you are wondering why you have been arrested after all these years .... Do you want to know what is new?

A witness has come forward who states that on the afternoon of Friday 5th June 2002 you, Robert, Amber and [the baby] stopped at their house in Boorowa before you went to Sydney. This witness recalls you to be in your Suzuki. This witness recalls Robert saying you were all on your way to Sydney. Do you know who I am talking about?

…

The same witness recalls that 1 hour after you left his place, he saw you, Robert and [the baby] at a petrol station and Amber was not with you. [19]

46. It is submitted that DSC Cary knew that those statements were fundamentally not true. James Arber had never said the sighting was on 5 June 2002 and it was only after DSC Cary told him to go away and think about his timings he changed his version from that of there not being a link between the meeting and the trip to Sydney on that day (see [23] above) to it being on the same night.

47. Lest it be thought that DSC Cary was merely using this misinformation as a misinformation investigative tool, [20] she continued the deception into the Fact Sheet, stating that:

James told investigators he recalled meeting with Amber at about 4.00pm on 5 June 2002. [21]

48. It is noted that DSC Cary also recognised the need to bolster the version of James Arber, and she chose to do this by using his comments about seeing red, white and blue striped bags in the applicant's car on 5 June (sic), pointing out in the Fact Sheet that the information about the large striped bags was 'not publicly known'. [22]

49. If correct this might have given James Arbers' account some credibility. However, this too was not true, and must have been known to DSC Cary. Police had in fact put out media releases in 2002 and 2003 which made specific references to the striped bags, and this had been published in at least one newspaper. [23]

50. DSC Cary well knew that this information had in fact been released to the public as she had read those articles and media releases in August 2021. [24] Exhibits AG#9 and AG#10 were contained in the initial brief of evidence compiled by her and served on 29 June 2002, a matter of only weeks after charging the applicants. [25]

The involvement of the prosecutor

51. Regrettably, repetition of these patent untruths extended to the actual prosecutor as the Police brief of evidence was no doubt served on (and relied upon) by the DPP.

52. In this regard, the first crown case statement dated 13 October 2022 included the false assertion that James Arber had seen the applicants on 5 June 2002, [26] as well as the false assertion that police had 'never revealed the striped bags to the public' [27] despite there being evidence in the brief of evidence to the contrary.

53. By 30 May 2024 (very soon before the trial), the final crown case statement referred to James Arber's meeting with the applicants as being 'at 3.45 pm one afternoon in 2002' [28] which suggests that the prosecutor was finally alive to at least one of the problems with Arber's version, but maintained the falsehood that police had never publicly released the information about the red, white and blue striped bags, although it was couched in different terms, i.e that Arber had seen the bags in the car at the petrol station. [29]

54. The prosecutor's opening address maintained some distance from the version of James Arber, but unfairly adopted some parts of it. The meeting at the Arbers' with the applicants and Amber Haigh occurred 'sometime prior to Amber’s disappearance' [30] which on its face would temporally render it of insignificant evidentiary value. However, the prosecutor maintained that there was some significance that Arber had told police that he saw stripey bags in the rear seat of the applicant's car whilst it was at his grandmother's house, and that he saw them again later in the car at the petrol station in Boorowa. [31]

55. Significantly however, the prosecutor maintained Arber's version that the applicants had said that they were 'on their way' to Sydney when he saw them in the afternoon, and a little later when he saw them again at the petrol station, without Amber that Peter Arber had said ‘It’s fucking weird, isn't it?' with James responding, 'Where is the girl? They couldn't have been to Sydney and back'. [32]

56. It is submitted that it was improper for the prosecutor to open the case in that manner, knowing as he did, or at least should have knowing that:

a. Peter Arber, who was dead by the time of the trial, had a completely different version in which there was no temporal connection between the meeting and the subsequent alleged sighting of the applicants at a petrol station; and even more significantly as

b. DSC Cary had already disproven James Arber's version of events and served evidence of that in the brief of evidence, of which the prosecutor held a copy for the purposes of leading evidence in the trial

57. In relation to (b) DSC Cary gave evidence that she took steps to try and corroborate the version of James Arber. However, some of the information she obtained actually disproved it.

58. It will be recalled that in his initial version James Arber said he was working at the butcher shop between 4.00 and 6.00 pm on the day of the meeting with Amber Haigh and the applicants. He discarded this version when it became apparent (to him at least) of the problem that timing caused given the undisputed ATM transaction at Campbelltown later that night. He then gave a version that he was not actually working at the butcher shop that day because his boss was in Canberra as his wife was having an operation, and this allowed him to move the timeline up by over 2 hours.

59. By 3 November 2022 DSC Cary had already made enquiries with ACT medical authorities and ascertained that [the boss’s wife] was not treated in Canberra Hospital until 12 August 2002, but she had been seen at a local medical centre on 19 February 2002, which coincidentally was the same day that Amber Haigh was planning to travel to Lismore, but ended up in Young Hospital after suffering an epileptic fit.

60. DSC Cary prepared and served an Investigators Note to this effect (Ex AG#19). [33] In it she noted that the appearance of Amber's child was more in keeping with any observation of him being made in February 2002, rather than June, which it is noted was very consistent with Peter Arber's version that the child he saw on this occasion was essentially a newborn. [34]

61. It is submitted that the content of AG#19 did not just cast some doubt on the version of James Arber, it actually disproved it. In those circumstances it is unfathomable why the prosecutor even put James Arber forward as a witness in the trial.

62. The prosecutor was well aware of the contents of AG#19 having been shown it (if that should have been necessary) by trial counsel in court the day before James Arber was called to give evidence. [35]

63. Nonetheless the prosecutor called James Arber as a witness and adduced from him, inter alia, the following evidence:

a. that in 'about June or early June or late - yeah, no, I would say that it was mid-June' 2002 the applicants came to his grandmother's house in Boorowa with Amber Haigh; [36]

b. that on that day he wasn't working at the butchers shop as usual because his boss had taken his wife with a twisted bowel to Canberra or Wagga for surgery; [37]

c. that Robert Geeves said that 'he' or 'they' were on their way to Sydney (in a Suzuki vehicle) and that Peter Arber had suggested it was not a good idea to do that in that car; [38] and crucially - for the temporal nexus

d. that the same evening when he and his father went to get takeaway dinner in Boorowa, they saw the applicants at a petrol station in the same car, but Amber Haigh was no longer with them. [39]

64. The prosecutor left the task of 'deconstructing this unfortunately confabulated account' [40] of James Arber to defence counsel.

65. It is submitted that the prosecutor should have never called James Arber in the trial or adduced from him the above evidence which he knew (if for no other reason that he was shown AG#19 the day before, if not his own understanding of the brief) was not in any sense reliable.

66. The prosecutor more or less abandoned the evidence of James Arber in his closing address, picking up only two points, neither of which were significant in the circumstances, and lay where they fell:

a. that when arrested in 2022 Anne Geeves could not remember whether she was in the Pajero or a Suzuki on the trip to Campbelltown (as suggested by Arber) because 'she was**n’t in [the car]'; [41] and

b. the uncontested evidence of James Arber that Robert Geeves spoke aggressively on behalf of Amber Haigh at the meeting, presumably as evidence of power he over her (which the prosecutor nominated as the 'one aspect of Arber's evidence' that the court would accept). [42] ”

36. The applicants rely upon the following findings in my Judgment regarding the evidence of James Arber:

“[350] On 6 July 2021, a former Boorowa local, James Arber, contacted Crime Stoppers to tell them that he thought he saw Amber Haigh at a Mobil service station on a time and date unknown, but “may have been the end of May 2002”. He was first spoken to on 9 August 2021 by DSC Cary for two hours. Her investigator’s note [43] recorded that Mr Arber gave certain timings and details which later changed in significant and material respects by the time he signed his statement some months later.

[351] On 23 August 2021, DSC Cary had another conversation with James Arber, [44] in which he provided other details in what appears to have been a genuine, but very misguided attempt, to “help” the police by altering the times and dates he had previously given to align them with the Crown case. The difficulty with all of this is that James Arber had said from the beginning that he had done a significant amount of googling and research on the Internet before he first contacted Crime Stoppers and had actually stated to DSC Cary that he “got the month as June from the 60 Minutes segment”. [45] This was a reference to a 60 Minutes television special dealing with the disappearance of Amber in which Robbie Geeves, amongst other people, spoke about their beliefs as to what had happened.

[352] James Arber’s version of events was directed to whether the Geeves’ account of their movements on 5 June 2002 could be true if they had visited James Arber’s grandmother’s home on that afternoon, given that James said he and his father Peter saw them an hour or two later at a local petrol station, which would not have been consistent with the Geeves account that they made the drive to Campbelltown between about 4:00pm and 8:30pm on 5 June 2002.

[353] By the time DSC Cary came to take James’ statement, over two further sessions spanning six hours, on 6 and 21 September 2021, as submitted by Mr King, DSC Cary should have known, (and in my opinion, did know), that James was putting things together to try and make his recollections fit with what he thought the Police wanted to hear, rather than actually having the recollection he professed to have.

[354] Prior to receiving a signed copy of his statement from Queensland police, (James then lived in Queensland), DSC Cary travelled to Cowra and met with James’ father, Peter, and took a statement from him dated 28 September 2021. That statement was concise and clear, and was obviously recalling the same occasions that James had been talking about, but recognised that the occasion the Geeves went to the Arber’s with Amber and a baby was on a date “after 1999” but he recalled the baby with Amber was very young, and that on another day he visited the Geeves at Huntleigh, Amber was there with the baby. Peter also stated that it was on an entirely different day some days or weeks later that he and his son saw the Geeves at the service station in Boorowa. Peter died shortly before the trial. His statement was tendered by the Crown, despite its key differences with James’ version of events. [46]

[355] DSC Cary made an investigator’s note on 3 November 2022, [47] further evaluating James Arber’s back story which made it clear, for reasons I do not need to go into for the purposes of this judgment, that: “it is likely the encounter with James Arber was not on the 5/6/2002 and by the description of the baby, it could possibly have been on 19/2//2002”, explaining further in that note the valid and persuasive reasons for her reaching that conclusion.”

37. The applicants’ submissions recounted my findings on this part of the prosecution case presented at trial:

“[356] It is surprising that the Crown chose to call James Arber at all in circumstances where the Police's own investigation had catastrophically undermined, and in a key respect, disproved, his manipulated final statement.

[357] Mr King took on the task of testing and deconstructing this unfortunately confabulated account. Almost from the beginning of the cross-examination, James Arber was prepared to concede that he did not really ever have the date of 5 June 2002 in mind he just knew it was ‘cold, around Anzac day, yeah May, June’ that he took the date from other information, and that in the end he was trying to help the Police and that it was ‘hit and miss’. [48] He acknowledged, rather sadly, the final proposition put to him after a fair but thorough cross-examination by Mr King, that the exercise he had engaged in was that he had: ‘picked out some fragments of memories, … added in a few fantasies and … stitched them all together using the glue of tabloid sensationalism to end up with this not so neat story.” [49]

(iii) The listening device product

38. The applicants submitted the following in respect of the listening device product and its role in the investigation and at trial:

“The listening device recordings

69. As part of the original investigation into the disappearance of Amber Haigh in July 2002 police placed listening devices in a motor vehicle used by the applicant and her husband, and in their residence at Huntleigh. Product was obtained and transcripts prepared.

70. In 2005 DCI Cockram directed police to relisten to the recordings and amend the transcripts. He personally checked and amended these transcripts to ensure their accuracy. [50] These transcripts are at CH17.

71. In 2021 DSC Cary commenced a task of relistening to the listening device product, using her desktop computer and Apple earbuds. She had the earlier LD logs and the 2005 transcripts but said that she created her own new transcripts. [51]

72. In the Fact Sheet she prepared at the time of charging the applicants, DSC Cary said:

A review of the [listening device material] has identified inculpatory conversations between the [applicants] that had not previously been identified. [52]

73. That assertion was, and is, very much challenged by the applicants.

74. DSC Cary said in her trial evidence that she had a listening device material enhanced on a number of occasions but felt that the enhancements were no better than the original and ultimately it was the original recordings that were played to the court in evidence. [53]

75. In the leadup to the trial defence counsel put the prosecutor on notice that the accuracy of a number of the proposed transcripts were in issue. [54]

76. Whilst most of the transcripts were agreed, there were a relatively small number of transcripts prepared by DSC Cary that were alleged to contain significant admissions by the applicants as to the fate of Amber Haigh and the involvement in her murder and the disposal of her body. The content of the disputed recordings was set out in the crown case statement.

77. At the commencement of the trial the prosecutor foreshadowed an intention to seek further enhancement of the recordings during the trial, in respect of which an objection was foreshadowed by defence counsel. [55]

78. In light of this, the prosecutor did not open his case on that aspect and reserved his right to do so later in the trial, a right he did not subsequently exercise.

The contentious transcripts

79. The applicants identify the following four listening device recordings which DCS Cary, and subsequently the crown, asserted contained damaging admissions by the applicants:

21 July 2002 at 13:40 [CD 5 Track 33]

80. The original transcript of this recording is found in the original 2002-2005 transcripts. [56] It contains no admissions of any kind.

81. In the Fact Sheet DSC Cary provided the following transcript for this recording:

RG: That stays

AG: I know but she's not coming back ....

RG: Should I fuck it off?

AG: Whatever you would like. [57]

82. If correctly transcribed, those words of Anne Geeves could have been used to establish that she knew Amber Haigh was dead. She has always denied that those words were spoken by her or could be heard on the recording. [58]

83. In the final crown case statement, the prosecutor adopted DSC Cary's version. [59] The same version was put forward as part of the transcripts that the prosecutor sought to be presented in the trial. [60] Objection to that course was taken by defence counsel.

84. When CD 5 Track 33 was played to the court, the transcript was left blank and the trial judge asked to fill what could be heard.

28 July 2002 at 21:45 [CD 22 Track 9]

85. The original 2002-2005 transcripts noted that 'nothing relevant or audible' was found on this track. [61] It contains no admissions of any kind.

86. In the Fact Sheet DSC Cary provided the following transcript for this recording:

AG: So, where are we going to take the rest of her now?

RG: Somewhere close to here

AG: Hmm, close to Terry's. [62]

87. If correctly transcribed, those words of Anne Geeves could have been used to establish that applicants were discussing where to dispose of the remains of Amber Haigh. Anne Geeves has always denied that those words were spoken by her or could be heard on the recording.

88. The same version was put forward as part of the transcripts that the prosecutor sought to be presented in the trial. [63] Objection to that course was taken by defence counsel.

When CD 22 Track 9 was played to the court, the transcript was left blank and the trial judge asked to fill what could be heard. [64]

8 August 2002 at 21:04 [CD 43 Track 14]

89. The original 2002-2005 transcripts noted that 'nothing relevant' was found on this track. [65] It contains no admissions of any kind.

90. In the Fact Sheet DSC Cary provided the following transcript for this recording:

AG: / thought that they were going to take it. Did anyone take it.

RG: No

AG: ... / thought that you had already taken it to Terry 's and ...

RG: I know

AG: It's over a week

RG: Yeah

AG: Yeah. Ok but I need you to take the rest up as quick as possible. We need to go to that (muffled) house and hope that the coppers don't go there first

RG: I**ts real close. He works there. He's on the bottles.

AG: I'll do it myself ...

RG: Just go there. [66]

91. DSC Cary 's version was included by the prosecutor in the initial crown case statement. [67]

92. In the final crown case statement, the prosecutor also adopted DSC Cary's version. [68] The same version was put forward as part of the transcripts that the prosecutor sought to be put before the court in the trial. [69] Objection to that course was taken by defence counsel.

93. When CD 43 Track 14 was played to the court, the transcript was left blank and the trial judge asked to fill what could be heard. [70]

9 August 2002 at 07:18 [CD 42 Track 1]

94. The original 2002-2005 transcripts noted that 'nothing relevant' was found on this track. [71] It contains no admissions of any kind.

95. In the Fact Sheet DSC Cary provided the following transcript for this recording:

AG: Have you taken her head or have you taken her yet.

RG: No I didn't, no

AG: Just want to give it to the pigs out the back?

RG: hmmmmmm yeah. [72]

96. If correctly transcribed, this was highly damaging evidence, and would appear to be the source of DSC Cary's questions to Anne Geeves about pigs when she was arrested. Anne Geeves always denied that she had said any such words.

97. DSC Cary's version was included in the initial crown case statement. [73]

98. In the final crown case statement, the prosecutor also adopted DSC Cary's version. [74] The same version was put forward as part of the transcripts that the prosecutor sought to be put before the court in the trial. [75] Objection to that course was taken by defence counsel.

99. When CD 42 (also identified as CD 43) Track 1 was played to the court, the transcript was largely agreed - except for that small portion referred to above which was left blank and the trial judge asked to fill what could be heard. [76] ”

39. These submissions provide a fair and accurate reflection of the issue taken regarding some of the listening device product. The only person who “heard” these alleged “incriminating utterances” in the listening device product was DSC Cary. Although I listened and re-listened to the recordings, I could hear no such words. The words asserted in the Crown Case Statement to have been heard on the recording based on what DSC Cary said she could hear were just not there. As I concluded at [330]:

“[330] I have carefully listened to all of the listening device product tendered. I formed the view that there was nothing in the recorded material that implicated either accused in any kind of foul play. There was no evidence of ‘manufacturing’ explanations for their movements, or any suggestion of, or reflections about, any illegal or abusive activity in relation to Amber…”

40. I accept the submissions made by the applicants that it was inexplicable that the words that DSC Cary “thought” she could hear but no one else could, were put forward as evidence to support a charge of murder, when the evidence just did not exist. There is an obligation on a prosecutor to cast a cold eye on the evidence. If it does not exist, it is self-evident that the case should not proceed as if it does.

41. I accept the applicants’ submissions that the case against the applicants had very significant problems and was foredoomed to fail. The alleged pillars of evidence (James Arber’s discredited assertions and the alleged recorded “incriminating utterances”) that were asserted to put all the diffuse circumstances into a particular light, did not in truth, exist. The version of events given by the defendants as to what occurred on 5 June 2002 when they had last seen Amber, was thoroughly investigated by police and could not be disproven or undermined. The deployment at trial of James Arber’s manipulated “evidence” that investigating police had known for over 18 months before the trial was wrong in critical respects, was a desperate attempt, and it failed.

42. Adopting the language of the Act, it was not reasonable to institute the proceedings against the applicants if the prosecution had before the proceedings were initiated been in possession of evidence of all of the relevant facts. More than that, I accept the submission made by the applicants that the Prosecutor did have evidence of all the relevant facts, if not at the time of arrest, certainly at the time of Certification in early November 2022, but went ahead and certified anyway.

43. The Crown did not suggest that the applicants’ conduct contributed in any way to the institution or continuation of the prosecution, nor could I see that there was any conduct remotely of that kind, and so I make an additional finding to that effect under s 3(1)(b) of the Act.

Discretionary factors

44. On the question of whether there remains a residual discretion to refuse to grant a certificate if I am satisfied of the matters in s 3(1), there was before 2023 conflicting authority, as noted in Rodden at [114] to [116]. However that Court, consisting of Bell CJ and Leeming and Beech-Jones JJA, concluded:

“[117] On the assumption, however, that s 2 does in fact confer a residual discretion, in the event of judicial satisfaction as to the matters in s 3 (1), a certificate should ordinarily be granted. In exercising the residual discretion, the beneficial nature of the Costs Act should be fully borne in mind. That that is the character of the legislation has been noted in many cases including Nadilo at 743 (see [37] above); Allerton at 559-560; Mordaunt at [36(a)]…”

45. There was no delay in notifying the Crown of the intention to apply for a costs order. It was done within two days of the verdict. There was a six-month delay waiting for a formal response from the DPP. I accept Mr Hill’s explanation that there were further delays entailed in waiting for instructions from Anne, given her ill-health. There is no reason why I should decline to exercise the discretion in favour of the applicants. The Crown did not suggest that there was any matter relevant to my discretion worth raising. Indeed, it declined to make any submission at all, other than that the residual discretion existed by virtue of s 2 of the Act.

No issue that Legally Aided applicants can recover costs under the Act

46. To the extent that there was thought to be any issue as to whether legally aided applicants could recover costs under the Act, that was laid to rest in Rodden at [125] to [134].

47. In any event, it is evident in the affidavits of Ms Harris and Mr Hill that there were costs incurred by Anne and Robert outside their legally aided costs.

Certification and orders

48. I make the following orders:

49. Grant a Certificate to the applicant, Robert Geeves, under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW) that Certificate to specify that in the opinion of this Court, it would not have been reasonable to institute the proceedings for the murder of Amber Haigh, if the Prosecutor had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, and that no act or omission of Robert Geeves contributed, or might have contributed, to the institution or continuation of the proceedings.

50. Grant a Certificate to the applicant, Anne Geeves, under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW) that Certificate to specify that in the opinion of this Court, it would not have been reasonable to institute the proceedings for the murder of Amber Haigh, if the Prosecutor had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, and that no act or omission of Anne Geeves contributed, or might have contributed, to the institution or continuation of the proceedings.

**********

Endnotes

Tcpt, 1 August 2024, p 2216(9)-(10).

Tcpt, 2 August 2024, p 2264(47).

Tcpt, 2 August 2024, p 2265(30)-(35).

Tcpt, 2 August 2024, p 2267(40)-(43).

Exhibit AG17 (Three pages of Investigator Notes dated 9 August 2021); Tcpt, 2 August 2024, pp 2263-2265.

Tcpt, 2 August 2024, p 2268(18)-(20).

Exhibit AG18 (Investigator’s Note dated 22 August 2021); Tcpt, 2 August 2024, p 2269.

Tcpt, 2 August 2024, p 2271(7)-(13).

Tcpt, 2 August 2024, p 2271(31)-(35).

Tcpt, 2 August 2024, p 2271(43)-(48).

Statement, James Arber, 2 November 2021 at pars 22-59.

Tcpt, 2 August 2024, p 2283(12)-(15).

Exhibit 118 (Statement of Peter Arber dated 28 September 2021) at par 15 - except of course that he saw Amber Haigh with a baby, which dates it in 2002.

Exhibit 118 (Statement of Peter Arber dated 28 September 2021) at par 16.

Exhibit 118 (Statement of Peter Arber dated 28 September 2021) at par 15.

Tcpt, 2 August 2024, pp 2275-2278.

Exhibit 118 (Statement of Peter Arber dated 28 September 2021) at par 18.

Tcpt, 2 August 2024, p 2277(36)-(39).

Statement of DSC Cary, 11 May 2022 and Police Notebook extract AG20, p 67.7. to p 68

Tcpt, 2 August 2024, p 2287(1)-(9).

Fact Sheet, Exhibit 4 to Affidavit, Clive Hill, 27 February 2026, p 57(1)-(2).

Fact Sheet, Exhibit 4 to Affidavit, Clive Hill, 27 February 2026, p 57.

Exhibit 95 (NSW Police media release dated 27 June 2002) and Exhibit AG9 (Media release from New South Wales Police Public Affairs authorised by Detective Sergeant Gaetano Crea dated 26 August 2003) and Exhibit AG10 (Front page article from the Young Witness Newspaper dated 28 June 2002).

Statement of DSC Cary, 12 September 2022, Exhibit 2 to Affidavit, Clive Hill, 27 February 2026, p 16 at par 33.

See Brief of Evidence 29.06.22 Index, Exhibit 16 to Affidavit, Clive Hill, 27 February 2026, p 232; Exhibit AG19 (Investigator’s Note regarding [REDACTED] patient history dated 3 November 2022).

Crown Case Statement dated 13 October 2022, Exhibit 7 to Affidavit, Clive Hill, 27 February 2026, p 80 at par 31.

Crown Case Statement dated 13 October 2022, Exhibit 7 to Affidavit, Clive Hill, 27 February 2026, p 81 at par 35.

Final Crown Case Statement, Exhibit 9 to Affidavit, Clive Hill, 27 February 2026, p 138 at par 285.

Final Crown Case Statement, Exhibit 9 to Affidavit, Clive Hill, 27 February 2026, p 139 at par 291.

Tcpt, 21 June 2024, p 15(13).

Tcpt, 21 June 2024, p 15(28)-(30).

Tcpt, 21 June 2024, p 15(33)-(35).

Exhibit AG19 (Investigator’s Note regarding [REDACTED] patient history dated 3 November 2022).

Exhibit 118 (Statement of Peter Arber dated 28 September 2021) at par 15.

Affidavit, Clive Hill, 27 February 2026 at par 30.

Tcpt, 17 July 2024, p 1682(14).

Tcpt, 17 July 2024, p 1682(24)-(25).

Tcpt, 17 July 2024, p 1685(41) to p 1686(11).

Tcpt, 17 July 2024, p 1694.

R v Geeves; R v Geeves (No 7) [2024] NSWSC 1168 at [357].

Tcpt, 12 August 2024, p 2337(17)-(18).

Tcpt, 12 August 2024, p 2349(48) to p 2350(7).

Exhibit AG17 (Three pages of Investigator Notes dated 9 August 2021).

Exhibit AG18 (Investigator’s Note dated 22 August 2021).

Tcpt, 18 July 2024, p 1780(9) to p 1781(38).

Exhibit 118 (Statement of Peter Arber dated 28 September 2021).

Exhibit AG19 (Investigator’s Note regarding [REDACTED] patient history dated 3 November 2022).

Tcpt, 18 July 2024, p 1776(42) to p 1777(4); p 1778(41)-(50).

Tcpt, 18 July 2024, p 1804(45)-(49); Exhibit AG18 (Investigator’s Note dated 22 August 2021).

Tcpt, 31 July 2024, pp 2138-2140.

Tcpt, 1 August 2024, p 2212.

Fact Sheet, Exhibit 4 to Affidavit, Clive Hill, 27 February 2026, p 57.

Tcpt, 1 August 2024, p 2213(4)-(11).

Affidavit, Clive Hill, 27 February 2026 at par 37.

Tcpt, 21 June 2024, pp 5-8.

2005 Transcripts, Exhibit 17 to Affidavit, Clive Hill, 27 February 2026, p 303.

Fact Sheet, Exhibit 4 to Affidavit, Clive Hill, 27 February 2026, p 58.

Transcripts of recordings provided to the Court, Exhibit 19 to Affidavit, Clive Hill, 27 February 2026, p 482.

Final Crown Case Statement, Exhibit 9 to Affidavit, Clive Hill, 27 February 2026, p 176.

Correspondence, Exhibit 18 to Affidavit, Clive Hill, 27 February 2026, p 396.

2005 Transcripts, Exhibit 17 to Affidavit, Clive Hill, 27 February 2026, p 335.

Fact Sheet, Exhibit 4 to Affidavit, Clive Hill, 27 February 2026, p 58.

Correspondence, Exhibit 18 to Affidavit, Clive Hill, 27 February 2026, p 415.

Transcripts of recordings provided to the Court, Exhibit 19 to Affidavit, Clive Hill, 27 February 2026, p 528.

2005 Transcripts, Exhibit 17 to Affidavit, Clive Hill, 27 February 2026, p 362.

Fact Sheet, Exhibit 4 to Affidavit, Clive Hill, 27 February 2026, pp 58-59.

Crown Case Statement dated 13 October 2022, Exhibit 7 to Affidavit, Clive Hill, 27 February 2026, p 82 at par 39(g).

Final Crown Case Statement, Exhibit 9 to Affidavit, Clive Hill, 27 February 2026, p 192 at par 547.

Correspondence, Exhibit 18 to Affidavit, Clive Hill, 27 February 2026, p 430.

Transcripts of recordings provided to the Court, Exhibit 19 to Affidavit, Clive Hill, 27 February 2026, p 561.

2005 Transcripts, Exhibit 17 to Affidavit, Clive Hill, 27 February 2026, p 360.

Fact Sheet, Exhibit 4 to Affidavit, Clive Hill, 27 February 2026, p 59.

Crown Case Statement dated 13 October 2022, Exhibit 7 to Affidavit, Clive Hill, 27 February 2026, p 82 at par 39(h).

Final Crown Case Statement, Exhibit 9 to Affidavit, Clive Hill, 27 February 2026, pp 192-193 at par 549.

Correspondence, Exhibit 18 to Affidavit, Clive Hill, 27 February 2026, p 427.

Transcripts of recordings provided to the Court, Exhibit 19 to Affidavit, Clive Hill, 27 February 2026, from p 556 with the highly contentious blank portion located on p 558.

Amendments

23 September 2026

Coversheet: amendment to Representation. Par 6: sentences inserted to clarify representation.