R v Geeves; R v Geeves

Supreme Court of NSW|2024-06-27|Before: Lonergan J, Yehia J

JUDGMENT

Application has been made by the Crown, initially by notice of motion dated 19 June 2024 and then 24 June 2024, for eleven witnesses to give evidence by audio-visual link ("AVL") in this trial. Orders are sought pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ("the Act") in relation to the following eleven witnesses:

Mavis Yardley;
Helen Mackie;
Janice Broderick - (consideration deferred);
John Gibbons - consent;
Jacqueline Thompson;
Angela Fitzpatrick;
Brenda MacLeod - consent;
Jade Wynn;
Allan Payne - (consideration deferred);
Tracy Ford - consent; and
Leon Henry - consent.

Counsel for the two accused persons have indicated that they do not oppose a direction being given permitting Tracy Ford, Leon Henry, Brenda MacLeod and John Gibbons to give evidence by audio visual link.
The Crown relies on a statement of Detective Senior Constable Amanda Cary ("DSC Cary") dated 19 June 2024 that sets out the reasons why the named witnesses have logistical difficulties travelling to Wagga Wagga to give evidence in Court.
In respect of the witnesses about whom no objection was taken, John Gibbons, Tracy Ford, Leon Henry and Brenda MacLeod, I satisfied myself of the following matters based on the material in DSC Cary's statement by reference to the paragraphs in subsection (2) of s 5B of the Act: 1. the necessary facilities are available; 2. the evidence could not more conveniently be taken in the courtroom at Wagga Wagga; 3. taking the evidence of those four witnesses by AVL is not unfair to the accused and counsel for both accused have indicated their consent; and 4. I am satisfied that the witnesses will give the evidence.
I made orders in Chambers to that effect on 20 June 2024.

Principles

The relevant principles and considerations that apply under the legislation in the context of criminal proceedings have been helpfully and comprehensively summarised by Yehia J in R v Early (No 4) [2023] NSWSC 505 at [26] to [37] and I gratefully adopt her Honour's summary, with emphasis on the observations made in [37]: "[26] A "common sense approach" is not the relevant consideration in determining this application. Relevantly, s 5B(2) of the Act provides: "(2) The court must not make such a direction if - (a) the necessary facilities are unavailable or cannot reasonably be made available, or (b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or (c) the court is satisfied that the direction would be unfair to any party to the proceeding, or (d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission." [27] Pursuant to s 5B(3) of the Act, "the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so". In considering an application, the court should consider whether the preconditions under s 5B(2) of the Act are satisfied. It is only if they are satisfied that the court considers s 5B(3) of the Act: see R v Ngo (2003) 47 NSWLR 55; [2003] NSWCCA 82 ("Ngo") at [107]. [28] In Ngo, the court stated at [108]: "Making a direction that the evidence of an accusing witness be received by audio visual link external to the court room must, by its very nature involve unfairness to an accused because it deprives him or her of a face-to-face confrontation with the witness. The provision cannot mean any unfairness, however small the court must consider the degree and effect of the unfairness. In a criminal trial, the best measure is whether the making of a direction will cause the trial to be an unfair one to the accused. An accused person has the fundamental right to a fair trial. A direction should not be made if it would mean that an accused would not have a fair trial." [29] In KN v R (2017) NSWLR 767; [2017] NSWCCA 249 ("KN"), an appeal was brought by the applicant against the trial judge's decision to grant Crown applications for witnesses to give evidence via AVL, pursuant to s 5B of the Act. Relevantly, at [66]-[67], the court stated: [66] … The use of AVL for the purpose of taking evidence is well established and there is a substantial body of authority on the exercise of the court's discretion to permit its use for that purpose. As the cases make clear, subject to the requirements of the legislation, the decision to permit evidence to be given by AVL is a matter for the primary judge's discretion in the circumstances of the particular case: see Kirby v Centro Properties Limited [2012] FCA 60; 288 ALR 601 at [11] per Gordon J; ASIC v Rich [2004] NSWSC 467; 49 ACSR 578 at [16] per Austin J. [67] While it has sometimes been acknowledged that the question whether the credibility of the witnesses in issue might be relevant to the decision to use AVL: see Kirby v Centro Properties Limited at [10]; ASIC v Rich at [27]-[28] and the cases cited therein; R v Qaumi and Ors (No 9) [2016] NSWSC 171 at [9] per Hamill J and Hughes v Whittens Group Pty Ltd [2017] NSWSC 329 at [21] per Button J, there are numerous decisions where it has been held that the demeanour of a witness could be adequately assessed by AVL: see ASIC v Rich at [24]-[26]; R v Wilkie, R v Burroughs, R v Mainprize (2005) 193 FLR 291; [2005] NSWSC 794 at [31]-[32] per Howie J; R v Lodhi [2006] NSWSC 587; (2006) 163 A Crim R 488 at [65] per Whealy J and the cases cited therein." [30] The increased use of AVL to facilitate witnesses giving evidence reflects a willingness to adopt technological mechanisms to reduce cost and inconvenience. However, such considerations do not replace the fundamental principle that an accused is entitled to a fair trial. While it is not in every case that constraining a party to cross-examine the witness by audio-video link will involve unfairness, the circumstances of a particular case may result in a determination that it is not in the interests of the administration of justice that a witness give evidence remotely. [31] In Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250 ("Antov"), Bell P (as his Honour then was, and with whom Bathurst CJ and Payne JA agreed) said at [50]: "Constraining a party to cross-examining a witness by video link will not always, but may sometimes, involve a degree of unfairness to that party, depending on all the circumstances of the case. This is why an assessment of unfairness necessarily involves a judgment of an evaluative character. Relevant circumstances may include the importance of the witness, whether his or her credit was in issue, the nature and extent of documents involved, whether translation of documents or oral evidence is necessary, time differences in the other forum and the quality of technology. In certain cases, depriving the cross-examiner of the 'reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party' may also work relevant unfairness: see Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152; [2009] FCA 1306 at [78]." [32] The tension between that decision and the decision of the Court of Criminal Appeal in KN was noted by Hamill J in R v Abdaly; R v Hooseinishoja (No 4) [2022] NSWSC 1529, where his Honour said (after referring to KN at [67]-[68]): "As I did in R v Al Batat (No 1), I prefer to follow the more recent decision of the Court of Appeal. That is, I am satisfied that where an important witness is to be subject to a credibility attack, it is preferable that the witness gives evidence in the courtroom. This approach accords with observations made in other cases decided at first instance: ASIC v Rich [2004] NSWSC 467; (2004) 49 ACSR 578 at [22] (Austin J) and Hughes v Whittens Group P/L [2017] NSWSC 329 at [21]." [33] The courts have increasingly utilised AVL facilities in proceedings involving criminal allegations, particularly during the COVID-19 pandemic which resulted in courts having to respond rapidly to ensure, as far as possible, that cases continue to be heard. During that period, some applications and hearings were conducted via AVL, although, for some of that period, jury trials were suspended. Legislation was introduced mandating that certain proceedings be conducted via AVL unless the court ordered otherwise. The pandemic forced courts to rely on technology more than ever before. [34] It is important, however, to bear in mind that the increased recourse to AVL facilities was a dramatic response to an unprecedented situation. The courts had to balance the need to continue to hear cases and dispense justice in a timely fashion, with avoiding the health risks posed by the pandemic. As restrictions eased, courts conducting criminal trials and hearings resumed face-to-face operations. There is no doubt that there has been an increased use of AVL facilities post the pandemic restrictions. [35] That does not mean, however, that cost efficiency and the desire to reduce inconvenience eclipse the fundamental right of an accused to a fair trial. In some cases, a fair trial will require the attendance of a witness in court to give evidence in person. That is because in some cases the evidence is crucial to the Crown case; the witness may have given several accounts, not all consistent; cross-examination may be impeded if the witness were to give evidence by AVL; and to the extent the demeanour is relevant to an assessment of credibility and reliability, attendance in person may provide a jury with a better opportunity to assess those factors. Each case will depend upon its particular circumstances. [36] In Rooney v AGL Energy Limited (No 2) [2020] FCA 942, Snaden J stated at [18]: "I acknowledge that some judges of this court have expressed the view that such assessments can be made as well by remote means as by traditional in-court examination: see, for example, ASIC v Wilson [2020] FCA 873 , [35] (Lee J); Tetley v Goldmate Group Pty Ltd [2020] FCA 913 , [16] (Bromwich J); and Capic v Ford Motor Company of Australia Ltd [2020] FCA 486 , [19] (Perram J). Those conclusions are, of course, personal to those who have drawn them. My own experience of present-day remote hearing technology is slightly less positive (although, I stress, not negative). I consider it a good and, in many instances, necessary "Plan B". However, the available technology cannot fully replicate the court room environment that is so often central to an adversarial system of civil justice. In my experience, the technology inhibits (if not prohibits) the cadence and chemistry-both as between bar and bench, and bar and witness box-that personify well-run causes. Those are traditional forensic benefits of which litigants ought not too lightly be deprived: Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 , 171 [78] (Buchanan J). Further, the technology often begets delay, particularly when documents are to be supplied remotely. Although broadly reliable, it is not uncommon for connections to be momentarily of poor quality, occasionally to the point that they are unusable. All of these factors influence the user experience of a justice system from which all litigants are entitled to benefit." [37] These remarks were made in the context of a civil case. In a criminal case, particularly where the allegation is a serious one resulting, upon conviction, in the loss of liberty of the individual, it is all the more necessary to ensure that the particular circumstances of the case ensure that the entitlement to a fair trial is not too easily compromised for the sake of cost savings and convenience."

Mavis Yardley

Ms Yardley was 24 years old in June 2002 when she made her statement to police. She met Amber at a party in Young some two-and-a-half years before Amber's disappearance. Ms Yardley outlined some observations of Amber's ability to read and to handle money. In a further statement made in November 2002, Ms Yardley denied having any conversations with Anne Geeves about Anne Geeves wanting custody of [REDACTED].
[REDACTED].
Mr King submitted that Ms Yardley's evidence is important. There will be cross-examination directed at the reliability of her evidence. That cross-examination should take place in the courtroom.
The Crown Prosecutor submitted that the matters in DSC Cary's statement are sufficient to meet the Crown's persuasive onus that it is in the interests of the administration of justice that AVL evidence from [REDACTED] be accommodated.
I have concluded that although I am satisfied arrangements can be made for the evidence to be given from the nominated location, [REDACTED], the direction would be unfair to the accused, who have through a senior and experienced public defender, raised concerns about the adequacy of evidence being given that way. I am not satisfied that s 5B(2)(c) is met and I reject the application on that basis.
Even if all of the elements of s 5B(2) were satisfied, I would not make the direction regarding Ms Yardley as I am not satisfied that it is in the interests of the administration of justice to do so. The logistical complications outlined are not insurmountable. Cross-examination in the focussed and solemn environment of the courtroom is important for the impressionistic evidence given by Ms Yardley to be heard and assessed and further examined by counsel for the accused.

Angela Fitzpatrick

Angela Fitzpatrick provided a statement to police in August 2002. She was a patient at Young District Hospital in the maternity ward about the same time as Amber. She is to give evidence about conversations with Amber and observations she made of Amber and Amber's visitors in that important period.
DSC Cary's statement refers to logistical difficulties Ms Fitzpatrick would have with travelling to Wagga Wagga to give evidence.
Mr King submitted that Ms Fitzpatrick's evidence is impressionistic but important and will need to be the subject of cross-examination.
I am not satisfied that it is not unfair to the accused persons for the evidence of this witness to be given by audio visual link and so s 5B(2)(c) is satisfied, effectively prohibiting the making of the direction.

Jacqueline Thompson

Jacqueline Thompson was a DoCS worker in 2002 who said in her statement that she was involved with Amber and [REDACTED] between 11 February and 1 March 2002. Her statement to police in July 2002 contained important observations and clinical information regarding the circumstances prevailing at that time for Amber and [REDACTED], and Amber's relationship with Mr and Mrs Geeves.
[REDACTED].
[REDACTED].
Mr King submitted that it is unfair to the accused if Ms Thompson gives her evidence by AVL. She will need to be shown and respond to documents in cross-examination. Mr King noted (valid) concerns that this process may not function well over AVL. Mr King submitted that Ms Thompson is a very important witness whose role extends to a period after 1 March 2002, and this is a matter about which Ms Thompson will be cross-examined, amongst the other important observations and notations she has made which need to be the subject of exploration in cross-examination.
It would be unfair to the accused persons to have to conduct this cross-examination by audio visual link so I must decline to make that direction: s 5B(2)(c).

Jade Wynn

Jade Wynn is a social worker who worked with Ms Thompson at the Cootamundra office of DoCS, which covered Cootamundra, Young and Harden. She provided a statement in June 2024. The statement referred to a number of relevant and important matters including that from an unspecified date, Ms Wynn became [REDACTED]'s case manager. Ms Wynn was also involved in February 2002 with approving a cot purchase for [REDACTED] and in March 2002 regarding a "child at risk" notification received from QEII Hospital as well as other interactions, observations and events involving [REDACTED]. Ms Wynn also referred in her statement to a police investigator's note of a phone call which was made to her in July 2002 when she was on holidays in Queensland.
Mr King argued that similar to Ms Thompson, this witness will need to be shown various documents in cross-examination. Her evidence is important. She needs to be cross-examined in the courtroom setting. This is what fairness requires.
I am persuaded that it would be unfair to the accused persons to have this witness's evidence given by audio visual link and so I decline to make that direction.

Helen Mackie

Helen Mackie is a travel agent in Young who states that she met Amber in about 2001 to 2002. She first provided a statement of her recollections about Amber in March 2024. They relate not only to booking train trips for Amber, but also conversations with and observations about Amber whilst Amber was pregnant, and on one occasion in 2002 when she attended with baby [REDACTED] and an older woman.
Mr King argued that the statement is impressionistic and cross-examination about it should be conducted in the courtroom environment.
I agree and have concluded that whilst no complaint was made that it would be unfair to make the direction, (s 5B(2)(c)), I am not satisfied that the direction would be in the interests of the administration of justice and so I refuse to make the direction sought and Ms Mackie will need to give evidence in court.

Allan Payne

DSC Cary's statement indicated that Mr Payne lives in [REDACTED]. Consideration of this application was adjourned to allow for an update as to [REDACTED]. The application can be re-activated when [REDACTED].

Janice Broderick

[REDACTED]. Consideration of this application is adjourned to allow for updated information regarding [REDACTED].

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 September 2024

(2019) 101 NSWLR 142

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