[1999] HCA 37
R v BD (1997) 94 A Crim R 131
R v Dawson [2022] NSWSC 814
R v Suteski (2002) 56 NSWLR 182
Source
Original judgment source is linked above.
Catchwords
[1999] HCA 37
R v BD (1997) 94 A Crim R 131
R v Dawson [2022] NSWSC 814
R v Suteski (2002) 56 NSWLR 182
Judgment (3 paragraphs)
[1]
JUDGMENT
Application was made on day 13 of this trial for the Crown Prosecutor to lead new evidence from a witness, Angela Fitzpatrick, which was first disclosed to the defence on 9 July 2024, the day the witness attended Wagga Wagga court to give evidence. She had previously provided a statement to police in August 2002.
Ms Fitzpatrick now says that there was additional detail in a conversation she had with Amber Haigh in January 2002 that she had omitted from her August 2002 statement. Ms Fitzpatrick asserts that she omitted that detail because she was, in effect, too scared to disclose it because Robert Geeves "knew where she lived".
Ms Fitzpatrick had a baby about the same time as Amber at the Young District Hospital. In her August 2002 statement, she recounted two interactions with Amber in January 2002. The first was to take a photo at Amber's request and the second was a conversation the following day:
"[5] On the Sunday 27th January Amber came into my room and asked me something (Amber asked me to take a photo of her and the Nurses). I did what Amber asked but I didn't really talk to Amber till the following day. On this date I was waiting for Andrew to come and pick me up from Hospital when Amber came into my room. I got the impression Amber just wanted someone to talk to. That's when I became aware of Amber's name. Amber and I then had a general conversation about our son's [REDACTED] and [REDACTED]. Amber then said something to me in relation to the father of her child (Amber said to me "oh you would know the father of my baby as he lives down near you". I told Amber that I didn't know him and she said "he's got a son called Robbie, so my little boy's got a brother as old as me"). I still didn't who Amber was referring to although I realised that she must have been talking about an older man I had seen visiting Amber nearly every day whilst she was in Hospital. I would describe this man as walking with a limp, sandy coloured hair, about forty five to fifty years of age, about five feet eight inches tall and medium build.
[6] Amber then said something else to me (Amber said something like "I signed this piece of paper, so that I can't go near him, he can't take my baby can he". I wasn't really sure what she was talking about I thought she may have been talking about an apprehended violence order or some Court order so I said to her "did you sign it at the police station or Court house". Amber then said "No it was just a piece of paper". I assumed that Amber was talking about the father of her baby when she said this so I then told her that the only way they could take the baby from her was if she wasn't doing the right thing so to make sure she fed and looked after him properly).
[7] Amber then said further things to me (she said "I have a boyfriend" and she said his name but I can't remember it. I know I didn't know who she was talking about. "I am going to stay with my Aunty when I get out of Hospital". She further told me her aunty lived down the road from us."
It is necessary to produce the totality of paragraphs 3 to 6 of the 9 July 2024 statement because the reason the witness gives for why she did not previously disclose the detail is an inextricable part of the evidence that is now sought to be led from her by the Crown Prosecutor. It is this purported explanation that creates an unfair prejudice to the defence:
"[3] I have made 1 prior statement to police about the Amber Haigh matter on 6 August 2002. At the time I was 26 years of age and I had just had my baby. At the time police spoke to me in 2002 I was cautious about getting involved in the matter as I knew about the background of Robert Geeves. I was scared to get involved as he knew where I lived and I had a young daughter, a baby and a husband that wasn't at home all that often. I knew about Robert's background and violence to women through my husband. He used to drink at the Wombat Hotel where other locals did. So I knew about his history through the rumour mill.
[4] On 9th July 2024 I came to Wagga Wagga Supreme Court to give evidence that is contained in my statement. In doing so, I have reviewed my statement while waiting to give evidence. There are parts of the conversations that I had with Amber that I have left out of my statement. I know I did this at the time because I felt uncomfortable to talk about it with the police officer taking my statement. This was due to the content of the conversation that Amber told me, as well as my cautiousness with getting involved due to Robert's history.
[5] I wish to add conversation into paragraph 5 of my statement.
[6] The conversation I had with Amber was when we were in hospital together. She said "They used to put on pornographic movies and that was how the baby was seeved". I remember this conversation and it sticks out so well in my memory because the terminology she used to refer to being "conceived". She said "seeved" and this stuck out to show me how naïve Amber was. It is possible she used the word porn instead of pornographic and my memory is making me refer to the conversation as pornographic just to be the correct word for that. It is also possible that I didn't tell police this information because I thought it wouldn't help find Amber as she was only missing at the time.
[7] I had this conversation in the hospital room with her as I was waiting for my husband to come and get me. There was no one else in the room. She didn't have the baby with her. Its possible he was in the nursery. She came in to me to talk to me."
Objection was taken by Mr Coady to the leading of this evidence on the basis that the material in paragraph 6 is hearsay that does not fit within any exception to the hearsay rule, specifically that the circumstances in which the representation was made are not circumstances that make it highly probable that the representation is reliable: (s 65(2)(c) Evidence Act 1995 (NSW) ("the Act")).
Mr Coady also argued that the evidence should be excluded under s 137 of the Act because the very low probative value of the evidence is outweighed by the danger of unfair prejudice to the accused and so, as required by the terms of s 137, the Court must refuse to admit it. In particular, the reason given for the witness not disclosing the additional detail in 2002 is based on a combination of unattributed rumour, suspicion and innuendo that counsel cannot examine but will by default become evidence in the trial that a female person living in the area was so scared of Robert Geeves that she gave an incomplete account of her interaction with Amber for fear of some kind of retaliation by Robert Geeves.
Section 65(2)(c) is in these terms:
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation -
(c) was made in circumstances that make it highly probable that the representation is reliable…
Section 137 states:
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
The Crown Prosecutor argued that the circumstances upon which the Court should focus are similar to circumstances already ruled upon, that is, Amber sharing personal details, (the circumstances in which [REDACTED] was conceived) with another woman in shared circumstances, (a maternity ward at Young District Hospital where both Amber and Ms Fitzpatrick had just given birth).
The Crown Prosecutor also argued that based on Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 ("Papakosmas") at [91] referring as it does to comments of Hunt CJ at CL in R v BD (1997) 94 A Crim R 131, and R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 ("Suteski") at [116] to [117] per Wood CJ at CL, in a judge alone trial s 137 has circumscribed reach because it is specific to the danger that a jury will misuse evidence. The Crown Prosecutor argued that a judge sitting alone, given her or his training and experience, knows how to disregard evidence and knows not to give undue weight to evidence.
In support of this submission, the Crown Prosecutor relied on R v Dawson [2022] NSWSC 814 ("Dawson") at [11] where Harrison J (as the Chief Judge at Common Law then was) said:
"[11] Secondly, in a judge alone trial, there is no prospect that the tribunal of fact will misunderstand or misapprehend the position that the representation has not been the subject of challenge by cross-examination or erroneously give it significance when it deserves none. In this context I note the remarks of the Victorian Court of Appeal in Director of Public Prosecutions v BB (2010) 29 VR 110; [2010] VSCA 211 at [21]-[22]:
"[21] Whilst the inability to cross-examine a witness at trial is a factor to be taken into account in determining whether the admission of evidence taken in an earlier proceeding will lead to unfair prejudice to an accused, it can never be determinative: [see R v Suteski (2002) 56 NSWLR 182, [126] (Wood CJ at CL) and the cases there citied]. Its weight on that issue in any particular case must take into account the legislative intent expressed in s 65(3) that the hearsay rule is not to apply to such evidence and the fact that the trial judge can always accompany its admission with appropriate directions to the jury.
[22] The evidence sought to be admitted in this case was not rendered inadmissible by any non-compliance with either s 65(3)(a) or (b) of the Act. Nor did any action of the magistrate infringe the right of either of the accused to cross-examine the complainant at the committal as they might have been advised. Any possibility of unfair prejudice to the accused can be adequately avoided by appropriate judicial direction if the complainant's evidence at committal is admitted as evidence on their trial. It is for the purpose of having available such evidence, despite the unavailability of a witness, that s 65(3) and its statutory predecessors were enacted."
[2]
Decision
There is evidence available that Amber told people that she had been "tied up" by Robert Geeves, and on a number of occasions Amber provided intimate details of her private life with Robert (and Anne) Geeves to women she barely knew but had come to meet in shared circumstances. Those circumstances include being marooned in Cootamundra waiting for hours for a train and being one of a group of mothers of new babies at QEII, a centre for assisting mothers with mothercraft and managing the relentless demands of caring for a new baby.
The representation contained in paragraph 6 of Ms Fitzpatrick's July 2024 statement bears those hallmarks. I am satisfied that the circumstances in which the representation was made to another young mother who had also just had a baby, provided the kind of shared environment in which Amber made representations of this kind, perhaps to gauge a response and be given some kind of reflected advice or feedback as to whether this was "normal". I am persuaded that the circumstances are such as to make it highly probable that the representation was reliable. The elements of s 65(2)(c) have been satisfied.
I am not, however, persuaded that the reliance by the Crown on Papakosmas, Suteski and Dawson provides a proper basis to refuse to exclude that evidence under s 137.
Those cases were directed at the obvious understanding a judge would have, or that can be the subject of a clear direction to a jury, that the maker of the representation was not and now cannot be cross-examined about the representation. The exceptions to the hearsay rule provide that there are instances where such evidence can and should be given.
However, in applying s 137, a weighing exercise is required and that is to assess the probative value of the evidence and weigh that against the danger of unfair prejudice to the accused.
Probative value is defined in the Act as the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
The fact in issue to which the evidence is directed was said by the Crown Prosecutor to be coercion and control exerted by both accused persons over Amber, or, at least, "relationship" evidence.
I have some difficulty understanding how the detail sought to be led - that "they" would watch porn and then have sex, which led to [REDACTED] conception - is probative of coercion and control by the accused persons. Who the "they" is referring to in paragraph 6 of the July 2024 statement is unclear.
Weighed against that is the unattributed and unexamined basis the witness asserts is the reason why she was allegedly fearful of Robert Geeves and so did not give this detail when she gave her statement in 2002.
It is unfairly prejudicial that this unattributed belief, where the witness herself has confirmed that it was based on rumour and accusation, comes into evidence by the backdoor as a purported explanation for not disclosing the detail before. It is not possible for counsel for the accused to now coherently unpack and cross-examine this witness on the basis of her alleged fears, and it is unfair to the accused to require that task to be attempted. No doubt the "explanation" was offered to defeat any submission that the evidence was recent invention.
This is not a question of the Court sitting as a judge alone not being at risk of ascribing unfair weight to the representation which has not been the subject of cross-examination - the situation to which the remarks of Harrison J in Dawson were principally directed.
The probative value of the evidence sought to be led on the question of alleged coercion and control is at best very very low and the unfair prejudice very high and at a level that clearly outweighs the probative value of the additional detail of evidence sought to be led from Ms Fitzpatrick.
On that basis, the evidence sought to be led by the Crown must be excluded.
[3]
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Decision last updated: 23 September 2024