R v Geeves; R v Geeves

Supreme Court of NSW|2024-07-12|Before: Lonergan J

(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

Objections have been taken by the defence to the admission into evidence of identified parts of statements of witnesses taken by police and to parts of the evidence given at the Inquest into the death of Amber Haigh held in 2011 ("the Inquest").
Robert and Anne Geeves are being tried before me for the murder of Amber Haigh. It is the Crown case that there was a joint criminal enterprise between the two accused to murder Amber, and that they murdered her between 1 and 6 June 2002. Amber had a baby to Robert Geeves on [REDACTED]. It is the Crown case that Amber was used as a surrogate mother as Anne could no longer have children, and that once Amber had provided that child, she was disposed of by the Geeves.

Relevant legislation

Section 59 of the Act provides as follows: 59 The hearsay rule - exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made. …
The effect of s 59 is that hearsay evidence is inadmissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
Section 62 restricts the exceptions provided in this division of the Act to first hand hearsay: 62 Restriction to "first-hand" hearsay (1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. (3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person's health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.
Section 66A provides: 66A Exception: contemporaneous statements about a person's health etc The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.
The statutory exception to the hearsay rule in criminal proceedings where the maker is unavailable is s 65(2) of the Act, which is in these terms: 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (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 - (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) was - (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable.…
The Crown relied almost exclusively on s 65(2)(c) in relation to the hearsay representations contained in police statements and the evidence given at the Inquest that it seeks to tender. The Crown must therefore show, in relation to each representation, that the representation was made in circumstances that make it highly probable that the representation is reliable.
The Crown also relied on s 65(3), (4) and (5) of the Act in respect of evidence given at the Inquest, on the basis that it is evidence of a person's representation in the course of giving evidence in an Australian proceeding: 65 Exception: criminal proceedings if maker not available … (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied - (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that - (a) is given in an Australian or overseas proceeding, and (b) is admitted into evidence in the criminal proceeding because of subsection (3), cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but - (a) could reasonably have been present at that time, and (b) if present could have cross-examined the person. …
It was conceded by the Crown Prosecutor on 12 July 2024 that s 65(3) has no application to Amber's previous representations because none of those representations were "made by her in the course of giving evidence in an Australian or overseas proceedings".
The role of s 65(3) is limited to representations made in evidence at the Inquest by persons other than Amber, and has no application to circumstances where the evidence in issue is limited to a recount of Amber's representation.
Also relevant to the consideration as to whether the evidence in question should be admitted are ss 135 and 137 of the Act, providing a discretion to exclude evidence in some circumstances and a mandate to exclude it if its probative value is outweighed by the danger of unfair prejudice to the defendant(s).
Section 135 provides: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might - (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time.
Section 137 provides: 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.
In some instances s 136 limitation were sought: 136 General discretion to limit use of evidence The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might - (a) be unfairly prejudicial to a party, or (b) be misleading or confusing.
The Court and the parties have been unable to find any decisions containing discussion of the operation of s 65(3), (4) and (5) in the context of evidence given at an inquest or cases that discuss circumstances where the objecting parties were not legally represented, or not present at an inquest, which were the respective positions of Mr and Mrs Geeves at the Inquest.
In the context of evidence given to ICAC, Fullerton J said the following in R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1286 at [7] to [10]: "[7] It is clear that ss 62 and 65(1) of the Evidence Act operate to relax the exclusionary effect of the hearsay rule in relation to an assertion of fact by a person who had personal knowledge of that fact. In my view, it is equally clear that ss 65(2) and 65(3) provide an independent basis for a party seeking to avail itself of the operation of s 65(1) where the person who made the previous representation is also, relevantly, unavailable to give evidence. [8] In Thomas v The State of New South Wales [2008] NSWCA 316; 74 NSWLR 34, at [34], Campbell JA was of the same view, albeit expressed obiter dictum. Where s 65(2) is concerned with a previous representation by a person who saw, heard or otherwise perceived the representation being made, s 65(3) is concerned with a different set of circumstances, namely where the previous representation is made in the course of a person giving evidence in "an Australian or overseas proceeding". It is only when the previous representation that asserts the relevant fact sought to be proved is one that is given by a person who saw, heard or otherwise perceived the representation being made that there is an additional concern with the circumstances in which the representation was made, with those concerns then operating as a precondition to the admission of the evidence as an exception to the rule against hearsay. [9] Each of ss 65(2)(a)-(d) is concerned with the reliability of the circumstances in which each of the relevant facts sought to be proved (see Sio v The Queen [2016] HCA 32; 259 CLR 47 at [55]-[57]). Those same concerns (perhaps self-evidently) do not apply where the previous representation is given in the course of the person giving evidence in an Australian or overseas proceeding, and where the party against whom the evidence is sought to be adduced cross-examined the person giving evidence concerning that representation or had a reasonable opportunity to do so. Although Campbell JA did not say so expressly, his analysis in Thomas at [35] of the operation of s 65(3), where he emphasised that the operation of the section preserves, so far as possible, the element of a fair trial in which the opportunity to cross-examine those who give evidence against the party is an important feature, and that s 65(3) only operates where a person has given evidence in an earlier proceeding, exemplifies the difference in operation of the relaxation of the exclusionary rule against hearsay provided for in ss 65(2) and 65(3) of the Evidence Act. [10] That being so, I am of the view that the Court need only be concerned with the Crown's application to admit the evidence under the precondition provided for in ss 65(3)(a) and (b)."
As explained by Davies J in R v Omar [2022] NSWSC 371, in circumstances where s 65(3) is not engaged because there was no reasonable opportunity to cross-examine, s 65(2) must then be addressed: "[72] The very reason that consideration is being given to admitting the evidence pursuant to s 65(2) is because no cross-examination or opportunity for cross-examination occurred: Sio at [60]; Suteski at [98] to [101]. If it had occurred, s 65(3) would have permitted the evidence to be adduced. The limitations in s 65(2) ("under a duty", "unlikely that the representation is a fabrication", "highly probable that the representation is reliable", "likely that the representation is reliable"), are partly designed to deal with the fact that the material sought to be adduced will invariably not have been cross-examined. That is not to say that the fact of no cross-examination ceases to be of relevance for the purpose of s 137, but it seems likely that more would be needed in terms of prejudice, particularly where the probative value of the evidence is so high."
The High Court (French CJ, Bell, Gageler, Keane and Gordon JJ) considered the application of s 65(2) in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 ("Sio"). That case concerned s 65(2)(d) of the Act but the principles are the same. The Court held that proper approach to application of s 65(2) is as follows: "[57] It can be seen that the application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65. [58] It is apparent in the present case that neither the trial judge nor the Court of Criminal Appeal considered any particular representation upon which the Crown sought to rely in this way; rather, the application of the provision was approached on a compendious basis whereby an overall impression was formed of the general reliability of the statements made by Mr Filihia and then all his statements were held to be admissible against Mr Sio. That compendious approach does not conform to the requirements of the Act."
The High Court went on in Sio to observe at [63] and [69]-[70]: "[63] Section 65 gives effect to the view that the circumstances of the making of an out of court statement conveying an assertion of a relevant fact may be such as to indicate that the representation is likely to be reliable - and the asserted fact likely to be true - notwithstanding the hearsay character of the evidence. The section operates on the footing that the circumstances in which the representation was made may be seen to be such that "the dangers which the rule seeks to prevent are not present or are negligible in the circumstances". In such a case, "there is no basis for a strict application of the rule". … [69] In R v Ambrosoli, Mason P, with whom Hulme and Simpson JJ agreed, while discussing s 65(2)(c) of the Evidence Act, said that the provision seeks to focus attention upon the circumstances of the making of the representation to determine the likelihood of its reliability, but that: "evidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby." [70] That observation may be accepted. The focus of attention of a trial judge tasked with ruling upon the admissibility of a representation is directed by s 65(2)(d)(ii), not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made. The issue is whether the trial judge is affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is likely to be reliable evidence of the fact asserted." (Footnotes omitted).
As stated by N Adams J in R v Singh (No 4) [2021] NSWSC 75 ("Singh") at [28]: "[28] Thus, the focus is not on whether the representations themselves are likely to be reliable but on the circumstances in which they were made. Objective circumstances that may preclude a finding of likely reliability include "a specific retraction of the assertion of the relevant fact" or [s]statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous" (Sio at [71]). In assessing the circumstances in which the representation was made, the Court is not to undertake a general assessment of whether the representor is a reliable witness: Sio at [72]."
The Court must not take a "compendious" approach, but must consider each particular representation separately: Sio at [58].
Button J in R v Ryan [2020] NSWSC 1394 ("Ryan") at [6]-[7] made some remarks about the policy considerations behind the rule against hearsay in the context of the examination made in Sio: "[6] The High Court at [60] emphasised the strictness with which the statutory exceptions need to be approached. The point was made that the admission into evidence of a hearsay statement adverse to an accused has serious procedural consequences, first and foremost the inability to cross‑examine the maker of the statement if it is inculpatory. [7] I think respectfully, as a matter of common sense, the rule against hearsay is something that has been part of our jurisprudence for hundreds of years, and I believe it is the objective intention of Parliament that exceptions having been carved out by Parliament be approached with a degree of rigour, and with appreciation of the consequences."
In respect of the application of ss 135 and 137, the remarks of Wood CJ at CL in R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 are to be borne in mind: "[116] As is now well established, the prejudice to the defendant of which each of s 135 and s 137 speak is not the simple fact that the evidence may advance the Crown case or weaken the defence case. Rather it means damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves: R v Lisoff [1999] NSWCCA 364; see also R v Lockyer (1996) 89 A Crim R 457 at 460, Papakosmas v The Queen (1999) 196 CLR 297 at 325 [91] and R v Serratore (1999) 48 NSWLR 101 at 109 [31]. Dunford J there said that evidence is of this character, where it "¼ has only slight probative value but which carries with it a probability that it will be misused by the tribunal of fact in a way logically unconnected with the issues in the case". [117] There must be more than a hypothetical risk of it being unfairly prejudicial in this way - the risk must be a real one: R v GK (2001) 53 NSWLR 317 at 324."
The Crown Prosecutor placed emphasis on the observations by Harrison J (as the CJ at CL then was) in R v Dawson [2022] NSWSC 814, in support of a submission that this particular Court, a judge sitting alone, will not misuse evidence, and so s 137 has a limited role: "[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."
The Crown Prosecutor submitted that in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 per McHugh J at [91], focus was clearly on the potential for misuse of evidence by the jury in some unfair way: "[91] Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD, Hunt CJ at CL pointed out: "The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way"." (Footnotes omitted.)

Evidence given at the Inquest in 2011 and the operation of s 65(3) of the Act

Initially, the Crown Prosecutor argued that s 65(3) provided a route by which evidence given at the Inquest repeating representations that Amber made to witnesses did not have to fit within any exceptions to the rule against hearsay. This was ultimately acknowledged by the Crown Prosecutor on 12 July 2024 to be incorrect. Obviously Amber did not give evidence at the Inquest and so there was never any opportunity, reasonable or otherwise, to cross-examine her about those representations.
On the wider question of whether both accused had a reasonable opportunity to cross-examine any witness called at the Inquest as to that witness' own representations, the following analysis is relevant.
Both accused were served with a letter from the Crown Solicitor's Office in March 2011 informing them that they were "persons with sufficient interest to be granted leave to appear".
After noting the Inquest hearing date of 20 to 24 June 2011, the Crown Solicitor's letter stated: "… The role of the Coroner is to investigate and make findings in relation to the date, place, manner and cause of the presumed death of Ms Haigh. The Coroner is of the opinion that you have a sufficient interest in the subject matter of this inquest to be granted leave to appear at the inquest. You will be called as a witness at the hearing of this inquest. While the Coroner has formed no concluded views on the matter, you should be aware that there is material in the brief that may provide a foundation for the Coroner to make adverse findings and/or comments about you. Further, it is possible that information adverse to you may be admitted into evidence. You may therefore consider seeking legal advice prior to the hearing and to be legally represented at the hearing. You are entitled to seek leave pursuant to s. 57 of the Coroners Act 2009 for your legal representative to appear at the inquest and to examine and cross-examine any witnesses on matters relevant to the inquest. If you do retain a legal representative to appear on your behalf at the inquest, please hand this letter to your representative without delay and request him or her to contact me prior to the hearing. If you do not retain a legal representative at the hearing you may consider it to be in your best interests to ensure that you are present during the entirety of the proceedings. If you do not have legal representation or do not avail yourself of the opportunity of being present during the course of the proceedings you may be disadvantaging yourself and your best interests. You may wish to make inquiries of the Legal Aid Commission of NSW to determine whether you come within its criteria for funding for a coronial inquest. The above is brought to your attention so as to allow you to consider the most appropriate course of action, which should be taken by yourself in relation to this inquest. Please note that the brief of evidence in this matter is in the process of being finalised and a copy will be provided to you or your legal representative."
The Crown Prosecutor argued that by virtue of this letter, each accused was provided with a reasonable opportunity to cross-examine the maker of any representation at the Inquest, and if they chose not to do so, they could not now complain that s 65(3) did not operate. He argued that given the contents of the letter, both Mr and Mrs Geeves should have sought (and, presumably successfully obtained) legal representation for the Inquest. Their choice not to appear, and not to seek an "accommodation" from the Coroner was a decision each of them made, and they could not now complain about that missed opportunity.
The Crown Prosecutor noted that Mr Geeves appeared for himself. He was invited to question each witness by Deputy State Coroner Mitchell and/or counsel assisting the Coroner, Mr Hamill SC (as his Honour then was). This provided an actual opportunity to cross-examine of the kind referred to in s 65(3)(b) and as defined in subs (5).
The position of Mrs Geeves was different. Medical evidence was tendered in this trial, (and at the Inquest), to the effect that at the time the Inquest proceeded in June 2011, Mrs Geeves was undergoing kidney dialysis in Canberra three days a week. This fact was referred to in the transcript of the Inquest. Mrs Geeves was effectively excused by the Coroner from attending in June 2011. She did appear briefly at the end of the Inquest on 11 July 2011 and answered some questions, but in effect, and apparently on advice, declined to give evidence of any substantive kind. Mr Geeves also declined to give evidence.
The following was included in the Preface to the Coroner's findings: "Notices of Sufficient Interest had been served on Robert Samuel Geeves and Anne Margaret Geeves. Mr Geeves attended the hearing on each day and I was informed had received some legal advice but he was unrepresented. Mrs Geeves did not attend the hearing until the inquest reconvened at Young, having been excused earlier on the basis of a medical certificate EXHIBIT 3. Each was called to give evidence but, in the event, neither did so."
On the question of legal representation for Mrs Geeves, in a transcript of a directions hearing in April 2011, there is mention by the solicitor assisting the Coroner, Ms Murty, of the name of a solicitor who at that stage was said to be retained by Mrs Geeves, and likely to seek leave to appear on behalf of Mrs Geeves at the Inquest.
An affidavit of Clive Hill, solicitor for Mrs Geeves in this trial, tendered on the voir dire outlined Mrs Geeves' circumstances around that time. That affidavit demonstrates to my satisfaction that Mrs Geeves was in ill health with serious kidney disease, that she was on Centrelink Disability Support and that she made a timely application for Legal Aid as an "interested party" to the Inquest. The application stated that in addition to her ill health, she had "little legal knowledge in relation to the procedures of the Court and the law", but had been notified by the Crown Solicitor's Office that there may be adverse findings made against her or adverse comments about her.
On 18 April 2011, Legal Aid requested further information to determine whether the matter met the public interest test. A further detailed letter was sent to the Legal Aid Coronial Investigation Unit by Garden and Montgomerie Solicitors, providing cogent reasons why a grant of Legal Aid ought to be provided. On 6 June 2011 Legal Aid notified Mrs Geeves and her solicitor that her application had been refused.
Mr King submitted on behalf of Mrs Geeves that she could not reasonably have been present at the Inquest when the other witnesses gave evidence, and that she was effectively excused from attending by the Coroner based on the medical certificates she provided.
Mr King also made the point that most, if not all, of the identified passages of Inquest evidence to which objection was taken, related soley to Robert Geeves, and/or could not be said to be in furtherance of the alleged joint criminal enterprise and so was not admissible against Anne Geeves.
Mr Coady submitted on behalf of Robert Geeves that "reasonable opportunity" in the context of s 65(3) must at the minimum mean that someone is legally represented. He was not able to identify an authority that stated that proposition in those terms, but relied, appropriately, on the recognised reluctance of this Court, (and other courts), to admit hearsay evidence because of the consequences of admitting it: see Singh at [42] per N Adams J, citing Button J in Ryan at [6] and [7].
Mr Coady drew distinctions with the situation dealt with in Puchalski v Regina [2007] NSWCCA 220, where a witness was in fact cross-examined at the committal by a solicitor, and R v Ronald Edward Medich (No. 17) [2017] NSWSC 170, where a witness unavailable at trial had in fact been cross-examined at the committal by experienced senior counsel, although on pre-arranged topics only.
Mr Coady submitted that in the context of a murder trial, where witnesses gave evidence at an inquest where the rules of evidence did not apply, and at which neither Mr Geeves (nor Mrs Geeves) were legally represented, there was no reasonable opportunity to cross-examine these witnesses, and, of course, those proceedings provided no opportunity to cross-examine Amber.

Conclusion as to the role of s 65(3) in this case

I am unpersuaded by the Crown Prosecutor's submissions. They ignore the reality that was presented to the accused persons at the time of the Inquest and the context and function of this part of the Evidence Act. The letter from the Crown Solicitor's Office is not one that makes any formal acusation. To a member of the public unfamiliar with the Coroners Act 2009 (NSW) and its multifaceted operation, this letter would provide no alert to or concern about the very serious potential repercussions for a "person of interest".
The Inquest was held nine years after Amber's disappearance. Although Mr and Mrs Geeves were questioned in ERISPs in 2002, no charges were laid. This is a very different circumstance to a committal proceeding, or even an ICAC or Crime Commission hearing, where certain allegations or complaints have been made and are explored at that hearing. An inquest is, by necessity, a much more inchoate process, unless and until s 78 of the Coroners Act comes into play to suspend or confine or terminate the inquest.
The rules of evidence do not apply to evidence led at inquests. The examination of witnesses by counsel assisting is done with ample reference to statements previously prepared. Leading questions are often used. The focus of an inquest is to lead evidence in an inquisitorial fashion that assists the Coroner to arrive at a conclusion as to the manner and cause of death. There are no "parties" opposing each other. Persons or organisations seek leave to appear. Leave is not a fait accompli. The focus is for the Coroner to work out what happened, and, in some circumstances, make recommendations to improve risks and systems relevant to the manner and cause of a death.
Legal representation is not provided through some kind of free scheme such as is the case for ICAC hearings. There is no "accusation" or "allegation" made against anyone in a formal sense. If there is, or the Coroner forms a view that there should be and there is evidence capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence, the Coroners Act requires suspension or limitation of the inquest: see s 78.
Cross-examination at an inquest is a complex and tactical task. In the absence of an allegation, forensic judgment needs to be deployed as to whether to ask a question and what to ask. Despite the polite and appropriate encouragement of the Coroner and counsel assisting, it is unreasonable to expect a lay person (Mr Geeves) in that complex forum, to "cross-examine". Even if a lay person is brave enough to do so, I would not class such an attempt as "a reasonable opportunity to cross-examine" within the meaning of s 65(3).
Mrs Geeves was not able to be present due to ill health. Even if she had a lawyer present, (and I am satisfied she made reasonable steps to pursue Legal Aid help, which failed), she would need to be physically at Court to instruct on a daily basis as to what evidence needed challenging or exploration. Her ill health provided a further difficulty impeding any "reasonable opportunity" to cross-examine.
I accept Mr Coady and Mr King's submissions. There was not, in the context of these people at this Inquest, any reasonable opportunity to cross-examine. Section 65(3) of the Act has no role to play in rendering admissible any of the evidence given at the Inquest.

Stella Nealon

Stella Nealon is Amber's great aunt, with whom Amber lived for a while at Carinya Downs, a property not far from the Geeves house. She provided a statement to police dated 25 June 2002. Objection is taken by the defence to this part of her statement referring to a conversation with a nurse at the hospital just after Amber had her baby in January 2002: "16. … The nurse said to me, "I am giving you a warning that the father wants her to meet him down at the creek near his property. Be careful, I don't trust him." I said, "Thankyou [sic] for telling me I will take notice." Amber asked me soon after if she could meet with Robert down the creek and I would not let her go."
Given the lack of detail about "the nurse", the circumstances relevant to a s 65(2)(c) analysis have not been sufficiently identified and so I cannot be satisfied that the circumstances in which the representation was made by "the nurse" are such as to make that nurse's representation highly likely to be reliable.
In any event I excluded this evidence on the basis of s 137 of the Act as "the nurse" was not identified and so the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused, as the maker of the representation and her/his basis for the assertion could not be examined in this trial.
Objection was taken to the following assertion in that same statement: "18. … I told her again that she should stay away from Robert and Anne and she said, "… They are standing over me." …"
I ruled that s 66A of the Act permitted admission into evidence of "they are standing over me" because it is a contemporaneous statement made by Amber to her great aunt about her feelings or state of mind.
The assertion by Ms Nealon in paragraph 20 of her statement: "I know they want the baby for themselves" was excluded on the basis of s 137 of the Act as the basis for Stella's assertion is unstated. The probative value of this evidence is very low and its potential unfair prejudicial effect, high.
The following is an example of the evidence given by Ms Nealon at the Inquest sought to be led by the Crown to which objection has rightly been taken: "Q. In your statement you said that there was so problems where Amber came to you from the welfare and told you that the Geeves had told her that you were angry and you were going to harm her? A. Yes, I remember that day and I remember it quite well and that was - Q. Well, when did that happen? A. That's when the time when she was pregnant with Paul's baby, this is how it really happened, when she was pregnant he used to take her there and she didn't want to - have the baby terminated, so they took her to there - they never brought her home and I was worried, so that night I went up to Robert Geeves and I said, "Where's Amber" and I was, you know, upset and he looked at me and he said, "Oh I don't know," but lo and behold he was - took her to the - to this welfare place and said I was unfit, okay, and then when I got on the phone to him he said, "Oh, you're going to have a heart attack." Q. So this is going back a couple of years before she went missing? A. Yes, yes. Q. This is back when she was pregnant? A. Yeah, back then, but that's how it started all, then it was - because they wanted to keep the baby, said, "We'll take the baby." Q. Which baby are you talking about? A. Paul's baby. Q. So that's - A. Not, not his baby, Paul's baby, that's how it started, everybody's getting everything wrong, yeah." [1]
This evidence is confusing and potentially misleading and I excluded it under s 135 of the Act. The recount does not fall within one of the s 65(2) exceptions because the circumstances being referenced in the evidence are so vague. It would be unfairly prejudicial to the accused to admit that exchange into evidence in that form. Its probative value is very low as its reference points are so unclear.
The following questions at the Inquest led to this evidence to which objection has been taken: "Q. Did Amber tell you or tell Jacqueline anything about some sexual activity that happened between her and Robert Geeves? A. Yes, they had to say that - well, I only heard that he - he used to have sex with her, he used to - before when he used to - like when she was fully, nearly developed, like more fully, he used to take her to the - Wagga to have a CAT scan, like a - what is it - they put stuff on it - I can't think, ultrasound, yes, I can't think, see, so before they go he had sex in the car, or take her up to his place and have sex. Q. Who told you that? A. Amber did, then I - then I took her to Dr - the American doctor, she said - told Amber not to ever have sex when she's pregnant. Q. Now, you - A. Larkin, Dr Larkin, it was." [2]
This evidence was excluded under s 135 of the Act as the evidence is confusing, potentially misleading and unfairly prejudicial. The "circumstances" of the representation by Amber - if that is what this extract is referring to - are unclear and so an assessment under s 65(2)(c) cannot adequately be performed.
Objection was also taken to this evidence: "Q. Would she tell you anything about what was going on? A. She'd tell me lots of things, he tied her up, the things on her arms and that, yeah. Q. Did she tell you anything about Anne? A. Yes, and I tell you what, she used to say - she said when she was pregnant she said she wants the baby, she said, "She's treating me like cruel, she's not very good to me," she says, "She's treating me rough and terrible," she said but she's not going to get it anyhow and I remember that, I said, "Good" because - yep." [3]
The prevailing circumstances in which those representations were made by Amber were inadequately identified such as to allow an adequate s 65(2) assessment to be made. It may be a reference to a number of conversations, and so the evidence cannot be admitted under this provision of the Act. The assertion includes second-hand hearsay. "She said she wants the baby" is a reference to what Amber said Anne Geeves had said. In any event, I excluded the evidence under s 137 of the Act as it is of low probative value in that form, and there is a significant danger of unfair prejudice to the defence.

Ray Harding

In his statement to police dated 11 July 2002, Mr Harding said this: "10. I remember several times Amber has called Stella and me and told us that she was frightened of both Robert and Anne GEEVES. …"
I excluded this evidence as the language used suggests Mr Harding is possibly recounting someone else's recount of what Amber said and so would be second-hand hearsay, and no exception to the rule against hearsay applies: s 62.

Petrina Ingram

Petrina Ingram is a young woman whom Amber met at Cootamundra train station in March 2002 while they were both waiting for delayed train connections. They started up a conversation and spent some time together during which Amber told Ms Ingram things about her baby, (who was with her), and her circumstances. Ms Ingram was shocked about a number of things Amber said and contacted Crime Stoppers on at least three occasions after Amber was referred to in television reports as missing. Ms Ingram was not approached by police for a statement until 2024.
In her statement to police dated 3 April 2024, Ms Ingram stated that: "16. … Amber told me she believed the father and wife were trying to take the baby off her because the wife couldn't bear children of her own. …"
Objection was taken to this evidence being led however it was accepted by counsel for the accused that this was a representation made by Amber to which s 66A of the Act applied as a contemporaneous statement of Amber's feelings, knowledge or state of mind.

Keli Wood

Keli Wood was a mother Amber met at QEII (the mothercraft residential course Amber attended with her baby between 4 and 8 March 2002) and whom Amber told certain things about her living arrangements with the accused.
Objection was taken to the following part of her statement to police dated 31 October 2022: "13. … I remember her responding that she was living with them as if she was a single mother she felt like baby [REDACTED] would be taken off her and so to stay with the baby she felt like she had to stay with them."
I ruled that this evidence could be given as the circumstances in which the representation was made were such that made it highly likely the representation was reliable: s 65(2)(c). Amber had a habit of telling other women in shared circumstance what was happening in her life. It seemed to be done to seek a response, or, potentially, maybe some advice. Amber had little exposure to positive role models for healthy, loving relationships and it seems was struggling to find people she could trust and in whom she could safely confide.
There was no reason to exclude this evidence under ss 135 or 137. It was not unfairly prejudicial to the defence. The probative value was high on the question of whether there was in fact coercion and control by Mr and Mrs Geeves. It raises the possibility on this issue that Amber chose to remain with the Geeves to prevent the risk that she would have her baby taken from her by DoCS as a single mother with little income and inadequate support.
Ms Wood also recounted that: "14. … Amber said what could she do as she was fearful of her baby being taken away. …"
I ruled that this representation fitted within the s 66A exception to the rule against hearsay as contemporaneous state of mind evidence and there was no basis for exclusion under ss 135 or 137, as it was not unfairly prejudicial to the defence.

Jacqueline Cash (now Winn)

Jacqueline Cash is Amber's older cousin. She made a statement to police dated 9 July 2002, which included this extract to which objection was taken: "5. … During this period mum told me something about the GEEVES (mum said that Robert and Ann [sic] GEEVES had taken an interest in Amber. …"
I excluded this evidence as it is of low probative value and is potentially unfairly prejudicial given the vagueness of the assertion.
Ms Cash also asserted: "9. … I also believed that Robert GEEVES (snr) was snooping around the house and Amber would also say that Robert would knock on her window to talk to her."
I ruled that this evidence could not be given in this form as it was too vague as to time, basis and circumstances and so unfairly prejudicial: ss 135 and 137. I granted leave to the Crown Prosecutor to ask Ms Cash questions about this topic.
The evidence given by Ms Cash at the Inquest on 21 June 2011 was not ultimately pressed by the Crown Prosecutor.

Paul Harding

Paul Harding is Amber's third cousin. Amber had a romantic and sexual relationship with Paul and became pregnant to him in late 1997. (She was discovered to be about 10 weeks pregnant in February 1998).
He made a statement to police dated 4 July 2002, in which he said the following, to which objection was taken: "13. Amber also told me that she was afraid of Robert GEEVES, however I never asked her why as it was none of my business."
This falls within the s 66A exception as a contemporaneous statement of Amber's feelings or state of mind and can be led.
Paul Harding also said the following, which also fits within s 66A: "10. … Amber said that she was scared of Anne GEEVES. … I recall that Amber said that Anne grabbed her hand and twisted it once."
Paul Harding gave evidence at the Inquest on 21 June 2011 to similar effect: "A. No, she, she did say that she was a bit scared of Robert and she didn't, she didn't really want to have a baby to him and all that sort of stuff and because other things. Q. What other things? A. Like, she was scared of him and she, they wouldn't ket her out of the house and all that sort of stuff." [4]
I concluded that this evidence cannot be given in this form. The assertion that she was scared of Robert Geeves fits within s 66A as a representation of Amber's contemporaneous state of mind. (It is in effect a repetition of what Paul Harding said in his statement). The Crown Prosecutor was given leave to ask about these matters in chief so defence counsel had an opportunity to cross-examine Paul Harding about those matters.

Patricia Haigh (deceased)

Amber's aunt gave a statement to police on 21 June 2002. In addition to conveying a representation Amber made to her about being tied up, (dealt with at [57], [59] and [60] of the judgment R v Geeves; R v Geeves (No. 5) [2024] NSWSC 939 dealing with Amber's assertions regarding Robert Geeves tying her up), Patricia Haigh included the following: "9. Shortly after the incidents that Amber told me about, she became pregnant. Amber told me that Robert Geeves and his wife had told her that they wanted the baby. She told me that during her pregnancy they threatened to take the baby from her. She also told me that they told her not to tell anyone in the town that the baby was Robert Geeves."
This is second-hand hearsay within the statement and cannot be admitted: (s 62) but as Patricia Haigh is deceased, all of her evidence of what Amber said to her is second-hand hearsay as Ms Haigh will not be giving evidence at this trial.
At paragraph 12, Patricia Haigh said: "12. I had asked her if she was scared of Robert Geeves. She would tell me that she was. I asked her if she was having sex with Robert Geeves. She told me that she was. I would ask where his wife was. She would tell me that his wife would be out the front in the car. …"
This too is second-hand hearsay and so cannot be admitted.
Objection was taken to the following evidence that Patricia Haigh gave at the Inquest on 20 June 2011: "Q. Yes, you mentioned the videos that they may have had a hold on her as a result of those videos? A. Yes, yes, and I was - no, I wasn't allowed to have her phone number and when she was on the phone to me I'd say, "Is that" - because there'd be a knock on the door, and I said, "Is that him" and she'd go, "Yes." I said, "Well, just have the phone so I can hear him." She said, "I'm not allowed to," and I say, "Well, next time just try," I said, "you've got to come home, it's not good like that," I said, "you've got to come home." [5]
This evidence again is second-hand hearsay and cannot be admitted.

Judith Khan (deceased)

Judith Khan was Amber's paternal grandmother. In a statement to police dated 16 May 2003, Judith recounted the following: "26. … Several times when Amber would ring me. Amber would say to me," [sic] I have to hang up. Roberts (indicating Robert GEEVES) outside." I said," Don't let him in." Amber said," I have to. He gets angry. I'll ring you back." This type of thing would happen regularly."
This evidence is the subject of objection by the defence. Whilst a representation about Amber's state of mind or feelings, and so s 66A may on its face appear to apply, Ms Khan is not available to be cross-examined in these proceedings and the representation is second-hand hearsay and not admissible.
The same applies to those parts of the following extract from the statement that comprise Amber's representation being repeated by Ms Khan. The first paragraph is problematic in that she does not state the basis of her awareness. The representations of what Amber had said to her and what Tracey had said to her in the following three paragraphs are second-hand hearsay and not admissible: "34. I was aware that Amber made a visit to Sydney staying with my son Michael and his partner Tracey at Emerton. I am not sure if Amber stayed there the whole time or whether she visited her mother as well. While she was there we tried to get in contact with Geoffrey so he could go and see the baby. I couldn't locate Geoff. Amber said," I have to get back. Robert wont let me stay any longer." I later had a conversation with Tracey. Tracey said," Amber was too frightened to buy things for the baby because Robert would be angry with her. but she bought things anyway." That's the last conversation I had with any of them. The last thing I recall as that Amber was going to bring the baby up here to Lismore to be christened and Robert wanted to come up too. I said," No. I wont be going to the christening if he is going to be there." We later learned that Geoff was in Auburn hospital. Geoffrey kept his illness to himself for sometime. We were told that Geoffrey was dying from end stage liver disease; he didn't get to see Amber or the baby on this occasion. Geoffrey left Auburn Hospital and went to stay with Michael and Tracey. He remained at their house for a short time up until he was admitted to Mount Druitt Hospital for further treatment for his disease."
In the following paragraph, although the first sentence is admissible: "That's the last conversation I had with any of them". The balance of the paragraph is not admissible because it is second-hand hearsay, and the reference to what "Robert wanted" is unattributed third-hand hearsay. What Ms Khan said in her statement about what she, Ms Khan, said to Amber about the christening is admissible, and probably relevant to the issue of family antipathy to Robert Geeves, but objection is taken to all of this evidence by the defence and in those circumstances I will exclude it.
In respect of the following paragraph, the first two and a half lines down to the word "disease" are admissible, however the next part: "he didn't get to see Amber or the baby on this occasion" is excluded under s 137 as its probative value to the fact in issue (whether and when Amber went to see her father) is outweighed by the danger of unfair prejudice to the accused because Ms Khan does not state her basis for her assertion: "he didn't get to see Amber or the baby on this occasion". The balance of the paragraph regarding Geoffrey's hospitalisation at Auburn and Mt Druitt Hospitals, and his time at Michael and Tracey's house, is non-specific and the basis for her understanding not stated. It is at least possible the basis for her belief is hearsay as opposed to actual knowledge and so her recount of it is second-hand hearsay, and so I exclude it under s 62 and alternatively and in addition, s 137, on the basis of the danger of unfair prejudice to the accused versus the limited probative value.
Ms Khan gave evidence at the Inquest on 22 June 2011. Objection has been taken to the following evidence: "Q. Just one last question, did Amber ever speak to you about introducing her son to her dad? A. Yes, she did, she wanted to take her son just for her father to see him. Q. How do you know that, that she wanted to do that? A. Well, she told me - she told me that night when I told you she rang and she had to go and get more money, she told me that night, "I'm going to take the baby to see dad because he hasn't seen him." Q. Just to be clear, where was her dad then at that point? A. Mount Druitt. Q. Did you explain to Amber how sick her father was and his prospects? A. Yes, I did. Q. Did you explain to her that he might pass away soon? A. I told her - told her that he was very ill and that, you know, he doesn't have that much longer because Mount Druitt had told me that if I didn't get down by that weekend I wouldn't see him again." [6]
The evidence of what Amber said is inadmissible as it is second-hand hearsay and so the first and second questions and answers are inadmissible. However the evidence as to what Ms Khan recounted at the Inquest that she herself had said to Amber, needs to be evaluated under s 65(2)(c) as a hearsay representation where the maker is unavailable. I consider a conversation with her granddaughter, Amber, about her son, (Amber's father), being mortally unwell and about his location, are representations made in circumstances that make it highly probable that her representations to Amber are reliable.
The third, fourth and fifth questions and answers are admissible. There is no basis under s 135 or s 137 to exclude that evidence. I will direct myself to the question of weight that should be given to that evidence, given that it was not the subject of any cross-examination, when the time comes for me to evaluate together all of the evidence led in the trial.

Endnotes

Inquest transcript dated 20 June 2011, p 62 (17)-(44)
Inquest transcript dated 20 June 2011, p 63 (30)-(44)
Inquest transcript dated 20 June 2011, p 69 (1)-(10)
Inquest transcript dated 20 June 2011, p 27 (43)-(49)
Inquest transcript dated 20 June 2011, p 51 (43)-(50)
Inquest transcript dated 20 June 2011, p 44 (41) to p 45 (9) 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

Evidence Act 1995(NSW)ss 59, 62, 65, 66A, 135, 136, 137

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