EVIDENCE - murder trial - unfavourable witness - whether leave to cross-examine should be granted
Legislation Cited: Evidence Act 1995 (NSW) ss 38, 43, 192
Cases Cited: Doyle v R
R v Doyle [2014] NSWCCA 4
DPP (Vic) v Garrett (2016) 257 A Crim R 509
[2016] VSCA 31
Kannan & Ors v R [2006] NSWCCA 109
R v Kneebone (1999) 47 NSWLR 450
[1999] NSWCCA 279
R v Le (2002) 54 NSWLR 474
Source
Original judgment source is linked above.
Catchwords
EVIDENCE - murder trial - unfavourable witness - whether leave to cross-examine should be granted
Legislation Cited: Evidence Act 1995 (NSW) ss 38, 43, 192
Cases Cited: Doyle v RR v Doyle [2014] NSWCCA 4
DPP (Vic) v Garrett (2016) 257 A Crim R 509[2016] VSCA 31
Kannan & Ors v R [2006] NSWCCA 109
R v Kneebone (1999) 47 NSWLR 450[1999] NSWCCA 279
R v Le (2002) 54 NSWLR 474
Judgment (6 paragraphs)
[1]
Introduction
Robert and Anne Geeves have been accused of murdering Amber Haigh between 1 and 6 June 2002. It is the Crown case that they did so because they had used Amber Haigh, who was then 19 years old, as a surrogate mother to bear a child for the accused couple as Anne Geeves - who was then 41 years old - had suffered four miscarriages and a stillbirth and wanted another child, having given birth to Robbie Geeves 19 years before.
Police received information that around the time of Amber's disappearance, and possibly before, Robert was associated with, or having an affair with a woman named Ursula Kirk (now O'Sioda but referred to as Kirk in this judgment). The police investigation of Amber's disappearance included DI Price having a conversation with her on 10 August 2005. DI Price prepared an investigator's note in which he recorded that she and Robert Geeves had discussed him wanting another child, finding a surrogate mother and what she knew about it. She said that she told him it was illegal and to forget about it. He went on to say they were going to speak with someone legal about if it can happen. She said that conversation took place around the end of 2001.
DI Price recorded that Ms Kirk also stated that she did not know Amber and Robert has never discussed her disappearance or anything else with her. As far as she knew, Amber was only Robbie's girlfriend.
DI Price did not take a statement nor write this down in his notebook and have Ms Kirk sign it. None of the matters recorded were set out as quotes of what Ms Kirk said.
Ms Kirk provided a statement on 10 November 2006, some 15 months later. In that statement she repeated that she had never met Amber and that Robert had never spoken to her about Amber or her disappearance. She confirmed that before the end of 2001, she: "…did have a conversation with Robert where he discussed the issue of surrogacy. I recall that the conversation wasn't personal to him, and due to the length of time that has passed since that conversation, I don't remember how the issue was raised. I don't remember Robert ever telling me that he wanted more children".
The Crown's application had been foreshadowed before the trial and Notice was served on the defence under s 38 of the Evidence Act 1995 (NSW). The Notice stated an intention to apply for leave to cross-examine Ms Kirk about "the scope of her conversation with Robert Geeves on the topic of surrogacy" and "her purported lack of interest in the disappearance of Amber Haigh in 2002".
Counsel for the defence opposed any pre-trial ruling, stating, appropriately, that until the witness gave evidence and so the content of her evidence was known, s 38 can have no application.
Ms Kirk gave evidence on 15 July 2024. She presented as truculent and guarded, but answered the questions put to her. She said she started her relationship with Robert "shortly before 2009", and that she lived with him between 2009 and 2015 and they had a child together in 2013.
She was asked this question: "At any time after you first met Mr Geeves in 1999, and perhaps after 2002, did you and he talk about the disappearance of Amber Haigh at all?". She answered: "I don't believe so." She was then asked: "So, is it the case that you may have spoken to him and you can't remember?" To which she answered: "That would be adequate to say." A follow up question clarified the position: "You're agreeing with me?" To which she replied: "I am".
She recalled being interviewed by police and asked questions about her relationship with Robert Geeves, in which the topic of surrogacy came up. She recalled saying: "that I was generally talking about it like any other subject" and that: "it was a topic of conversation that was of no particular interest than any other". She confirmed this conversation was with Robert Geeves and that she did not "really recall" how the subject came up in her conversation.
She said that she had not discussed the disappearance of Amber with either Robert or Anne Geeves. She denied that Robert Geeves told her in about 2005 that Anne wanted another child or that he told her that he wanted to find a surrogate mother. She denied that he asked her what she knew about surrogate mothers and in answer to the question: "Did you tell him that it was illegal, surrogacy, and he should forget about it?", said: "Not that I recall".
She said that she did not recall telling DI Price that she had a conversation around the end of 2001 with Robert Geeves about surrogacy. She did not deny she had a conversation with a police officer in 2005 and agreed that she could have forgotten about it.
During her evidence on 15 July 2024, the Crown Prosecutor made an application to cross-examine Ms Kirk on the basis that her evidence was unfavourable to the Crown in respect of the two matters detailed in the s 38 Notice. He stated that the application was made under 38(1)(a) and (b), that she may reasonably be supposed to have knowledge of those matters and was not making a genuine attempt to give evidence, and as a back up submission seemed to be arguing that because her account was implausible, that brought s 38(1) into play. Defence counsel opposed the application, and I refused it, for the following reasons.
[2]
Relevant legislation and principles
Section 38 of the Evidence Act sets out the basis upon which leave may be granted:
38 Unfavourable witnesses
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:
(a) evidence given by the witness that is unfavourable to the party, or
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or
(c) whether the witness has, at any time, made a prior inconsistent statement.
(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.
(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.
(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account -
(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and
(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
(7) A party is subject to the same liability to be cross-examined under this section as any other witness if -
(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and
(b) the party is a witness in the proceeding.
Leave is also governed by s 192 of the Evidence Act:
192 Leave, permission or direction may be given on terms
(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and
(b) the extent to which to do so would be unfair to a party or to a witness, and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and
(d) the nature of the proceeding, and
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
In R v Le (2002) 54 NSWLR 474; [2002] NSWCA 186, Heydon JA (as he then was) articulated the context and purpose of s 38:
"[66] One purpose of a s.38 examination must be to enable counsel calling the witness to demonstrate that the evidence in chief which led to the s.38 order is false. Another must be to enable counsel to demonstrate that any prior statement inconsistent with it is true. That latter purpose is assisted by s.60, which permits a prior inconsistent statement to be considered as evidence of what is represented, not merely as a matter affecting credibility. But s.60 by itself is not wholly effectual unless the questioner is able to interrogate with a view to demonstrating the truth of the prior inconsistent statement. There would be little point in permitting s.38 examinations otherwise and no point in the existence of s.38(3). The purposes described can be assisted by obtaining concessions from the witness about matters tending to indicate the falsity of the impugned evidence. One of these is the lateness with which the impugned story is advanced. Another is the inherent improbability of the impugned story. These purposes must also be capable of being assisted by the eliciting of evidence tending to show the truthfulness of prior statements inconsistent with the impugned evidence, such as the fact that they were made under conditions conducive to accurate recollection and expression and conducive to sincerity.
[67] In my opinion, on the true construction of s.38, leave may be granted under s.38 to conduct questioning not only if the questioning is specifically directed to one of the three subjects described in s.38(1), but also if it is directed to establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness's evidence on those subjects. In establishing the probability or improbability of one or other state of affairs, the questioner is entitled to ask questions about matters going only to credibility with a view to shaking the witness's credibility on the s.38(1) subjects'."
As observed by the Court in R v White [2003] NSWCCA 64 at [66]:
"[66] The remarks of Heydon JA point up both the restrictions on examinations under s.38 and their width. There may be cases where, in practical terms, because of what a witness has said and the matters he has raised and their width it will be permissible to grant leave to examine at large without departing from the true purpose of s.38. It would be pointless to have a lengthy list of matters about which a witness could be examined if that list covered virtually all the matters (or all the major matters) about which the witness had given evidence. When leave is given to question a witness about matters only relevant to his or her credibility that may permit a fairly wide ranging examination."
Another important statement of context and the practical realities of the operation of s 38 appears in Kannan & Ors v R [2006] NSWCCA 109, where the Court comprising Hunt AJA, Buddin J and Hoeben J said at [80] to [85]:
"[80] Before turning to what the Crown prosecutor should have done before attacking the credit of his own witness, it is important to emphasise that the Crown does not warrant the truthfulness of its witnesses, and it is not obliged to embrace and accept whatever the witnesses say: Regina v Le (2002) 54 NSWLR 474 at [68]. That is because the Crown has the obligation to present its case conformably with the dictates of fairness to the accused: Richardson v The Queen (1974) 131 CLR 116 at 119. That obligation is imposed on a Crown prosecutor as an incident of his or her position as a "minister of justice": Regina v Puddick (1865) 4 Foster & Finlayson 497 at 499 [176 ER 662 at 663]. See also Regina v Thursfield (1838) 8 Carrington & Payne 269 at 269-270 [173 ER 490 at 491-401]. It is the usual practice in criminal trials that, subject what is said in the following paragraph of this judgment, the Crown accepts an obligation to call witnesses whose evidence is relevant to the Crown case when requested by the accused to do so. When doing so, the Crown prosecutor is always entitled to say to the jury that the Crown has not put that particular witness forward as a witness of truth. The Crown's obligation to call such witnesses has been stated more firmly in Regina v Le at [68]. (The duties of a Crown prosecutor are discussed in an address to the Student's Union of the Inns of Court in 1955, by the then Senior Prosecuting Counsel at the Old Bailey in Great Britain, Mr Christmas Humphreys, of which a shortened version has been published under the title "The Duties and Responsibilities of Prosecuting Counsel" in [1955] Crim LR 739.)
[81] In determining whether such a witness should be called by the Crown, rather than leaving it to the accused to do so, the Crown prosecutor - at least where the evidence of that witness is central to the unfolding of the Crown case - may take into account, inter alia, the credibility and truthfulness of the evidence to be given by that witness and whether in the interests of justice it should be subjected to cross-examination by the Crown: Richardson v The Queen at 119. The Crown prosecutor's decision has been described as a lonely but also a heavy one: The Queen v Apostilides (1984) 154 CLR 563 at 576-577. A refusal to call a particular witness within this category may be justified only by reference to the overriding interests of justice; such occasions are likely to be rare. The unreliability of the evidence will be a sufficient basis for a refusal to call the witness only where there are identifiable circumstances which clearly establish such unreliability; it will not be enough that the prosecutor merely has a suspicion that the evidence to be given by the witness will be unreliable: Ibid at 577. In order to avoid any suggestion that a tactical advantage is sought by not calling a particular witness, it is advisable for the Crown prosecutor to confer with the witness to form an opinion as to the witness's reliability: Regina v Kneebone (1999) 47 NSWLR 450 at [49]-[53].
[82] … But the Crown's obligation to call all relevant witnesses even where their evidence does not support the Crown case does not deny the Crown prosecutor the opportunity to discredit the evidence of a Crown witness.
[83] Section 38 of the Evidence Act abrogated the common law relating to hostile witnesses, by enabling a party calling a witness to obtain leave to question his own witness as though cross-examining that witness about evidence which is unfavourable to that party - in order, for example, to establish that the witness has made a prior inconsistent statement. The word "unfavourable" means merely "not favourable", and it is no longer necessary for the party seeking leave to demonstrate that either the witness or the evidence given is hostile to that party: Regina v Souleyman (1996) 40 NSWLR 712 at 715; or that the unfavourable evidence was unexpected: Regina v Adam (1999) 47 NSWLR 267 at [99]. Leave to cross-examine, once granted, does not permit the Crown to undertake a general cross-examination; it is restricted initially to the ground on which leave was granted: Regina v Le at [55]. However, it may range more widely: Ibid at [59], [63]. In the present case, for example, it would have permitted not only cross-examination on any prior inconsistent statement made by Mrs Zahabe in order to prove that the prior statement was true and that the evidence given was false, and also to suggest that bias in favour of the appellants was the reason for the inconsistency: Ibid at [67].
[84] The greater availability of cross-examination of a Crown witness by the Crown prosecutor pursuant to s 38 has obviously placed more emphasis on the Crown's obligation to call witnesses whose main relevance is the availability of their evidence unfavourable to the Crown case. Section 38 is living up to its potential for transforming the traditional procedure in criminal trials: Regina v Parkes (2003) 147 A Crim R 450 at [81], [141]. In Regina v Ronen [2004] NSWSC 1298 at [32], Whealy J observed that the increasingly common use of s 38 has often demonstrated its value in getting to the truth of the matter, although great care must be taken to ensure that the trial does not become side-tracked by a collateral issue carrying with it the real possibility of prejudice to the accused. That observation was correct, but attention is drawn to the accepted interpretation of "unfairly prejudicial" in ss 135-136 and of "unfair prejudice" in s 137, that prejudice to the accused is not unfair merely because the evidence tends to establish the Crown case: Regina v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen (1999) 196 CLR 297 at [29], [91], [98].
[85] Where the Crown prosecutor fulfils such an obligation, it would be unjust to the Crown (which prosecutes on behalf of the community) to refuse leave to cross-examine in relation to the unfavourable evidence given, subject of course to the usual discretions such as provided by s 137 of the Evidence Act: Regina v Milat (BC9607720), Hunt CJ at CL, 23 April 1996, at 5-6. (See Evidence Act, s 192(2).) Leave must also be sought to cross-examine the witness about matters "relevant only" to the witness's credibility: s 38(3); and it should be noted that the credibility of a witness includes the witness's ability to observe or remember facts about which the witness has given evidence (that is, the reliability of his evidence): Evidence Act, s 3 Dictionary…"
Bathurst CJ, with whom Price and Campbell JJ agreed, made further succinct observations in Doyle v R; R v Doyle [2014] NSWCCA 4 at [292] to [293]:
"[292] Section 38 of the Evidence Act widens the area in which a party can be given leave to cross-examine his or her own witness compared with the position at common law: see J D Heydon, Cross on Evidence, (9th Aust ed 2013) at [17405]. In particular, it is not necessary to demonstrate hostility. Unfavourable is held to mean simply not favourable: R v Souleyman (1996) 40 NSWLR 712 at 715; R v Velevski (No 2) (1997) 93 A Crim R 420; Kanaan v R [2006] NSWCCA 109 at [83]. However, it may be accepted that evidence is not unfavourable simply because it does not fit a particular case theory of the prosecution: R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450 at 461-462.
[293] Further, the use of the word "about" in the chapeau to s 38(1) makes it clear that leave may be granted to not only conduct cross-examination specifically directed to one of the subjects referred to in s 38(1), but also to the probability of establishing a factual state of affairs in relation to the matters contended for by the party conducting the cross-examination: R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474 at [67] and [73]."
Having conducted a survey of interstate appellate and single judge authorities on this issue, the Victorian Court of Appeal in DPP (Vic) v Garrett (2016) 257 A Crim R 509; [2016] VSCA 31 ("Garrett") concluded:
"[67] …The predominant line of authority in all relevant jurisdictions dictates that the phrase "unfavourable to the party" must be taken to mean unfavourable to the case which the party is seeking to advance in the proceeding. Whether evidence is unfavourable to the case that the party is seeking to prove will depend upon the circumstances of each case."
The Victorian Court of Appeal in Garrett also provided helpful context to what was said by James J, with whom Spigelman CJ and Smart AJ agreed in R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 ("Kneebone"), about the distinction between "case theory" and the case that was in fact made by a party:
"[70] In our view, what was said in Kneebone about "case theory" was not intended to lay down, and should not be taken as having laid down, any "rule of exclusion" for the purposes of s 38(1)(a). Whatever was meant by a "case theory," it does not encompass a clearly identifiable case that the party calling the witness is seeking to establish. This explains why, in a number of cases at first instance as well as in intermediate appellate courts, evidence has been held to be unfavourable on the basis that the impugned evidence is inconsistent with the opening of the party or direct evidence adduced or to be adduced by the party…"
[3]
Crown submissions
The Crown Prosecutor made it clear that he was not relying on any prior inconsistent statement although he tendered on the application, in addition to the 2006 statement signed by Ms Kirk and the DI Price investigator's note, the evidence given by Ms Kirk at the Inquest into Amber's death in 2011.
I observe that the evidence she gave in both the statement and at the Inquest on the two matters the subject of this application is consistent with the evidence she gave to this Court on 15 July 2024.
[4]
Defence submissions
Mr Coady on behalf of Mr Geeves argued that s 38 is not engaged. First, there had been no unfavourable evidence. The witness gave her account of her recollection on those two topics and in a way which was largely consistent with what she said at the Inquest. It is just a statement of her memory. There is no downplaying or deviation from what she has said in the past. Just because the Crown does not like the evidence does not make it unfavourable. Just because the manner and tone in which the evidence was given to the Court can be considered to be disrespectful, does not mean it is not factual.
The Crown Prosecutor could choose to, under s 43, show the witness the note of DI Price and ask her if she adheres to her evidence, but he chose not to do that.
The fact that the witness speaks in a direct way of her recollection or absence of recollection may not assist the Crown, but that does not mean she is not making a genuine attempt to give evidence.
Given that position, the usefulness of any cross-examination is also called into question. The fact that the witness' demeanour was poor does not mean the evidence is inaccurate or dishonest. She exhausted her recollection and made concessions as to her lack of recollection now about some things.
Mr King on behalf of Mrs Geeves adopted Mr Coady's submissions that s 38 is not engaged and added that subs 1(b) has two parts to it: first it must be a matter of which she may reasonably supposed to have knowledge - and there is no evidence that Robert Geeves discussed Amber's disappearance with her even though it may be thought strange that he did not - and second, there is no basis to assess her as not making a genuine attempt to give evidence. There was no prevarication on those issues.
[5]
Is s 38 engaged?
The evidence is not necessarily unfavourable to the Crown case. Ms Kirk acknowledged that she had a conversation with Robert Geeves before the end of 2001 about surrogacy. She acknowledged that she cannot now recall the detail of it.
The fact that Robert Geeves never discussed with her the disappearance of Amber is not necessarily unfavourable to the Crown case.
There was no basis upon which to conclude that she was not making a genuine attempt to give evidence with regards to a matter the witness may reasonably be suspected of having knowledge. There was nothing in her oddly rude demeanour that drove me to that conclusion. She was being asked about conversations that occurred many years ago.
Section 38 was not engaged and so the leave sought by the Crown Prosecutor was refused.
It is a matter for me what I make of the evidence given by Ms Kirk. It is but part of the evidence that I must assess and consider among all the other evidence led in the trial, which includes a contemporaneous note made by a senior police officer of a conversation he had with her in August 2005.
[6]
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Decision last updated: 23 September 2024