Citation: R v Geeves; R v Geeves (No. 3) [2024] NSWSC 862
Court: Supreme Court of New South Wales
Date: 15 July 2024
Judge(s): Lonergan J
Background
This decision arose on day 13 of a murder trial before Lonergan J sitting alone. The Crown sought to lead additional evidence from a witness, Angela Fitzpatrick, that had only been disclosed to the defence on the very day she attended court to give evidence. Ms Fitzpatrick had previously provided a statement to police in August 2002 but now sought to add detail she said she had omitted at the time.
Ms Fitzpatrick had been a patient at Young District Hospital at the same time as the deceased, Amber Haigh, in January 2002. Her original 2002 statement described two interactions with Amber in hospital, including conversations about their newborn sons and about the father of Amber's child. The new 2024 statement sought to add a further detail: a remark Amber had allegedly made about the circumstances of her baby's conception.
Ms Fitzpatrick explained that she had omitted this detail from her 2002 statement because she was afraid of one of the accused, Robert Geeves, who "knew where she lived." She acknowledged her knowledge of his background and alleged history of violence towards women came from unattributed local rumour.
Legal Issues
- Whether the additional detail in Ms Fitzpatrick's 2024 statement constituted admissible hearsay evidence of a representation by the unavailable witness Amber Haigh under s 65(2)(c) of the Evidence Act 1995 (NSW), which requires that the representation was made in circumstances making it highly probable that it is reliable.
- Whether, even if technically admissible, the evidence should be excluded under s 137 of the Evidence Act on the ground that its probative value was outweighed by the danger of unfair prejudice to the accused.
- Whether s 137 has reduced practical reach in a judge-alone trial, given a judge's training and ability to disregard or discount problematic evidence.
Decision
Lonergan J excluded the evidence, finding that the requirements of s 65(2)(c) were not satisfied and that, in any event, s 137 required exclusion. The Crown's argument that the circumstances mirrored those already ruled upon (a candid conversation between two new mothers in a maternity ward) was not sufficient to overcome the reliability concerns associated with the new detail.
The central difficulty was the explanation Ms Fitzpatrick offered for why she had withheld the detail in 2002. That explanation, premised on fear of Robert Geeves based on community rumour, would necessarily enter the trial record as a form of propensity or character evidence against the accused. Defence counsel could not meaningfully cross-examine Ms Fitzpatrick on that foundation, because the underlying allegations were unattributed and unverified.
On probative value, the judge found the additional detail to be of very low worth. The Crown characterised the evidence as relevant to coercion and control by the accused over Amber Haigh. However, Lonergan J found it difficult to understand how a reference to "they" watching pornographic films and having sex bore on the alleged coercion and control, particularly when the identity of "they" was unclear from the statement itself.
The court also addressed the Crown's argument that s 137 has limited reach in a judge-alone trial, drawing on remarks by Harrison J in R v Dawson [2022] NSWSC 814 about a judge's capacity to discount unchallenged hearsay. Lonergan J distinguished the present situation: the concern here was not the risk of a judge giving undue weight to untested evidence, but rather the substantive unfair prejudice arising from unattributed rumour entering the record as an explanation for delayed disclosure. On the weighing exercise required by s 137, the probative value was "very very low" and the unfair prejudice "very high," and the evidence was accordingly refused.
Orders Made
No orders were made in this decision.
Key Takeaways
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Under s 65(2)(c) of the Evidence Act 1995 (NSW), hearsay evidence of a representation by an unavailable witness is only admissible where the circumstances of the representation make it highly probable that it is reliable; a shared setting between two new mothers does not automatically satisfy this test where the additional detail was withheld for over two decades.
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Where a witness's reason for delayed disclosure is itself grounded in unattributed rumour about an accused person's character or propensity, that explanation can generate unfair prejudice independent of the hearsay content it purports to explain.
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The principle from R v Dawson [2022] NSWSC 814, that a judge sitting alone is better placed than a jury to discount untested hearsay, does not apply without qualification: it addresses the risk of undue weight being given to unexamined representations, not the broader risk of prejudicial background material entering the trial record by way of a witness's explanation.
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Section 137 of the Evidence Act requires a genuine weighing exercise in every criminal proceeding; even in judge-alone trials, the mandatory exclusionary obligation is engaged where unfair prejudice clearly outweighs probative value.
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Late disclosure of significant additional evidence, first provided to the defence on the day the witness attends court, will attract close scrutiny and may compound prejudice arguments, particularly where the new material is intertwined with unverifiable assertions about an accused's background.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 65(2)(c), 137
Cases
- Papakosmas v The Queen (1999) 196 CLR 297; [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; [2002] NSWCCA 509