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Supreme Court 2 August 2024

R v Geeves; R v Geeves (No. 4)

[2024] NSWSC 938

Homicide
EVIDENCE HEARSAY EXCEPTIONS FIRST HAND HEARSAY EXCEPTIONS S 65(2) EVIDENCE ACT 1995 (NSW) SECTION 65(2)(C)

Citation: R v Geeves; R v Geeves (No. 4) [2024] NSWSC 938
Court: Supreme Court of New South Wales
Date: 2 August 2024
Judge: Lonergan J

Background

Robert and Anne Geeves are jointly charged with the murder of Amber Haigh, who disappeared between 1 and 6 June 2002. The Crown alleges a joint criminal enterprise in which Amber was used as a surrogate mother for the accused couple and, once she had delivered their child, was killed. The trial is proceeding before a judge sitting alone.

Amber died before she could give evidence, and many of the people to whom she made relevant statements are also deceased. The Crown sought to rely on out-of-court representations Amber made to various relatives and acquaintances in the months before she disappeared, as well as on evidence given at a 2011 coronial inquest into her death.

The defence objected to various portions of those statements and inquest transcripts. This judgment resolves those objections, applying the hearsay exceptions in the Evidence Act 1995 (NSW), particularly sections 65(2), 65(3), and 66A, alongside the exclusionary discretions in sections 135 and 137.

Legal Issues

  • Whether evidence given at the 2011 inquest could be admitted under section 65(3) of the Evidence Act, which requires that the accused had a reasonable opportunity to cross-examine the maker of a representation
  • Whether specific representations made by Amber (and by others) qualified for admission under section 65(2)(c), requiring that circumstances make it highly probable the representation is reliable
  • Whether specific representations constituted contemporaneous statements of Amber's feelings or state of mind, admissible under section 66A
  • Whether any admissible evidence should nonetheless be excluded under section 135 (general discretion) or section 137 (mandatory exclusion where probative value is outweighed by danger of unfair prejudice)
  • Whether various items of evidence constituted second-hand hearsay, rendering them inadmissible under section 62

Decision

Issue 1: Section 65(3) and the inquest evidence generally

Lonergan J held that neither accused had a reasonable opportunity to cross-examine witnesses at the 2011 inquest, so section 65(3) could play no role in rendering that inquest evidence admissible (at [54]). Mr Geeves attended unrepresented; Mrs Geeves was largely absent due to serious kidney disease and was effectively excused by the Coroner, having unsuccessfully applied for legal aid (at [38]-[43]). The court reasoned that an inquest is an inquisitorial proceeding without formal allegations, where the rules of evidence do not apply and cross-examination is a complex forensic exercise that cannot reasonably be expected of an unrepresented lay person (at [48]-[52]). Any evidence from the inquest therefore had to satisfy section 65(2) on its own merits, or be excluded.

Issue 2: Specific representations and section 65(2)(c)

Several of Amber's reported statements were excluded because the circumstances of the representation were too vague to permit the "highly probable reliability" assessment required by section 65(2)(c). This applied to exchanges from Stella Nealon's inquest evidence, where the reference points were unclear and the evidence was also confusing and potentially misleading (at [62]-[64]), and to evidence from Jacqueline Cash's statement, which was too vague as to time, basis, and circumstances (at [79]-[81]). By contrast, evidence from Keli Wood that Amber said she was not permitted to leave the Geeves house was admitted under section 65(2)(c): the court found that Amber had a pattern of confiding in women in similar circumstances, making those representations highly likely to be reliable (at [74]-[75]).

Issue 3: Section 66A contemporaneous state-of-mind representations

A number of Amber's statements were admitted as contemporaneous expressions of her feelings or state of mind under section 66A. These included her statement "they are standing over me" to her great aunt Stella Nealon (at [59]), her statement to Keli Wood about being scared (at [77]), and her statements to Paul Harding that she was scared of Robert Geeves (at [85]-[86]). Where Inquest evidence replicated the same content as admissible section 66A material, the Crown was granted leave to elicit the evidence through direct examination so the defence could cross-examine the live witness (at [88]).

Issue 4: Second-hand hearsay

Several items of evidence were excluded as inadmissible second-hand hearsay under section 62. Ray Harding's statement was excluded because the language suggested he may have been recounting another person's account of what Amber said, rather than a direct first-hand report (at [68]). All of Patricia Haigh's evidence about Amber's representations was inadmissible as second-hand hearsay because Patricia was deceased and could not give evidence at trial (at [90]-[94]). Similarly, Judith Khan's recounts of what Amber told her were excluded on the same basis, given Khan was unavailable for cross-examination (at [95]-[96]). However, portions of Khan's inquest evidence recounting what Khan herself said to Amber were assessed under section 65(2)(c) and admitted, as those were Khan's own representations made in circumstances making reliability highly probable (at [101]-[102]).

Issue 5: Exclusion under sections 135 and 137

Even where evidence was not excluded on hearsay grounds, the court applied section 137 to exclude the unidentified nurse's representation reported through Stella Nealon, because the maker could not be identified and the probative value was outweighed by unfair prejudice (at [56]-[57]). A portion of Judith Khan's statement about whether Geoffrey Haigh saw Amber was also excluded under section 137 because Khan did not state the basis for her belief and it was possible the assertion itself was hearsay (at [99]).

Orders Made

  • Various rulings and exclusions made progressively throughout the judgment:
  • Section 65(3) held inapplicable to all inquest evidence (at [54])
  • Evidence of Stella Nealon excluded in part; Amber's statement "they are standing over me" admitted under section 66A (at [59], [60], [62], [64], [66])
  • Ray Harding's evidence excluded as second-hand hearsay (at [68])
  • Petrina Ingram's evidence admitted under section 66A (at [71])
  • Keli Wood's evidence admitted under sections 65(2)(c) and 66A (at [74], [75], [77])
  • Jacqueline Cash's statement evidence excluded or restricted; Crown given leave to ask questions on relevant topics (at [79], [81])
  • Paul Harding's evidence admitted under section 66A; leave granted to lead evidence in chief (at [85], [86], [88])
  • Patricia Haigh's statement and inquest evidence excluded as second-hand hearsay (at [90], [92], [94])
  • Judith Khan's evidence excluded in part; portions of inquest evidence admitted under section 65(2)(c) (at [97]-[100], [102])

Key Takeaways

  • Attendance at an inquest without legal representation does not constitute a "reasonable opportunity to cross-examine" within the meaning of section 65(3) of the Evidence Act, particularly where an inquest is an inquisitorial process without formal allegations and where the rules of evidence do not apply (at [48]-[54]).

  • Under section 65(2)(c), each representation must be assessed individually and the circumstances of that particular representation must be sufficiently identified to permit a conclusion that reliability is highly probable; vague or unattributed statements will not satisfy this threshold (at [56], [62]-[64]).

  • Section 66A provides a pathway for admitting contemporaneous statements by a deceased person about their own feelings, sensations, intentions, knowledge, or state of mind, even where the maker cannot be cross-examined, provided the representation is genuinely contemporaneous (at [59], [77], [85]-[86]).

  • Where a declarant is deceased, all of that person's evidence recounting what another person said to them constitutes second-hand hearsay under section 62 and is inadmissible, regardless of whether the underlying content might otherwise qualify for a hearsay exception (at [90]).

  • Section 137 mandates exclusion in criminal proceedings where probative value is outweighed by the danger of unfair prejudice; in this context, the inability to test the identity or basis of the maker of a representation weighed heavily in favour of exclusion (at [56]-[57], [99]).

Legislation and Cases Referenced

Legislation
- Coroners Act 2009 (NSW)
- Evidence Act 1995 (NSW) ss 59, 62 , 65, 66A, 135, 136, 137

Cases
- Boral Resources (Vic) Pty Ltd v CFMEU (Ruling No 2) [2015] VSC 459
- In the matter of HIH Insurance Limited (In Liquidation) [2015] NSWSC 790
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Puchalski v Regina [2007] NSWCCA 220
- R v Al Batat & Ors (No 31) [2020] NSWSC 1556
- R v Dawson [2022] NSWSC 814
- R v Geeves; R v Geeves (No. 3) [2024] NSWSC 862
- R v Geeves; R v Geeves (No. 5) [2024] NSWSC 939
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1286
- R v Omar [2022] NSWSC 371
- R v Ronald Edward Medich (No. 17) [2017] NSWSC 170
- R v Ryan [2020] NSWSC 1394
- R v Singh (No 4) [2021] NSWSC 75
- R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32