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Supreme Court 2 August 2024

R v Geeves; R v Geeves (No. 5)

[2024] NSWSC 939

Homicide
EVIDENCE HEARSAY EXCEPTIONS S 65(2)(C) EVIDENCE ACT 1995 (NSW) “CIRCUMSTANCES”

Citation: R v Geeves; R v Geeves (No. 5) [2024] NSWSC 939
Court: Supreme Court of NSW
Date: 2 August 2024
Judge: Lonergan J

Background

Two accused, a husband and wife, are standing trial for the murder of a young woman who gave birth to the husband's child in 2002. The Crown's case is that the deceased was used as a surrogate and was then killed by the accused acting in a joint criminal enterprise sometime between 1 and 6 June 2002.

Because the deceased cannot give evidence, the Crown sought to lead representations she made to various people in the months before she disappeared. Those representations concerned, in particular, accounts she gave about being tied up and assaulted by the male accused.

The trial judge was asked to rule on whether those representations could be admitted as exceptions to the hearsay rule under section 65(2)(c) of the Evidence Act 1995 (NSW), which permits hearsay evidence where the circumstances of the representation make it highly probable that it is reliable. The ruling covered ten witnesses whose statements and Inquest evidence were the subject of defence objection.

Legal Issues

  • Whether representations made by the deceased to various witnesses satisfied the hearsay exception in section 65(2)(c) of the Evidence Act 1995 (NSW), on the basis that the circumstances made it highly probable the representations were reliable
  • Whether Inquest evidence of the same representations was admissible, including via section 65(3) of the Act
  • Whether any admissible evidence should nonetheless be excluded under sections 135 or 137 as unfairly prejudicial to the accused
  • Whether evidence reported at second hand (a witness recounting what another witness told them the deceased said) was admissible at all

Decision

Petrina Ingram (stranger met at a train station):
Lonergan J admitted the statement evidence. Although the deceased and Ms Ingram were strangers, the circumstances satisfied section 65(2)(c) because the deceased had a pattern of confiding in other women about her situation with the accused, and the content of what she told Ms Ingram was consistent with accounts given to trusted relatives and others in similar positions. There was no basis for exclusion under sections 135 or 137 (at [12]-[14]).

Ray Harding (family connection by marriage):
Mr Harding could give evidence of what he personally observed, but could not relay what others told him the deceased had said. That would be second-hand hearsay, falling outside the section 65 exceptions entirely (at [18]).

Jacqueline Cash (older cousin):
The statement evidence was admitted under section 65(2)(c). The circumstances were specific: a particular conversation, at a particular place, to older trusted female relatives, corroborated by observed marks on the deceased's body (at [20]-[21]). However, Ms Cash's Inquest evidence covering the same topic was excluded under section 137. It had been elicited by leading questions in a forum where no rules of evidence applied and neither accused was legally represented or able to cross-examine (at [23]-[24]).

Paul Harding (trusted cousin with whom the deceased had a close personal relationship):
The statement evidence satisfied section 65(2)(c) given the specificity of the account, the trust the deceased placed in Paul Harding, and the fact the events related to him directly (at [26]-[28]). His Inquest evidence on a separate, more general topic was excluded under section 137 because it was given in response to a leading question with no opportunity for cross-examination by the accused (at [29]-[31]).

Cindy Brown and Angelina Goode (female neighbours):
Both witnesses' statement evidence was admitted under section 65(2)(c). The deceased had a consistent pattern of confiding intimate details about her situation to women of similar age in her immediate social circle. That pattern itself was a circumstance the court treated as relevant to reliability (at [33]-[34], [38]-[39]). Each witness's Inquest evidence was excluded under sections 135 and 137 because it was elicited by leading questions in an evidentiary environment where the accused had no right of cross-examination (at [35]-[36]).

Lisa Parker (female neighbour):
The evidence was excluded entirely. The first account was second-hand hearsay (Ms Parker recounting what Daphne told her the deceased had said) and could not be admitted (at [41]-[42]). A further assertion that the deceased told both Ms Parker and Angelina Goode the same thing lacked sufficient specificity about the content of the representation or the circumstances to permit assessment under section 65(2)(c) (at [43]).

Leon Henry (neighbour who partially overheard a conversation):
Both the statement evidence and the Inquest evidence were excluded. Mr Henry only partly heard the conversation, not being its intended recipient, and his account was vague and lacked clear reference points. The very low probative value was outweighed by the danger of unfair prejudice to the defence (at [45]-[46], [47]-[48]).

Judith Khan and Patricia Haigh (grandmother and aunt, both deceased):
All evidence from these two witnesses, whether in police statements or at the Inquest, was excluded as second-hand hearsay under section 62 of the Act. Both witnesses are deceased and cannot give evidence at trial, meaning any record of what they said the deceased told them is inadmissible hearsay (at [50]-[53], [56]-[57]). Patricia Haigh's Inquest evidence was also excluded under section 137: the accused had no opportunity to cross-examine her, the wording of the representation was general and potentially misleading, and these factors created a danger of unfair prejudice that outweighed probative value even for a judge sitting alone (at [58]-[60]).

Orders Made

Various rulings were made on the admissibility of hearsay evidence from individual witnesses. No formal orders were extracted.

Key Takeaways

  • Under section 65(2)(c) of the Evidence Act 1995 (NSW), the court assessed each representation individually rather than adopting a blanket approach, though the pattern of similar representations made by the deceased to others was itself treated as a relevant circumstance going to reliability (at [6]).

  • Inquest evidence of hearsay representations was repeatedly excluded under section 137 where it had been elicited by leading questions in a forum with no rules of evidence and where the accused had no opportunity to cross-examine the witness, even where the underlying statement evidence on the same topic was admitted (at [23]-[24], [29]-[31], [35]-[36]).

  • Section 65(3) of the Evidence Act has no operation as a route to admit Inquest evidence of representations made by a deceased person before death, as determined in the companion judgment R v Geeves (No. 4) [2024] NSWSC 938 and confirmed here (at [5]).

  • Second-hand hearsay, meaning a witness recounting what another person told them the deceased had said, is not admissible under section 65 and falls outside the exception entirely, whether the intermediate witness is living or deceased (at [18], [42], [51], [57]).

  • Even in a judge-alone trial, section 137 may mandate exclusion of evidence where there has been no opportunity for cross-examination and where the form and generality of a representation creates a real risk of unfair prejudice, with the court rejecting the submission that a judge sitting alone would not misuse such evidence (at [59]-[60]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- R v Geeves; R v Geeves (No. 4) [2024] NSWSC 938