Citation: R v Geeves; R v Geeves (No. 6) [2024] NSWSC 998
Court: Supreme Court of New South Wales
Date: 9 August 2024
Judge: Lonergan J
Background
Two accused, a married couple, stand trial for the alleged murder of a young woman between 1 and 6 June 2002. The Crown alleges the victim had acted as a surrogate mother for the couple and was killed because of that arrangement. The case has been proceeding before Lonergan J sitting without a jury.
As part of its case, the Crown called a witness who had been in a personal relationship with the male accused. Police records from 2005 showed that this witness had spoken to a detective inspector about a conversation she had with the male accused before the end of 2001, in which surrogacy was discussed. A 2006 statement by the witness confirmed the surrogacy conversation had occurred but described it as general in nature, and stated she had never met the victim and was never spoken to about the victim's disappearance.
When the witness gave evidence at trial in July 2024, she confirmed she had a conversation with the male accused about surrogacy before the end of 2001, but denied several specific details recorded in the police investigator's note. She said she could not recall whether she had spoken to the accused about the victim's disappearance and acknowledged her memory of some matters had faded. The Crown sought leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine her as an unfavourable witness.
Legal Issues
- Whether the witness's evidence was "unfavourable" to the Crown within the meaning of s 38(1)(a) of the Evidence Act 1995 (NSW)
- Whether the witness was failing to make a genuine attempt to give evidence about matters she could reasonably be supposed to have knowledge of, engaging s 38(1)(b)
- Whether leave to cross-examine the witness should be granted under ss 38 and 192 of the Evidence Act
Decision
Lonergan J refused the Crown's application for leave to cross-examine the witness. Her Honour found that s 38 was simply not engaged on the facts. The witness had acknowledged the surrogacy conversation with the male accused and had made concessions about gaps in her current recollection. The fact that her evidence did not assist the Crown to the degree the Crown wished did not make it "unfavourable" within the statutory meaning.
On the question of whether the witness was making a genuine attempt to give evidence under s 38(1)(b), Lonergan J found no proper basis to conclude otherwise. The witness had answered the questions put to her, acknowledged what she could not recall, and made no attempt to prevaricate on the substantive issues. Her Honour noted that rude or guarded demeanour does not equate to a failure to give genuine evidence, and that questions about conversations from many years ago naturally attract imperfect recollection.
The Crown also appeared to argue, as a fallback, that implausibility in the witness's account could itself enliven s 38(1). Lonergan J did not accept this approach. The court observed that the Crown retained the option of using s 43 to show the witness the detective's investigator's note and ask her whether she adhered to her evidence, but chose not to pursue that course.
Lonergan J made clear that the weight to be given to the witness's evidence, including in light of the contemporaneous police note from August 2005, remained a matter for the court to assess among all the evidence led at trial.
Orders Made
• The Crown Prosecutor's application to cross-examine Ms Kirk under s 38 was refused.
Key Takeaways
- Section 38(1)(a) of the Evidence Act 1995 (NSW) requires that evidence be genuinely unfavourable to the calling party before leave to cross-examine is available. Evidence that simply falls short of what the Crown hoped for does not automatically satisfy that threshold.
- A witness who acknowledges a relevant conversation occurred, concedes gaps in memory, and makes no attempt to avoid questions is not, without more, failing to make a genuine attempt to give evidence under s 38(1)(b).
- Poor or hostile demeanour alone does not establish that a witness is withholding or fabricating evidence. Lonergan J distinguished between manner of giving evidence and the accuracy or honesty of its content.
- Where a party suspects a witness has made a prior inconsistent statement, s 43 of the Evidence Act provides an available mechanism to put that prior statement directly to the witness. The availability of that alternative pathway is relevant to the overall assessment of whether s 38 leave is warranted.
- Under s 192, a court retains a broad discretion when considering whether to grant leave, taking into account factors including fairness to the witness and the likely utility of cross-examination.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 38, 43, 60, 192
Cases:
- 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; [2002] NSWCA 186
- R v White [2003] NSWCCA 64