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Supreme Court 18 September 2026

Geeves v R; Geeves v R

[2026] NSWSC 1121

Public order & justice offences
CRIMINAL PROCEDURE COSTS ACQUITTALS INSTITUTION OF PROCEEDINGS UNREASONABLE

Citation: Geeves v R; Geeves v R [2026] NSWSC 1121
Court: Supreme Court of New South Wales
Date: 18 September 2026
Judge(s): Lonergan J

Background

A husband and wife were arrested in May 2022 and charged with the murder of a woman who had disappeared in June 2002 and whose body was never found. Following a trial in mid-2024, Lonergan J acquitted both defendants. The reasons for those acquittals appear in the earlier judgment, R v Geeves; R v Geeves (No 7) [2024] NSWSC 1168.

Within two days of the acquittals, solicitors for each defendant applied for costs certificates under the Costs in Criminal Cases Act 1967 (NSW). The Director of Public Prosecutions declined to consent to the certificates but confirmed it would not oppose a formal application to the court. Notices of motion were ultimately filed and heard in early 2026, with the Crown making no submissions beyond acknowledging the court's residual discretion.

The applications turned on whether, assessed objectively against all relevant evidence, it would not have been reasonable to institute the murder proceedings.

Legal Issues

  • Whether, under s 3(1)(a) of the Costs in Criminal Cases Act 1967, it would not have been reasonable to institute the murder proceedings had the prosecutor been in possession of all relevant evidence before proceedings were initiated
  • Whether any act or omission by the defendants contributed to the institution or continuation of the proceedings under s 3(1)(b)
  • Whether the court should exercise its residual discretion under s 2 of the Act to grant the certificates

Decision

Issue 1: Reasonableness of instituting proceedings

The court identified two alleged pillars of the prosecution case: a witness whose evidence was known to be wrong in material respects, and claimed "incriminating utterances" in listening device recordings. On the witness, an Investigator's Note dated November 2022 recorded that the critical date in his statement could not have been correct, a problem compounded by contradictions with his father's own police statement and by irregularities in how the statement came to include that date. The court found the witness's evidence was of no value and had been known to be of no value well before trial (at [34]).

On the listening device material, the court found that the claimed admissions and "incriminating utterances" simply did not exist. Only the investigating detective said she could hear them. The court listened and re-listened to the recordings and could not hear the words. The "enhanced recordings" promised by the Crown never materialised (at [25], [39]-[40]). The court accepted that it was inexplicable those words were put forward as evidence supporting a murder charge when the evidence did not exist (at [40]).

The court found that the prosecution case was foredoomed to fail because the pillars of evidence on which it rested did not in truth exist (at [41]). It was not reasonable to institute the proceedings, and the prosecutor had evidence of all relevant facts at the time of certification in early November 2022 but proceeded anyway (at [42]). The court also noted that 44 separate untenable submissions were identified in the Crown Prosecutor's closing address, several of which had to be the subject of rulings, underscoring a disconnect between the case the prosecution thought it had and what the evidence actually disclosed (at [27]-[28]).

Issue 2: Conduct of the defendants

The court found no act or omission by either defendant contributed, or might have contributed, to the institution or continuation of the proceedings. The Crown made no suggestion to the contrary (at [43]).

Issue 3: Residual discretion

Drawing on the Court of Criminal Appeal's analysis in Rodden v R (2023), the court found no basis to refuse the certificates in the exercise of its discretion. The applications were notified within two days of the verdicts. Delays in formally filing the motions were explained by the DPP's six-month response time and the ill-health of one applicant, and neither was held against the applicants (at [45]). The court also confirmed, following Rodden, that legally aided applicants are not precluded from recovering costs under the Act, and that both defendants had incurred costs outside their legal aid grants in any event (at [46]-[47]).

Orders Made

  • Certificate granted to Robert Geeves under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW), specifying that it would not have been reasonable to institute the murder proceedings had the prosecutor been in possession of all relevant facts before proceedings were initiated, and that no act or omission of Robert Geeves contributed or might have contributed to the institution or continuation of the proceedings.
  • Certificate granted to Anne Geeves under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW), on the same terms.

Key Takeaways

  • Under s 3(1)(a) of the Costs in Criminal Cases Act 1967, the relevant question is an objective, hypothetical one: whether it would not have been reasonable to institute proceedings had the prosecutor possessed evidence of all relevant facts before they were initiated. This test is distinct from both the "reasonable prospect of conviction" standard used by prosecution agencies and the former magistrates' test of whether no reasonable jury would be likely to convict (at [12]-[13]).

  • The Act should not be narrowly construed; its purposes include conferring valuable privileges on persons who succeed in criminal proceedings (at [10]).

  • Where the central pillars of a prosecution case are found not to exist in evidence, and investigating police had documented that key witness evidence was wrong in material respects more than 18 months before trial, a court may find that institution of proceedings was unreasonable (at [41]-[42]).

  • A certifying prosecutor carries a responsibility to scrutinise the evidence critically. The court found that proceeding to certify charges despite known and documented problems with the two principal foundations of the case rendered the institution of those proceedings unreasonable (at [34], [42]).

  • Legally aided accused persons are not precluded from obtaining costs certificates under the Costs in Criminal Cases Act 1967, a proposition confirmed by the Court of Criminal Appeal in Rodden v R (2023) and applied here (at [46]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW)
- Justices Act 1902 (NSW)

Cases
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510
- Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738
- R v Geeves; R v Geeves (No 7) [2024] NSWSC 1168
- R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
- Rodden v R (2023) 112 NSWLR 162; [2023] NSWCCA 202