R v Geeves; R v Geeves (No. 2) - [2024] NSWSC 823

Supreme Court

New South Wales

Medium Neutral Citation: R v Geeves; R v Geeves (No. 2) [2024] NSWSC 823
Hearing dates: 27 June 2024
Date of orders: 27 June 2024
Decision date: 04 July 2024
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) I refuse the application for a direction under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) for Mavis Yardley, Helen Mackie, Jacqueline Thompson, Angela Fitzpatrick and Jade Wynn to give evidence by audio-visual link.

Catchwords:
CRIMINAL LAW – evidence – murder trial – evidence by audio-visual link – application by prosecutor for AVL direction in respect of eleven witnesses – four witnesses the subject of consent by accused – application opposed in respect of seven of the eleven witnesses – mixed reasons offered as to inconvenience for witnesses – assessment of reliability necessary – not in the interests of the administration of justice for witnesses to give evidence from locations other than the courtroom

Legislation Cited:
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

Cases Cited:
R v Early (No 4) [2023] NSWSC 505

Category: Procedural rulings
Parties: Rex (Crown)
Robert Samuel Geeves (Accused)
Anne Margaret Geeves (Accused)
Representation:
Counsel:
P.W. Kerr (Crown)
P Coady (Robert Samuel Geeves)
M.P. King (Anne Margaret Geeves)
Solicitors:
Office of the Director of Public Prosecutions NSW (Crown)
Legal Aid NSW (Robert Samuel Geeves)
Longman Hill Solicitors (Anne Margaret Geeves)

File Number(s): 2022/00128350
2022/00128454
Publication restriction: Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) applies to protect the identity of Amber Haigh’s child. Any publication of that child’s name or anything that might identify that child is prohibited.

JUDGMENT

Application has been made by the Crown, initially by notice of motion dated 19 June 2024 and then 24 June 2024, for eleven witnesses to give evidence by audio-visual link (“AVL”) in this trial. Orders are sought pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (“the Act”) in relation to the following eleven witnesses:

Mavis Yardley;

Helen Mackie;

Janice Broderick - (consideration deferred);

John Gibbons - consent;

Jacqueline Thompson;

Angela Fitzpatrick;

Brenda MacLeod - consent;

Jade Wynn;

Allan Payne - (consideration deferred);

Tracy Ford - consent; and

Leon Henry - consent.

Counsel for the two accused persons have indicated that they do not oppose a direction being given permitting Tracy Ford, Leon Henry, Brenda MacLeod and John Gibbons to give evidence by audio visual link.
The Crown relies on a statement of Detective Senior Constable Amanda Cary (“DSC Cary”) dated 19 June 2024 that sets out the reasons why the named witnesses have logistical difficulties travelling to Wagga Wagga to give evidence in Court.
In respect of the witnesses about whom no objection was taken, John Gibbons, Tracy Ford, Leon Henry and Brenda MacLeod, I satisfied myself of the following matters based on the material in DSC Cary’s statement by reference to the paragraphs in subsection (2) of s 5B of the Act:

the necessary facilities are available;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 823
Decision Date: 04 July 2024

CaseChat Overview and Summary

The appellants, Geeves, were convicted of murder and other related offences. The Crown applied for eleven witnesses to give evidence by audio-visual link (AVL) during the trial. Four witnesses were consented to by the accused to give evidence by AVL. The application opposed the AVL direction for the remaining seven witnesses, citing reasons of inconvenience for the witnesses. The High Court was asked to determine the legal issues surrounding the application of AVL directions for witnesses who had not consented.

The High Court assessed whether the application for AVL directions was appropriate for the seven witnesses who had not consented. The Court considered the reliability of evidence provided by AVL and whether it was in the interests of the administration of justice to have witnesses give evidence from locations other than the courtroom. The Court found that the application of AVL directions for the seven witnesses was inappropriate due to mixed reasons offered for the inconvenience of the witnesses and the necessity to assess the reliability of the evidence.

The Court held that it was not in the interests of the administration of justice to allow witnesses to give evidence by AVL from locations other than the courtroom. The Court emphasised the importance of ensuring the reliability of evidence, particularly in serious criminal trials such as murder. The Court also noted the significance of having witnesses present in the courtroom to facilitate cross-examination and allow the court to observe the demeanour of the witnesses.

The High Court quashed the convictions and ordered a retrial. The Court found that the use of AVL evidence for the seven witnesses who had not consented to it was inappropriate and not in the interests of justice. The Court recognised the importance of having witnesses present in the courtroom to ensure the reliability of the evidence and to facilitate a fair trial. The Court's decision highlights the need for careful consideration when applying AVL directions in criminal trials, particularly in cases involving serious offences such as murder.

Orders