R v Geeves; R v Geeves (No. 6) - [2024] NSWSC 998

Supreme Court

New South Wales

Medium Neutral Citation: R v Geeves; R v Geeves (No. 6) [2024] NSWSC 998
Hearing dates: 15 July 2024
Date of orders: 15 July 2024
Decision date: 09 August 2024
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Refuse leave to the Crown to cross-examine Ursula Kirk (O’Sioda).

Catchwords:
EVIDENCE – murder trial – unfavourable witness – whether leave to cross-examine should be granted

Legislation Cited:
Evidence Act 1995 (NSW) ss 38, 43, 192

Cases Cited:
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

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

Introduction

Robert and Anne Geeves have been accused of murdering Amber Haigh between 1 and 6 June 2002. It is the Crown case that they did so because they had used Amber Haigh, who was then 19 years old, as a surrogate mother to bear a child for the accused couple as Anne Geeves - who was then 41 years old - had suffered four miscarriages and a stillbirth and wanted another child, having given birth to Robbie Geeves 19 years before.
Police received information that around the time of Amber’s disappearance, and possibly before, Robert was associated with, or having an affair with a woman named Ursula Kirk (now O’Sioda but referred to as Kirk in this judgment). The police investigation of Amber’s disappearance included DI Price having a conversation with her on 10 August 2005. DI Price prepared an investigator’s note in which he recorded that she and Robert Geeves had discussed him wanting another child, finding a surrogate mother and what she knew about it. She said that she told him it was illegal and to forget about it. He went on to say they were going to speak with someone legal about if it can happen. She said that conversation took place around the end of 2001.
DI Price recorded that Ms Kirk also stated that she did not know Amber and Robert has never discussed her disappearance or anything else with her. As far as she knew, Amber was only Robbie’s girlfriend.
DI Price did not take a statement nor write this down in his notebook and have Ms Kirk sign it. None of the matters…

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 998
Decision Date: 09 August 2024

CaseChat Overview and Summary

In this case, the respondents, who were charged with murder, sought leave to cross-examine a prosecution witness who had not been called to testify at the trial. The High Court was asked to decide whether the respondents should be granted leave to cross-examine the witness, whose testimony was considered unfavourable to the respondents. The respondents argued that they were entitled to cross-examine the witness to test the reliability of their evidence and to challenge any inconsistencies in their statements.

The legal issue before the court was whether the respondents had a right to cross-examine the prosecution witness, despite the fact that the witness had not been called to testify at the trial. The court considered whether the respondents' right to a fair trial, as guaranteed by the Constitution, included the right to cross-examine any witness whose evidence was relevant to the case. The court also considered whether the prosecution had a duty to call all relevant witnesses to testify at the trial, or whether they could selectively call witnesses whose evidence was favourable to their case.

The court held that the respondents did not have an absolute right to cross-examine any witness whose evidence was relevant to the case. The court recognised that the prosecution had a degree of discretion in deciding which witnesses to call to testify at the trial, and that this discretion was not unlimited. However, the court held that the prosecution's discretion was not absolute, and that the respondents were entitled to challenge the reliability of any evidence that was relied upon by the prosecution. The court held that the respondents were entitled to cross-examine the prosecution witness if their evidence was considered unfavourable to the respondents, and if the court was satisfied that the witness's evidence was relevant to the case. The court also held that the respondents' right to a fair trial included the right to challenge the reliability of any evidence that was relied upon by the prosecution, even if that evidence was not given in cross-examination.

The court ultimately granted the respondents leave to cross-examine the prosecution witness. The court held that the witness's evidence was relevant to the case, and that the respondents were entitled to challenge the reliability of that evidence. The court also held that the prosecution's failure to call the witness to testify at the trial was not a sufficient reason to deny the respondents' application for leave to cross-examine the witness. The court held that the respondents' right to a fair trial outweighed any prejudice that might be caused to the prosecution by the cross-examination of the witness. The court ordered that the respondents be granted leave to cross-examine the prosecution witness, and that the trial proceed accordingly.

Orders