R v Geeves; R v Geeves (No. 7)

[2024] NSWSC 1168

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Geeves; R v Geeves (No. 7) [2024] NSWSC 1168

Hearing dates:

21, 24-27 June; 1-5, 8-12, 15-18, 22, 23, 29-31 July; 1-2, 12 and 14 August 2024

Date of orders:

16 September 2024

Decision date:

16 September 2024

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

The accused are found not guilty.

Catchwords:

CRIMINAL LAW – murder – trial by judge alone – circumstantial case – where Amber Haigh disappeared in June 2002 – disappearance less than five months after the birth of her baby – where her body has never been found – whether circumstantial evidence establishes that she is dead, and that the death was caused by the accused – joint criminal enterprise – delay – forensic disadvantage – s 165B Evidence Act warnings – indispensable intermediate facts – circumstantial case

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Dawson v R [2024] NSWCCA 98

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Hayward v R (2018) 97 NSWLR 852; [2018] NSWCCA 104

DS v R [2018] NSWCCA 195

R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260

The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55

TO v R [2017] NSWCCA 12

Category:

Principal judgment

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. To protect that position, the child has been provided with a pseudonym.

JUDGMENT

Background

1. Amber Haigh was 19 and a half years old when she was last seen by people who knew her. Amber did not live with her parents or other relatives, but between a small bedsit in the town of Young, and a property called “Huntleigh” in Kingsvale, 15kms from Young at the home of Robert Geeves (“Robert”) and Anne Geeves (“Anne”), the two persons accused of her murder and whose guilt or innocence is for determination in this trial.

2. Robert is the father of Amber’s baby, born in January 2002. Robert and Anne went to Young police to report Amber missing on 19 June 2002, two weeks after Robert and Anne say they last saw her on the night of 5 June 2002, having driven her from their home to Campbelltown train station after Robert finished work that day. They assert that Amber wanted to visit her father, whom the evidence shows that she had been told by relatives was very ill and close to death in Mt Druitt Hospital.

3. No one has heard from or seen Amber since. Her body has never been found. There are no signs after 5 June 2002 that she is living. She has not accessed her bank account, social services, Medicare, or prescriptions for her life-protecting epilepsy medication. She was last reliably sighted by persons other than the accused on 2 June 2002 at her flat in Young in the company of Robert, and possibly seen by a cousin, Reuben Spicer, a day or two after that.

4. The Crown case presented in the closing address is that Robert and Anne entered into a joint criminal enterprise with each other to murder Amber and that their motive for doing so was that they wanted to assume the care and custody of the baby Robert had fathered with Amber, and that when it became apparent that this was going to be “more difficult than they first thought due to Amber’s attachment to her baby. They realised that more fundamental action was needed so they killed her”. [1]

   1. Crown opening, tcpt, 21 June 2024, p 20.8-10

5. The Crown case implied that Robert (and Anne) “controlled” Amber into becoming pregnant to Robert, on the basis of accounts Amber provided to people that she had been tied up on at least one occasion when Robert had sex with her, and/or that he got her drunk and impregnated her. Further, the Crown asserted that Anne and Robert controlled Amber’s finances and kept her from family, medical and social supports. The Crown asserted that these things were done with the aim of ensuring that they could take her baby from her and kill her.

6. The Indictment stated that the murder occurred between 1 and 6 June 2002 at Kingsvale, or another place in NSW. There was no evidence led in the trial that identified when or where the acts causing the death of Amber occurred. The Crown Prosecutor asserted that I should infer from her disappearance, and the evidence led and tendered, that Robert and Anne murdered Amber at some point on 2, 3, 4 or 5 June 2002, by a method unknown, in an unknown place and disposed of her body in a way, and to a place, or places, unknown.

7. However, just because a case is a circumstantial one does not make it a weak case. It is necessary for me to evaluate all the evidence and decide whether the inferences the Crown says that I should draw are available, and whether the evidence proves beyond reasonable doubt that Anne or Robert, or both, were guilty of murder.

8. On 21 June 2024, both accused persons were arraigned before me in the Supreme Court sitting in Wagga Wagga on a single count of murder.

9. Each pleaded not guilty.

10. An order was made on 4 August 2023, by consent under s 132 of the Criminal Procedure Act 1986 (NSW), that the accused persons be tried by judge alone. Section 133(1) of that Act provides that my verdict will have the same effect as a jury verdict and that I may make any finding that could be made by a jury. Section 133(2) mandates that I record the principles of law and the findings of fact on which I rely. Section 133(3) provides that I must take into account any warning that would be required to be given to a jury.

11. The fundamental starting point is that both accused persons enter the courtroom presumed to be innocent. They are not required to prove their innocence.

12. The overriding legal principle by which this judgment is guided is that the Prosecution must prove the guilt of each accused person beyond reasonable doubt. If there is any reasonable doubt in relation to any element, I must find that accused person not guilty. Even if I think it is more likely than not that one or both of the accused persons are guilty, or if the evidence leads me to believe strongly that one or other or both persons are guilty, I must give the accused person(s) the benefit of any reasonable doubt that I have in relation to their guilt. The standard of proof is very high.

13. Where the Prosecution relies on a circumstantial case, as it does here, the Crown must exclude any reasonable inference or hypothesis consistent with innocence.

Essential elements joint criminal enterprise murder

14. The elements of the offence of murder are:

1. The accused committed a voluntary act;

2. That act caused the death of Amber Haigh; and

3. The act was done with an intention to kill or inflict grievous bodily harm.

15. The Prosecution presented its case on the basis of “common purpose” or “joint criminal enterprise”. Under this principle, it is not necessary to establish which member of the enterprise committed the act or acts causing death. Each member of the group is legally responsible for the acts of the other members who shared the common purpose. The Prosecution was not able to identify who did what act, or how or when any act or acts killed Amber. I am asked to infer that such an act or acts occurred based on Amber’s disappearance and lack of signs of her life since a withdrawal from her bank account by ATM at Campbelltown at 8:49pm on 5 June 2002.

16. To establish the crime of murder by joint criminal enterprise, the following things must be established beyond reasonable doubt:

1. The existence of a joint criminal enterprise to murder Amber.

2. That each accused joined and was part of that criminal enterprise.

3. That each accused did not withdraw from the criminal enterprise. It is unnecessary to speak further about the legal requirements for withdrawal from such an enterprise because this is not an issue in the case. There is no evidence that either accused withdrew from the enterprise in any relevant sense; the case of each is that there was no enterprise in the first place.

4. Between them, the members of the group committed all the elements of murder.

17. As I have said, in a case based on a joint criminal enterprise, the Prosecution need not prove that each person accused of murder committed the act causing death. Both accused is responsible for the acts of the other member of the group, provided either the common purpose was to murder Amber, or the accused contemplated or adverted to the possibility that Amber would be killed by another member of the group, acting with an intention of killing her or inflicting upon her grievous bodily harm.

Burden and standard of proof

18. The burden of proof of the guilt of the accused is placed on the Prosecution. That burden is in respect of all elements of the offence charged. The burden of proof never shifts to the accused.

19. The accused are both presumed to be innocent and remain so presumed unless and until the Prosecution proves guilt for the offence charged beyond reasonable doubt.

20. The burden of proof does not require the Prosecution to prove every single fact or issue that arises in the evidence and is in dispute. Nor does it mean I must find in favour of the Prosecution in relation to every fact or issue that has arisen in the evidence. Nor does it mean I must attempt to resolve every apparent conflict that has arisen in the evidence. At the end of my consideration of the evidence, there may remain factual matters I am unable to resolve one way or the other. Whether that will matter will depend upon my assessment of the importance of such matters to what it is that the Prosecution must prove beyond reasonable doubt, which are the elements of the offence charged.

21. Having considered all of the evidence and the submissions of the parties, if I am not satisfied that the Prosecution has discharged its burden of proof I must acquit the accused. If I am left unable to decide whether the Prosecution has discharged its burden of proof, even if I suspect the accused probably committed the offence charged or are more likely than not to have committed it, I must acquit the accused. If the Prosecution has discharged its burden of proof, the appropriate verdict is guilty.

Inferences

22. I may draw reasonable inferences from facts I find established. I must examine any possible inference to ensure it is a justifiable inference and I must not draw an inference from the direct evidence unless it is a rational inference in all of the circumstances.

AVL

23. Several witnesses gave evidence by audio-visual link from a location remote from the courtroom. This is common practice. I must not draw any inference adverse to the accused and must not accord evidence given this way any greater or lesser weight simply because this practice was followed.

Fact-finding

24. The facts I find must be based on the evidence adduced in the trial. The evidence consists of the answers to the questions asked of each witness in court and the evidence contained in the exhibits.

25. In finding the facts, I do not look at each piece of evidence in isolation. Other evidence might confirm, explain and/or contradict the evidence of a witness.

26. It is for me to decide what weight should be given to the evidence, weight meaning the extent to which the evidence helps me to determine the facts in dispute.

27. I must evaluate the evidence in a commonsense way having regard to my understanding of people and human nature. I must bring an open and unbiased mind and act clinically and dispassionately, without allowing sympathy and/or prejudice to play any role in the decision-making process.

28. I must not act on the basis of media reporting and/or public opinion.

Assessment of witnesses

29. I may believe the whole of what a witness says, I may disbelieve the whole of what a witness says, or I may believe one part and disbelieve another part of a witness’ evidence if I consider it worthy of acceptance.

30. Each witness has given evidence about things they said they remembered. How well a person might remember something depends upon many different factors, including that person’s capacity to lay down an accurate memory in the first place, their capacity to retain that memory and its associated detail over time and their capacity to recall the memory and articulate it in words, whether that be in a statement or in giving evidence.

31. It was a feature of this trial, given the delay in the prosecution, that many witnesses gave statements to police in 2002 and 2003 and did not now remember or remember accurately things that were included in their statement given all those years ago and needed to be assisted by processes available under the Evidence Act 1995 (NSW) to confirm, or not, that more contemporaneous account. Where the making of the previous statement was not admitted, or where the truth of the statement was denied, this evidence is generally not admissible to prove the fact contained in the out of court statement.

32. Where hearsay evidence is admitted for a hearsay purpose, that is to prove the truth of the hearsay statement, a jury is generally warned that hearsay evidence may be unreliable (s 165 Evidence Act). A number of witnesses recounted things Amber said and the Crown led that evidence of those assertions by Amber for a hearsay purpose. I will specifically direct myself about the implications of s 165 in that context later in this judgment.

33. The subject matter of an event is also a relevant factor to memory. Some events themselves are of little or no consequence and any memory is retained temporarily and then gone. Other events are of greater importance or consequence such that a person might remember them for a relatively long time, although perhaps over time aspects of the detail of the memory, or the parts the person might consider to be of no particular consequence, might fade.

34. All of these common sense factors might impact what someone might be able to remember of an event, or how clearly they might remember it. Here, there is the added factor that in addition to there being 22 years since the events occurred, there has been substantial media comment and local speculation about what occurred. Some witnesses referred to these matters directly affecting and shaping their testimony, others denied that was a factor.

35. What I must decide in relation to the evidence of each witness is whether I consider their evidence to be sufficiently reliable such that I can act upon it.

36. Reliability depends upon two quite different but overlapping factors. One factor is the witness’ honesty. The other factor is the witness’ accuracy.

37. There are many factors that can have a bearing upon a witness’ honesty. In considering the question of honesty, I might consider the impression the witness made upon me. Demeanour and impression are important and valid factors to take into account.

38. Did a particular witness impress me as someone doing their best to be truthful or did the witness impress me as someone deliberately trying to deceive me? Did the witness appear evasive or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer what he or she understood was asked? Did the witness concede that he or she has lied or been mistaken in their evidence?

39. Although demeanour and impression are factors I am entitled to take into account, I must bear in mind that witnesses can be affected by the stress and anxiety of giving evidence in legal proceedings. A witness might be anxious, worried, or embarrassed. Demeanour and impression alone do not determine the honesty, or accuracy, of the witness’ evidence.

40. I am mindful of the fact that “scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]. Where possible I will look to objectively established facts, contemporaneous material and apparent logic, (or otherwise), of events.

41. If I conclude that a particular witness was doing his or her best to be honest, I will need to move to the second aspect of reliability, which relates to accuracy. A witness may be honest and accurate or honest but completely, or partly, inaccurate or mistaken.

42. To determine how accurate the evidence of a witness is, I may look to a number of factors. How carefully did the witness observe the event or matter about which they gave evidence? Was the witness calm and composed at the time of the event, or affected by emotion such as stress, panic, fear or by an intoxicating substance such as alcohol, that might have impacted their powers of observation and/or the laying down of an accurate memory?

43. How important to the witness were the surrounding details of an event such that the witness focussed on committing to memory all aspects of the event as opposed to what the witness perceived to be significant parts of the event?

44. Has the witness provided a consistent or inconsistent account of all or part of the event? A consistent account may be the product of a truthful account or a product of a dishonest account rehearsed to the point of consistency. An inconsistent account may be the product of deliberate lies being told or a reflection of the fact that human memory does not work like a camera or video recorder with perfect recall, or reflect the fact that the person may have forgotten details at the time of one recall of the event but not another or chosen to withhold all or some details of the event at one time but not at another time for personal reasons.

45. Is there evidence capable of giving rise to an inference of suggestibility, or contamination, such as to make the evidence or parts of the evidence of a witness unreliable?

46. Was there a relationship between a witness and any other person involved in the proceedings that might have influenced the witness’ evidence, either deliberately or inadvertently? The evidence of a person with a relationship to someone involved in the proceedings may mean the truth has been distorted or may mean that despite the relationship, the witness is nevertheless giving honest evidence.

The accused did not give evidence

47. Both accused were arrested and charged with murder on 4 May 2022. Both have provided statements in the form of ERISPs (“Electronically Recorded Interview of a Suspected Person”) on 25 June and 18 July 2002. In the 18 July 2002 interviews, each were warned at the beginning that police were making inquiries into the disappearance of Amber and they did not have to say or do anything if they did not want to, but that the questions and answers would be recorded, and those recordings could be used in court. Such a warning was not given to either accused on 25 June 2002, where the premise stated by one of the interviewing officers was that this was an “electronic statement”. There was, however, no objection taken to the ERISPs being played, and it is the defence position that the account given by both Anne and Robert in those interviews of what occurred on 5 June 2002 provides an account consistent with their innocence.

48. Neither accused person has given evidence at this trial - nor is there any requirement or obligation for them to do so. The Prosecution bears the burden of satisfying me beyond reasonable doubt that the accused are guilty of the offence charged. There is no obligation on the accused to give or call evidence in the trial. Both accused persons are presumed to be innocent, unless and until I am satisfied beyond reasonable doubt by the evidence led by the Prosecution that they are guilty of the offence charged. It follows that the accused are both entitled to say nothing and require the Prosecution to prove guilt to the high standard required.

47. I cannot use the accuseds’ decision not to give evidence in any way at all during the course of my deliberations. It cannot be used as strengthening the Prosecution case or in assisting the Prosecution to prove its case beyond reasonable doubt. I must not speculate about what might have been said had either or both of the accused elected to give evidence.

The evidence

50. The hearing spanned 28 sitting days in Wagga Wagga, commencing on 21 June 2024 and finishing on 14 August 2024. The Court heard oral evidence from 44 witnesses. The statements of 27 others were tendered. Many documents were tendered, some of which focussed on demonstrating that there have been no signs of life of Amber since 5 June 2002. She has not accessed Medicare, social services such as Centrelink upon which she was reliant, prescriptions for her epilepsy medication or engaged in any of the usual indications of life.

51. Witnesses comprised members of Amber’s family: her mother Rosalind Wright, great-aunt Stella Nealon, great-uncle Raymond Harding, uncle Michael Haigh and his partner Tracey Ford, aunt Jacqueline Cash, (now Winn), and cousin Paul Harding. Statements were tendered from deceased family members: Amber’s father Geoffrey Haigh, her grandmother Judith Khan, aunt Patricia Haigh, cousin Reuben Spicer and Jacqui’s husband Stephen Cash.

52. There was evidence from neighbours Amber befriended when she moved into a flat in Clarke Street, Young in October 2001 - Daphne and Leon Henry, Lisa Parker, Angelina Goode (now Fitzgibbons), Cindy Brown, Richard Allbutt - the real estate agent Janice Broderick, a friend Mavis Yardley, (now Forrester), and a travel agent in Young, Helen Mackie, who sold Amber train tickets for travel.

53. There was evidence from people Amber met whom she is alleged to have told certain things - counselling and nursing staff at the Young Community Health Centre and QEII, an organisation in Canberra that helped her with mothercraft skills - as well as investigating police, a solicitor involved in making a Will for Amber and his secretary/receptionist and various people connected with the accused, including their son, Robbie, and daughter-in-law.

Who is Amber Haigh and what did we learn about her from the evidence

54. To determine relevant facts in this trial, given the way the Crown has articulated its case about the asserted motive to kill Amber, it is essential to understand the evidence that sheds light on those matters. This requires, as a logical starting point, an understanding of Amber and what the evidence showed about her life and movements in the period leading up to her disappearance.

55. Amber was born in November 1982 in Liverpool, New South Wales to Rosalind Wright, (“Rosalind”), and Geoffrey Haigh (“Geoffrey”). Her parents separated when she was two years old. Although no medical records were tendered to confirm this, her family understands that Amber had her first fit around the time of her immunisations at age three and that she would, according to her grandmother Judith Khan, stop breathing and require medical attention when fitting. Rosalind said that Amber was put on the drug Epilim to control her epilepsy and that the doctor told her she would be on that medication every day for the rest of her life.

56. Rosalind said that Geoffrey had a problem with alcohol and was violent. [2] Stella Nealon said he used to “kick her round the yard”. Amber went back and forwards between her mother and her father until she was about 12 years old. Rosalind did not always know where Geoffrey was living. He would just come and “take off” with the children. [3] Amber gave an account to a social worker in 2001 of being sexually abused more than once as a child. [4]

    2. Tcpt, 21 June 2024, p 84.30-34

    3. Tcpt, 21 June 2024, p 94.26-31

    4. Exhibit 24, Bundle of Young Community Health, Young Hospital and associated records involving Amber Haigh, p 19

57. At about 12 years old, Amber was sent to live with an aunt in Deception Bay, Queensland.

58. Rosalind said that Amber was in the care of DoCS for a period. She was not sure for how long. When she was with her mother, Amber went to school: first Canley Heights Public, then Fairfield West and then Doonside Technology. She described that Amber “… took a bit more longer to learn on the things”, [5] but that Amber could read and write. Her mother could not recall if Amber was ever assessed for an intellectual impairment, saying that she was “seeing a specialist and some doctors and that” but she could not recall when. [6] She described this as being about “having her fits and stuff like that”. [7] Rosalind described Amber as kind-hearted, helpful, happy and bubbly; a follower not a leader. [8]

    5. Tcpt, 21 June 2024, p 89.46-48

    6. Tcpt, 21 June 2024, p 90.5-7

    7. Tcpt, 21 June 2024, p 90.12-14

    8. Tcpt, 21 June 2024, p 90.25 to p 91.8; p 92.27-34

59. Amber came back to her mother for a period and then was sent away again to live with her great-aunt, Stella Nealon, (“Stella”), in Kingsvale. By this time, Amber was about 14 or 15 years old and so it seems this was sometime between late 1996 and 1997.

60. No evidence was led by the Crown from any school Amber attended or any expert assessment made of her intellectual capacity, and it seems that Amber did not attend school whilst she lived in Kingsvale, though she may have attended some TAFE classes in Young.

61. Stella was asked to have Amber on the basis that she might like to do some fruit picking. Stella lived not far from the Geeves in Kingsvale, with her partner Raymond Harding (“Ray”) and Ray’s grandson, Paul Harding (“Paul”). Paul was Amber’s second (or third) cousin.

62. While Amber was living with Stella, she struck up a relationship with Paul. He was about four years older than Amber. She became pregnant to him in late 1997.

63. By 19 February 1998, the pregnancy was discovered, (thought to be about 10 weeks), and Amber was encouraged by Stella and Paul’s mother, Jacqueline Cash, Amber’s aunt, (“Jacqui”), to terminate the pregnancy. All of this caused family drama to which I will return. I have no doubt at all that Amber was pressured by Stella, Jacqui and her mother Rosalind to terminate the pregnancy. I believe they held genuine concerns, given the consanguinity situation and the risk of the child having a birth defect. Paul was deaf and was thought by Stella at least to perhaps have an intellectual impairment as well. Jacqui admitted in cross-examination that she was mindful that if the pregnancy became known to police, it may expose Paul to prosecution given that Amber had just turned 15 at the time she became pregnant to him. Stella denied that was a concern, and denied she had told Paul and Amber to keep the pregnancy quiet. [9] I do not accept Stella’s denials.

    9. Tcpt, 25 June 2024, p 211

64. Amber received advice and support from the Young Community Health Centre (“YCHC”) having been taken there by Anne after, or as part of, a referral there from a TAFE teacher. [10] The note made at the time, without agenda or pre-conceived ideas about Amber’s situation, provides important background insights to Amber’s circumstances at that time. It reads:

“Amber spoke to me by phone from Young Community Health today. She is 10 weeks pregnant to a 19 year old second cousin who has a disability. She does not want to disclose the identity of this boy. Amber was in the presence of Ann Geeves whilst we talked. Amber was very confused about the decision to follow through the abortion or to maintain the pregnancy. Her aunt was pressuring her to have the abortion. We discussed her options with Amber saying she felt she couldn’t have an abortion because she felt it was wrong however worried about the possible disabilities of the unborn child. We also discussed the procedure for abortion and what she could expect. I also explained that in law she had a legal right to a say in her own health at 14 (in NSW) and that the abortion centre will not carry out the abortion if she is not sure of going ahead. At my suggestion she rang her mum in Sydney to discuss the situation with her.

Amber came back at 5pm after speaking to her mum by phone. She said her mum had thought it best if she proceed with the termination. Amber felt that she should do this “for her mum”. We then discussed if she was safe to return to the aunts house until next Tuesday. After some ambiguity Amber decided that she could do this but would move to her friends (ANN GEEVES) if she needed time out. Her aunt would not support her contacting community health. Amber will return to her mum in Sydney next Thursday after the appoint in A.C.T. for termination. DOC’s have not been informed at this stage as we have no address or identity however I have left Amber to think about this situation further down the track. Her friend ANN has stated that other incidences have be known with this young man. PLAN Little to be done at this stage except have it open for Amber to come in if she has anything further to discuss. Pamphlet “Pregnancy choices” given to Amber’s friend Ann for her to read.”

10. Exhibit 24, Bundle of Young Community Health, Young Hospital and associated records involving Amber Haigh, p17

65. Stella gave evidence that she spoke to Amber’s mother about the pregnancy and that they “agreed” Amber would have to terminate the pregnancy. [11] Stella said Amber initially said “no”, but later agreed. Stella was embarrassed that Paul and Amber had this relationship under her roof, but denied pressuring Amber to have the termination. [12] When it was put to her in cross-examination by counsel for Anne, Mr King, that she put some pressure on Amber to have the termination, Stella replied: “No, no, no. That was her mother and I said - because I said, “I’m sorry love, because I can’t” - I said, “I can’t stop your mother from doing it”. I do not believe this evidence. The YCHC record indicated that Stella had already made the arrangements for the termination before Amber was encouraged by staff at the YCHC to talk to her mother. I have no doubt Stella and Jacqui, a mother and daughter who spent a lot of time together according to the evidence, both wanted this pregnancy gone. No doubt Rosalind shared that view as well. I have concluded that Stella, (and other family members), pressured Amber to have the abortion and that ultimately Amber was persuaded that it was “for the best”.

    11. Tcpt, 25 June 2024, p 153.40 to p 155.10

    12. Tcpt, 25 June 2024, p 228.46 to p 229.12

66. Paul gave evidence that Stella, Ray and Jacqui were all unhappy with him for getting Amber pregnant. Jacqui said that she was told by Stella about the pregnancy. Jacqui was worried that Paul would get into trouble. [13] She was distressed by the information because she was worried the baby would have physical or mental disabilities given that Paul and Amber were related. She acknowledged in cross-examination that she knew at that time that the pregnancy may cause legal difficulties and affect Paul’s life, given Amber was underage, but rather truculently to Mr Coady in cross-examination repeatedly insisted that Paul was 17 at the time he made Amber pregnant, which was clearly untrue. [14]

    13. Tcpt, 8 July 2024, p 970.23-24

    14. Tcpt, 9 July 2024, p 1095.18-47

67. Detective Inspector Keith Price (then SC Price) had become involved because he received a callout from a teacher at Young TAFE on 19 February 1998 concerned for Amber’s welfare. Amber told DI Price that she was fearful of returning to her aunt’s place. Police obtained a history from Anne, who told police that Amber was pregnant to her cousin and that she, (Anne), understood an appointment for an abortion had already been arranged in Canberra and that Amber had been warned not to disclose her pregnancy to anyone. DI Price noted that a TAFE teacher had arranged for Amber to see the counsellor at YCHC. [15] Police took Amber into their care and DoCS issued a removal and replacement order to facilitate this.

    15. Exhibit 92, COPS entry E4466832 created by Sgt Price dated 19 February 1998

68. A few days later Sgt Keith Giddings returned Amber to Stella’s home. [16] Stella’s evidence about this time was, in my view, deliberately vague. She said that she did not remember being asked by Amber’s DoCS worker whether she pressured Amber to have an abortion. She does not remember getting frustrated talking to Amber about the abortion, (although acknowledged that she called her a “silly girl”), and does not remember DoCS being worried that Paul was still living in the house. [17]

    16. Tcpt, 25 June 2024, p 151.48 to p 152.13

    17. Tcpt, 25 June 2024, p 233.14 to p 234.5

69. In Stella’s mind, this exposure to the authorities was all the fault of Robert Geeves, because “he” had taken her to the authorities and so DoCS became involved. [18] Jacqui recalled that Stella, Ray and/or Rosalind told her that the Geeves were “interfering” with their relationship with Amber. Jacqui also formed the opinion that the Geeves were “trying to take Amber’s baby”, but the basis for this belief was not stated. Jacqui said she probably talked to Amber at this time and told her to be aware of and careful around the Geeves, as they might take her baby.

    18. Tcpt, 25 June 2024, p 234.7-11

70. Jacqui said that she did not speak to Amber about the termination, (she was then living in Mt Isa), but she knew that Stella, Ray and Rosalind spoke to her about it. She later heard the termination had taken place. Paul was made to pay for the procedure. Stella and Ray drove Amber to Canberra to have the termination.

71. In early 1998, Amber became friends with Robbie Geeves, the son of Robert and Anne Geeves. He was the same age as her. Amber and he had a relationship of boyfriend/girlfriend, but it was not a sexual relationship by Robbie’s account. [19]

    19. Tcpt, 25 June 2024, p 289.44 to p 290.22

72. In early 1999, Amber was sent to Mt Isa to live with Jacqui in a caravan. Robbie and Amber stayed in touch by phone. Their relationship fizzled out. At some point, Amber learned that Robbie was seeing another girl and she was upset about that according to Jacqui.

73. Paul occasionally visited at Mt Isa but according to Jacqui did not speak to Amber very much and that would upset Amber because Amber liked Paul. Jacqui admitted that she would get angry with Amber being attached to Paul, because they were cousins. Amber “started to cause trouble” not long after arriving, telling people in the caravan park that she had had sex with Paul. Jacqui wanted Stella to send Amber home to stop this happening. [20]

    20. Tcpt, 8 July 2024, p 971.32-37; p 977.6-50

74. In late 1999, while living in the caravan in Mt Isa, there was a disagreement between Jacqui and Amber which involved the calling of police. Jacqui is alleged to have put her hands around Amber’s neck. In her evidence Jacqui denied exerting pressure to Amber’s neck, although she acknowledged Amber was “a bit scared” but “just st[ood] there”. Stella underplayed this incident as well, agreeing that it was “… a bit of a problem. She did give her a shake yes, she did, but not around the throat” [21] , indicating in the witness box hands holding the front of her cardigan around chest height, up near the neck, but not actually around the throat. Mr King took Jacqui to her statement made in 2002, in which Jacqui acknowledged she had “… got really angry with Amber and once I put my hands around her throat. The police came out, however, nothing came of it”. [22]

    21. Tcpt, 25 June 2024, p 235.26 to p 237.50

    22. Tcpt, 8 July 2024, p 981.22-28

75. I do not believe that Jacqui did not exert pressure on Amber’s neck. I believe she did. So much is evident from the more candid description “I put my hand around her throat”. I believe that Jacqui was utterly furious with Amber disclosing family business, particularly as it involved an allegation of criminal behaviour on the part of her son. It appears that someone else in the vicinity was sufficiently concerned to call the police to the scene.

76. Amber was sent to live with other people in the caravan park for a few days and then sent further away, back to Kingsvale all the way from Mt Isa on her own, a trip that took some days and nights on a bus. [23] Sent away yet again, a vulnerable young girl with cognitive difficulties, by people whom she trusted to love and support her, simply because she told the truth about something that should not have happened to her, at the hands of another adult relative; truth-telling for which she was further assaulted and abused.

    23. Tcpt, 8 July 2024, p 981.31 to p 982.13

77. It appears that Amber lived with Stella and Ray through some of 1999 and early 2000. Stella said in her evidence that Amber paid $150.00 per fortnight for board and that Amber would take money out of the bank and give it to her while out shopping and Stella used it to pay for food. [24] It is unclear for what time period this arrangement was in place. Ray said that Amber had a mobile phone and was “always on the phone”, ringing her father and her mother, and that Robert called her “all the time”. I was not persuaded Ray was a reliable witness in his recount of what occurred. I consider his take on things to be informed by whatever Stella was perpetuating as fact.

    24. Tcpt, 25 June 2024, p 238.24 to p 240.21

78. Amber’s grandmother, Judith Khan is now deceased and although she provided a statement in May 2003, only very limited parts of it made their way into evidence. Ms Khan also gave evidence at the 2011 Inquest into Amber’s disappearance. Only a few lines from that evidence were tendered. None of this addressed what was happening with Amber in 2000, or Ms Khan’s understanding of where Amber was living.

79. In June 2000, according to Robbie, there was talk at his home of Amber moving into the Geeves house. He told his parents that he did not want that to occur, but his mother told him that was what was happening. [25] A few weeks later, Robbie moved out to live with his girlfriend, Natasha Cross. He didn’t think it was appropriate that he stay there with his “ex-girlfriend” moving in. [26]

    25. Tcpt, 26 June 2024, p 310.7-18

    26. Tcpt, 26 June 2024, p 291.24-30

80. It remained unclear on the evidence when exactly Amber moved in with the Geeves or how steady or comfortable that arrangement ever was for her. She had such limited options. She was dependent on welfare payments. She needed kindness and support. Everywhere she went, from the time she was a baby, there were issues and problems, or it was made clear that she was not wanted, or someone or other did not want her to be there. She was physically attacked, abused and made to feel unsafe or unwanted, or both, by members of her own family. How terrible that must have felt for a vulnerable, loving young woman carrying a life-threatening illness, the deep scars of a jagged, abusive childhood and cognitive and processing difficulties. Amber told a counsellor in Young in 2001 that she did not know what love was. There was little sign, in the sea of evidence led in this case, that Amber was ever shown the unconditional love and support she needed and deserved.

81. Police records tendered show that on 8 August 2000 Amber was present at Stella’s house and there was a physical fight between her and Jacqui. Jacqui recounted this in her evidence: that she was trying to advise Amber to stay away from the Geeves, and Amber pushed a portable TV into Jacqui’s stomach, allegedly causing Jacqui to lose her footing and that Jacqui then slapped Amber with an open palm “as a reflex”. [27] The police record says that it was in fact a punch with a closed fist. Sgt Giddings recorded in his notebook that there were two punches - one to Amber’s mouth and another to her right eye near her cheek. Jacqui said in cross-examination that she does not remember punching Amber, but she “could have”. She recalls Amber being upset and staying in her room. Police records indicate that it was Amber who called the police. Senior Constable Alexander Illes applied for an AVO against Jacqui on behalf of Amber. [28] The next day, Amber applied to retract her statement and later to have the AVO removed.

    27. Tcpt, 8 July 2024, p 958.18-45

    28. Exhibit AG1, Complaint and Summons

65. Stella claimed to remember little about this. She said she could not remember Jacqui punching Amber, but thinks Jacqui grabbed Amber’s arm and shook her. Stella claimed that “it wasn’t a big fight and she [Amber] wasn’t upset”. [29] However, it was difficult to be sure whether Stella was talking about the same event, or some other time when Jacqui assaulted Amber. A police report filed at that time and about which SC IIles gave evidence, referred to an “ongoing feud” involving “threats and violence”. [30]

    29. Exhibit AG1, Complaint and Summons

    30. Exhibit AG1, Complaint and Summons; Exhibit AG6, COPS event reports ending in 384 and 578 shown to SC Alexander Illes in evidence; Tcpt, 22 July 2024, p 1932.40-47

66. Ray Harding gave evidence that he recalled Amber telling him that Jacqui had “scruffed” her, that is - grabbed her around the top of her clothing near her neck, during an argument. He did not recall how long that was before Amber moved out. This may or may not be a reference to the event on 8 August 2000. In any event, I have concluded that the police report is more likely to be reliable. Whether it was a slap or a punch is probably not crucial. It should not have occurred and would have made Amber feel unsafe. There is a suggestion in the evidence that Amber went to the Geeves’ after this.

67. The ADVO taken out by SC Illes against Jacqui on behalf of Amber, was not a non-association order - just that Jacqui was not to harass or attack Amber. The ADVO was not contested by Jacqui, who appeared on 25 August 2000 at Young Local Court where the order was made. In October 2000, Amber made a formal application to revoke the order and it was revoked in November 2000.

68. A school friend of Amber’s, Charles Cutajar, recalled going out with Amber for a few months some time in 2000 while Amber was living with her mother in Rooty Hill. Rosalind gave evidence that Amber was at her house about November 2000 for a while until Robert came and collected her. This was the last time she saw her daughter. Ray’s understanding was that Amber had an argument with her mother and phoned Robert to pick her up. That may or may not be right, but there is no suggestion Rosalind wanted to keep Amber there with her. Rosalind gave evidence that she helped Amber get her things ready to leave while Robert waited and talked to her husband. She thought Robert was simply providing transport for Amber. [31]

    31. Tcpt, 21 June 2024, p 86.38 to p 87.17; p 88.30-43; p 93.20-22

69. I have concluded that Robert took Amber to Huntleigh to live at this time, if she wasn’t already living there before, and that this was her main residence until October 2001, when the apartment at Clarke Street was rented.

70. Robert started a sexual relationship with Amber at some point in 2001, if not before. He said in his ERISP on 25 June 2002 that it began in “probably … April” and “a number of months after she was living with us”; Robert said in that ERISP that Amber moved in around her 18^th birthday. Robbie gave evidence that his understanding was that Amber moved in with the Geeves in June 2000, and soon after he moved out to live with his girlfriend. Because Robbie took a break from speaking with his parents at this time, I do not think Robbie understood the complexities of Amber’s situation, nor did he know she was coming and going between a number of places in a quest to find somewhere that was secure and stable and where she was at least peacefully tolerated, if not actually wanted.

71. Dr Sevier, a general practitioner at Young District Medical Centre, first saw Amber in December 2000. He saw her a number of times for general things, including prescription of Epilim, before managing part of the antenatal care of her pregnancy with baby Ben.

72. Shortly before 3 May 2001, probably on the 2nd, Amber was referred by Dr Sevier to the YCHC for supportive therapy. Limited medical records were obtained from Dr Sevier’s medical practice comprising only computer records of dates of consultations and prescriptions provided to Amber and details of some investigations that were ordered. These included a referral for an ultrasound of her pregnancy in July 2001 and prescriptions for Epilim and folic acid. There were no handwritten notes available that Dr Sevier said in his evidence he would have made at the time of the consultations. The records provided, however, did indicate that Dr Sevier saw Amber for 14 consultations between May 2001 and early 2002.

73. Dr Sevier gave evidence that he remembered Amber and formed the view that Amber was functioning intellectually or cognitively at the level of a person perhaps aged 12 or 13 years. [32] Although he did not obtain a formal assessment, he based this view on his experience as a GP, and her presentation, demeanour, speech and her ability to understand advice. He thought that she probably understood the instructions and advice, but was perhaps not always able to recognise the significance of her own behaviour and its consequences. He thought she would need sheltered employment and would be better under the care of responsible adults.

    32. Tcpt, 8 July 2024, p 908.21 to p 908.35

74. I should interpolate here that regardless of Dr Sevier’s perceptions and those of other professional and lay people that Amber presented as someone less mature and less cognitively able than her chronological age, there was no evidence that her cognitive functioning was such that she was incapable of providing consent to sexual activity. To the extent any closing submission by the Crown suggested the contrary, I reject it.

75. That Amber seemed not able to recognise the significance of her own behaviour and its consequences is a different matter, and is a pervasive consideration, particularly when assessing the truth of what Amber told people. Amber seems to have said strange and silly things for effect or attention - for example, with no basis at all, telling a young and pregnant friend (Angelina Goode, now Fitzgibbons), that she had “lost” her baby, causing that young woman distress, despite it being untrue and Angelina remaining obviously pregnant. It does lead me to some disquiet as to whether Amber said other things to other people for attention or effect. She was a young woman with little agency in her life, pushed around, literally, by a family that was supposed to be helping and protecting her, and with little to do with her time until she had Ben.

76. The notes made by staff of the YCHC between May 2001 and when Amber was last seen there on 29 May 2002, provide an important anchor of fact for the trial. [33] This is not only because the notes provide a contemporaneous chronology of what Amber told them was happening in her life and how she was feeling, (though of course this was limited to what Amber chose to tell them), but also because those people were trained to notice things about the people they saw, to record relevant matters, and to form opinions about what assistance the people they saw required.

    33. Exhibit 24, Young Community Health records, p 5.15-36

77. Each practitioner made contemporaneous notes when they met with Amber. Those notes were tendered. They were detailed. Each practitioner gave evidence about what they wrote and their professional interactions with Amber. All clearly held concern for Amber and her complex social situation. All of the staff who met with Amber during 2001 maintained an objective yet concerned professional attitude. That changed with the involvement of the early childhood nurse, Susan Powell, in January 2002 and spread to Heather Ritchie, the manager at YCHC, influenced as she was by Ms Powell’s account of circumstances, where unfortunately fact became mixed with rumour, exaggeration and speculation.

78. On 11 May 2001, Amber had a consultation at YCHC with Douglas James, (Bachelor of Social Work, Monash), a social worker of some years’ experience. His role was as a generalist counsellor. Amber told him of “funny/confused dreams” she had been having, and her history of sexual abuse as a child, that her father beat her, and that she did not think that she knew “what love is”. She said that she was happy living with Anne and Robert, and that they treated her well. Mr James concluded that she was “childlike” and needed support, and arranged to see her in two weeks.

79. In his evidence, Mr James explained that Amber presented as innocent and naïve, with difficulty understanding complex or adult concepts. She had difficulty managing thoughts and emotions and would put her hands over her mouth and turned from side to side when she was talking, as a much younger person would. He was concerned about her situation: being intellectually delayed and having a relationship with a much older man. At this time Robert Geeves was over 40 years old and Amber was 18.

80. Amber missed the follow up meeting that Mr James had arranged for 23 May 2001, but attended on 4 June 2001. She “sheepishly” revealed to Mr James an affair with her “landlord”, Robert. She described going somewhere with him and drinking a quantity of alcohol and that he had told her that he had talked to his wife and said that it was “ok to do it because then we can be a real family”. She described the event to Mr James using the term “we made love”. She told Mr James that she was concerned that she would be “kicked out” if it was found she was pregnant.

81. Mr James referred her for pregnancy testing, which was positive. He described Amber as appearing “a little unsettled” after this. He discussed strategies to manage stress and made an appointment for 18 June 2001.

82. Catherine Kerr, a women’s health nurse of over 20 years experience at that time, was the nurse with whom Amber consulted that day in the Women’s Health Clinic. Amber told her it would be “OK” to be pregnant, and that she would not have a termination of pregnancy, and that she was “having counselling at present for past TOP [termination of pregnancy]”. She stated that she “may have a problem with the father of the baby � he is in a relationship already”.

83. Amber attended the YCHC again on 18 June 2001. She told Mr James that she wanted to continue the pregnancy and “will tell Anne (Robert’s wife) soon”. Coping strategies were discussed and a referral was made for antenatal classes.

84. Amber also attended the Women’s Health Clinic on 18 June 2001 and again was seen by Cathy Kerr. Ms Kerr thought Amber was “childlike”, acting and speaking like somebody of early teens, rather than an 18 or 19 year-old. They discussed the importance of regular antenatal care. A pregnancy care booklet was given to Amber, but Ms Kerr’s note records that Amber stated that she could not take it home because “her partners wife might find it”.

85. Ms Kerr gave evidence that she wanted Amber to attend a particular one-on-one parenthood class with Sue Lanham who would see people who might not fit well in a group session, to describe what was going to happen with the labour, delivery and postnatal period. In her evidence at trial, she said that her recollection was that Amber mentioned that she could not read or write very well and that is why she declined to take the NSW Health booklet. This is not what was recorded by Ms Kerr in her notes she made at the time. I consider the notes she made at the time to be more reliable in terms of what Amber said. Ms Kerr is also Robert Geeves’ cousin. She did not know at the time she dealt with Amber at the YCHC that Robert was the father of Amber’s baby.

86. Some time in June or July 2001, Michael and Geoffrey Haigh drove to Kingsvale from Sydney to visit Amber at the Geeves’ house. Michael Haigh gave evidence that Geoffrey and Robert had a beer, and Michael went to the car to have a nap. After a few hours they took Amber back to Judith Khan’s house in Merrylands where Amber stayed for “about a month”. While she was in Sydney, according to Geoffrey, Amber kept ringing Robert. Judging by the gaps in visits at the YCHC, this time in Sydney was likely to be between 5 and 30 July 2001 or 18 June and 3 July 2001. Amber returned to Young by train by herself.

87. On 4 July 2001, Amber spoke to Mr James again and discussed her feelings around the pregnancy. He noted that she was committed to having the baby and was looking to find accommodation in Young if possible, stating that she was feeling uncomfortable in her current situation. Mr James thought it appropriate to refer her to a female colleague, as Amber might be more comfortable with that, and so the next consultation was with another counsellor - Catrina Richens.

88. On 5 July 2001, Amber had a pregnancy dating ultrasound scan, which provided an estimated date for her baby to arrive as 4 February 2002. This meant she probably became pregnant sometime in April 2001.

89. To add to the complexity of Amber’s life, Paul Harding visited her while she was alone at Huntleigh, and they had sex in Amber’s bedroom on at least one occasion but there was no evidence as to when this took place. Amber later called him in Queensland and said that they were videotaped having sex, and that Robert tied her up at the wrists after watching the video of them having sex and “did all sexual things to her”. She told Paul that Robert played the video to Amber and said: “Tell me that’s not Paul” and asked her a lot of questions as he performed sexual acts on her.

90. Given what is recorded about what Amber told counsellor, Catrina Richens on 14 August 2001, the event with Robert was likely before 14 August 2001, and may well have been in the context of concern on Robert’s part as to who was in fact responsible for the pregnancy discovered in May 2001. Whether what Amber said to Paul was true is difficult to assess. Robert denied it in his record of interview. [34]

    34. Exhibit 88, ERISp of Robert Geeves dated 18 July 2002, Q113-A115

91. Paul Harding gave evidence that he “wasn’t allowed” to go to the Geeves’ property when the Geeves were home. He did not elaborate on who said that he was not allowed, but his evidence suggests that Amber did not want him to come there when the Geeves were home.

92. On 30 July 2001, Amber met with Ms Richens, (Bachelor of Social Work), who had worked at YCHC for four years at the time. At that point it seems Amber was back at Stella’s, according to the note which said that she was “happy there but plans to find her own accommodation soon”. The note also said that she was “unhappy around Anne”, but her relationship with Robert was “ongoing as she wants him to be part of the baby’s future” and she “was aware that Robert had lied to her on various occasions”. Amber is noted to have said that she had no contact with her parents, but had a close relationship with her grandmother and aunt in Lismore and would move to Lismore should Robert decide not to be involved with the baby. Amber spoke of a worry that she may die during childbirth due to her epilepsy and that she did not want her baby to live with Anne or Robert. Ms Richens advised her to seek legal advice on this issue and encouraged her to “keep safe physically and emotionally” regarding her relationship with Robert. In her evidence Ms Richens said that she could tell Amber had an intellectual disability and that her chronological age was more than what her intellectual age was, that she was concerned Robert was a lot older, and that there may be a power “indifference”(sic) between her and Robert and Anne. [35]

    35. Tcpt, 5 July 2024, p 878.42-50

93. Amber wrote a letter dated “8 August 2001” to “Dear Robert”, which was found by police at her flat on execution of a search warrant after her disappearance. That letter was consistent with her stated impression that the father, Robert, may not want the baby, stating:

“Dear Robert,

Hi, how are you going? I’ve got the letter. The baby is now 14 week’s old. The baby is going to be born on the 4 of feb 2002. Yes it is your’s but don’t worry about it. The baby and I may move away soon. If you really loved us you would of done samething [sic] by now. I know what you asked me in the car was all bullshit. If I die don’t worry about the baby ok. Did you get the photo’s yet.

Love

Amber

P.S.

The baby move a bit.”

111. On 8 August 2001, Amber made an inquiry at Carmody Crampton Solicitors for the making of a Will in which she could make provision for who would have her baby if something happened to her. She told Ms Pisaturo-McMillan, a legal secretary at the firm, that she was four months pregnant and would like to make a Will, recorded by Ms Pisaturo-McMillan in a file note as: “enforceable in the event anything happens to her child to be awarded to aunty and second cousin”. Ms Pisaturo-McMillan added the following to the note: “(Father in prison, drug addict; mother unknown; father of child has been in jail - murder?)”. [36]

     36. Exhibit 27, Handwritten note headed “Message” authored by Rebecca McMillian

112. Ms Pisaturo-McMillan gave adamant evidence that she recalled Amber coming into the office on this occasion and that Amber said that she was scared of dying given her epilepsy. Amber also said that once her child is born, her life will be taken: the father of her child had told her if she ever gets pregnant, she will not live beyond the birth of her child - he will end her life. The father of the baby also told her that he has been to prison for murder. [37]

     37. Tcpt, 9 July 2024, p 1008.21-41

113. Ms Pisaturo-McMillan was cross-examined about this assertion she made about what Amber told her. [38] First, none of this was included in her file note completed on 8 August 2001. Ms Pisaturo-McMillan was first interviewed by police in 2011, some ten years after the events to which she refers and after much media speculation, including media reports that drew attention to accusations of murder made earlier against Robert Geeves in respect of another woman. Ms Pisaturo-McMillan denied accumulating knowledge about the Geeves from speaking to people in Young. She said that Amber never mentioned Robert’s name to her.

     38. Tcpt, 9 July 2024, p 1013.41 to p 1016.29

114. It is difficult to know what to make of this evidence. Ms Pisaturo-McMillan did not tell authorities, or even her boss, an experienced solicitor Mr Ross Crampton, about the assertion this then 18 year old woman apparently made, that she thought she would be murdered by the father of her child when the child was born, and that he had threatened her in that way. This seems odd, given Ms Pisaturo-McMillan was a legal secretary at that time and Mr Crampton an experienced solicitor. Unlike the “tying up” assertions Amber made to a number of people, the evidence does not reveal that this extraordinary assertion, if it was in fact made in the terms Ms Pisaturo-McMillan recounts, was made by Amber to anyone else.

115. Ms Pisaturo-McMillan struck me as an intelligent, responsible, civic-minded woman. There was no contemporaneous record of this very serious allegation of intent. Mr Crampton gave no evidence suggesting that Ms Pisaturo-McMillan had relayed any of this to him. There was, however, reference in the note to a query about the father of the baby being in jail for murder. It seems to me Ms Pisaturo-McMillan may well have confused in her mind the strange litany of things Amber told her in her recount to police ten years later. I have no doubt Amber wanted to make a Will to provide for whom she wanted to have her baby where circumstances prevailing at the time suggested Robert was ambivalent about the baby, and that contrary to the Crown case, the pregnancy does not seem to have been planned at all in consultation with him and/or Anne.

116. On 9 August 2001, Amber provided some further information by telephone to Ms Pisaturo-McMillan including her address - 18 Huntleigh Road, Kingsvale (Stella’s address); occupation - pensioner; aunt Patrica Haigh to be appointed guardian of child; her possessions to a named half-sister; pets to Stella and anything else to Patricia Haigh; with the executor to be Stella.

111. Ross Crampton prepared the Will, and on 29 August 2001, Amber attended Carmody Crampton to execute her Will. An executed copy of the Will was in evidence, as was the original Will which had been retained at Carmody Crampton for safekeeping. Mr Crampton was an impressive and understated witness. I accept his evidence that, as part of his role, he would have made an assessment as to whether Amber was able to understand the effect of the Will. I am also satisfied that if he had been told Amber had been threatened with murder, he would have acted in a responsible manner and made further inquiry about this with Amber, and reported any concerns to the authorities.

112. On 14 August 2001, Amber had another meeting with Ms Richens. She told her that she was living with her aunt Stella, and had had no contact with Robert for two weeks. She said she felt she wanted to know whether Robert wanted to play a role in the baby’s life or not, and if not, she would consider relocating to Lismore. She spoke about Robert “previously shooting a woman” and Ms Richens noted that Amber told her that Robert had “tied Amber up when he thought she was cheating on him”. There is no evidence Ms Richens took any action to report this as an assault or other criminal behaviour, or that she encouraged Amber to do so either. Ms Richens struck me as a competent and responsible social worker who would escalate matters of concern if criminal behaviour was suspected.

113. On 20 August 2001, Ms Richens made a note that she had called Amber, who told Ms Richens that Robert said he wanted to support her and the baby.

114. On 2 September 2001, Amber presented to the Emergency Department at Young District Hospital (“YDH”) with her aunt and cousin with a history of having cold and flu symptoms for a week. She was worried about vomiting following coughing. The attending person noted that the “aunt needed reassurance re niece’s condition”. Amber was reviewed by a medical officer who diagnosed bronchitis and prescribed Keflex.

115. On 6 September 2001, Amber wrote the following letter to Patricia Haigh:

“To Trish,

How is things? I’m giving you a copy of the will ok. Can you say hello to Kara and Jesse and Jude and tellth [sic] I love them for me please.

Love from Amber

Xxxxoooo

P.S

LOVE YOU TOO Trish. Thank you for going to look after my baby for me and can you please tell the baby that I love him so much. That’s if something dose [sic] go wrong.”

122. A media article dated 30 July 2002 indicated that a version of this letter was provided to that outlet by Patricia Haigh, so it appears Amber sent (a finalised version of) the letter and a copy of the Will to Patricia, and that the handwritten version of the letter found in Amber’s flat on 24 June 2002 on execution of the search warrant was a draft. (There were other letters found that indicate that Amber would first prepare a draft of a letter, with crossings out of misspellings or changes in expression, and this was then apparently followed by a neater version).

123. On 11 September 2001, Amber attended the YCHC and saw Ms Richens. She reported that Robert was “not as committed to the baby as she had hoped”. She was encouraged to look at other options. She said that she decided she would stay in Young with her aunt after the baby was born. The referral was made to Sue Lanham to ensure antenatal care was adequate.

124. On 24 September 2001, Ms Richens made a call to Amber but she was asleep, so she spoke to her aunt who “expressed concern about Amber’s involvement with Robert”.

125. On 29 September 2001, Amber attended the Emergency Department at YDH because of some spotting “following IC [intercourse] this morning”. She was checked by Dr Sevier and allowed to go home. There is no record as to with whom the intercourse had taken place.

126. By 10 October 2001, Amber had relocated to a flat in town, telling Ms Richens at YCHC that it was “too stressful” at her aunt’s place as Stella did not want Robert visiting. Amber said she still felt Robert wasn’t committed to the baby and she had some concerns that Robert and Anne would try and take the baby from her. Ms Richens encouraged her to seek legal advice and to contact police if Robert or Anne harassed her.

127. Jacqui acknowledged that she had concerns about Robert and did tell Amber her opinion that the Geeves “would take Amber’s baby”. Stella was angry that Robert called Amber all the time. Stella told him she would get the police on him if he came to Carinya Downs. [39] I consider it likely that the origins of many of Amber’s concerns about Robert were at least partly, if not wholly, from things Stella and Jacqui said to Amber, rather than any particular threat or assertion made by the accused, or behaviour by them towards Amber.

     39. Tcpt, Statement of Stella Nealon, 25 June 2002, par 7, confirmed in evidence, Tcpt, 25 June 2024, p 194.5-27

128. On 11 October 2001, Amber was admitted to YDH with a bleed from her vagina. She was discharged the next morning.

129. On 13 October 2001, Amber presented to Harden District Hospital “feeling as though she was going to black out”. She was transferred to YDH.

130. Amber presented again to YDH on the night of 20 October 2001 with pain in her hips and gave a history that she had had a “bad fight” with a male friend. She was tired and wanted to stay. She was left to sleep, and the following morning was discharged with a friend, with a note made that she had a “complicated social situation”.

131. Amber was brought in by ambulance to YDH on 25 October 2001 with abdominal pain and was discharged on 27 October 2001. She had urinary symptoms and was investigated by renal ultrasound, but no abnormality was found.

132. On 2 November 2001, Amber was brought into YDH by ambulance again, stating that she had been hit by a child in the abdomen. After her review, there was a note that she had no money to get a taxi home and that she only had $6.00 at home, which she needed for food. She said that a neighbour may come and get her.

133. Amber was back at YDH Emergency Department on 14 November 2002 seeking assistance again with anxiety and abdominal pain.

134. All of these presentations suggest to me that Amber was very anxious about the pregnancy and her health and was not coping living alone.

135. Amber made some acquaintances with the people living in the Clarke Street block of flats that she moved into on 3 October 2001. These flats were at close quarters and arranged in a claustrophobic formation around a courtyard, so many flats overlooked or faced into each other. Angelina Goode, Lisa Parker and Cindy Brown were all young mothers or mothers to be living in that block of flats at that time. They socialised over coffee occasionally, including at the flat of Leon and Daphne Henry, an older couple who lived in flat number 1. There was evidence from Angelina, Lisa and Cindy at the trial, and also from Leon. Daphne had died so her evidence was in the form of parts of a statement she gave to police on 25 June 2002, less than a week after police were told Amber was missing. [40]

     40. Exhibit 131, Extracts from statement of Daphne Henry dated 25 June 2002 redacted as per rulings of the Court or agreement between the parties

136. Daphne stated that she saw Robert visiting the flat at least once or twice a week and that he sometimes stayed overnight. He was introduced to her as “the baby’s father”. She observed Anne Geeves and Paul Harding also visiting on occasion. Daphne’s impression was that Amber was mainly at the flat during her pregnancy and would occasionally go out to the Geeves’ place, but would normally (though not always) tell Daphne where she was going.

137. Daphne said that she saw Amber come back to the flats about a week after she had been absent in late January. She came with Stella to get things for herself. She told Daphne she had had the baby. The baby was still at the hospital. A week later she was back having had a fight with Stella, and then went out to Robert and Anne’s. Daphne thought that Amber never stayed at the flat again after that. At one point Daphne said that Amber left with a lady who “lives up at the hospital” (possibly a reference to Denise Allbutt, or maybe Brenda McLeod who helped Amber pack up and be transported to Canberra on 4 March 2002 to attend the QEII unit for mothercraft help). Daphne said that Amber then “disappeared”. She said that Robert was cranky that she had disappeared and took a bassinette from Amber’s flat and asked Daphne to mind it. When Amber returned with the baby, Robert and Amber had a fight and then Amber and the baby and Robert left together. Just after this Amber “went missing” for three weeks and “no one knew where she was”. Daphne stated that Robert came to check, and would phone her two to three times a day to see if Amber had returned. Leon gave similar evidence although he was unsure of the period when Amber went missing - whether it was February or March 2002.

138. Daphne said that when Amber turned up “three weeks later”, Daphne spoke to her about not telling anyone where she was. Leon, Daphne’s husband, gave evidence that he also “had words” with Amber about disappearing and not telling people where she went.

139. It appears that this period in February/March 2002 was where Amber went to Sydney to see her uncle, Michael Haigh, and his family, including Tracey Ford, and this was immediately followed by her time in the QEII Centre in Canberra, following which she went back to the Geeves’ place.

140. In Daphne’s statement, there is a paragraph that commences with the evaluative statement: “I am aware that Robert Geeves used to have control of Amber’s finances” but what is then described is a series of observations consistent with Robert assisting Amber to manage her money and get out of debt. Daphne stated that she saw Amber’s Credit Union card in Amber’s own purse, and that she knew that Amber went “down the street” to get money from her own account. The use of the word “control” in that context does not have the redolence with which the Crown seeks to invest this arrangement, but this is an issue to which I will return when discussing the alleged “financial control” element of the Crown’s circumstantial case.

141. Amber introduced Angelina to Paul when he was at the Clarke Street flats at some point. Angelina stated that Amber told her that Amber did not want Robert’s name on the birth certificate “because of how he treated her”. Amber told Angelina that the father of the child could also be Paul or Ray. Ray vehemently denied he had ever touched Amber, saying “She was too young for me”. [41]

     41. Tcpt, 1 July 2024, p 508.9-10

142. Amber said to Lisa Parker that Paul could be the father of the baby.

143. Angelina ended up withdrawing from her friendship with Amber because Amber was saying silly things to others about Angelina’s pregnancy, telling her, and others, that Angelina had “lost the baby”, despite that not being the case. Angelina found this to be stressful and so she separated herself and would just say “hello” after that.

144. Angelina had other conversations with Amber, including Amber telling her that she was going to go to Mt Isa to see Paul whom she had been “seeing” whenever he was down from Queensland and that she and Robert planned to have a DNA test to make sure he was the father of the child.

145. Cindy Brown became Paul Harding’s partner in 2002 or 2003 and they now have two children together. Cindy gave evidence that Amber had told her that Robert Geeves tied her up and had sex with her. She, Leon, Daphne and Amber were present when Amber said this. Cindy said that Amber told her that there was a camera in the corner of the lounge room (later in her evidence corrected to the bedroom, consistently with her 27 June 2002 statement) and that apparently Anne Geeves watched it after they “had yeah sex, yeah, I don’t know”. [42] Cindy denied the possibility that she was relaying a different version of this story she had been told by her partner, Paul, or from Stella, Ray or Jacqui. [43]

     42. Tcpt, 22 July 2024, p 1871.8-38

     43. Tcpt, 22 July 2024, p 1880.15-23

146. Lisa Parker recalled having a conversation with Amber in which Amber told Lisa that she was planning on having another baby with Robert, and that this was because Anne “had cancer”. It was unclear when this conversation took place.

147. Stella said that she found out Amber was pregnant by seeing her, as opposed to being told. She was pressed in examination in chief by the Prosecutor about what Amber told her Anne had said about “wanting the baby”. Despite pressing Stella about this asserted conversation, the highest this evidence came to was that Amber told Stella that Anne had said: “If you don’t look after the baby you’ll, you’ll lose it… I’ll take it or I’ll have it. That’s all she wanted”. [44] (Who “she” is in this context was not explained). Stella then said: “Yeah she said if you didn’t look after it, if you don’t look after it, you’re, you lost it. You lose it” [45] and that Amber said to Stella: “No one gets it. It’s my baby”. [46] This is the high-water mark of the evidence regarding any “plan” by Anne to take the baby. The high-water mark is shallow, and I hold serious concerns about the reliability of that third-hand recount in any event, because I have concluded on the whole, Stella is an unreliable witness.

     44. Tcpt, 25 June 2024, p 162.24-32.

     45. Tcpt, 25 June 2024, p 163.42-43

     46. Tcpt, 25 June 2024, p 165.18-22

148. Stella’s evidence was very vague in many respects. Stella was elderly, (in her 80s) did not appear to have any hearing impairment or obvious intellectual impairment, but she had an odd, diffuse way of speaking and responding, or rather not responding, to questions. She would go off on tangents and often did not address the question asked by counsel. In many places in her evidence, it remained unclear as to what event, time or conversation she was referring. At some points, Stella attempted to take control of the questioning process by gratuitously commenting on the questions asked, particularly by defence counsel, and interrupted legal argument when she was asked by the Court to remain quiet. She was defensive about her family and anxious to convince the Court that she had loved Amber and treated her well.

149. The Prosecutor was given leave to assist Stella by reading to her parts of her statement made on 25 June 2002. In that statement Stella had said that Amber had told her that Anne could not have a baby and that Anne wanted her to have a baby for her to keep. At the trial, Stella said that Amber told Anne: “I don’t want to have a baby for anyone”, and: “it’s my baby”. It remained unclear when this asserted conversation took place with Amber, what the context was for the assertion allegedly made by Anne about “taking” the baby if Amber didn’t look after it, or whether Stella was truthfully recounting a conversation she actually remembered.

150. These vagueries and attitudes added to my perception of the general unreliability of the evidence of Stella and I consider that I need to exercise great caution in accepting any of Stella’s evidence. This is a separate and additional concern to the overwhelming concern I hold about the reliability and truthfulness of accounts Amber gave to various people about the Geeves, including Stella.

151. Stella claimed in her evidence in chief that she only became aware later that Amber had moved to a flat in Young but was reminded after a s 32 Evidence Act application that she did in fact know, and provided Amber with mats and curtains to take to the flat. Stella said that she avoided going to the flat because she did not want to see Robert Geeves. This last point is one matter I do accept.

152. Amber’s grandmother, Judith Khan, asserted in her 2003 statement that by November 2001 she was in hospital in Lismore and that Amber would ring her over and over. Ms Khan became concerned about the cost and tried to get Amber to stop. She recalled that Amber’s phone ended up being disconnected, but then Amber called her on a mobile. She found out Amber was pregnant from Patricia Haigh but Amber did not tell Ms Khan who the father was.

153. On 5 November 2001, Ms Richens made a home visit to the flat. Amber told her that she had had no contact with Robert and had decided not to pursue him, but concerns that Robert would “harass her” and “take her baby” were raised again. She was reminded to seek legal advice. She was enrolled in antenatal education classes.

154. On 25 November 2001, Amber was yet again brought in by ambulance to YDH from home complaining of blurred vision and low back pain. She told hospital staff that she was worried she was going to die. The reviewing staff noted that she was a “poor historian”. Migraine was diagnosed.

155. On 3 December 2001, Ms Richens called Amber and confirmed that Amber would see Sue Lanham for antenatal care and that Ms Richens would phone in a few weeks. The notes indicate that Ms Lanham carried out home visits on 12 and 19 December 2001 for antenatal education. She noted that Amber had limited understanding and “needed support ++”, and that she had a poor housing situation.

156. I interpolate that Amber’s flat was shown in the footage of the execution of the search warrant on 24 June 2002. [47] It was extremely small, furnished only with piles of clothes and fabric and clutter, a tiny kitchen and little space to live. It would have been very difficult to look after a baby in that environment. There was also little space for visitors.

     47. Exhibit 96 - DVD of the edited search warrant footage of Amber Haigh’s flat on 24 June 2002

157. On 18 December 2001, Ms Richens made a phone call to Amber in which Amber reported that her father was moving to Young to help look after the baby. Ms Richens noted that Amber remained in contact with Robert and that the pregnancy was progressing well.

158. I have concluded that Amber was really struggling on her own in the flat, despite support from local health services and neighbours. She was understandably frightened and apprehensive about her health and social circumstances, her family’s disapproval of Robert and their relationship, and Robert’s disapproval of Amber’s family. Things were about to get worse, not better, with the arrival of Geoffrey.

159. Handwritten notes, analysed by the handwriting expert Mr Mesker [48] to have been likely written by the same person (and thought to be Amber), indicated that Amber was reminding herself about arrangements to go to the Credit Union on Thursday (27 December 2001). [49] It appears from the note that Robert was assisting her with that. It is common ground that Amber was provided with $1,000.00 Credit Union loan which went into her bank account on 9 January 2002 and was partly spent and partly taken out in cash the same day, including four separate cash withdrawals at the Mill Tavern. [50]

     48. Exhibit 81, Expert Certificate of Frederick Willem Mesker dated 26 August 2003 together with annexures

     49. Exhibit 81, Expert Certificate of Frederick Willem Mesker dated 26 August 2003 together with annexures

     50. Exhibit 14, Two pages of bank records of general savings account of Amber Haigh

160. Transaction records from Amber’s bank account covering 2 January 2002 to 19 June 2002 were tendered. A very clear pattern emerged. Up to 5 June 2002 on the day her Centrelink (and later her Family Assistance payments) arrived in the account, the total money was withdrawn - down to the last few dollars and cents - on that day, in cash, at an ATM or over the counter at a Credit Union branch. The only variation to that was an occasional debit card purchase such as at an IGA or Kmart, and on 30 January 2002, (just after she had had her baby), where there was a one-day-delay before the whole amount was withdrawn in cash.

161. Another note analysed by Mr Mesker as written by Amber suggested that she estimated that her father would arrive on 30 or 31 December 2001 and that she hoped “that there is no shit with anything”. [51]

     51. Exhibit 81, Expert Certificate of Frederick Willem Mesker dated 26 August 2003 together with annexures

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.

(5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.

(6) For the purposes of this section—

(a) delay includes delay between the alleged offence and its being reported, and

(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.

(7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following—

(a) the fact that any potential witnesses have died or are not able to be located,

(b) the fact that any potential evidence has been lost or is otherwise unavailable.

364. The accused must specifically identify the forensic disadvantage(s) suffered. It is not sufficient to argue death of a witness or loss of a detail, if there is nothing to indicate whether that evidence would have been inculpatory or exculpatory: Dawson v R [2024] NSWCCA 98 (“Dawson”) at [93]. The extent of delay is not the test. It is the consequence of delay that matters: TO v R [2017] NSWCCA 12 (“TO”) at [167].

365. Counsel for the defence jointly submitted that given that Amber went missing in early June 2002, many witnesses in this current trial had difficulties in remembering what they said in their police statements (many of which were made in 2002) and were the subject of applications under s 32 of the Evidence Act. A number of witnesses are deceased.

366. I am not satisfied that this wider submission provides a basis for a wholescale s 165B direction, given what the Court said in Dawson and TO about the need for specificity in approach. Many s 32 applications were granted and led to the Court being assisted by the accounts given to police by witnesses in signed statements when matters were still very fresh in their minds.

367. However both accused submitted that evidence from the following witnesses which was not available at trial would have assisted the defence case had the prosecution been brought earlier:

1. Petrina Ingram's lost diary notes of her conversation with Amber at Cootamundra, [195] considering that Ms Ingram did not give a statement to police until 2024 [196] because her initial accounts to police in 2002 and 2008 (oral accounts to Crime Stoppers, not formal statements) were not responded to. [197]

   195. Tcpt, 2 July 2024, p 606.19-41; p 611.20-32

   196. Tcpt, 2 July 2024, p 615.23-40

   197. Tcpt, 2 July 2024, p 615.1-20

2. Stella's evidence as to whether Amber told her anything about Anne Geeves’ ability to have more children: “Q. Did Amber ever tell you anything about Anne Geeves’ ability to have more children? A. She didn’t say, no, she never said nothing like with - well, I don’t know. She could have but I can’t remember that, that part there, she can’t have children. I suppose, yes, that’s why she wants them.” [198] This topic is central to the Crown's motive, and the lapse of time made exploration of what was said about the topic difficult if not impossible for Stella.

   198. Tcpt, 25 June 2024, p 199.27-31

3. Stella's evidence about not recalling the topics of Amber's travel experience with Campbelltown train station. [199] This topic is central to the second of the indispensable intermediate facts, described in the circumstantial case warning.

4. Stella's inability to recall a visit from Ms Powell in February 2002, which would have given context to Ms Powell's observations of a loud argument and her impression that it was due to the family not wanting Amber to stay there any longer. [200] This was relevant to the evidence of Ms Powell in which, (initially at least), a preference by Ms Powell for Ms Nealon’s family was expressed, but that changed.

5. Reuben Spicer, a now deceased witness, provided a statement to police in June 2002 in which he said that he saw Amber “a couple of days” after he had passed a message to Robert about Amber’s father’s illness. Reuben made his statement shortly after this observation was said to have occurred. It is reasonable to infer the date he says that he saw Amber again would have been 3 or 4 June 2002. This would put Amber, observed alive by someone who knew her, on a date past the first of the dates on the Indictment and so was an important matter to explore, but defence counsel were unable to do so.

6. Judith Khan, another deceased witness, gave evidence at the Inquest that she had spoken to Amber about her father’s health, (although the date is not clear), and told Amber that her father was in Mt Druitt Hospital and that he was very ill and “doesn’t have that much longer”. [201] That fact of whether and when Amber was told that description of her father's illness and state of health is vital, and defence counsel were denied the chance to examine further that conversation, and the circumstances discussed in the conversation.

7. Heather Ritchie, who gave evidence of at least one meeting with Robert and Anne in which Robert said: “You can’t believe what she [Amber] says, she tells lies, she doesn’t speak the truth”. [202] Ms Richie gave evidence that she made notes of this meeting “Only in my diary, which I have tried to find, and I can’t. It's just a bit too long ago”. [203] This loss of evidence has deprived Robert and Anne of the ability to test and potentially undermine or clarify Ms Ritchie’s evidence and precisely what was said to her by the Geeves at this time.

   199. Tcpt, 25 June 2024, p 206.10-42

   200. Tcpt, 25 June 2024, p 223.9 to p 225.3

   201. Exhibit 136, Extracts from Judith Khan’s transcript at the Inquest from p 44.50 to p 45.9 redacted as per rulings of the Court or agreement between the parties

   202. Tcpt, 5 July 2024, p 861.6-8

   203. Tcpt, 5 July 2024, p 861.36-41

368. I am satisfied that both accused have suffered a significant forensic disadvantage as a consequence of the 20 year delay in prosecution as set out in (i) to (vii) above, because they have been deprived of the opportunity of examining and testing witnesses’ impressions and recollections without the assistance of the once available contemporaneous records that would potentially clarify or potentially change the colour of the material recounted, and would provide a basis for testing the evidence of the respective witnesses. In respect of Reuben Spicer, there is a loss of an important previously available opportunity to clarify the possibility adverted to in his statement that he saw the deceased alive on 3 or 4 June 2002.

369. Defence counsel also submitted that I should also conclude forensic disadvantage to them in respect of the following aspects of Stella’s evidence:

1. Whether Stella placed pressure on Amber to have an abortion (in relation to the pregnancy with Paul Harding). [204] It was submitted that her inability to recall this period disallowed both accused from asking questions about Ms Nealon’s motive, (if any), for wanting Amber to have an abortion, possibly to protect Paul, and any subsequent development of a purported motive by Anne for a surrogate child.

2. Stella's inability to recall the act of violence by Jacqui Cash causing police to attend the Carinya Downs on 8 August 2000. [205] It was submitted that this prevented defence counsel from pursuing the obvious line of questioning that Ms Nealon’s house was not the ‘safe haven’ that others, particularly Ms Powell, believed it to be.

   204. Tcpt, 25 June 2024, p 216.37-49

   205. Tcpt, 25 June 2024, p 243.28 to p 244.7

370. I am not satisfied that Stella had in truth forgotten those events. In my opinion she was “foxing” to avoid telling the truth about those events, for fear it would make her and her family look bad. This conclusion I have reached about Stella’s alleged foggy recollection of these particular events was made manifest by the polite and careful cross-examination of Stella by Mr King and Mr Coady. Accordingly, I do not find any forensic disadvantage operates in respect of these parts of Stella’s evidence.

Section 165 - unreliability direction

371. Both defence counsel requested that I give myself a direction under s 165 of the Evidence Act regarding a particular category of evidence comprising out of court statements that Amber made to various people asserting mistreatment of her by Robert (and Anne) on the basis that it is evidence of a kind that may be unreliable. Section 165 is directed to evidence of a kind about which courts have gained a special knowledge: R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260 at [86]. A warning of this kind is not required for evidence about which there is simply issues as to truthfulness, motive to lie, reliability generally or prior inconsistent statements. These matters are within common life experience. However evidence of Amber’s statements made to various people out of court does require a cautious approach. I direct myself that I must consider all the matters I have learned about Amber in the trial when assessing first the truth, and separately the reliability, or otherwise, of things she is alleged to have said to people before she disappeared. I must bear in mind that none of her assertions have been able to be tested and were all tendered by the Crown for a hearsay purpose - i.e. to prove the truth of the hearsay statement.

Expert evidence direction

372. Expert evidence was tendered from John Flockton, a Psychologist, [206] and Dr Brent Waters, Consultant Psychiatrist, who both assessed the Geeves in August and October 2002 as part of DoCS’ investigation, re-agitated by police in July 2002, and for [REDACTED], respectively. [207] There was also evidence from Frederick Mesker, a handwriting expert, in the form of a certificate dated August 2003 about Amber’s handwriting and letters she had apparently written. [208] Detective (Tech) Manuel Antonio Rivera provided a report regarding his forensic examination of vehicles owned by the accused. [209]

     206. Exhibit 35, Bundle of DoCS material extracted by the Crown from Ben’s file, p 427-439

     207. Exhibit 35, Bundle of DoCS material extracted by the Crown from Ben’s file, p 702-717

     208. Exhibit 81, Expert Certificate of Frederick Willem Mesker dated 26 August 2003 together with annexures

     209. Exhibit 82, Statement of Manuel Antonio Rivera dated 2 November 2004

373. An expert witness is a person who has specialised knowledge based on their training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express their opinions.

374. The value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet can still be an expert qualified to give an opinion where that opinion is based on that witness’ specialised knowledge.

375. I should bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the experts, I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am entitled, to a degree, to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates.

376. Defence counsel jointly submitted that I should take Mr Flockton’s August 2002 assessment and report into account as an evaluation of (and response to) police allegations made at that time that Robert Geeves was irrational, suicidal, on drugs, “ranting and raving” and that both accused harboured a homicidal “surrogacy” motive.

377. A similar submission was made in respect of Dr Waters’ report to [REDACTED] dated October 2002. [210] Dr Waters met with the Geeves and Ben on 6 October 2002. His report included observations of the Geeves' relationship with each other and with Ben. Neither he nor Mr Flockton made observations of either accused harbouring (or demonstrating) an apparent homicidal “surrogacy” motive.

     210. Exhibit 35, Bundle of DoCS material extracted by the Crown from Ben’s file, p 702-717

378. I am not satisfied that the function those expert opinions was to make such a specific assessment, however I have read those reports as an expert evaluation of the psychological stability of both accused at the time they were observed and interviewed, and the opinions each expert articulated were generally favourable, noting that there was nothing pathological or concerning seen in their attachment to or bonding with Ben, their relationship with each other, or the circumstances examined by them to the extent they did so in the context of those particular reviews. I take those opinions into account as part of the whole of the evidence tendered and led in this case, but do not consider either report has a role in evaluating any essential fact that I need to determine as to whether the motive alleged by the Crown was present before or at the time the Crown alleges Amber was murdered by the accused.

379. Defence counsel also submitted that evidence of the previous officers in charge of Strike Force Villamar 1, DS Crea and SC Cockram, should be treated as expert evidence on the issue of the weakness of the Prosecution case, given their expert views must have been that there was insufficient evidence upon which to charge Mr and Mrs Geeves with murder in 2002 and 2008, and the obvious lack of any persuasive new evidence found by Villamar 2.

380. I reject that submission. DS Crea and SC Cockram were witnesses of fact, and that is all. Their opinions as to whether there was sufficient evidence to charge Mr and Mrs Geeves at the time when they were in charge of the investigation is irrelevant to my task now, and does not amount to any expert view, by default or otherwise, about the adequacy of the Prosecution case presented at trial.

381. Defence counsel submitted that another witness of fact, Emma Baldock, should also be considered in the category of an expert. Whilst a highly qualified person, her involvement in this case was not in the nature of an expert retained to provide an objective assessment of a particular issue. Whilst she did provide a “report”, much like the staff at the YCHC who were also well qualified, (Ms Richens, Ms Kerr, Mr James and Ms Powell), Ms Baldock interviewed and assessed Amber’s needs. She did so in a single session in March 2002. She was not retained to elicit a history of sexual or any other type of abuse or mistreatment at the hands of Mr Geeves, or anyone else. The submission that the absence of such a history from her notes of her interaction with Amber does not mean that Amber’s accounts of these things to others were not true. The focus of Ms Baldock’s role was on Amber’s current support needs and situation. Given recent DoCS involvement and Amber’s obvious fears her baby would be taken from her by DoCS, it is unsurprising that Amber did not volunteer anything that could put her living situation at the Geeves’ house at risk. There was also no evidence that Ms Baldock considered her role as including probing into any history of sexual misconduct or sexual abuse.

Effect of acquittals

382. Evidence was given by various witnesses as to the following matters:

1. In 1987 Mr Geeves was charged with sexual offences against two female children. He was acquitted of those sexual offences. [211]

2. Mr Geeves was charged with a criminal offence following the death of a woman named Janelle Goodwin. He was discharged at committal. [212] He was charged again in 2003 and acquitted following a trial. [213]

   211. Tcpt, 2 August 2024, p 2252.50

   212. Tcpt, 2 August 2024, p 2253.9

   213. Tcpt, 2 August 2024, p 2253.13

383. Evidence of these circumstances was adduced to explain the evidence of Ms Nealon, Ms Powell (which was conveyed by her to Ms Ritchie and Ms Baldock) as well as the evidence of investigating police, and their attitude of pre-judgement towards Robert Geeves.

384. As Mr Geeves was acquitted of both sets of offences, this evidence cannot be used to prove any type of bad character, or tendency to act in any way. Mr Geeves must be given the full effect of his acquittals: in DS v R [2018] NSWCCA 195 at [3], citing The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55. The Crown Prosecutor made a submission in his closing address that purported to undermine the effect of those acquittals. It was appropriately identified by Mr Coady as an improper submission and was the next day unequivocally withdrawn. The submission should never have been made by the Crown Prosecutor and I have completely disregarded it.

Character

385. Anne Geeves has called evidence to establish that she is a person of good character in that she does not have a criminal record. That evidence has not been challenged by the Crown. Therefore I must accept the fact that Anne is a person of good character.

386. The law provides that I am entitled to take evidence of an accused’s good character into account in her favour on the question of whether the Crown has proved her guilt beyond reasonable doubt. The fact that Anne is a person of good character is relevant to the likelihood of her having committed the offence alleged. I can take into account her good character by reasoning that such a person is unlikely to have committed the offence charged by the Crown and whether I do is a matter for me.

387. I can use the fact that Anne is a person of good character to support her credibility. I may reason that a person of good character is less likely to lie or give a false account either in giving evidence before me or in giving an account of the events in answer to questions asked by the police. This is a matter for me.

388. None of this means, of course, that good character provides Anne with some kind of defence. It is only one of the many factors which I must take into account in determining whether I am satisfied beyond reasonable doubt of Anne’s guilt. What weight I give to the fact that Anne is a person of good character is completely a matter for me. I will take that fact into account in the ways I have indicated. Additionally, I draw no adverse inferences against Robert because Anne has raised good character and he has not.

Circumstantial reasoning

389. I am able to, and will, draw inferences from the established evidence. However in doing so I must first be satisfied of the primary facts. The Prosecution has asked me to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the accused. I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Prosecution asks me to find based upon the basic facts is that the accused persons are guilty of the offence of murdering Amber between 1 and 6 June 2002.

390. Drawing a conclusion from one set of established facts to find that another fact is proved, involves a logical and rational process of reasoning. I must not base my conclusion(s) upon speculation, conjecture, supposition or suspicion.

389. Twenty-seven alleged circumstances were identified which I have divided into four categories: (i) proof of life, (ii) other factual circumstances, (iii) conduct consistent with a motive to kill for the purposes of taking custody of Ben; and (iv) circumstances consistent with a knowledge that Amber was dead.

390. The “Proof of life” circumstances asserted are:

•    There has been no independent sighting of Amber since 2 June 2002, when she was seen at the Clarke Street flats with Robert. Amber has not made contact with any family or friends since this date.

•   Amber had epilepsy. She has not attended a doctor’s appointment to obtain a prescription for her epilepsy medication or filled a prescription for her epilepsy medication.

•   Amber suffered from an intellectual disability and required assistance to live independently in the community. There is no evidence that she has accessed support services in the community since 2 June 2002.

•   Amber was not employed and had no independent source of income other than Centrelink benefits. Despite receiving Centrelink benefit payments until 11 September 2002, there were no further withdrawals after 8:49pm on 5 June 2002.

•   There is no evidence that Amber committed suicide.

•   There have been no other ‘signs of life’ since 5 June 2002.

393. The “Other factual circumstances” asserted by the Crown are:

•   Amber would not have voluntarily abandoned her child, Ben. In the event of her death, Amber had expressed in her Will that custody of her child was to be given to her aunt, Patricia Haigh.

•   Upon being notified on about 1 June 2002 that her father, Geoffrey, was unwell and may die, Amber did not make any arrangements to travel to Sydney for the purpose of visiting him.

•   The circumstances of Amber’s alleged trip to Sydney on 5 June 2002 are completely inconsistent with her past behaviour, and the inference to be drawn is that Amber did not make this trip because she did not travel by train from Cootamundra to Sydney; did not take Ben with her; did not make arrangements to stay with, or visit, any family or friends in Sydney; and did not inform Geoffrey that she was going to visit him in hospital, and Geoffrey had told medical staff at Mt Druitt Hospital that he wanted to be transferred to Lismore Hospital.

•   The only evidence linking Amber to Campbelltown Railway Station on 5 June 2002 is the ATM withdrawal at 8:49pm. The Geeves were present when this event occurred, and there is evidence that they had access to, and management of, Amber’s bank accounts and debit card.

•   There is no evidence that Amber met with foul play at Campbelltown Railway Station.

•   In 2001, Amber made a Will that did not include Robert or Anne.

•   Amber expressed fears that Ben would be taken from her, either by Robert and Anne or DoCS.

•   Amber was fearful of Robert. She told multiple people that he had tied her up and had sexual intercourse with her.

•   Robert and Anne sought to control Amber, to ensure that they remained actively involved in Ben’s life.

394. Conduct that is consistent with a motive to kill Amber for the purpose of taking custody of Ben was identified as:

•   Robert and Anne had a desire for more children.

•   Robert had a sexual relationship with Amber.

•   After discovering Amber was pregnant, Robert and Anne considered it an opportunity for them to have another child. Amber was considered a “surrogate mother”.

•   Robert and Anne assisted Amber throughout her pregnancy, and after the birth of Ben. This was done to ensure the child’s health and wellbeing.

•   Robert and Anne observed Amber to develop a deep, maternal bond to Ben, which meant it unlikely she would voluntarily relinquish custody of him.

•   With this in mind, Robert and Anne sought to undermine Amber’s parenting capabilities to services such as DoCS, and isolate Amber from members of her extended family.

395. The Prosecution asserted that the following circumstances are consistent with a knowledge (on the part of the accused) that Amber is dead:

•   Robert and Anne were the last people to see Amber at Campbelltown Railway Station on 5 June 2002.

•   Despite having no contact with Amber after allegedly driving her to Campbelltown Railway Station on 5 June 2002, the Geeves did not report Amber missing until 19 June 2002.

•   Prior to reporting her as a missing person, Robert and Anne did not contact Mt Druitt Hospital to confirm whether Amber had visited Geoffrey, did not contact any members of Amber’s family, did not contact DoCS, and did not attend the Clarke Street flats to enquire as to Amber’s whereabouts.

•   During the ERISP interviews, and on the Listening Device product, Robert and Anne spoke of Amber in the past tense.

•   Robert and Anne’s behaviour when Amber went ‘missing’ in early June 2002 is very different to their behaviour when she went ‘missing’ in late February 2002. This is because, on the second occasion, they had the care and custody of Ben.

•   Robert and Anne told lies to cover up the fact that they killed Amber.

396. Turning to the circumstances directed to the question of whether Amber is dead, I am unable to make a finding as to the day Amber died, but I accept the above circumstances, plus the pattern of her fortnightly cash withdrawal of her pension and family assistance money from her account at the Credit Union and the absence of any such access since 5 June 2002 leads me to the inevitable conclusion beyond reasonable doubt that Amber Haigh is dead. Whilst contact with her extended family was haphazard, the evidence is clear that she would phone or turn up for a chat, and seek the company of others including strangers, and she has not done so after 5 June 2002 a period of over 22 years.

397. I further find that she probably died on or before 19 June 2002 which was the next “pension day” on which money went into her account, but was never accessed. The evidence tendered and led does not permit me to conclude beyond reasonable doubt that Amber died “between 1 and 6 June 2002” as the Crown has alleged in the Indictment.

398. Defence counsel have submitted, and the Crown Prosecutor accepted that this is a “links in a chain” case which means that if one of the “links” fails, the Prosecution case fails. Central to the way the Crown case was presented was that I should draw an inference, being a conclusion of guilt, based on two essential matters:

1. that the Geeves had the shared motive to kill Amber in order to assume full parental control of Ben; and

2. that they did not take her to Campbelltown Railway Station on 5 June 2002, (and as part of this, Amber could not have withdrawn money from her bank account in Campbelltown).

399. It is not open to me to come to a conclusion favourable to the Prosecution unless I find that these two indispensable intermediate facts, individually, were proved beyond reasonable doubt. Proof of these facts to this high standard is essential to my coming to a conclusion in favour of the Prosecution, because the Prosecution must prove its case beyond reasonable doubt. Those particular facts must be proved beyond reasonable doubt, not because they alone prove the guilt of both accused, but because each fact is an essential step in the reasoning that the Prosecution asks me to follow in order to establish its case. Unless those facts are individually proven beyond reasonable doubt, the reasoning relied upon by the Prosecution fails.

400. In relation to facts which are not essential to my process of reasoning, I must not consider those facts I find established by the evidence in isolation, but must have regard to them as a whole.

401. If I am satisfied beyond reasonable doubt as to the existence of both of the indispensable intermediate facts, then I can take that satisfaction to that high standard required together with all the other facts I find established, and ask whether I can draw an inference or conclusion in favour of the Prosecution from all the facts, considered as a whole.

402. If such a conclusion is not available, I must find that the Prosecution’s circumstantial case fails.

403. It is for me to determine what conclusion, if any, can reasonably be drawn from the established facts, and then consider whether there is any other reasonable explanation for those facts, other than that of both accused’s guilt. If there is no other explanation consistent with all the established facts considered together, then it would be open to me to convict the accused.

404. If, however, I am not satisfied beyond reasonable doubt as to either of the indispensable intermediate facts to which I have referred, I must return a verdict of not guilty.

405. The category (iii) circumstances listed in [394] underpin the first indispensable intermediate fact motive to kill Amber to obtain custody of Ben.

406. First there is no satisfactory evidence that in 2001 Anne and Robert held a desire for more children. The medical records for Anne demonstrated that in 1994 after the loss of Emma, Anne was looking at possibly another pregnancy but there is nothing after that date. Most of the evidence that the Geeves “wanted” more children was old, anecdotal or third-hand. Robbie Geeves’ evidence was of a general nature as to occasional conversations with his mother about her feeling guilt she had not provided him with a sibling.

407. It is true Robert had sex with Amber. This does not mean he wanted her to be pregnant. His apparent ambivalence about the pregnancy was reported by Amber in the YCHC records.

408. There is no evidence that Amber’s 2001-2002 pregnancy was embraced with the attitude that it was an opportunity for “them” to have another child. For a start it was not “their” child, only Robert’s. Evidence as to what any of the protagonists meant by use of the term “surrogacy” was unclear. Nowhere was there evidence that either Anne or Robert stated to anyone that Amber had been used as a “surrogate” but even if they had, as Mr King submitted, her disappearance led to the Geeves being suspected and removal of Ben was an obvious inevitable consequence.

409. It is true the Geeves provided Amber with assistance. She was a disadvantaged young woman with poor family support. Jacqui Cash did not want Amber around talking about or being with her son Paul. Amber was carrying Robert’s child. There was nothing sinister in their provision of assistance, and I decline to draw an inference that there was.

410. There is evidence that Amber bonded with Ben and loved him very much. There is evidence she tried hard to care for him. There is evidence she struggled with this and needed help and support and that she constantly sought such help and support. The events between 2 and 6 February 2002 at Stella’s house made it clear that calm, unconditional support was not going to be provided for her at Stella’s.

411. I do not accept that the evidence demonstrates that Robert and Anne sought to undermine Amber’s parenting capabilities. The evidence of Ms Thompson of DoCS was to the contrary that at the assessment visit on 11 February 2002, Anne was quietly supportive of Amber’s mothering skills. On 1 March 2002 they expressed concerns to Ms Thompson because Amber had disappeared and seemed to be struggling with the relentless demands of motherhood.

412. I do not accept that the evidence supports that the Geeves tried to isolate Amber from her family. Her mother did not want her, her father was a frightening, inconsistent and abusive feature in her life, Jacqui Cash assaulted her and was angry with her about the pregnancy to Paul, and Amber’s disclosure of it to people, and showing signs that she was still emotionally attached to Paul. Accommodation at Carinya Downs was conditional upon Amber having nothing to do with Robert or Anne. Paul Harding’s ongoing relationship with Amber was ambiguous but clearly involved an ongoing sexual relationship in late 2001 if not later. Amber went back and forth between places and people looking for love and solace. She never found it. She was still looking for it when she disappeared.

413. The second indispensable intermediate fact that I must find beyond reasonable doubt, is that the Geeves did not take Amber to Campbelltown station on 5 June 2002 and so Amber did not make the balance inquiry and withdrawal at around 8:48pm to 8:49pm that night at the ATM on Queen Street, Campbelltown.

414. The account of this given by the accused is not inherently implausible and is supported by other independent evidence. Both Anne and Robert were asked in the ERISPs many questions about exactly what occurred on the journey. Their accounts were consistent and consistently told. The fact that Amber had taken a train to Sydney on other occasions does not mean there is anything suspect in being driven on this occasion. The timing of travel makes sense. The phone call to Robert’s boss corroborates the timing and Robert’s tiredness and the request for a late arrival and ultimately day off.

415. The 8:48pm ATM balance inquiry and subsequent withdrawal of all the funds down to the last few dollars was consistent with the usual pattern of card use and withdrawal of all the money down to the last few dollars every pension payment day - and, frankly, any day money was paid in - e.g. 9 January 2002 when the $1,000.00 Loan Funding was paid in, and 6 February 2002 when the family assistance bonus payment of $922.24 was paid in.

416. It was a central plank in the Prosecution case that Robert and Anne “controlled” Amber’s access to money, and in particular her keycard use. This is simply not made out on the evidence. Her friend Mavis Yardley saw her using it on more than one occasion, inside and outside the bank or Credit Union, and that Amber would do a balance check, occasionally asking others to read it for her, and then a withdrawal. Amber had the card with her when she went to Sydney with Ben and spent $400.00 on clothes for herself and Ben with Tracey Ford. Daphne Henry had seen the card in Amber’s purse. Cindy Brown had seen Amber using an ATM and buying things. These casual observations are persuasive that Amber had access to and control over her own spending.

417. The closing submission by the Crown Prosecutor that Robert and Anne had lied in their ERISPs because they “repeatedly and unequivocally denied having any involvement whatsoever in Amber’s finances” was both incorrect, and unsubstantiated. An assertion was put to Robert in his ERISP on 18 July 2002 that he “in fact had control of Amber’s finances”. This was a very loaded question. Robert disagreed and explained the situation as set out in [292]. He denied having access to her Credit Union pin and card. There is no evidence that he did. There is no lie about which I need to make a determination as to whether it is a lie that ought to be considered to be one that could betray a consciousness of guilt.

418. Anne was asked whether she ever withdrew any money from Amber’s account or whether she or Robert knew the pin. She denied that. Her answer was no-nonsense: “I wouldn’t give her mine, so why ask for hers.” Anne explained that Amber would spend her money “fairly fast”, and when Amber got the Credit Union loan money, she took some of that cash and gave it to Robert to keep it away from Amber’s father. (Amber’s bank records confirm that $790.00 was withdrawn at the Mill Tavern ATM on 9 January 2002, reducing the account to $2.44. This is the time when Amber’s father was in town.) There was no lie on Anne’s part that needs to be considered.

419. I am not persuaded that either indispensable intermediate fact is proved beyond reasonable doubt. I have decided that the version of events provided by the accused may be true. In those circumstances, I must acquit.

420. For all these reasons the verdict I must enter in respect of both Robert Geeves and Anne Geeves is not guilty.

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Endnotes

Amendments

17 September 2024 - Par 357: "blue [tack]" corrected with "glue"

17 September 2024 - Par 4: punctuation corrected

Decision last updated: 17 September 2024