R v Geeves; R v Geeves (No. 2)

1. [1]

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

2. [2]

   Counsel for the two accused persons have indicated that they do not oppose a direction being given permitting Tracy Ford, Leon Henry, Brenda MacLeod and John Gibbons to give evidence by audio visual link.

3. [3]

   The Crown relies on a statement of Detective Senior Constable Amanda Cary (“DSC Cary”) dated 19 June 2024 that sets out the reasons why the named witnesses have logistical difficulties travelling to Wagga Wagga to give evidence in Court.

4. [4]

   In respect of the witnesses about whom no objection was taken, John Gibbons, Tracy Ford, Leon Henry and Brenda MacLeod, I satisfied myself of the following matters based on the material in DSC Cary’s statement by reference to the paragraphs in subsection (2) of s 5B of the Act:

5. [5]

   I made orders in Chambers to that effect on 20 June 2024.

6. [6]

   There are, however, seven remaining witnesses to whom there is opposition to the making of a s 5B direction. Section 5B(3) states that in those circumstances I must not make such a direction unless the Crown satisfies me that it is in the interests of the administration of justice that I do so.

Principles

1. [7]

   The relevant principles and considerations that apply under the legislation in the context of criminal proceedings have been helpfully and comprehensively summarised by Yehia J in R v Early (No 4) [2023] NSWSC 505 at [26] to [37] and I gratefully adopt her Honour’s summary, with emphasis on the observations made in [37]:

2. [8]

   Ms Yardley was 24 years old in June 2002 when she made her statement to police. She met Amber at a party in Young some two-and-a-half years before Amber’s disappearance. Ms Yardley outlined some observations of Amber’s ability to read and to handle money. In a further statement made in November 2002, Ms Yardley denied having any conversations with Anne Geeves about Anne Geeves wanting custody of [REDACTED].

3. [9]

   [REDACTED].

4. [10]

   Mr King submitted that Ms Yardley’s evidence is important. There will be cross-examination directed at the reliability of her evidence. That cross-examination should take place in the courtroom.

5. [11]

   The Crown Prosecutor submitted that the matters in DSC Cary’s statement are sufficient to meet the Crown’s persuasive onus that it is in the interests of the administration of justice that AVL evidence from [REDACTED] be accommodated.

6. [12]

   I have concluded that although I am satisfied arrangements can be made for the evidence to be given from the nominated location, [REDACTED], the direction would be unfair to the accused, who have through a senior and experienced public defender, raised concerns about the adequacy of evidence being given that way. I am not satisfied that s 5B(2)(c) is met and I reject the application on that basis.

7. [13]

   Even if all of the elements of s 5B(2) were satisfied, I would not make the direction regarding Ms Yardley as I am not satisfied that it is in the interests of the administration of justice to do so. The logistical complications outlined are not insurmountable. Cross-examination in the focussed and solemn environment of the courtroom is important for the impressionistic evidence given by Ms Yardley to be heard and assessed and further examined by counsel for the accused.

8. [14]

   Angela Fitzpatrick provided a statement to police in August 2002. She was a patient at Young District Hospital in the maternity ward about the same time as Amber. She is to give evidence about conversations with Amber and observations she made of Amber and Amber’s visitors in that important period.

9. [15]

   DSC Cary’s statement refers to logistical difficulties Ms Fitzpatrick would have with travelling to Wagga Wagga to give evidence.

10. [16]

    Mr King submitted that Ms Fitzpatrick’s evidence is impressionistic but important and will need to be the subject of cross-examination.

11. [17]

    I am not satisfied that it is not unfair to the accused persons for the evidence of this witness to be given by audio visual link and so s 5B(2)(c) is satisfied, effectively prohibiting the making of the direction.

12. [18]

    Jacqueline Thompson was a DoCS worker in 2002 who said in her statement that she was involved with Amber and [REDACTED] between 11 February and 1 March 2002. Her statement to police in July 2002 contained important observations and clinical information regarding the circumstances prevailing at that time for Amber and [REDACTED], and Amber’s relationship with Mr and Mrs Geeves.

13. [19]

    [REDACTED].

14. [20]

    [REDACTED].

15. [21]

    Mr King submitted that it is unfair to the accused if Ms Thompson gives her evidence by AVL. She will need to be shown and respond to documents in cross-examination. Mr King noted (valid) concerns that this process may not function well over AVL. Mr King submitted that Ms Thompson is a very important witness whose role extends to a period after 1 March 2002, and this is a matter about which Ms Thompson will be cross-examined, amongst the other important observations and notations she has made which need to be the subject of exploration in cross-examination.

16. [22]

    It would be unfair to the accused persons to have to conduct this cross-examination by audio visual link so I must decline to make that direction: s 5B(2)(c).

17. [23]

    Jade Wynn is a social worker who worked with Ms Thompson at the Cootamundra office of DoCS, which covered Cootamundra, Young and Harden. She provided a statement in June 2024. The statement referred to a number of relevant and important matters including that from an unspecified date, Ms Wynn became [REDACTED]’s case manager. Ms Wynn was also involved in February 2002 with approving a cot purchase for [REDACTED] and in March 2002 regarding a “child at risk” notification received from QEII Hospital as well as other interactions, observations and events involving [REDACTED]. Ms Wynn also referred in her statement to a police investigator’s note of a phone call which was made to her in July 2002 when she was on holidays in Queensland.

18. [24]

    Mr King argued that similar to Ms Thompson, this witness will need to be shown various documents in cross-examination. Her evidence is important. She needs to be cross-examined in the courtroom setting. This is what fairness requires.

19. [25]

    I am persuaded that it would be unfair to the accused persons to have this witness’s evidence given by audio visual link and so I decline to make that direction.

20. [26]

    Helen Mackie is a travel agent in Young who states that she met Amber in about 2001 to 2002. She first provided a statement of her recollections about Amber in March 2024. They relate not only to booking train trips for Amber, but also conversations with and observations about Amber whilst Amber was pregnant, and on one occasion in 2002 when she attended with baby [REDACTED] and an older woman.

21. [27]

    Mr King argued that the statement is impressionistic and cross-examination about it should be conducted in the courtroom environment.

22. [28]

    I agree and have concluded that whilst no complaint was made that it would be unfair to make the direction, (s 5B(2)(c)), I am not satisfied that the direction would be in the interests of the administration of justice and so I refuse to make the direction sought and Ms Mackie will need to give evidence in court.

23. [29]

    DSC Cary’s statement indicated that Mr Payne lives in [REDACTED]. Consideration of this application was adjourned to allow for an update as to [REDACTED]. The application can be re-activated when [REDACTED].

24. [30]

    [REDACTED]. Consideration of this application is adjourned to allow for updated information regarding [REDACTED].