R v Geeves; R v Geeves (No. 5)

1. [1]

   On 12 July 2024, the Crown Prosecutor sought rulings in respect of a particular category of hearsay representations it was seeking to lead from various witnesses in this trial.

2. [2]

   Robert and Anne Geeves are being tried before me for the murder of Amber Haigh. It is the Crown case that there was a joint criminal enterprise between the two accused to murder Amber, and that they murdered her between 1 and 6 June 2002. Amber had a baby to Robert Geeves on [REDACTED]. It is the Crown case that Amber was used as a surrogate mother as Anne could no longer have children, and that once Amber had provided that child, she was disposed of by the Geeves, by murdering her.

3. [3]

   This judgment addresses objections taken to the parts of statements taken by police and evidence given at the Inquest into Amber’s death in 2011 (“the Inquest”) that contain representations made by Amber to various relatives and people she met about Robert and Anne Geeves, particularly in the months before she disappeared, that she was, on occasion, tied up and or tied up and assaulted by Robert Geeves.

4. [4]

   Rulings in respect of the objections regarding Petrina Ingram’s evidence were communicated orally on 12 July 2024 before she was called to give evidence. In respect of the others, Ray Harding, Jacqueline Winn (formerly Cash), Paul Harding, Cindy Brown, Angelina Goode, Lisa Parker, Leon Henry, Judith Khan and Patricia Haigh, rulings were communicated in a document emailed to the parties on 17 July 2024 and a further document on 31 July 2024 also emailed to the parties. These are my reasons for those rulings.

5. [5]

   The relevant legislation and authorities are set out in R v Geeves; R v Geeves (No. 4) [2024] NSWSC 938 at [8] to [31] and that judgment should be read together with this judgment. As determined at [48] to [54] of that judgment, s 65(3) of the Evidence Act 1995 (NSW) (“the Act”) has no role to play in providing a route by which evidence given at the Inquest held in 2011 about representations made by Amber to people prior to her death can be admitted into evidence.

6. [6]

   Each representation and the circumstances in which they were made has to be examined individually to determine if any exception applies. The Crown relies on s 65(2)(c) in respect of each representation. I have not taken a compendious approach, or dealt with the objections in a wholescale way. The “subject matter” approach was taken only because the Crown argued, successfully, that in assessing the circumstances in which the representations were made by Amber about being “tied up” by Robert Geeves, the fact that she had made similar representations to others, was a circumstance that could be taken into account.

Petrina Ingram

1. [7]

   Petrina Ingram is a young woman Amber met at Cootamundra Station in March 2002. Both Amber and Ms Ingram had a long wait for a train, struck up a conversation and had some food together. Some of the conversation she had with Amber had struck Ms Ingram as strange and concerning. She later told her boyfriend about it and made notes in her diary about it.

2. [8]

   Ms Ingram remembered Amber and the conversation when there was a news report that Amber was missing with a photograph of her on a television channel local to her family’s farm in Ariah Park. She rang Crime Stoppers. Her call was not returned. She called again in 2008 and on another occasion the date of which she was unsure.

3. [9]

   Ms Ingram was first contacted by police in April 2024 about the information she had provided in 2008.

4. [10]

   In her statement to police dated 3 April 2024, Ms Ingram said:

5. [11]

   Objection was taken to this part of the statement as a hearsay representation to which s 65 exceptions did not apply.

6. [12]

   The Crown Prosecutor argued that the circumstances made it highly probable the representation was reliable, (s 65(2)(c)), because Amber often confided in other women about things that had happened to her in her relationship with the Geeves, and the information she conveyed was similar to accounts she had given to either other trusted persons (female relatives and Paul Harding), or women she chose to confide in given shared situations such as having recently given birth, or to counsellors and nurses inquiring after her welfare.

7. [13]

   The defence argued that the circumstances are not ones to which s 65(2)(c) applies. The women were unknown to Amber. She was not a trusted relative or friend. She was not a person with whom Amber had a carer or therapist relationship. It was a random meeting.

8. [14]

   I have concluded that s 65(2)(c) applies for the reasons outlined by the Crown Prosecutor. There is no basis to exclude the evidence under ss 135 or 137. The evidence has significant probative value and the probative value on the fact in issue in the proceedings of physical and/or emotional coercion and control allegedly exercised by Mr and Mrs Geeves over Amber is not outweighed by the danger of unfair prejudice to the accused.

Ray Harding

1. [15]

   Ray Harding was married to Stella Nealon, Amber’s great aunt. He was around the house on occasions when Amber was there. He recalled an occasion when Amber was there talking to Stella but he was not part of the conversation.

2. [16]

   In his statement to police dated 11 July 2002, he said at paragraph 11:

3. [17]

   Objection was taken to the leading of this evidence on the basis that Mr Harding was not part of the conversation and so his asserted observation had no context and potentially no relevance. In those circumstances the evidence was unfairly prejudicial.

4. [18]

   I ruled that Mr Harding could give evidence limited to what he saw, but could not give evidence as to what he says Stella Nealon and Jacqueline Cash told him was the cause of the marks as represented to Stella and Jacqueline by Amber, as this would be second-hand hearsay.

Jacqueline Cash (now Winn)

1. [19]

   Jacqueline Cash is Amber’s older cousin. Their relationship had some tensions and personality clashes. Jacqueline would often visit Stella Nealon’s house while Amber was there.

2. [20]

   In her statement to police dated 9 July 2002, Jacqueline spoke of a time in about July/August 2001 when Amber was “staying more and more” at the “Geeves’s Place”. She stated that Amber told her some things:

3. [21]

   This evidence is admissible under s 65(2)(c). The circumstances are very specific, a particular conversation, at a particular place, corroborated by observed marks. The representation is lucidly and specifically recounted, in a place where Amber lived, to older trusted female relatives.

4. [22]

   The probative value is relatively high on the issue of the Crown allegation of coercion and control on the part of the accused, and there is no danger of unfair prejudice that outweighs that probative value: s 137; and no reason under s 135 to exclude it.

5. [23]

   Jacqueline gave evidence at the Inquest on 21 June 2011 and objection has been taken to this part of her evidence being tendered by the Crown:

6. [24]

   Obviously this evidence was obtained by a series of mostly leading questions based on the contents of the statement of 9 July 2002. It is not admissible under s 65(3) of the Act and so the question is whether the circumstances described are such that satisfy s 65(2)(c). Consistently with my ruling regarding this part of her statement, the circumstances are ones that satisfy s 65(2)(c) however given this particular exchange was elicited by leading questions, in the Inquest where neither accused was legally represented, and the rules of evidence did not apply, the probative value of the evidence given in that form in that context is outweighed by the danger of unfair prejudice and is excluded from tender in that form: s 137.

Paul Harding

1. [25]

   Paul Harding is Amber’s cousin with whom Amber had a romantic and sexual relationship. She became pregnant to him in late 1997 and that pregnancy was terminated in early 1998. He was clearly someone she loved and trusted.

2. [26]

   In his statement to police provided on 11 November 2002, Paul Harding provided a very specific account of what Amber told him in a telephone conversation in late 2001:

3. [27]

   I am satisfied that the circumstances in which the representation was made by Amber make it highly likely that the representation is reliable. The specificity of what was conveyed, that Paul Harding was a trusted person for Amber, that the events involved him directly and how it involved him was recounted by Amber. These circumstances are persuasive to the test under s 65(2)(c) being met.

4. [28]

   The account has considerable probative value on the issue of whether Robert Geeves used coercion and control with Amber. There is no risk of unfair prejudice or factors that require exclusion: (s 137); or activate any discretion to exclude: s 135.

5. [29]

   Paul Harding also gave this evidence at the Inquest on 21 June 2011 to which objection is taken:

6. [30]

   It appears to be different and additional to the evidence set out at [26] from paragraph 6 of his police statement. The fact in issue to which it may have probative value is a more general one of the knowledge and participation of Anne Geeves in Robert’s sex life with Amber.

7. [31]

   I decided to exclude the evidence under s 137 as it was given at the Inquest in response to a leading question in an environment where no rules of evidence applied. There was no cross-examination on behalf of Robert or Anne Geeves to clarify or challenge or examine the evidence.

Cindy Brown

1. [32]

   Cindy Brown was a neighbour in the Clarke Street flats. She would visit Amber and Amber would visit her in late 2001 early 2002 for chats and coffee.

2. [33]

   In her statement to police dated 27 June 2002, Cindy Brown said:

3. [34]

   Objection is taken to the leading of this evidence on the basis that it is hearsay and does not come within any of the s 65(2) exceptions, however in my view the requirements of s 65(2)(c) are satisfied. It was Amber again confiding in a female neighbour about the same age as her, about what was occurring with Robert and Anne Geeves.

4. [35]

   Ms Brown also gave evidence at the Inquest on 21 June 2011 and objection is taken to this part of it:

5. [36]

   This is evidence given in response to a leading question where the rules of evidence do not apply and I excluded it in that form as unfairly prejudicial to the accused: ss 135 and 137.

Angelina Goode (now Fitzgibbons)

1. [37]

   Angelina Goode was a young woman with whom Amber used to socialise in late 2001. She was about the same age as Amber and a neighbour in the Clarke Street flats. Angelina was pregnant at the same time as Amber and they would have coffee and chat.

2. [38]

   Ms Goode made a statement to police on 1 July 2002. At paragraph 5 she said the following, to which objection has been taken:

3. [39]

   In my view s 65(2)(c) is satisfied and the circumstances are such that it is highly likely the representation is reliable. Amber had a habit of sharing intimate details of her life at the Geeves house and about her relationship with the Geeves with other women, apparently seeking a response or possibly advice. This is one of those instances.

Lisa Parker

1. [40]

   Ms Parker was another young woman with whom Amber socialised in 2001/2002, and who lived at the Clarke Street flats.

2. [41]

   Ms Parker made a statement to police on 2 July 2002. Objection has been taken to the following:

3. [42]

   The first account is second-hand hearsay and so cannot be admitted. It is “Daphne” who told Ms Parker that this is what Amber had told Daphne.

4. [43]

   The assertion that Amber “told me and Angelina Goode the same thing” about two days later does not provide sufficient specificity about what exactly the representation contained or the circumstances in which it was made to allow an assessment under s 65(2)(c), and so cannot be led.

Leon Henry

1. [44]

   Leon Henry was a neighbour in the Clarke Street units. Amber would visit his wife Daphne for chats in late 2001.

2. [45]

   In his statement to police dated 25 June 2002, Mr Henry mentioned a partially overhead assertion by Amber:

3. [46]

   This evidence is vague and I have excluded it on the basis that its very low probative value is outweighed by the danger of unfair prejudice to the defence. Mr Henry only partly heard the conversation and the reference points remain unclear in his recount.

4. [47]

   Mr Henry also gave evidence at the Inquest on 21 June 2011:

5. [48]

   Whilst this evidence at the Inquest was given in response to a non-leading question, the circumstances indicate it was a conversation he only partly overheard, as he walked into the kitchen. It was not being said to him. What he heard was not recounted with specificity. I excluded it under s 137 on the basis of the limited probative value of this account being outweighed by the danger of unfair prejudice to the defence.

Judith Khan (deceased)

1. [49]

   Judith Khan is Amber’s grandmother, the mother of Geoffrey Haigh, Amber’s father. She and Amber often communicated by telephone. Ms Khan lived in Sydney at Merrylands then Liverpool, and then in mid-2001 moved to Lismore. Although Amber was with Judith Khan at times in Sydney, she would telephone Judith Khan once she had returned to Young. The conversations in issue were on the telephone.

2. [50]

   In her statement to police dated 16 May 2003, Ms Khan stated the following to which objection has been taken:

3. [51]

   Ms Khan is deceased and so will not be giving evidence at the trial. Tender of this part of her statement would be second-hand hearsay and is not admissible: s 62.

4. [52]

   Ms Khan gave evidence at the Inquest on 22 June 2011. Objection has been taken to the tender by the Crown Prosecutor of this part of her evidence:

5. [53]

   This recount of what Amber told Ms Khan is second-hand hearsay and so not admissible: s 62.

Patricia Haigh (deceased)

1. [54]

   Patricia Haigh is Amber’s aunt and the person to whom Amber entrusted the care of her child in the Will that she made in August 2001 when she was about four months pregnant.

2. [55]

   Patricia Haigh lived in Goonellabah, near Lismore and so communication of the objected to conversations with Amber contained in her statement and Inquest evidence occurred by phone.

3. [56]

   Patricia Haigh made a statement to police on 21 June 2002. Objection has been taken to paragraph 6:

4. [57]

   As Patricia Haigh is now deceased she cannot give evidence at this trial and so her representations as to what Amber told her are second-hand hearsay and so not admissible: s 62. Paragraph 6 cannot be admitted.

5. [58]

   Patricia Haigh also gave evidence at the Inquest on 20 June 2011. Objection has been taken to the following evidence:

6. [59]

   This too is second-hand hearsay and cannot be admitted: s 62. Additionally s 65(3) does not operate to admit the evidence for the reasons I set out in R v Geeves (No. 4) at [48] to [54]. I would exclude it under s 137 as the accused have had no opportunity to cross-examine Patricia Haigh and there is a danger of unfair prejudice to the accused which outweighs the probative value of this evidence. Although the circumstances make it highly probable the representation is reliable, (s 65(3)(c)), - it is broadly consistent with other accounts Amber gave, and she had a trusting relationship with her aunt - the absence of any opportunity to cross-examine this witness about what was said underscores the danger of unfair prejudice to the accused. The use of “they were going to use it against her”, and the very general nature of the representation adds to the danger of unfair prejudice.

7. [60]

   I understand the Crown Prosecutor’s submission to be that a judge sitting alone will not misuse the evidence, or give it undue emphasis where it has not been the subject of cross-examination, but in this case, a considered application of s 137, even for a judge alone, in my view further mandates exclusion of this evidence.