R v Geeves; R v Geeves (No. 6)

Robert and Anne Geeves have been accused of murdering Amber Haigh between 1 and 6 June 2002. It is the Crown case that they did so because they had used Amber Haigh, who was then 19 years old, as a surrogate mother to bear a child for the accused couple as Anne Geeves - who was then 41 years old - had suffered four miscarriages and a stillbirth and wanted another child, having given birth to Robbie Geeves 19 years before.

Police received information that around the time of Amber’s disappearance, and possibly before, Robert was associated with, or having an affair with a woman named Ursula Kirk (now O’Sioda but referred to as Kirk in this judgment). The police investigation of Amber’s disappearance included DI Price having a conversation with her on 10 August 2005. DI Price prepared an investigator’s note in which he recorded that she and Robert Geeves had discussed him wanting another child, finding a surrogate mother and what she knew about it. She said that she told him it was illegal and to forget about it. He went on to say they were going to speak with someone legal about if it can happen. She said that conversation took place around the end of 2001.

DI Price recorded that Ms Kirk also stated that she did not know Amber and Robert has never discussed her disappearance or anything else with her. As far as she knew, Amber was only Robbie’s girlfriend.

DI Price did not take a statement nor write this down in his notebook and have Ms Kirk sign it. None of the matters recorded were set out as quotes of what Ms Kirk said.

Ms Kirk provided a statement on 10 November 2006, some 15 months later. In that statement she repeated that she had never met Amber and that Robert had never spoken to her about Amber or her disappearance. She confirmed that before the end of 2001, she: “…did have a conversation with Robert where he discussed the issue of surrogacy. I recall that the conversation wasn’t personal to him, and due to the length of time that has passed since that conversation, I don’t remember how the issue was raised. I don’t remember Robert ever telling me that he wanted more children”.

The Crown’s application had been foreshadowed before the trial and Notice was served on the defence under s 38 of the Evidence Act 1995 (NSW). The Notice stated an intention to apply for leave to cross-examine Ms Kirk about “the scope of her conversation with Robert Geeves on the topic of surrogacy” and “her purported lack of interest in the disappearance of Amber Haigh in 2002”.

Counsel for the defence opposed any pre-trial ruling, stating, appropriately, that until the witness gave evidence and so the content of her evidence was known, s 38 can have no application.

Ms Kirk gave evidence on 15 July 2024. She presented as truculent and guarded, but answered the questions put to her. She said she started her relationship with Robert “shortly before 2009”, and that she lived with him between 2009 and 2015 and they had a child together in 2013.

She was asked this question: “At any time after you first met Mr Geeves in 1999, and perhaps after 2002, did you and he talk about the disappearance of Amber Haigh at all?”. She answered: “I don’t believe so.” She was then asked: “So, is it the case that you may have spoken to him and you can’t remember?” To which she answered: “That would be adequate to say.” A follow up question clarified the position: “You’re agreeing with me?” To which she replied: “I am”.

She recalled being interviewed by police and asked questions about her relationship with Robert Geeves, in which the topic of surrogacy came up. She recalled saying: “that I was generally talking about it like any other subject” and that: “it was a topic of conversation that was of no particular interest than any other”. She confirmed this conversation was with Robert Geeves and that she did not “really recall” how the subject came up in her conversation.

She said that she had not discussed the disappearance of Amber with either Robert or Anne Geeves. She denied that Robert Geeves told her in about 2005 that Anne wanted another child or that he told her that he wanted to find a surrogate mother. She denied that he asked her what she knew about surrogate mothers and in answer to the question: “Did you tell him that it was illegal, surrogacy, and he should forget about it?”, said: “Not that I recall”.

She said that she did not recall telling DI Price that she had a conversation around the end of 2001 with Robert Geeves about surrogacy. She did not deny she had a conversation with a police officer in 2005 and agreed that she could have forgotten about it.

During her evidence on 15 July 2024, the Crown Prosecutor made an application to cross-examine Ms Kirk on the basis that her evidence was unfavourable to the Crown in respect of the two matters detailed in the s 38 Notice. He stated that the application was made under 38(1)(a) and (b), that she may reasonably be supposed to have knowledge of those matters and was not making a genuine attempt to give evidence, and as a back up submission seemed to be arguing that because her account was implausible, that brought s 38(1) into play. Defence counsel opposed the application, and I refused it, for the following reasons.

Section 38 of the Evidence Act sets out the basis upon which leave may be granted:

Leave is also governed by s 192 of the Evidence Act:

In R v Le (2002) 54 NSWLR 474; [2002] NSWCA 186, Heydon JA (as he then was) articulated the context and purpose of s 38:

As observed by the Court in R v White [2003] NSWCCA 64 at [66]:

Another important statement of context and the practical realities of the operation of s 38 appears in Kannan & Ors v R [2006] NSWCCA 109, where the Court comprising Hunt AJA, Buddin J and Hoeben J said at [80] to [85]:

Bathurst CJ, with whom Price and Campbell JJ agreed, made further succinct observations in Doyle v R; R v Doyle [2014] NSWCCA 4 at [292] to [293]:

Having conducted a survey of interstate appellate and single judge authorities on this issue, the Victorian Court of Appeal in DPP (Vic) v Garrett (2016) 257 A Crim R 509; [2016] VSCA 31 (“Garrett”) concluded:

The Victorian Court of Appeal in Garrett also provided helpful context to what was said by James J, with whom Spigelman CJ and Smart AJ agreed in R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 (“Kneebone”), about the distinction between “case theory” and the case that was in fact made by a party:

The Crown Prosecutor made it clear that he was not relying on any prior inconsistent statement although he tendered on the application, in addition to the 2006 statement signed by Ms Kirk and the DI Price investigator’s note, the evidence given by Ms Kirk at the Inquest into Amber’s death in 2011.

I observe that the evidence she gave in both the statement and at the Inquest on the two matters the subject of this application is consistent with the evidence she gave to this Court on 15 July 2024.

Mr Coady on behalf of Mr Geeves argued that s 38 is not engaged. First, there had been no unfavourable evidence. The witness gave her account of her recollection on those two topics and in a way which was largely consistent with what she said at the Inquest. It is just a statement of her memory. There is no downplaying or deviation from what she has said in the past. Just because the Crown does not like the evidence does not make it unfavourable. Just because the manner and tone in which the evidence was given to the Court can be considered to be disrespectful, does not mean it is not factual.

The Crown Prosecutor could choose to, under s 43, show the witness the note of DI Price and ask her if she adheres to her evidence, but he chose not to do that.

The fact that the witness speaks in a direct way of her recollection or absence of recollection may not assist the Crown, but that does not mean she is not making a genuine attempt to give evidence.

Given that position, the usefulness of any cross-examination is also called into question. The fact that the witness’ demeanour was poor does not mean the evidence is inaccurate or dishonest. She exhausted her recollection and made concessions as to her lack of recollection now about some things.

Mr King on behalf of Mrs Geeves adopted Mr Coady’s submissions that s 38 is not engaged and added that subs 1(b) has two parts to it: first it must be a matter of which she may reasonably supposed to have knowledge - and there is no evidence that Robert Geeves discussed Amber’s disappearance with her even though it may be thought strange that he did not - and second, there is no basis to assess her as not making a genuine attempt to give evidence. There was no prevarication on those issues.

The evidence is not necessarily unfavourable to the Crown case. Ms Kirk acknowledged that she had a conversation with Robert Geeves before the end of 2001 about surrogacy. She acknowledged that she cannot now recall the detail of it.

The fact that Robert Geeves never discussed with her the disappearance of Amber is not necessarily unfavourable to the Crown case.

There was no basis upon which to conclude that she was not making a genuine attempt to give evidence with regards to a matter the witness may reasonably be suspected of having knowledge. There was nothing in her oddly rude demeanour that drove me to that conclusion. She was being asked about conversations that occurred many years ago.

Section 38 was not engaged and so the leave sought by the Crown Prosecutor was refused.

It is a matter for me what I make of the evidence given by Ms Kirk. It is but part of the evidence that I must assess and consider among all the other evidence led in the trial, which includes a contemporaneous note made by a senior police officer of a conversation he had with her in August 2005.