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Supreme Court 22 October 2004

Regina v Keir

[2004] NSWSC 964

HomicideDomestic & family violence
DOMESTIC MURDER OLD BONES DNA RELATIONSHIP EVIDENCE PRISON INFORMERS.

Citation: Regina v Keir [2004] NSWSC 964
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 22 October 2004
Judge(s): M W Campbell AJ

Background

The accused, Thomas Andrew Keir, was charged with murdering his wife, Jean Angela Keir, on or about 9 February 1988 at Tregear in western Sydney. The couple had married in 1984 and had one son. Jean was dropped home by a friend late on the evening of 9 February 1988 and, according to the Crown, was murdered that night or the following morning.

The accused maintained that when he returned home from work the next day his wife had simply left, and that he had subsequently spoken with her by telephone and observed signs of her visiting the home. The Crown disputed this account and argued the accused had disposed of her body.

This was the accused's third trial. A previous trial before a jury had resulted in a retrial being ordered by the Court of Criminal Appeal following juror misconduct. For this final proceeding, the accused elected to be tried by judge alone, with the consent of the Director of Public Prosecutions.

  • Whether the Crown had proved beyond reasonable doubt that Jean Keir was dead and that her death was caused by the accused.
  • Whether skeletal remains discovered could be identified through DNA evidence as those of Jean Keir.
  • Whether the evidence of prison informers could be relied upon, and with what degree of caution.
  • Whether relationship evidence (concerning the accused's conduct toward his wife before her disappearance) was admissible and what weight it carried.
  • Whether a manslaughter verdict based on provocation was open on the evidence.

Decision

Campbell AJ adopted the legal directions that Kirby J had given to the jury in the previous trial, with minor adjustments to reflect the judge-alone format. The standard principles applied: the Crown bore the onus of proof throughout, and guilt had to be established beyond reasonable doubt on each element of the offence.

The court found that skeletal remains were those of Jean Keir, with DNA analysis providing significant support for that identification. The judgment addressed the statistical interpretation of DNA evidence carefully, drawing on principles from the English Court of Appeal decision in Doheny and Adams and relevant New South Wales authority, in order to assess the probative weight of the scientific findings without overstating them.

Prison informer evidence was treated with considerable caution, as required by the applicable warnings under the Evidence Act and the principles in R v Peisley. The court also considered relationship evidence regarding the accused's conduct toward Jean Keir in the period before her death, and assessed what weight that evidence could properly bear on the question of identity and intent.

On the question of provocation, Campbell AJ directed himself in accordance with section 23 of the Crimes Act 1900 and concluded that no reasonable view of the evidence could support a finding that the conduct of Jean Keir might have caused an ordinary person in the accused's position to lose self-control to the degree required. Provocation was therefore negatived, and the accused was found guilty of murder.

Orders Made

• The accused is found guilty of murdering Jean Angela Keir on or about 9 February 1988 at Tregear in the State of New South Wales.

Key Takeaways

  • A judge sitting alone in a criminal trial must record the principles of law applied and the findings of fact relied upon, as required by section 133 of the Criminal Procedure Act 1986, and must take into account any warnings that would otherwise have been given to a jury.
  • DNA evidence identifying skeletal remains requires careful judicial treatment of the statistical probabilities involved, to ensure probative weight is neither overstated nor understated.
  • Prison informer evidence carries a mandatory warning requirement, and a judge alone must apply that warning in the same way a jury would be directed to apply it.
  • Provocation as a partial defence to murder requires the court to assess whether the conduct alleged could have caused an ordinary person, in the same position and subject to the same degree of provocation, to lose self-control so as to form the relevant intent. A mere possibility is required, not inevitability.
  • Relationship evidence, reflecting prior conduct between a accused and the deceased, was considered as part of the broader evidentiary picture, though its precise weight is assessed in the context of all other evidence bearing on the elements of the charge.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), sections 132 and 133
- Evidence Act 1995 (NSW)
- Crimes Act 1900 (NSW), section 23

Cases:
- Fleming v R (1998) 197 CLR 250
- R v K [2003] NSWCCA 406
- R v Clough (1992) 28 NSWLR 396
- Doheny and Adams [1997] 1 Cr App Rep 369
- R v Keir [2002] NSWCCA 30
- R v GK [2001] NSWCCA 413
- R v Peisley (1990) 54 A Crim R 42