Citation: Keir v R [2007] NSWCCA 149
Court: NSW Court of Criminal Appeal
Date: 6 June 2007
Judge(s): Hunt AJA, Johnson J, Latham J
Background
The appellant was convicted of murdering his wife at Tregear on or about 9 February 1988, following a judge-alone trial before Campbell AJ in the Supreme Court. The couple's marriage had become strained, and the wife had briefly had a sexual encounter with another man. On the night of 9 February 1988, she was returned to the matrimonial home at 18 Wilkes Crescent, Tregear, by that man. She was never seen again.
In 1991, human bones were discovered buried in the grounds of the matrimonial home. The Crown case was that these bones were the wife's remains, and that the appellant had murdered her that night, buried her body in the backyard, and later moved the body, leaving small bones behind. DNA evidence formed the centrepiece of the Crown's circumstantial case.
The conviction at trial was the result of a third proceeding. Two earlier convictions had been quashed: the first because the Crown had committed the "prosecutor's fallacy" in presenting DNA evidence (misrepresenting the significance of a DNA match statistic), and the second because jury members had conducted internet searches about the appellant during the trial. At the third trial, the appellant elected to be tried by a judge alone.
Legal Issues
- Whether the verdict was unreasonable or unsupported by the evidence, having regard to the circumstantial nature of the Crown case
- Whether the trial judge wrongly rejected evidence of alleged sightings of the wife after her disappearance
- Whether the trial judge wrongly rejected or failed to properly assess the DNA evidence, including results from laboratories in Victoria, South Australia, and the United States
- Whether the Crown or the trial judge fell into the "prosecutor's fallacy" in the assessment of DNA evidence
- Whether the trial judge made factual errors concerning the excavation of the site where the bones were discovered
- Whether it was open to the trial judge to find that the wife was dead and had died as a result of an act of the appellant committed with intent to kill or cause grievous bodily harm
Decision
The Court of Criminal Appeal dismissed all grounds of appeal. Johnson J (with whom Hunt AJA and Latham J agreed) found that the trial judge's 173-page, 1,112-paragraph reasons demonstrated a thorough and careful analysis of the evidence. No error was established in any of the trial judge's factual findings or in his application of the relevant legal principles.
On the question of alleged sightings of the wife after February 1988, including a police "person of interest" form noting "person located," the Court found that the trial judge had properly considered and was entitled to reject this evidence as unreliable. The prosecution's DNA evidence, far from being infected by the prosecutor's fallacy that had tainted the first trial, was properly assessed by Campbell AJ at the judge-alone trial.
On the DNA evidence, the Court held it was open to the trial judge to conclude that the bones buried in the grounds of the matrimonial home were those of the wife. The Court noted that the DNA evidence, when considered alongside all other circumstances of the disappearance and the location of the remains, provided a powerful foundation for the conclusion that the wife had died at the appellant's hands.
The Court was not persuaded that there was any significant possibility an innocent person had been convicted. It noted its role as a court of error rather than a court of rehearing, and found the verdict of guilty of murder was reasonable and supported by the evidence. No miscarriage of justice had occurred.
Orders Made
- Appeal against conviction dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a circumstantial murder case can be established beyond reasonable doubt even where the body of the deceased has never been found in its entirety, provided the totality of the evidence supports that conclusion.
- A conviction for murder may rest on DNA evidence from partial remains, provided the trial judge properly understands and applies that evidence without committing the "prosecutor's fallacy" (that is, without conflating the probability of a DNA match given innocence with the probability of innocence given a match).
- Where a judge-alone trial produces extensive, detailed written reasons, an appellate court will examine those reasons carefully before concluding that error occurred; the existence of thorough reasons does not insulate a verdict from review, but it does provide a clear foundation for appellate scrutiny.
- No error was established in the trial judge's assessment of exculpatory evidence, including alleged post-disappearance sightings and competing DNA test results from multiple laboratories.
- The Court of Criminal Appeal confirmed it does not conduct a rehearing or substitute its own findings of fact for those of the trial judge; its function under s 6(1) of the Criminal Appeal Act 1912 is to identify whether the verdict was unreasonable or involved a miscarriage of justice.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Criminal Appeal Act 1912 (NSW), s 6(1)
Cases
- R v Keir (2002) 127 A Crim R 198 (first appeal, prosecutor's fallacy)
- R v K (2003) 59 NSWLR 431 (second appeal, juror internet searches)
- R v Keir [2004] NSWSC 964 (judge-alone conviction, reasons)
- R v Keir [2004] NSWSC 1194 (sentencing decision)
- R v Moffatt (2000) 112 A Crim R 201
- Fleming v The Queen [1998] 197 CLR 250
- Peacock v The King (1911) 13 CLR 619
- Shepherd v The Queen (1990) 170 CLR 573
- R v Cable (1947) 47 SR (NSW) 183
- De Gruchy v The Queen [2002] 211 CLR 85
- R v Doheny (1997) 1 Cr App R 369