REGINA v THOMAS ANDREW KEIR [2000] NSWSC 111

New South Wales Supreme Court

CITATION : REGINA v THOMAS ANDREW KEIR [2000] NSWSC 111 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70049/98 HEARING DATE(S) : 2/8/99, 3/8/99, 4/8/99, 5/8/99, 9/8/99, 10/8/99, 11/8/99, 12/8/99, 16/8/99, 17/8/99, 18/8/99, 19/8/99, 20/8/99, 24/8/99, 25/8/99,27/8/99, 30/8/99, 31/8/99, 1/9/99, 2/9/99, 6/9/99, 8/9/99, 9/9/99, 10/9/99, 13/9/99, 14/9/99, 15/9/99, 16/9/99, 17/9/99, 10/12/99, 29/2/00 JUDGMENT DATE : 29 February 2000

THE QUEEN PARTIES : v THOMAS ANDREW KEIR JUDGMENT OF : Adams J at 1

COUNSEL : Mr S Cogswell SC (Crown) Mr P Zahra (Accused) SOLICITORS : Anna Ilardo (Office of the DPP) (Crown) Simon Buchen (Accused) CATCHWORDS : Sentence - murder - intent to cause grievous bodily harm - gravity of "domestic" murder - use of Victim's Impact Statement The Queen v Main (1999) NSWSC 1174 at [16] Veen (No 1) 1979 143 CLR 458 CASES CITED : Regina v Vusumuzi Twala (unreported NSWCCA 4 November 1994) Veen (No 2) 1987/88 164 CLR 465 Garforth (unreported NSWCCA 23 May 9994) DECISION : Imprisonment for twenty-four years comprising a minimum term of eighteen years commecing 20 February 1998 (the date upon which custody for this offence commenced) and ending on 19 February 2016 and an additional term of six years commencing 20 February 2016 and ending on 19 February 2022.

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

ADAMS J

TUESDAY 29 FEBRUARY 2000 70049/98 REGINA v THOMAS ANDREW KEIR JUDGMENT ON SENTENCE

1 HIS HONOUR: On 17 September 1999 Thomas Andrew Keir was convicted by a jury of murdering his then wife, Jean Angela Keir, on or about 9 February 1988 at Tregear in the State of New South Wales. 2 Mrs Keir and the prisoner were married in August 1984 when she was eighteen and he was twenty-six years of age. Their son, Michael, was born at the end of the year. There is no doubt that Mrs Keir was a loving and devoted mother. Regrettably, however, her marriage was at times a most unhappy one, increasingly so as the years passed. I need not for the purposes of these reasons to dilate upon these circumstances. It is, however, fair to say that the prisoner became extremely possessive of his wife and jealous of her relationships, not only with other male friends or acquaintances but also with male members of her own family. I have no doubt that he was also violent towards her from time to time although there is no evidence that, aside from the possibility of some bruising, she suffered any actual physical injury. However, there was a deal of evidence which established that from time to time throughout their marriage the prisoner threatened to kill her if she should ever leave him for another man. He made these threats not only to his wife, but to others. Mrs Keir from time to time, had expressed to her friends and family her unhappiness in the marriage arising out of the prisoner's obsessive jealousy but feared that if she left him he would find her and kill her. 3 In late 1987, as it happened, Mrs Keir met and, it may be, fell in love with Carl Nieding. She was obviously very unhappy in her marriage at the time and Mr Nieding seems to have lent her a sympathetic ear. They slept together only once, on the first occasion that they met, but she called him from time to time suggesting, at first, that she wanted to leave her husband and live with him. Mr Nieding, who was somewhat older than Mrs Keir, and only found out about her being married after they had slept together pointed out, in effect, that this was not at all a good idea. Certainly, he was not interested in a committed relationship and he felt, rightly, that their acquaintance had been too short for her suggestion to be a sensible one. Even so, Mrs Keir called him on the telephone from time to time to talk about her unhappy situation and repeat her suggestion that she might come to live with him. They met again, perhaps two or three weeks later. The two talked, mostly about her life and Mr Nieding then drove her back to the railway station from which she took a train home. He said, and I accept, that aside from attempting to listen sympathetically to her, he did not encourage her to think that they might form a relationship and, indeed, attempted in a gentle way to dissuade her from continuing her contact with him. These events occurred some time in July 1987. 4 Some time later, after confessing her affair with Mr Nieding to her mother and grandmother, Mrs Keir told her husband about it. The prisoner sought Mr Nieding out. The prisoner said that he did not know whether he felt like punching him in the mouth or just talking to him. In the result, when the prisoner found Mr Nieding's address and they met, it appears their conversation was relatively amicable and Mr Nieding did not apprehend any threat. I do not accept the prisoner's assertion that he did not know exactly how he was feeling at that stage. I accept that, in the result, he neither threatened nor offered violence to Mr Nieding, for which there may be a number of reasons. I have no doubt, however, that whether he expressed it or not, the prisoner was extremely angry with his wife. He claimed that his immediate response was that as his wife had confessed her affair to him, he should also confess that he had an affair with her mother and, indeed, it was his reflection that he was not himself without blame that enabled him to keep what he described as "a level head about things". I do not propose to discuss the evidence concerning the alleged affair between the prisoner and his mother-in-law. I have no doubt that the allegation was fabricated. 5 It is difficult to obtain a clear picture of the relationship between the prisoner and his wife during the ensuing months since, of course, aside from the prisoner, there were only occasional glimpses from outsiders. Be that as it may, it seems that towards the end of the year the relationship had degenerated to the stage where Mrs Keir was seriously considering leaving her husband, despite her expressed fears about doing so. Assisted to some degree by the intervention of her parents, the prisoner agreed to allow his wife to visit Culburra on the south coast of New South Wales with her sister and her partner. Despite Mrs Keir's tearful pleas, he refused to allow her to take her son who was, of course, at this stage just over three years of age. The reason for this brief trip was that Mrs Keir had said she needed time alone to consider what she should do about her marriage. The prisoner asserted that he did not permit her to take their son because he thought he would prove a distraction for her. I am of the view that the prisoner's real motive was that he suspected that his wife might not wish to return to him and retained Michael to render this possibility unlikely. It was also an exercise by him of his power so far as Michael was concerned and designed, I am convinced, to show his wife who was really in charge. It was a cruel act of cold-hearted manipulation. Although the prisoner agreed that his wife might remain at Culburra for a week, at the end of five days he went to collect her and, I have no doubt, to bring her home whether she wished to come or not. It is unnecessary for me to repeat the evidence given by Mrs Keir's sister and her partner as to what happened. Suffice it to say that she was brutally forced by the prisoner into his car against her will and taken back to Sydney. What happened between them en route is unknown except for the prisoner's evidence that they had a relatively amiable conversation. The prisoner denied any manhandling of his wife at any time and said that she got into the car voluntarily. This evidence was a lie. Nor do I accept the prisoner's account of what occurred on the trip back. The fact is that when they stopped for petrol at Casula on the outskirts of Sydney the prisoner's wife went to the lavatory and, when the prisoner himself left the vehicle for the same purpose, she got to the highway and hitchhiked to Bondi where Mr Nieding lived. This action by Mrs Keir, together with the accounts of what happened at Culburra from her sister and de facto husband provides a compelling basis for disbelieving the accused's account of these events. 6 After he had been waiting for some little time, the prisoner discovered that his wife had gone and was seen hitchhiking on the highway. He went to find her but was unsuccessful and returned home. He surmised that she may have gone to Mr Nieding's house and managed to get a message to Mr Nieding from a neighbour asking him to telephone. By that time, about 7pm, Jean Keir had already arrived. Mr Nieding agreed with the prisoner that he would attempt to persuade Jean to return home and that he would bring her. It is unnecessary to go into the evidence about what happened in any detail except to say that Mr Nieding managed to overcome Jean's considerable reluctance and eventually drove her home. They arrived I am satisfied, at about 9pm. The prisoner came out to the car. He appeared to be calm. He was smiling. This was a mere pretence. Mr Nieding saw Jean Keir go into the house. It was the last occasion on which she was seen alive. 7 Jean Keir was murdered by the prisoner some time during the night of the 9/10 February 1988. Whether, however, he killed intentionally or death ensued by an act of violence inflicted with intention to cause grievous bodily harm is uncertain. In this respect, I consider that I should sentence the prisoner upon the basis that he intended to do no more than seriously harm her. When his wife was dead, the prisoner buried her, perhaps under or, more probably, at the side of the house where a few small bones were later discovered by police during an investigation in 1991. The prisoner has maintained throughout that he did not kill his wife; rather that she left him, leaving her son behind also, some time on 10 February 1988, indeed, that she had contacted him several times since then although he had not heard from her since about October 1988. He attempted also to suggest that she had run off with Mr Nieding and created an elaborate facade for this purpose. He continues to deny his guilt. The significance of these matters is that the prisoner has thereby demonstrated a complete lack of contrition or remorse in respect of his crime and, whilst this will add nothing to his sentence, it follows that I cannot give him any benefit which is conventionally available upon these considerations. His behaviour throughout has been cruel and pitiless. Of course, the prisoner's standards do not measure out the standards of the criminal law. However, there is nothing in this case which excites sympathy for him and which would lead me to reduce what would otherwise be a sentence which reflects the objective seriousness of the crime. 8 At the sentence hearing the prisoner called his mother to give evidence about his upbringing and character as she found it to be. It is clear that Mrs Keir believed, for good reason, that her son was diligent, hard-working and, so far as she was concerned, generous. She had never known her son to be violent. Also called on the prisoner's behalf, was Dr Westmore, a consultant forensic psychiatrist. In taking a history from the prisoner following his conviction, Dr Westmore noted that he maintained his position that he was not guilty of causing his wife's death, saying that he could not understand how the jury came to the decision of guilty and felt that the outcome was "ridiculous". In reaching his conclusions, Dr Westmore considered not only what the prisoner told him but also what was said by witnesses in the statements to which he had access and which, as I understand it, was elicited during the trial. I think it is desirable that I should set out the Doctor's conclusions in his own words - "With that information it is probably reasonable to assume that he does not represent a risk to the general population when future dangerousness is being considered. His risks within intimate relationships must be considered to be reasonably high. The history indicates that he became quite obsessed in this particular relationship, he may have even developed a degree of morbid jealousy although I cannot confirm that. The history however does indicated that his concerns about certain aspects of his wife's behaviour were unhealthy and probably at an extreme.