State of NSW v Keir [2020] NSWSC 83

Supreme Court New South Wales

Medium Neutral Citation: State of NSW v Keir [2020] NSWSC 83 Hearing dates: 6 February 2020 Decision date: 18 February 2020 Jurisdiction: Common Law Before: Button J Decision: Interim supervision order granted, and order for examination by medical professionals made Catchwords: HIGH RISK OFFENDER – application for interim supervision order pending final hearing – application for order for examination by medical professionals – defendant on parole for murder after spending over 21 years in continuous custody – staunch denial of offence – limited rehabilitative progress made in custody – interim supervision order and order for examinations made Legislation Cited: Crimes (High Risk Offenders) Act 2006 Category: Principal judgment Parties: State of NSW (Plaintiff) Thomas Andrew Keir (Defendant) Representation: Counsel: K Curry (Plaintiff) L Hutchinson (Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2019/329564

Judgment

Introduction 1. Mr Thomas Andrew Keir (the defendant) was born in January 1958, and accordingly is aged 62. Raised in a village in England, he and his family emigrated to Australia in 1968 when he was a boy. It seems that his upbringing was unremarkable and not psychologically damaging, and he has reported sharing a close relationship with his parents until their deaths in 1992 and 2002. He completed an upholstery apprenticeship after he left school, and continued to reside in Sydney. In 1984 he married his first wife, Jean. He now accepts that that relationship featured not only controlling behaviour on his part towards his first wife, but also some physical violence. 2. In 1988, Jean disappeared, and has never been seen again. Some weeks afterwards, the defendant met Rosalie, the woman who would become his second wife in 1989. In 1991, his second wife was brutally murdered in the marital home, and her body partially burnt. There has never been any question but that someone murdered her. The defendant has always denied being the perpetrator. 3. In the course of investigating the murder of Rosalie, the New South Wales Police discovered some bones buried in the backyard of premises associated with the defendant. Thereafter, the defendant was placed on trial for the murder of his second wife. A jury returned a verdict of not guilty. Both counsel who appeared before me were content with my initial thought expressed during the hearing that, although the acquittal on the charge of murder is not entirely irrelevant to proceedings such as these, the allegation that was not proven against the defendant, and with regard to which he therefore retains the presumption of innocence, should be given very little weight by me. 4. Subsequently, scientific analysis of the bones strongly suggested that they were those of the first wife of the defendant. He was accused of her murder, and placed on trial separately for it. After an extended course of litigation – the delay largely occasioned by the evidential and legal issues raised by the then-new and controversial science of DNA profile analysis – the defendant was convicted of the murder of his first wife. He was sentenced to a head sentence of imprisonment for 22 years, with a non-parole period of 16 years, each to commence on 20 February 1998. As one would expect, the learned sentencing judge emphasised the very serious nature and objective gravity of the crime, and noted that the defendant would serve part of it under protection. In all the years since, he has staunchly maintained that he is innocent, and has been wrongly convicted. 5. Before being convicted of that offence, the defendant had a reasonably short criminal record. It featured nothing more than some driving offences in 1979, the possession of a pistol in 1987, and the possession of what seems to have been cannabis and a cannabis water pipe on the same occasion (I disregard the even older charges of assault occasioning actual bodily harm that were dismissed). The explanation by the defendant for his possession of the pistol over 30 years ago is that he found it in an abandoned car. As I remarked to counsel at the hearing, I approach that explanation with circumspection. As for the possession of the cannabis, I accept the proposition that that was nothing more than an experiment. 6. In short, there is nothing to suggest that the defendant has ever suffered from a mental illness, intellectual disability, any form of criminogenic dependence, or a chronic propensity to intersect with the criminal justice system. Rather, the evidence is that he committed a single horrific act of domestic violence, took coolly calculated steps to hide it, and has never accepted his guilt of it. 7. As one might expect, the defendant has behaved well over many years in custody, after an initial disrupted period of settling. He has moved steadily through the system of classification, and at the time of his recent release had achieved a C2 status, which entitled him to spend time outside the grounds of prisons. 8. The principal impediment to his rehabilitation and release to conditional liberty has been his flat refusal to accept his guilt of the murder of his first wife. As his counsel submitted at the hearing, persons who firmly assert their innocence can be in something of a "Catch-22" in custody if the only rehabilitative programs available to them are founded on acceptance of guilt, with the result that a person insisting on his or her innocence may sometimes feel "punished" by their extended incarceration, based on the absence of rehabilitation, based on that refusal to admit guilt. 9. As a possible example of that phenomenon, the defendant was not released at the end of his non-parole period in 2014. Indeed, he was not released until 8 October 2019, at which time he was conditioned by his parole to live at a Community Offender Support Program Centre (COSP) attached to Long Bay Gaol. 10. In fact, the conundrum to which I have referred was solved to a degree before his release, in that the defendant was permitted to take part in a therapeutic violence prevention program, on the basis that he was a "denier", in the same way that prisoners convicted of child sexual assault can be treated on that basis in prison. As I have said, sufficient progress was made for the defendant to reflect self-critically on the way that he has treated women in the past; having said that, there undoubtedly remain issues about his reconciliation to what he has done, and the effect that may have on his attitudes and consequent conduct in the future. 11. As for the present, in late January this year he departed the halfway house, and is now living alone in a suburb of Sydney. The evidence is that his life proceeds quietly and constructively, not least by him returning to the trade of upholstery in which he trained so many years ago. He also enjoys a degree of family support. 12. Finally, the defendant was recently assessed by a psychologist experienced in the assessment of risk of reoffending for the purposes of proceedings such as these. In a nutshell, that expert came to the following preliminary conclusions. A continuing detention order (CDO) was felt to be fruitless from the perspective of achieving further rehabilitation. The defendant is a moderate risk of committing a serious violence offence, specifically in the context of a domestic relationship. The psychologist felt that the defendant could benefit from further conditional liberty tailored to those particular risks, in particular by way of scrutinising and monitoring his future intimate relationships.