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. Application 1. That is a thumbnail sketch of the context in which the State of New South Wales (the plaintiff) has filed an amended summons seeking orders against the defendant pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). 2. In a nutshell, what is ultimately sought is an extended supervision order (ESO) of two years. At the preliminary hearing recently conducted before me, the three orders pressed were for mandatory examinations by two medical professionals, a renewable interim supervision order (ISO) of 28 days pending the final hearing, and an order that, to some degree but by no means completely, limits access by third parties to the Court file. I have already made the last mentioned order on the day of the hearing by consent, and delivered a concise ex tempore judgement giving my reasons for doing so. 3. At the hearing, counsel for the defendant – who possesses expertise in criminal and quasi-criminal matters – made a number of explicit concessions. 4. First, she accepted that all "mechanistic" preconditions for the making of the two orders sought at that stage had been made out, in terms of the previous criminality of the defendant, his status at the time of the filing of the application, and, to the extent necessary, his status now: see ss 5B(a), (b), and (c) of the Act. 5. Secondly, she submitted that the central preliminary and normative judgment to be found in s 10A and s 5B(d) of the Act favours the making of the two orders. In other words, she did not seek to dissuade me from the proposition of the plaintiff that it had been established. 6. Thirdly, she did not point to any reason why the orders sought should not be made as an exercise of my discretion: see s 10A of the Act. 7. Fourthly, after a period of fruitful discussion between counsel, she did not dispute the appropriateness of any of the proposed conditions of the ISO. 8. In short, whilst submitting that determination of this preliminary question is a matter for me, she did not seek to stand in the way of the making of the two orders. Determination 1. As for my own view, the joint position of counsel as to the preconditions for the making of the orders is correct. 2. As for the central test, in short I am called upon to make a prediction as to what a judge of this Court may be satisfied of in the future, at the final hearing. Reflecting on that, as I have recounted there are a number of factors that suggest that the defendant may well be able to live the rest of his life in the community without seriously offending again. To be weighed against those are the following factors. 3. First, the defendant has committed the most serious crime known to law, and thereafter took extended steps to cover it up. 4. Secondly, he has never expressed remorse for what he has done, or indeed even an acceptance of responsibility. 5. Thirdly, although some progress was made in custody therapeutically, the objective fact is that this man has spent well over two decades in prison. That of itself means that living in the community successfully will be an enormous adjustment. 6. Fourthly, although there has been a limited measure of self-awareness demonstrated by the defendant recently about his criminal conduct towards a romantic partner in the past, on the evidence I think it most unlikely that he will ever come to reconcile himself in the future with the truth of what he did to his first wife. On the contrary, I believe that he will staunchly deny it to himself and the world until he dies. That position calls into question the attitudes of the defendant about himself and other persons, which in turn calls into question whether he continues to possess attitudes that could lead to the commission of serious offences. 7. In short, on the material placed before me, I think it quite possible that a judge of this Court could regard the imposition of an ESO as appropriate, on the basis that the ultimate test in s 5B(d) of the Act is established. 8. Furthermore, I have considered for myself all of the proposed conditions of the ISO, and regard them as appropriately directed towards the rehabilitation of the defendant and the protection of the community. 9. Finally, I do not propose to work my way mechanistically through all of the factors to be considered indirectly at this stage, in accordance with s 9(3) of the Act. I have reflected upon them, and believe that all of the pertinent factors are referred to, albeit briefly, in this preliminary judgment about an undisputed matter. Conclusion 1. In a nutshell: I respectfully agree with the position of the parties that I should at this stage make the remaining interim orders by consent. Orders 1. I make the following orders: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act): 1. Appointing two qualified psychiatrists and/or registered psychologists (or any combination of such persons) to conduct separate psychiatric or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. Directing the defendant to attend those examinations. 1. An order: 1. Pursuant to s 10A of the Act that the defendant be subject to an interim supervision order from 19 February 2020 ("the interim supervision order"); and 2. Pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined; and 3. Pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this judgment. Schedule of Conditions of Supervision - Keir - 18.2.20 (258 KB, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2020