Keir v R - [2007] NSWCCA 149

Appeal Outcome: Special leave refused by the High Court 19 June 2009 (S31/2008)

New South Wales

Court of Criminal Appeal

CITATION: Keir v R [2007] NSWCCA 149

HEARING DATE(S): 15 September 2006

JUDGMENT DATE:
6 June 2007

JUDGMENT OF: Hunt AJA at 1; Johnson J at 2; Latham J at 170

DECISION: Appeal against conviction dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - trial by judge alone - conviction for murder - circumstantial case - wife of appellant disappeared in 1988 - human bones discovered buried in grounds of the matrimonial home in 1991 - Crown case that bones were those of appellant's wife - DNA evidence - appellant contends that verdict was unreasonable and could not be supported by the evidence - alleged sightings of appellant's wife after her disappearance - alleged deficiencies in DNA evidence - claim that Crown and trial judge fell into "prosecutor's fallacy" - claim that trial judge fell into factual error in findings concerning excavation of site where human bones discovered - claim that not open to trial judge to find that appellant's wife was dead and had died as result of act of appellant committed with intent to kill or to cause grievous bodily harm - held that Crown presented strong circumstantial case - no error demonstrated in detailed reasons of trial judge - verdict was reasonable and supported by the evidence - no miscarriage of justice has occurred - appeal dismissed

LEGISLATION CITED: Criminal Procedure Act 1986
Criminal Appeal Act 1912

CASES CITED: R v Keir (2002) 127 A Crim R 198
R v K (2003) 59 NSWLR 431
R v Keir [2004] NSWSC 964
R v Keir [2004] NSWSC 1194
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

PARTIES: Thomas Andrew Keir (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/1263

COUNSEL: Thomas Andrew Keir (in person)
Mr M Sexton SC/Ms N Noman (Respondent)

SOLICITORS: --- (Appellant)
Mr S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70012/02

LOWER COURT JUDICIAL OFFICER: MW Campbell AJ

LOWER COURT DATE OF DECISION: 22 October 2004

LOWER COURT MEDIUM NEUTRAL CITATION: R v Keir [2004] NSWSC 964

2006/1263

HUNT AJA
JOHNSON J
LATHAM J
6 June 2007

THOMAS ANDREW KEIR v REGINA

Judgment

1 HUNT AJA: I agree with Johnson J.

2 JOHNSON J: The Appellant, Thomas Andrew Keir, appeals against his conviction for the murder of his wife, Jean Angela Keir, at Tregear on or about 9 February 1988. Following a trial before MW Campbell AJ sitting without a jury, the Appellant was convicted on 22 October 2004. On 13 December 2004, the Appellant was sentenced to imprisonment for a term of 22 years commencing on 20 February 1998 and expiring on 19 February 2020, with a non-parole period of 16 years expiring on 19 February 2014.

3 The Appellant appeals against conviction only. No application for leave to appeal is made with respect to sentence.

The Appellant’s Trial

4 The trial before Campbell AJ was the second retrial of the Appellant. The Appellant’s conviction, following a trial before Adams J and a jury, was quashed by the Court of Criminal Appeal on 28 February 2002 (upon the ground that the Crown had fallen into the “prosecutor’s fallacy” concerning DNA evidence): R v Keir (2002) 127 A Crim R 198. The Appellant’s conviction, following a retrial before Kirby J and a jury, was quashed by the Court on 23 December 2003 (upon the ground that internet searches concerning the Appellant had been conducted by jury members during the course of the trial): R v K (2003) 59 NSWLR 431.

5 Thereafter, the Appellant elected to be tried by Judge alone pursuant to s.132 Criminal Procedure Act 1986 and the Director of Public Prosecutions consented to this course. The trial commenced before Campbell AJ on 27 July 2004 and proceeded until 2 September 2004.

6 A judge who tries criminal proceedings without a jury must give reasons, including the principles of law applied by the judge and the findings of fact on which the judge relied in returning a verdict: s.133(1)-(2) Criminal Procedure Act 1986. The judge is to take into account any warning which is required by law to be given to a jury in the circumstances of the case: s.133(3).

7 On 22 October 2004, Campbell AJ returned a verdict of guilty to the charge of murder, and published extensive reasons for that verdict occupying 173 pages and 1,112 paragraphs: R v Keir [2004] NSWSC 964. On 13 December 2004, Campbell AJ sentenced the Appellant for the offence: R v Keir [2004] NSWSC 1194.

Overview of Crown and Defence Cases at Trial

8 The Appellant and Jean Angela Keir (nee Strachan) were married on 11 August 1984, when the Appellant was 26 years old and Jean Keir was 18 years old. They had met through Jean Keir’s mother, Christine Strachan, who worked for an upholstery business of which the Appellant was a part owner. On 31 December 1984, a son, Michael, was born to the marriage. Following their marriage, the Appellant and Jean Keir lived at a home at 18 Wilkes Crescent, Tregear, a property purchased from Christine Strachan’s mother.

9 It was the Crown case that the Appellant and Jean Keir lived happily together for a period. However, Jean Keir became unhappy in the marriage and the Appellant was jealous and possessive of her. In late 1987, Jean Keir met Carl Neiding and had sexual intercourse with him on one occasion. She informed the Appellant of this fact.

10 On about 4 February 1988, Jean Keir went to Culburra, on the south coast, with her sister and her sister’s boyfriend. Although the Appellant had agreed to this, on 9 February 1988, he drove to Culburra to bring his wife home. He did not tell her that he was coming and, when he arrived there, he forced her into his car. When the Appellant stopped at a service station at Casula, Jean Keir left and hitchhiked to Mr Neiding’s flat at Bondi. After telephone communication between the Appellant and Mr Neiding, Mr Neiding drove Jean Keir to her home at 18 Wilkes Crescent, Tregear, and left her there with the Appellant, at 10.30 pm or later on 9 February 1988. On the Crown case, Mr Neiding was the last person, apart from the Appellant, to see Jean Keir alive.

11 It was the Crown case that, on that night or the next morning, the Appellant murdered his wife and disposed of her body, which has never been found. The Crown alleged that the Appellant had buried his wife’s body initially in the backyard of 18 Wilkes Crescent, Tregear and later had moved the body elsewhere. In so doing, the Crown alleged that the Appellant had left small bones from the body in the ground of the Tregear property. The Crown contended, on the basis of DNA evidence, considered together with other evidence in the case, that the bones were those of Jean Keir.

12 It was the Appellant’s case that Jean Keir was still alive. It was contended that she had had an affair with Mr Neiding, and had left the Appellant for Mr Neiding on 10 February 1988. The Appellant gave evidence at the trial. He said that he had not seen Jean Keir since that date, although he alleged that he had spoken to her on the telephone and that she had visited the house on two occasions in his absence, which he could tell from items which she had left behind.

13 A further issue in the trial giving rise to grounds of appeal, was the question whether Jean Keir had been seen by others, or had spoken to others, since 9 February 1988.

14 The Appellant contended at trial that the DNA evidence was unreliable, given the risk of contamination and what was said to be conflicting evidence of persons who had undertaken DNA analysis of the bones in Victoria, South Australia and the United States of America.

The Grounds of Appeal

15 The Appellant was unrepresented at the hearing of the appeal. He had been represented by counsel at trial. He relied upon written submissions which he had prepared in support of the grounds of appeal and made oral submissions to the Court at the hearing.

16 The grounds of appeal are in the following terms:

Ground 1 : The verdict is unsafe and unsatisfactory for the following reasons:

(a) the trial Judge erroneously and wrongfully disregarded and rejected factual and crucial direct exculpatory evidence (being the person of interest form dated 30 October 1988 held by the police which stated “person located” );

(b) the trial Judge erroneously and wrongfully disregarded and rejected exculpatory evidence concerning the sightings of Jean Keir (identification evidence of alleged victim after 9 February 1988);

(c) the trial Judge erroneously and wrongfully disregarded and rejected crucial DNA evidence (being the test results from Victoria, and South Australia, the second test results from Victoria and a second DNA profile located in the tests in America);

(d) the trial Judge erroneously and wrongfully disregarded and rejected the contamination factor concerning DNA testing and results;

(e) the trial Judge erroneously and wrongfully disregarded and rejected photographic evidence concerning the excavations of where and when the alleged bones were allegedly located, plus the photographic evidence concerning the concrete slab under the oil heater tank prior to the first excavations in April 1991;

Ground 2 : The trial Judge erroneously and wrongfully transposed the consistency of the DNA evidence (America) with the statistical probability of 400,000:1, into identity of the alleged victim ( “prosecutor's fallacy” ).

Ground 3 : The trial Judge significantly erred in his conclusion that:

(a) Jean Keir is dead; and

(b) her death was caused by an act of the Appellant.

Ground 4 : The trial Judge erroneously and wrongfully allowed suspicion, grave suspicion and speculation to cloud his judgment in his fact finding mission throughout the trial and in his judgment, which dramatically affected his formulation in reasoning to his conclusion, resulting in a miscarriage of justice.

Ground 5 : The trial Judge significantly erred in departing from the firm ground of “proof beyond reasonable doubt” , which dramatically affected his formulation in reasoning to his conclusions, and resulted in a miscarriage of justice, in the following respects:

(a) the trial Judge erroneously and wrongfully chose to believe blatant lies and recent invention over proven facts concerning the document referred to in Ground 1(a) above;

(b) the trial Judge was too ready to reject any innocent inferences and exculpatory evidence, such as the sightings and the official police document referred to in Ground 1(a) above;

(c) the trial Judge did not give adequate or appropriate consideration concerning the totality of the DNA tests and results or the statistical probabilities;

17 The grounds of appeal overlap in a number of respects. In the main, the Appellant challenges findings of fact made by the learned trial Judge in a number of critical areas.

Conviction Appeal from Verdict of Judge Sitting Without a Jury

18 In R v Moffatt (2000) 112 A Crim R 201 at 202 [3]-[5], Wood CJ at CL (Foster AJA and Adams J agreeing) described the function of the Court of Criminal Appeal, in an appeal against conviction from a trial on indictment by judge alone, in the following way:

“The Court of Criminal Appeal is a court of error, and does not proceed by way of rehearing in a way that permits it to substitute its own findings of fact for those of the jury, or of the trial Judge where acting alone: Kyriakou (1987) 29 A Crim R50, and Kurtic CCA (NSW) 26 February 1996 unreported.

Where, as in the present case, the relevant ground is that the verdict, or more accurately the finding on the question of guilt by the trial Judge (s17 Criminal Procedure Act 1986) should be set aside upon the ground that it is unreasonable, or cannot be supported, having regard to the evidence (s6(1) Criminal Appeal Act 1912), then it can only intervene if, after making its own independent assessment of the evidence, it concludes that it was not open for the trial judge to have been satisfied beyond reasonable doubt of the guilt of the appellant: M (1994) 181 CLR 487 at 493, and Jones (1997) 149 ALR 598. In that event error permitting the substitution of a verdict of acquittal is established: Coombe CCA (NSW) 24 April 1997 at p11 and p12.

What is required in this respect is attention to the matters identified in

Fleming

(1998) 158 ALR 379,

Giam

(1999) 104 A Crim R416, and

Gipp

(1998) 194 CLR 106.”

19 Wood CJ at CL referred in the lastmentioned passage, to the decision of the High Court in Fleming v The Queen [1998] 197 CLR 250 where it was observed, at 256 [12], in the context of an appeal from a trial on indictment by judge alone, that use of the potentially confusing phrase “unsafe and unsatisfactory” to cover the several different elements in s.6(1) Criminal Appeal Act 1912 is “liable to mislead” and that there is no substitute for giving attention to the precise terms in which s.6(1) is expressed. With respect to the interaction of s.6(1) Criminal Appeal Act 1912 and s.133 Criminal Procedure Act 1986 (then s.33 of that Act), the Court said in a unanimous judgment at 262 [26]:

“Thirdly, the first limb of s 6(1), which deals with the unsatisfactory quality of ‘the verdict of the jury’, must now be seen through the prism of s 33(1). The first limb will address attention to the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt. Approached on that footing, is that finding ‘unreasonable’ or one which ‘cannot be supported’?”

20 The Appellant advances an unsafe and unsatisfactory ground on the present appeal. That ground ought be approached in the manner indicated in Fleming v The Queen and R v Moffatt. The question is whether the verdict is unreasonable or cannot be supported, having regard to the evidence. The Court must make its own independent assessment of the evidence. In undertaking this task, the credibility findings of the trial Judge with respect to the witnesses remain significant: Fleming v The Queen at 266-267 [44]-[46].

Ground 1(a) - Verdict Unsafe and Unsatisfactory by Reason of the Manner in Which the Trial Judge Dealt with the Person Located Report

21 This ground of appeal relates to a document tendered in the trial entitled “Person of Interest Report for ‘Located Person’ dated 30/10/88” (Exhibit M2). This document formed an important part of the Appellant’s case that Jean Keir was, in fact, still alive.

22 The document was created by Inspector Phillip Higgins at the Mt Druitt Police Station on 30 October 1988, some eight months after the disappearance of Jean Keir on 9 February 1988. The body of the form contained the following entry:

“Approximately 1 month ago,

KEIR was seen by a friend of the family in the shopping centre at Emerton in Mount Druitt. When the friend attempted to approach KEIR and speak to her, KEIR turned and ran away. It now [sic] the opinion of KEIR’s family that KEIR does not want to get in contact with any members of her family. The reason for this is unknown to the family. After speaking with KEIR’s brother, Leonard STRACHAN and her sister, Heather STRACHAN they no longer fear for her safety and welfare as they did in there

original missing person report which they made in May this year. They are still worried about her, but agree that it is no longer a police matter.”

23 The Person Located Report was the second “person of interest” report filed at Mt Druitt Police Station in relation to the disappearance of Jean Keir. The first report (Exhibit M1) was created by Inspector Higgins on 1 May 1988, following a visit to the station made by Clifford Strachan and Heather Strachan to report that Jean Keir was missing (Trial Judgment [893]).

24 Although Inspector Higgins agreed that he had filled out the Person Located Report, he had no independent recollection of doing so. He made a statement dated 25 September 1991 which referred to the event. He assumed that Leonard Strachan was present and he spoke to him, although no check was made on the identity of persons making such reports, nor are they required to sign forms or entries in official notebooks ([897]-[898]). Campbell AJ noted at [899] - [900] that the alleged sighting of Jean Keir was that of Jennifer Amos (previously Soler) to which further reference will be made shortly (concerning Ground 1(b)). As will be seen, Campbell AJ at [890] concluded with respect to the evidence of Mrs Amos, that her alleged sighting did not give rise to a reasonable possibility that Jean Keir was alive after 10 February 1988.

25 Campbell AJ turned to that part of the Person Located Report which asserted that members of the Strachan family “no longer fear for [Jean Keir’s] safety and welfare”. Clifford and Heather Strachan were called as Crown witnesses at trial. Both agreed that they had attended the police station in May 1988 to report that Jean Keir was missing. They denied, however, that they had attended the Mt Druitt Police Station in October 1988, let alone that they took part in an interview or “withdrew” their concern about the whereabouts of Jean Keir ([901]).

26 Jean Keir’s brother, Leonard Strachan, was called as a witness in the Crown case. Leonard Strachan would have been 14 years old in October 1988. He denied that he had attended the police station at all, let alone for the purpose of informing police that there was no longer a concern for the whereabouts and welfare of his sister.

27 In his written submissions, the Appellant repeats the submission advanced on his behalf by counsel at the trial before Campbell AJ. He contends that the Person Located Report should have been treated by Campbell AJ as a reliable document which recorded accurately the words and actions of Clifford, Heather and Leonard Strachan on 30 October 1988. The Appellant submits that each of these persons gave perjured evidence at the trial, denying that they had visited the police station and had made the report on 30 October 1988. The Appellant submits that Campbell AJ “erroneously and wrongfully disregarded and rejected the official police document” and “wrongfully accepted perjury over a proven fact”. The Appellant submits that, if his Honour had accepted the Person Located Report, he would have been bound to acquit the Appellant.

28 The Crown submits that Campbell AJ approached this issue carefully, having regard to the defence submission that the Strachans were lying, leading his Honour to “scrutinise their evidence with great care” ([908]). His Honour considered Leonard Strachan to be a “straightforward witness” and that it “is not easy to see why he would lie now” on this topic ([906]). Campbell AJ observed that it was not easy to see why Heather Strachan would deny going to the police station if she had in fact done so ([907]).

29 The Crown submits that it was open to the trial Judge to make the findings which he did about the Person Located Report, taking into account the evidence given by Inspector Higgins and by Clifford, Leonard and Heather Strachan. Campbell AJ rejected submissions at trial that the Strachans had committed perjury at the trial. The Crown submits that no error is disclosed in his Honour’s decision to accept the evidence of the Strachans at trial, which had been evaluated carefully, that they had not attended the Mt Druitt Police Station in October 1988 and had not withdrawn the person of interest report initially made in May 1988.

30 In approaching this ground (and other grounds) of appeal, it is important to bear in mind that Campbell AJ, as trial Judge, observed the witnesses giving evidence. His Honour had the advantage of hearing the evidence given and assessing the demeanour of witnesses in the trial. His Honour has given careful reasons in his detailed judgment for accepting the sworn evidence of the Strachans at trial.

31 The conclusions of Campbell AJ concerning the Person Located Report involved two steps:

(a) as to the alleged sighting by Mrs Amos referred to in the document, a finding that the Crown had negatived any reasonable possibility arising from it that Jean Keir was alive after 10 February 1988;

32 In light of these conclusions, the Person Located Report provided no evidentiary assistance to the Appellant at trial.

33 I have considered the evidence of Clifford Strachan, Heather Strachan and Leonard Strachan given at trial, together with that of Inspector Higgins. The trial Judge was conscious of the significance of this question to the trial and assessed carefully the evidence adduced. I detect no error in his Honour’s approach in reaching a conclusion which was clearly open on the evidence. His Honour’s findings were reasonable and supported by the evidence.

34 I reject Ground 1(a).

Ground 1(b): Verdict Unsafe and Unsatisfactory by Reason of the Trial Judge’s Findings About Alleged Sightings of Jean Keir

35 As noted earlier, the defence case at trial was that Jean Keir was still alive. The Appellant relied at trial upon three classes of evidence on this issue:

(a) evidence of independent witnesses concerning alleged sightings of Jean Keir after 9 February 1988 - Charlotte Chessnut, Michael Keir (the son of Jean Keir and the Appellant) and Jennifer Amos (previously Soler);

(b) evidence of the Appellant - the Appellant alleged that Jean Keir had rung him a few times and had visited the home in Wilkes Crescent, Tregear after 9 February 1988, although he did not see her on any of the alleged occasions; the Appellant also asserted that he had spoken to a number of people after 9 February 1988 who had seen Jean Keir in the company of Mr Neiding;

36 After a detailed analysis of the sightings’ evidence ([809]-[931]), Campbell AJ concluded at [932]:

“Considering the evidence as to ‘sightings’ and analogous matters both individually and together, against the background of the other evidence in the case, I am satisfied beyond reasonable doubt that the Crown has negatived any reasonable possibility that Jean Keir was alive after 10 February 1988 arising from the material dealt with under this heading.”

37 In his written submissions in support of this ground, the Appellant took, as a starting point, the observations of the Court of Criminal Appeal in R v Keir (2002) 127 A Crim R 198 at 207 [37] where, in declining to apply the proviso, Giles JA (Greg James and McClellan JJ agreeing) touched upon the sighting evidence:

“The Crown case was strong. But it can not be taken in isolation from the identification evidence, and although reasons for doubting its reliability or credibility could properly be put forward that evidence can not be swept aside. The jury had to evaluate the evidence, and it would have been sufficient for the appellant that the identification evidence brought reasonable doubt. Miss Soler, in particular, was independent from the appellant and said that the person she thought was Mrs Keir had curly hair, which Mrs Keir had not had when previously known to her: other evidence showed that Mrs Keir had changed her hair style and had curly hair in early 1988. I do not think it can be said that, had the jury not been left with an erroneous appreciation of the significance of the DNA statistical evidence, the appellant would inevitably have been convicted.”

38 The Appellant notes that these observations were made by the Court before the evidence of Ms Chessnut and the Person Located Report became available. Accordingly, the Appellant submits that there was a stronger body of evidence of sightings before Campbell AJ than that which had been adduced at the first trial in 1999 and was before the Court of Criminal Appeal in 2002. The Appellant submits that the totality of the evidence of sightings represented substantial exculpatory evidence which gave rise to a clear reasonable doubt. He submits that this evidence “cannot be disregarded, rejected or swept aside” and that Campbell AJ erroneously and wrongfully disregarded and rejected the evidence of sightings of Jean Keir after 9 February 1988.

39 The Crown submits that the trial Judge’s conclusion, that the Crown had negatived any reasonable possibility that Jean Keir was alive after 9 February 1988, had been reached after careful consideration of the evidence. The Crown submits that the observations of the Court of Criminal Appeal in 2002 have no application to this appeal which follows a new, and second, retrial. Any comments made by the Court in 2002 are confined to the evidence given at the first trial and have no bearing on this Court’s analysis of the findings of Campbell AJ with respect to the evidence adduced in the present trial.

40 In approaching this ground of appeal, it is appropriate to observe that the Appellant does not contend that error is demonstrated in any specific part of the detailed analysis of Campbell AJ with respect to the sightings’ evidence. Rather, the Appellant contends that the sightings’ evidence was such that the Crown could not exclude the reasonable possibility that Jean Keir was alive after 10 February 1988 and, accordingly, there was a reasonable doubt concerning the guilt of the Appellant.

41 Like Campbell AJ, I will consider this ground of appeal by reference to the individual categories of evidence, then by assessment of the cumulative effect of the different categories.

The Independent Witnesses

42 Charlotte Chessnut gave evidence that she was shopping with her son, Chadwick, at the Emerton Shopping Centre, some months after February 1988. Chadwick Chessnut was five or six years old at the time and, before her disappearance, Jean Keir had regularly babysat him. Charlotte Chessnut gave evidence at the trial that Chadwick told her “that he thought he saw Jeanie” (T832.40). The Crown asked Ms Chessnut (T832.43):

“Q. What did he say?

A. He said, ‘Oh, mum. I think I saw Jeanie.’ That’s what he used to call her and so what I did I followed the lady, or I chased after her and I eventually saw where she was. I was following her and she turned around and it wasn’t Jeanie.”

43 With respect to this evidence, Campbell AJ said at [837]-[838]:

“Mrs Chessnut was cross-examined as to having told a private investigator in June 2002 that after hearing her son yell out ‘Jeanie’ she ‘looked up and there was no-one there’.

I do not consider it necessary to pursue this issue because at best the matter depends upon the impression of a five or six year old child. One would think that the natural reaction would have been to attempt to identify the person and clearly enough Jean Keir was not in fact identified.”

44 I detect no error in his Honour’s approach to this evidence and the conclusion reached with respect to it, which was clearly open.

45 Michael Keir was a little over three years old when his mother disappeared. He gave evidence at the trial of having seen her on two occasions since 9 February 1988. The first occasion was at the Mt Druitt swimming pool when he was about seven years old. He said that he was there with his cousin, Jenny Page. He told her that he had seen his mother, but she did not believe him. In cross-examination, Michael Keir agreed that his uncle, Leonard Strachan, could also have been at the pool (T1680-1681). The second alleged sighting by Michael Keir was in August 1998 when he said that she was sitting in a parked car across the street from the home of his grandmother, Joan Keir, where he was staying at the time. Michael Keir gave evidence that his grandmother had agreed with him when he pointed out his mother to her (T1682-1683). Michael Keir was cross-examined as to his recollection of both sightings.

46 In relation to the first alleged sighting by Michael Keir, Christine Strachan gave evidence that Michael had told her when he arrived home from the pool that he had seen Jean Keir, but that he had not said anything to Jennifer Amos or Leonard Strachan about it. Leonard Strachan gave evidence at the trial that he recalled the occasion, and he did not see anyone who looked like Jean Keir or who was Jean Keir (T861). In relation to the second occasion, Michael Keir’s evidence was supported by a statement that Joan Keir had given at the previous trial. She had died before the third trial, as had the Appellant’s father, Andrew Keir. As Campbell AJ noted at [835], the defence did not press in address the claimed sightings by Joan Keir or Andrew Keir. Nevertheless, his Honour stated at [835] that he had considered the transcript of their evidence carefully, but did not consider, when taken with the other evidence in the case, that it raised any reasonable possibility that Jean Keir was alive after 10 February 1988.

47 Having considered evidence touching upon the sightings by Michael Keir, Campbell AJ concluded at [850]-[851]:

“It is, I think, relevant that it was Michael, who had last seen his mother when he was three years old, apart from the suggested swimming pool occasion, who first identified the woman in the car. Joan Keir had the suggestion put to her by a witness whose own basis of identification must be very doubtful. Of course in her situation as the accused’s mother to see Jean Keir would be a wish fulfilled.

Having regard to the evidence as a whole I do not consider these two ‘sightings’ to raise a reasonable possibility that Jean Keir was alive after 19 February 1988.”

48 I do not detect any error in his Honour’s approach to the alleged sightings by Michael Keir. It was open to his Honour to reach the conclusion which he did with respect to this evidence.

49 As Campbell AJ observed at [852], trial counsel for the Appellant pressed vigorously the suggested sighting by Jennifer Amos as raising a reasonable possibility that Jean Keir was then still alive, and that the Crown had not negatived that possibility. It was the alleged sighting by Mrs Amos which was the subject of the Person Located Report considered above (concerning Ground 1(a)).

50 His Honour undertook a close examination of the evidence of Mrs Amos (at [853]ff). Mrs Amos had gone to school with Jean Keir, but had rarely seen her after leaving school. In about October 1988, Mrs Amos was working at a fruit shop in Emerton as a cashier. While working one day, at a time when the other two cashiers were on a break and when she was very busy, Mrs Amos said in evidence that she thought she saw someone resembling Jean Keir at the ATM next door to the fruit shop, about 30 feet from the place where she was standing. In examination in chief, Mrs Amos was asked by the Crown (T761.17):

“Q. Can you tell us what you saw or noticed in terms of this person?

A. I thought I saw someone that resembled Jean at the ATM but it was just a quick glance as I was serving customers at the time, and the sun was coming down from the dome on to the floor and just made it too glary to really recognise anyone.

Q. At the time that you had this glance to the ATM, were you in the process of serving a customer or were you between two customers, do you recall?

A. Between the two customers.”

51 In the course of his analysis of the evidence of Mrs Amos, Campbell AJ said at [861]-[863]:

“She said that it was a good five or six years before that that she had last seen Jean Keir and that her hair had always been straight. She was obviously confused as to the period of time.

Mrs Amos said in chief that she was both long and short sighted and that she did not have her glasses on on that day. She also mentioned glare with the sun coming through some windows ‘on the ceiling’ and bouncing of polished tile.

She said that she was not ‘real confident’ that the person she saw was Jean Strachan and that it was possible that it may have been ‘a mistaken identity’.”

52 His Honour recounted the evidence of Mrs Amos in chief and under cross-examination concerning statements made by her on earlier occasions to police, to other persons and at the earlier trials. It is apparent that Mrs Amos had asserted that she had seen Jean Keir with greater certainty in her earlier accounts. Campbell AJ observed at [881]:

“Having seen and heard her give evidence I formed the clear impression that her retreat, I agree it was one, was based on a developing recognition of how hard it is, in terms of human experience, to be sure of an identification in such circumstances.”

53 Campbell AJ expressed his conclusions with respect to the sightings’ evidence of Mrs Amos in the following way at [884]-[890]:

“Certainty or otherwise by Mrs Amos is, in any event, far from the end of the matter.

The circumstances for observation were far from ideal and Mrs Amos had her work to attend to. The period involved was brief.

The figure she saw was a bit on the plump side. Jean Keir was thin. The suggestion was that she might have put on weight, that she was pregnant or was ‘just wearing a track suit’.

The figure she saw had curly hair. Mrs Amos said that she had always known Jean Keir with straight hair. This raises a question as to Mrs Amos’ powers of observation as, according to the accused, Exhibit 2 was taken when Michael was one year old, that is, before the occasion referred to in [854]. There is obviously room for error in age estimates. In the circumstances the fact that the sighted woman had curly hair is of little value unless she was otherwise identified as Jean Keir.

Mrs Amos did say that she saw the woman’s features and that appears to be the only aspect upon which the identification could be made other, perhaps, than an unexpressed impression as to movement, although there could not have been much of that.

Mrs Amos did not remember telling someone of her sighting. Memory for facts may well be different to memory for events. Nonetheless, having seen and heard Mrs Amos I would be very doubtful about the identification of Jean Keir even if Mrs Amos had adhered to the certainty expressed in her statement.

As it is, particularly when all the evidence in the case is taken into account, I do not consider that Mrs Amos’ ‘sighting’ raises a reasonable possibility that Jean Keir was alive after 10 February 1988.”

54 Once again, I detect no error in the approach of the trial Judge to the determination of the reliability and weight to be attached to the evidence of Mrs Amos. It is clear, from his Honour’s reasons, that his observations of Mrs Amos as a witness played a part in the assessment of her evidence. Having examined the evidence, I consider that his Honour’s conclusion was clearly open. The finding was reasonable and was supported by the evidence.

Evidence of the Appellant

55 In his evidence at trial, the Appellant stated that he had spoken with a number of people who had told him that they had seen Jean Keir, either in the company of Mr Neiding or on her own.

56 The Appellant alleged that he had met a man in Crows Nest who knew Mr Neiding and who had informed him that he had seen Mr Neiding at The Rocks in mid-1988, with a girlfriend whose description matched that of Jean Keir. The Crown called the man, Peter Henry Heibloem, who conducted personal development seminars over two weekends a year at a Crows Nest venue where the Appellant allegedly spoke with him. Mr Heibloem gave evidence that he did not know Mr Neiding, the Appellant or Jean Keir and had not been to The Rocks since he moved from Sydney in 1974 ([815]-[816]).

57 The Appellant alleged that, some time between May and July 1988, he had telephoned Karl Heinz Neiding, the father of Carl Neiding, who told him that he had seen his son recently with a new girlfriend, who matched the description of Jean Keir. Karl Heinz Neiding gave evidence at the first trial. The transcript of his evidence was tendered at the second trial and again at the present trial. He stated that he had been shown photographs of Jean Keir and had never seen the woman in the photographs with his son. He recalled receiving a telephone call from a man asking as to his son’s whereabouts, but could not tell him anything at the time. Whilst Karl Heinz Neiding recalled his son, Carl, coming to visit once with a girl from Adelaide, he recalled no women coming from Sydney.

58 Campbell AJ was satisfied that the Crown had negatived any reasonable possibility of Jean Keir being alive on the basis of this evidence ([821]-[828]).

59 The Appellant alleged that his aunt, Marlene Joan Wright, had told him that she had seen Jean Keir. Ms Wright said in evidence that she had never told the Appellant, or any other person, that she had seen or heard from Jean Keir ([831]). She agreed that her sister and the Appellant’s mother, Joan Keir, had told her she had seen Jean Keir in 1988 sitting in a red motor vehicle opposite her house ([832]).

60 The Appellant gave evidence that he received a telephone call from Jean Keir two-to-three weeks after she walked out in February 1988 ([516]). The Appellant said that Jean Keir paid a visit to the Wilkes Crescent, Tregear residence in May 1988 and telephoned him as well ([518]). The Appellant was cross-examined about the phone calls and the alleged visits (T1604-1620). Following a summary of the evidence of the Appellant concerning these telephone calls and visits, Campbell AJ concluded at [522]:

“It is convenient to say that, quite apart from other matters, the account of these conversations does not ring true to me. Why would Jean Keir ring the man from whom she had run away rather than her family and friends, even if not her mother? Why did she not at least wish to speak to Michael? The comment ‘she had split with Carl’ implies that she had continued a relationship with Carl Neiding. I do not believe this to be the fact. Most of the conversations appear to have been cut short by Jean Keir yet she was supposed to have initiated them. It is difficult to think of a rational explanation for Jean Keir being prepared to inform the accused that she had had a child, not his, but not inform her family and friends.”

61 The trial Judge had the opportunity to see various witnesses, including the Appellant, give evidence at the trial and to form a view concerning credibility and reliability. No error is demonstrated in his Honour’s reasoning and findings, which were clearly open on the evidence.

The Person Located Report

62 The evidence concerning the Person Located Report, and the findings of the trial Judge with respect to it, have been referred to earlier in this judgment (at paragraphs 21 to 34). As noted earlier, I detect no error in the findings of Campbell AJ with respect to this document.

Cumulative Effect of Evidence of Alleged Sightings

63 The Appellant submits, in effect, that the cumulative effect of the evidence of alleged sightings was such that a verdict of guilty was unreasonable and cannot be supported, having regard to the evidence. The Crown submits that it was open to the trial Judge to reach the conclusions which he did with respect to the various categories of evidence concerning alleged sightings and that this ground of appeal has not been made out.

64 I have given careful consideration to the evidence in the three categories set out above, together with the trial Judge’s findings and conclusions with respect to them. No error is revealed in his Honour’s approach to the determination of these issues. Campbell AJ had the advantage of seeing the various witnesses give evidence, and to make assessments concerning their credibility and reliability. His Honour gave thorough consideration to all aspects of the evidence which were capable of being taken into account as evidence of alleged sightings of Jean Keir, however tenuous or slight the particular items of evidence may have been.

65 Having assessed the material for the purpose of this appeal, it is clear that the individual findings with respect to the categories of evidence were open to the trial Judge. I have considered the various categories of evidence cumulatively for the purpose of determining whether the trial Judge’s findings were, in the sense referred to earlier, unreasonable. In my opinion, the cumulative effect of these matters does not have any greater strength than the sum of its individual parts. The findings by the learned trial Judge were reasonable and were supported by the evidence.

66 Ground 1(b) is rejected.

Ground 1(c) and (d) - Verdict Unsafe and Unsatisfactory by Reason of the Trial Judge’s Acceptance of Particular DNA Evidence at the Expense of Other DNA Evidence

67 It is appropriate to consider Ground 1(c) and (d) together.

68 DNA evidence constituted a critical part of the prosecution case against the Appellant. Campbell AJ undertook a detailed examination of evidence concerning DNA extraction and analysis before moving to findings concerning this issue ([695]-[779]).

69 The Appellant submits that Campbell AJ erroneously and wrongfully disregarded and rejected evidence in relation to the DNA of bones that was given by analysts from both Melbourne and Adelaide, to whom the bones were sent, together with blood samples taken from Jean Keir’s parents, Christine Strachan and Gaspar Baan. The Appellant submits further that, in accepting the results of DNA tests which were conducted in the United States of America, the trial Judge erroneously and wrongfully disregarded and rejected the contamination factor concerning that testing and the results obtained.

70 The Appellant submits that evidence of Dr Alan Atchinson, Manager of the Molecular Biology Unit within the Victorian Institute of Forensic Medicine and Dr Angela Van Daal, then a Senior Forensic Scientist at the State Forensic Science Service of South Australia, was such that the trial Judge ought to have concluded that the DNA evidence was extremely degraded and not reliable, and that results of the tests were not of sufficient clarity to permit definite conclusions of identity. The Appellant submits that a test undertaken in the United States of America was rejected on the basis of contamination, but that Campbell AJ had erred with respect to this evidence. The Appellant submits that the totality of the DNA evidence, including the Victorian and South Australian results, cast “more than a substantial doubt over the credibility and reliability of the DNA tests and results from America”.

71 The Appellant submits that the contamination factor raised “more than substantial doubt over the profiles located in the DNA testing in America” (Ground 1(d)). Having advanced a number of factual submissions, the Appellant contended that “contamination quite easily could have occurred and the contamination factor cannot be ruled out or swept aside”. He submitted that Campbell AJ had erred in his conclusions with respect to the DNA evidence in this respect.

72 The Crown acknowledges the significance of the DNA evidence to the verdict and submits that no error had been demonstrated so as to attract the intervention of this Court.

73 To place these grounds in context, it is helpful to refer to the scientific and forensic evidence concerning the seven bones located in the ground at 18 Wilkes Crescent, Tregear.

74 It was the Crown case that seven bones were located by the police in May 1991 during the excavation of the western side of the property at 18 Wilkes Crescent, Tregear.

75 Campbell AJ observed at [574]:

“I have not here traced each bone from Tregear to the doctor, however, I am satisfied beyond reasonable doubt that the seven numbered bones were found by police at 18 Wilkes Cres in May 1991. It has not been argued otherwise.”

76 On 3 May 1991, Dr Thomas Oettle, forensic pathologist, received from police a plastic bag containing fragments of bony material. Dr Oettle considered that one of the fragments was a proximal phalanx of probably the third finger of an adult human hand. He gave evidence that the phalanx appeared to be consistent with that of a person who had died three years earlier. On 17 May 1991, he handed the specimen to Dr Peter Ellis ([580]).

77 Dr Peter Ellis is a forensic pathologist at the Institute of Clinical Pathology and Medical Research at Westmead Hospital. Dr Ellis identified seven bones as being of human origin. Bone No. 1 (which he received from Dr Oettle) was a finger bone from the right hand. Bone No. 2 was the base of the right toe. Bone No. 3 was probably the base of the right thumb. Bone No. 4 was the left kneecap. Bone No. 5 was a bone from the left wrist. Bone No. 6 was a hand bone from the base of the middle finger of the left hand. Bone No. 7 was the base of one of the fingers of the right hand, one of the index, middle ring or little finger ([573]).

78 Dr Denise Donlon is a lecturer in the Department of Anatomy and Histology at the University of Sydney and, in 1997, a Consultant Anthropologist to the NSW Institute of Forensic Medicine. Her PhD in Physical Anthropology involved a study of the variations of the human skeleton. Dr Donlon examined Bone Nos. 1 to 6 on 17 June 1997. She considered that they belonged to one individual aged probably more than 16 years. Campbell AJ said at [584]-[588]:

“Dr Donlon indicated that attempting to calculate height from metacarpal length was not as ideal as the long bones, however, there was a formula which had application only to Caucasoids and was different for males and females.

She had done calculations on bone number 6 and concluded that on the assumption that the bones were those of a female that the stature, using that particular formula would be in the range 155.6 to 168.8 centimetres. If it were a male the range would be 161.8 to 173.5 centimetres. The top of the range for a female is five foot seven and a half inches.

Christine Strachan said that Jean Keir’s height was five foot six inches to five foot seven inches. Fiona Chalmers estimated Jean Keir’s height as ‘five foot six inches or five foot five inches’. The Person of Interest Report completed by Constable Higgins, when Heather Strachan reported Jean Keir records a height no doubt supplied by Heather or perhaps Clifford Strachan, of 165 cms. These figures all fall within the range.

The accused said that Jean Keir was taller than those figures. He said that he had always thought of himself as six foot two inches and he thought Jean Keir was about four inches shorter than he. A prison identification photograph, a copy of which was tendered by Mr Hanley, appears to show the accused at about 187 centimetres which is six foot one inch. To my eye the photographs would suggest that the difference in height is somewhat more than four inches though perhaps not very much.

I think Jean Keir’s height fell within the range or at least very close to it.”

79 Bones Nos. 1 to 6 were sent to Dr Atchinson in Melbourne on 16 December 1991. Bone No. 7 was retained lest some mishap befell the other six ([581]).

80 Dr Atchinson was able to obtain only partial results from the DNA tests he carried out on the bones. He gave evidence to the effect that because he got results that could not be interpreted, he “felt the DNA had degraded to the extent it was not reliable” (T972). Dr Atchinson said that, in 1991, he had used an analysis technique developed in his laboratory which was not a commercial kit, and could analyse only one locus at a time (T967).

81 On 4 August 1992, the bones were delivered to Dr Van Daal in Adelaide. She was unable to obtain a complete DNA sample. Campbell AJ noted that the South Australian State Forensic Science Service “was using a monoplex rather than the later multiplex DNA testing system” ([760]). Dr Van Daal wrote to the officer-in-charge of the investigation, noting that further developments might assist at a later time and giving costings for such work (T1291-1293). No further work was done by Dr Van Daal, and the bones were sent back to Dr Atchinson in Melbourne in July 1994. He conducted further tests, the results of which were indistinct (T970).

82 Campbell AJ observed at [698] that no “continuity” challenge was made concerning the bones:

“It is relevant to note that the ‘continuity’ that is, the identity of the bones removed from Tregear and then examined in the various laboratories including the Armed Forces DNA Identification Laboratory of the United States was not challenged.”

83 On 16 September 1997, the six bones were delivered to the Armed Forces DNA Identification Laboratory in the United States of America. Ms Nancy Ann Scibetta, from that laboratory, gave evidence at the trial by video link (T1178-1219). She said that the primary purpose of her position at the laboratory was to obtain mitochondrial DNA sequences from bones that were believed to be the remains of American soldiers who had died in World War II, the Korean War and the Vietnam War. Ms Scibetta said that her laboratory had developed special expertise in relation to bones or human remains recovered from theatres of war in difficult environments in terms of contamination, degradation and mixed human remains. It was her evidence that her laboratory was one of the best in the world for undertaking such work (T1180).

84 Ms Scibetta obtained a mitochondrial DNA sequence from two of the six bones which she had received, being the right big toe and the left patella fragment. They were the largest bones and came from opposite sides of the body ([704]). She explained the steps taken by her including measures taken to secure the bone samples against contamination (T1186, 1191-2). Having established that the two bones were consistent as having come from the same individual, or at least from an individual with a common maternal ancestor, Ms Scibetta extracted DNA from a blood sample given by Jean Keir’s mother, Christine Strachan, and concluded that the mitochondrial DNA obtained from Mrs Strachan’s blood sample was consistent with the mitochondrial sequence she had obtained from the two bones (T1187-1188). Ms Scibetta explained that an individual’s mitochondrial DNA is inherited from the mother and is identical to the mother’s mitochondrial DNA (T1184).

85 Ms Scibetta agreed that she did not necessarily know where contamination of samples such as bones and blood may have occurred from the time samples are obtained until they arrive in the laboratory. She agreed that the taped seals on the bone packets appeared not to be sticking and that there was dust, which she thought to be bone dust, in the bags (T1195, 1200). She said that she had considered the possibility that the existence of dust could be a potential contaminant. Ms Scibetta said that she was concerned about the possibility of contamination in every skeletal remains’ case (T1201-1202). However, in relation to the sanding process that she conducted as part of the cleaning procedures prior to the extraction of DNA, Ms Scibetta stated that the possibility of contamination during the process was, in her experience and opinion, “not realistic at all” (T1218-1219).

86 Ms Scibetta also extracted DNA from the blood of Jean Keir’s father, Gaspar Baan. DNA from two bones and the blood samples from Christine Strachan and Gaspar Baan were then given to Ms Demris Anita Lee, the technical leader of the Nuclear DNA Section of the Armed Forces DNA Identification Laboratory. Ms Lee gave evidence at the trial by audio-visual link (T1345-1370). She said the Nuclear DNA Section works on death investigations of the United States’ armed forces, and its primary focus is recent death investigations where individuals are deceased from incidents such as aircraft mishaps, explosions, motor vehicle accidents and military attacks such as gunshot wounds or bombings, as well as mass disaster incidents involving commercial airline accidents and remains recovered from the ocean floor (T1347-8).

87 Ms Lee explained the difference between nuclear and mitochondrial DNA (T1348-9). She obtained complete nuclear DNA profiles of the two bones, which she identified as being those of a female (T1351-1353). Campbell AJ was satisfied beyond reasonable doubt that Ms Lee’s procedures for obtaining complete nuclear DNA profiles of the two bones were appropriate and valid ([711]).

88 Ms Lee also obtained DNA profiles for Christine Strachan and Gaspar Baan from the blood samples which they had provided. Ms Lee concluded that, based on the DNA results, the bone samples were consistent with being an offspring of the two blood samples ([713]).

89 Ms Lee was cross-examined concerning the potential for contamination of the bones. She agreed that it was plausible that, if a specimen that had been denuded of any DNA had come into contact with another specimen such as a hand or even scalp or dandruff, the DNA could be transferred to the degraded specimen. She said, however, that in order to obtain the DNA profile from that bone, it would have to actually penetrate the bone because of the clinical procedures that had been undertaken, and that this was not possible from a touch or from dandruff (T1360).

90 After referring to the evidence of Ms Scibetta and Ms Lee, Campbell AJ concluded at [730]:

“I am satisfied beyond reasonable doubt that the DNA extracted by Ms Scibetta was, as she firmly stated, ‘true to the bone’. I am also satisfied beyond reasonable doubt that the results obtained by Ms Scibetta and Ms Lee are valid and true reflections of the bones found at Tregear. I am also satisfied beyond reasonable doubt that the bones are those of a female, that their mitochondrial DNA is consistent with an offspring of Christine Strachan and that their nuclear DNA is consistent with an offspring of Christine Strachan and Gaspar Baan.”

91 His Honour was conscious that these results alone did not establish that the bones were those of Jean Keir ([731]).

92 Although Campbell AJ considered that the procedures adopted in the United States of America and the results obtained “exclude any effect from earlier contamination should it have occurred”, his Honour dealt with the defence submission at trial that contamination may have occurred. In particular, defence counsel submitted that testing done in Adelaide had raised issues which put in doubt the profiles established in the United States of America. Having considered the evidence as to tests which had earlier been conducted by Dr Atchinson and Dr Van Daal, his Honour concluded it was unlikely that the bones had been relevantly contaminated or that the test results excluded Gaspar Baan or Christine Strachan as potential parents ([776]). Following an examination of defence counsel’s submission concerning the possibility of contamination based upon the evidence of Dr Atchinson and Dr Van Daal ([748]-[778]), Campbell AJ expressed the following conclusion at [779]:

“An examination of the events at Adelaide and Melbourne does not lead me to a different conclusion to that drawn as a result of the testing in America.”

93 I agree with the Crown submission that the Appellant’s complaint that the trial Judge ignored relevant DNA evidence, or ignored the possibility of contamination of the DNA evidence upon which his Honour ultimately relied, cannot be sustained in the face of Campbell AJ’s detailed consideration of the expert evidence. Having undertaken that detailed consideration, Campbell AJ accepted the evidence given by Ms Scibetta and Ms Lee. His Honour saw and heard them give evidence and concluded that they were impressive witnesses ([701]).

94 Campbell AJ emphasised that an acceptance of the evidence of Ms Scibetta and Ms Lee did not, of itself, prove that the bones belonged to Jean Keir, with that question depending upon the statistical and other evidence in the case.

95 I have examined the evidence touching upon the question of possible contamination of DNA evidence, together with the analysis and findings of the trial Judge on this question. No error is demonstrated in his Honour’s analysis. The findings made by Campbell AJ were clearly available. In my opinion, the findings are reasonable and are supported by the evidence. The Appellant has not demonstrated any basis for this Court to intervene.

96 I reject Grounds 1(c) and (d).

Ground 1(e) - Verdict Unsafe and Unsatisfactory by Reason of the Trial Judge’s Wrongful Disregard of Photographic Evidence Relating to the Excavation of the Bones and the Concrete Slab

97 By this ground of appeal, the Appellant challenges findings of the trial Judge concerning searches and excavation of the property at 18 Wilkes Crescent, Tregear in April and May 1991, including a critical finding concerning the location of the seven bones on the latter occasion.

When Were the Bones Found

98 The Appellant submits that no bones were discovered during the search undertaken between 13 and 16 April 1991. A second search was conducted from 2 May 1991 with some 30 bones being located, including animal bones and the seven human bones, six of which were later submitted for DNA analysis. The Appellant submits, in effect, that there is something sinister arising from the failure of the police to locate the bones during the April 1991 search, only to come across them at the later search. He challenges the finding of Campbell AJ based upon certain photographic evidence.

99 The Appellant relies upon a photograph which depicts excavation work on the western side of the house (Photograph 22). He submits that this photograph depicts the first, and not the second, search and that the trial Judge erred in relying upon this photograph as part of the finding that the bones were located during the second search in May 1991. The Appellant submits that “clearly there is something dramatically wrong here” and that Campbell AJ ought to have seen that there was a significant problem concerning this issue, but had rejected wrongfully the photographic evidence.

100 In the course of his oral submissions before this Court, the Appellant handed up two groups of photographs. The first group comprised six photographs (Photographs 1, 2, 3, 4, 5 and 22) which were tendered by the Crown at trial and formed part of Exhibit B. The second group comprised four photographs which were labelled for identification during the hearing of the appeal with the letters A, B and C (with C containing two photographs). The Appellant sought to rely upon the photographs marked A, B and C as fresh evidence on the appeal. The Court heard submissions on this issue, to which I will return.

101 The Crown submits that the Appellant is advancing a submission which was abandoned by his counsel at trial, coupled with a further submission rejected by the trial Judge. In any event, the Crown submits that the Appellant’s argument that Photograph 22 (part of Exhibit B at trial) was taken during the first search in April 1991, and not the second search in May 1991, is contrary to the evidence. The second search was conducted from 2 May 1991 following information obtained form a prison informant who gave evidence under the pseudonym Brian Riley.

102 The first search had been conducted between 13 and 16 April 1991, following a fire at 18 Wilkes Crescent, Tregear and the discovery of the Appellant’s second wife, Rosalie Keir, dead inside the house ([541]). The Appellant was taken into custody in relation to the death of his second wife and, whilst housed in a correctional centre, was alleged to have had a conversation with Mr Riley, who provided information to police leading to the issue of a search warrant executed in May 1991.

103 According to the Crown, the Appellant appears to be suggesting, in this ground of appeal, that the seven bones were planted on the site between the first and second searches of the grounds. This was an issue that was raised but abandoned at the trial, with defence counsel suggesting to Mr Riley in cross-examination that he organised for the bones to be placed there (T592). The Crown points to Campbell AJ’s reasons at [605]-[606] where his Honour recorded the abandonment of this argument by defence counsel:

“Addressing first, Mr Crown was obliged to deal with this suggestion and did so very effectively. Mr Hanley in his careful address did not put an argument in support of it. In these circumstances I consider that it would be adding unnecessarily to an already overlong judgment to do more than say that I regard the suggestion as fanciful, and to dismiss it. I do not consider it to be a reasonable possibility that Riley arranged for the bones to be planted at 18 Wilkes Crescent.

Had the argument been pursued it might have been relevant to examine the first search in more detail because, theoretically at least, an argument could be presented that the first search was so thorough that it could be said that these bones were not then there and that they must have been put there subsequently. It is, I think, sufficient to say that I accept the evidence of Inspector Lyons that the only digging done on the western side of the house in April was a hole which he dug in an area to the northern end of the area on the western side of the house about level with the northern alignment of the house and remote from the area in which the bones were found. I also accept Mr McKay’s evidence that the area where he commenced digging was flat and showed no sign of recent digging. It was common ground that the earthmoving machinery used in the April search was too wide to proceed down the western side of the building.”

104 Accordingly, the Crown submits that the Appellant seeks, on appeal, to press an argument which his counsel did not pursue at trial.

105 With respect to the Appellant’s submissions by reference to photographs handed up during the appeal, the Crown observes that, in the course of his oral submissions, the Appellant contended that Photograph 22 was taken during the first search. The Crown submits that this proposition is at odds with both the evidence given at the trial, and the trial Judge’s ultimate findings, on the question of when the bones where found.

106 As the Appellant’s submissions in support of this ground are founded upon his claim that Photograph 22 was taken during the first search in April 1991 and not the second search in May 1991, it is appropriate to refer to evidence adduced at trial on this question and the findings of the trial Judge with respect to it.

107 The Crown called Peter John Seymour, a retired police officer, who in April 1991 was a Detective Senior Constable attached to the Mt Druitt Police Station. He was one of the persons responsible for the investigation into the disappearance of Jean Keir. Mr Seymour gave evidence concerning the dates on which various photographs comprised in Exhibit B were taken. Specifically, it was his evidence that Photograph 22 was taken during the second search between 1 and 8 May 1991 (T23). Mr Seymour said that nothing of relevance had been found in the course of the first search in April 1991 (T20).

108 The Crown called Robert George McKay, a retired police officer, who gave evidence that he attended the premises at 18 Wilkes Crescent, Tregear in the course of the second search (T903). He said that he was the first police officer who thought to go up the western side of the house and start digging up that side, following a conversation he had with a neighbour (T914). Mr McKay said that Photograph 22 depicted the area where he had started to dig, firstly by tapping the ground with the tip of a spade, until he got to an area that was soft (T906, 918). Campbell AJ summarised the evidence of Mr McKay concerning this search with led to the discovery of bones ([549]ff).

109 Mr McKay was cross-examined about Photograph 22 (T913, 916, 921). Campbell AJ expressed the following conclusion with respect to Mr McKay’s evidence at [555]:

“I was impressed by Mr McKay’s evidence. He was not one of the investigating officers and had been called in to help with the manual work of searching. I think he truthfully and accurately reported his part in the work.”

110 Campbell AJ made detailed findings concerning the discovery of the bones ([540]-[607]). His Honour was “satisfied beyond reasonable doubt that the seven numbered bones were found by police at 18 Wilkes Cres in May 1991” and observed that “It has not been argued otherwise” ([574]).

111 Campbell AJ dismissed as “fanciful” a proposition put to Mr Riley in cross-examination but not advanced by defence counsel in closing address, that the bones had been planted between the first and second searches ([605]).

112 In my view, the Crown is correct in characterising the Appellant’s submission as being a resurrection of an argument which had been abandoned by his counsel at trial. In any event, no error has been demonstrated on the part of the trial Judge with respect to this issue. The additional photographs upon which the Appellant sought to rely, as fresh evidence, at the hearing of the appeal do not assist the Appellant’s argument. I am entirely unpersuaded that those photographs provide support for the Appellant’s argument that Photograph 22 depicts the first and not the second search.

The Concrete Slab Issue

113 The second limb relied upon by the Appellant under Ground 1(e) relates to photographic evidence concerning a concrete slab under an oil heater tank at 18 Wilkes Crescent, Tregear prior to the first search in April 1991. The Applicant submits that the photographic evidence demonstrates that this concrete slab was broken up during the first search. He submits that the slab is significant because the location of the slab would have covered most of the hole where the police allege that bones were located. He submits that disturbance of the concrete slab during the first search ought to have raised substantial doubt over the location of the bones. The Appellant submits that the trial Judge erred in his findings concerning this question based upon photographic evidence (Exhibit 19).

114 The Crown observes that the concrete slab argument arose only towards the end of the trial, and that Campbell AJ had dealt with it in his judgment ([608]-[694]). The Appellant alleged in his own evidence that the police had, in the course of the first search in April 1991, removed a concrete slab which had supported an oil heater tank at the side of the house and which had been over the area where the bones were located. The Appellant said that the slab had been laid some time between 1976 and 1978 by Jean Keir’s grandfather. This was the first time the Appellant had mentioned the existence of the slab, no reference having been made to it at the two previous trials. As will be seen, Campbell AJ considered the late raising of the issue as being significant.

115 The Crown called evidence in reply, including evidence from police who took part in the search and who never saw any such slab on the western side of the house. Campbell AJ reviewed the evidence in detail and concluded that it was “unlikely that there was a slab of concrete of the type described underneath the heater tank at the time of the first search in April 1991” ([683]). Campbell AJ observed at [686]-[687]:

“The time at which this issue was raised is I think significant. The accused conceded that he paid close attention to the issues and the evidence. I find it difficult to think he would have forgotten about the slab even though there are many distractions for a person in his position. Commenting only on the hearing before me, because it is the one which I have seen, its preparation has been extremely thorough and yet this issue did not emerge until a very late stage indeed in the trial.

What happened to the support structure does not appear. But the state in which the premises were generally left after the searches makes it clear enough that nobody would have tidied it away. None of the police officers who have given evidence saw it about, nor does it appear anywhere in the photographs or videos which have been exhibited. Mr De Beus gave evidence that his backhoe could not pass down the side of the house on the west. Neither he nor Mr Moynihan who attended on 6, 7 and 8 May 1991 with a narrower backhoe gave evidence of breaking up a slab of the type spoken of.”

116 Campbell AJ noted that the Crown had raised the possibility that the Appellant had formed the slab over the body of Jean Keir and then removed it at the time, on the Crown case, when he took her remains away leaving the seven bones behind. His Honour stated that there was “no adequate basis for making a finding to this effect” ([689]).

117 The conclusions of Campbell AJ at [691]-[694] involve findings adverse to the Appellant on the existence of the slab:

“Mr Hanley made no submission, apart from his general proposition, as to where the presence of a slab would lead.

I accept the evidence of Mr McKay that the ground he dug in did not have the appearance of having been recently disturbed.

If the earlier searchers had removed a slab, which I should make clear I do not think occurred, it would not have altered the position that there were bones in the ground.

Mr Hanley did not submit, one would think for good reason, that the bones found had been in situ from before 1976 or 1978 when the accused said the slab was put in. This would be very unlikely on the medical evidence.”

118 It is apparent that the trial Judge found that a concrete slab was not present at the time of the second search in May 1991. This finding was made having regard to the totality of the evidence, including the evidence of police officers and others which touched upon this issue. Campbell AJ regarded it as significant that the Appellant was raising this issue, for the first time, during his evidence near the end of the third trial. I detect no error in the findings of the trial Judge concerning this issue. I have considered the evidence touching upon this issue. His Honour’s findings were reasonable and were supported by the evidence.

119 Having regard to the conclusions expressed with respect to the excavation and concrete slab issues, I reject Ground 1(e).

Cumulative Effect of Matters Raised by Ground 1

120 I have considered separately each of the matters relied upon by the Appellant in support of Ground 1(a)-(e). In each case, I have concluded that no error has been demonstrated in the findings and conclusions of the trial Judge. In each case, the findings were reasonable and supported by the evidence.

121 I have considered whether the cumulative effect of the matters relied upon by the Appellant in support of Ground 1 demonstrates a basis for appellate intervention under s.6(1) Criminal Appeal Act 1912. Having undertaken that task, I do not consider that the cumulative effect of these arguments demonstrates that the verdict of guilty was unreasonable or was not supported by the evidence.

122 Accordingly, Ground 1 is rejected.

Ground 2 - The

“Prosecutor’s Fallacy”

Ground

123 The Appellant submits that Campbell AJ fell into error in his analysis of, and reliance upon, the DNA evidence giving rise to the “prosecutor’s fallacy”, and thus repeated the error which led to the quashing of the conviction at the first trial: R v Keir (2002) 127 A Crim R 198. The Appellant acknowledges that Campbell AJ addressed the “prosecutor’s fallacy”, but maintains, nevertheless, that his Honour fell into the same error. The written submissions of the Appellant in support of this ground seek also to challenge the factual findings of the trial Judge concerning the DNA evidence rather than challenge, with any precision, particular findings of his Honour which are said to be based upon the “prosecutor’s fallacy”.

124 The Crown submits that both the Crown and Campbell AJ were alive to the “prosecutor’s fallacy” at the trial, and that no error of this type has occurred. Further, the Crown submits that the findings of the trial Judge concerning the DNA evidence were well supported by the evidence adduced at trial.

125 In R v Keir (2002) 127 A Crim R 198 at 202 [22], the “prosecutor’s fallacy” was explained in the following way:

“The prosecutor's fallacy has most recently been considered in this Court in

R v G K (2001) 125 A Crim R 315 and R v Galli

(2001) NSWCCA 504. The first of these cases includes the following from

Doheny and Adams

(1997) 1 Cr App R369 at 372-373 -

‘ It is easy, if one eschews rigorous analysis, to draw the following conclusion:

(1) Only one person in a million will have a DNA profile which matches that of the crime stain.

(2) The defendant has a DNA profile which matches the crime stain.

(3) Ergo there is a million to one probability that the defendant left the crime stain and is guilty of the crime.

...

Taking our example, the prosecutor's fallacy can be simply demonstrated. If one person in a million has a DNA profile which matches that obtained from the crime stain, then the suspect will be 1 of perhaps 26 men in the United Kingdom who share that characteristic. If no fact is known about the defendant, other than that he was in the United Kingdom at the time of the crime the DNA evidence tells us no more than that there is a statistical probability that he was the criminal of 1 in 26.

The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi at the other end of England at the time of the crime, it will appear highly improbable that he can have been responsible for the crime, despite his matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes more significant. The possibility that two of the only 26 men in the United Kingdom with the matching DNA should have been in the vicinity of the crime will seem almost incredible and a comparatively slight nexus between the defendant and the crime, independent of the DNA, is likely to suffice to present an overall picture to the jury that satisfies them of the defendant's guilt’."

126 The Court of Criminal Appeal identified at 202 [20]-[21] the manner in which the “prosecutor’s fallacy” had arisen at the first trial:

“The Crown had fallen into a version of what has come to be known as the prosecutor's fallacy. It was incorrect to move from (i) the probability of the bones being those of a child of Mrs Strachan and Mr Baan rather than of a random mating in the Australian population to (ii) the same probability that the bones were those of Mrs Keir.

In the appeal the Crown accepted that there was the prosecutor's fallacy, but submitted that a redirection later given rectified the error. It is therefore necessary to appreciate what the error was.”

127 The Crown submits that Campbell AJ was conscious of the “prosecutor’s fallacy” and the need to avoid it. The Crown submits that the manner in which his Honour considered the DNA evidence, and the conclusions which his Honour drew from that evidence, do not demonstrate an error of the nature which led the Court of Criminal Appeal to quash the conviction at the first trial.

128 As noted earlier, Campbell AJ accepted the results of the DNA testing conducted in the United States of America to the effect that the bones located at 18 Wilkes Crescent, Tregear were the bones of a female and that the mitochondrial and nuclear DNA samples taken from those bones were consistent with the DNA obtained from blood samples provided by each of Jean Keir’s parents. However, as Campbell AJ observed, that evidence of itself did not establish that the bones were those of Jean Keir. In order to determine what, if anything, the results of the DNA testing contributed to the establishment of the identity of the bones, it was necessary to look at both the statistical evidence and other evidence in the case ([731]).

129 The statistical evidence was given by Mr Robert Goetz. Campbell AJ observed at [732]:

“

Mr Goetz is a very experienced forensic biologist employed by the Division of Analytical Laboratories in Lidcombe. There is no issue as to his qualifications to express opinions on questions relating to DNA including the use of data bases and statistical principles to develop, amongst other things, likelihood ratios.”

130 Campbell AJ outlined the steps taken by Mr Goetz with respect to the nuclear DNA profiles ([733]-[735]):

“Provided with the nuclear DNA profiles obtained by Ms Lee of the two bones examined and of Gaspar Baan and Christine Strachan Mr Goetz prepared a table which posed the following question:

How many times more likely to find the profile from the bone if it originated from a child of Baan and Strachan than from a child of an unknown couple in the population. The calculation also includes a correct

for sample size (95 percent confidence limits).

The table then provided likelihood ratios for a considerable number of different populations with three different levels of statistical correction.

Referring to figures taken from New South Wales and Queensland data bases Mr Goetz gave the following evidence:

Q — In other words, in effect using the heading on page 1 are you saying that it is 447,000 times more likely to find the profile that Demris Lee came up with from the bone if it originated from a child of Baan and Strachan than from a child of an unknown couple in the population.

A — That’s correct’.”

131 The Crown submits, correctly, that the formulation of the question in this manner by the Crown prosecutor was framed deliberately to avoid the “prosecutor’s fallacy”. After reference to the evidence of Mr Goetz, Campbell AJ concluded at [741]-[742]:

“I consider that the evidence established that it is 400,000 times more likely that the bones tested in America originated from a child of Baan and Strachan than from a child of an unknown couple in the population.

I should note that it was established that Gaspar Baan and Christine Strachan were the parents of Jean Keir and that they did not jointly have another child.”

132 Thereafter, Campbell AJ gave himself a warning to avoid the “prosecutor’s fallacy” at [743]:

“At this point I should give myself a warning to avoid the ‘prosecutor’s fallacy’ (See

Doheny and Adams

[1997] 1 Cr App Rep 369 per Phillips LJ at 372,

R v Keir

[2002] NSWCCA 30;

[2001] NSWCCA 413.) That fallacy arises from a course of reasoning that concludes from the likelihood discussed above that there is a 400,000 to one chance that the bones are those of Jean Keir as distinct from any other person.”

133 Both the Crown and defence counsel at the trial before Campbell AJ submitted that his Honour ought approach the matter in accordance with the summing up of Kirby J at the second trial. Campbell AJ directed himself in accordance with that summing up “as amended to delete irrelevant issues in the finding as to the likelihood ratio which I have made” ([744]).

134 The trial Judge said at [746]-[747]:

“Kirby J then went on to the use to be made of the determined ratio in combination with the other evidence. I shall come to that later. I should note that Kirby J later pointed out to the jury that the fact that the bones were of a female and an adult, as opposed to a child, would reduce the broad figures, that is, the number of such individuals. There may be other factors that should reduce that figure, however, as the trial has been conducted I do not consider that I should have regard to them.

I should take account of the further warning expressed in the summing up as follows:

When you approach this issue you should be aware that the use of statistics throws up what looks like a very precise figure; four hundred thousand to one; … depending upon which evidence you accept. However, the figures are based upon databases and generalisation and there can never be an exactitude in this area.

The task you have is of combining the likelihood ratio with other evidence, it is one that can never be reduced to a mathematical computation’.”

135 The Crown submits that the evidence of Mr Goetz, and the trial Judge’s ultimate formulation of the effect of the DNA evidence, avoided the “prosecutor’s fallacy”. His Honour concluded that it was 400,000 times more likely that the bones tested originated from a child of Mr Baan and Mrs Strachan than from a child of an unknown couple. That was the correct conclusion to draw from that evidence. It was only upon consideration of the other evidence in the case, in accordance with the reasoning process advocated in R v Doheny (1997) 1 Cr App R 369, that his Honour concluded that the bones were those of Jean Keir. The trial Judge did not commit the error which occurred at the first trial.

136 An examination of the approach taken by Campbell AJ to this issue demonstrates clearly that neither the Crown nor his Honour have fallen into the “prosecutor’s fallacy”. The approach of the trial Judge to this issue accords with that required by the judgment of this Court in R v Keir.

137 To the extent that the Appellant’s submission under this ground of appeal seeks to challenge his Honour’s reasoning process and conclusions with respect to the DNA evidence generally, that submission ought be rejected. Campbell AJ examined the evidence and made careful findings with respect to the process of DNA extraction and analysis both in Australia and in the United States of America. Having accepted the evidence of Ms Scibetta and Ms Lee, his Honour considered and accepted the evidence of Mr Goetz with respect to the statistical calculations flowing from those conclusions. His Honour avoided the “prosecutor’s fallacy”.

138 Importantly, Campbell AJ was conscious that the DNA evidence and statistical evidence constituted one part only of the evidence in the trial. In R v Doheny, it was stressed that the significance of DNA evidence will depend critically upon what else is known about the person to whom the DNA evidence is alleged to relate. In the present case, there was an accumulation of evidence, including the DNA evidence, which provided powerful support for a conclusion that the bones belonged to Jean Keir.

139 Ground 2 ought be rejected.

Ground 3 - The Trial Judge Significantly Erred in his Conclusion (a) that Jean Keir is Dead and (b) that her Death was Caused by an Act of the Appellant

140 In support of this ground of appeal, the Appellant submits that the evidence of the alleged sightings of Jean Keir after 9 February 1988 was “more than sufficient to have raised more than a reasonable doubt” in the manner contended by the Appellant in his submissions in support of Ground 1(a) and (b).

141 The Crown submits that no basis for appellate intervention is demonstrated by the Appellant for the reasons advanced by the Crown in support of these earlier grounds.

142 Ground 3(a), in effect, repeats the submissions advanced in support of Ground 1 which has been resolved adversely to the Appellant. I express the same conclusion with respect to the present ground.

143 In support of Ground 3(b), the Appellant submits that Campbell AJ erred in his conclusion that Jean Keir’s death was caused by an act of the Appellant. He submits that there is no positive identification of the alleged victim nor any body of the alleged victim. He submits that no time of the alleged death, or any cause of the alleged death, has been established. The Appellant points to the absence of forensic evidence and physical evidence demonstrating that Jean Keir was murdered, and he contends that nothing can be attributed to him in this respect. Accordingly, the Appellant submits that Campbell AJ’s conclusions are based on “speculation, suspicion and grave suspicion instead of on proven facts, facts proven beyond reasonable doubt”.

144 The Crown points to the following findings of Campbell AJ leading to the conclusion that the Appellant had murdered Jean Keir:

(a) there had been a period of “considerable happiness” following the marriage of the Appellant and Jean Keir; however, from about 1985 onwards, the relationship was deteriorating and continued to do so ([1018]);

(b) while the Appellant’s long hours at work, and the degree of involvement of Jean Keir’s mother in the marriage, were causes of dissatisfaction for Jean Keir ([1021]), the Appellant’s “jealousy, suspicion and control were also causes of dissatisfaction” ([1022]);

(c) by the end of 1987, the relationship between Jean Keir and the Appellant was, to use his words, “stretched” ([1089(a)]);

(d) Jean Keir had an association with Mr Carl Neiding, which had involved sexual intercourse of which the Appellant was aware ([1089(b)]);

(e) in February 1988, Jean Keir had gone to Culburra to, in the Appellant’s words, “get herself sorted out” ([1089(d)]);

(f) on 9 February 1988, the Appellant went to Culburra to bring his wife home to Wilkes Crescent, Tregear; in an interview with a journalist, the Appellant said he had done so because “well, if she had problems to sort out, she couldn’t sort them out miles away, there’ve um got to be sorted out at home” ([1089(e)]);

(g) the trial Judge found that Jean Keir did not want to come home from Culburra, but that the Appellant sought to bring her home against her will and used a “moderate degree of force to that end” ([1090]);

(h) on the way home, Jean Keir fled from the Appellant and went to the home of Mr Carl Neiding, without telling the Appellant, and leaving it to him to discover that she had gone ([1091]):

(i) the Appellant contacted Mr Neiding, and asked him to bring his wife home, a direction with which Mr Neiding complied ([1094]);

(j) Jean Keir was met by the Appellant at 18 Wilkes Crescent, Tregear and went into the house; Campbell AJ found that, except for the alleged sightings and the Appellant’s own evidence, “there is no basis for concluding that Jean Keir was ever seen or heard from again by her family, her friends or the services of the Government” ([1095]);

145 Campbell AJ then made the following findings at [1099]-[1100]:

“It is my view that the only reasonable inference to be drawn from these circumstances, taken together with the other findings I have made, is that the bones are those of Jean Keir, that she is dead and that her death was caused by an act of the accused on or about 9 February 1988. I am satisfied that the Crown has proved beyond reasonable doubt that Jean Angela Keir is dead and that her death was caused by an act of the accused on or about 9 February 1988.

It is also my view that the only reasonable inference to be drawn from these circumstances, taken together with the other findings I have made, is that at the time of carrying out that act, the accused intended to kill Jean Keir or cause her grievous bodily harm. I am satisfied that the Crown has proved beyond reasonable doubt that at the time of carrying out that act, the accused intended to kill Jean Angela Keir or cause her grievous bodily harm.”

146 The Crown submits that it is clear from the process of reasoning set out above that the conclusions of Campbell AJ that Jean Keir is dead, and that her death was caused by an act of the Appellant, were clearly open on the evidence adduced at trial. The fact that no body was ever located does not, the Crown submits, detract from the force of the circumstantial evidence led in the case against the Appellant. The force of the evidence was further strengthened by the discovery of the seven bones buried in the grounds of the home shared by the Appellant and Jean Keir, and the DNA evidence obtained with respect to those bones. His Honour’s conclusion that the only reasonable inference to be drawn in this case was that Jean Keir was dead and that her death was caused by an act of the Appellant, carried out with the requisite intent for murder, was, on all of the evidence taken together, clearly open to the trial Judge.

147 I am satisfied that the findings of the trial Judge, challenged in this ground of appeal, were open on the evidence. The findings were reasonable and supported by the evidence and no basis has been demonstrated by the Appellant for intervention by this Court under s.6(1) Criminal Appeal Act 1912.

148 I reject Ground 3.

Ground 4 - The Trial Judge Erroneously and Wrongfully Allowed Suspicion, Grave Suspicion and Speculation to Cloud his Judgment in his Fact-Finding Mission Throughout the Trial and in his Judgment, which Dramatically Affected his Formulation in Reasoning to his Conclusion, Resulting in a Miscarriage of Justice

149 This ground of appeal overlaps substantially, if not entirely, with Ground 3. The Appellant submits that, despite giving himself appropriate warnings, Campbell AJ did not look at the evidence or approach his task dispassionately and impartially and without permitting himself to be influenced by prejudice or by sympathy. The Appellant submits that this must flow from his Honour’s findings and conclusions which, so the Appellant contends, were made despite the absence of evidence to support such findings and conclusions.

150 The Appellant repeats submissions made in support of other grounds that there was sightings’ evidence which ought to have led to an acquittal. So, the Appellant submits, the trial Judge was moved by “suspicion, grave suspicion and speculation” in reaching a verdict of guilty, thereby resulting in a miscarriage of justice.

151 The Crown submits that these arguments add nothing to those advanced in support of earlier grounds, apart from an unsupported and unsupportable allegation that the trial Judge failed to approach his task dispassionately and impartially and without influence by prejudice and sympathy. The Crown submits that the factual matters advanced by the Appellant in support of this ground ought be rejected for reasons previously expressed. The Crown submits that the lengthy and careful reasons of the trial Judge conformed with the requirement of s.133 Criminal Procedure Act 1986.

152 It is apparent from the judgment of Campbell AJ, a most experienced trial Judge, that his Honour had to the forefront of his considerations the onus and standard of proof and the requirement for the Crown to prove the Appellant’s guilt of murder by reliance upon probative evidence ([12]). His Honour gave himself appropriate directions concerning the elements of the crime of murder ([17]-[19]).

153 For reasons given with respect to earlier grounds of appeal, the Appellant has not demonstrated a basis for appellate intervention by this Court with respect to the factual matters relied on by him on this appeal. Insofar as the Appellant contends that the verdict of the trial Judge was based upon suspicion, and not evidence, I reject the submission. His Honour outlined in detail the evidentiary foundation leading to the conclusion that the Appellant was guilty of the murder of Jean Keir. The Crown case was a circumstantial one. There was ample foundation for his Honour’s conclusions arising from the evidence adduced at trial.

154 I reject Ground 4.

Ground 5 - The Trial Judge Significantly Erred in Departing from the Firm Ground of

“Proof Beyond Reasonable Doubt”

Which Dramatically Affected his Formulation in Reasoning to his Conclusions and Resulted in a Miscarriage of Justice

155 Under this ground of appeal, the Appellant draws together the arguments advanced in support of earlier grounds.

156 At the commencement of his reasons, Campbell AJ repeated the general directions given by Kirby J at the second trial, which both the Crown and defence counsel at this trial agreed were still applicable. Campbell AJ reiterated at [12] an orthodox direction given by Kirby J to the following effect:

“The second fundamental principle is that everything which the Crown is required to prove must be proved to your satisfaction beyond reasonable doubt. In respect of every offence, the law defines the particular matters which the Crown must prove before an accused person can be found guilty of that offence. These are usually referred to as the elements of the offence, the charge. … A person may not be convicted unless each of the separate elements of the charge is proved beyond reasonable doubt.

…

Any matter which must be established, as one of the elements of the charge, is not proved unless it is established to that very high standard, that is, beyond reasonable doubt. Suspicion, even grave suspicion, is not enough. The Crown, to succeed against Mr Keir, must establish his guilt beyond reasonable doubt.”

157 The Crown submits that the trial Judge directed himself in this way and acted in accordance with these directions. Aside from the reference to a failure to find the elements of the offence of murder proved beyond reasonable doubt, the Crown submits that this final ground of appeal raises the same issues as were raised in relation to Ground 1.

158 The Crown submits that, as with Ground 1, Ground 5 ought be rejected.

159 In reality, Ground 5 repeats earlier submissions in support of an argument that the verdict of guilty was unreasonable and cannot be supported, having regard to the evidence. In effect, the Appellant contends that he has demonstrated a foundation for his appeal to be allowed and the conviction quashed under s.6(1) Criminal Appeal Act 1912.

160 I have made my own independent assessment of the evidence adduced at trial and of the reasons of the trial Judge leading to his verdict that the Appellant was guilty of the murder of Jean Keir. The detailed reasons of the trial Judge do not involve any error of fact or law. The Appellant’s challenge is to the ultimate finding of guilt which, the Appellant contends, is not reasonable and is not supported by the evidence.

161 The fact of Jean Keir’s death may be proved, as any other fact, by reliance upon circumstantial evidence: Peacock v The King (1911) 13 CLR 619 at 630. In this case, as with most, the Appellant’s intention was to be proved by inference: Shepherd v The Queen (1990) 170 CLR 573 at 580. In R v Cable (1947) 47 SR (NSW) 183 at 184, Jordan CJ observed that, in many cases, circumstantial evidence is stronger than direct evidence, the latter being subject to the fallibility of human observation and recollection. As Kirby J observed in De Gruchy v The Queen [2002] 211 CLR 85 at 97 [48], circumstantial evidence calls upon processes of reasoning that involve the drawing of inferences from a jigsaw of established facts, with circumstantial evidence capable of being stronger than direct evidence.

162 In my opinion, the Crown case against the Appellant was strong. It was based on several pieces of evidence which left it clearly open to the trial Judge to be satisfied beyond reasonable doubt that Jean Keir was dead, and that she had died as a result of an act of the Appellant carried out with the intention to kill or cause grievous bodily harm. The evidence of alleged sightings of Jean Keir relied upon by the Appellant was, as the trial Judge concluded, tenuous and flawed and not such as to suggest a reasonable possibility that Jean Keir was still alive.

163 This is not a case where the remains of Jean Keir were never found. The forensic and scientific evidence demonstrated that her remains had been buried in the grounds of the matrimonial home of the Appellant and Jean Keir some three years prior to their discovery in May 1991.

164 I have regard to the fact that the trial Judge observed the witnesses giving evidence, and has taken those observations into account in his findings with respect to the credibility and reliability of witnesses in reaching his verdict. This Court does not have that advantage. An examination of the record of the trial, however, demonstrates a clear foundation for his Honour to make the findings and reach the conclusions contained in the judgment.

165 The Crown presented a circumstantial case against the Appellant. The DNA evidence was most significant. It was open to his Honour to conclude that the bones buried in the grounds of the matrimonial home at 18 Wilkes Crescent, Tregear were those of Jean Keir. The totality of the circumstances surrounding the disappearance of Jean Keir, and the burial of her remains in the grounds of the matrimonial home, provided a powerful foundation for the conclusion that she had died at the hands of the Appellant who had then buried her, initially at least, in those grounds.

166 It was open to the trial Judge to conclude, on all the evidence, that the only reasonable inference was that Jean Keir died as a result of an act of the Appellant, and that the Appellant acted at the time with the intention of killing her or causing her grievous bodily harm. Campbell AJ sentenced the Appellant upon the basis that he acted with intent to cause grievous bodily harm: R v Keir [2004] NSWSC 1194 at [27].

167 I am not persuaded that there is a significant possibility that an innocent person has been convicted in the present case. The collective ground of appeal does not, in my opinion, possess any greater strength than the sum of its individual parts.

168 This Court is a court of error. It does not proceed by way of rehearing in a way that permits it to substitute its own findings of fact for those of the trial Judge. Having exercised the appellate function under s.6(1) Criminal Appeal Act 1912, I am satisfied that the verdict of guilty of murder was reasonable and supported by the evidence and that no miscarriage of justice has resulted.

169 I propose that the appeal against conviction be dismissed.

170 LATHAM J: I agree with Johnson J.

**********

CITATION:	Keir v R [2007] NSWCCA 149
HEARING DATE(S):	15 September 2006
JUDGMENT DATE:	6 June 2007
JUDGMENT OF:	Hunt AJA at 1; Johnson J at 2; Latham J at 170
DECISION:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal against conviction - trial by judge alone - conviction for murder - circumstantial case - wife of appellant disappeared in 1988 - human bones discovered buried in grounds of the matrimonial home in 1991 - Crown case that bones were those of appellant's wife - DNA evidence - appellant contends that verdict was unreasonable and could not be supported by the evidence - alleged sightings of appellant's wife after her disappearance - alleged deficiencies in DNA evidence - claim that Crown and trial judge fell into "prosecutor's fallacy" - claim that trial judge fell into factual error in findings concerning excavation of site where human bones discovered - claim that not open to trial judge to find that appellant's wife was dead and had died as result of act of appellant committed with intent to kill or to cause grievous bodily harm - held that Crown presented strong circumstantial case - no error demonstrated in detailed reasons of trial judge - verdict was reasonable and supported by the evidence - no miscarriage of justice has occurred - appeal dismissed
LEGISLATION CITED:	Criminal Procedure Act 1986 Criminal Appeal Act 1912
CASES CITED:	R v Keir (2002) 127 A Crim R 198 R v K (2003) 59 NSWLR 431 R v Keir [2004] NSWSC 964 R v Keir [2004] NSWSC 1194 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
PARTIES:	Thomas Andrew Keir (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/1263
COUNSEL:	Thomas Andrew Keir (in person) Mr M Sexton SC/Ms N Noman (Respondent)
SOLICITORS:	--- (Appellant) Mr S Kavanagh - Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70012/02
LOWER COURT JUDICIAL OFFICER:	MW Campbell AJ
LOWER COURT DATE OF DECISION:	22 October 2004
LOWER COURT MEDIUM NEUTRAL CITATION:	R v Keir [2004] NSWSC 964