Keir v The Queen

[2009] HCATrans 145

[2009] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S31 of 2008

B e t w e e n -

THOMAS ANDREW KEIR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 JUNE 2009, AT 3.25 PM

Copyright in the High Court of Australia

MR B.M. NEILD:   I appear for the applicant, your Honours.  (instructed by the applicant)

MS D.M.L. WOODBURNE, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

HEYDON J:   Yes, Mr Neild.

MR NEILD:   Your Honour, in support of his application for special leave, the applicant relies upon four grounds of appeal from the decision of the New South Wales Court of Criminal Appeal dismissing his appeal against conviction from his Honour Acting Judge Campbell, sitting judge alone in respect of the sole charge that he did murder Jean Keir.  The Court of Criminal Appeal, its reasons were effectively comprised of the reasons of his Honour Justice Johnson, with whom the other members of the Court agreed.  As I say, it is submitted that there are four errors into which his Honour Justice Johnson fell in his reasons for decision and I will touch upon each of those in turn and attempt to draw them together to the degree to which they are interrelated.

The first error identified is the failure on the part of his Honour to independently assess the whole of the evidence that was before the trial judge in discharging his functions under section 6 of the Criminal Appeal Act in determining the applicant’s grant of appeal below that the verdict of the trial judge was effectively unsafe and unsatisfactory.  That was, broadly speaking, the way in which the applicant, who was unrepresented, put his case below.  It was not put in exactly those terms in relation to ground 5 which is where his Honour Justice Johnson, at the invitation of the applicant, drew together and considered as a whole all of the applicant’s grounds of appeal below in considering whether or not it was open to the trial judge to find that there was no inference open, other than the guilt of the applicant at trial.

His Honour, in my respectful submission, correctly identified his task in assessing that ground of appeal as undertaking an independent assessment of all of the evidence at trial with a view to establishing whether in fact that was the only reasonable inference that was open to the trial judge following well established authority, in terms of the functions of a court of criminal appeal.  One turns then to consider whether or not it is the case that his Honour did discharge his functions in the required manner by undertaking that independent assessment of the whole of the evidence at trial. 

BELL J:   At application book 366, paragraph 160, his Honour recorded that he had made his own independent assessment of the evidence adduced at trial.

MR NEILD:   He does, your Honour, and further he goes on at paragraph164 of application book page 367 in the last sentence of that paragraph:

An examination of the record of the trial, however, demonstrates a clear foundation for his Honour to make the findings ‑

found.  However, the applicant’s simple and straightforward point, your Honour, is that saying it does not necessarily make it so, and for his Honour to simply assert in that fashion that he had undertaken an independent assessment of all of the evidence and that, as he reported – or stated in paragraph 162 for instance that in his 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 –

his Honour was really doing no more than that which the Court of Criminal Appeal was criticised for doing in the case of Chidiac in referring there to the abundance of evidence that was available to the jury.  It is respectfully submitted that it requires more than simply attempting to comfort a party that such an exercise has been undertaken.  There must be some indication in the judgment by reference to the evidence that it has been tested and considered by the Court of Criminal Appeal in exercising its review function.

When one comes to look at the evidence that has been so assessed by his Honour Justice Johnson in this case, certainly it goes no further in this critical section of his judgment in dealing with the circumstantial nature of the Crown case than paragraph 165, where his Honour points to both the DNA evidence and, to use his Honour’s words:

The totality of the circumstances surrounding the disappearance of Jean Keir ‑ ‑ ‑

BELL J:   That is in a context of the whole of his Honour’s judgment, which refers to a number of features of the evidence that was before the trial judge.  The trial judge gave very lengthy reasons for his conclusion, comprising some 1,112 paragraphs.  You do not suggest Mr Neild, that the Court of Criminal Appeal, in conducting the independent review that Justice Johnson recorded he had made, needed to recite the evidence at anything like that length, I take it?

MR NEILD:   By no means, your Honour.

BELL J:   What do you identify as the basis for a contention that the court failed to carry out the assessment that it was required to?

MR NEILD:   There are two matters, your Honour.  The first is the lack of reference in this critical passage of the judgment where his Honour deals with the circumstantial nature of the case.  Two, the factual matters that his Honour does address admittedly, and as is conceded by the applicant in his summary of argument and as is pointed out by the respondent, in dealing with ground 1 of the applicant’s submissions below where he deals with, for instance, the missing person’s report, the sightings, the DNA evidence and the concrete slab issue.

But his Honour does so in the context of asking and answering the question, was it open and reasonable for the trial judge to make the findings he did ‑ the factual findings he did, in relation to those topics of evidence.  He does not in this passage of his judgment dealing with the circumstantial nature of the case against the applicant come back to those pieces of evidence and draw them into his consideration of the circumstantial case.  As such, from the face of a judgment, it is difficult to see that his Honour has done so. 

The second point I would make in response to your Honour’s question is that even if one accepts that by conducting an assessment of those topics of evidence in relation to ground 1 in relation to whether it was open to the trial judge to make those factual findings, his Honour has, nevertheless, failed to undertake an assessment of several other critical topics of evidence including, for instance, the relationship evidence which runs to over 400 paragraphs worth of the trial judge’s judgment.

He similarly fails, in anything other than the most brief of terms, to deal with the possibility that the missing person’s report may be exculpatory.  Perhaps most critically, he fails to undertake any real assessment of the evidence that was given at trial by the applicant himself.  He touches upon the evidence given by the applicant, a couple of points in relation to ground 1, in relation to the sightings and the concrete slab, but nowhere does he devote himself to a consideration of the evidence given by the applicant, which of course was to deny his guilt.

Similarly, there were a number of records of interview and an interview that was conducted by a television journalist and no mention is made of his Honour having read or viewed those pieces of evidence, which might be thought to be a critical component that one would expect the Court of Criminal Appeal to grapple with when coming to terms with a review of the whole of the evidence as it is required to do.  That is the complaint that is made in respect of the first ground of appeal, your Honours, and that effectively flows on into the second ground, which is the failure that is said to have been perpetrated by Justice Johnson to consider the whole of the evidence when considering the circumstantial case of the Crown. 

HEYDON J:   I do not myself see much difference between ground 1 and ground 2.  One is a failure independently to assess the whole of the evidence and the other was a failure to take into consideration the whole of the evidence.  Is there any difference?

MR NEILD:   I suppose only, your Honour, if your Honours were satisfied that his Honour had independently assessed all of the evidence throughout the course of his judgment, although not necessarily for the purpose of determining whether or not the only reasonable inference that was open on the circumstantial case was the guilt of the applicant.  When one looks to the circumstantial reasoning adopted by his Honour Justice Johnson in the Court of Criminal Appeal, it is submitted that he has fallen into the error identified by this Court in the case of Hillier where the judgment of the Court of Criminal Appeal of the Supreme Court of the Australian Capital Territory was overturned by this Court on appeal, on the basis that the Court had there isolated the exculpatory material, and on the basis of that material alone had found that there was a reasonable inference that was consistent with innocence.

It is submitted that his Honour has fallen into the same error here, but effectively in reverse, in that when it comes to a consideration of the circumstantial case, his Honour has devoted his focus to those matters that go towards proving the applicant’s guilt, as opposed to matters upon which the applicant would seek to rely as exculpatory, such as for instance the concrete slab issue or the DNA contamination, or indeed the evidence of the applicant himself.  They are interrelated but a slightly different focus, as between the two, your Honours. 

BELL J:   What different point does ground 3 take up when it complains of error in the manner of reasoning that it had been open to the trial judge to find that the only inference was that of guilt?

MR NEILD:   This again ties into ground 2 ,your Honour, in the sense that it is effectively a complaint that in relation to the DNA evidence in particular, his Honour addressed that evidence in isolation from the remainder of the circumstantial case, and in so doing fell into error on that discrete point in the manner set out by this Court in Hillier.  The passage that is particularly complained of in respect of the DNA evidence, your Honour, is at paragraph 163 and paragraph 165 of his Honour’s reasons.  At paragraph 163 at application book page 367 his Honour states:

The forensic and scientific evidence demonstrated that [Mrs Keir’s] remains had been buried in the grounds of the matrimonial home -

The submission on the part of the applicant is that the forensic and scientific evidence which presumably must be the DNA evidence, given that there was really no other evidence that would fall within that description at trial, does not so demonstrate.

BELL J:   In a circumstantial case one looks to the totality of the circumstances.  The finding of bones with a profile consistent with being those of the deceased in the Royal National Park would say one thing.  Found in or under the home occupied by the applicant and the deceased at an earlier time says something else.  That is all his Honour is saying at 163 and 165.  It is the significance of the DNA evidence, when viewed with the other evidence that permits the drawing of the inference beyond reasonable doubt.  What is wrong with that?

MR NEILD:   It is only by taking the matters in totality that one can assess the ultimate question in this case, which is whether or not the bones at the house were those of Mrs Keir.  What his Honour has done here, in my respectful submission, is to find on the basis of the DNA evidence alone that the bones that were found were those of Mrs Keir and then to combine that, as he does in paragraph 165 with the totality of the circumstances of her disappearance to find that there was “a powerful foundation”, to use his Honour’s words, for the trial judge’s conclusion.

It really does, in my respectful submission, putting it in that way, ignore some of the critical exculpatory evidence and fail to place adequate weight on that at the expense of over‑reliance upon the DNA evidence, given that there was a significant body of evidence that went towards establishing contamination of the DNA evidence.  It was not so much that the likelihood ratio would not point towards the guilt of the applicant.  It was more the fact that there would be some concern as to the use that may be made of the likelihood ratio in circumstances where there had been significant evidence of contamination in combination with a number of persons who gave evidence that they had sighted Ms Keir alive in the years following 9 February 1988.

His Honour, in my respectful submission, failed to take that evidence into account in the way that it ought to have been, by taking into account the totality of the evidence as a means of determining the use that may be made of that obviously overwhelming probability ratio of 400,000 times more likely that the bones come from the parents of Jean Keir, as opposed to an unknown couple in the population. 

That in turn, your Honour, brings us to the fourth ground of appeal which is really very closely related to the third ground in terms of the way in which Justice Johnson made use of the DNA statistical evidence, and as I have just described, based upon paragraphs 163 and 165, it is the applicant’s contention that the course of reasoning laid bare in those paragraphs demonstrates that his Honour did not so much fall into the prosecutor’s fallacy of assuming that the likelihood ratio was 400,000 to 1, it jumped straight past it to a conclusion based upon that probability ratio that the bones must be those of Mrs Keir, and therefore given the way that the case was run that the accused must have been guilty of her murder.  The applicant says of course that that course of reasoning was impermissible and that his Honour fell into error in adopting it.

BELL J:   His Honour’s reasons in the paragraphs in the concluding portion of his judgment need to be read against the detailed consideration of the DNA evidence at an earlier point in the judgment, including paragraph 91 on application book 345 where his Honour notes that the trial Judge had been conscious that the DNA results, reported by Ms Scibetta “did not alone establish that the bones were those of” the deceased “Jean Keir”.  One cannot take a paragraph in isolation, Mr Neild.

MR NEILD:   I am not asking your Honour to take the paragraph in isolation.  The paragraph to which your Honour adverts, in my respectful submission, amounts to more than – or less a laying bare of Justice Johnson’s reasonings as his recounting of the reasoning adopted by the trial judge. 

BELL J:   Let me understand this.His Honour correctly understood for the purpose of analysing the correctness or otherwise of Justice Campbell’s approach to fact finding that the DNA results did not alone establish that the bones belonged to those of the deceased, Jean Keir, but when later he came to express his own conclusions based on an independent assessment of the evidence that had been before the trial judge, we are to assume he overlooked that.

MR NEILD:   That certainly is my submission, in my respectful submission, in terms of the face of his Honour’s reasoning, your Honour.  So the fourth ground then effectively comes full circle to the first, in the sense that the submission that his Honour has erred in placing undue reliance upon the DNA evidence at the expense of the remainder of the circumstances, the remainder of the circumstantial evidence, supports the submission that his Honour has failed to independently assess the whole of

the evidence and he has done so on the basis that he has placed that undue weight upon the DNA evidence.  Thank you, your Honours.

HEYDON J:   Thank you, Mr Neild.  We need not trouble you, Ms Woodburne.

Despite the careful arguments of Mr Neild on behalf of the applicant, we are of the opinion that none of the four grounds of appeal which the applicant wishes to have argued if special leave were to be granted has sufficient prospects of success to justify a grant of special leave.  Accordingly, the application is dismissed.

The Court will adjourn to 2.15 on Monday, 22 June in Brisbane.

AT 3.45 PM THE MATTER WAS ADJOURNED