Regina v Keir - [2004] NSWSC 964

No judgment structure available for this case.

CITATION: Regina v Keir [2004] NSWSC 964

HEARING DATE(S): 27-30/07/04
2-6/08/04
9-13/08/04
16-20/08/04
23-26/08/04
30/08/04
2/09/04

JUDGMENT DATE:
22 October 2004

JURISDICTION:
Common Law Division
Criminal List

JUDGMENT OF: M W Campbell AJ

DECISION: Guilty

CATCHWORDS: Domestic murder - old bones - DNA - relationship evidence - prison informers.

LEGISLATION CITED: Criminal Procedure Act 1986
Evidence Act 1995
Crimes Act 1900 s23

CASES CITED: Fleming v R (1998) 197 CLR 250
R v K [2003] NSWCCA 406
R v Clough (1992) 28 NSWLR 396
Doheny and Adams [1997] 1 Cr App Rep 369
R v Keir [2002] NSWCCA 30
R v GK [2001] NSWCCA 413
R v Peisley [1990] 54 A Crim R 42

PARTIES :

Regina
Thomas Andrew Keir

FILE NUMBER(S): SC 70012/02

COUNSEL: G J Tabuteau (Crown)
S S Hanley (Accused)

SOLICITORS: J Henderson - DPP (Crown)
G Goold (Accused)

-

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

M W Campbell AJ

Friday 22 October 2004

70012/02 REGINA v Thomas Andrew KEIR

JUDGMENT

1 HIS HONOUR: On 27 July 2004 Thomas Andrew Keir was indicted before me on a charge of murder, namely, that on or about 9 February 1988 at Tregear in the State of New South Wales he did murder Jean Angela Keir.

2 The accused pleaded not guilty. He elected to be tried by Judge alone pursuant to s 132 of the Criminal Procedure Act 1986. The Director of Public Prosecutions gave the necessary consent.

3 The accused was for some years prior to 1988 part owner of an upholstery business. Through Christine Strachan, one of his employees, he met her daughter Jean Angela Keir in about 1982. They were married on 11 August 1984 and their son Michael was born on 31 December 1984. After the marriage of the accused and Jean Keir they lived in a home they purchased from Christine Strachan’s mother at 18 Wilkes Crescent Tregear.

4 Jean Keir was dropped at 18 Wilkes Crescent Tregear at 10.30 pm or later on Tuesday 9 February 1988 by Carl Nieding and met there by her husband, the accused.

5 It is the Crown case that on that night or the next morning the accused murdered his wife and disposed of her body. The accused has given evidence that when he returned home from work on Wednesday 10 February 1988 his wife had left the home and that he has not seen her since, albeit he has spoken to her on the telephone and noted evidence of visits by her to the home. There are issues as to whether she has been seen or spoken to on the telephone by others since time.

6 It is appropriate before commencing upon this judgment that I should remind myself of the provisions of subsections 133(2) and (3) of the Criminal Procedure Act 1986 which provide:

“133 (1)……..

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”

Fleming

v R

7 This trial is a second retrial. The last trial, which was referred to throughout the hearing as the second trial, was held before Kirby J and a jury.

8 A further retrial was ordered by the Court of Appeal on grounds arising from the conduct of the jury. (See: R v K [2003] NSWCCA 406).

9 Prior to the commencement of addresses Mr Hanley said:

“I have reread Kirby J's summing-up to the Jury and it seems to me that those matters of law he directed to the Jury in relation to that trial have not changed. Some factual matters have changed to some extent but the general directions in relation to the specific areas of evidence appear to be generally the same, I would have thought complete, in relation to what he told that particular Jury.

10 Mr Crown did not dissent from that statement. I should add that there was reference between Bench and Bar as to, perhaps, more being put on the issue of manslaughter. I shall come to that later.

11 In these circumstances it would seem appropriate for me to direct myself, generally speaking, in accordance with the directions given by Kirby J to the jury in the second trial. I go first to the general directions at the commencement of the summing up. I shall come to more specific directions later. In setting out the passages I have omitted some matters which clearly relate only to a jury.

12 Kirby J said to the jury:

“I begin by reminding you of certain principles of law. They are fundamental to our system of criminal justice. The first is that every accused person is presumed innocent until his or her guilt is proved. The accused Mr Keir has the benefit of that presumption. He is presumed innocent. He is entitled to have you return a verdict of not guilty unless you find the Crown has proved his guilt. At no stage in this trial is there any onus upon Mr Keir to prove that he is innocent of murder because his innocence is presumed. In respect of all issues, the onus is upon the Crown to prove his guilt. The onus never shifts from the Crown. Mr Keir has no obligation to disprove any part of the Crown case against him. Indeed, the onus rests upon the Crown from the start of this trial until the end.

The onus is in no way affected by the fact that Mr Keir has given evidence before you. Mr Keir was not obliged to give evidence, he could have remained silent. However, he has chosen to give sworn evidence and to submit to cross-examination. In putting forward his version, the accused has not accepted some onus of establishing that he is innocent. That is not the issue. The accused has no such onus.

You should not approach this matter upon the basis that the accused can only be acquitted if you accept his version of what happened. Rather, the Crown must satisfy you that Mr Keir is guilty of the offence charged. Mr Keir's version is but one matter which you must take into account in reaching your decision in respect of the case brought by the Crown against the accused. However, in giving evidence, Mr Keir becomes a witness just like any other witness and the same principles apply when evaluating the truthfulness and the accuracy of his evidence. Even if you were to disbelieve Mr Keir's version, that would simply mean that you put that version to one side. You would still have to determine whether the Crown has proved Mr Keir's guilt beyond reasonable doubt.

Having said that, it is fair to say that if you reject the version of Mr Keir, that may well assist you in determining whether you can more readily accept the conclusions arising from the evidence led by the Crown. However, you must understand that you may not accept the version of Mr Keir and yet still find him not guilty of murder and that because the Crown has not proved to your satisfaction beyond reasonable doubt the elements of the offence. So that is the first fundamental principle. The onus is upon the Crown and never shifts from the Crown.

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. Shortly I will explain to you the elements of the charge of murder and the elements of the alternative charge, which is available in certain circumstances, that of manslaughter by an unlawful or dangerous act. A person may not be convicted unless each of the separate elements of the charge is proved beyond reasonable doubt.

In the course of this summing-up I will distribute written directions. They will identify the elements that have to be proved by the Crown beyond reasonable doubt to establish the guilt of Mr Keir. 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.

….

Of course, determining the issues that arise in this trial is not quite like determining issues in your own lives. You must approach your task as would a judge. A judge is required to approach his or her task dispassionately, impartially, not allowing himself or herself to be influenced by prejudice or by sympathy, but rather to reach a verdict calmly and objectively and do so eradicating any prejudice from their mind.

With that introduction, let me say something about the process of fact finding. Ultimately, you must determine whether the Crown has proved beyond reasonable doubt its case against the accused. A vital part of your function will be to reach conclusions on what evidence you accept, and what evidence you find reliable and credible and what evidence you believe you can safely act on. Let me remind you of two matters and add a third. The matters about which I wish to remind you are matters I drew to your attention when you were first empanelled as the jury in this trial.

It is your task to make an assessment of each witness. Are they honest? Can they be relied upon to give you accurate evidence? In making that assessment, you are entitled to take into account the impressions that witnesses made upon you when they gave their evidence, that is, their body language, their demeanour, how they presented to you. You are also entitled to take into account the consistency or inconsistency of their account, whether their story makes sense. You can consider whether or not they have an axe to grind; that is, whether or not they have some motive to distort, embellish, or to conceal the truth. So that is the first aspect, the distinction between honesty and accuracy.

The second is that it is not an all or nothing situation. You are not bound to accept all of a witness's evidence or reject all of it. You can accept part and reject part. If you were to reject part of a witness's evidence because you believed that they were lying, then it may be difficult for you to accept other parts of their evidence but, again, it is a matter for you. You may form the view that the particular episode of dishonesty or the particular inaccuracy is confined to one particular issue or a particular compartment of their evidence and you can rely upon other aspects. It is entirely a matter for you. That is the second matter.

…..

13 This is, as mentioned, a second retrial. Further, the accused had been charged and acquitted at trial of the murder of his second wife. There has been a good deal of publicity as to all these matters. It is of fundamental importance that I decide this case solely by reference to the evidence presented in open court and the appropriate principles of law.

14 The events which are the subject of this trial occurred some sixteen years ago. The accused is not responsible for the delay. Kirby J warned the jury in the following terms:

“There is no question that Mr Keir is at a disadvantage by reason of the delay in the prosecution. And indeed, the warning I administer is that you should be conscious of that delay, and the effects of that delay when you evaluate the evidence and determine whether you are satisfied beyond reasonable doubt by that evidence.

Let me go from the generality of that warning to specific ways in which Mr Keir has been disadvantaged. The first is that recollections obviously fade, and the chances of misrecollection and inaccuracy correspondingly increase with time. In this case measured in more than a decade. And witness after witness adverted to the delay, including the accused. And secondly, for the reasons mentioned, delay makes for difficulties for counsel on behalf of Mr Keir adequately testing the evidence, fourteen years on.

15 Mr Hanley relevantly referred, amongst other things, to the destruction of official police notebooks, the unavailability of the negatives of photographs taken at Wilkes Crescent and of full sets of photographs, the absence of local court records as to an application for a search warrant and of some prison records.

16 I turn now to the principles of law relating to the charge of murder. Counsel were agreed that the written directions given to the jury by Kirby J correctly set out the matters upon which I must be satisfied beyond reasonable doubt before I could convict the accused of murder.

17 These directions are as follows:

“Before you can convict Thomas Andrew Keir of murder, you must be satisfied beyond reasonable doubt:-

1. that Jean Angela Keir is dead;

AND

2. that her death was caused by an act of Thomas Andrew Keir on or about 9 or 10 February 1988;

AND

3. that at the time of carrying out that act, Thomas Andrew Keir intended to kill her or to cause her grievous bodily harm, that is really serious bodily injury.”

18 Kirby J also directed the jury as to a possible alternative verdict of manslaughter by an unlawful and dangerous act. In view of the conclusion I have reached on the charge of murder I do not need to consider that alternative. I shall later explain why I am satisfied beyond a reasonable doubt that the accused was not provoked to do what he did. Mr Hanley had very properly raised the issue of manslaughter by provocation although it was in no way the case he was putting.

19 Kirby J said to the jury:

“The offence of murder is defined in various ways. Here the issue is relevantly uncomplicated. There are no issues of self-defence and other such issues that sometimes arise. So far as this case is concerned, murder is committed where an unlawful act by one person causes the death of another person, where the act was done with the intention of killing or causing grievous bodily harm to that other person. Grievous bodily harm is simply a lawyer's term that means really serious bodily injury. So, broadly, two elements are needed. First of all, an act; and secondly, a state of mind. The act is that there must be some act of the accused which causes death and, secondly, that in carrying out that act the accused must intend either to kill Jean Keir or to cause her really serious bodily injury.

I have been dealing with the first element of the first page of the elements, that is, Jean Angela Keir is dead. Let me pass then to the second element, that her death was caused by an act of Tom Keir on or about the 9 or 10 February 1998. Now that element contains two issues and you need to be satisfied in respect of each before you can be satisfied beyond reasonable doubt on this issue.

The first issue concerns the actions of Mr Keir. Are you satisfied beyond reasonable doubt that the accused did something to harm Jean Keir. So that is the first aspect of this second element. The second aspect is a question of causation. If he did, are you satisfied that whatever he did caused her death.

So let me pass from that second element, to the third. So if you go back to the written directions you will see the third moves to the issue of intention.

So it says 3. And there is an 'and' in between 2 and 3 as you will see, so it says:

“3. That at the time of carrying out that act Thomas Andrew Keir intended to kill her or cause her grievous bodily harm, that is really serious bodily injury.”

Now in general under our system of law an act is not punished as a crime unless it is done with what we call a guilty mind. The law defines the particular state of mind which an accused must have in respect of particular crimes. In respect of the charge of murder against Mr Keir the Crown needs to prove beyond reasonable doubt that Mr Keir, when he acted to injure Jean Keir, if that is what you find, intended either to kill her or to cause her grievous bodily harm, that is really serious bodily injury. When someone does something to another intending to kill them or cause them really serious bodily injury, and that person dies, then the Crown has established the elements of the crime of murder.

So the Crown must establish beyond reasonable doubt that at the moment Mr Keir acted to harm or injure his wife, which is element 2, he intended to kill her or cause really serious bodily injury to her.

So what is meant by "intention" in this context? You are no doubt familiar with the word "intention" in the ordinary every day English. In law, as in common speech, intention simply identifies the purpose of someone at the time they did some act. Was their purpose to bring about a particular consequence. Was the purpose of Thomas Keir to kill Jean Keir or to cause her really serious bodily injury?

Here the evidence does not establish the precise act which caused death. However you must be satisfied that whatever that act was, it was accompanied by an intention either to kill Jean Keir or cause her really serious bodily injury.”

20 The Crown relies upon threats allegedly made by the accused to Jean Keir over a period of time and, generally speaking, in a domestic situation. It is appropriate to refer to the warning given by Kirby J as follows:

“However, that is evidence which must be looked at with some care. If you were to accept that the threats were made, you must exercise caution before using such evidence to infer what Mr Keir did or intended on or about 9 February 1988, being the date the Crown suggests he murdered Jean Keir. And the reason you must exercise caution is obvious. It is common in every marriage for things to be said in anger, that are better not said, even for threats to be made which are really empty threats.
……

Admissions

21 The Crown relies upon direct evidence by way of admissions alleged to have been made by the accused to two prison informers at the Metropolitan Remand Centre in April 1991. The informers were known by pseudonyms as Joseph Perkins and Brian Riley.

22 I have taken into account the warning required by s 165(1)(c) of the Evidence Act 1995 and had regard to the principles discussed in R v Clough (1992) 28 NSWLR 396 at 405-406.

23 Having regard to my conclusion that it would be unsafe to rely upon the evidence of the informers I do not need to enlarge upon the warning.

24 I should shortly set out why I have reached this conclusion.

25 On 16 April 1991 the accused entered the Metropolitan Remand Centre (MRC) having been charged on 13 April 1991 with the murder of his second wife, Rosalie.

26 Both Perkins and Riley were then in the MRC. That, as will appear, is not what Perkins says was the position, however, I am satisfied from the evidence of the gaol officers and other material, is the fact.

27 Perkins gave evidence that he was in the Central Industrial Prison (CIP) another prison within the Long Bay complex separate from the MRC when, in April 1991, he met the accused in the yard of 5 Wing.

28 Perkins said that the accused was a new arrival and that when new people came into the yard “people want to check them out, see who they are, what they’ve got and stuff like that”. He said “and I did just that”.

29 To put it very shortly Perkins says that during the conversation the accused told him that he was in for murder, that he had got rid of his missus, that he had bashed her and choked her and that the accused said:

“I buried her standing up in the back corner of the house and near the foundations, ah, yeah”.

30 Perkins said that during the conversation he had given the accused a cup of coffee in his cell. He said that he did not again talk with the accused.

31 He did, however, he said, speak to Riley, a fellow inmate with whom he used to spar. He said to him “I have a bit of a story for you here. This new bloke just came in, he reckons he murdered, he’s got rid of his missus, he said he’s killed her”.

32 According to Perkins he told Riley that he did not believe the accused and that he should not go and say something about it. However, Riley talked of going to the cops and said: “No, it’ll just get you out of gaol or get money out.” Riley did give evidence in cross-examination:

33 So far as Perkins’ memory goes that was all he had to do with the matter until he was visited in Townsville Correctional Centre by Detective Tuckerman and made a statement on 30 April 1998.

34 Subsequently Perkins has given evidence at the three trials. He was paid after the first trial a reward of $9,800 odd.

35 Riley in April 1991 was in the MRC. He said that Perkins told him that his cellmate had told him that he had knocked his wife and buried her underneath the house, that he buried her standing up beside a foundation in an upright position.

36 As mentioned Riley saw an opportunity in this and called the accused over to him in the yard. He gave evidence:

37 Riley says that at that point he said something like “you’re bullshitting. You knocked her”. He said that the accused had a cup of tea or coffee in his hand. He gave evidence:

“Q Did you notice anything about the cup?
A. Once I talked to him he started shaking like anything. He, just as soon as I said; ‘If I can tell you where the body is, can you tell us what's going on?’ He looked at me and said: ’I don't know what you're talking about.’ I said, ‘You put her underneath the house near a foundation.’ The cup he had in his hand, he's just started shaking and it was nearly spilling over.

Q. When you saw that, did you say anything to him when you saw his hand shaking?
A. Yeah, I said: ‘See, see. I know. See. Look.’

Q. What did he say?
A. He said, he denied it and he said "I don't know what you're talking about", at first.

Q. What did you say?
A. I said, "Don't treat me like a git, tell us what's going on. Did you have a blue or something? Was she fucking around on you?" Words to that effect. I can't remember the exact thing, I'm sorry.

38 Riley communicated with police and he was visited by Detectives Moore and Owens. Detective Moore was in charge of the matter in respect of which Riley was being held. These policemen passed the information on to Detective Sergeant Lyons and Detectives Seymour and Radmore visited Riley on 1 May 1991.

39 Mr Seymour recorded a conversation with Riley in his official notebook.

40 Riley said that he gave Mr Seymour an unsigned statement. He gave evidence:

“Q. Is there any reason why you didn't sign it?
A. Yeah, I was going up for Supreme Court bail and I thought if I gave the police any information, that they could assist me in getting, writing a letter to the Supreme Court to assist me in getting bail.

Q. What about the signing of the document? Was there a reason you didn't want to sign it?
A. Yeah, I told them I wanted to seek legal advice.

Q. Did you seek any legal advice or advice?
A. Yeah, I talked to my brother.

Q. Subsequently, did the police come back with the statement?
A. Yeah, about a week later.

Q. What happened?
A. They said that they don't do anything with Supreme Court bail with an unsigned statement. They said the bosses wouldn't allow, or couldn't help me out unless I signed the statement.

41 It is convenient to note that Riley’s bail application was very likely to be refused and that he was well aware that he would need all the help he could get. In the event a letter was provided, however, it was too late for the bail hearing.

42 Riley gave evidence of another conversation with the accused in the MRC as follows:

“Q. What was the topic of that conversation?
A. I told him the police were trying to load me up with 24 break, enter and steals if I didn't sign a statement against him. And I said, I told him that, I said, I told the police that I'd see them in Court and they could go and charge me. I said if he wants me to go as witness once I got out, witness for him, give me a bell and I'll go witness.

43 The accused denied speaking to Perkins. In respect of Riley he said that he only spoke to him once when Riley said matters generally in the terms of the last conversation I have mentioned.

44 Riley gave evidence at the three trials. He was paid a reward of $19,400 or $19,600 and also some relocation expenses of $1,500 after the accused had telephoned him.

45 Riley said that he did not tell the police Perkins’ name until some time later when he was out of gaol and after the accused had telephoned him. He did not do so because he did not think Perkins wanted anything to do with it.

46 Against that background I propose to state shortly the principal considerations that led to my conclusion on this aspect.

47 Both men are prison informers. Perkins has a very long list of offences of dishonesty in New South Wales and Queensland. He admitted to using as many as 18 false names in New South Wales to mislead the police. He is addicted to various drugs and conceded that he mislead the prison authorities as to his consumption in an attempt to get some more systemic relief. Riley was in custody in respect of a pending serious sexual assault case of which he was later convicted. He agreed that he had lots of friends with criminal records. His evidence showed that he was experienced in the ways of prisons. He had been on a methadone program and had smoked marijuana since he was seven years old. At the time of giving evidence in this trial he said that he had a serious alcohol problem.

48 It is not easy to understand why the accused whether seeking protection or, as Mr Crown suggested, gaol credibility would not have relied upon the charge of murder upon which he was being held.

49 Perkins maintains that the initiating conversation was in the CIP. The other evidence demonstrates that that could not be correct.

50 This is a matter of more consequence than a mere mistake as to which prison. The evidence of the prison officers shows that the account of going from the yard to Perkins’ cell and having coffee could not be correct if the men were in the MRC, where the regime was different to that in the CIP.

51 Riley claimed that he did not tell police Perkins’ name until some considerable time later, nor did he tell police that Perkins and another inmate, now dead, by the name of Hayden, had been present at his initial conversation with the accused. Yet the prison records show that on 7 May 1991 Detectives Murray and Cosgriff not only interviewed Riley, when he signed Seymour’s notebook, but also saw Perkins and Hayden. Further, Detectives Murray and Cosgriff visited Perkins again on 16 May 1991. Detective Murray’s duty book records “re Keir murder”.

52 Perkins says that he has no memory of these visits. Having regard to his drug addiction history and the events surrounding a statutory declaration, to which I shall come, I think that is probably correct. I should, perhaps, comment that a warning pursuant to s 165 1(c) is appropriate in respect of both Perkins and Riley. In the circumstances I do not need to expand upon it.

53 At the second trial Perkins was shown a statutory declaration which he did and does not recall but accepts is his. It was made on 7 May 1991 and placed, at his request, on his prison file. Omitting formal parts it reads:

“I the Above person wish to state that on the 7/5/91 was taken from my visit to another visit witch was with police whome are investigating an ex cell mate whome is on bail (Thomas Kier).

They threatened me with legal Aligation’s if i would not assist them with their aligations against (Thomas Kier). I informed them that i had no knolledge that would assist them nor did i wish to partake in any story they were offering myself to say against (Thomas Kier). They also seen Brian Riley and Cameron Haydon about the same matter. I do not wish to be interviewed by police.”

54 The official notebooks of Detectives Murray and Cosgriff have been destroyed. They each have given evidence that they have no memory at all of the visits with Perkins and Hayden.

55 Whilst these interviews took place after Riley had given his account to Mr Seymour it would be of interest to know how and why the police came to interview Perkins and Hayden. It by no means follows that the statutory declaration correctly sets out what took place at the interview.

56 Riley said that Perkins and Hayden were present during his initial discussion with the accused. Perkins at least does not recall that. He gave no evidence as to that discussion.

57 There are some issues relating to Perkins’ conversations with Detective Tuckerman in Townsville, however, I do not need to go to the detail of those. Perkins’ description of the accused as a man with a “monobrow” seems at odds with the prison photograph tendered.

58 Perkins’ assertion that he agreed to give evidence in order to bring “closure” to the family also seems at odds with his criminal record.

59 At first sight the finding of bones at 18 Wilkes Crescent would appear to lend some independent support to the accounts of Perkins and Riley.

60 However, Riley has agreed that he had seen at least one, probably that of Channel 10 of a number of videos shown by televisions stations on 14 and 15 April 1991 of 18 Wilkes Crescent.

61 Edited versions of the videos with aide memoire transcripts were tendered in the Crown case. However, Mr Hanley later tendered the unedited versions. Although there are no transcripts of these I have viewed them a number of times.

62 In at least some of them, certainly that of Channel 10, there is ample material to conclude that the accused was the man arrested and charged with the murder of the woman found dead in the house. And further that the police suspected that the body of his former wife Jean Keir might be buried in the grounds of the property.

63 When the accused entered the MRC, Riley, who needed assistance with his bail application, would have had sufficient information to provide an attractive “confession” to the police.

64 I do not think the use of the words “underneath the house” or “beside a foundation in an upright position” exclude the reasonable possibility of a fabricated account.

65 Mr Crown laid emphasis upon the use of the words “he hadn’t seen her for a couple of years. He had only spoken to her on the phone a couple of years ago”. These, he said, were words which could only have come from the accused and were consistent with his position including that taken in his record of interview.

66 The videos could have given the “couple of years”. The reference to a telephone is, I consider, too limited a matter to overcome the other difficulties.

67 The reference to the telephone lends some support to the view the accused did speak to Riley. That, however, is a different matter from concluding that he went on to make the admissions alleged.

68 I do not conclude in any positive sense that the admissions were not made, however, I consider that it would be unsafe to have regard to them and I do not do so.

69 Apart from the admissions referred to above the Crown case is essentially based upon circumstantial evidence.

Circumstantial Evidence

70 As to circumstantial evidence Kirby J gave the following directions and warnings:

Now circumstantial evidence is not necessarily less reliable than direct evidence. Indeed in some cases it may be far more convincing. But before you can find an accused person guilty of a crime upon the basis of circumstantial evidence, you must be satisfied that such a finding is made out by the facts that you find proved by the evidence. Such a finding must not only be reasonable but there must be no other reasonable finding apart from guilt, and that is because there is no other reasonable or rational explanation for the facts you find proved.

Now it follows that if there is another finding which is reasonably open, that is, another explanation which is inconsistent with guilt, then the Crown will not have proved its case. It will be then your duty to find the accused not guilty. The Crown must exclude every other possible reasonable explanation.

……

But however the Crown does it, somehow or other they must eliminate any other reasonable rational possibilities that arise out of the evidence. And in this context, a reasonable explanation means a rational explanation. The circumstances must demonstrate guilt because there is no other rational explanation.

……

Now circumstantial evidence has been likened, and I think Mr Hogan referred to this, to strands that make up a rope, or sticks that make up a bundle. The more strands you have the stronger the rope. The more sticks you have, the stronger the collective strength of the bundle. Let me stay with a metaphor, sticks that make up a bundle.

We have all had the experience of a bundle of sticks, and putting a bundle of sticks across your knee and breaking the bundle. And perhaps if you have half a dozen small sticks you can still put them across your knee and break them, but you reach a point where the bundle grows, where there are just too many sticks to break the bundle in half; collectively they end up being very strong. And so it is with circumstantial evidence. At some point you may accumulate each stick of evidence, and together they may make up a bundle, and if there are enough sticks, and in each is sufficiently strong, that is if each is cogent evidence of the particular fact, they may collectively give rise to an inference of guilt beyond reasonable doubt. You may reach the point where there is no other reasonable explanation for the circumstances which you find proved, and the circumstances taken together may eliminate all other explanations.

Alternatively, as you consider each aspect of proof, the particular facts put forward by the Crown as forming part of the circumstantial case, each stick in the bundle, may not persuade you that has been proved to your satisfaction. In which case you leave that stick out of the bundle.

The proof in respect of that particular matter may leave too many issues unresolved, have too many holes, too many unexplained questions, so the bundle you may end up with may be slender. And there may be other reasonable explanations for the facts which you find proved apart from the guilt of the accused. If there are, then the Crown have failed in its circumstantial case.

71 One of the circumstances identified by the Crown is a motive which it imputes to the accused. As to motive Kirby J said:

“Now the Crown is not obliged to prove motive in order to succeed in the prosecution. You will see from the elements which I took you through before in the directions that motive is not one of them. One does occasionally have crimes which are committed for no apparent, or no good motive. Even were you to find no motive, it would be open to you, applying the principle I have identified, to find Mr Keir guilty of the charge. Conversely, even where a person has a motive, there is a separate question, whether he or she acted on the motive they may have had. A person may have a motive to harm another and yet do nothing about it.

72 The evidence led by the Crown, which it was submitted, in the main, supported the circumstances upon which the Crown relied, was identified by categories in the opening. I propose to review the evidence under those heads, albeit there is necessarily a good deal of overlapping.

73 The heads are:

Evidence as to the relationship between the Keirs.

Evidence as to Jean Keir’s relationship with Carl Nieding.

Evidence as to Jean Keir’s trip to Culburra in February 1988.

Evidence as to Jean Keir’s sudden disappearance.

Evidence as to the finding of human bones at 18 Wilkes Crescent.

Evidence as to DNA extraction from the bones and analysis.

Evidence as to interviews with police officers and a journalist.

The Relationship Between the Keirs

74 Kirby J directed the jury in the use that may and may not be made of such evidence as follows:

“…..I should say something about the way in which you should approach the issue of relationship evidence. That is the way in which the evidence of the relationship between Mr Keir and his wife might be used by you in considering your verdict. And I should also administer a warning about the way in which it must not be used. Indeed, let me begin by saying how it must not be used.

Ordinarily in a criminal trial evidence of misconduct by an accused person on another occasion cannot be given in evidence. And the reason is not hard to understand. There is a danger that a jury who hears that someone who has been guilty of reprehensible conduct on another occasion may reason that such conduct shows the sort of person they are and, therefore, they probably committed the offence with which they stand charged. Now that is an impermissible way of reasoning, and would be quite wrong and unfair.

There is for instance in this case evidence from witnesses that Mr Keir had on occasions shown a measure of violence towards his wife. Whether punching slapping, or however you describe it. Now in respect of such evidence, if you were to accept it, you must not reason along the following lines: You must not say to yourself, well, Thomas Keir is a violent sort of person, he was prepared to be violent towards Jean Keir, so probably he committed this crime of violence, namely murder. That would be quite wrong and unfair. You must not reason that merely because you may find, if you were so satisfied, that Thomas Keir behaved in a particular way which you regard as reprehensible in the course of his relationship with his wife, therefore, he committed the murder. That is what you must not do.

The evidence as to the relationship between the accused and Jean Keir has been admitted as being relevant to two issues. The first is it is relevant to the issue of motive, about which I have already said something. And second, it is relevant because it provides a context within which these events unfolded.

Without a context the specific charge which arises out of the events of 9th February may be unintelligible. It is evidence which, if it is accepted, may assist you in explaining how or why certain conduct which is the subject of these charges arose. In other words if you knew nothing about the relationship between Thomas Keir and his wife, Jean Keir, it may be very difficult for you to form a judgment about the events upon which you must focus, namely the circumstances of her disappearance on or about 9th February 1988. Without an understanding of their relationship, that is the relationship between the accused and his wife, you would be considering these charges in a vacuum, and that would be highly artificial and unsatisfactory.

75 I note that this segment of evidence includes hearsay accounts of statements made by Jean Keir. I should direct myself in accordance with the concepts put by Kirby J to the jury as follows:

“Further, having regard to the nature of some of the evidence concerning the relationship, I should administer a further warning. It is a warning in respect of hearsay evidence.

……

Now let me say a number of things about that. You should be aware that such evidence may be unreliable, and there a number of obvious reasons. The first is that plainly it would be better if one could hear from Jean Keir herself, which obviously one cannot. Second, the statement, when it was made by Jean Keir, was plainly not a statement on oath, and has not been subjected to cross-examination. And in these respects it is different from other evidence which has been called before you. Mr Keir, as Mr Hogan reminded you, has not had the opportunity of cross-examining Jean Keir and taking her to the aspects of the statements which are attributed to her, and what was really said, and what was really meant, according to his instructions. So in this respect, when considering the reliability of this evidence, you should be conscious of those matters.

You should also be conscious of the fact that the evidence must be considered at two different levels. First the reliability of Jean Keir's account of the particular episode which she may be relating, and secondly, the reliability of the evidence of the person who is recounting that account, which depends upon that person's recollection and other matters including Mr Hogan would suggest upon the possibility of contamination or bias.”

76 I also note that Mr Hanley made submissions, to which I shall come later, as to possible motive behind at least some of the statements.

77 Christine Strachan, who is now 62 years old, is the mother of Jean Keir. She gave evidence, which was not disputed, that the natural father of her daughter Jean Keir was Gaspar Baan. However, by the time Jean Keir was born on 5 February 1966 Christine Strachan had been married to Clifford Douglas Strachan since 11 September 1965. Jean Keir was brought up as a daughter of Clifford and Christine Strachan.

78 Clifford and Christine Strachan had three other children Heather, Fiona and Leonard Strachan. They lived at 221 Poppondetta Road Blackett.

79 Christine Strachan was an upholstery stuffer and later machinist and prior to 1981 she had worked at times for enterprises associated with the accused.

80 In 1981 the accused and a partner George Georgieski opened an upholstery business known as G & T Upholstery at Wetherill Park. Christine Strachan commenced to work at that firm as a machinist.

81 She took Jean Keir to the factory on occasion when Jean Keir was about 15 years to 15 ½ years old. There the accused met Jean Keir.

82 In 1984 Jean Keir and the accused became engaged to be married and they were married on 11 August 1984. Jean Keir was 18 years old and the accused 26 years old at that time.

83 Michael Keir was born on 31 December 1984 and Christine Strachan gave evidence that she remained in close contact with Jean Keir and helped with the baby on a very regular basis. She was also seeing the accused at work on a regular basis.

84 Christine Strachan gave evidence:

85 Christine Strachan said that Jean wanted to go back to basketball and did for a time. However, the accused considered the basketball clothes too revealing. Christine Strachan said that at the request of the accused she modified tank tops given to Jean Keir by the accused’s sister-in-law to make them less revealing.

86 Christine Strachan gave evidence that she lined part of a swimsuit at the request of the accused because he thought it too revealing for Jean Keir when wet. She also gave evidence of an occasion when Jean Keir bought a swimsuit and then could not find it. The accused later brought it to her, Christine Strachan, having cut it, complaining that it had a very small crutch and asked her to fix it. That she did, however, the costume was then very uncomfortable. Speaking of Jean Keir she said:

“It was so uncomfortable. You couldn’t see half. She went crazy, started screaming and threw the costume away.”

87 Christine Strachan said that the accused did not like Jean Keir wearing shorts, “because he reckons the shorts she had were too short.”

88 Christine Strachan gave evidence:

Q. Did she say that to you once or more than once?

89 Christine Strachan gave evidence that Jean Keir complained to her that the accused would not speak to her for weeks on end. She also said that when she confronted the accused with this at work he denied it.

90 Christine Strachan gave evidence that Jean Keir complained that after they were married the accused did not wish to go out and socialise and that she was not allowed to go out with friends such as Shona McDonald and Fiona Chalmers, who were twin sisters.

91 She said that she had spoken to the accused about this and said that Shona and Fiona were nice girls to which he replied “Fiona’s not a nice girl.”

92 I shall come back to Christine Strachan’s evidence in relation to other topics. I should note at this point that some of her evidence is challenged, however, I will deal with that challenge later.

93 Maria Boros is a sister of Christine Strachan. She had known Jean Keir since she was born and met the accused when he became engaged to Jean. She lived in Tregear within walking distance of Wilkes Crescent and had four children of whom two were about Jean Keir’s age. After the marriage she saw a good deal of the Keir family. She gave the following evidence:

94 Maria Boros gave evidence that sometime in 1987 she received a telephone call from Jean Keir who seemed upset on the phone. Jean Keir said: “I love my little boy and I want my marriage to work. I’m upset. I want to, I’m troubled.” Maria Boros said that Jean Keir indicated that she wanted to talk to somebody and she suggested that she come around and talk to her which she did, bringing Michael with her, it probably being at a weekend in September or October. She gave evidence as to a conversation she had with Jean Keir as follows:

95 Maria Boros said that she asked Jean Keir what she was afraid of the accused for but she replied “I couldn’t tell you”.

96 Maria Boros told Jean Keir that she did not think she would be able to help her. She felt they lived too close and suggested that she speak to her sister Helen Page who lived in Greenacre and was close to the church and might be able to help with counselling. Apart from seeing Jean Keir on Christmas Eve at midnight mass she has not seen her since that occasion or had any communication with her.

97 Maria Boros is a therapeutic masseur. Pursuant to an arrangement made by Christine Strachan she had massaged the accused’s injured lower back some time after Jean Keir’s disappearance. Subsequently he had telephoned her asking her to do it again. On the telephone he told her that he had heard from Jean Keir on the telephone. She gave the following evidence:

98 Mr Hanley established in cross-examination that Maria Boros had not made a statement to police until 24 April 1993. She said that she had the idea to do so and was not asked by Christine Strachan although she agreed that there had been family discussions about Jean Keir.

99 Maria Boros said that although she had looked after Michael at times she was not in the past a confidante of Jean Keir’s. She had not before September or October 1987 wanted to have a heart to heart talk.

100 Maria Boros said that she knew nothing of Carl Nieding. She agreed that she had never seen the accused violent towards Jean Keir.

101 In cross-examination she gave evidence:

102 She agreed that Jean Keir did not tell her what she was frightened of even when asked.

103 Maria Boris gave evidence that being a masseuse she twice massaged the accused’s back which he had injured, he said and I should accept, at work. The first time she said that Christine Strachan asked her to help, the second time the accused asked directly.

104 Maria Boris gave evidence that after the second massage the accused made a sexual approach to her saying that he was lonely. It was not suggested that he pursued the approach when rebuffed. The accused denies that this occurred. I have considered the evidence and the submissions of counsel but am unable, on the available material, to reach a conclusion with sufficient certainty to effect other issues even if the conclusion would be otherwise relevant

105 It is appropriate to note that Maria Boris gave the following evidence in cross-examination:

“Q. So he was a person who clearly you didn’t like, is that right, the accused?
A. Yeah.

Q. Didn’t trust?
A. No.

106 Fiona Chalmers first met Jean Keir at kindergarten and became best friends. She met the accused initially when he came with Christine Strachan to pick up the three girls from basketball games. Initially they were, she said 14 or 15. By the time they were all about 17 she had heard that the accused and Jean Keir were dating occasionally but on the basis that there would be someone with them.

107 Both Jean Keir and Fiona Chalmers left school at 17 and thereafter saw less of each other, however Fiona Chalmers gave evidence that she continued to see Jean Keir from time to time every couple of months ringing or meeting up. She gave evidence that within a few years of their marriage Jean Keir would say that the accused was a bastard and “she just wanted out, she wanted to leave”. She said that Jean Keir complained that “Tom would never let her go out”.

108 She gave an illustration of an occasion on her birthday, which was also of course the birthday of her twin sister. Jean Keir came to the party held at the family home and then went to a nightclub with Fiona Chalmers. However, a man came with her who appeared to have been sent by the accused to watch her.

109 Fiona Chalmers said that Jean Keir had told her that she had to be well covered up and wasn’t allowed to wear make-up or anything like that. She gave evidence that sometime into the marriage with the accused Jean Keir “started to look very sick and I could see that she was deteriorating physically and getting very skinny and hollow around the eyes and very depressed”.

110 She said that she noticed that Jean Keir always seemed to have bruises around the area of her upper thigh. She said that Jean Keir told her she wanted to leave but “she couldn’t because he would kill her”. She said that that was said on more than one occasion, at least three. She gave evidence:

111 She also gave evidence:

“Q. What about on the third occasion when there was a reference to her being killed - do you remember where that was?
A. We were - I was with - there was another occasion, I was with my sister, Shona, and we were having a serious discussion on ways of - of helping her to get away from him and she said it wouldn't make any difference where she went, he would track her down like a dog and - and find her.

Q. Did she say what she said he would do? Did she say what he said he would do if he found her?
A. I think he said he would chop her up and feed her to the dog.

112 She gave evidence that Jean Keir said that she would never leave Michael with the accused and when asked “Did she ever say why” replied “She was scared for Michael. She wouldn’t leave him with him. She was scared of what he would do – to her – to him.” Fiona Chalmers said that she and her sister had offered to help Jean Keir to move and to hide her. Fiona Chalmers said that Jean Keir always said to those suggestions that she wouldn’t involve “us” because she was scared for “our” well being.

113 Shortly before February 1988 Fiona Chalmers telephoned Jean Keir who she said was very depressed and “like she was, yeah, losing her mind by this point, very – very much on the edge.” She gave evidence:

114 She has not seen her or heard from her since that time.

115 Fiona Chalmers gave evidence:

“Q. Did Tom ever speak to you after that about Jean?
A. Yes.

Q. What did he say to you?
A. He said, um, "Yeah, she's gone off with another man" and something to the effect, "She has had a little girl", I think.

Q. Did he say anything about how he had learned that?
A. No.

Q. Did he say anything about phone calls, is what I mean, having received any phone calls?
A. Yes, he said Jean had phoned him.

Q. On how many different occasions did Tom tell you that? Was it just once or more than once that he had had a phone call from Jean?
A. He said he - he said she's called a few times.

116 She gave evidence in cross-examination:

“Q. I think when Jean was about 14 years of age, she told you and your sister that she believed her mother was having an affair with Mr Keir, didn't she?
A. Yes.

Q. And that she was very angry about it?
A. Yes.

117 Fiona Chalmers said that they would usually meet at Jean Keir’s home. She initially said that they did not play basketball or netball together, however when pressed said “occasionally through the day we would get away for an hour, but she would always say, ‘I have to get home, make sure the phone didn’t call’ because Tom would be checking where she is. “ Fiona Chalmers agreed in cross-examination that the occasions on which she would see Jean Keir would primarily be the three or four times a year when her sister Shona McDonald, who had moved to the country, came to the city.

118 She gave the following answer speaking of Jean Keir:

119 She gave evidence:

“Q. Did she tell you there were times when she loved him and times when she didn't love him?
A. The only time she ever said she loved him is after we have had a discussion about ways of how we are going to help her get away, and to my observation it was: This is my situation and I am trying to make the best of a very bad situation.

Q. She didn't say that to you, did she?
A. She didn't say what?

Q. That it was a bad situation and she was going to try and make the best of it?
A. We knew the situation so we could see that.

120 She also gave evidence:

“Q. She said on occasions, "I want to be free from Tom and lead a normal life", that's correct, isn't it?
A. Yes.

Q. Then she would say, almost in the same sentence, "I love him. I love Tom", didn't she?
A. We knew Jean very well and it was her way of saying, "This is my situation and I will make the best of it because this is where I am".

Q. Despite what she was saying to you, you interpreted it another way, is that correct?
A. I am sorry but we always knew the situation so she didn't need to tell us, and she was also very embarrassed.
Q. Did she say to you, "I love him. I love Tom"?
A. After calling him a bastard, yes.”

121 Later in the cross-examination Fiona Chalmers said:

122 Fiona Chalmers agreed that Jean Keir did not tell her that she had a relationship with another man in later 1987.

123 When cross-examined as to her last conversation with Jean Keir, Fiona Chalmers agreed that she had made a statement in respect of the matter to the police. That the words she had now given “that something bad would happen in that house, you should leave” were not in the statement. She also agreed that she had not used those words in her evidence in the previous trials.

124 Following a weekend adjournment the cross-examination was resumed, however, before that was done Fiona Chalmers asked to clarify “an answer I gave on Friday that was changed by defence”.

125 She gave the following evidence:

126 Mr Hanley cross-examined Fiona Chalmers at some length and I considered to some effect upon the basis that this different version was not given in her statement nor in the evidence she had given in previous trials. In respect of the previous trials she gave the following evidence:

“Q. On both occasions you were reminded of the fact that you had said that, ‘one thing she said that really stuck in my mind was that God was pulling her one way and the Devil pulling her the other way’?
A. She was talking about Tom.

Q. You were asked about that particular line in your statement at both previous trials, weren't you?
A. Yes.

127 Fiona Chalmers agreed that she had previously said that Jean Keir’s voice sounded very strange in this conversation. She gave evidence:

128 Fiona Chalmers agreed that she had not included her reference to Michael in her statement or in evidence given at previous trials.

129 She further agreed that she had formed her impressions from the last conversation with Jean Keir without knowing about Carl Nieding.

130 Fiona Chalmers when asked when she had last spoken to Jean Keir before this conversation said “Possibly about six months”. She gave evidence:

“Q. The conversation you had six months earlier, did she sound very strange to you?
A. As I was saying, she was starting to deteriorate and just getting progressively worse and when a friend said that she was in a bad state, that’s when I called.

Q. Was she talking very slowly on the occasion you spoke to her six months earlier?
A. Yes. Well by this stage she was starting to.

Q. But the conversation you had with her six months earlier, was that on the telephone or face to face?
A. I’m sorry, I might have been at her house, I’m not sure, I can’t be certain.

Q. You didn’t see her very much really in 1998 (sic), did you?
A. I already said that, yes.”

131 Fiona Chalmers said that it was during the first half of 1987 that she and her sister discussed helping Jean Keir to leave the accused, setting up a bank account and her going to live in Inverell. She gave evidence:

132 Fiona Chalmers gave evidence:

133 She said that she had seen bruises on Jean Keir’s legs before the marriage and after it and also when they were at school together. She agreed that Jean Keir had never said to her “Tom hit me or did something to me to cause these bruises”.

134 Fiona Chalmers gave evidence:

135 Fiona Chalmers gave evidence:

136 Fiona Chalmers denied that she had become confused and was referring to matters that she had heard from other witnesses during the course of the previous trials.

137 In relation to the wearing of lipstick Fiona Chalmers agreed that there was some lip-gloss in some photographs she was shown of Jean Keir although as she worked in the field of make-up it might be that she has rather a different view about what constitutes make-up.

138 In respect of the birthday party Fiona Chalmers was cross-examined as to the man who came and said that Jean Keir told him “Tom sent him along”. She was cross-examined as to why she did not make any further inquiry, why she accepted him at the party and subsequently in driving them to the nightclub and home from it. I thought her answers adequate. Acceptance of his presence lends some support to the view of the accused’s controlling conduct towards Jean Keir. It is convenient to say that I think it probable that the accused had arranged for a man to “mind” Jean Keir on this occasion, despite his denials.

139 Fiona Chalmers agreed that the telephone conversation with the accused in which he referred to Jean Keir having contacted him was an occasion when she rang him probably some time in 1989. She said that she rang him in order to see what he would say. She agreed that she did not believe what the accused told her.

140 Fiona Chalmers said that Jean Keir was five feet six inches or five feet five inches in height.

141 She gave evidence:

“Q. I think when she was 14 years of age in 1980 you said she was angry because she believed that her mother and Tom were having an affair?
A. That's right.

Q. Did she say anything more about it at that stage?
A. Something that she overheard her father having an argument with their mother.

Q. In 1987 you recall Jean being very emotional and angry, don't you?
A. Yes, that was what I was talking about then.

Q. And the reason she was emotional and angry was that she told you that Christine and Tom were having an affair?
A. Yes.

Q. That's what you told the police in your last statement, wasn't it?
A. Yes.

Q. I think she made some comment to you, "Why doesn't she just marry him. She always sticks up for him." She was referring to Christine as you understood?
A. Yes.

Q. Did she tell you on one occasion whether she had seen anything that gave her that belief that Tom and Christine were having an affair?
A. Not that I remember.

Q. Did she say she heard something?
A. It was something to do with the father, overhearing something with the father having a fight with her mother.

Q. And this was in 1987, is it?
A. No, that was when we were younger.

Q. I am talking about the latter occasion in 1987?
A. That time was just her frustration of her mother not helping her and her mother always on Tom's side.

Q. You said in your statement that she was emotional and angry, and told you Christine and Tom were having an affair, that's what you told the police isn't it?
A. Yes.

Q. Was there some basis that she gave you for that belief?
A. No.

Q. Did you ask her about why she had that belief?
A. No, because I didn't need to ask.”

142 Taken to the occasion when Heather Strachan and Christine Strachan visited her in 1998 she gave evidence:

“Q. Did Heather, in your presence, scream out, "He's done something to her", and she is pointing to Christine, "Around his place all the time. I caught her washing his back in the bath tub"? Is that what Heather said to you in Christine's presence?
A. Yes.

Q. She appeared to be upset, did she?
A. Yes.

143 In cross-examination Fiona Chalmers also gave evidence as to a discussion at lunch during the first trial in relation to back washing however I shall deal with that at a later stage.

144 Shona McDonald her twin sister and Jean Keir formed a close group whilst they were at high school.

145 Shona McDonald left school after the other two and was married in 1986. Up until then she had lived in the Mt Druitt area. She then moved to the country living first at Berrigan on the Murray River and moving to Inverell in 1987.

146 Between the marriage of the accused and Jean Keir, Shona McDonald with her husband, then boyfriend, socialized from time to time with Jean Keir and the accused including going on camping trips with them. Whilst in the country she would come to Sydney every three or four months but would not always see Jean Keir. She also spoke to her on the telephone. Shona McDonald gave evidence:

147 Shona McDonald recalled one particular conversation when she came from Inverell to Sydney and met Jean Keir towards the end of 1987. The three women had gone to the local high school to shoot some baskets. As they were in the car about to leave, a conversation took place which she recounted in the following evidence:

1004 He said that he did not regard it as a threat to his wife’s loyalty to him because he had been doing the same thing himself.

1005 The accused, when it was put to him that Jean Keir might end in the arms of another man, said that he supposed it was all husbands’ nightmares but denied that it was his nightmare. He gave evidence:

1006 He denied that the relationship was deteriorating progressively through 1985, 1986 and 1987. He denied making threats to his wife and in particular denied threatening that he would kill her and Michael if she ever left him or ended up in the arms of another man.

1007 The accused gave evidence:

“Q. An occasion when Jean described to him, that’s Colin Page, an incident where you took her in a choke hold and said, ‘This is how easy. It would be easy to kill if ever I caught you messing around with someone else.’ Do you remember that evidence of Colin Page?
A. I remember what Colin Page said but that never happened. It was never said. Never happened.”

1008 Mr Crown took the accused through the evidence of the various witnesses as to both threats made by the accused which they had heard and threats to be inferred from evidence given on a hearsay basis. The accused denied them all. It is unnecessary for me to set out the questions and answers in detail to record that fact.

1009 The accused has maintained that he had an affair with Christine Strachan commencing before his association and subsequent marriage with Jean Keir, continuing at times throughout their marriage and after Jean Keir’s disappearance. Christine Strachan denies that allegation.

1010 The accused said that at least ten people are aware of this relationship however, there was remarkably little evidence to support it. The issue is relevant as it could explain the estrangement between Jean Keir and her mother in late 1987 and in1988 and also afford a reason for Jean Keir to dissociate herself from the accused and the marriage. It would seem to me, however, to be a vastly different question as to whether it would provide a reason for her to dissociate herself from her friends and relatives other than her mother.

1011 It would also affect Christine Strachan’s credit.

1012 It is convenient to deal with this matter when considering Mr Hanley’s submissions on the issue of Christine Strachan’s evidence.

Consideration

1013 I should note that the Crown in address did not rely upon the smells referred to by Christine Strachan, Mrs Smith and Ben Wilkes and in respect of which Dr Oettle gave some evidence. Accordingly I take that aspect no further.

1014 In considering the many issues that arose as to the relationship evidence I have not found it necessary to reach a concluded view on all the disputed matters. I have earlier indicated a view on some issues and I will not revisit them.

1015 A number of matters of which I am satisfied appear in the discussion below and they, together with the other evidence in the case, lead me to my final conclusion.

1016 It is convenient to deal with certain general matters first.

1017 I accept Mr Hanley’s submission that the passage of time and the two previous trials has led to the possibility of contamination of evidence by an awareness of what others have said before. In general, although not always, I have gone to the earliest version of each witness which has, in general, been brought out where relevant in the cross-examination.

1018 It is, I consider, apparent that following the marriage there was a period of considerable happiness and I do not think it correct to characterise the relationship as one of unrelieved disharmony. However, from about 1985 onwards the relationship was deteriorating and continued to do so. There were significant difficulties before Carl Nieding appeared on the scene.

1019 On the evidence the accused was not violent to his wife other than following the wrestling incident and on one occasion, which he raised, following his advice to her of his affair with her mother. Little was said of this occasion and I think it best not to rely upon it.

1020 The accused was, however, prepared to go beyond verbal disapproval. I accept that he put a T-shirt on his wife, he cut a swimming costume and secured Christine Strachan to line another.

1021 I accept that the long hours the accused worked and also the degree of involvement of her mother in the marriage were causes of dissatisfaction to Jean Keir.

1022 However, I think the accused’s jealousy, suspicion and control were also causes of dissatisfaction. I refer to the evidence of Dai Buckley and Darren Tonkin, the “minder” at the Chalmers’ party and the accused’s evidence that he expected his wife to let him know if she was going out. In this connection he clearly resented being lied to, as he said had occurred.

1023 Mr Hanley submitted that shortly before she went to Culburra Jean Keir faced a dilemma which he described in this way:

“ …..that is, she was dissatisfied with her life, dissatisfied with her marriage with the accused, she had become somewhat infatuated in a fairly immature way with Mr Nieding, and she was in a dilemma as to what to do with herself and what to do with her life”.

1024 In substance, his later submissions put that she resolved that dilemma by flight.

1025 Mr Hanley put that Jean Keir had been laying the groundwork for such a flight without taking Michael or suffering condemnation for such a step by complaining to her relatives and friends of the accused’s threats to hunt her down and kill her, particularly if she took Michael.

1026 He supported this view by reference to Jean Keir’s statement to Helen Page that Carl Nieding was teaching her about the Bible. Having regard to Helen Page’s views on religious matters I think that probably a social subterfuge from which no general conclusion should be drawn.

1027 Mr Hanley further referred to Jean Keir’s rejection of offers to help her leave from Fiona Chalmers and Shona McDonald and the explanation that “she loved Tom” and further, that, if they helped, the accused would hunt them down. Having regard to her general state of irresolution I do not think that any positive conclusion can be drawn from these statements.

1028 In any event, I think the calculated scheme Mr Hanley puts is very unlikely to have been within the contemplation or capacity of Jean Keir. It would not be consistent with someone who felt bound to tell her husband of her infidelity, despite warnings and who displayed the naivety, to which Mr Hanley referred, in her relationship with Carl Nieding.

1029 I do not think it probable that Jean Keir would have left without Michael. It is true that she told Carl Nieding that she wanted to leave her family and join him and that Maria Mateo spoke of her saying that she was thinking of leaving and not taking Michael. However, Maria Mateo insisted that these were thoughts, rather than plans and there is much evidence of the attachment of Jean Keir to Michael.

1030 Dr Vellani would be a very experienced judge of the attachment of individual mothers to their children. She had had a long discussion with Jean Keir in January 1988. She said:

“I knew that she was a very happy mother. She was very happy to have him and my recollection is that she was very close to her child.”

1031 I propose to go now to a number of matters that I accept, at least, as more probably than not having occurred.

1032 As I have said I was impressed by the evidence of Shona McDonald, I accept it. I think that Jean Keir did say at the high school in late 1987 that she could not leave that, “He’ll kill me. It doesn’t matter where I go”. I also accept that similar words were said on a number of occasions and that on one, at least, Jean Keir said to Shona McDonald, “If I took Michael he would definitely track me down, find me, kill me.”

1033 I also accept Shona McDonald’s evidence that Jean Keir told her that the accused had said to her, Jean Keir, that he would kill her if she ever left him.

1034 Fiona Chalmers gave evidence that on least three occasions Jean Keir told her that she could not leave home because the accused would kill her. I accept that was said.

1035 She later gave evidence as to a threat by the accused to “chop her up and feed her to the dogs”. This item was not referred to in her statement and at the earlier trials. It was also preceded by the words “I think”.

1036 I approach the evidence of Fiona Chalmers with an awareness that she, correctly as it turns out on my findings, formed the view the accused had murdered Jean Keir, relatively early. She also obviously had an adverse view of Christine Strachan. Apart from the matter referred to in the last paragraph she appeared to me to place a gloss on some of her earlier evidence to counter what she perceived to be an attack upon it by Mr Hanley. She had become a protagonist. That is not to say that her evidence is not correct, but it does mean that it should be considered carefully for bias, conscious or unconscious. I think it is better not to rely upon the threat as to “chopping her up”.

1037 Mr Hanley did refer to the unlikelihood of the use of some of the grisly expressions referred to. In fact I think it better not to rely upon them, however, I should point out that the accused does use forceful and colourful language on occasions. For example, his threat, on his own account, to Dai Buckley, Mrs Aiken’s evidence and the accused’s threat in relation to Carl Nieding that he would punch his lights out.

1038 I accept Mr Tonkin’s evidence as to the warning to Jean Keir in the event of infidelity.

1039 I accept Catherine Moore’s evidence as to the statements by Jean Keir, confirmed by the accused, that he had said to Jean Keir that if he could not have her nobody could have her.

1040 Catherine Moore said that this was put boastfully and standing alone it would mean little. However, it does not stand alone.

1041 I accept Catherine Moore’s evidence that the accused “ grabbed Jean Keir out of the water and put the T-shirt on her. He basically stuck it over her head and arms and sort of shoved her back in the water”.

1042 It is convenient to note that neither Counsel put to me that anything followed from Catherine Moore’s evidence as to a telephone call on 9 February 1988. Presumably it was made whilst Jean Keir and Carl Nieding were at the plaza. Its content is neutral. It would be consistent with Jean Keir returning home and being aware that the accused would not let her go to the function or with an intention to flee beyond contact with family or friends. Apart from Catherine Moore’s confidence that the call was not made after 9 February 1988, it would seem highly unlikely that such a call would be the only one that Jean Keir would make after “disappearing”. The timing of Catherine Moore and Carl Nieding would not seem to accord with the call being made by Jean Keir after arriving at 18 Wilkes Crescent.

1043 I accept Maria Boros’ evidence that Jean Keir sought her advice and said “I am upset and I love my little boy I want my marriage to work but I am afraid of Tom.” To her inquiry as to why she was afraid Jean Keir replied “I couldn’t tell you.” I also accept that Maria Boros suggested to Jean Keir that she discuss her problems with Helen Page.

1044 I accept Helen Page’s evidence that Jean Keir told her a week or two before she went missing that she was “terrified of Tom”.

1045 I accept Colin Page’s evidence. In particular his evidence that Jean Keir said to him:

“She said that she was frightened of him because she – sometimes they would be fooling around and they would be wrestling around, all of a sudden he would get very serious and get her in some sort of choke hold and say, ‘This is how easy it would be to kill you if ever I caught you messing around with somebody else’.”

1046 I accept Marie Mateo’s’ evidence that Jean Keir told her on at least one occasion that she felt that if she left the accused would kill her.

1047 Heather Strachan said in her original statement to police: “Sometimes Tom used to sit around all night when there were a few of us in the house. He said, ‘If Jean ever left me he would cut her up and feed her to the dogs’.”

1048 However, in her evidence in chief she added to this “hunt her down and kill her” and she seemed quite unable to put a context to these statements. As I explain later I do not rely on these expressions.

1049 As Mr Hanley pointed out Christine Strachan, whilst noting Jean Keir’s unhappiness about the accused’s controlling ways, did not give evidence to suggest he had been violent to her or had threatened her. One would hardly expect such conduct, if it did occur, to take place before a mother-in-law.

1050 I come now to deal with Mr Hanley’s submission that Christine Strachan “is a witness who is prepared to say what suits her, whatever she is pursuing at the time” and the further submission as to her alleged affair with the accused.

1051 I should say first that Christine Strachan is a protagonist in this matter. I have, in any event, treated her evidence with caution and relied upon it, in general at least, only where there is other material to support it.

1052 Christine Strachan agreed that in a letter which she wrote to provide background information for a detective she set out certain factually incorrect material so, as she put it, “he would do something.”

1053 In chief Christine Strachan had said that about a year after Jean Keir disappeared a friend Anne Wilkes told her that she had a friend, a detective, who might be able to help find her daughter.

1054 She wrote out a letter of some six pages about the events that had happened. In chief she gave evidence:

1055 She agreed in cross-examination that the letter also said that Jean Keir had meet Carl Nieding through a friend at work. She said: “I didn’t want him to know that she met him at a park.” She agreed the statement was incorrect.

1056 Christine Strachan said that she could not remember speaking to the detective and claimed that she thought he was a “private eye” rather than a policeman.

1057 Mr Neave gave evidence that he is now a retired Inspector of Police. As the son of Anne Wilkes, who knew Christine Strachan, he was asked by his mother if he could help. He said that he told Christine Strachan on the telephone that he was a Detective Sergeant of Police. He arranged for her to supply the letter in April 1989 and thereafter spoke to her on the telephone up to three more times. He did in fact make quite extensive enquiries, including meeting with Carl Nieding, however, there was no result. He then passed his material to Detective Oxford of the Homicide Squad.

1058 Mr Neave was not a private detective and I find Christine Strachan’s evidence that he was not easy to accept. On the other hand, they did not meet. They clearly had spoken on the telephone and she had written the letter at his request rather than, as she said, at the suggestion of his mother. There would seem little purpose in being untruthful about that.

1059 More significant, I think, is that, whilst there was reference in the letter to the birthday card and present sent with the accused to Culburra, there was no reference to the enclosed note which Christine Strachan had said she sent. In cross-examination she said that she had forgotten to put that down. No doubt that is possible but seems somewhat unlikely. In any event, as I have indicated earlier, I have not relied upon the accused seeing such a note.

1060 The letter for Mr Neave was not a sworn document, however, what was done reflects significantly upon Christine Strachan’s credit.

1061 Mr Hanley also referred to the matter of the electric heater. I have already indicated why I do not consider that this is material to this issue.

1062 Another matter relied upon by Mr Hanley was Christine Strachan’s evidence in relation to what has been referred to as the Wendy incident.

1063 Christine Strachan gave evidence in chief that the accused had telephoned her to say that Jean Keir was packing and leaving him because she had been told by a girl Wendy that she, Wendy, and the accused were having an affair. Christine Strachan went to the house and found an angry Jean Keir packing. She gave evidence that the accused said: “She couldn’t leave me ….if she leaves me I’ll put a bullet through her head and through her son’s.” Subsequently, she said everybody calmed down “So I didn’t take any notice of it.”

1064 Mr Hanley established in cross-examination that this threat was not brought forward in Christine Strachan’s earlier statements and first appeared in a statement of 6 May 1992 when she said the police wished to resist an application by the accused for access to Michael.

1065 It may be that Christine Strachan had not mentioned the matter before, as she claims, because she did not take it seriously, however, appearing when it did met the needs of the moment and I have not thought it appropriate to rely upon the incident.

1066 A further matter relied upon by Mr Hanley relates to the issue of whether the accused and Christine Strachan were having an affair.

1067 The accused’s evidence is that, although not continuous, he and Christine Strachan were having an affair before his marriage, during the marriage including after the disappearance. Christine Strachan strongly denies any affair.

1068 I do not accept the accused as a truthful witness, on the other hand, Christine Strachan’s credit is not untarnished.

1069 It is significant that the accused gave evidence that the tension leading to the Culburra trip was that “Jean was still upset about me having the affair with her mum”. Carl Nieding, he said, was “out of the picture.” Yet in his record of interview he clearly ascribed it to the affair with Carl Nieding, which, he said, “in January I found out that it was still going.”

1070 Fiona Chalmers gave evidence (see [141]) that Jean Keir had complained to her at age 14 years that she believed that her mother and the accused were having an affair. She also gave evidence that she had said in her statement that Jean Keir was irrational and angry in 1987 and told her that “Christine and Tom were having an affair.” She said in evidence, however, that that occasion was “just her frustration of her mother not helping her and her mother always on Tom’s side.”

1071 Fiona Chalmers also said that Heather Strachan claimed that she had caught Christine Strachan washing the accused’s back in a bath tub. Heather Strachan denies saying such a thing.

1072 Fiona Chalmers made a statement to police after the first trial that at a coffee shop during the trial Christine Strachan had referred to washing the accused’s back. Christine Strachan denied doing so and said that it was her sister Irene Page who made that comment. Irene Page gave evidence confirming that statement and that she had washed the accused’s back whilst he was incapacitated by a back injury. (See [277] to [283]).

1073 Mr Hanley submitted that it was “totally unbelievable” that Irene Page would act as she said she did. I do not find it so. After all she was employed by the accused just as Christine Strachan was. She was asked to help. She was reluctant but did assist. Many people do such things in such circumstances. Having seen Irene Page I find it hard to accept that she had committed deliberate perjury as to which of the two sisters washed the accused’s back.

1074 The accused was aware that Christine Strachan had a scar in the area of her vagina. His solicitors wrote to the Director of Public Prosecutions seeking a gynaecological examination. That was not agreed to, however, Christine Strachan did not deny the scar which she said was due to intercourse too soon after childbirth.

1075 Christine Strachan gave an explanation as to how the accused became aware of this as follows:

….

I told Jeanie not to get, and I asked him to, I was talking to the two of them in the hospital and well, he didn’t do it, did he, because a week after my daughter was in the same boat I was and she had to be taken to hospital for the stitches.”

1076 Mr Hanley focused upon the added reference to Jean Keir experiencing the same difficulty and by reference to hospital records and Dr Vitelli’s evidence showed that this was not, literally at least, so. This, he put, was evidence of Christine Strachan’s willingness to lie.

1077 I do not agree. The warning Christine Strachan gave seems, having regard to her own experience, by no means unlikely. Jean Keir did seek some treatment and the precise nature and extent of it does not seem to me to matter much. The detail could easily be misunderstood.

1078 The accused and Christine Strachan were associated for quite a long time, as employer and employee, as mother of a young future wife and as friends. I think it improbable that there was an affair but cannot in the evidence before me exclude the possibility that there was.

1079 The result of these matters is that I approach Christine Strachan’s evidence with great care and that I bear in mind a possible reason for Jean Keir to leave her husband but not one, in my view, at all likely to cause her to sever communication with all her family and friends including her son.

1080 Mr Hanley laid emphasis upon the absence of violence in the accused’s past and pointed out that despite his comments as to what he might do to Carl Nieding he in fact adopted a very calm and reasonable attitude. He put that Christine Strachan’s evidence portrayed the accused as an essentially reasonable man. He drew attention to the accused’s willingness to take in Heather Strachan, Mr Tonkin and Maria Mateo.

1081 Mr Hanley raised a question as to why Jean Keir went back to 18 Wilkes Crescent on the night of 9 February 1988 if she were in fact afraid of the accused and what he might do.

1082 The point is a valid one, however, I think there are several answers to it. Jean Keir was clearly reluctant to go home and was urged by Carl Nieding to attempt to work out her problems with the accused. She respected Carl Nieding and obviously regarded him as a man who gave sound advice.

1083 Further, it is likely that she had realised that there was no future for her with Carl Nieding. He gave evidence “….the first thing when I opened the door, she knocked on the door and looked at my face and she said words to the effect of, ‘I’ve made a mistake’.”

1084 Further, Michael was at 18 Wilkes Crescent.

1085 Carl Nieding described her “as resigned to go back”. It seems likely that she proposed to try again to make her marriage work.

1086 Appreciating that there is a good deal of hearsay evidence involved, I consider that there is enough material from enough sources and of sufficient consistency to lead me to conclude beyond reasonable doubt that the accused did over a period of years convey threats to Jean Keir that he would kill her if she left him or “messed around with somebody else.”

1087 I think it more probable than not that the threats extended on occasion to such phrases as “cut her up and feed her to the dogs”. However, I think it better on this aspect to rely upon the matters of which I am satisfied beyond reasonable doubt.”

1088 The occasion on which the accused slapped Jean Keir was not an instantaneous response to some event. He heard the “yahooing” and went around the back. He “sprung” the group and then he disciplined his wife with a slap to the face.

1089 It is convenient to now set out a number of propositions:

(a) By the end of 1987 the relationship between Jean Keir and the accused, to use his words, was “stretched”.

(b) Jean Keir had had an association with Carl Nieding which had involved intercourse of which the accused was aware.

(c) To Jean Keir’s suggestion of marriage counselling in 1987 the accused had replied to use his words: “She wouldn’t know what they were talking about because they were not here. If we’ve got any problems we will sort them out between ourselves”.

(d) In February 1988 Jean Keir had gone to Culburra. In the accused’s words: “Jean said she needed time to get herself sorted out. She wasn’t sure what she wanted to do”.

1090 For ease of reference I repeat my findings in relation to the Culburra trip:

(a) The accused went to bring Jean Keir home several days earlier than planned.

(b) That Jean Keir did not want to come home.

1091 On the way home Jean Keir fled from the accused. She did not tell him that she proposed to do so and left him to discover that she had gone. Further, she went to Carl Nieding.

1092 Communication having been established between the accused and Carl Nieding, the accused said, I accept, something like “bring Jean home, bring her back here.”

1093 That was done under the circumstances I have discussed earlier.

1094 At that point the accused knew that his wife had run away from him and that she had gone straight to Carl Nieding. He must have known that his marriage was in grave difficulty. Having regard to his expressed attitudes he had, I infer, a motive to kill or at least inflict grievous bodily harm upon Jean Keir. Of course having a motive does not, of itself, establish that he acted upon it.

1095 Jean Keir went into the house. Except for the ‘sightings”, in the broader sense, which I have discussed earlier and the accused’s 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 Government.

1096 In May 1991 seven human bones were found in the area to the west of the house 18 Wilkes Crescent Tregear, an outer suburb of Sydney, quite close to the western wall of the house.

1097 I am satisfied beyond reasonable doubt that the mitochondrial DNA of two of these bones is consistent with an offspring of Christine Strachan and that their nuclear DNA is consistent with an offspring of Christine Strachan and Gaspar Baan.

1098 I am also satisfied that it is 400,000 times more likely that the two bones originated from a child of Christine Strachan and Gaspar Baan than from a child of an unknown couple in the population.

1099 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.

1100 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.

1101 I should note that, on the whole of the evidence, I do not accept the accused’s account of what happened in relation to Jean Keir on the night of 9 February 1988 or thereafter. I bear in mind in that regard the principles referred to in [12].

1102 I have earlier indicated my view that the Crown had proved beyond reasonable doubt that the accused was not acting under provocation when he killed Jean Keir. I should set out my reasons for that conclusion.

Provocation

1103 Mr Hanley referred to an alternative verdict of manslaughter based upon provocation, albeit, he made it clear that it was not part of the defence case.

1104 Section 23 of the Crimes Act 1900 provides:

23 Trial for murder—provocation

(a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission;

(b) the act or omission causing death was not an act done or omitted suddenly, or

(c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm.

(4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation.

1105 Mr Hanley helpfully stated in short form some of the matters that might be relied upon when he said:

“That is the behaviour of Jean Keir as typified by the Crown’s submissions that her behaviour was provocative to the accused and on this particular day when she had left him and gone to Carl Nieding’s home that was the final insult, and I take it final act of provocation, that may have caused him to act in a manner in which he lost control, taking into account the objective fact and those particular to him of which there is some evidence in this trial.”

1106 Were I hearing this matter with a jury, it would be my duty to first consider whether there could be constructed a realistic hypothesis concerning the facts proved in evidence, and the available inferences which could give rise to the possibility of the defence being a serious issue for consideration. (R v Peisley [1990] 54 A Crim R 42.)

1107 As I am sitting alone I think it more direct to go straight to the question: “May the conduct of Jean Keir have induced an ordinary person in the position of the accused to have so far lost self control as to have formed an intent to kill or inflict grievous bodily harm on Jean Keir’?

1108 In considering this question I direct myself:

(a) An “ordinary” person is one who has the minimum powers of self control expected of an ordinary citizen who is sober and of the same age and consequent level of maturity as the accused.

(b) When one speaks of the effect of provocation on an ordinary person in the position of the accused, that phrase means an ordinary person who has been provoked to the same degree of severity and for the same reason as the accused.

(c) That I should take full account of the sting of the provocation actually experienced by the accused.

(d) That the provocation can include grossly insulting words or gestures.

(e) That the conduct or words of Jean Keir which allegedly induced the loss of self control on the part of the accused, need not have occurred immediately before the act causing death but may have occurred at any previous time and may be a course of conduct over a period of time, even years, or may include a course of conduct over a period of time together with other conduct immediately prior to the act causing death.

(f) That the words or conduct in question must be viewed as a whole and also in the light of the history of disputation between Jean Keir and the accused.

1109 I have no doubt that the answer to the question I have posed is in the negative. I do not propose to go to the evidence in detail because, on no reasonable view of it, do I consider that the answer should be otherwise.

1110 I should note that I do not consider it necessary to address the question arising under s 23(2)(a).

1111 The negative answer has the consequence that the Crown has negatived provocation.

Conclusion and Finding

1112 The above views and findings lead to the conclusion that the accused is guilty of murdering Jean Angela Keir on or about 9 February 1988 at Tregear in the State of New South Wales. I so find.

**********

Last Modified: 10/22/2004

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Citations

Regina v Keir [2004] NSWSC 964

Most Recent Citation

Keir v R [2007] NSWCCA 149

Cases Citing This Decision

3

State of New South Wales v Keir (Final) [2022] NSWSC 1084

Doe v R [2008] NSWCCA 203

Keir v R [2007] NSWCCA 149

Cases Cited

5

Statutory Material Cited

3

R v K [2003] NSWCCA 406

Pollitt v The Queen [1992] HCA 35

CITATION:	Regina v Keir [2004] NSWSC 964
HEARING DATE(S):	27-30/07/04 2-6/08/04 9-13/08/04 16-20/08/04 23-26/08/04 30/08/04 2/09/04
JUDGMENT DATE:	22 October 2004
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	M W Campbell AJ
DECISION:	Guilty
CATCHWORDS:	Domestic murder - old bones - DNA - relationship evidence - prison informers.
LEGISLATION CITED:	Criminal Procedure Act 1986 Evidence Act 1995 Crimes Act 1900 s23
CASES CITED:	Fleming v R (1998) 197 CLR 250 R v K [2003] NSWCCA 406 R v Clough (1992) 28 NSWLR 396 Doheny and Adams [1997] 1 Cr App Rep 369 R v Keir [2002] NSWCCA 30 R v GK [2001] NSWCCA 413 R v Peisley [1990] 54 A Crim R 42
PARTIES :	Regina Thomas Andrew Keir
FILE NUMBER(S):	SC 70012/02
COUNSEL:	G J Tabuteau (Crown) S S Hanley (Accused)
SOLICITORS:	J Henderson - DPP (Crown) G Goold (Accused)