Keir v R

Keir v R - [2007] NSWCCA 149 - NSWCCA 2009 case summary — Zoe

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Overview of Crown and Defence Cases at Trial 8 The Appellant and Jean Angela Keir (nee Strachan) were married on 11 August 1984, when the Appellant was 26 years old and Jean Keir was 18 years old. They had met through Jean Keir's mother, Christine Strachan, who worked for an upholstery business of which the Appellant was a part owner. On 31 December 1984, a son, Michael, was born to the marriage. Following their marriage, the Appellant and Jean Keir lived at a home at 18 Wilkes Crescent, Tregear, a property purchased from Christine Strachan's mother. 9 It was the Crown case that the Appellant and Jean Keir lived happily together for a period. However, Jean Keir became unhappy in the marriage and the Appellant was jealous and possessive of her. In late 1987, Jean Keir met Carl Neiding and had sexual intercourse with him on one occasion. She informed the Appellant of this fact. 10 On about 4 February 1988, Jean Keir went to Culburra, on the south coast, with her sister and her sister's boyfriend. Although the Appellant had agreed to this, on 9 February 1988, he drove to Culburra to bring his wife home. He did not tell her that he was coming and, when he arrived there, he forced her into his car. When the Appellant stopped at a service station at Casula, Jean Keir left and hitchhiked to Mr Neiding's flat at Bondi. After telephone communication between the Appellant and Mr Neiding, Mr Neiding drove Jean Keir to her home at 18 Wilkes Crescent, Tregear, and left her there with the Appellant, at 10.30 pm or later on 9 February 1988. On the Crown case, Mr Neiding was the last person, apart from the Appellant, to see Jean Keir alive. 11 It was the Crown case that, on that night or the next morning, the Appellant murdered his wife and disposed of her body, which has never been found. The Crown alleged that the Appellant had buried his wife's body initially in the backyard of 18 Wilkes Crescent, Tregear and later had moved the body elsewhere. In so doing, the Crown alleged that the Appellant had left small bones from the body in the ground of the Tregear property. The Crown contended, on the basis of DNA evidence, considered together with other evidence in the case, that the bones were those of Jean Keir. 12 It was the Appellant's case that Jean Keir was still alive. It was contended that she had had an affair with Mr Neiding, and had left the Appellant for Mr Neiding on 10 February 1988. The Appellant gave evidence at the trial. He said that he had not seen Jean Keir since that date, although he alleged that he had spoken to her on the telephone and that she had visited the house on two occasions in his absence, which he could tell from items which she had left behind. 13 A further issue in the trial giving rise to grounds of appeal, was the question whether Jean Keir had been seen by others, or had spoken to others, since 9 February 1988. 14 The Appellant contended at trial that the DNA evidence was unreliable, given the risk of contamination and what was said to be conflicting evidence of persons who had undertaken DNA analysis of the bones in Victoria, South Australia and the United States of America.

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Ground 1(a) - Verdict Unsafe and Unsatisfactory by Reason of the Manner in Which the Trial Judge Dealt with the Person Located Report 21 This ground of appeal relates to a document tendered in the trial entitled "Person of Interest Report for 'Located Person' dated 30/10/88" (Exhibit M2). This document formed an important part of the Appellant's case that Jean Keir was, in fact, still alive. 22 The document was created by Inspector Phillip Higgins at the Mt Druitt Police Station on 30 October 1988, some eight months after the disappearance of Jean Keir on 9 February 1988. The body of the form contained the following entry: "Approximately 1 month ago, [Jean] KEIR was seen by a friend of the family in the shopping centre at Emerton in Mount Druitt. When the friend attempted to approach KEIR and speak to her, KEIR turned and ran away. It now [sic] the opinion of KEIR's family that KEIR does not want to get in contact with any members of her family. The reason for this is unknown to the family. After speaking with KEIR's brother, Leonard STRACHAN and her sister, Heather STRACHAN they no longer fear for her safety and welfare as they did in there [sic] original missing person report which they made in May this year. They are still worried about her, but agree that it is no longer a police matter." 23 The Person Located Report was the second "person of interest" report filed at Mt Druitt Police Station in relation to the disappearance of Jean Keir. The first report (Exhibit M1) was created by Inspector Higgins on 1 May 1988, following a visit to the station made by Clifford Strachan and Heather Strachan to report that Jean Keir was missing (Trial Judgment [893]). 24 Although Inspector Higgins agreed that he had filled out the Person Located Report, he had no independent recollection of doing so. He made a statement dated 25 September 1991 which referred to the event. He assumed that Leonard Strachan was present and he spoke to him, although no check was made on the identity of persons making such reports, nor are they required to sign forms or entries in official notebooks ([897]-[898]). Campbell AJ noted at [899] - [900] that the alleged sighting of Jean Keir was that of Jennifer Amos (previously Soler) to which further reference will be made shortly (concerning Ground 1(b)). As will be seen, Campbell AJ at [890] concluded with respect to the evidence of Mrs Amos, that her alleged sighting did not give rise to a reasonable possibility that Jean Keir was alive after 10 February 1988. 25 Campbell AJ turned to that part of the Person Located Report which asserted that members of the Strachan family "no longer fear for [Jean Keir's] safety and welfare". Clifford and Heather Strachan were called as Crown witnesses at trial. Both agreed that they had attended the police station in May 1988 to report that Jean Keir was missing. They denied, however, that they had attended the Mt Druitt Police Station in October 1988, let alone that they took part in an interview or "withdrew" their concern about the whereabouts of Jean Keir ([901]). 26 Jean Keir's brother, Leonard Strachan, was called as a witness in the Crown case. Leonard Strachan would have been 14 years old in October 1988. He denied that he had attended the police station at all, let alone for the purpose of informing police that there was no longer a concern for the whereabouts and welfare of his sister. 27 In his written submissions, the Appellant repeats the submission advanced on his behalf by counsel at the trial before Campbell AJ. He contends that the Person Located Report should have been treated by Campbell AJ as a reliable document which recorded accurately the words and actions of Clifford, Heather and Leonard Strachan on 30 October 1988. The Appellant submits that each of these persons gave perjured evidence at the trial, denying that they had visited the police station and had made the report on 30 October 1988. The Appellant submits that Campbell AJ "erroneously and wrongfully disregarded and rejected the official police document" and "wrongfully accepted perjury over a proven fact". The Appellant submits that, if his Honour had accepted the Person Located Report, he would have been bound to acquit the Appellant. 28 The Crown submits that Campbell AJ approached this issue carefully, having regard to the defence submission that the Strachans were lying, leading his Honour to "scrutinise their evidence with great care" ([908]). His Honour considered Leonard Strachan to be a "straightforward witness" and that it "is not easy to see why he would lie now" on this topic ([906]). Campbell AJ observed that it was not easy to see why Heather Strachan would deny going to the police station if she had in fact done so ([907]). 29 The Crown submits that it was open to the trial Judge to make the findings which he did about the Person Located Report, taking into account the evidence given by Inspector Higgins and by Clifford, Leonard and Heather Strachan. Campbell AJ rejected submissions at trial that the Strachans had committed perjury at the trial. The Crown submits that no error is disclosed in his Honour's decision to accept the evidence of the Strachans at trial, which had been evaluated carefully, that they had not attended the Mt Druitt Police Station in October 1988 and had not withdrawn the person of interest report initially made in May 1988. 30 In approaching this ground (and other grounds) of appeal, it is important to bear in mind that Campbell AJ, as trial Judge, observed the witnesses giving evidence. His Honour had the advantage of hearing the evidence given and assessing the demeanour of witnesses in the trial. His Honour has given careful reasons in his detailed judgment for accepting the sworn evidence of the Strachans at trial. 31 The conclusions of Campbell AJ concerning the Person Located Report involved two steps:

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(c) the Person Located Report - the document considered with respect to Ground 1(a). 36 After a detailed analysis of the sightings' evidence ([809]-[931]), Campbell AJ concluded at [932]: "Considering the evidence as to 'sightings' and analogous matters both individually and together, against the background of the other evidence in the case, I am satisfied beyond reasonable doubt that the Crown has negatived any reasonable possibility that Jean Keir was alive after 10 February 1988 arising from the material dealt with under this heading." 37 In his written submissions in support of this ground, the Appellant took, as a starting point, the observations of the Court of Criminal Appeal in R v Keir (2002) 127 A Crim R 198 at 207 [37] where, in declining to apply the proviso, Giles JA (Greg James and McClellan JJ agreeing) touched upon the sighting evidence: "The Crown case was strong. But it can not be taken in isolation from the identification evidence, and although reasons for doubting its reliability or credibility could properly be put forward that evidence can not be swept aside. The jury had to evaluate the evidence, and it would have been sufficient for the appellant that the identification evidence brought reasonable doubt. Miss Soler, in particular, was independent from the appellant and said that the person she thought was Mrs Keir had curly hair, which Mrs Keir had not had when previously known to her: other evidence showed that Mrs Keir had changed her hair style and had curly hair in early 1988. I do not think it can be said that, had the jury not been left with an erroneous appreciation of the significance of the DNA statistical evidence, the appellant would inevitably have been convicted." 38 The Appellant notes that these observations were made by the Court before the evidence of Ms Chessnut and the Person Located Report became available. Accordingly, the Appellant submits that there was a stronger body of evidence of sightings before Campbell AJ than that which had been adduced at the first trial in 1999 and was before the Court of Criminal Appeal in 2002. The Appellant submits that the totality of the evidence of sightings represented substantial exculpatory evidence which gave rise to a clear reasonable doubt. He submits that this evidence "cannot be disregarded, rejected or swept aside" and that Campbell AJ erroneously and wrongfully disregarded and rejected the evidence of sightings of Jean Keir after 9 February 1988. 39 The Crown submits that the trial Judge's conclusion, that the Crown had negatived any reasonable possibility that Jean Keir was alive after 9 February 1988, had been reached after careful consideration of the evidence. The Crown submits that the observations of the Court of Criminal Appeal in 2002 have no application to this appeal which follows a new, and second, retrial. Any comments made by the Court in 2002 are confined to the evidence given at the first trial and have no bearing on this Court's analysis of the findings of Campbell AJ with respect to the evidence adduced in the present trial. 40 In approaching this ground of appeal, it is appropriate to observe that the Appellant does not contend that error is demonstrated in any specific part of the detailed analysis of Campbell AJ with respect to the sightings' evidence. Rather, the Appellant contends that the sightings' evidence was such that the Crown could not exclude the reasonable possibility that Jean Keir was alive after 10 February 1988 and, accordingly, there was a reasonable doubt concerning the guilt of the Appellant. 41 Like Campbell AJ, I will consider this ground of appeal by reference to the individual categories of evidence, then by assessment of the cumulative effect of the different categories.

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I do not consider it necessary to pursue this issue because at best the matter depends upon the impression of a five or six year old child. One would think that the natural reaction would have been to attempt to identify the person and clearly enough Jean Keir was not in fact identified." 44 I detect no error in his Honour's approach to this evidence and the conclusion reached with respect to it, which was clearly open. 45 Michael Keir was a little over three years old when his mother disappeared. He gave evidence at the trial of having seen her on two occasions since 9 February 1988. The first occasion was at the Mt Druitt swimming pool when he was about seven years old. He said that he was there with his cousin, Jenny Page. He told her that he had seen his mother, but she did not believe him. In cross-examination, Michael Keir agreed that his uncle, Leonard Strachan, could also have been at the pool (T1680-1681). The second alleged sighting by Michael Keir was in August 1998 when he said that she was sitting in a parked car across the street from the home of his grandmother, Joan Keir, where he was staying at the time. Michael Keir gave evidence that his grandmother had agreed with him when he pointed out his mother to her (T1682-1683). Michael Keir was cross-examined as to his recollection of both sightings. 46 In relation to the first alleged sighting by Michael Keir, Christine Strachan gave evidence that Michael had told her when he arrived home from the pool that he had seen Jean Keir, but that he had not said anything to Jennifer Amos or Leonard Strachan about it. Leonard Strachan gave evidence at the trial that he recalled the occasion, and he did not see anyone who looked like Jean Keir or who was Jean Keir (T861). In relation to the second occasion, Michael Keir's evidence was supported by a statement that Joan Keir had given at the previous trial. She had died before the third trial, as had the Appellant's father, Andrew Keir. As Campbell AJ noted at [835], the defence did not press in address the claimed sightings by Joan Keir or Andrew Keir. Nevertheless, his Honour stated at [835] that he had considered the transcript of their evidence carefully, but did not consider, when taken with the other evidence in the case, that it raised any reasonable possibility that Jean Keir was alive after 10 February 1988. 47 Having considered evidence touching upon the sightings by Michael Keir, Campbell AJ concluded at [850]-[851]: "It is, I think, relevant that it was Michael, who had last seen his mother when he was three years old, apart from the suggested swimming pool occasion, who first identified the woman in the car. Joan Keir had the suggestion put to her by a witness whose own basis of identification must be very doubtful. Of course in her situation as the accused's mother to see Jean Keir would be a wish fulfilled.

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Having regard to the evidence as a whole I do not consider these two 'sightings' to raise a reasonable possibility that Jean Keir was alive after 19 February 1988." 48 I do not detect any error in his Honour's approach to the alleged sightings by Michael Keir. It was open to his Honour to reach the conclusion which he did with respect to this evidence. 49 As Campbell AJ observed at [852], trial counsel for the Appellant pressed vigorously the suggested sighting by Jennifer Amos as raising a reasonable possibility that Jean Keir was then still alive, and that the Crown had not negatived that possibility. It was the alleged sighting by Mrs Amos which was the subject of the Person Located Report considered above (concerning Ground 1(a)). 50 His Honour undertook a close examination of the evidence of Mrs Amos (at [853]ff). Mrs Amos had gone to school with Jean Keir, but had rarely seen her after leaving school. In about October 1988, Mrs Amos was working at a fruit shop in Emerton as a cashier. While working one day, at a time when the other two cashiers were on a break and when she was very busy, Mrs Amos said in evidence that she thought she saw someone resembling Jean Keir at the ATM next door to the fruit shop, about 30 feet from the place where she was standing. In examination in chief, Mrs Amos was asked by the Crown (T761.17): "Q. Can you tell us what you saw or noticed in terms of this person? A. I thought I saw someone that resembled Jean at the ATM but it was just a quick glance as I was serving customers at the time, and the sun was coming down from the dome on to the floor and just made it too glary to really recognise anyone. Q. At the time that you had this glance to the ATM, were you in the process of serving a customer or were you between two customers, do you recall? A. Between the two customers." 51 In the course of his analysis of the evidence of Mrs Amos, Campbell AJ said at [861]-[863]: "She said that it was a good five or six years before that that she had last seen Jean Keir and that her hair had always been straight. She was obviously confused as to the period of time.

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Evidence of the Appellant 55 In his evidence at trial, the Appellant stated that he had spoken with a number of people who had told him that they had seen Jean Keir, either in the company of Mr Neiding or on her own. 56 The Appellant alleged that he had met a man in Crows Nest who knew Mr Neiding and who had informed him that he had seen Mr Neiding at The Rocks in mid-1988, with a girlfriend whose description matched that of Jean Keir. The Crown called the man, Peter Henry Heibloem, who conducted personal development seminars over two weekends a year at a Crows Nest venue where the Appellant allegedly spoke with him. Mr Heibloem gave evidence that he did not know Mr Neiding, the Appellant or Jean Keir and had not been to The Rocks since he moved from Sydney in 1974 ([815]-[816]). 57 The Appellant alleged that, some time between May and July 1988, he had telephoned Karl Heinz Neiding, the father of Carl Neiding, who told him that he had seen his son recently with a new girlfriend, who matched the description of Jean Keir. Karl Heinz Neiding gave evidence at the first trial. The transcript of his evidence was tendered at the second trial and again at the present trial. He stated that he had been shown photographs of Jean Keir and had never seen the woman in the photographs with his son. He recalled receiving a telephone call from a man asking as to his son's whereabouts, but could not tell him anything at the time. Whilst Karl Heinz Neiding recalled his son, Carl, coming to visit once with a girl from Adelaide, he recalled no women coming from Sydney. 58 Campbell AJ was satisfied that the Crown had negatived any reasonable possibility of Jean Keir being alive on the basis of this evidence ([821]-[828]). 59 The Appellant alleged that his aunt, Marlene Joan Wright, had told him that she had seen Jean Keir. Ms Wright said in evidence that she had never told the Appellant, or any other person, that she had seen or heard from Jean Keir ([831]). She agreed that her sister and the Appellant's mother, Joan Keir, had told her she had seen Jean Keir in 1988 sitting in a red motor vehicle opposite her house ([832]). 60 The Appellant gave evidence that he received a telephone call from Jean Keir two-to-three weeks after she walked out in February 1988 ([516]). The Appellant said that Jean Keir paid a visit to the Wilkes Crescent, Tregear residence in May 1988 and telephoned him as well ([518]). The Appellant was cross-examined about the phone calls and the alleged visits (T1604-1620). Following a summary of the evidence of the Appellant concerning these telephone calls and visits, Campbell AJ concluded at [522]: "It is convenient to say that, quite apart from other matters, the account of these conversations does not ring true to me. Why would Jean Keir ring the man from whom she had run away rather than her family and friends, even if not her mother? Why did she not at least wish to speak to Michael? The comment 'she had split with Carl' implies that she had continued a relationship with Carl Neiding. I do not believe this to be the fact. Most of the conversations appear to have been cut short by Jean Keir yet she was supposed to have initiated them. It is difficult to think of a rational explanation for Jean Keir being prepared to inform the accused that she had had a child, not his, but not inform her family and friends." 61 The trial Judge had the opportunity to see various witnesses, including the Appellant, give evidence at the trial and to form a view concerning credibility and reliability. No error is demonstrated in his Honour's reasoning and findings, which were clearly open on the evidence.

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Ground 1(c) and (d) - Verdict Unsafe and Unsatisfactory by Reason of the Trial Judge's Acceptance of Particular DNA Evidence at the Expense of Other DNA Evidence 67 It is appropriate to consider Ground 1(c) and (d) together. 68 DNA evidence constituted a critical part of the prosecution case against the Appellant. Campbell AJ undertook a detailed examination of evidence concerning DNA extraction and analysis before moving to findings concerning this issue ([695]-[779]). 69 The Appellant submits that Campbell AJ erroneously and wrongfully disregarded and rejected evidence in relation to the DNA of bones that was given by analysts from both Melbourne and Adelaide, to whom the bones were sent, together with blood samples taken from Jean Keir's parents, Christine Strachan and Gaspar Baan. The Appellant submits further that, in accepting the results of DNA tests which were conducted in the United States of America, the trial Judge erroneously and wrongfully disregarded and rejected the contamination factor concerning that testing and the results obtained. 70 The Appellant submits that evidence of Dr Alan Atchinson, Manager of the Molecular Biology Unit within the Victorian Institute of Forensic Medicine and Dr Angela Van Daal, then a Senior Forensic Scientist at the State Forensic Science Service of South Australia, was such that the trial Judge ought to have concluded that the DNA evidence was extremely degraded and not reliable, and that results of the tests were not of sufficient clarity to permit definite conclusions of identity. The Appellant submits that a test undertaken in the United States of America was rejected on the basis of contamination, but that Campbell AJ had erred with respect to this evidence. The Appellant submits that the totality of the DNA evidence, including the Victorian and South Australian results, cast "more than a substantial doubt over the credibility and reliability of the DNA tests and results from America". 71 The Appellant submits that the contamination factor raised "more than substantial doubt over the profiles located in the DNA testing in America" (Ground 1(d)). Having advanced a number of factual submissions, the Appellant contended that "contamination quite easily could have occurred and the contamination factor cannot be ruled out or swept aside". He submitted that Campbell AJ had erred in his conclusions with respect to the DNA evidence in this respect. 72 The Crown acknowledges the significance of the DNA evidence to the verdict and submits that no error had been demonstrated so as to attract the intervention of this Court. 73 To place these grounds in context, it is helpful to refer to the scientific and forensic evidence concerning the seven bones located in the ground at 18 Wilkes Crescent, Tregear. 74 It was the Crown case that seven bones were located by the police in May 1991 during the excavation of the western side of the property at 18 Wilkes Crescent, Tregear. 75 Campbell AJ observed at [574]: "I have not here traced each bone from Tregear to the doctor, however, I am satisfied beyond reasonable doubt that the seven numbered bones were found by police at 18 Wilkes Cres in May 1991. It has not been argued otherwise." 76 On 3 May 1991, Dr Thomas Oettle, forensic pathologist, received from police a plastic bag containing fragments of bony material. Dr Oettle considered that one of the fragments was a proximal phalanx of probably the third finger of an adult human hand. He gave evidence that the phalanx appeared to be consistent with that of a person who had died three years earlier. On 17 May 1991, he handed the specimen to Dr Peter Ellis ([580]). 77 Dr Peter Ellis is a forensic pathologist at the Institute of Clinical Pathology and Medical Research at Westmead Hospital. Dr Ellis identified seven bones as being of human origin. Bone No. 1 (which he received from Dr Oettle) was a finger bone from the right hand. Bone No. 2 was the base of the right toe. Bone No. 3 was probably the base of the right thumb. Bone No. 4 was the left kneecap. Bone No. 5 was a bone from the left wrist. Bone No. 6 was a hand bone from the base of the middle finger of the left hand. Bone No. 7 was the base of one of the fingers of the right hand, one of the index, middle ring or little finger ([573]). 78 Dr Denise Donlon is a lecturer in the Department of Anatomy and Histology at the University of Sydney and, in 1997, a Consultant Anthropologist to the NSW Institute of Forensic Medicine. Her PhD in Physical Anthropology involved a study of the variations of the human skeleton. Dr Donlon examined Bone Nos. 1 to 6 on 17 June 1997. She considered that they belonged to one individual aged probably more than 16 years. Campbell AJ said at [584]-[588]: "Dr Donlon indicated that attempting to calculate height from metacarpal length was not as ideal as the long bones, however, there was a formula which had application only to Caucasoids and was different for males and females.

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I think Jean Keir's height fell within the range or at least very close to it." 79 Bones Nos. 1 to 6 were sent to Dr Atchinson in Melbourne on 16 December 1991. Bone No. 7 was retained lest some mishap befell the other six ([581]). 80 Dr Atchinson was able to obtain only partial results from the DNA tests he carried out on the bones. He gave evidence to the effect that because he got results that could not be interpreted, he "felt the DNA had degraded to the extent it was not reliable" (T972). Dr Atchinson said that, in 1991, he had used an analysis technique developed in his laboratory which was not a commercial kit, and could analyse only one locus at a time (T967). 81 On 4 August 1992, the bones were delivered to Dr Van Daal in Adelaide. She was unable to obtain a complete DNA sample. Campbell AJ noted that the South Australian State Forensic Science Service "was using a monoplex rather than the later multiplex DNA testing system" ([760]). Dr Van Daal wrote to the officer-in-charge of the investigation, noting that further developments might assist at a later time and giving costings for such work (T1291-1293). No further work was done by Dr Van Daal, and the bones were sent back to Dr Atchinson in Melbourne in July 1994. He conducted further tests, the results of which were indistinct (T970). 82 Campbell AJ observed at [698] that no "continuity" challenge was made concerning the bones: "It is relevant to note that the 'continuity' that is, the identity of the bones removed from Tregear and then examined in the various laboratories including the Armed Forces DNA Identification Laboratory of the United States was not challenged." 83 On 16 September 1997, the six bones were delivered to the Armed Forces DNA Identification Laboratory in the United States of America. Ms Nancy Ann Scibetta, from that laboratory, gave evidence at the trial by video link (T1178-1219). She said that the primary purpose of her position at the laboratory was to obtain mitochondrial DNA sequences from bones that were believed to be the remains of American soldiers who had died in World War II, the Korean War and the Vietnam War. Ms Scibetta said that her laboratory had developed special expertise in relation to bones or human remains recovered from theatres of war in difficult environments in terms of contamination, degradation and mixed human remains. It was her evidence that her laboratory was one of the best in the world for undertaking such work (T1180). 84 Ms Scibetta obtained a mitochondrial DNA sequence from two of the six bones which she had received, being the right big toe and the left patella fragment. They were the largest bones and came from opposite sides of the body ([704]). She explained the steps taken by her including measures taken to secure the bone samples against contamination (T1186, 1191-2). Having established that the two bones were consistent as having come from the same individual, or at least from an individual with a common maternal ancestor, Ms Scibetta extracted DNA from a blood sample given by Jean Keir's mother, Christine Strachan, and concluded that the mitochondrial DNA obtained from Mrs Strachan's blood sample was consistent with the mitochondrial sequence she had obtained from the two bones (T1187-1188). Ms Scibetta explained that an individual's mitochondrial DNA is inherited from the mother and is identical to the mother's mitochondrial DNA (T1184). 85 Ms Scibetta agreed that she did not necessarily know where contamination of samples such as bones and blood may have occurred from the time samples are obtained until they arrive in the laboratory. She agreed that the taped seals on the bone packets appeared not to be sticking and that there was dust, which she thought to be bone dust, in the bags (T1195, 1200). She said that she had considered the possibility that the existence of dust could be a potential contaminant. Ms Scibetta said that she was concerned about the possibility of contamination in every skeletal remains' case (T1201-1202). However, in relation to the sanding process that she conducted as part of the cleaning procedures prior to the extraction of DNA, Ms Scibetta stated that the possibility of contamination during the process was, in her experience and opinion, "not realistic at all" (T1218-1219). 86 Ms Scibetta also extracted DNA from the blood of Jean Keir's father, Gaspar Baan. DNA from two bones and the blood samples from Christine Strachan and Gaspar Baan were then given to Ms Demris Anita Lee, the technical leader of the Nuclear DNA Section of the Armed Forces DNA Identification Laboratory. Ms Lee gave evidence at the trial by audio-visual link (T1345-1370). She said the Nuclear DNA Section works on death investigations of the United States' armed forces, and its primary focus is recent death investigations where individuals are deceased from incidents such as aircraft mishaps, explosions, motor vehicle accidents and military attacks such as gunshot wounds or bombings, as well as mass disaster incidents involving commercial airline accidents and remains recovered from the ocean floor (T1347-8). 87 Ms Lee explained the difference between nuclear and mitochondrial DNA (T1348-9). She obtained complete nuclear DNA profiles of the two bones, which she identified as being those of a female (T1351-1353). Campbell AJ was satisfied beyond reasonable doubt that Ms Lee's procedures for obtaining complete nuclear DNA profiles of the two bones were appropriate and valid ([711]). 88 Ms Lee also obtained DNA profiles for Christine Strachan and Gaspar Baan from the blood samples which they had provided. Ms Lee concluded that, based on the DNA results, the bone samples were consistent with being an offspring of the two blood samples ([713]). 89 Ms Lee was cross-examined concerning the potential for contamination of the bones. She agreed that it was plausible that, if a specimen that had been denuded of any DNA had come into contact with another specimen such as a hand or even scalp or dandruff, the DNA could be transferred to the degraded specimen. She said, however, that in order to obtain the DNA profile from that bone, it would have to actually penetrate the bone because of the clinical procedures that had been undertaken, and that this was not possible from a touch or from dandruff (T1360). 90 After referring to the evidence of Ms Scibetta and Ms Lee, Campbell AJ concluded at [730]: "I am satisfied beyond reasonable doubt that the DNA extracted by Ms Scibetta was, as she firmly stated, 'true to the bone'. I am also satisfied beyond reasonable doubt that the results obtained by Ms Scibetta and Ms Lee are valid and true reflections of the bones found at Tregear. I am also satisfied beyond reasonable doubt that the bones are those of a female, that their mitochondrial DNA is consistent with an offspring of Christine Strachan and that their nuclear DNA is consistent with an offspring of Christine Strachan and Gaspar Baan." 91 His Honour was conscious that these results alone did not establish that the bones were those of Jean Keir ([731]). 92 Although Campbell AJ considered that the procedures adopted in the United States of America and the results obtained "exclude any effect from earlier contamination should it have occurred", his Honour dealt with the defence submission at trial that contamination may have occurred. In particular, defence counsel submitted that testing done in Adelaide had raised issues which put in doubt the profiles established in the United States of America. Having considered the evidence as to tests which had earlier been conducted by Dr Atchinson and Dr Van Daal, his Honour concluded it was unlikely that the bones had been relevantly contaminated or that the test results excluded Gaspar Baan or Christine Strachan as potential parents ([776]). Following an examination of defence counsel's submission concerning the possibility of contamination based upon the evidence of Dr Atchinson and Dr Van Daal ([748]-[778]), Campbell AJ expressed the following conclusion at [779]: "An examination of the events at Adelaide and Melbourne does not lead me to a different conclusion to that drawn as a result of the testing in America." 93 I agree with the Crown submission that the Appellant's complaint that the trial Judge ignored relevant DNA evidence, or ignored the possibility of contamination of the DNA evidence upon which his Honour ultimately relied, cannot be sustained in the face of Campbell AJ's detailed consideration of the expert evidence. Having undertaken that detailed consideration, Campbell AJ accepted the evidence given by Ms Scibetta and Ms Lee. His Honour saw and heard them give evidence and concluded that they were impressive witnesses ([701]). 94 Campbell AJ emphasised that an acceptance of the evidence of Ms Scibetta and Ms Lee did not, of itself, prove that the bones belonged to Jean Keir, with that question depending upon the statistical and other evidence in the case. 95 I have examined the evidence touching upon the question of possible contamination of DNA evidence, together with the analysis and findings of the trial Judge on this question. No error is demonstrated in his Honour's analysis. The findings made by Campbell AJ were clearly available. In my opinion, the findings are reasonable and are supported by the evidence. The Appellant has not demonstrated any basis for this Court to intervene. 96 I reject Grounds 1(c) and (d).

[63]

When Were the Bones Found ? 98 The Appellant submits that no bones were discovered during the search undertaken between 13 and 16 April 1991. A second search was conducted from 2 May 1991 with some 30 bones being located, including animal bones and the seven human bones, six of which were later submitted for DNA analysis. The Appellant submits, in effect, that there is something sinister arising from the failure of the police to locate the bones during the April 1991 search, only to come across them at the later search. He challenges the finding of Campbell AJ based upon certain photographic evidence. 99 The Appellant relies upon a photograph which depicts excavation work on the western side of the house (Photograph 22). He submits that this photograph depicts the first, and not the second, search and that the trial Judge erred in relying upon this photograph as part of the finding that the bones were located during the second search in May 1991. The Appellant submits that "clearly there is something dramatically wrong here" and that Campbell AJ ought to have seen that there was a significant problem concerning this issue, but had rejected wrongfully the photographic evidence. 100 In the course of his oral submissions before this Court, the Appellant handed up two groups of photographs. The first group comprised six photographs (Photographs 1, 2, 3, 4, 5 and 22) which were tendered by the Crown at trial and formed part of Exhibit B. The second group comprised four photographs which were labelled for identification during the hearing of the appeal with the letters A, B and C (with C containing two photographs). The Appellant sought to rely upon the photographs marked A, B and C as fresh evidence on the appeal. The Court heard submissions on this issue, to which I will return. 101 The Crown submits that the Appellant is advancing a submission which was abandoned by his counsel at trial, coupled with a further submission rejected by the trial Judge. In any event, the Crown submits that the Appellant's argument that Photograph 22 (part of Exhibit B at trial) was taken during the first search in April 1991, and not the second search in May 1991, is contrary to the evidence. The second search was conducted from 2 May 1991 following information obtained form a prison informant who gave evidence under the pseudonym Brian Riley. 102 The first search had been conducted between 13 and 16 April 1991, following a fire at 18 Wilkes Crescent, Tregear and the discovery of the Appellant's second wife, Rosalie Keir, dead inside the house ([541]). The Appellant was taken into custody in relation to the death of his second wife and, whilst housed in a correctional centre, was alleged to have had a conversation with Mr Riley, who provided information to police leading to the issue of a search warrant executed in May 1991. 103 According to the Crown, the Appellant appears to be suggesting, in this ground of appeal, that the seven bones were planted on the site between the first and second searches of the grounds. This was an issue that was raised but abandoned at the trial, with defence counsel suggesting to Mr Riley in cross-examination that he organised for the bones to be placed there (T592). The Crown points to Campbell AJ's reasons at [605]-[606] where his Honour recorded the abandonment of this argument by defence counsel: "Addressing first, Mr Crown was obliged to deal with this suggestion and did so very effectively. Mr Hanley in his careful address did not put an argument in support of it. In these circumstances I consider that it would be adding unnecessarily to an already overlong judgment to do more than say that I regard the suggestion as fanciful, and to dismiss it. I do not consider it to be a reasonable possibility that Riley arranged for the bones to be planted at 18 Wilkes Crescent.

[64]

Had the argument been pursued it might have been relevant to examine the first search in more detail because, theoretically at least, an argument could be presented that the first search was so thorough that it could be said that these bones were not then there and that they must have been put there subsequently. It is, I think, sufficient to say that I accept the evidence of Inspector Lyons that the only digging done on the western side of the house in April was a hole which he dug in an area to the northern end of the area on the western side of the house about level with the northern alignment of the house and remote from the area in which the bones were found. I also accept Mr McKay's evidence that the area where he commenced digging was flat and showed no sign of recent digging. It was common ground that the earthmoving machinery used in the April search was too wide to proceed down the western side of the building." 104 Accordingly, the Crown submits that the Appellant seeks, on appeal, to press an argument which his counsel did not pursue at trial. 105 With respect to the Appellant's submissions by reference to photographs handed up during the appeal, the Crown observes that, in the course of his oral submissions, the Appellant contended that Photograph 22 was taken during the first search. The Crown submits that this proposition is at odds with both the evidence given at the trial, and the trial Judge's ultimate findings, on the question of when the bones where found. 106 As the Appellant's submissions in support of this ground are founded upon his claim that Photograph 22 was taken during the first search in April 1991 and not the second search in May 1991, it is appropriate to refer to evidence adduced at trial on this question and the findings of the trial Judge with respect to it. 107 The Crown called Peter John Seymour, a retired police officer, who in April 1991 was a Detective Senior Constable attached to the Mt Druitt Police Station. He was one of the persons responsible for the investigation into the disappearance of Jean Keir. Mr Seymour gave evidence concerning the dates on which various photographs comprised in Exhibit B were taken. Specifically, it was his evidence that Photograph 22 was taken during the second search between 1 and 8 May 1991 (T23). Mr Seymour said that nothing of relevance had been found in the course of the first search in April 1991 (T20). 108 The Crown called Robert George McKay, a retired police officer, who gave evidence that he attended the premises at 18 Wilkes Crescent, Tregear in the course of the second search (T903). He said that he was the first police officer who thought to go up the western side of the house and start digging up that side, following a conversation he had with a neighbour (T914). Mr McKay said that Photograph 22 depicted the area where he had started to dig, firstly by tapping the ground with the tip of a spade, until he got to an area that was soft (T906, 918). Campbell AJ summarised the evidence of Mr McKay concerning this search with led to the discovery of bones ([549]ff). 109 Mr McKay was cross-examined about Photograph 22 (T913, 916, 921). Campbell AJ expressed the following conclusion with respect to Mr McKay's evidence at [555]: "I was impressed by Mr McKay's evidence. He was not one of the investigating officers and had been called in to help with the manual work of searching. I think he truthfully and accurately reported his part in the work." 110 Campbell AJ made detailed findings concerning the discovery of the bones ([540]-[607]). His Honour was "satisfied beyond reasonable doubt that the seven numbered bones were found by police at 18 Wilkes Cres in May 1991" and observed that "It has not been argued otherwise" ([574]). 111 Campbell AJ dismissed as "fanciful" a proposition put to Mr Riley in cross-examination but not advanced by defence counsel in closing address, that the bones had been planted between the first and second searches ([605]). 112 In my view, the Crown is correct in characterising the Appellant's submission as being a resurrection of an argument which had been abandoned by his counsel at trial. In any event, no error has been demonstrated on the part of the trial Judge with respect to this issue. The additional photographs upon which the Appellant sought to rely, as fresh evidence, at the hearing of the appeal do not assist the Appellant's argument. I am entirely unpersuaded that those photographs provide support for the Appellant's argument that Photograph 22 depicts the first and not the second search.

[65]

The Concrete Slab Issue 113 The second limb relied upon by the Appellant under Ground 1(e) relates to photographic evidence concerning a concrete slab under an oil heater tank at 18 Wilkes Crescent, Tregear prior to the first search in April 1991. The Applicant submits that the photographic evidence demonstrates that this concrete slab was broken up during the first search. He submits that the slab is significant because the location of the slab would have covered most of the hole where the police allege that bones were located. He submits that disturbance of the concrete slab during the first search ought to have raised substantial doubt over the location of the bones. The Appellant submits that the trial Judge erred in his findings concerning this question based upon photographic evidence (Exhibit 19). 114 The Crown observes that the concrete slab argument arose only towards the end of the trial, and that Campbell AJ had dealt with it in his judgment ([608]-[694]). The Appellant alleged in his own evidence that the police had, in the course of the first search in April 1991, removed a concrete slab which had supported an oil heater tank at the side of the house and which had been over the area where the bones were located. The Appellant said that the slab had been laid some time between 1976 and 1978 by Jean Keir's grandfather. This was the first time the Appellant had mentioned the existence of the slab, no reference having been made to it at the two previous trials. As will be seen, Campbell AJ considered the late raising of the issue as being significant. 115 The Crown called evidence in reply, including evidence from police who took part in the search and who never saw any such slab on the western side of the house. Campbell AJ reviewed the evidence in detail and concluded that it was "unlikely that there was a slab of concrete of the type described underneath the heater tank at the time of the first search in April 1991" ([683]). Campbell AJ observed at [686]-[687]: "The time at which this issue was raised is I think significant. The accused conceded that he paid close attention to the issues and the evidence. I find it difficult to think he would have forgotten about the slab even though there are many distractions for a person in his position. Commenting only on the hearing before me, because it is the one which I have seen, its preparation has been extremely thorough and yet this issue did not emerge until a very late stage indeed in the trial.

[77]

In the appeal the Crown accepted that there was the prosecutor's fallacy, but submitted that a redirection later given rectified the error. It is therefore necessary to appreciate what the error was." 127 The Crown submits that Campbell AJ was conscious of the "prosecutor's fallacy" and the need to avoid it. The Crown submits that the manner in which his Honour considered the DNA evidence, and the conclusions which his Honour drew from that evidence, do not demonstrate an error of the nature which led the Court of Criminal Appeal to quash the conviction at the first trial. 128 As noted earlier, Campbell AJ accepted the results of the DNA testing conducted in the United States of America to the effect that the bones located at 18 Wilkes Crescent, Tregear were the bones of a female and that the mitochondrial and nuclear DNA samples taken from those bones were consistent with the DNA obtained from blood samples provided by each of Jean Keir's parents. However, as Campbell AJ observed, that evidence of itself did not establish that the bones were those of Jean Keir. In order to determine what, if anything, the results of the DNA testing contributed to the establishment of the identity of the bones, it was necessary to look at both the statistical evidence and other evidence in the case ([731]). 129 The statistical evidence was given by Mr Robert Goetz. Campbell AJ observed at [732]: " Mr Goetz is a very experienced forensic biologist employed by the Division of Analytical Laboratories in Lidcombe. There is no issue as to his qualifications to express opinions on questions relating to DNA including the use of data bases and statistical principles to develop, amongst other things, likelihood ratios." 130 Campbell AJ outlined the steps taken by Mr Goetz with respect to the nuclear DNA profiles ([733]-[735]): "Provided with the nuclear DNA profiles obtained by Ms Lee of the two bones examined and of Gaspar Baan and Christine Strachan Mr Goetz prepared a table which posed the following question: How many times more likely to find the profile from the bone if it originated from a child of Baan and Strachan than from a child of an unknown couple in the population. The calculation also includes a correct (sic) for sample size (95 percent confidence limits).

[84]

The task you have is of combining the likelihood ratio with other evidence, it is one that can never be reduced to a mathematical computation'." 135 The Crown submits that the evidence of Mr Goetz, and the trial Judge's ultimate formulation of the effect of the DNA evidence, avoided the "prosecutor's fallacy". His Honour concluded that it was 400,000 times more likely that the bones tested originated from a child of Mr Baan and Mrs Strachan than from a child of an unknown couple. That was the correct conclusion to draw from that evidence. It was only upon consideration of the other evidence in the case, in accordance with the reasoning process advocated in R v Doheny (1997) 1 Cr App R 369, that his Honour concluded that the bones were those of Jean Keir. The trial Judge did not commit the error which occurred at the first trial. 136 An examination of the approach taken by Campbell AJ to this issue demonstrates clearly that neither the Crown nor his Honour have fallen into the "prosecutor's fallacy". The approach of the trial Judge to this issue accords with that required by the judgment of this Court in R v Keir. 137 To the extent that the Appellant's submission under this ground of appeal seeks to challenge his Honour's reasoning process and conclusions with respect to the DNA evidence generally, that submission ought be rejected. Campbell AJ examined the evidence and made careful findings with respect to the process of DNA extraction and analysis both in Australia and in the United States of America. Having accepted the evidence of Ms Scibetta and Ms Lee, his Honour considered and accepted the evidence of Mr Goetz with respect to the statistical calculations flowing from those conclusions. His Honour avoided the "prosecutor's fallacy". 138 Importantly, Campbell AJ was conscious that the DNA evidence and statistical evidence constituted one part only of the evidence in the trial. In R v Doheny, it was stressed that the significance of DNA evidence will depend critically upon what else is known about the person to whom the DNA evidence is alleged to relate. In the present case, there was an accumulation of evidence, including the DNA evidence, which provided powerful support for a conclusion that the bones belonged to Jean Keir. 139 Ground 2 ought be rejected.

[98]

Ground 4 - The Trial Judge Erroneously and Wrongfully Allowed Suspicion, Grave Suspicion and Speculation to Cloud his Judgment in his Fact-Finding Mission Throughout the Trial and in his Judgment, which Dramatically Affected his Formulation in Reasoning to his Conclusion, Resulting in a Miscarriage of Justice 149 This ground of appeal overlaps substantially, if not entirely, with Ground 3. The Appellant submits that, despite giving himself appropriate warnings, Campbell AJ did not look at the evidence or approach his task dispassionately and impartially and without permitting himself to be influenced by prejudice or by sympathy. The Appellant submits that this must flow from his Honour's findings and conclusions which, so the Appellant contends, were made despite the absence of evidence to support such findings and conclusions. 150 The Appellant repeats submissions made in support of other grounds that there was sightings' evidence which ought to have led to an acquittal. So, the Appellant submits, the trial Judge was moved by "suspicion, grave suspicion and speculation" in reaching a verdict of guilty, thereby resulting in a miscarriage of justice. 151 The Crown submits that these arguments add nothing to those advanced in support of earlier grounds, apart from an unsupported and unsupportable allegation that the trial Judge failed to approach his task dispassionately and impartially and without influence by prejudice and sympathy. The Crown submits that the factual matters advanced by the Appellant in support of this ground ought be rejected for reasons previously expressed. The Crown submits that the lengthy and careful reasons of the trial Judge conformed with the requirement of s.133 Criminal Procedure Act 1986. 152 It is apparent from the judgment of Campbell AJ, a most experienced trial Judge, that his Honour had to the forefront of his considerations the onus and standard of proof and the requirement for the Crown to prove the Appellant's guilt of murder by reliance upon probative evidence ([12]). His Honour gave himself appropriate directions concerning the elements of the crime of murder ([17]-[19]). 153 For reasons given with respect to earlier grounds of appeal, the Appellant has not demonstrated a basis for appellate intervention by this Court with respect to the factual matters relied on by him on this appeal. Insofar as the Appellant contends that the verdict of the trial Judge was based upon suspicion, and not evidence, I reject the submission. His Honour outlined in detail the evidentiary foundation leading to the conclusion that the Appellant was guilty of the murder of Jean Keir. The Crown case was a circumstantial one. There was ample foundation for his Honour's conclusions arising from the evidence adduced at trial. 154 I reject Ground 4.

[99]

Ground 5 - The Trial Judge Significantly Erred in Departing from the Firm Ground of "Proof Beyond Reasonable Doubt" Which Dramatically Affected his Formulation in Reasoning to his Conclusions and Resulted in a Miscarriage of Justice 155 Under this ground of appeal, the Appellant draws together the arguments advanced in support of earlier grounds. 156 At the commencement of his reasons, Campbell AJ repeated the general directions given by Kirby J at the second trial, which both the Crown and defence counsel at this trial agreed were still applicable. Campbell AJ reiterated at [12] an orthodox direction given by Kirby J to the following effect: "The second fundamental principle is that everything which the Crown is required to prove must be proved to your satisfaction beyond reasonable doubt. In respect of every offence, the law defines the particular matters which the Crown must prove before an accused person can be found guilty of that offence. These are usually referred to as the elements of the offence, the charge. … A person may not be convicted unless each of the separate elements of the charge is proved beyond reasonable doubt. … Any matter which must be established, as one of the elements of the charge, is not proved unless it is established to that very high standard, that is, beyond reasonable doubt. Suspicion, even grave suspicion, is not enough. The Crown, to succeed against Mr Keir, must establish his guilt beyond reasonable doubt." 157 The Crown submits that the trial Judge directed himself in this way and acted in accordance with these directions. Aside from the reference to a failure to find the elements of the offence of murder proved beyond reasonable doubt, the Crown submits that this final ground of appeal raises the same issues as were raised in relation to Ground 1. 158 The Crown submits that, as with Ground 1, Ground 5 ought be rejected. 159 In reality, Ground 5 repeats earlier submissions in support of an argument that the verdict of guilty was unreasonable and cannot be supported, having regard to the evidence. In effect, the Appellant contends that he has demonstrated a foundation for his appeal to be allowed and the conviction quashed under s.6(1) Criminal Appeal Act 1912. 160 I have made my own independent assessment of the evidence adduced at trial and of the reasons of the trial Judge leading to his verdict that the Appellant was guilty of the murder of Jean Keir. The detailed reasons of the trial Judge do not involve any error of fact or law. The Appellant's challenge is to the ultimate finding of guilt which, the Appellant contends, is not reasonable and is not supported by the evidence. 161 The fact of Jean Keir's death may be proved, as any other fact, by reliance upon circumstantial evidence: Peacock v The King (1911) 13 CLR 619 at 630. In this case, as with most, the Appellant's intention was to be proved by inference: Shepherd v The Queen (1990) 170 CLR 573 at 580. In R v Cable (1947) 47 SR (NSW) 183 at 184, Jordan CJ observed that, in many cases, circumstantial evidence is stronger than direct evidence, the latter being subject to the fallibility of human observation and recollection. As Kirby J observed in De Gruchy v The Queen [2002] 211 CLR 85 at 97 [48], circumstantial evidence calls upon processes of reasoning that involve the drawing of inferences from a jigsaw of established facts, with circumstantial evidence capable of being stronger than direct evidence. 162 In my opinion, the Crown case against the Appellant was strong. It was based on several pieces of evidence which left it clearly open to the trial Judge to be satisfied beyond reasonable doubt that Jean Keir was dead, and that she had died as a result of an act of the Appellant carried out with the intention to kill or cause grievous bodily harm. The evidence of alleged sightings of Jean Keir relied upon by the Appellant was, as the trial Judge concluded, tenuous and flawed and not such as to suggest a reasonable possibility that Jean Keir was still alive. 163 This is not a case where the remains of Jean Keir were never found. The forensic and scientific evidence demonstrated that her remains had been buried in the grounds of the matrimonial home of the Appellant and Jean Keir some three years prior to their discovery in May 1991. 164 I have regard to the fact that the trial Judge observed the witnesses giving evidence, and has taken those observations into account in his findings with respect to the credibility and reliability of witnesses in reaching his verdict. This Court does not have that advantage. An examination of the record of the trial, however, demonstrates a clear foundation for his Honour to make the findings and reach the conclusions contained in the judgment. 165 The Crown presented a circumstantial case against the Appellant. The DNA evidence was most significant. It was open to his Honour to conclude that the bones buried in the grounds of the matrimonial home at 18 Wilkes Crescent, Tregear were those of Jean Keir. The totality of the circumstances surrounding the disappearance of Jean Keir, and the burial of her remains in the grounds of the matrimonial home, provided a powerful foundation for the conclusion that she had died at the hands of the Appellant who had then buried her, initially at least, in those grounds. 166 It was open to the trial Judge to conclude, on all the evidence, that the only reasonable inference was that Jean Keir died as a result of an act of the Appellant, and that the Appellant acted at the time with the intention of killing her or causing her grievous bodily harm. Campbell AJ sentenced the Appellant upon the basis that he acted with intent to cause grievous bodily harm: R v Keir [2004] NSWSC 1194 at [27]. 167 I am not persuaded that there is a significant possibility that an innocent person has been convicted in the present case. The collective ground of appeal does not, in my opinion, possess any greater strength than the sum of its individual parts. 168 This Court is a court of error. It does not proceed by way of rehearing in a way that permits it to substitute its own findings of fact for those of the trial Judge. Having exercised the appellate function under s.6(1) Criminal Appeal Act 1912, I am satisfied that the verdict of guilty of murder was reasonable and supported by the evidence and that no miscarriage of justice has resulted. 169 I propose that the appeal against conviction be dismissed. 170 LATHAM J: I agree with Johnson J.

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Judgment (100 paragraphs)

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Cases Cited (11)