State of New South Wales v Keir

The Act

1. I described the operation of the Act in State of NSW v Baldwin (2019) 102 NSWLR 447; [2019] NSWSC 1882 at [5] to [20] and the State of NSW v GJO (Final) [2020] NSWSC 1412 at [5] to [23]. I will not repeat that discussion as it should be read together with these reasons.
2. I note two further matters. First, as this is an application for an ISO and to appoint two psychiatrists or psychologists to examine Mr Keir, it is to be assessed on the basis of whether the matters alleged in the supporting documentation would, if proved, justify a granting of the relief sought (see ss 7(4) and 10AB). To the extent that any factual matter was in issue, nothing in this judgment is to be taken as amounting to a final resolution of that contest.
3. Second, as the debate on the application was principally concerned with the appropriate conditions attaching to an ISO, then the following passage from Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 at [124] ("Lynn") concerning the relationship between the potential conditions that might be imposed and the identified risk is apposite: "The exercise required by the statute in considering an application for an extended supervision order can be broken down into four steps, which are not appropriately described as temporal stages, one consequent on the other; rather, they interlock. The steps are to identify (i) the nature and seriousness of the risk posed by the offender with respect to further serious violence offences, (ii) the appropriate conditions which might be imposed as part of an extended supervision order, (iii) the likely effect of such an order in removing or diminishing the risk and (iv), if an order is otherwise appropriate, whether there are factors personal to the offender which would militate against making the order."

The Offending History

1. Mr Keir's criminal history and personal circumstances were explained by Button J in Keir (No 1) in [1] to [10] as follows: "1 Mr Thomas Andrew Keir (the defendant) was born in January 1958, and accordingly is aged 62. Raised in a village in England, he and his family emigrated to Australia in 1968 when he was a boy. It seems that his upbringing was unremarkable and not psychologically damaging, and he has reported sharing a close relationship with his parents until their deaths in 1992 and 2002. He completed an upholstery apprenticeship after he left school, and continued to reside in Sydney. In 1984 he married his first wife, Jean. He now accepts that that relationship featured not only controlling behaviour on his part towards his first wife, but also some physical violence. 2 In 1988, Jean disappeared, and has never been seen again. Some weeks afterwards, the defendant met Rosalie, the woman who would become his second wife in 1989. In 1991, his second wife was brutally murdered in the marital home, and her body partially burnt. There has never been any question but that someone murdered her. The defendant has always denied being the perpetrator. 3 In the course of investigating the murder of Rosalie, the New South Wales Police discovered some bones buried in the backyard of premises associated with the defendant. Thereafter, the defendant was placed on trial for the murder of his second wife. A jury returned a verdict of not guilty. Both counsel who appeared before me were content with my initial thought expressed during the hearing that, although the acquittal on the charge of murder is not entirely irrelevant to proceedings such as these, the allegation that was not proven against the defendant, and with regard to which he therefore retains the presumption of innocence, should be given very little weight by me. 4 Subsequently, scientific analysis of the bones strongly suggested that they were those of the first wife of the defendant. He was accused of her murder, and placed on trial separately for it. After an extended course of litigation - the delay largely occasioned by the evidential and legal issues raised by the then-new and controversial science of DNA profile analysis - the defendant was convicted of the murder of his first wife. He was sentenced to a head sentence of imprisonment for 22 years, with a non-parole period of 16 years, each to commence on 20 February 1998. As one would expect, the learned sentencing judge emphasised the very serious nature and objective gravity of the crime, and noted that the defendant would serve part of it under protection. In all the years since, he has staunchly maintained that he is innocent, and has been wrongly convicted. 5 Before being convicted of that offence, the defendant had a reasonably short criminal record. It featured nothing more than some driving offences in 1979, the possession of a pistol in 1987, and the possession of what seems to have been cannabis and a cannabis water pipe on the same occasion (I disregard the even older charges of assault occasioning actual bodily harm that were dismissed). The explanation by the defendant for his possession of the pistol over 30 years ago is that he found it in an abandoned car. As I remarked to counsel at the hearing, I approach that explanation with circumspection. As for the possession of the cannabis, I accept the proposition that that was nothing more than an experiment. 6 In short, there is nothing to suggest that the defendant has ever suffered from a mental illness, intellectual disability, any form of criminogenic dependence, or a chronic propensity to intersect with the criminal justice system. Rather, the evidence is that he committed a single horrific act of domestic violence, took coolly calculated steps to hide it, and has never accepted his guilt of it. 7 As one might expect, the defendant has behaved well over many years in custody, after an initial disrupted period of settling. He has moved steadily through the system of classification, and at the time of his recent release had achieved a C2 status, which entitled him to spend time outside the grounds of prisons. 8 The principal impediment to his rehabilitation and release to conditional liberty has been his flat refusal to accept his guilt of the murder of his first wife. As his counsel submitted at the hearing, persons who firmly assert their innocence can be in something of a "Catch-22" in custody if the only rehabilitative programs available to them are founded on acceptance of guilt, with the result that a person insisting on his or her innocence may sometimes feel "punished" by their extended incarceration, based on the absence of rehabilitation, based on that refusal to admit guilt. 9 As a possible example of that phenomenon, the defendant was not released at the end of his non-parole period in 2014. Indeed, he was not released until 8 October 2019, at which time he was conditioned by his parole to live at a Community Offender Support Program Centre (COSP) attached to Long Bay Gaol. 10 In fact, the conundrum to which I have referred was solved to a degree before his release, in that the defendant was permitted to take part in a therapeutic violence prevention program, on the basis that he was a "denier", in the same way that prisoners convicted of child sexual assault can be treated on that basis in prison. As I have said, sufficient progress was made for the defendant to reflect self-critically on the way that he has treated women in the past; having said that, there undoubtedly remain issues about his reconciliation to what he has done, and the effect that may have on his attitudes and consequent conduct in the future."

The Previous ISO and ESO

1. As noted by Button J, Mr Keir was released in October 2019. By the time of Keir (No 1) he had resumed his trade in upholstery. By the time Button J decided Keir (No 2), a number of psychiatric opinions were available. His Honour described their effect as follows (Keir (No 2) at [30]): "As for expert opinion regarding the appropriateness of an ESO, Ms Chelsea Dewson, a forensic psychologist, Dr Yolisha Singh, a forensic psychiatrist, and Mr Samuel Ardasinski, a psychologist who specialises in risk assessment, have all opined that the defendant poses a significant risk of violence against an intimate partner, noting that he has maintained staunch denial of the murder of his first wife, and continues to hold problematic conservative attitudes towards women. Nonetheless the consensus of opinion has been that the defendant could be adequately managed by an ESO that is subject to stringent conditions that focus upon minimising the risks of violent recidivism within a domestic context."
2. Further, between the time of Keir (No 1) and the hearing that led to Keir (No 2), an incident occurred in which Mr Keir appeared to become fixated, at least to a degree, on a woman he had met in late March 2020. Button J made findings about those events in Keir (No 2) at [7] to [19]. In summary, it appears that Mr Keir initially sought to console the woman, who was apparently upset, but then over a number of days attempted to make contact with her in a persistent manner by attending at her apartment and at one point searching for her in the communal laundry of the unit block.
3. Ultimately, Button J did not make any particular adverse findings against Mr Keir in relation to this incident although he noted that the woman in question complained to the authorities that Mr Keir had returned to the woman's apartment on the pretext that he had forgotten something inside and that while there he took the opportunity to steal a number of items. Mr Keir denied that on oath (see Keir (No 2) at [19]).
4. In Keir (No 2), Button J noted that it was common ground that an ESO should be made (see [32]). The real contest then, as now, concerned the conditions that should be imposed and, in particular, whether Mr Keir should be subject to electronic monitoring and an obligation to provide a schedule of movements. His Honour regarded that contest as "finely balanced" (see Keir (No 2) at [47]), but ultimately concluded that conditions to that effect were not "appropriate" (see Keir (No 2) at [52]).

Events Since Keir (No 2)

1. Since Keir (No 2), Mr Keir has maintained his categorical denial of the index offence. He has continued to work as an upholsterer. At some point, he moved from supported accommodation to a private rental unit, however, he was evicted from that unit in October 2021.
2. According to a risk management report prepared by the Community Corrections Officer within the Extended Supervision Order Team on 14 March 2022, it was alleged that on 2 October 2021 Mr Keir had attempted to gain entry into a female neighbour's unit while naked and smelling of alcohol. The report also notes that the incident did not proceed to a charge, and that Mr Keir effectively denied what occurred and stated that around the time of those events he was affected by alcohol.
3. The State submissions on this application conceded that Mr Keir has not re‑offended or breached his ESO. It notes that after he was evicted from accommodation in October 2021, he found further independent accommodation at Wiley Park. The State's submissions also referred to information suggesting that he had walked around his apartment complex in November 2020 with pants around his ankles. The submissions otherwise describe the effect of some of the case notes, to which I will return, which indicate that there has been an increase in his alcohol consumption, as well as a problem gambling, and that he has undertaken some online searches associated with swingers parties and nude yoga.
4. A risk assessment report dated 18 February 2022 was prepared by Mr Ardasinski. He relevantly concluded that Mr Keir had been assessed as falling in the moderate risk category for a repetition of domestic violence using a structured professional judgment tool and that assessment aligned closely with the assessment of risk that he undertook in 2019.
5. In relation to the period since his release, Mr Ardasinski noted that there have been several instances of Mr Keir approaching women over the course of his period under supervision, which has been concerning, including his walking inebriated women home, allegedly appearing naked in a doorway of a neighbour while he was intoxicated, and peering through the windows of potential neighbours' properties for a rental inspection. Mr Ardasinski also noted that Mr Keir has been resistant to medical intervention and difficult to supervise, but on the other hand, had maintained full-time work.
6. The risk management report canvasses various means of supervising the risk posed by Mr Keir. It addresses in detail the potential to use electronic monitoring and schedules of movements. One part of that discussion states as follows: "It is a concern that Mr Keir is befriending seemingly vulnerable women at night-time after he has purportedly been consuming alcohol and either attending their residence and finding out where they live. Without electronic monitoring there are limitations in the ESO Team's capacity to verify if he is staying anywhere other than his approved address or entering the residence of a woman without approval. Mr Keir disclosed after the fact, to sleeping at his employment which he did not have approval for, which demonstrates his capacity to disregard his order conditions. This is also concerning given that Mr Keir has voiced his interest in having casual sexual contact or one night stands with women."
7. To the extent that this passage refers to Mr Keir "befriending seemingly vulnerable women at night-time" and "attending their residence" or "finding out where they live", it appears to be a reference to the contents of various Corrective Services New South Wales case notes to which I will refer and is addressing a proposed condition concerning electronic monitoring. Although I am constrained to consider the matters that are alleged in supporting documentation, in this case, that not only includes the risk management report, but those notes themselves. With respect to the author, a perusal of those notes does not reveal that these incidents were as sinister as the risk management report suggests.
8. Otherwise, it is only necessary to note at this stage that on 18 December 2021 Mr Keir was given a warning notice advising him that on 9 December 2021 he had answered questions from his supervising officer about gambling during an interview at which he later said had included some lies. He had been warned previously about providing misleading information.

An ISO Should Be Made

1. As I noted, there is no real dispute that an ISO should be made in this case. Nevertheless, I am still obliged to address the Act's requirements. Division 1 of Pt 2 of the Act specifies various preliminary matters and the requirements of making of an ESO, which are also applicable to an application for an ISO. Section 6(1) provides that the application must be made in the last nine months of the relevant offender's current custody or supervision including supervision under an ESO. That condition has been complied with. Section 6(3) provides that the application must be supported by various documentation, a condition that has also been complied with. Sections 7(1) and 7(2) impose requirements concerning the timing of service of documents and it is not suggested that they have not been complied with. Section 7(3) requires that a preliminary hearing is to be conducted by this Court within 28 days of the application being filed. This application has been conducted within that time, or at least such further time as the Court has allowed.
2. As I have already noted, ss 7(4) and 10A direct attention to whether the matters alleged in supporting documentation would, if proved, justify the making of an ISO. This in turn directs attention to s 5B of the Act. There is no doubt that Mr Keir is an offender. He is also a supervised offender in that he is subject to the ESO imposed by Button J (see s 5I(2)). As to whether he presents an unacceptable risk, the various material that I have referred to demonstrates, or at least appears to demonstrate, that Mr Keir represents a medium risk to the community of committing a serious offence, specifically a serious violent offence.
3. As to whether the risk is unacceptable if he is not kept under supervision or whether the Court should make the ISO, I note two further matters. First, there are the various factors in s 9(3). Section 9(3)(c) refers to the results of assessments prepared by qualified psychiatrists, psychologists or medical practitioners. Those have already been described. Section 9(3)(d) refers to the results of statistical or other assessments, the likelihood of a person's history and characteristics similar to those of the offender committing a further serious offence. The risk assessment report to which I have referred describes the outcome of those assessments.
4. Section 9(3)(d1) requires a consideration be given to reports by Corrective Services New South Wales, specifically the risk management report which I have already noted. Section 9(3)(e) requires a reference to be made to the offender's participation and treatment in rehabilitation programmes, a matter that was referred to by Button J in Keir (No 1).
5. Section 9(3)(e1) refers to the options that are available if the offender is to be kept in custody or in the community will reduce the likelihood of the offender re‑offending over time. Subsection 9(3)(e2) refers to the likelihood the offender will comply with the obligations of an ESO. The material suggests that overall Mr Keir is compliant with the terms of his ESO.
6. Section 9(3)(f) refers to an offender's compliance with the obligations when they were released on parole. There is no suggestion that Mr Keir did not comply with his parole conditions. Subsection 9(3)(h) requires a consideration of the offender's criminal history, a matter that I have already outlined.
7. Subsection 9(3)(h1) requires consideration to be given to the views of the sentencing court. That is a matter I have considered.
8. The second point to note is that, consistent with the above passage in Lynn, the proposed conditions have to be considered when making an ISO. Overall I have no doubt that, unless supervised, the matters alleged in the supporting documentation demonstrate that there is an unacceptable risk of Mr Keir committing another serious offence. In that regard the proposed conditions which largely reflect the existing conditions imposed by Button J, provide a regime of relatively close supervision. Subject to the points that I will address, they are appropriate having regard to the risk Mr Keir poses as suggested by the material before me.

Conditions

1. As I have noted, the only real matter of contention on the application was the terms of the conditions that might be imposed on the ESO. The State sought the imposition of additional conditions to those imposed by Button J. Counsel for Mr Keir, Ms Cook, submitted that, as this was only a preliminary hearing, and a final hearing on the State's application for an ESO is to occur within 12 weeks, then there should not be any disturbance of the status quo by the imposition of additional conditions, especially when no action has been taken against Mr Keir for any breaches since the ESO was imposed by Button J.
2. There is considerable force in that submission, but it cannot be taken too far. The test for whether a condition should be imposed is not whether it is necessary but whether it is "appropriate" (s 11). If the material suggests that a particular condition is appropriate, albeit even for a 12-week period to address the relevant risk, then this Court in effect must impose it, although in doing so the Court should bear in mind the preliminary nature of this hearing especially the absence of the expert's reports that will ultimately be provided under s 7(4).
3. The first disputed condition seeks to preclude the defendant from engaging in threatening, intimidating or abusive behaviour towards Corrective Services New South Wales personnel involved in his supervision. Ms Cook submitted that, as this was already an offence, the imposition of this condition was unnecessary. However, given that there is some suggestion in the material that Mr Keir has been abusive, then I consider the inclusion of this condition is appropriate because it is likely to have an educative effect as well as to enhance enforcement. I will impose that condition.
4. The second disputed condition concerns electronic monitoring. The proposed condition states: "If a DSO reasonably believes that the defendant has failed to comply with any of the following conditions: Part A [4] (truthfully answer questions), Part B [12] (curfew) [14][15] (staying overnight), Part C [16][17] (non-association), Part D [18] (electronic communication), Part G [34][35] (place and travel restrictions), Part I [38] (alcohol), Part J [40] (gambling), Part K [42] (name changing), the DSO may direct the defendant to wear electronic monitoring equipment. If the Defendant is directed to wear electronic monitoring as a result of this condition, the application of the condition must be reviewed by the DSO every 3 months. The direction must be revoked unless the DSO believes, on reasonable grounds, that electronic monitoring is necessary to allow for adequate supervision of the defendant or to otherwise mitigate the defendant's risk of committing a further serious offence."
5. As I have noted, Button J carefully considered whether to impose an electronic monitoring condition but declined to do so. The material relied on by the State in this application in support of the imposition of this condition includes material concerning the incident in April 2020 that was considered by his Honour. The State also pointed to the incident in October 2021 that I have referred to, namely, the allegation, which Mr Keir denied, that he walked around his apartment naked and appeared naked in front of his neighbour's unit. However, beyond suggesting an increased risk profile, this incident adds nothing to the case for electronic monitoring as electronic monitoring will not prevent him from being in his apartment unit.
6. Otherwise, the State relied on a series of case note entries recording incidents where Mr Keir disclosed to Corrective Services New South Wales friendly encounters with women while he was walking at night and, in one instance, a woman he met at a nudist colony. However, as Ms Cook noted, in the most recent note of 23 April 2022 Mr Keir disclosed such contact in the context of seeking approval to attend the relevant woman's place for dinner. The request was rejected on the basis that he had given insufficient time to undertake checks with the police. Mr Keir was then directed not to attend the dinner and there is no suggestion that he did so. Significantly, the note also records that Mr Keir was advised, "I explained to him that it is great he is trying to meet a woman but suggested in future he provide more time to allow checks to be completed. I also stated exchanging numbers is a reasonable thing to do." Where advice of that kind is being given to Mr Keir, it is difficult to see the basis for the criticism of these various incidents that is outlined in the risk assessment report that I referred to earlier.
7. Ultimately, there are a number of problems with the State's application to impose at this stage the proposed condition in relation to electronic monitoring.
8. First, the State has not really endeavoured to explain how the enforcement of the various other conditions listed in the proposed conditions is related to electronic monitoring. For example, there is no apparent connection between imposing a condition precluding Mr Keir from changing his name and then allowing for the electronic monitoring in the event he fails to comply with that condition.
9. Second, the State has on this material not established that any aspect of Mr Keir's behaviour since Button J's decision warrants the imposition of electronic monitoring. The various incidents in his apartment block have already been addressed. At the risk of repetition, because they occurred there, electronic monitoring would not provide any extra means of enforcing the conditions of the ISO and otherwise mitigating the risk that Mr Keir poses. Otherwise, the various disclosures made by Mr Keir about his apparently friendly encounters with women appear to indicate that the current regime of monitoring, supervision and disclosure is operating as it should. Mr Keir appears to meet women in a social context and, before his dealings with them have reached any significant point, he advises Corrective Services New South Wales as to what has occurred. Overall, this aspect of the State's application appears, in substance, to be an attempt to reagitate its dissatisfaction with Button J's refusal to impose electronic monitoring in Keir (No 2).
10. Third, one overarching problem with this and similar applications in other cases is the lack of evidence concerning the efficacy and utility of electronic monitoring generally. From the Bar table the Court was advised that electronic monitoring could monitor Mr Keir's attempts to attend at a particular apartment or at least a particular apartment block. However, there was no evidence to suggest that electronic monitoring could be that precise. This is no small quibble. On bail applications this Court is repeatedly and emphatically advised by law enforcement agencies about the lack of utility of electronic monitoring and its relative imprecision. This Court is ultimately entitled to expect that the various State agencies will at some point present a consistent position as to the uses and limitations of electronic monitoring.
11. For the reasons I have given I will not impose proposed condition 6 concerning electronic monitoring.
12. Fourth, the proposed condition 11 in effect seeks to impose a form of curfew on Mr Keir so that he only must be at his approved address between 9pm and 6am unless other arrangements are approved by a departmental supervision officer.
13. The premise of this condition is that something inappropriate or wrong has occurred in Mr Keir's dealings with the women he has encountered during his night-time walks as opposed to the incidents at his apartment. That premise is not established by the material that is before me. In any event, the ability to impose a curfew is already conferred by current condition 3. I decline to impose condition 11.
14. Fifth, by proposed conditions 23 and 24, the State seeks to subject Mr Keir to broad search and seizure powers which can be engaged if, amongst other circumstances, his DSO suspects him of "having engaged in behaviour or conduct associated with an increased risk of committing a serious offence". The material said by the State to justify these new conditions was material suggesting that Mr Keir had at some point deleted some phone messages and material suggesting an increase in his alcohol consumption. In relation to the former, under current conditions 12 and 18 to 22, Corrective Services New South Wales appears to have sufficient power to enter his property and search electronic equipment.
15. As for Mr Keir's alcohol consumption, this can be addressed by other proposed conditions which I will outline shortly. At this preliminary stage it is suffice to say that I am not satisfied that it is appropriate to impose conditions 23 and 24.
16. Sixth, proposed conditions 34 and 35 concern place and travel restrictions. Proposed condition 34 provides that Mr Keir must not leave New South Wales without the approval of the Commissioner of Corrective Services New South Wales. This clause simply reflects the effect of s 11(2) of the Act. Its omission from the existing ESO appears to be an oversight. It is appropriate to impose that condition.
17. Proposed condition 35 seeks to provide that Mr Keir not "frequent or visit any place or district specified by a DSO". The power to require Mr Keir not visit any particular place or district appears to be already conferred by condition 3. I am not satisfied it is appropriate to impose condition 35.
18. Seventh, proposed conditions 37 to 41 appear to be directed to supervising Mr Keir's consumption of alcohol and gambling. To that end proposed condition 36 requires and provides information related to his financial affairs. Proposed conditions 37 to 39 require him to submit to drug and alcohol testing and to attend any rehabilitation programmes if reasonably required. Proposed conditions 40 and 41 include a power to direct Mr Keir not to gamble above a specified amount and, if necessary, proposed condition 41 requires him to seek assistance in controlling his gambling.
19. The evidentiary basis for these proposed conditions is the material suggesting that, since the time the ESO was imposed by Button J, there has been an increase in Mr Keir's alcohol consumption, as well as a development of a problem with gambling. For example, one of the case notes refers to Mr Keir drinking at least three bottles of brandy a week and that when he drinks he gambles. I note that one officer records being advised that over the past few months Mr Keir may have lost approximately $50,000. Other notes are to a similar effect. Further, there is, within the risk assessment report, material suggesting that there is an increase in violence accompanied by an increase in alcohol consumption, a matter that I would otherwise regard as common sense. Overall, I consider the proposed conditions 36 and 41 are appropriate and they will be imposed.
20. Eighth, proposed condition 42 provides Mr Keir must not change his name or use any other variations such as "Andrew Thomas" without notifying his DSO. There is material suggesting that at various times Mr Keir has used a variation of his name in meeting other people. This perhaps is not surprising in that in the modern age I would assume it is not too difficult to ascertain that he has stood trial and been convicted of murdering one of his wives and was found not guilty of murdering the other.
21. Given that the material indicates Mr Keir is having friendly encounters with women, I consider it appropriate to impose condition 42. Those people that he encounters are entitled, if they so choose, to know his full name and to be able to find out for themselves about his past, although it can be expected that if a relationship develops either Mr Keir will be obliged to tell them, or Corrective Services New South Wales will do so.
22. Lastly, I note that the State proposes to make minor amendments to existing conditions 4, 17 and 30. Those amendments are appropriate.
23. Accordingly, the Court orders that: (1) Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): a. two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) be appointed to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed; and b. the defendant be directed to attend those examinations. (2) Pursuant to sections 10A and 10C of the Act, the defendant be subject to an Interim Supervision Order for a period of 28 days commencing 17 May 2022. (3) Pursuant to section 11 of the Act, the defendant be directed to comply with the conditions set out in the Schedule. (4) Access to the Supreme Court file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 May 2022