State of NSW v Keir

Events since imposition of ISO

1. I turn to recount what has occurred since 18 February 2020. I do so now because those events inform not just the dispute about conditions but also, of course, whether I am satisfied that an ESO should be imposed.
2. Speaking generally, the evidence is that the defendant has proceeded quite well on his new form of conditional liberty since the imposition of the ISO. He has been living alone in an apartment in a Sydney suburb, working as an upholsterer, commuting to and from work, and enjoying some family support. He has seemingly been open with his Department Supervising Officer ("DSO"). He remains in the community; has not been charged with or convicted of any new offence, including breaching his ISO; and generally seems to be leading a quiet and no doubt isolated if not lonely life.
3. On Thursday 2 April 2020, the defendant sought permission from his DSO to have a woman over to his apartment as a dinner guest. He sought that permission in compliance with his ISO. Permission was not granted, and there immediately arose an informal investigation into how the defendant had come to strike up an acquaintance with the woman in question since the imposition of the ISO.
4. The documents tendered before me show that there have been different versions given by different persons about how that came to be. Having said that, it was only the defendant who gave evidence before me about the question, and was cross-examined on oath. Speaking generally, I believe that I should regard the version of the defendant as the truth, and use alternative versions, not for the truth of their contents, but rather simply to show that such things have been said by others. Counsel for the defendant expressed her contentment with that approach at the hearing.
5. The position of the defendant is as follows. He attended a nudist beach on Friday 27 March 2020. There, in the late afternoon, he met a woman of an age that is unclear on the evidence. I shall speak of her in this judgment only as "Linda". She told him at some stage that she had attended the beach with a male friend, but an argument ensued and he abandoned her there. When she met the defendant, she was upset, not only by how the beach outing had turned out, but also because of other aspects of her life that were not proceeding well. The defendant assisted her to find a bus stop so that she could get home. They walked to the bus stop together. Chatting on the way, they realised that they lived quite close to each other. In the event, at about 7 pm the two of them ended up back at her apartment, where they shared a bottle of wine, and a "kiss and a cuddle". Linda was affected by alcohol to some degree, but not overly drunk. At one stage the defendant was introduced to her relatives in a social setting.
6. Eventually, the defendant left the apartment at about 9:30 pm and went home. Although the defendant had asked her for her phone number, she had declined to provide it. Linda did take the phone number of the defendant from him, and said that she would call him.
7. On Tuesday 31 March 2020, not having heard from her, the defendant walked to her address. He was concerned about her, because of the setbacks she had said had befallen her. He left a note under her apartment door as follows "Hi Linda, it's Thomas, can you please give me a call when you can. Kind regards, Thomas."
8. The following day, Wednesday 1 April 2020, the defendant returned to the apartment of the woman. He knocked on her door but received no answer. He left a second note, as follows "Hi Linda, it's Thomas, please open the door, I have some very important things to talk to you about. Please talk to me Linda, I'm really worried about you. Kind regards and respect, Thomas". A neighbour subsequently told him that the addressee was indeed at home in her apartment. The defendant then left a third note under her door, as follows "Hi Linda, it's Thomas, can we please talk, it's very important, I'm really worried about you, you are a very special friend please speak with me. Regards and respect your friend, Thomas." He then went home again.
9. On Thursday 2 April 2020, the woman called the defendant on the phone at about 11:30 am. She offered to bring a cooked dinner over to the apartment of the defendant. He agreed. It was then that he called his DSO to request permission to have the woman as a guest in his home that evening.
10. That permission having been denied, the defendant rang Linda to tell her not to come over that evening (I infer that perhaps he had obtained her phone number when she rang him). Her phone rang out, so the defendant walked to her home again.
11. He knocked on her apartment door, but there was no response. On the advice of a neighbour, he found Linda in the communal laundry of the block of flats, and told her that she could not come over for dinner that evening. At that moment, the defendant received a phone call from a police officer. At his request, he left that location, and met the police in a nearby shopping centre.
12. By that stage the public health emergency "lockdown" was in place, and the defendant was aware of the possibility that he may be in breach of a public health order by having walked to the home of an acquaintance without a good reason for doing so. He told police - falsely - that he was simply getting some exercise by walking. The police asked whether Linda was in his flat. He denied that proposition, truthfully. They then asked him whether he had just come from her flat. He replied in the affirmative, again truthfully. He gave the address of the woman to the police, yet again truthfully. He did not provide the police with her last name, not through any recalcitrance, but simply because he honestly did not know it.
13. That evening, the defendant telephoned Linda, and disclosed his conviction for the murder of his first wife. He also told her his correct family name, I infer so that she could undertake research about him on the Internet.
14. Subsequently, the defendant received telephone calls from private numbers. On the advice of his DSO, he did not answer them. Any missed efforts at contact by the police and other persons in authority was caused by that cautious approach, not because of any desire on the part of the defendant to avoid contact with them.
15. As one might expect, the authorities spoke to the woman in question. Her version of events generally though not entirely corroborated what the defendant had said had happened. She did claim that, as she was farewelling the defendant outside her premises, he returned to her apartment on the pretext that he had forgotten something inside. She further claimed that he took the opportunity to steal a number of items, at least one of them intimate, from her apartment. Having said that, she has not pursued that assertion; the defendant has not been charged with stealing from her home; and he denies on oath that he did so.

Imposition of an ESO

1. Having summarised that new evidence, I turn first to the question of whether I am satisfied that the "consent ESO" of two years' duration should indeed be imposed.
2. To recap: the defendant is a mature man of obvious intelligence, unburdened by criminogenic addictions or pathologies, who has proceeded reasonably well in the community since his release to parole on 8 October 2019. To be weighed against those factors, which may argue against the imposition of further conditional liberty, are the following matters.
3. The defendant was convicted of murdering his first wife. As recounted by the sentencing judge, the Crown case was that the offence occurred in the evening whilst the two of them were at home alone together. The probable mechanism of death was strangulation.
4. The defendant thereafter coolly and contemptuously buried at least some of her bones in the backyard of premises associated with himself.
5. He has never accepted his guilt of any aspect of what he has done.
6. Despite his unbending denial of guilt of that crime, he concedes that he conducted an affair with the mother of his first wife for years without her knowledge, inflicted some violence on his first wife during their relationship, and - despite his ongoing sexual relationship with the mother of his spouse--was sufficiently lacking in insight to be angered if his wife wore clothes that he felt were too revealing.
7. Prior to his conviction for that offence of the utmost seriousness, the defendant had a reasonably short criminal record. It can be effectively disregarded, except perhaps the entry for possession of a pistol.
8. Although the defendant engaged in a violence prevention program in prison as a "denier", progress has been - as one might expect - limited.
9. The defendant has spent well over two decades in continuous custody, and was released to parole as recently as on 8 October 2019. As I have said, since his release, the defendant has of necessity led a life that is isolated and, I infer, lacking in resources, financial, social, and otherwise.
10. As for events since the preliminary hearing, as I have said, the contact with the woman arising from the chance meeting at a nudist beach has not led to the defendant being charged, or "breached". But it has its significantly concerning aspects: a man convicted of murdering his wife ended up in the home of a woman whom he had only just met, drinking alcohol and engaging in (admittedly limited) intimate contact; he visited her three further times and pestered her with notes on two occasions, when, in truth, he barely knew her; he was not immediately truthful with the police when asked by them whether he had been at her home; and, finally, at one stage at least she accused him of taking advantage of her and stealing from her. Even accepting entirely the version of events put forward by the defendant, it is, in the context of his life history, surely troubling.
11. As for expert opinion regarding the appropriateness of an ESO, Ms Chelsey 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.
12. Finally with regard to countervailing factors, although the defendant was acquitted at the conclusion of a separate trial by jury of the offence, as I remarked at the preliminary hearing, it is not absolutely irrelevant to the determination of whether or not an ESO should be imposed that his second wife was horrifically murdered only three years after the defendant murdered his first wife.
13. In my opinion, the joint position of the parties is correct: the uncontroversial statutory preconditions for the making of an ESO against the defendant are established.
14. Furthermore, if this man were simply left to survive in the community bereft of support and supervision, there would certainly be an unacceptable risk of him committing another serious violence offence. The central test to be found in s 5B of the Act is, I consider, amply established.
15. In my opinion, the length of the ESO is appropriately balanced.
16. Finally, there is no reason why I would exercise any discretion not to impose conditional liberty: see s 9 of the Act.
17. For all those reasons, I shall impose an ESO of two years' duration upon the defendant.

Dispute about conditions of ESO

1. As I have said, the true dispute at the most recent hearing before me was about several of the conditions proposed by the plaintiff, the majority of the conditions sought having been consented to by the defendant whilst represented by solicitor and counsel. I have reviewed the conditions that are consented to for myself, and am satisfied that all of them are appropriate, to use the word found in s 11 of the Act.
2. As for disputed conditions, the major "tightening" sought by the plaintiff between the conditions of the ISO and the conditions of the ESO is the imposition of electronic monitoring (proposed condition 5), with attendant provision of a schedule of movements (proposed conditions 6 to 8). In fact, the defendant was subject to such monitoring whilst he was on parole, and his electronic bracelet was removed on the day that his parole came to an end and his ISO commenced.
3. Proposed condition 10 was also opposed, to the extent that it permits the DSO of the defendant to visit him at home at any time. The alternative proposition of his counsel was that that should be limited to visits between the hours of 6 am and 9 pm. In that regard, counsel for the defendant submitted that an overzealous DSO could insist on visiting at any time, including times when, perhaps, the defendant is entirely appropriately at work. Such an approach could also more generally interrupt his rehabilitation, in terms of the development of beneficial social contacts.
4. To resolve that dispute immediately: so much may be accepted. But I think that I am entitled to infer that any DSO who is committed to the rehabilitation of a person such as the defendant would not insist, for example, that he suddenly leave his place of employment and travel to his apartment many suburbs away to permit an inspection to take place. And the point is soundly made by counsel for the plaintiff that, if inspection is known to be restricted to certain hours, one may confidently do as one likes in the other hours of the day and night. In my opinion, condition 10 as proposed by the plaintiff is appropriate.
5. There was also a divergence between the parties about the stringency with which contact by the defendant with women should be regulated (proposed conditions 11, 14 and 15). Counsel for the defendant proposed alternative conditions that were somewhat less onerous.
6. Resolving the dispute about those conditions immediately as well, it is perfectly true that the defendant did nothing "wrong" - legally, morally, or otherwise - in his recent contact with the woman Linda. It is also true that he was open about it (albeit some days after it commenced), and indeed appropriately sought permission pursuant to his ISO once that became necessary. But, seen in the context of all that has occurred in the life of the defendant over the past 30 years, I think that, taken as a whole, the recent and concerning interaction with Linda gives rise for a need for a further tightening of the conditions upon which the defendant can have social contact with women. I think that that would be in his own interests, quite apart from the interest of protecting the community from risk. Conditions 11, 14 and 15 will be imposed as sought by the plaintiff.
7. Returning now to the question of electronic monitoring and the provision of a detailed schedule of movements, I accept the proposition of counsel for the plaintiff that the latter is nugatory without the supervisory force of the former.
8. As for that particular form of monitoring, supplementary reports of all three experts dealt with that discrete question. In a nutshell, their views were as follows.
9. Two of the experts, Ms Dewson and Mr Ardasinski, acknowledged that such conditions are less likely to be effective in protecting against the risk of an offence that may be committed within an intimate relationship. Even so, they were unequivocal in their opinions that electronic monitoring and scheduling are appropriate and necessary to minimise situations that may give rise to risk, and in order to enforce compliance with the other conditions.
10. Dr Singh, however, saw no benefit in the imposition of the two conditions, on the basis that they were unlikely to mitigate the risk of future intimate personal violence, and would come at the expense of the ability of the defendant to reintegrate autonomously into the community.
11. Turning to my determination, I must say that the matter is finely balanced. It is quite true that the recent contact with Linda cannot be seen in isolation: the context of the offence committed by the defendant is unquestionably important. It is also able to be inferred, I think, that the woman in question may be a person of some general vulnerability. It is also significant that counsel for the defendant accepted that the notes left by the defendant show outmoded attitudes on his part to such things as what she called "courtship". All of that argues in favour of the very strict supervision of electronically monitoring.
12. To be weighed against that is the proposition that one might understand how a heterosexual man who has been incarcerated for more than two decades, and is currently living alone, might naturally seek out social and intimate contact with a woman.
13. It is also important that he has been accused neither of committing a substantive criminal offence nor even of breaching his ISO in a technical way by way of that contact.
14. Furthermore, although there was initial prevarication with police, he had at that stage already been entirely open with his DSO about the contact that had occurred.
15. Finally, it is important, I think, that the experts are by no means unanimous about the utility of such a measure in any event, even despite the fact that he has been convicted of the most serious personal offence known to law.
16. In short, whilst it is self-evidently true, as counsel for the plaintiff submitted, that the imposition of electronic monitoring and the provision of a schedule of movements enhance enforcement of compliance, after reflection I am not satisfied that the plaintiff has established that such conditions are appropriate. I think that the stringent conditions of which I have already spoken are sufficient. It follows that I shall not make proposed conditions 5 to 8 inclusive.
17. For ease of comparison between the orders proposed and the orders made my conditions are not renumbered as a result of that deletion. Rather, they simply reflect the numbering contained in the final iteration of the summons of the plaintiff handed up to me at the final hearing, it having been amended in handwriting by counsel for the plaintiff.

Orders

1. I make the following orders: 1. Pursuant to ss. 5B and 9(1)(a) of the Act, the defendant is subject to an extended supervision order for a period of two years. 2. Pursuant to s. 11 of the Act, the defendant, for the period of that extended supervision order, must comply with the conditions set out in the Schedule to this judgment. Keir - Schedule of conditions.15.5.20 (66.9 KB, pdf) State of NSW v Keir judgment (105 KB, pdf) ********** 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: 18 May 2020