Regina v Keir

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

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

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

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

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

It is appropriate before commencing upon this judgment that I should remind myself of the provisions of subsections 133(2) and (3) of the Criminal Procedure Act 1986 which provide: “133 (1)…….. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.” and my duty to give reasons for my decision (See Fleming v R (1998) 197 CLR 250.

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

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

Prior to the commencement of addresses Mr Hanley said: “I have reread Kirby J's summing-up to the Jury and it seems to me that those matters of law he directed to the Jury in relation to that trial have not changed. Some factual matters have changed to some extent but the general directions in relation to the specific areas of evidence appear to be generally the same, I would have thought complete, in relation to what he told that particular Jury. There was, I recall, some discussion between your Honour and us at the start of the trial that his Honour's comments and summing-up may well be useful, depending upon how the facts and evidence in this case vary from it. Other than some scientific matters, there does not appear to be great deviation from that.”

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

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

Kirby J said to the jury: “I begin by reminding you of certain principles of law. They are fundamental to our system of criminal justice. The first is that every accused person is presumed innocent until his or her guilt is proved. The accused Mr Keir has the benefit of that presumption. He is presumed innocent. He is entitled to have you return a verdict of not guilty unless you find the Crown has proved his guilt. At no stage in this trial is there any onus upon Mr Keir to prove that he is innocent of murder because his innocence is presumed. In respect of all issues, the onus is upon the Crown to prove his guilt. The onus never shifts from the Crown. Mr Keir has no obligation to disprove any part of the Crown case against him. Indeed, the onus rests upon the Crown from the start of this trial until the end. The onus is in no way affected by the fact that Mr Keir has given evidence before you. Mr Keir was not obliged to give evidence, he could have remained silent. However, he has chosen to give sworn evidence and to submit to cross-examination. In putting forward his version, the accused has not accepted some onus of establishing that he is innocent. That is not the issue. The accused has no such onus. You should not approach this matter upon the basis that the accused can only be acquitted if you accept his version of what happened. Rather, the Crown must satisfy you that Mr Keir is guilty of the offence charged. Mr Keir's version is but one matter which you must take into account in reaching your decision in respect of the case brought by the Crown against the accused. However, in giving evidence, Mr Keir becomes a witness just like any other witness and the same principles apply when evaluating the truthfulness and the accuracy of his evidence. Even if you were to disbelieve Mr Keir's version, that would simply mean that you put that version to one side. You would still have to determine whether the Crown has proved Mr Keir's guilt beyond reasonable doubt. Having said that, it is fair to say that if you reject the version of Mr Keir, that may well assist you in determining whether you can more readily accept the conclusions arising from the evidence led by the Crown. However, you must understand that you may not accept the version of Mr Keir and yet still find him not guilty of murder and that because the Crown has not proved to your satisfaction beyond reasonable doubt the elements of the offence. So that is the first fundamental principle. The onus is upon the Crown and never shifts from the Crown. The second fundamental principle is that everything which the Crown is required to prove must be proved to your satisfaction beyond reasonable doubt. In respect of every offence, the law defines the particular matters which the Crown must prove before an accused person can be found guilty of that offence. These are usually referred to as the elements of the offence, the charge. Shortly I will explain to you the elements of the charge of murder and the elements of the alternative charge, which is available in certain circumstances, that of manslaughter by an unlawful or dangerous act. A person may not be convicted unless each of the separate elements of the charge is proved beyond reasonable doubt. In the course of this summing-up I will distribute written directions. They will identify the elements that have to be proved by the Crown beyond reasonable doubt to establish the guilt of Mr Keir. Any matter which must be established, as one of the elements of the charge, is not proved unless it is established to that very high standard, that is, beyond reasonable doubt. Suspicion, even grave suspicion, is not enough. The Crown, to succeed against Mr Keir, must establish his guilt beyond reasonable doubt. However, the obligation of the Crown to prove every element of the charge does not mean that the Crown is required to prove the truth of every piece of evidence that is placed before you. In other words, there is a distinction between, on the one hand, the elements of the charge and, on the other hand, the pieces of evidence which together may ultimately satisfy you or may not as to the elements of the charge. So the requirement that the Crown must prove every element of the charge means that whatever evidence you do or do not ultimately accept, whatever inferences you do or do not ultimately draw from the evidence, the accused may not be convicted of the offence unless the essential elements of that offence have been proved beyond reasonable doubt. …. Of course, determining the issues that arise in this trial is not quite like determining issues in your own lives. You must approach your task as would a judge. A judge is required to approach his or her task dispassionately, impartially, not allowing himself or herself to be influenced by prejudice or by sympathy, but rather to reach a verdict calmly and objectively and do so eradicating any prejudice from their mind. You have heard the evidence of Christine Strachan, the mother of Jean Keir, and you have no doubt seen Mrs Strachan sitting in the back of this Court throughout this trial, as well as other members of her family. It is natural that you should feel sympathy for her. Likewise, you have seen Mr Michael Keir, the son of the accused, after he completed his evidence, sitting in the back of the Court and other members of his family. It is natural that you should feel sympathy for him and for them. However, when you determine the issues in this trial you must put that sympathy to one side. It has no place in your evaluation. Your task is to reach an objective view on the evidence. With that introduction, let me say something about the process of fact finding. Ultimately, you must determine whether the Crown has proved beyond reasonable doubt its case against the accused. A vital part of your function will be to reach conclusions on what evidence you accept, and what evidence you find reliable and credible and what evidence you believe you can safely act on. Let me remind you of two matters and add a third. The matters about which I wish to remind you are matters I drew to your attention when you were first empanelled as the jury in this trial. The first is the distinction between honesty and accuracy. They are two different concepts. Honesty is an attitude to the truth. The issue for you is whether a particular witness is doing his or her best to tell you the truth as they see it. Accuracy is a different concept. A witness may be doing their best to tell you the truth as they see it but be hopelessly inaccurate, and they may be inaccurate because they have forgotten vital details or they may be confused or their opportunities for observation may be limited, and it may be that certain vital aspects of the evidence have receded from their mind. People can be inaccurate for all sorts of reasons. It is your task to make an assessment of each witness. Are they honest? Can they be relied upon to give you accurate evidence? In making that assessment, you are entitled to take into account the impressions that witnesses made upon you when they gave their evidence, that is, their body language, their demeanour, how they presented to you. You are also entitled to take into account the consistency or inconsistency of their account, whether their story makes sense. You can consider whether or not they have an axe to grind; that is, whether or not they have some motive to distort, embellish, or to conceal the truth. So that is the first aspect, the distinction between honesty and accuracy. The second is that it is not an all or nothing situation. You are not bound to accept all of a witness's evidence or reject all of it. You can accept part and reject part. If you were to reject part of a witness's evidence because you believed that they were lying, then it may be difficult for you to accept other parts of their evidence but, again, it is a matter for you. You may form the view that the particular episode of dishonesty or the particular inaccuracy is confined to one particular issue or a particular compartment of their evidence and you can rely upon other aspects. It is entirely a matter for you. That is the second matter. The third matter concerns the drawing of inferences, inferences or conclusions. ….. Let me simply say that you should not draw any inference from the evidence which you regard as essential to the Crown case unless it is the only rational inference, that is, the only rational conclusion that you believe could be drawn in the circumstances.”

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

The events which are the subject of this trial occurred some sixteen years ago. The accused is not responsible for the delay. Kirby J warned the jury in the following terms: “There is no question that Mr Keir is at a disadvantage by reason of the delay in the prosecution. And indeed, the warning I administer is that you should be conscious of that delay, and the effects of that delay when you evaluate the evidence and determine whether you are satisfied beyond reasonable doubt by that evidence. Let me go from the generality of that warning to specific ways in which Mr Keir has been disadvantaged. The first is that recollections obviously fade, and the chances of misrecollection and inaccuracy correspondingly increase with time. In this case measured in more than a decade. And witness after witness adverted to the delay, including the accused. And secondly, for the reasons mentioned, delay makes for difficulties for counsel on behalf of Mr Keir adequately testing the evidence, fourteen years on. So in those circumstances I must warn you that it would be dangerous to convict unless you scrutinize the evidence with great care. That is not to say that you may not accept the evidence. You may do so provided you have scrutinised it with great care, and considered the circumstances relevant to its evaluation, including this warning: And having undertaken that process, you are satisfied that the evidence is both truthful and accurate.”

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

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

These directions are as follows: “Before you can convict Thomas Andrew Keir of murder, you must be satisfied beyond reasonable doubt:- 1. that Jean Angela Keir is dead; AND 2. that her death was caused by an act of Thomas Andrew Keir on or about 9 or 10 February 1988; AND 3. that at the time of carrying out that act, Thomas Andrew Keir intended to kill her or to cause her grievous bodily harm, that is really serious bodily injury.”

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

Kirby J said to the jury: “The offence of murder is defined in various ways. Here the issue is relevantly uncomplicated. There are no issues of self-defence and other such issues that sometimes arise. So far as this case is concerned, murder is committed where an unlawful act by one person causes the death of another person, where the act was done with the intention of killing or causing grievous bodily harm to that other person. Grievous bodily harm is simply a lawyer's term that means really serious bodily injury. So, broadly, two elements are needed. First of all, an act; and secondly, a state of mind. The act is that there must be some act of the accused which causes death and, secondly, that in carrying out that act the accused must intend either to kill Jean Keir or to cause her really serious bodily injury. …… I have been dealing with the first element of the first page of the elements, that is, Jean Angela Keir is dead. Let me pass then to the second element, that her death was caused by an act of Tom Keir on or about the 9 or 10 February 1998. Now that element contains two issues and you need to be satisfied in respect of each before you can be satisfied beyond reasonable doubt on this issue. The first issue concerns the actions of Mr Keir. Are you satisfied beyond reasonable doubt that the accused did something to harm Jean Keir. So that is the first aspect of this second element. The second aspect is a question of causation. If he did, are you satisfied that whatever he did caused her death. …… So let me pass from that second element, to the third. So if you go back to the written directions you will see the third moves to the issue of intention. So it says 3. And there is an 'and' in between 2 and 3 as you will see, so it says: “3. That at the time of carrying out that act Thomas Andrew Keir intended to kill her or cause her grievous bodily harm, that is really serious bodily injury.” Now in general under our system of law an act is not punished as a crime unless it is done with what we call a guilty mind. The law defines the particular state of mind which an accused must have in respect of particular crimes. In respect of the charge of murder against Mr Keir the Crown needs to prove beyond reasonable doubt that Mr Keir, when he acted to injure Jean Keir, if that is what you find, intended either to kill her or to cause her grievous bodily harm, that is really serious bodily injury. When someone does something to another intending to kill them or cause them really serious bodily injury, and that person dies, then the Crown has established the elements of the crime of murder. So the Crown must establish beyond reasonable doubt that at the moment Mr Keir acted to harm or injure his wife, which is element 2, he intended to kill her or cause really serious bodily injury to her. So what is meant by "intention" in this context? You are no doubt familiar with the word "intention" in the ordinary every day English. In law, as in common speech, intention simply identifies the purpose of someone at the time they did some act. Was their purpose to bring about a particular consequence. Was the purpose of Thomas Keir to kill Jean Keir or to cause her really serious bodily injury? Now, an act to be intended, need not be premeditated or planned. It may be impulsive, done quickly and yet intended. So in resolving this issue you are obliged to reach into the mind of someone, in this case Mr Keir, and determine what that person's purpose was at the time they did something. Now you may ask, how do I determine what a particular person intends at any given moment? This is an area where you must rely upon inference, that is conclusions you draw reasoning from a combination of circumstances. You cannot go directly into the mind of Mr Keir or into the mind of anyone. But you can draw inferences as to what someone intends by looking at a number of things. For instance, you may look at what the person said about their intentions, or even what they said afterwards, where they explained what they intended, what it was they intended. And secondly, ordinarily you may look at what a person did. In some cases a person's actions may provide the most convincing evidence of their intention. Here the evidence does not establish the precise act which caused death. However you must be satisfied that whatever that act was, it was accompanied by an intention either to kill Jean Keir or cause her really serious bodily injury.”

The Crown relies upon threats allegedly made by the accused to Jean Keir over a period of time and, generally speaking, in a domestic situation. It is appropriate to refer to the warning given by Kirby J as follows: “However, that is evidence which must be looked at with some care. If you were to accept that the threats were made, you must exercise caution before using such evidence to infer what Mr Keir did or intended on or about 9 February 1988, being the date the Crown suggests he murdered Jean Keir. And the reason you must exercise caution is obvious. It is common in every marriage for things to be said in anger, that are better not said, even for threats to be made which are really empty threats. …… You must examine, first of all whether you are satisfied that the particular statements containing the threat was made and if it was made, was it made in anger. Now you may reach a point where repeated statements, repeated threats, if you accept they were made, begin to reflect a person's state of mind. Such statements, when taken in conjunction with other evidence, may be an indication that what is said was more than an empty threat, representing rather a person's actual intention. That is, such threats, if you accept that they were made, and made repeatedly, and made at a time which was reasonably proximate to Jean's disappearance, may represent a consistent state of mind, a state of mind which persevered to the time of Jean Keir's disappearance on 9 February 1988. Such material may then be used in conjunction with other evidence to determine whether the accused did an act which caused the death of Jean Keir intending that she be killed, or at least that she suffer really serious bodily injury. So this is an issue you must carefully evaluate using your commonsense, aware of the fact that we all at some stage say things which we regret.” Admissions

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

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

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

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

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

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

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

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

To put it very shortly Perkins says that during the conversation the accused told him that he was in for murder, that he had got rid of his missus, that he had bashed her and choked her and that the accused said: “I buried her standing up in the back corner of the house and near the foundations, ah, yeah”.

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

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

According to Perkins he told Riley that he did not believe the accused and that he should not go and say something about it. However, Riley talked of going to the cops and said: “No, it’ll just get you out of gaol or get money out.” Riley did give evidence in cross-examination: “Q. It crossed your mind that it was a way of getting out of gaol? A. It certainly did.” It was clear that Riley was speaking of getting out on bail.

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

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

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

As mentioned Riley saw an opportunity in this and called the accused over to him in the yard. He gave evidence: “Q. Do the best you can that you remember what was said? A. Mm, it was along the lines of, ‘Where’s your wife? What’s going on?’ I can’t remember the exact conversation, sorry. Q. Did he say anything to you when you said ‘where’s your wife?’ A. He said he hadn’t seen her for a couple of years. He had only spoken to her on the phone a couple of years ago.”

Riley says that at that point he said something like “you’re bullshitting. You knocked her”. He said that the accused had a cup of tea or coffee in his hand. He gave evidence: “Q Did you notice anything about the cup? A. Once I talked to him he started shaking like anything. He, just as soon as I said; ‘If I can tell you where the body is, can you tell us what's going on?’ He looked at me and said: ’I don't know what you're talking about.’ I said, ‘You put her underneath the house near a foundation.’ The cup he had in his hand, he's just started shaking and it was nearly spilling over. Q. When you saw that, did you say anything to him when you saw his hand shaking? A. Yeah, I said: ‘See, see. I know. See. Look.’ Q. What did he say? A. He said, he denied it and he said "I don't know what you're talking about", at first. Q. What did you say? A. I said, "Don't treat me like a git, tell us what's going on. Did you have a blue or something? Was she fucking around on you?" Words to that effect. I can't remember the exact thing, I'm sorry. Q. Did he say anything when you said that to him, ‘did you have a blue with her?’ A. In the end, by the end of the conversation he said; yeah, he had a blue with her, an argument with her. And he strangled her and knocked her and put her under the house.”

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

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

Riley said that he gave Mr Seymour an unsigned statement. He gave evidence: “Q. Is there any reason why you didn't sign it? A. Yeah, I was going up for Supreme Court bail and I thought if I gave the police any information, that they could assist me in getting, writing a letter to the Supreme Court to assist me in getting bail. Q. What about the signing of the document? Was there a reason you didn't want to sign it? A. Yeah, I told them I wanted to seek legal advice. Q. Did you seek any legal advice or advice? A. Yeah, I talked to my brother. Q. Subsequently, did the police come back with the statement? A. Yeah, about a week later. Q. What happened? A. They said that they don't do anything with Supreme Court bail with an unsigned statement. They said the bosses wouldn't allow, or couldn't help me out unless I signed the statement. Q. Did you sign it? A. Then I did, yep.”

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

Riley gave evidence of another conversation with the accused in the MRC as follows: “Q. What was the topic of that conversation? A. I told him the police were trying to load me up with 24 break, enter and steals if I didn't sign a statement against him. And I said, I told him that, I said, I told the police that I'd see them in Court and they could go and charge me. I said if he wants me to go as witness once I got out, witness for him, give me a bell and I'll go witness. Q. Is there a reason why you said those things? A. Yeah, because I was covering my own arse in gaol.”

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

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

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

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

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

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

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

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

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

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

At the second trial Perkins was shown a statutory declaration which he did and does not recall but accepts is his. It was made on 7 May 1991 and placed, at his request, on his prison file. Omitting formal parts it reads: “I the Above person wish to state that on the 7/5/91 was taken from my visit to another visit witch was with police whome are investigating an ex cell mate whome is on bail (Thomas Kier). They threatened me with legal Aligation’s if i would not assist them with their aligations against (Thomas Kier). I informed them that i had no knolledge that would assist them nor did i wish to partake in any story they were offering myself to say against (Thomas Kier). They also seen Brian Riley and Cameron Haydon about the same matter. I do not wish to be interviewed by police.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As to circumstantial evidence Kirby J gave the following directions and warnings: “In the context of the circumstantial evidence I first of all should explain what circumstantial evidence is. I should also again identify the test that you must apply in respect of circumstantial evidence. So far as circumstantial evidence is concerned, circumstantial evidence relies upon inference. That is, drawing a conclusion from a combination of circumstances from facts and events which in combination are said to establish beyond reasonable doubt that the accused is guilty, and they do so because there is no other reasonable or rational explanation for those facts and circumstances. …… Now circumstantial evidence is not necessarily less reliable than direct evidence. Indeed in some cases it may be far more convincing. But before you can find an accused person guilty of a crime upon the basis of circumstantial evidence, you must be satisfied that such a finding is made out by the facts that you find proved by the evidence. Such a finding must not only be reasonable but there must be no other reasonable finding apart from guilt, and that is because there is no other reasonable or rational explanation for the facts you find proved. Now it follows that if there is another finding which is reasonably open, that is, another explanation which is inconsistent with guilt, then the Crown will not have proved its case. It will be then your duty to find the accused not guilty. The Crown must exclude every other possible reasonable explanation. …… But however the Crown does it, somehow or other they must eliminate any other reasonable rational possibilities that arise out of the evidence. And in this context, a reasonable explanation means a rational explanation. The circumstances must demonstrate guilt because there is no other rational explanation. …… Now circumstantial evidence has been likened, and I think Mr Hogan referred to this, to strands that make up a rope, or sticks that make up a bundle. The more strands you have the stronger the rope. The more sticks you have, the stronger the collective strength of the bundle. Let me stay with a metaphor, sticks that make up a bundle. We have all had the experience of a bundle of sticks, and putting a bundle of sticks across your knee and breaking the bundle. And perhaps if you have half a dozen small sticks you can still put them across your knee and break them, but you reach a point where the bundle grows, where there are just too many sticks to break the bundle in half; collectively they end up being very strong. And so it is with circumstantial evidence. At some point you may accumulate each stick of evidence, and together they may make up a bundle, and if there are enough sticks, and in each is sufficiently strong, that is if each is cogent evidence of the particular fact, they may collectively give rise to an inference of guilt beyond reasonable doubt. You may reach the point where there is no other reasonable explanation for the circumstances which you find proved, and the circumstances taken together may eliminate all other explanations. Alternatively, as you consider each aspect of proof, the particular facts put forward by the Crown as forming part of the circumstantial case, each stick in the bundle, may not persuade you that has been proved to your satisfaction. In which case you leave that stick out of the bundle. The proof in respect of that particular matter may leave too many issues unresolved, have too many holes, too many unexplained questions, so the bundle you may end up with may be slender. And there may be other reasonable explanations for the facts which you find proved apart from the guilt of the accused. If there are, then the Crown have failed in its circumstantial case. You may reach a position where even accepting everything the Crown puts forward you are still not satisfied that all these sticks, if you like, taken together are enough to persuade you beyond reasonable doubt. You will remember the Crown can only succeed if it persuades you that there is no other rational explanation for the circumstances it proves other than the guilt of the accused. I will deal later with a case made by the Crown and the submissions made by Mr Keir.”

One of the circumstances identified by the Crown is a motive which it imputes to the accused. As to motive Kirby J said: “Now the Crown is not obliged to prove motive in order to succeed in the prosecution. You will see from the elements which I took you through before in the directions that motive is not one of them. One does occasionally have crimes which are committed for no apparent, or no good motive. Even were you to find no motive, it would be open to you, applying the principle I have identified, to find Mr Keir guilty of the charge. Conversely, even where a person has a motive, there is a separate question, whether he or she acted on the motive they may have had. A person may have a motive to harm another and yet do nothing about it. Here the Crown may rely upon motive, or seek to rely upon motive as something which will assist you in understanding what was done, and why it was done. In other words to make the Crown case more credible. Before you add motive to the bundle of circumstances that you believe the Crown has established, you must be satisfied that Mr Keir had the motive which the Crown attributes to him. If you were so satisfied, then that may assist you in determining whether the accused acted to harm Jean Keir as alleged by the Crown, and whether he did so with the required intent, that is to kill her or cause her really serious bodily injury.”

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

The heads are: Evidence as to the relationship between the Keirs. Evidence as to Jean Keir’s relationship with Carl Nieding. Evidence as to Jean Keir’s trip to Culburra in February 1988. Evidence as to Jean Keir’s sudden disappearance. Evidence as to the finding of human bones at 18 Wilkes Crescent. Evidence as to DNA extraction from the bones and analysis. Evidence as to interviews with police officers and a journalist. The Relationship Between the Keirs

Kirby J directed the jury in the use that may and may not be made of such evidence as follows: “…..I should say something about the way in which you should approach the issue of relationship evidence. That is the way in which the evidence of the relationship between Mr Keir and his wife might be used by you in considering your verdict. And I should also administer a warning about the way in which it must not be used. Indeed, let me begin by saying how it must not be used. Ordinarily in a criminal trial evidence of misconduct by an accused person on another occasion cannot be given in evidence. And the reason is not hard to understand. There is a danger that a jury who hears that someone who has been guilty of reprehensible conduct on another occasion may reason that such conduct shows the sort of person they are and, therefore, they probably committed the offence with which they stand charged. Now that is an impermissible way of reasoning, and would be quite wrong and unfair. There is for instance in this case evidence from witnesses that Mr Keir had on occasions shown a measure of violence towards his wife. Whether punching slapping, or however you describe it. Now in respect of such evidence, if you were to accept it, you must not reason along the following lines: You must not say to yourself, well, Thomas Keir is a violent sort of person, he was prepared to be violent towards Jean Keir, so probably he committed this crime of violence, namely murder. That would be quite wrong and unfair. You must not reason that merely because you may find, if you were so satisfied, that Thomas Keir behaved in a particular way which you regard as reprehensible in the course of his relationship with his wife, therefore, he committed the murder. That is what you must not do. The evidence as to the relationship between the accused and Jean Keir has been admitted as being relevant to two issues. The first is it is relevant to the issue of motive, about which I have already said something. And second, it is relevant because it provides a context within which these events unfolded. Without a context the specific charge which arises out of the events of 9th February may be unintelligible. It is evidence which, if it is accepted, may assist you in explaining how or why certain conduct which is the subject of these charges arose. In other words if you knew nothing about the relationship between Thomas Keir and his wife, Jean Keir, it may be very difficult for you to form a judgment about the events upon which you must focus, namely the circumstances of her disappearance on or about 9th February 1988. Without an understanding of their relationship, that is the relationship between the accused and his wife, you would be considering these charges in a vacuum, and that would be highly artificial and unsatisfactory. However, you must understand that such evidence cannot be used in substitution for proof of the offence charged. Mr Keir is entitled to have you determine whether he is guilty of murder, or the lesser offence of manslaughter, based upon the evidence called in respect of those charges, not based upon prejudice arising out of past acknowledged or alleged misdeeds.”

I note that this segment of evidence includes hearsay accounts of statements made by Jean Keir. I should direct myself in accordance with the concepts put by Kirby J to the jury as follows: “Further, having regard to the nature of some of the evidence concerning the relationship, I should administer a further warning. It is a warning in respect of hearsay evidence. …… Now let me say a number of things about that. You should be aware that such evidence may be unreliable, and there a number of obvious reasons. The first is that plainly it would be better if one could hear from Jean Keir herself, which obviously one cannot. Second, the statement, when it was made by Jean Keir, was plainly not a statement on oath, and has not been subjected to cross-examination. And in these respects it is different from other evidence which has been called before you. Mr Keir, as Mr Hogan reminded you, has not had the opportunity of cross-examining Jean Keir and taking her to the aspects of the statements which are attributed to her, and what was really said, and what was really meant, according to his instructions. So in this respect, when considering the reliability of this evidence, you should be conscious of those matters. You should also be conscious of the fact that the evidence must be considered at two different levels. First the reliability of Jean Keir's account of the particular episode which she may be relating, and secondly, the reliability of the evidence of the person who is recounting that account, which depends upon that person's recollection and other matters including Mr Hogan would suggest upon the possibility of contamination or bias.”

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

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

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

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

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

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

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

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

Christine Strachan gave evidence: “Q. Now, I want to ask you about Jean’s nature, personality and sort of person she was at the age of 17, 18. Around about the time that she married, what sort of personality or nature would you describe her? A. She was a very happy girl. Basketball was her life, she loved sports. She got into soccer once and I told her no, because I was scared. I used to hear a lot of people getting hurt in soccer. And she loved that sport but she went to basketball instead and she thrived there. Q. What about socially in terms of friends? A. Yes, she had friends at school, Shona, Fiona, a lot. She had quite good friends. Q. How would you describe her personality? A. Very bubbly, very happy, always joking type of girl that never took anything seriously. She was happy.” She gave further evidence: “Q. After she married, in the period from the day of her marriage to Tom, which you told us was August 1984, over the following – after the following two, three years did you notice a change in the personality, how had she evolved in terms of personality? A. Well, she was not as happy as she was because she said to me that every time she did something, he always put her down. She’s like, I can’t do nothing right. I mean everything was wrong and there was a lot of things she used to tell me that I just could not make sense.”

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

Christine Strachan gave evidence that she lined part of a swimsuit at the request of the accused because he thought it too revealing for Jean Keir when wet. She also gave evidence of an occasion when Jean Keir bought a swimsuit and then could not find it. The accused later brought it to her, Christine Strachan, having cut it, complaining that it had a very small crutch and asked her to fix it. That she did, however, the costume was then very uncomfortable. Speaking of Jean Keir she said: “It was so uncomfortable. You couldn’t see half. She went crazy, started screaming and threw the costume away.”

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

Christine Strachan gave evidence: “Q. Did anything happen about the relationship between her and Tom, in the period of their marriage, between the time they married and February 1988? A. Yes Q. How the relationship went? A. Jeanie was always stressed; stressed. She was, like I said, she said to me; ‘Mum, he doesn’t treat me like a wife. He treats me more like a property, possession. I can’t do this, I can’t do that, I’m not -- Q. Did she say that to you once or more than once? A. More than once. Q. Do you recall when it was that she first said that to you into the marriage, in between August 84 and February 88? A. Oh, it was just after Michael was born. It had already started, even before Michael was born, but just persevering it. But towards the second and third year, oh, she just couldn’t handle it any longer.”

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

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

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

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

Maria Boros is a sister of Christine Strachan. She had known Jean Keir since she was born and met the accused when he became engaged to Jean. She lived in Tregear within walking distance of Wilkes Crescent and had four children of whom two were about Jean Keir’s age. After the marriage she saw a good deal of the Keir family. She gave the following evidence: ”Q. How close were you to Jean in the period up until December 1987? A. Close enough. We are very close because, like I said we were all at Christine’s and we were always together. We go in each other’s places, like, you know, and so Christine and my kids and myself, and we were always close. We were always in each other house. When we get close together, when we have a picnics or party or something. And even at the weekends, if we don’t, like, for instance, I pick up the phone or I talk to Christine if I cannot go to her place and I’ll just -- Q. How close was Jean with her cousins, with your children? A. Very close, especially with Peter. She was very close to Peter. Like I said, I was working full time. Peter was at home. He finished his year eleven and twelve and Jeanie knew that he could drive. He had my car so she used to ask him sometimes to come, take her shopping because she had the baby and had shopping to do. So she couldn’t drive. So Peter used to help her mowing the lawns and doing a few things like, but not every day. But when she told me she needed him, he was there.”

Maria Boros gave evidence that sometime in 1987 she received a telephone call from Jean Keir who seemed upset on the phone. Jean Keir said: “I love my little boy and I want my marriage to work. I’m upset. I want to, I’m troubled.” Maria Boros said that Jean Keir indicated that she wanted to talk to somebody and she suggested that she come around and talk to her which she did, bringing Michael with her, it probably being at a weekend in September or October. She gave evidence as to a conversation she had with Jean Keir as follows: “Q. Can you tell us what Jean said? A. She said she wanted to get away for a little while. She was, she loved her little boy and she wanted her marriage to work. She was afraid of Tom. Q. Put it in the first person if you can? A. I am, how could I put it? I am a bit nervous. “I am upset and I love my little boy I want my marriage to work but I am afraid of Tom”. And I did not understand what she meant by “I am afraid of Tom. I am frightened of Tom”, she said. Q. Did she say anything else? A. She wanted to go away for a little while. I am trying to think. She wanted to go away for a little while, just to work things out. That’s all.”

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

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

Maria Boros is a therapeutic masseur. Pursuant to an arrangement made by Christine Strachan she had massaged the accused’s injured lower back some time after Jean Keir’s disappearance. Subsequently he had telephoned her asking her to do it again. On the telephone he told her that he had heard from Jean Keir on the telephone. She gave the following evidence: “Q. What did he say about Jean? A. He said he heard from Jean and I said, he said to me that she is very happy. I said: “What? How come Jeanie is calling you and she doesn’t call her mother or me or any of the family.” And he said; “I don’t know” and he never said anything more. Q. And you said he said she was happy? A. Yes.”

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

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

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

In cross-examination she gave evidence: “Q. She told you that she wanted her marriage to work, did she? A. Yes, she said ‘I love my little boy. I want my marriage to work, but I am frightened of Tom’. “

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

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

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

It is appropriate to note that Maria Boris gave the following evidence in cross-examination: “Q. So he was a person who clearly you didn’t like, is that right, the accused? A. Yeah. Q. Didn’t trust? A. No. Q. Didn’t believe what he told you on the telephone? A, No.”.

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

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

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

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

She said that she noticed that Jean Keir always seemed to have bruises around the area of her upper thigh. She said that Jean Keir told her she wanted to leave but “she couldn’t because he would kill her”. She said that that was said on more than one occasion, at least three. She gave evidence: “Q. One of them you have told us already was when you were at her house at Tregear. Do you recall when the two other occasions were when she said that to you? A. Yes, we were coming home from a restaurant, from lunch one day and were having a serious conversation about how to - I was asking her why she stayed when it was clear that she was very unhappy and depressed. She said in all seriousness that it wouldn't make any difference where she went, he would find her and kill her, that she didn't want to involve - she told me at that time that if she went missing, that I would be the first person that he would come after.”

She also gave evidence: “Q. What about on the third occasion when there was a reference to her being killed - do you remember where that was? A. We were - I was with - there was another occasion, I was with my sister, Shona, and we were having a serious discussion on ways of - of helping her to get away from him and she said it wouldn't make any difference where she went, he would track her down like a dog and - and find her. Q. Did she say what she said he would do? Did she say what he said he would do if he found her? A. I think he said he would chop her up and feed her to the dog. Q. Where was that third occasion, did you say, that that conversation took place? A. We were - there was - that one was on the train when we were coming home from the restaurant. The other time with my sister we were in the car coming - we just had been playing basketball.”

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

Shortly before February 1988 Fiona Chalmers telephoned Jean Keir who she said was very depressed and “like she was, yeah, losing her mind by this point, very – very much on the edge.” She gave evidence: “Q. And do you remember anything that she said to you during that conversation? A. Anything she said to me - um, yeah, she was - um, she said she was just being pulled - that God was pulling her one way and the devil was pulling her the other and she was just - um, I know I was talking to her in a way of I could see she was - like, I could just hear in her voice that she - she was really losing it at that point and I said to her to - to - to - that she needed - that something bad will happen in that house, to leave.” The conversation ended with Fiona Chalmers asking Jean Keir to “make sure you call me, whatever – wherever you are”.

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

Fiona Chalmers gave evidence: “Q. Did Tom ever speak to you after that about Jean? A. Yes. Q. What did he say to you? A. He said, um, "Yeah, she's gone off with another man" and something to the effect, "She has had a little girl", I think. Q. Did he say anything about how he had learned that? A. No. Q. Did he say anything about phone calls, is what I mean, having received any phone calls? A. Yes, he said Jean had phoned him. Q. On how many different occasions did Tom tell you that? Was it just once or more than once that he had had a phone call from Jean? A. He said he - he said she's called a few times. Q. Did he say "she's called a few times" or did he say on a few occasions that she had called? A. I can't remember exactly now. I just know he said she - she called him.”

She gave evidence in cross-examination: “Q. I think when Jean was about 14 years of age, she told you and your sister that she believed her mother was having an affair with Mr Keir, didn't she? A. Yes. Q. And that she was very angry about it? A. Yes. Q. Did it appear to you from your observations that Mr Keir and Mrs Strachan appeared to be close? A. Yes.”

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

She gave the following answer speaking of Jean Keir: “Q. She said to you on occasions that she loved Tom, didn’t she? A. Yes.”

She gave evidence: “Q. Did she tell you there were times when she loved him and times when she didn't love him? A. The only time she ever said she loved him is after we have had a discussion about ways of how we are going to help her get away, and to my observation it was: This is my situation and I am trying to make the best of a very bad situation. Q. She didn't say that to you, did she? A. She didn't say what? Q. That it was a bad situation and she was going to try and make the best of it? A. We knew the situation so we could see that. Q. Did she say that to you, did she use those words? A. She would say - no, she didn't use those words.”

She also gave evidence: “Q. She said on occasions, "I want to be free from Tom and lead a normal life", that's correct, isn't it? A. Yes. Q. Then she would say, almost in the same sentence, "I love him. I love Tom", didn't she? A. We knew Jean very well and it was her way of saying, "This is my situation and I will make the best of it because this is where I am". Q. Despite what she was saying to you, you interpreted it another way, is that correct? A. I am sorry but we always knew the situation so she didn't need to tell us, and she was also very embarrassed. Q. Did she say to you, "I love him. I love Tom"? A. After calling him a bastard, yes.”

Later in the cross-examination Fiona Chalmers said: “Q. She never said to you, ‘I’ll never be able to get away from him’, did she? A. Yes, she said there would be no place she could go where he wouldn’t find her.”

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

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

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

She gave the following evidence: HIS HONOUR: What is it you wish to clarify? A. The matter of when I was discussing, having the last conversation with Jean, she was saying about the dilemma of being pulled. She was talking about inside her house, talking about God and being pulled in one direction. And she was saying that the Devil was in her house and the dilemma wasn't inside herself. The defence made it sound like she had a dilemma inside herself and we were talking about, I called her up to tell her she had to get out of that house, that something bad was going to happen there and that's when she said, ‘I feel the Devil's pulling me and God's here.’ And I said to her, ‘God's with you and you're going to be okay.’ She said, ‘I can feel God's here but I see the Devil here and I don't know who's going to win’.”

Mr Hanley cross-examined Fiona Chalmers at some length and I considered to some effect upon the basis that this different version was not given in her statement nor in the evidence she had given in previous trials. In respect of the previous trials she gave the following evidence: “Q. On both occasions you were reminded of the fact that you had said that, ‘one thing she said that really stuck in my mind was that God was pulling her one way and the Devil pulling her the other way’? A. She was talking about Tom. Q. You were asked about that particular line in your statement at both previous trials, weren't you? A. Yes. Q. Did you give evidence on either of those occasions that the Devil was Tom at home? A. I'm sorry, I thought that was clear because I have already stated many times that Jean has never talked about being with another man or wanting to be so I thought that was coming across clear.”

Fiona Chalmers agreed that she had previously said that Jean Keir’s voice sounded very strange in this conversation. She gave evidence: Q. When you say that did you drawn that conclusion from the tone of her voice? A. From the desperation in her voice, yes. Q. You said in your statement ‘she sounded very strange and I had to keep asking her if she was still on the phone as she was talking very slowly and sounded to me as if she had enough of everything’? A. Yes, she sounded defeated and the comment was ‘my life’s in God’s hands’, was what she was saying at that point. Q. You drew the conclusion, did you, that as a result of the manner in which she was speaking to you, she sounded as if she had enough of everything? A. I drew the conclusion from the fact that I was offering, I said to her, ‘we will go back and we will get the police to get Michael’.”

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

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

Fiona Chalmers when asked when she had last spoken to Jean Keir before this conversation said “Possibly about six months”. She gave evidence: “Q. The conversation you had six months earlier, did she sound very strange to you? A. As I was saying, she was starting to deteriorate and just getting progressively worse and when a friend said that she was in a bad state, that’s when I called. Q. Was she talking very slowly on the occasion you spoke to her six months earlier? A. Yes. Well by this stage she was starting to. Q. But the conversation you had with her six months earlier, was that on the telephone or face to face? A. I’m sorry, I might have been at her house, I’m not sure, I can’t be certain. Q. You didn’t see her very much really in 1998 (sic), did you? A. I already said that, yes.”

Fiona Chalmers said that it was during the first half of 1987 that she and her sister discussed helping Jean Keir to leave the accused, setting up a bank account and her going to live in Inverell. She gave evidence: “Q. She didn’t take up your offer, did she, to go away to Inverell and live near your sister? A. No because she said it wouldn’t make any difference where she went, that he would find her and kill her.” However, she agreed that she had never heard the accused threaten to kill Jean Keir.

Fiona Chalmers gave evidence: “Q. In fact, you wanted to believe the worst about Tom Keir at any time during their relationship, didn’t you? A. It’s not that I wanted to believe. Q. You didn’t like him, did you? A. I was always scared of him. Q. He had never threatened you, had he? A. You don’t need someone to threaten you to be scared of them. Q. He never threatened you? A. Jean had told me that he had threatened me. Q. To you personally? A. No.” Fiona Chalmers agreed that she never saw the accused physically hit or strike Jean Keir.

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

Fiona Chalmers gave evidence: Q. Did you go to her mother and say, "I am concerned about Jean because she tells me that her husband is threatening her and possibly me"? A. No, I didn't. Q. Why not? A. Because I believed that she wanted him to stay. I believe she didn't care. Q. Christine didn't care, is that what you are saying? A. I believe she didn't. Q. Had you had much contact with her in 1997, that is Christine? A. I had no contact with Christine whatsoever once I left school.”

Fiona Chalmers gave evidence: “Q. You told the Court I think on Friday in your evidence-in-chief that one of the things that Jean had told you was that Tom had said he would track her down like a dog, find her and chop her up and feed her to the dogs or words to that effect. Is that what you told us last Friday? A. Yes. Q. Those particular threats that you say she told you about were not included in your statement, were they? A. No. Q. Have you included them in your evidence on latter occasions? A. No.”

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

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

In respect of the birthday party Fiona Chalmers was cross-examined as to the man who came and said that Jean Keir told him “Tom sent him along”. She was cross-examined as to why she did not make any further inquiry, why she accepted him at the party and subsequently in driving them to the nightclub and home from it. I thought her answers adequate. Acceptance of his presence lends some support to the view of the accused’s controlling conduct towards Jean Keir. It is convenient to say that I think it probable that the accused had arranged for a man to “mind” Jean Keir on this occasion, despite his denials. Fiona Chalmers agreed that on the occasions that she spoke to Jean Keir she said that she was trying to make her marriage with the accused work. She also gave evidence: “Q. Is this the situation, there were occasions when you, Shona, your twin, and Jean talked, and in the course of those discussions talked about her getting away from Tom and having another life? A. Well not another life, a life and to be happy was all that we were trying to do. Q. You talked about her leaving Tom, didn't you, the three of you? A. Yes, because she was very unhappy.”

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

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

She gave evidence: “Q. I think when she was 14 years of age in 1980 you said she was angry because she believed that her mother and Tom were having an affair? A. That's right. Q. Did she say anything more about it at that stage? A. Something that she overheard her father having an argument with their mother. Q. In 1987 you recall Jean being very emotional and angry, don't you? A. Yes, that was what I was talking about then. Q. And the reason she was emotional and angry was that she told you that Christine and Tom were having an affair? A. Yes. Q. That's what you told the police in your last statement, wasn't it? A. Yes. Q. I think she made some comment to you, "Why doesn't she just marry him. She always sticks up for him." She was referring to Christine as you understood? A. Yes. Q. Did she tell you on one occasion whether she had seen anything that gave her that belief that Tom and Christine were having an affair? A. Not that I remember. Q. Did she say she heard something? A. It was something to do with the father, overhearing something with the father having a fight with her mother. Q. And this was in 1987, is it? A. No, that was when we were younger. Q. I am talking about the latter occasion in 1987? A. That time was just her frustration of her mother not helping her and her mother always on Tom's side. Q. You said in your statement that she was emotional and angry, and told you Christine and Tom were having an affair, that's what you told the police isn't it? A. Yes. Q. Was there some basis that she gave you for that belief? A. No. Q. Did you ask her about why she had that belief? A. No, because I didn't need to ask.”

Taken to the occasion when Heather Strachan and Christine Strachan visited her in 1998 she gave evidence: “Q. Did Heather, in your presence, scream out, "He's done something to her", and she is pointing to Christine, "Around his place all the time. I caught her washing his back in the bath tub"? Is that what Heather said to you in Christine's presence? A. Yes. Q. She appeared to be upset, did she? A. Yes. Q. Did you hear Christine say anything when Heather said that? A. No.”

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

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

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

Between the marriage of the accused and Jean Keir, Shona McDonald with her husband, then boyfriend, socialized from time to time with Jean Keir and the accused including going on camping trips with them. Whilst in the country she would come to Sydney every three or four months but would not always see Jean Keir. She also spoke to her on the telephone. Shona McDonald gave evidence: “Q. In between the time Jean married and February 1988, did Jean speak to you about how the relationship or her marriage was going with Tom? A. Yes. Q. What do you remember her telling you in general terms about how that relationship was going? A. It wasn't good, she wasn't happy. When she said she wasn't happy I suggested she leave, but she said she couldn't. She said that Tom would kill her if she left.”

Shona McDonald recalled one particular conversation when she came from Inverell to Sydney and met Jean Keir towards the end of 1987. The three women had gone to the local high school to shoot some baskets. As they were in the car about to leave, a conversation took place which she recounted in the following evidence: “Q. Was there a conversation which took place when you were stopped or parked? A. Yeah, we were parked, we had just gotten back into the car after playing some basketball and Jean got very agitated. We started talking about things in general and I do recall her being quite upset and irate and actually being so angry that she started punching her fists on the car saying, if you can excuse my language, "I just want a fucking life, and he's making me crazy, he's sending me mental". I remember those words to that effect. Q. I think you have told us there was a conversation about her leaving, is that right? A. We did suggest, after her voicing how upset she was, we said, "Just leave him", but she said she can't. Q. Can you recall the words that she used when she said she can't? A. "I can't leave him, he'll kill me. It doesn't matter where I go", because I suggested she come up to my place. "It doesn't matter where I go, he'll find me, he'll kill me".”

Shona McDonald also said that Jean had said: “If I took Michael he would definitely track me down, find me, kill me”. Shona McDonald said that this was not the first time that Jean Keir had mentioned threats. She had thought that the reference to kill me was “just a saying” but “she mentioned it a couple of times I realised”.

Shona McDonald was unable to recall the circumstances of the first time but did remember Jean Keir saying “I can’t leave him, he’ll kill me”. This was said on a number of occasions but she was unable to say how many. She gave evidence: “Q. Did she say anything about why it was that she wanted to leave Tom, other than what you have mentioned? A. No, just that she was unhappy. Q. Do you recall what led to this topic on that occasion in the car about her wanting to leave Tom, do you recall how this came up? A. I don't recall how it came up, it is just, we just talked about life in general. She did look like she wasn't overly happy, she was - she just didn't look her normal self, and we discussed what was the matter and how things were going. Just general conversation about how things were going, that is how it was brought up. Q. You have said she didn't seem to be her normal self. Did you notice anything about her appearance on this occasion when you came down from Inverell? A. Yes, she was always thin but she was thinner, hair a little unkempt, and just her eyes didn't seem the usual spark. She looked unhappy, if someone can look unhappy.”

Shona McDonald said that there were other occasions upon which Jean Keir talked about how unhappy she was, but said words to the effect that she could not leave him “he’ll kill me, he’ll find me, it doesn’t matter where I go”. Then she, Shona McDonald, said that Jean Keir had not in the conversation referred to or, indeed, at any other time referred to seeing another man. She said she had not heard of the name Nieding.

In cross-examination Shona McDonald said that she went to the police and offered a statement after she had seen the television or news reports in April 1991 to which there will be later references. In cross-examination she gave evidence: Q. On those occasions that you went camping and socialised with them, did they appear to be happily married? A. Not entirely, Jean had just had Michael and it was hard, difficult having a new baby when we were, you know, wanting to have fun, and she had Michael to look after. It was difficult. Q. So, is what you are saying she saw you and your friends socialising while she had the duties of looking after a child? A. That's correct. Q. Other than the difficulties associated with that, did she appear to be happy in her relationship with Tom? A. No. Q. Did you see anything that indicated she wasn't? A. Only herself, that she wasn't happy. Q. She appeared to be unhappy? A. She appeared to be unhappy on occasions.

Shona McDonald gave evidence: “Q. She did not indicate to you though that she was unhappy because of Tom at this stage, did she? A. Yeah, it was Tom she was unhappy with.” and also: “Q. Did she appear to be happy and in love with Tom before they got married? A. Well, if you are asking for my opinion, I don't believe so. Q. Can you give us any reason why you say that? A. Because prior to falling pregnant with Michael she was - she had started working, and started actually coming to the city, and she mentioned that, you know, she was meeting other people and I don't know, I don't remember exactly her words, but it sort of indicated that she might move on from Tom. Q. But she didn't? A. No, she didn't, she was pregnant within a couple of months.”

Shona McDonald agreed that Jean Keir had not said that prior to the marriage the accused had threatened her in any way or physically harmed her nor had Shona McDonald on social occasions seen him threaten her in any way either with words or actions. She gave the following evidence in cross-examination: “Q. Prior to you going to Inverell had Jean said to you that she was in fear of Tom? A. Yes. Q. Did she tell you why she was in fear of him? A. Not exactly. Q. You have told us that she said that she couldn't leave him because he would kill her? A. That's correct. Q. Did she say that to you before you went away to Inverell? A. Yes. Q. On more than one occasion? A. On more than one occasion, I don't recall exactly how many.”

Mr Hanley cross-examined Shona McDonald as to whether they had questioned Jean Keir as to why did she think or say that. However, Shona McDonald said that they didn’t go into the whys and wherefores being 19 or 20. She gave evidence: “Q. Did you say, "No, he wouldn't do that to you", or something like that? A. Actually we did on the occasion in the car. I said to her, you know, "He might be just trying to scare you", and she looked at me and shook her head no, and said, "You don't know him". Q. But she never told you or gave you any specific reason for the basis of her fear, did she? A. No, she just said he was a bastard. Q. Other than that? A. She didn't elaborate on that.”

She also gave evidence: “Q. You say that he had told her that, is that what you are saying? A. Jean told me that Tom had said to her that he would kill her if she ever left him. So obviously they had conversations between them for him to say to her, ‘I’ll kill you if you ever leave me’.”

Shona McDonald made it clear that she was asserting that Jean Keir had told her that Tom had made the statement to her that he would kill her. Shona McDonald agreed that Jean Keir would, at the same time she was saying these things, say that she loved the accused. She gave evidence: “Q. She was, in the same sentence, saying the two conflicting things to you, was she? A. She was. It was always at the end of a conversation, it was her way of putting us off because she would also say, “I don’t want you involved. I love him, don’t worry about it”. To me she was just trying to stop us becoming involved. She feared for us, she said.”

Shona McDonald agreed that she had said in her statement “each time I saw her she appeared to be very confused. One minute she would say that she hated Tom and the next minute she would say that she loved him, loved Tom.”

When it was put to her that she had not said in the statement that Jean Keir was endeavouring to stop her being involved, she said that she told the police a lot and “unfortunately not everything I said managed to go on the statement”.

Shona McDonald agreed that discussions would begin with Jean Keir referring to her unhappiness, but that when proposals for her to leave were discussed she would then reply “Oh but I love Tom”. However she gave evidence: “Q. Did it strike you that maybe she was saying the things to you and your sister about her being unhappy with her life merely to get some sympathy from you? A. No. Q. And then when confronted or offered ways of dealing with the problem, she gave you a reason why she didn’t want to go ahead with leaving him? A. No.”

She also gave evidence in cross-examination: “Q. The times that you spoke to Jean, when she spoke to you about the fact that Tom would track her down, did she say he would track her down if she took Michael? A. She was more adamant that Tom would definitely track her down. She was more, “If I took Michael he would definitely track me down, find me, kill me.””

Shona McDonald agreed that, when speaking of Jean Keir hitting her hands on the chair (sic) of the car after shooting the baskets, that was a matter that she had not mentioned in her statement or in any evidence up to that time. She also gave evidence: “Q. Not only did you not see Tom act violently towards Jean, she never claimed, did she, in a conversation she had with you, that he had been violent physically towards her? A. She may have, but I think it was because it was so obvious that she didn't have to say it. Q. Mrs McDonald, you have never suggested in your statement that she told you that he had been physically violent towards her, have you? A. No, not in my statement. Q. Nor have you suggested that she told you that in the evidence you have given in the two previous trials? A. No, that's right, because I can't remember exactly her saying it to me, but I could - like I said, she probably did, but obviously the answer is no.”

Shona McDonald said that she had see bruises on Jean Keir, but she said she often had bruises. She had bruises at school, we all played sport and maybe she always had bruises. She agreed she did not mention any matter of bruises in her statement.

I was impressed with the evidence of Shona McDonald both in the way she gave it and in its content.

Catherine Moore is a niece of Christine Strachan and a cousin of Jean Keir, being somewhat two years younger than Jean Keir. They were pretty close until she married. With the family outings, as she put it, “they basically grew up together”.

She kept in touch with Jean Keir after they were married living between 1984 and 1998 at her mother’s home at Whalan which was some ten minutes away by car. After Jean Keir was married Catherine Moore and her, later, husband used to go to the Wilkes Crescent home at the weekends where they would watch videos and “things like that”. Through the latter half of 1986 and 1987 the association slowed a bit as she and her future husband were concerned with preparations to get married, however it continued. She gave evidence: “Q. After Jean and Tom were married, did, on occasions, Jean speak to you about how the marriage and relationship was going? A. She just seemed pretty happy just after she got married, yes. Q. What about during the latter part of 86 and during 87, did she tell you how the relationship was going during that particular period? A. Not really, no. They just seemed, you know, just like any normal married couple.”

She also gave evidence: “Q. On one occasion did she tell you anything about what Tom had told her about another man or if she would take up with another man? A. Yeah. He said to her if he couldn’t have her nobody would have her. Q. Do you recall when that conversation took place? A. Probably not long after they go married. She would say it in the context as if, this is my opinion, as if she was boasting, of how much he loved her, and he said that quite often. She said that a few times to me. She asked him to verify it one time. He said, ‘Yes, if I can’t have her nobody is going to have her’.”

Catherine Moore said that that sort of statement was made on a few occasions. When asked whether Jean Keir ever said anything to her about clothing she could or couldn’t wear, Catherine Moore said it was more what she saw. She gave evidence: “Q. Did you see an incident of that nature? A. Whenever we would go out, particularly in Summer, there was always - most of the time, if we went out, we would meet over there first, over their place. She would be upset or he would be annoyed. We would ask what was wrong and she would have to put something different on, she has had to change out of shorts, if they were a bit revealing, or a tank top, where the bra strap may have been showing, that sort of thing. It was more of what I saw and just her reaction. Q. And what was her reaction to having to change her clothing? A. She would be frustrated. He would be annoyed. She didn't like him being annoyed. She would be teary and upset. Q. That was on those occasions when Tom required Jean to change her clothing? A. Yes.”

Catherine Moore recounted two incidents which occurred when a group had gone to a beach at the Central Coast in the summer of late ’85 or early ’86. Her cousin Peter Boris, who was about the same age as Jean Keir, put suntan lotion on Jean Keir’s back. Jean Keir told Catherine Moore that the accused had said that he was going to kill Peter Boris for touching her, putting suntan lotion on.

On the same day the group were playing in the water throwing a ball and tackling each other and Catherine Moore saw the accused walk from where he was sitting on the beach with a T-shirt in his hand and “he grabbed Jean out of the water and put the T-shirt on her. He basically stuck it over her head and arms and sort of shoved her back in the water”.

She was asked did she observe the accused’s mood and she said “really angry”.

Catherine Moore was married on 27 February 1988 and had a hens’ night organised for two weeks before on Saturday 13 February 1988. Jean Keir had been invited. Mrs Moore said that at 7 to 8 o’clock at night on the Tuesday prior to that, which was 9 February 1988, Jean rang and told her that she could not go to the hens’ night. She gave evidence: “Q. Did you ask her why? A. I just said ‘Yes, why not.’ She said, ‘I just can’t go, that’s all’. Q. Did you notice anything about the tone of her voice? A. Yes, she had that – she used to get, if she was going to start to cry, she used to get a sound in her voice. She was on the verge of tears.”

Catherine Moore has not seen or spoken to Jean Keir since that time.

She worked for a debt collecting firm and sometime later the accused telephoned her to see if she could assist in tracing Jean Keir. She said that he rang about three times. She said that the debt collecting business did not have facilities for that type of work, although she tried to fob him off by telling him that she would have a look.

On one occasion the accused visited Catherine Moore and her husband and sought to arrange for Mr Moore to accompany him in attending some meditation classes “to spy “ on Carl. He was given a negative reply.

She recalled the accused referring to Carl Nieding and gave the following evidence: “Q. What did he say about that? A. He said that he was surprised at himself because he was able to go up and have a cup of tea with him and remained really calm about it. That’s basically – it wasn’t a lot of conversation about this gentleman, but that he felt it strange that he was calm enough to be able to sit in the same room and have a cup of tea with him.”

Catherine Moore agreed that she had not mentioned that conversation in her statement to the police and could not remember whether she may have mentioned it in evidence at one of the earlier trials.

She said that the first time she had heard of Carl Nieding and a relationship with Jean Keir was after she disappeared. She did not go to Wilkes Crescent after Jean Keir disappeared nor did she see the accused regularly. She agreed that in 1985 and 1986 she went socially to “Tom and Jean’s” home to watch videos. In 1987 it started slowing down because she was preparing for her wedding. She said there were other friends of Jean Keir’s and the accused’s present on occasions although most of the time it was “us”. She said she enjoyed Jean Keir’s company so it was more to see her. She recalled vaguely when Heather Strachan and her boyfriend were living at the Keir’s house, but does not remember a David Warren living there.

Catherine Moore agreed that she did not hear the accused threaten her cousin Peter Boris. She also agreed that she had never heard the accused threaten Jean Keir in any way.

Catherine Moore was adamant that the telephone call in relation to the hens’ night was on the Tuesday night. She said that she remembered “stupid things like that” but also pointed out that it was very near to her hens’ night and also that Jean Keir disappeared very shortly there after.

Catherine Moore said in re-examination that she was pretty sure that she knew that Jean Keir had been to Culburra but she said she assumed the call was local in Sydney. She said “I don’t remember hearing beeps or anything. It sounded pretty – it didn’t sound it was far away or anything no STD beeps or anything.”

Heather Strachan is Jean Keir’s sister being some two years younger. There was one further sister Fiona Strachan some sixteen months younger again. Jean Keir went to Plumpton High School and Heather Strachan and Fiona Strachan to Shalvey High School. When she was nearly sixteen Heather Strachan, in effect, ran away and went to Queensland communicating with her mother after about six months. Thereafter she returned during the next two years on a number of occasions for visits one being to attend the wedding of the accused and Jean Keir and another after the birth of Michael to see the baby.

Heather Strachan returned to Sydney in 1986 and after a short time living with her parents she and her then partner Darren Tonkin lived at a house in St Marys for six months. When the lease expired they moved to live in the garage at 18 Wilkes Crescent. They had their own TV and furniture but spent a considerable amount of time in the house. Darren Tonkin worked with the accused in his business.

Before they moved to the garage Heather Strachan, who was not working, used to visit Jean Keir very frequently walking there from St Marys. It would seem that she spent much of her daylight time at Wilkes Crescent.

It would seem that Heather Strachan spent about six months at Wilkes Crescent. For the first three months Darren Tonkin was with her and then he moved out when their relationship came to an end.

Heather Strachan said that whilst at Wilkes Crescent she noticed that Jean Keir seemed to be depressed. She said that they discussed Jean Keir’s relationship with the accused and how it was going. She gave evidence: “Q. Let’s start with that. Did she tell you anything about the clothes that she could wear or did wear? A. She was telling me that she weren’t allowed to wear some certain clothes, like a pair of shorts, and she weren’t allowed to wear shorts, she weren’t allowed to wear tank tops. Q. Did she say who it was that didn’t allow her to wear those things? A. Tom.”

Heather Strachan said that Jean Keir told her that the accused objected to her wearing clothes that were too revealing and instanced shorts and tank tops.

Heather Strachan gave evidence in respect of a swimming costume as follows: “Q. Did you see anything being done to any of those clothes or any of Jean's clothes at any time? A. Yeah, I remember a crotch being cut out of a pair of cossies, like a costume. Q. What did you see happen? A. Well, she had a full piece and he didn't like it because he said it was too high cut or something and he cut the crotch out of it, and I think he made Mum fix it. Q. Did you see any of that happen? A. Yeah. Q. Where did that happen? A. At his house. Q. What did you see him do, tell us what you saw Mr Keir do? A. He chucked a big whammy and said he didn't like the cossies or something. Q. What did you see Mr Keir do in terms of physically cutting the item, did you see him with a pair of scissors, for example? A. Yeah, he had a big pair of scissors. Q. What did he do? A. Cut the crotch out of them. Q. Then what did he do? A. Got Mum to sew them up or fix it, like fix it, because he - I don't know, cut it right or not.”

Heather Strachan said that although Jean Keier was skinny anyway she looked a bit thinner, looked as if she was losing weight and wearing sunglasses all the time. She gave evidence: “Q. What was Jean’s nature that you remembered her to have before her marriage? A. Happy-go-lucky, always making people laugh, making me laugh, she was just in general a nice person, you know. Q. What about in terms of her social contacts and the extent to which she socialised, what sort of person was Jean before the marriage that you can remember? A. Fun loving, always mucking around with everyone, always had friends around her. Q. What about after the marriage, did you notice anything in relation to any change in her nature in terms of her social behaviour or the extent to which she was outgoing? A. She didn’t seem as happy as what she was like when she was younger, like before Tom came along. She told me she wasn’t allowed to have any friends around. Tom didn’t like her friends being there, he was always stopping her from wearing what she wanted to wear, she wasn’t allowed to wear make-up or anything.”

Heather Strachan recalled an occasion involving a fifteen year old friend Gavin Barnett. She gave evidence: “Q. Can you tell us what happened before Tom arrived and after Tom arrived? A. Jean and Gavin are mucking around wrestling. Q. When you say wrestling, do you mean wrestling physically? A. Not professional wrestling, just mucking around, you know, like Jean was just – she was always mucking around, like tickling people, pinching them on the sides. She used to pin me down and typewriter my chest. She was always mucking around, nothing sexual or anything like that. Q. She was doing this with Gavin? A. Yes.”

Heather Strachan said that the accused came in and told them to stop it and slapped Jean Keir whereupon she slapped him back. Heather Strachan said that she grabbed Michael and took him next door to get away from the arguing.

Heather Strachan gave evidence of an occasion when she said that the accused said that if Jean Keir ever left him he would hunt her down and kill her, chop her up and feed her to the dogs. She said that she had heard something like this said probably twice, the second occasion being she thought at Culburra although she was not sure of it. She said at the time that she thought “he was joking, just bullshitting”, as she put it.

After Heather Strachan left 18 Wilkes Crescent she stayed in contact with Jean Keir but did not see her as often. An arrangement was made for she, Peter Bullock and Jean Keir to go to the Strachan family caravan at Culburra. When asked how the arrangement came about she replied: “Jean wanted to go down there. I don’t know, I remember going to the club and meeting Dad there, and Jean was there, and she wanted to get away. Like she asked if I could go with her to Culburra for a couple of weeks. Q. What did she say to you? A. She was just down and she just wanted some time out, some space. She just wanted to get away from Tom for a little bit and sort her head out.”

She also said: “Q. What was her mood or emotional state about that time? A. She was shocking, she was really depressed, really down, she wouldn’t take her sunglasses off, she was real thin and white in the face, real pale. Q. Did she say anything at that time about why she was thin and pale and wearing sunglasses? A. I think Tom was driving her nuts. Q. Did she say why she wanted to go down with you and Peter? A. Just to get away. Tom was driving her crazy, she just needed to sort her head out, find out what she wanted to do. She wanted to get away.”

Heather Strachan also said: “Q. Did you meet with Jean at any time between this discussion at the club and the time when you left to go down, was there any other discussion with Jean about her plan to go down, that you can recall? A. I know she wanted to get away, she asked me about Queensland, taking her up to Queensland. Q. When did she ask you about that, was it before Culburra or when you were down there? A. I think it was on the way down there.”

I shall come later to more detailed consideration of the Culburra trip and what occurred there, however, there are two aspects that are relevant to the present topic.

The accused took Heather Strachan, Peter Bullock, Jean Keir and Michael to Strathfield Station. Heather Strachan gave evidence: “Q. Where was Michael? A. I think Michael was in the car, because I remember when we were saying goodbye Jean was crying, because she wanted to take Michael and Tom said, ‘No, no’, and I remember them cuddling and kissing. ….. Q. When they parted company what was Jean’s state, what was she saying? A. She was crying, she was real upset. She wanted to take him, bring him with her,”

On the first full night at Culburra there was a long conversation between Heather Strachan and Jean Keir as to which, amongst other things, Heather Strachan said: “Q. You told us that you had a long conversation with her? A. Yeah. Q. What was that about? A. About Tom and Jean and their relationship. Q. Can you tell us as much as you can remember of what was said during that conversation by Jean? A. By Jean, Jean was a bit worried about him, like she was a bit worried. Q. If you can remember either the words that she used or if you can't remember the exact words, the gist of what she said, putting it in the first person if you can? A. She was just - she asked me if I could - if I knew anyone in Queensland that would look after her. I told her she should have worked it out with him. Like I said that, you know, "You are married you should work things out". She said she can't, she has tried, she has had enough. She just felt restricted. I don't know. Q. Did she say what her plans were or what she wanted to do or would like to do? A. She wanted to leave Tom. I don't know, she was just real upset. I just kept telling her she should try and work things out. I didn't understand too much about the nature of what was going on there, but it didn't sound too good. She just wanted to get out, she was scared of him. Q Did she say why she was scared? A. Because he kept threatening her life. Q Did she make references to Michael? A. Yeah, she told me she loved Michael heaps and you could tell that because that stood out like dogs balls. Q. Did she tell you she loved Michael? A. Yeah, she loved Michael to death, mate. Q I appreciate that may have been apparent. What did she say about Michael? A. She said that Tom wouldn't let her take Michael because she wasn't allowed, and if she took Michael he would hunt her down and kill her and Michael.

Amongst other things Heather Strachan said that Jean Keir asked her if she would show her how to hitchhike, however, Heather Strachan would not do so and told Jean Keir that she should endeavour to make her marriage successful. She gave evidence: “Q. The last conversation you were telling us about, you told us that you had a long conversation with her? A. That night? Q. Yes? A. We talked about everything, mate, like everything. We talked for a good lot of hours. I can’t remember, I can’t recall everything that we said, but in general it was to get away from Tom. He wouldn’t let her do anything, she wasn’t allowed to, in my words, breath properly without him down her.”

Whilst I will deal more broadly with the cross-examination of Heather Strachan when dealing with the Culburra incident there is some cross-examination concerning the relationship aspect to which it is convenient to go to now.

Heather Strachan agreed that she had an opportunity to observe the marriage at close quarters for some six months. She said that the accused was “always working” and that the hours he worked upset Jean Keir.

She gave evidence: “Q. The time that you were there living in the garage? A. Yeah. Q. They had their ups and downs, I take it from time to time? A. Yes. Q. But over all your observations were that? A. Was okay. Q. Fairly normal marriage from what you could see? A. From what I knew of at the time. I didn’t know much about marriage. Q. You could see them at close hand? A. Yeah, but I wasn’t always there 24/7, I had my own life too.”

Heather Strachan said “Yeah it wasn’t all bad.”

Heather Strachan agreed that the only violence exhibited by the accused towards Jean Keir that she had seen while she living there was the wrestling occasion. She gave evidence to that occasion: “Q. She didn’t appear to be scared of him? A. She was petrified of him. Because I was there.”

She gave evidence: “Q. It would be incorrect for you to say; "I saw Tom knock, hit her so hard she was knocked into the air"? A. I don’t remember saying that. I don't remember seeing that. But I remember Tom slapping Jean and Jean slapping Tom; that's the only time I seen. If she got slapped and went into the air, he would have been clobbered by me too because that wouldn't have happened. Q. It didn't happen, did it? A. Not that I know or I that I remember, never knocked her down like that at all, mate. But he did slap her.”

Heather Strachan said that whilst she was living at Wilkes Crescent Jean Keir did not complain to her that she could remember of the accused hitting her. When cross-examined by Mr Hanley as to the threat to Jean Keir to cut her up and feed her to the dogs Heather Strachan, it seemed to me, had difficulty in remembering the context but she remained adamant that such an expression had been used.

She gave this evidence: “Q. Your statement says, “Sometimes Tom used to sit around at night when there were a few of us in the house. He said, ‘If Jean ever left me he would cut her up and feed her to the dogs’ “,that is the height of the description of who was present and when it was said to the police, isn’t it? A. Yeah.”

When cross-examined about the wearing of clothes, she remembered only one incident in relation to shorts but that Jean Keir had told her of other incidents. She said that she had not seen the “little jumpsuit” shown in the photograph Ex 2. Heather Strachan agreed that there had been an occasion when a picture was taken on a boat in which Jean Keir was in a bikini at a time when she was some little way into her pregnancy.

Heather Strachan was taken, in re-examination, to her statement where after the reference to “he said if Jean ever left me he would cut her up and feed her to the dogs” she agreed that in the statement she said “he used to say this a lot of times when we were there”.

I will deal with further cross-examination of Heather Strachan when referring to the Culburra incident.

Darren Tonkin said that he and Heather Strachan socialised in the ordinary way with the Keirs whilst living at 18 Wilkes Crescent. He gave evidence: “Q. During the time you lived with Jean and Tom, you had the opportunity to serve them together in the marriage? A. Yes Q. From your observations did it appear to be a happy relationship? A. My observation was it was a normal relationship; it had its up and downs. Q. There was good times where they appeared to be happy? A. There were good times and bad times. Q. Times when they had arguments? A. Yes.”

He also gave evidence: “Q. Was there an occasion when you were present with Tom and Jean when Tom said something to Jean about what might happen if she played up? A. Yes. Q. What did he say? A. Well we were talking about people that were unfaithful in their marriage and that sort of thing and he said to Jean, ‘You know what will happen if you do that or if you play up?’ Q. Do you recall any reply by Jean? A. No I don’t. Q. Do you recall the tone in which that was said by Mr Keir? A. In a serious context.”

Mr Tonkin denied that this conversation arose in the context of a concern expressed by him as to whether Heather Strachan was having a relationship behind his back.

He said that Jean Keir was not allowed to wear certain revealing tops or shorts that were cut too short. He said that the accused had told him that he did not like his wife wearing clothes that he thought revealing.

Mr Tonkin recalled an occasion when the accused was upset when Jean Keir was scrubbing the floor in short shorts and her father was present.

Mr Tonkin said that a couple of months after he split up with Heather Strachan he visited the accused one evening. He said that the accused told him that, when Mr Tonkin was off work sick and alone in the house with Jean Keir, he, the accused, had come home from work and peered through the blinds to make sure everything was all right. He gave evidence: “Q. What did Tom say was the reason he peeked through the blinds? A. Well he basically said to me that he realised that he could trust me because he had gone back to check up to see if there was anything going on and there was nothing going on that day. Q. Between who? A. Between myself and Jean because we were in the house together. Q. Is that what Tom said? A. Yes.”

Mr Tonkin agreed in cross-examination that he had not included this incident in his statement to the police which was made in May 1991. In re-examination he agreed that he had mentioned the matter at “the previous trial”. It would appear that it was mentioned at only one, presumably, from the question, the second trial.

Mr Tonkin said that he had not discussed this matter since with Heather Strachan. He said that they had split up and that he had had no dealings with any member of the Strachan family.

Mr Tonkin said that he did not hear the accused threaten Jean Keir with violence or see him violent towards her.

I thought Mr Tonkin’s evidence impressive. It seemed balanced and I accept that, after he and Heather Strachan broke up, he had no further contact with the Strachan family.

Peter Bullock became the boyfriend of Heather Strachan sometime after July 1987. He accompanied her on the trip to Culburra and I will deal with that aspect later.

During the period preceding that from time to time he visited 18 Wilkes Crescent with Heather Strachan. He gave evidence about an occasion in later 1987 at that house. He said in chief: “Q. Was there an occasion in late 87 when Tom said something about disposing of a body? A. Yes. Q. What did he say? A. Virtually feed her to the dogs, feed the meat to the dogs and put the bones on a grind-disk, turn it into fertiliser and throw it over into the paddock. Q. Feed the meat to the dogs? A. Take the meat off the bone, feed it to the dogs and then get the bones, put it on a grinding-disk, turn it into fertiliser and throw it over into the paddock.”

Mr Bullock said that the people present apart from himself were Garry Ellen, Heather, the accused and, as he put it, “apparently my sister was there but I couldn’t remember her being there”.

He said that the statement was made in the context of knowing of how to dispose of a body. He said that the accused had three or four dogs. He also gave evidence: “Q. Was any reference made in that conversation to starving? A. Yes. Q. What was that? A. Starving the dogs and feeding the meat off the body and the bones to the dogs.”

Peter Bullock in cross-examination initially said that the police spoke to him a few months after Jean Keir disappeared and that he made a statement straight away. However he then agreed that his statement was dated 2 October 1991. Peter Bullock said that when he made his statement he had a clear picture of the events at Culburra but he did say that he did not have a clear picture of the accused talking about cutting flesh off bones, grinding it up and spreading it as fertiliser. He said: “No, it’s not something that someone talks about is it”. He gave evidence: “Q. You didn’t think he meant it, is that what you are saying? A. I thought he was trying to make a name for himself. Q. Big-noting himself? A. Yes.”

Peter Bullock said that he had been drinking but that he wasn’t really intoxicated. When asked the question “It would have been a big chance that you might have been, wouldn’t it?” He answered “No”. However he gave the following evidence, referring to the second trial: “Q. Page 1104 line 16, do you recall being asked this question by defence counsel: ‘Well, I don’t mean to be offensive, were you intoxicated at the time?‘ And he had been asking you questions about the time you say the accused made this comment to you. Your answer was: ‘Big chance I might have been, yes’? A. Big chance, I told you I was drinking, but I wasn’t that drunk.”

Peter Bullock was cross-examined as to the accused informing on him and Heather Strachan as to the smuggling of drugs into gaol, however I will deal with that when I come to the Culburra matter.

Peter Bullock indicated that prior to the trip to Culburra he had little to do with Jean Keir, “just to say hello and that’s it about it”. Peter Bullock was asked about seeing Jean Keir at the Wilkes Crescent house and he gave evidence: “Q. I am talking about the occasions that you went there for social reasons? A. I don’t know. She weren’t that jolly jumping person that I seem to remember going to Culburra.”

Peter Bullock agreed that his statement to police did not contain the reference to starving the dogs. It was put to Peter Bullock that he had his statement and transcripts to read during the adjournment, however he said that he was not very good at reading and my impression was that that is probably correct. Peter Bullock agreed that he was not an honest man and that he stole cars, gave the police false names and had been disqualified from driving on a number of occasions.

Lisa Bullock is the sister of Peter Bullock. She gave evidence that she recalls an occasion when she was at 18 Wilkes Crescent with Peter Bullock, Gary Allen, Heather Strachan and the accused. She was a schoolgirl.

She said that she was in the lounge room with Heather Strachan who was squeezing her pimples for her when she heard part of a conversation which was taking place between the three men in the kitchen.

She said that she heard the accused say “Cut the flesh off and feed it to the dogs, grind the bones and throw it as fertiliser down in the bushes and burn the hair”.

In cross-examination she said that she had discussed the conversation later that day with her brother and Heather Strachan but said that she had not discussed it with her brother since then.

Lisa Bullock agreed that she had not made a statement until 19 August 1999. It appears from evidence at the earlier trials that she became aware that her brother had given evidence at a trial from a newspaper. She cannot, now, remember that. She was, she says, contacted by Inspector Lyons and did give evidence herself.

She gave evidence that she had not spoken to her brother for “a while now” and there would seem to be an estrangement between them. Peter Bullock gave evidence that he could not recall his sister being there.

In cross-examination she displayed little recall as to the subsequent events, however, she rejected the suggestion that she was not there. She said that she did not hear the remainder of the conversation. She gave evidence: “Q. Was he shouting them out? A. No, it was just something that drawed my ears I suppose.”

Generally speaking Lisa Bullock was not an impressive witness and her level of recall of occurrences subsequent to this night was poor. Nonetheless, I formed the view that she probably was present and did hear some words used much as she has described.

However, Peter Bullock had said that he thought the accused was trying to make a name for himself, big-noting himself. He described the discussion as “talking and dribbling shit, talking silly things”. I think that I would need to know a lot more about the occasion before I could properly draw any conclusion from it. The accused did have two dogs a cross German short haired pointer and Doberman and a cross old English sheep dog and kelpie. It is, I think, clear enough that they figured in general conversation from time to time.

Helen Page is Christine Strachan’s sister. She is Jean Keir’s aunt and Godmother.

She met the accused at about the time he started going out with Jean Keir. She attended the wedding and, of course, knew Michael. She said that Jean Keir loved that boy very much.

About a week or two before Jean Keir “went missing” she rang Helen Page and said that she wanted to talk to her. They made an appointment to meet near the Archibald Fountain in Hyde Park the next morning and they did that.

Helen Page gave evidence: “Q. Can you tell the court what Jean said to you? A. She told me that they were having problems and she is terrified of Tom and that's all she told me. I couldn't (sic) ask: Why, what's wrong? She said, "I can't tell you". Q. What did you say to Jean? A. What did I say to Jean? Q. Yes? A. Well, I told her that - we had a talk about my own life. I said that we should look into prayer, the Lord, ask the Lord for help, because I always did that myself, and that she also seek help, marriage counselling, because she was very stressed. She was very frightened and she didn't know what she wanted to do. Q. When she said she was frightened, did she say what she was frightened about? A. That's what I asked her for and she couldn't tell me. Q. Did she talk to you about Tom? A. That's all she told me, that she was frightened of Tom. She couldn't tell me much about him.”

She said that Jean Keir had told her about another man and then gave the following evidence: “Q. What did she say? A. She said she found someone that understands her and so I told her that her first priority is her family, her husband and her children - and the child, and to look for counselling, you know, have Tom to go and have some counselling, the marriage counsellor or first - first of all seek the Lord, pray, that's the most important of all. Because he will help us and guide us to what we are supposed to do. Q. Did she tell you the name of this man that she told you about? A. I beg your pardon? Q. Did she give you the name? Did Jean tell you what the name of the man was that--? A. --Carl.”

About half past three Helen Page left for home, Jean Keir saying that she wanted to stay to think what about they had talked about but that she would come to Helen Page’s home later.

After Helen Page got home she had a telephone call from the accused who asked “Is Jean there?”. She said “No I left her in the city” and he said “Why?”. I said to him “she wanted to stay there for a while to think about things”. She said he sounded a bit cranky and he said “Do you know where she is, she is going to Carl, she is going to Carl”.

About 5 to 5.30 pm Jean Keir went to Helen Page’s home and talked with her husband Colin Page. Helen Page asked Jean Keir did she want her to ring the accused and she said yes, so she did so and he arrived. The accused and Jean Keir went home.

That was the last time Helen Page saw Jean Keir and she has not heard from her in any way since.

Helen Page said that she did not see Jean Keir very often, but kept in touch by phone with her sisters, there were family meetings from time to time. She did not realise, she said, how much trouble they were in in their marriage because she had problems of her own.

Mr Hanley asked her whether, in the conversations about Carl Nieding, Jean Keir had said that he was teaching her about the Bible and she said “Yes she did”.

Colin Page is the husband of Helen Page and the Godfather of Jean Keir. He had known her since her birth. He met the accused shortly before they were engaged and he and his wife attended the wedding.

Colin Page said that they would see Jean Keir and the accused maybe once a month, or two months, at family functions because they lived a little way away from them.

He recalled Jean Keir coming to their home about 5 to 5.30 pm after having been talking to Helen Page in the city and the three of them were sitting on the front steps. He gave the following evidence: “Q. What did Jean say? A. She was unhappy with the relationship with Tom and that she felt restricted. He used to try and control her by what she wore and friends and didn't want her to get her licence and didn't want her to get a job. If she went out without a bra - which was the fashion then, I suppose - he would hit the roof. Q These are things that Jean was telling you? A. Yes. She said he was jealous and possessive and didn't like to see her talking to other people, other boys, men. Q. Did she say anything else? A. Yes. She said that she was frightened of him because she - sometimes they would be fooling around and they would be wrestling around, all of a sudden he would get very serious and get her in some sort of a choke hold and say, "This is how easy it would be to kill you if ever I caught you messing around with somebody else". And she also said that there was something else-- Q. Mr Page-- A. I'm sorry. Q. Did she tell you something else? A. Yeah. She said that there was something about him that she knew about him that frightened her. She wouldn't tell us what it was. I asked her several times what it was, but there was some dark secret there that she knew about him. Q. Is that what she said? A. Yes. Q. Did she tell you anything about going away? A. Yes. She was going to go to Culburra that weekend, I think her mother had a caravan there, to think about what she was going to do because we had discussed her options.’

He gave evidence: “Q. Did she say anything to you about another man? A. Yeah, she said that she had met a man by the name of Carl in the city or somewhere - I assumed in the city - and she confided in him and found him to be a good listener and had been talking to him and asking his advice too, I suppose, telling him the troubles. But she didn't indicate that she was having an affair with him or going to go off with him or anything like that.’

Then he gave evidence: “Q. Did you give her any advice or suggestions to Jean? A. We suggested that she try to repair the marriage and maybe see marriage counsellors, but she said that Tom wouldn't have anything to do with that. So we looked at other things and we said maybe she could - another option would be to lock him out and get a court order. Q. Is that what you discussed? A. Yes. Q. What did she say to that? A. She said he would just kick the door down, he wouldn't have that. Of course we discussed that she leave him and go. She said he would just track her down and he wouldn't rest till he found her. So she left very confused and unhappy and not knowing what to do. Of course, we didn't know what to tell her to do either, so.”

Colin Page said that Jean Keir was picked up by the accused. He had asked Jean Keir if it was okay and she said that it was. He has not seen Jean Keir or had any communication with her since that time.

Colin Page said that the accused had telephoned him shortly after he heard that Jean Keir was missing. He gave the following evidence: “Q. What did he say to you? A. He was telling me how Jean had left and gone off with this Carl. Q. To the best of your memory, if you can use the first person, if you can, in other words: Tom said whatever, using the words he used or the gist of what he said; can you relate as much as you can of the conversation of what Tom said to you in that call? A. Yes. He said he had been looking for her and he tracked this Carl down, found out where he was and followed him and watched him. He said he belonged to some religious cult and that had a reputation for young girls disappearing and - but he couldn't find her.” -------- Q. Did he say anything about what he thought might have happened to Jean? A. Well, he thought she had gone off with this Carl fellow and, then he discussed his fears of the people disappearing when they’re involved with this cult, religious cult whatever it was but he didn’t, no, he didn’t (sic) indicated other than that.”

Colin Page agreed in cross-examination that on the occasions he saw Jean Keir and the accused they appeared happy and that he did not notice anything that caused concern until this conversation. He never saw the accused do anything of violence towards Jean Keir nor could he recall him saying anything violent towards her. When asked whether Jean Keir had told him that she was in love with Carl Nieding, Colin Page said: “No. Just that she had found someone to listen to her”.

He gave evidence: “Q. As far as the wrestling goes and what she says he says to her about if she was fooling around he would strangle her or words to that effect: You didn't take that as a serious suggestion on his behalf? A. No, but it frightened her.”

Colin Page gave evidence that Jean Keir had never spoken to him of this matter before. He gave evidence as to options: “Q. The third one was to leave? A. Just to leave. She would not leave her son though. Q. Did she say that at the time? A. Sorry. Q. Did she say that? A. Yes, she would not leave. That was the complication. One complication apart from him - he would have relentlessly tracked her down that she would not leave her son.”

Colin Page said that when the accused arrived at their home he was composed “maybe a little angry under the circumstances”. He answered “yes” to the question “he was angry but he was controlled”. He could not remember if they had a cup of tea before the accused and Jean Keir left.

Mr Hanley took Colin Page to his previous evidence at the second trial: “Q. Do you recall being asked this question: At 1171 line 8: “And then how long after he arrived did Jean and Tom leave?” You said: “Not very long. I think they may have come in and had a cup of coffee or something”. A. Yes, could have done. Q. I think you said you were asked this question: " But they had a bit of conversation when she had a cup of tea" and you said: " Yes, quite pleasant". " And Tom was pleasant?"" Yes, pleasant with one another. There was a little bit of tension"? A. Yes, could have happened like that yes. Q. Do you recall giving evidence before? A. I can't recall it now. I am getting a bit older. My brain is starting to go.”

The last answer prompts consideration of the warning pursuant to s165 1(c), however, it is to be taken into account that Colin Page had given evidence earlier and, no doubt, would have made a statement earlier still.

In re-examination Colin Page said “Q. You said to my friend that there was a complication in the options that she would not leave Tom without her son. Do you remember how Jean put it - how Jean expressed that that she would not leave without her son? A. Well, she yes, she wouldn't. She couldn't go without Michael and she didn't have the means or I don't think the know how to go with her son and disappear. She was a young naive girl. Q. At one stage you also said to my friend, she said that if she left Tom he would track her down? A. Yes. Q. Do you remember what words she used or how she put it? A. I couldn't remember exactly how she put it but it would have been something like that he would relentlessly track her until he found her - he wouldn't give up looking.”

Irene Page is the aunt of Jean Keir and a sister of Christine Strachan. She had known Jean Keir all her life and she said that when Jean Keir first got married she was very much in love with the accused. She had met the accused only occasionally prior to the marriage.

Irene Page started working for the accused’s company in about 1985 or 1986 as a machinist. She said that Jean Keir used to visit the factory a lot and say hello to everyone. She gave evidence: “Q. What did she do after she came to the factory? A. She was a very happy person, very bubbly.”

Irene Page continued to see Jean Keir when she came to the factory and she gave this evidence as to the relationship between her and the accused: “Q. Did she start telling you about how the marriage was going? How her relationship was going? A. Yes, she was. She used to say to me: " Aunty Irene, I love Tom so much and I love Michael. Tom and Michael are my - you know: Are my life" she used to say. So, I knew then that she was so much in love with him and then one day, she was: She came to the factory. She was in the factory. She came, was coming home with us because she. I think she came to work with us. She was working with us for a while only in the office you know answering, telephones and everything. Q. Was this after Michael was born? A. Yes.”

According to Irene Page a conversation took place in her car whilst they were waiting in it to be driven home by Christine Strachan, that is from the factory.

Irene Page was somewhat uncertain as to the timing of this conversation. However, it would appear both from her reference to the age of Michael at the time and from what she had said in her original statement in 1991, when she said she would have recollected the matter, that it was in 1986. She said that she went to the car and Jean Keir appeared to be upset and crying. She gave evidence: “Q. Can you tell us what Jean said? A. Well, she was sitting in the car. When I got to the car I saw that she was very upset, she was nearing crying, and I said to her, "What's the matter, Jean?" She said, "I am frightened, Aunty Irene, I am so scared about Tom, what he is going to do with me and Michael". I said, "What do you mean, what he is going to do to you and Michael?" She said, "He threatened to harm me and Michael, and I am worried about Michael, and I am scared about Michael". I am so nervous at the moment. Q. Step by step. Did you say anything to Jean when she said that he threatened her and Michael, did you say anything? A. I said to her, I said I knew that they were fighting, they had a bit of a fight in the factory that day, and I said, "Look, sometimes married couples when they fight they say things that they don't mean with one another". And she said, "No, I don't think that's it, Aunty Irene". She said, "It's his attitude towards me and everything". I said, "Tom is a very jealous man". I said, "Maybe in time he will calm down, he will mellow down". She said, "I don't think so, Aunty Irene, because it is the way he treats me, the things that, you know, that happens at home".”

Irene Page said that the conversation ended when Christine Strachan and the accused approached the car. She then gave evidence of a conversation in later 1987 at the factory when Jean Keir told her that she had met another man. Irene Page gave evidence: “Q. What did you say to Jean? A. I said to her, I said, "What happened?" She said, "I met him and he was such a wonderful person". She said, "And I think, you know, I think I am in love with him or something". I said to her, "Did you sleep with him?" She said, "Yes, I did". I am sorry, it is just that my mind is blank, I am trying to see the picture of things. Q. Do you recall anything else that she said to you on that occasion? A. Yes, she wanted to leave Tom. Q. What did she say? A. I said to her, I said, "It is no use you going leaving one relationship if you are going to go to another relationship". I said, "You are better off thinking about this", and you know, like I knew that that day -- Q. Don't worry about what you knew. How did the conversation go on from there? A. Well, she said she was wanting to leave Tom, and if she did, she didn't want - she was definitely taking Michael with her and in that respect I knew that she would –“

Irene Page also gave evidence that she suggested to Jean Keir that she go to Culburra to think about her position and to leave Michael behind with her mother while she did that. She gave evidence: “Q. You told us about that. When you made the suggestion that if she was to go to Culburra she leave Michael behind perhaps with her mother, did she say anything about that suggestion? A. She wasn't very happy about it. She said, "No, I want to take Michael" with her. I said, "If you are, Tom wouldn't let you take him". I said, "You are better off leaving him behind and going with your sister to Culburra, it is only for a couple of days". I said, "You can stay there until you decide what you want to do and when you come back then, you know". But she said, "When I get back I am definitely going to take Michael with me".”

It is convenient to say at this point that Mr Hanley cross-examined Irene Page in relation to her original statement to police and the absence of any reference therein to Culburra and an apparent suggestion that she leave Michael behind when she left the accused.

Irene Page insisted that she had been speaking of Culburra, although she agreed she had omitted to refer to it to the police, and that she did not advise Jean Keir, nor would Jean Keir agree, to leave Michael with the accused on a permanent basis when she left him.

Having heard Irene Page and seen her give evidence, including her references to Michael and to Jean Keir, I think it is very unlikely that she would have advised Jean Keir to leave Michael behind if and when she left the accused.

Irene Page said that the conversation about the man that Jean Keir had met was the same conversation at which there was reference to going to Culburra. The conversation ended she said with a statement by Jean Keir that she would not leave Michael behind.

There had been a New Year’s party on 31 December 1987, which was also Michael’s birthday, and Irene Page gave evidence that on that occasion Jean Keir kept pushing the accused away when he sought to put his arms around her and that she kept wanting to be by herself.

She said that at the party Jean Keir was depressed, confused and wanted to be by herself.

Irene Page gave evidence: “Q. Going back to Jean as a teenager and before she married, what sort of personality and nature did she have to your observation? A. She was very bubbly, she was a bubbly personality, you know, and if she saw you in the street she will go across just to say, "Hi, how are you?" She was that type of a person. But when she got married, as the years went by she-- …………… Q. Did you notice any change in her personality in the years after she married? A. Yes, she started becoming more scared, always looking over her shoulder, and then the love that she had - I knew she was so much in love with Tom, because she told me when she first got married, but that love sort of, I noticed, turned from love to fear, and then it became anger. She was already angry at the end of the last - nearly the end of that year.”

Irene Page’s daughter Kathy Page was to be married on 27 February 1988. The accused attended the function but Jean Keir did not.

Some months later the accused rang Irene Page and asked her to come and assist with a shower. She knew that he had a sore back. She initially declined, but was told Christine Strachan would be coming too and she went to Wilkes Crescent. Christine Strachan did not arrive and she assisted the accused to have a shower. She said that he was holding on to a shower rail although she did refer to curtain rings and shower curtains. After the shower she did some washing up and then left. Christine Strachan did not arrive.

She said that, during the second trial, she had been present having coffee with her sister Maria Boros, Christine Strachan and Fiona Chalmers when reference was made to “Jeanie” being buried under the house and her sister Maria Boros referred to going to give the accused a massage in the house and she, herself, said that yes, she went and scrubbed his back.

Irene Page was cross-examined at some length by Mr Hanley as to whether in fact this was a fabrication to overcome the situation that Christine Strachan had said at the coffee gathering that she had washed the accused back.

A factor in the cross-examination was that Irene Page had referred to “curtain rings, the shower curtains”. She had given evidence: “Q. You mean the shower rail. A. The shower rail, because they didn’t have a screen, shower screen, they had a rack.”

In cross-examination she said; “Q. And you washed his back whilst he was under the shower? A. He was on the, they didn't have a shower, they had a bath and he had to climb over the bath and he was leaning on to the shower curtains. He was holding on to them, the shower curtains, to support himself because of his back. So I had to wash his back, wash his legs. And the front, I said; "you better do it yourself", so he was doing it himself. Q. So he was naked, was he? A. Yeah. Q. Had you ever done anything like that before? A. No, that's why I say I'm a bit embarrassed. I was frightened and nervous. The only naked man I ever seen was my husband. Q. He was hanging on to the shower curtain rail, was he? A. Shower, yeah, shower curtains, like on the rail. Q. There is a rail with a shower curtain and the bar, is that what you're saying? A. Yeah. Q. It wasn't the situation one of the sliding glass doors-- A. No, they didn't have. Q. Are you quite sure about that? A. Yeah. Q. What colour was the shower curtain, do you recall? A. No, I don't recall that.

Shown a photograph of the bathroom which showed an aluminium strip along the top with a sliding screen she gave evidence: “Q. I want to suggest that that aluminium strip was to allow the glass door to run along, dividing the shower off from the bathroom? A. But there was no glass door.” She also gave an answer: “Q. I suggest to you there was no shower curtain, there was glass. A. I don’t remember the shower curtain. Q. There was no shower curtain, there was a glass dividing doorway that ran between the bath and the bathroom? A. Maybe there was, maybe there wasn’t, but I don’t remember, I know he was leaning on, leaning on the shower recess, shower curtain, shower recess, whatever and I didn’t see any curtains that’s what I said.”

Irene Page had referred to the distinction between stepping into a bath and the separate shower recess and it does seem to me possible that she was simply confused, particularly in relation to a situation that she said was embarrassing to her. On the other hand her lack of certainty in this regard lends some support to the contention that she was fabricating an account to assist her sister Christine Strachan. I deal with this issue later.

Taken to her original statement given to the police Irene Page gave evidence as follows: “HANLEY: Q. Didn't you tell the police that when Jean said to you that she was scared or very scared of what Tom might do to her and Michael, you said to her, "What do you mean scared? What is he going to do to you and Michael?", you asked her those questions, didn't you? A. Yes, yeah. Q. And she said, "I don't know Aunty, I'm scared. I don't know what he's going to do with me and Michael", that's what you told the police? A. Yeah, but she said "He threatened me._ Q. You said, "What do you mean? Is he going to do something to you and Michael? I don't understand this" and she said "He has threatened me". A. Yeah. Q. You never found out what the threats were? A. No, because he came out with my sister and she kept quiet straightaway. Q. You went on to tell the police that you said to her, "Well it's probably what most people say to one another when they are angry"? A. Yes, that's what I said to her to calm her down because she was frightening me. I just said that to calm her down and that's where the conversation went until he came back. Q. What she said to you, according to what you told the police, was, "I don't know Aunty, it's his attitude to me, it's everything"? A. Yeah.”

Irene Page said that because she was concerned about Jean Keir she visited her at her home. She gave evidence: “Q. Did you ask her on that occasion when you went to her home what she was afraid of? A. When I got there she was very happy and I said to her, "Is everything all right?" She said, "Oh yeah, Aunty Irene", she said "everything is fine", you know. She said, "I have been a good girl today. I cut the grass and I did all my housework, you know. I want to get everything ready so I can have a quiet night with my husband." Then I said, "Well I just thought I would come and visit you for a little while until Tom comes home." When Tom came home she saw him, she was so happy, she went and greeted him at the door. His expression was - he just saw her and like looked at her. She put her arms around him. She ran to him and put her arms around him. I was looking because the way - the baby was sitting in the high chair—“ Irene Page said that she did not ask her what the threats had been because she seemed in such a good mood.

Relating to the conversation towards the end of 1987 as to seeing another man Irene Page gave evidence in cross-examination: “Q. What did she say? A. Well she said "I met a man." She said "He made me feel really - he is a really nice man." She said "He made me feel like a woman. He made me feel alive. He was listening to me." The main thing was it was somebody she could talk to and she told all her problems to him. Q. Did she tell you how often she had seen this man when she spoke to you at the end of 1987? A. She said she had seen him a few times. She didn't say how much. Q. Did she tell you how many times she had spoken to him? A. She told me whenever she used to see him they used to talk for a very long time, you know. He was trying to advise her and talk to her. You know, she used to tell him all her problems. Q. You told the police she was happy with this relationship with this man? A. Yeah, she was very happy. She was quite contented I think. Yeah, she was very happy. Q. Did she tell you she was going to leave Tom and live with this man? A. No, not live with this man, but she said she wanted to leave Tom.”

In re-examination Irene Page gave the following evidence: “Q. Did you say to the police in your statement, this: “I said to her, what do you mean threatened”. Jean said; “he threatened to harm me and Michael and I am scared for Michael”. A. Yes, that’s what she said.”

Patrick Warren was in May 1984 an apprentice with G & T Upholstery. He met Christine Strachan, the accused and Jean Keir. At the time Jean Keir was engaged to the accused and some months later they were married.

Over the following couple of years Patrick Warren maintained a close relationship with the accused and Jean Keir. His girlfriend, Pauline Wootton, had played basketball with Jean Keir.

In 1986, from about March, Patrick Warren resided at 18 Wilkes Crescent. During that time, Jean Keir told him she was scared of the accused. He gave evidence: “Q. Did she ever say why she was scared of Tom? A. Not really, just that he, you know, would get into a bit of a bad mood, you know, like temper. Q. Would you repeat that? A. He had a bit of a bad temper and I imagine that's why she was scared of him. Q. Did she say why she was scared? A. She did say - I did say to her, "Why don't you just leave him if you are not happy with the relationship?" And she said she wouldn't because he would find her and kill her. Q. When she said that she was scared of Tom, did she say that on just one occasion or was it more than once? A. It was - I believe it was only the once, to me anyway.”

Peter Warren also gave evidence as to a statement made by the accused during a general conversation when they were working overtime together. He said that the accused said that if he ever found his wife playing up with another fellow he “would kill her and the bloke would be the same as well he would also be dead” and added the accused said “he would chop her up into small pieces”.

In cross-examination it emerged that Peter Warren had had a dispute with the accused and his partner as to the payment of the correct wages for an apprentice. The dispute has been resolved.

It also emerged that Pauline Wootton had left some furniture in the garage at 18 Wilkes Crescent and when she did not pick it up the accused advised that he had given it to the Salivation Army. When in 1986 Pauline Wootton and her father went to recover such of the furniture as was left there was a verbal dispute. Subsequently, Pauline Wootton brought proceedings in respect of the loss of the furniture and Jean Keir brought proceedings against Pauline Wootton’s father for what would appear to have been an allegation of a minor form of assault. In the event those proceedings were settled by both parties withdrawing.

Peter Warren had said that he shared meals with the accused and Jean Keir and socialised with them and said that he had not seen the accused be violent towards Jean Keir. He had never seen him act in a bad tempered way towards Jean Keir or threaten violence towards her. He did say he, the accused, was jealous towards her. He gave evidence: “Q. Did they appear to be happy on occasions on the occasion that you were living with them? A. Most of the time, yeah. You know, just like an ordinary couple, you have your ups and you have your downs, I suppose.” He also referred to the fact that they took part, the four of them, in a ten-pin bowling competition and that they appeared to enjoy that.

Peter Warren said that he had been prompted to attend upon the police and make a statement as a result of seeing one of the television programmes in April 1991. However, his statement to the police was not made until June 1993 and it did not seem to me that any very satisfactory explanation was advanced for the delay.

In these circumstances I think it would be inappropriate to rely upon the matters put by Peter Warren. That is not to say that they may not have occurred, however, I think it would be unsafe to rely upon them

Pauline Wootton gave evidence, but that was directed mainly to the question of the furniture. She did observe that Jean Keir wore mostly jeans and a round neck T-shirt which she said was related to the accused’s wishes, but she said that she had not discussed the matter with Jean Keir. She gave evidence: “Q. Did you notice anything else about their relationship? A. Yes. Q. What was that? A. It was not a very happy relationship.”

Pauline Wootton’s father Mr Philip Wootton gave evidence but it was related essentially to the furniture matter and there is no need to refer to it here.

Goce (George) Georgieski gave evidence that he and the accused established in 1980 as a fifty-fifty partnership a business G & T Upholstery Pty Ltd. They had worked together previously.

George Georgieski agreed that he and the accused were business partners who did not socialise together and were not close friends on a personal level. He did, however, say that at work they talked of many things.

He gave evidence: “Q. Some time in 1987, did Tom tell you something about Jean? A. Yeah, they were starting to have some problems. Q. But did he tell you that Jean was having an affair? A. Yep. Q. What did Tom say? Do you remember what Tom said about that? A. ‘Well I believe she is seeing another man’. Q. And did he say where the man was, which suburb? A. I think it was Bondi, yep, the suburb Bondi.” When asked to fix that event in time he said it’s a long time ago but he thought in the second half of 1987.

George Georgieski said that the accused told him he wanted to see the man and talk to him and he told him at some stage he had been to see him. When asked how the accused found the man at Bondi, he answered: “A. Well at that time he told me it was a common name, this man, he had, so he had to go through the telephone book and ring all these people until he found him. So yeah, he went through the telephone book, called all these names until he found that man.” George Georgieski said he could not remember any further discussion about the affair after that.

He remembered an occasion on which the accused told him that his wife was going to Culburra. Later the accused said that he was going down to Culburra to the caravan to fetch her back. He took a day off to do that.

On that day George Georgieski said he had a telephone call at about 6 o’clock at night, it being unusual for the partners to speak on the telephone. He said that the accused told him “I’m at Liverpool. I stopped the car to put some petrol in. Jean got out of the car to go to the toilet and I can’t find her.”

He made suggestions as to looking around the neighbourhood and the accused said that he would. George Georgieski asked him to let him know what happened and said that he would see him on the next day.

The next day the accused came to work. George Georgieski says he can not remember exactly at what time but he thought the usual time which is about 7 am to 7.30am. He gave evidence: “Q. Did you talk to him? Did you say anything about what happened? A. Yes, I said, ‘How did you go last night with Jean?’ Q. What did he say? A. He said ‘No good’.”

When asked what was said at that stage he said ‘Nothing, he said nothing” but when taken, pursuant to leave, to a statement he made in April of 1991 he agreed that in the statement he said, “How did you go?” The accused said, “I couldn’t find her, I don’t know where she is.” He was asked if that was right and he said “yes”. He said that when he spoke to the accused on that morning he appeared normal not upset.

Some six weeks to two months later the accused told him that Jean Keir had visited the house and left the marriage ring and the engagement ring.

He said that a couple of weeks later the accused had told him that Jean Keir had returned and taken all her clothes. He gave evidence: “Q. You had a chance to see Jean on the occasions when she came to G and T Upholstery? A. Yep. Q. What sort of a person was she? A. She was a nice girl. She was a nice girl, yeah, friendly. Q. Did you ever see her son Michael? A. Yeah. That time Michael was a young fellow. Yes, she used to bring him over. Q. To your observation, how close was the relationship between Jean and her son? A. Loving, like any mother, you know. Q. Did you ever see Jean again after Tom said that he couldn't find her? A. No.”

In cross-examination George Georgieski agreed that his statement was made three or four years after the event when police approached him to make it. He agreed that, so far as his observations went the accused loved his wife and treated her well.

In cross-examination George Georgieski gave evidence: “Q. On the occasion you have told us that he said he was going down to Culburra and the events and conversations you had with him shortly thereafter, do I take it that when you came to make your statement you hadn't thought about these conversations for many years? A. I did remember then, the conversation I had with him. Q. That's not something that you thought about very often if at all, was it, the conversation you had with Tom Keir, for example, the day after he came back to the factory from the night before he told you his wife had run away? A. Well I do remember the phone call. Q. You remember the phone call where he told you that he was bringing his wife back and was somewhere in Liverpool at a service station and she disappeared? A. Yes. Q. Because that was unusual for him to ring you, is that right? A. Yes.”

When pressed as to his certainty about the statement “I couldn’t find her. I don’t know where she is” he said “well at that time, that is when the statement was made I honestly thought that’s what he said.”

He agreed Christine Strachan would have been working at the factory on the date of that conversation but does not remember whether the accused spoke to Christine Strachan about the matter. He rejected the suggestion that he may have been mistaken about the phrase “I don’t know where she is”. He agreed that he knew that the other man’s name was Carl or Carly and that the accused had never told him that he had actually rung Carl Nieding. He said that the accused had told him that he had subsequently tracked down Carl Nieding and spoke to him as to whether Jean Keir was with him or not.

Dr Mira Vellani established a practice in Mt Druitt in 1973 and was the family doctor for Jean Keir both before and after she was married. The doctor’s current notes, which were tendered, commence with routine treatment in April 1983. The doctor and occasionally her husband, who was her partner in the practice, treated Jean Keir for customary minor problems. Dr Vellani has post-graduate qualifications in obstetrics and she treated Jean Keir during her pregnancy, at the delivery and subsequently. The delivery was a full term normal delivery “with a episiotomy”. Dr Vellani said that she used a technique of subcuticular stitches which, it was put to her, involved one stitch dealing with the entire cut.

Her post natal records did not contain any notes as to the progress of healing of the episiotomy or sutures, however, she noted nothing unusual. She gave evidence: “Q. And in terms of scarring, does scarring eventually heal as well? A. There's hardly any scarring on the perineum. There's hardly any scarring. It just heals beautifully. Q. Where there is scarring does it eventually disappear or does it tend to-- A. Eventually it will be less visible, definitely, eventually. Q. Speaking in very broad terms here, very generally, in the fullest of time does the scarring tend to disappear? A. If it's a very, very bad scar it will never disappear. Q. Apart from very, very bad scars will it disappear? A. It will - most of it will definitely become less prominent.”

The doctor continued to treat Jean for a number of complaints which I do not think are relevant to present considerations. However, from 23 February 1987 and onwards there were a number of notations in the doctor’s notes dealing with depression.

On 23 February 1987 the doctor has a note “agitated”, then an arrow, followed by “depressed” and the record of a referral to Dr Chowdery, who was a psychiatrist. She prescribed an anti-depressant “Synaquin”. A note of 21 March 1987 records “depressed and advised to see a marriage counsellor”. The doctor said she had no independent recollection of what was said during that consultation.

On 23 March 1987 there is recorded a lesson on relaxation and the same on 26 March 1987. A note on 30 March 1987 refers to “relaxation”. The doctor said that the relaxation was to calm the patient down.

On 2 April 1987 the card records “agitated, long discussion”. The doctor agreed that that related to the same condition that she had seen on the previous five occasions.

On 16 July 1987 the doctor saw Jean Keir both in the morning and in the afternoon. Jean Keir had applied for a job at Smithfield and had a medical examination, no doubt in connection with that employment, which had revealed haematuria. Dr Vellani had tests done and an urinary tract infection was diagnosed. She noted on the afternoon visit “Patient terribly depressed”. There is no note, however, that she had prescribed anti-depressants and she was therefore able to say that she had not done so.

On 26 October 1987 the doctor recorded that Jean Keir was happy with her job but complains of having emotional problems with her husband. There was a reference to being worried about AIDS with advice as to an AIDS test but no result noted in the doctor’s notes. There is a note of complaining of depression on and off and wanting hypnosis for anxiety and smoking. Dr Vellani prescribed the anti-depressant Synaquin and noted a long discussion which she said was to do with the complaint about depression.

The next item is dated 15 October 1987 which appears to be out of order, however it refers to hypnosis and (1st ) which would appear to convincingly demonstrate that it was the treatment to follow upon the previous reference to Jean wanting hypnosis. The hypnosis treatment Dr Vellani said was for her anxiety and smoking.

The last entry on 22 January 1988 notes a long discussion, unhappy and upset.

Jean Keir has not returned to the practice after that date.

Dr Vellani said that she remembers Jean Keir and she gave evidence: “Q. And treatment for that, do all those entries and that pattern accord with your own independent recollection that Jean Keir was suffering severe depression in the last year you saw her? A. I am sure - that is why I have written all that. Q. With the assistance of these cards what do you remember of the state of Jean in that last year that you saw her? Do you have any independent recollection other than what is in here? A. During her pregnancy she was a happy girl. Afterwards I just knew that she was not happy. That is a definite recollection. Q. That unhappiness does that appear to have related to marital problems? A. Looks like that because she once mentioned she has emotional problems with her husband and I advised her to see a marriage counsellor so it seems that part of it could have been due to that.”

The doctor also gave evidence: “Q. Do you have any recollection of how close she was to her son after he was born? A. I knew that she was a very happy mother. She was very happy to have him and my recollection is that she was very close to her child.”

Dr Vellani said that she had no records to indicate that Jean Keir had seen Dr Chowdery nor was there any report on her file, which there normally would have been had she seen that doctor.

In cross-examination Dr Vellani agreed that the only bruising she had seen on Jean Keir was some following a fall at Mt Druitt Station in June 1998 and that Jean Keir had not complained to her of being subject to any physical violence by her husband.

She agreed she had conducted a vaginal examination on 14 February 1985 and that had she noticed any of the stitching had been torn and replaced she would have made a note of it. Jean Keir did not raise any problems with her in that regard. She said that Jean did not show any post natal depression and that the drug Synaquin which she prescribed was quite a lot for 24 hours. She did not have records that Jean Keir had continued to take the anti-depressant on a regular basis.

The doctor said that she used the term “agitation” as distinct from “depression” and that to her it meant “some kind of restlessness, inability to relax, the general body language. No eye contact.” She said Jean Keir did not complain of panic attacks or anxiety, that she had not written down her weight after the pregnancy so could not answer the question whether she had noticed any weight loss although she agreed that if it was visible, terribly visible, she would have written it down.

The doctor agreed that the urinary tract infection probably came from sexual intercourse, but said that Jean Keir had never told her of sexual intercourse with anyone other than her husband.

On the afternoon of 16 July 1987 the doctor had noted that Jean Keir was terribly depressed, however, she was unable to say whether that was after Jean Keir was told she was told she had a urinary tract infection.

In respect of the examination of 27 October 1987 the doctor gave evidence: “Q. Did she appear to be happier and less depressed than when you had seen her previously? A. Comparatively.”

Dr Vellani said in respect of the examination on 22 January 1988 that she had no recollection of why Jean Keir was unhappy and upset but said that she knew that she was an unhappy girl. She agreed that Jean Keir did not appear to be suffering from any mental problems.

Dai Buckley had been a pupil at Plumpton High School a year or two ahead of Jean Keir. His best friend James McDonald married Shona Chalmers and they socialised with Jean Keir and the accused and sometimes at a barbecue or event at their house and on some occasions he “popped around”.

Dai Buckley joined the Police Force in 1984 and remained in the Service until 1995.

He said that he observed the relationship between the accused and Jean Keir and referred to an occasion on which Jean Keir telephoned him in 1986. He gave evidence: “Q. Just a minute. Did she ever say anything about fear? A. She did. Q. Was that in relation to Tom? A. It was. Q. Did you suggest to her, did you talk to her about the question of moving out? A. I did. Q. What did you say to her? A. I suggested that if she had fears about her safety that she should take her child Michael and move to her parents' home. Q. Was that in the same phone conversation you have referred to a minute ago? A. It was. Q. What did she say? A. She refused any intervention or --. Q. I am just asking you did she give a reply to that suggestion? A. She did. Q. What did she say? A. She said any police involvement would only make matters worse, would make Tom worse and perhaps push over the edge.”

He asked Jean Keir if she would like a report made to the Police Department however she declined.

About June or July 1987 Dai Buckley said that he received a telephone call between 11 and 11.30 at night. He gave evidence: “Q. Can you recall how the conversation went, how it started off and finished? A. I answered the phone. I heard the words: "You're dead, you're dead, you cunt." He said: "Have you been sleeping with my missus when I'm not there?" He said: "Have you been sleeping, have you been fucking my missus when I'm not there?" I said: "Is that you, Tom?" He said: "You'd better have eyes in the back of your head." He said: "I'll crack you around the head with an iron bar, you won't even see it coming." I said to him: "That's stupid." The conversation was then terminated.”

He said he rang the Mt Druitt Police Station and asked the supervising sergeant to make a record of the threat made against him. He said that he did not know if the record was made.

Dai Buckley said that usually when he had gone to Jean Keir’s and the accused’s place it would be with James and Shona McDonald and possibly in the company of a Polly Sultana.

Dai Buckley said that he has not had social contact with Jean Keir since the conversation on the telephone with the accused and that he has not seen her since February 1988.

In cross-examination Dai Buckley agreed that from time to time he went to the Keir’s home when Jean Keir was by herself. He denied that that was in a police car. He said that there were a number of occasions, several, two or three and that he would have parked his car out the front. He said that he did not recall Jean Keir ever saying that she had told the accused that he had dropped around to see her.

It was put to Dai Buckley that he had made a statement on 22 July 1999 and not included the words “you’re dead, you’re dead, you cunt”. He agreed with that, but maintained they had been said and that leaving them out was an oversight. He agreed that he said in the statement “you’d better have eyes in the back of your head because you won’t even see me coming”. He agreed that there was no mention of iron bars in his statement. Dai Buckley agreed that as a police officer he was accustomed to giving evidence, making statements and where relevant further statements to correct any oversight.

Mr Hanley then referred to the accusation of sleeping with the accused’s wife and a denial and Dai Buckley agreed that that was not referred to in the statement. The question was put in that form obviously by oversight because counsel then agreed upon a question and answer which was in the statement and Dai Buckley in re-examination gave the following evidence: “Q. Please take it out at paragraph 10, the third and fourth lines from the bottom. Did you say this, in the context of this telephone call, he said: ‘You’re fucking Jean when I am not there, aren’t you”, and you said: ‘No, I’m not’? A. That’s correct.”

Dai Buckley than gave evidence: Q. I want to suggest the accused did call you and he said he was annoyed with you visiting Jean after he had asked Jean to talk to you about that? A. That wasn't said. Q. Did Jean ever raise with you that the accused had raised with her that he wanted her to speak to you about not coming around to the house while she was alone? A. She did not. Q. He said to you: "I don't want you coming around when I am not at home"? A. He did not. Q. He said to you: "If you want to come round bring your girlfriend around for a drink one evening"? A. He did not. Q. Did you say to him that he was being stupid about it? A. I think I said words to that effect. Q. Did he say to you: "You can't" - sorry, did you say to him - did he say to you: "You don't tell me or her what to do"? A. He did not. Q. Did he say to you: "I'll come around and I'll kick the shit out of you"? A. Can you repeat the question? Q. Did he say to you: "If you come around again I will come around and I will kick the shit out of you"? A. Yes. Q. Did you say: "You have ruined a perfectly good relationship through stupidity"? A. No.” Dai Buckley also gave evidence in cross-examination: “Q. Because you have a considerable amount of ill feeling toward Tom Keir, don't you? A. Not considerable. Q. You don't like him, Tom, do you? A. I don't. Q. I suggest to you you guilded the lily in the way you have set out the conversation he had with you on this particular night? A. Any feeling I have towards the accused wouldn’t affect any evidence I give in this Court.”

I generally accept Dai Buckley’s evidence but, having regard to the passage of time, think the best course is to rely upon the version set out in his original statement and as appears from the cross-examination and the re-examination.

Marie Mateo, formerly Jones, was a “best friend” of Jean Keir at Plumpton High School and thereafter. Jean Keir left at Year 10 but Marie Mateo continued to Year 12. They continued, however, to visit each other. Marie Mateo used to visit 18 Wilkes Crescent Tregear as much as several times a week while she was still at school. She gave the following evidence: “Q. An how would you describe Jean’s personality, let’s say up until the time that she married? A. Quite an outgoing person, quite bubbly, very happy person. Quite confident.”

Marie Mateo said that she and Jean Keir frequently spoke about Jean Keir’s relationship with the accused. She gave evidence: “Q. I'm asking you now only what Jean said to you, not what you may have heard from others but what did Jean say in the period following her marriage in those first couple of years? A. Initially she was quite happy when she first married but as time went by she expressed to me that she wasn't happy for various reasons. Q. What are some of the reasons that Jean gave to you? A. She wasn't able to have the same sort of freedom she had before and she was finding that very difficult. She wasn't allowed to have visitors. Every, basically what she expressed to me was that everything she did, anyone she spoke to or anywhere that she went it was usually monitored and she just didn't have that basic freedom to make her own choices.”

Marie Mateo said that in the initial years she would visit Jean Keir several times a week but as the years went by they saw a bit less of each other and that at some point their relationship deteriorated “a little bit”. Over the last eighteen months before Jean Keir disappeared it became once a week, maybe once a month, and ultimately not very much at all. Marie Mateo said that their relationship deteriorated due to some problems Jean Keir was having with the accused. I shall return to that aspect. Marie Mateo lived with the Keirs for about two weeks as a consequence of some difficulty she was having herself. She gave evidence: “Q. What did you see during that period? A. A lot of arguments. Basically a lot of arguments. Q. Do you recall any subject matter of the arguments? A. Yes. Whether Jean had any visitors, who she had contact with, where she had gone, who had she spoken to, what she would wear.”

Marie Mateo said that later when Jean Keir came to her house she did notice a difference in her behaviour. She seemed like “quite happy to be out for the day, quite excited to be out for day, it was like a big kid being let out for the day”.

Otherwise she had noticed that Jean Keir seemed quite nervous, was smoking quite heavily and seemed a more nervous and agitated person. She gave evidence: “Q. Did she ever saying (sic) anything to you about how Tom treated her or any incidents about she had been treated by Tom which you can remember? A. Just by being more possessive with her actions, just controlling most of her life, basically.”

Marie Mateo said that she asked Jean Keir whether the accused was hurting her physically. She said that Jean Keir would deny such a thing and change the subject. Sometime later, after Marie Mateo had ceased to live in the house, she said that Jean Keir showed her some bruises and said “this is what you wanted to know so here it was happening. I just couldn’t tell you”. She gave evidence: “Q. And I think you’ve told us that all that was said on those occasions is that you’ve already indicated, words along the lines this, ‘is what you wanted to know’? A. Yes. Q. How did she put it? A. Again, she was just confirming that what, I can’t remember the exact words but she was confirming that what I had suspected I was right about and she showed me the evidence.”

Marie Mateo said there were bruises on the legs and on the knees and the backs of the legs, but when cross-examined she could not be at all specific about the location. She said that the showing of the bruises had occurred on two or three occasions.

The occasions were in the year prior to Jean Keir’s disappearance. Marie Mateo said that Jean Keir appeared very nervous and very agitated in the year before she disappeared. She said that she and Jean Keir were having more disagreements about Jean Keir’s relationship with her husband and what she, Marie Mateo felt, Jean Keir should do and they became more distant over time. She gave evidence: “Q. What did you say to her? A. I felt she needed to leave the situation. Q. And what was her response to that? A. She felt that she couldn’t because she had a young baby and couldn’t leave the baby. She felt that, she indicated to me that her husband would not allow her to leave with the baby and she had said on at least one occasion that she felt if she left he would kill her.”

At a time which would seem to be up to a few months, but not more, before Jean Keir disappeared she visited Marie Mateo at her place at work at the Korea First Bank in the city. Marie Mateo said they had not met for some six months prior to that.

She said that she didn’t recognise Jean Keir at first “she was very thin, sickly thin. She looked very unhealthy. She was basically just bone and skin. I just did not recognise that it was her, her physical appearance looked completely different”.

Marie Mateo said she could not recall very much of what was spoken about as Jean Keir seemed very distant and quite vague. Marie Mateo had the impression that Jean Keir just wanted to see her.

She said that nothing was said about Jean Keir’s plans in relation to whether she might want to leave the accused and Marie Mateo could not recall whether there was any reference to Michael. That was the last time she saw Jean Keir. She has not seen or heard from her since then.

Marie Mateo gave evidence: “Q. I just want to ask you just about the sequence of events. You’ve related an occasion where on one, perhaps a couple of occasions Jean spoke to you about wanting to leave with Michael but being in fear of what would happen if she did? A. Yes, in terms of fearing that she might be killed. Q. In your statement, paragraph 8, you suggest that that conversation occurred on the occasion when she saw you at the Korea First Bank whereas I understand your evidence to be that you recall those conversations beforehand rather than at the Korea First Bank? A. That conversation might have taken place then as well but I don't recall it right now. I do recall conversations beforehand and they may have taken place the day I saw her at the Korea First Bank as well. I just don't recall right now.”

In cross-examination Marie Mateo agreed that so far as she could observe Jean Keir and the accused were both happy together. I think the context and her other evidence limits that observation in time. She agreed that in a statement made on 30 April 1991 she said that she was aware that Jean Keir’s mother was interfering a bit in the relationship and the marriage. She said that Christine Strachan was very involved in everything that Jean Keir did and that Jean Keir complained to her that the accused would often side with Christine Strachan in any arguments and that this was causing problems in the marriage. She gave evidence: “Q. One of the problems in the marriage between Tom and Jean you told the police about in particular was that the arguments were about Jean’s mother interfering and the fact that Tom would stick up for Christine? A. Yes.”

Marie Mateo agreed that it was about twelve months after the accused and Jean Keir were married that she moved into their house for two weeks at Jean Keir’s invitation. She said that she on no occasion saw the accused threaten Jean Keir nor any violence by him towards her.

Marie Mateo said that she did not notice any bruising on Jean while she was living in the house. She agreed that she did not tell the police in her statement of seeing bruising and says that she just forgot at the time. She also agreed that she did not tell police that Jean Keir had told her that the accused had assaulted her. When asked whether she inquired of Jean Keir as to why she was crying, she said that Jean Keir replied that she was distressed about the state of her relationship with her the accused. Marie Mateo agreed that she did not include that in her statement.

Marie Mateo agreed that in her statement she had said that were occasions on the phone that Jean Keir told her there had been an argument and that the accused had hit her. Marie Mateo agreed that the only mention she made of Jean Keir telling her of assaults in the statement referred to conversations on the telephone.

After reference to Jean Keir’s informing Marie Mateo that she was fearful if she left the accused he would kill her, Marie Mateo gave the following evidence: “Q. Was it the only time she raised that fear with you during the conversation you had when she came to meet you at the Korea First Bank? A. No. We had discussed that beforehand. Q. Did you tell the police that you had discussed the fact that she had told you that on previous occasions? A. I don't recall whether I mentioned it or not, I'm sorry. Q. I suggest to you that the only time you raised with police that she had said she was fearful that Tom would kill her if she left was when you were describing the conversation you had with her on the occasion she met you at the Korea First Bank, is that correct? A. To my recollection I believe that, that that conversation took place beforehand as well.”

Marie Mateo gave evidence: “Q. In your statement you say that on the last occasion you met her she said: ‘I’m thinking about leaving Tom but I don’t think I should take Michael because Tom would kill me’? A. If that’s what I said then that’s what happened.”

Marie Mateo said that she did not ask Jean Keir whether there was another man in her life nor what her plans were because she said “I didn’t think she would leave”. She gave evidence: “Q. Her fear was that Tom would kill her if she took Michael? A. Yes. No, her fear was if she left at all. Taking Michael would just be worse. Q. So did she tell you that she was planning to leave but that she was planning to leave Michael behind? A. She wasn't planning to leave. She just said she was thinking about it. Q. Well, in the course of her thoughts about what she might do her plan was to leave Michael behind if she left Tom, that's what she conveyed to you, isn't it? A. I don't think I meant that that was her plan. She had just thought that she might do that. A plan is something that I would think she had already thought about doing it. Q. She was thinking of what she may do with her life, that's what she was telling you about? A. That she was thinking of leaving, yes. Q. And if she did leave she had thought about leaving Michael behind? A. She suggested that perhaps it would not be a good idea to take Michael.”

Marie Mateo agreed that had also told the police that it was all just very strange “as if she had some sort of disease and didn’t have long to live”. However, she says that that was an attempt to describe how she appeared rather than any view that she did in fact suffer a disease or a terminal illness.

In re-examination Mr Crown took Marie Mateo to some evidence given at the second trial. The question was: “That this meeting at the Korea First Bank occurred a matter of perhaps a month or two or shortly before her disappearance in February 1988. Answer: “It could have been”. After some discussion it was agreed that the last question and answer stood. I take this to include an acceptance that that evidence was given.

I refer to the accused’s evidence as to the relationship between him and his wife. The Relationship with Carl Nieding

Nicholas Carl Nieding, known as Carl, is a previously married man who in 1987 was living at flat 12, 101 Ramsgate Avenue Bondi Beach. He conducted his business as a distributor of polyethylene for consumables with the aid of a service providing company at Crows Nest. That company provided a phone answering service and postal receipt service.

Sometime prior to August 1987 Carl Nieding was walking through Hyde Park on his way to David Jones to do some shopping when he noticed a pretty girl walking in the park. On his way back she was still there sitting by the fountain. They fell into conversation, went for a walk in the Botanical Gardens and had a cup of tea in a teashop. By that time Carl Nieding had ascertained that her name was Jean Keir and she had his name and he said he thought he gave her his telephone number. Further on in their walk they sat on a grassy bank and Carl Nieding put his arms around Jean Keir. He noticed she had a little bit of a tear in her eye. He said ‘”what’s wrong, what’s up’” and she said, “nobody has ever held me like that before”. He said he held her a bit tighter and starting kissing her.

He proposed that they go to the beach or his flat and she agreed. They went to his red Renault station wagon which was parked nearby and drove to the beach. They wandered around for a time then went to his flat where they had sexual intercourse. That, Carl Nieding said, and I accept, was the only occasion on which he had sexual intercourse with Jean Keir. He said he thought they were in the flat for one to two hours.

At that time there was not a great deal of conversation, however, he then asked Jean Keir where he could drop her. She said “take me out to Blacktown” or something like that. He said during the car journey she commenced talking about herself.

She told Carl Nieding that she was married and that she had a beautiful little boy. Carl Nieding said that he is unable to remember whether the state of the marriage was discussed. He gave evidence: “Q. Was there anything said about whether or not she would say anything to her husband about the afternoon at Bondi Beach? A. Yeah. Well when I found out that she was married and she had a child and a husband and all these things, I said ‘Well it's probably a better idea you don't say anything about what happened today’. Q. Did she agree or disagree? A. I got the impression that that was okay by her. Q. That is to say nothing? A. Yeah.”

Carl Nieding dropped Jean Keir at a McDonalds in Blacktown sometime he thought about five or six o’clock.

Carl Nieding gave evidence: “Q. Did you have any contact from her or with her after that? A. Yes. Well after that, like I think it was about a week later or something, she started calling me because she had my number. She started calling me just to talk to me and, you know, talk about her life and her things in general. Her calls would usually come pretty late at night and I would try and listen to her, be kind of helpful, but she would say things like she wanted to move in with me, that she was in love with me, all kinds of things like that. I gave her - I told her ‘that's not possible. I'm not really interested in continuing this relationship’ because like the fact that she was married and had all these things and she also mentioned in these phone calls sometimes she had troubles with this, some kind of marital troubles, I was, you know, trying to give her the impression, trying to tell her, you know, it's not possible, none of this was possible and to forget about it.”

Carl Nieding said that the first call he thought was about a week after he had dropped Jean Keir at Blacktown and that it was followed by several calls at a couple of days intervals. He said that he tried to listen to her and give her some kind of support. He gave evidence: “Q. Did you see her again after the time you dropped her back at McDonalds at Blacktown? A. Yeah. Well, soon after these calls were coming, and she didn't seem to get the message, I told her that I had this girlfriend, that I was with this girl. She kept going on. It was all very strange to me. I just had this brief affair with this girl one time and then suddenly she was calling me and telling me all these things. I really didn't want to have anything to do with that level. I didn't really want to get involved in somebody's life like that. So I agreed to meet her one more time. We met one more time at the fountain, that fountain where I met her the first time, and she asked me--

This second meeting he thought was about three weeks after the first and was on a weekday. At the request of Jean Keir they drove out to a parking area about the beach and she talked about herself. Carl Nieding said the general theme was that she wanted to continue in the relationship and that he did not want to continue with the relationship. I thought, he said, “it was better that we forget about it”

After about an hour’s conversation he drove her to Granville Railway Station where he dropped her.

He thought there might have been a couple of more calls although he was not sure. Then one night he came home to his flat to see a man, he later came to know as the accused, sitting on a wall outside the unit. Carl Nieding gave evidence: “Q. The front fence? A. The front fence at the front of the units. This gentleman asked, ‘Are you Carl?’ I said ‘Yes.’ He said, ‘Well I'm Tom. I'm Tom. I'm Jean's husband. Can we talk?’ I said, ‘Yeah, okay’. …… Q. So what happened? A. Well we went upstairs and we had a cup of tea and Tom told me, you know, he was having trouble with Jean and Jean had gone wild or something like that. He asked me maybe if I could talk with her and sort of straighten her out or give her - I don't know, he wanted me to talk to her.”

Carl Nieding rang Jean Keir. The accused spoke to her and then Carl Nieding and then the accused again. He said that he told her things like “Tom is here and you should sort things out with Tom, you know, get it together. I don’t really want to be involved in this”.

The accused said that Jean Keir had told him they had made love and wanted to know if it was true. Carl Nieding said “No”.

Carl Nieding said they had another cup of tea and that he thought that the accused was in his unit talking for two to three hours.

Carl Nieding said that soon after the accused’s visit he went away to Malaysia and Thailand. He said that he went away pretty regularly and “I thought if I pull myself out of the equation, the equation of Tom and Jean, for a while, then maybe things may sort themselves out”.

The examination of Carl Nieding’s passport confirmed that he left Australia on 11 August 1987 and returned on 15 September 1987.

Carl Nieding said that after he returned for at least two months he had no telephone calls and felt that the matter had been resolved. However, after two or three months he got another call from Jean Keir who he thought appeared to be at home at Tregear. He also got a call a bit later from somewhere down at Nowra.

He thought that there were more than a couple of calls and the general topics were Jean Keir talking about her life. He then received a call when she was with friends at Nowra. He gave evidence: “Q. What's the next thing that you remember happening after the call from Nowra? A. Yeah, well a few days or so after this call, I think it was a few days, suddenly Jean shows up at my door and tells me the story that she was down in Nowra and that Tom went down and picked her up and she was coming back and, you know, she jumped out of the car or something at a gas station and hitchhiked back to Sydney. Maybe she didn't have anywhere to go or something like that, and so she came around to my place.”

Carl Nieding said that Jean was at the unit for about an hour. He said “I don’t think she knew what she wanted to do”.

He said he did not think she wanted to go home. There was a knock on the door and a man said “Phone Tom, call Tom, call Tom now” and disappeared.

I see no reason to think that this is other than a neighbour located by the accused, as I shall come to later, who passed on a message. He did ring the accused and the accused said something like, “bring Jean home, bring her back here”. Carl Nieding said, “yes it’s probably better” or something like that and “you should sort it out. I don’t know what’s going on”.

Carl Nieding said that Jean Keir was still inside the flat or wandering around downstairs. He went to her and said words to the effect of “look I’ve just called Tom and he wants you to go home. Maybe it would be a good idea to go and sort it out with him”. He gave evidence: “Q. What was her reaction to that suggestion? A. She didn't really like that too much. I said, ‘what do you want to do? There is nothing else to do. You have to work it out somehow. Maybe it's a good idea to go back and talk it over, work out what you want to do with him’. Q. How long did this discussion go on for with Jean? A. Probably half an hour. Finally she said "Yeah, okay.”

She ultimately said “yeah” and he commenced driving along the Parramatta Road without there being much conversation. He did not know the address and he stopped in a mall at Blacktown. He thought that Jean Keir did not really know what she wanted to do. After some time Carl Nieding spoke to the accused from a restaurant in the mall and Jean Keir also spoke to him. At this time Carl Nieding did not have Jean Keir’s address. He gave evidence: “Q. After Jean had spoken to Tom on the phone, what happened, did you speak to Jean again? A. Yeah, well after I had spoken to him, we went back out to the car and sat in the car. She was resigned to go back at that stage. She said ‘Okay, I'll show you where it is.”

Jean Keir then directed him to Wilkes Crescent. They arrived at what he thought would have been between nine and ten o’clock. He stopped outside the house with the motor running and saw the accused coming down the driveway smiling. The accused asked him did he want to come in but he said “no, no, you guys work it out, work this out for yourself”. He then left.

Carl Nieding said Jean Keir walked up towards the house, she got out of the car, did not say much and walked up towards the house. The accused followed her into the house. He was unable to see who went in first.

He has not seen Jean Keir since that time nor received any communications from her.

On 22 February Carl Nieding received at his answering service at Crows Nest a message from a lady called Liz Buchner. He rang back and a man answered the phone and said “No, Liz isn’t here at the moment she’ll be back”. Carl Nieding was looking at the area code and asked, “where are you” the man said he was in Nowra. Carl Nieding thought that it was probably something to do with the business of the accused and Jean Keir and put the phone down and never called back again after that.

A couple of months after that Carl Nieding saw the accused when he turned up at a place at Crows Nest where meditation instruction is held. Carl Nieding had been to programmes there conducted by an organisation called, at that time, “Access”, but not with Jean Keir.

Carl Nieding gave evidence: “Q. So getting back to Tom, in connection with Access, what happened? A. On one occasion Tom shows up and he asks something like ‘Have you got Jean?’ He thought she was with me and all these kinds of things. I said, ‘No, she's not with me as you can see.’ I think we went and had a cup of tea or coffee in some place, in some cafe nearby, and then he took off.”

Sometime later Carl Nieding received a telephone call from the accused, or rather returned one, and was asked whether he had seen Jean Keir to which he relied “no of course not”.

The premises in Bondi were rented by Carl Nieding from a Mr Mars and he had given notice to Mr Mars before Jean Keir visited him on the last occasion. He moved out on the day after he returned Jean Keir to Tregear. Documents confirm earlier notice and the recovery of his rental bond on that day.

It is convenient to say that Carl Nieding in cross-examination indicated that when contact was made again by Jean Keir he decided to move to avoid further involvement. I accept that.

After leaving the property Carl Nieding went to visit his parents in South Australia and then returned to Sydney where he stayed with friends. I will deal later with Mr Hanley’s cross-examination on that topic.

Carl Nieding remembered that there was an Access flyer in his unit when the accused visited it.

In cross-examination Carl Nieding agreed that his first statement on 22 May 1991 was made at the Mt Druitt Police Station and that his recollection of it was somewhat vague. He agreed that he left out the matter of sexual intercourse in his first statement but said that, “the way it was presented to me at the time it just didn’t seem necessary to go into details.”

Carl Nieding agreed that he had intercourse without protection such as a condom.

Carl Nieding said that when he met Jean Keir she didn’t seem upset, a little bit more secretive than upset. She told him that she came from somewhere up north in the country. He said that she had not mentioned until on the way home that she was married and had a child. He did not notice whether she was wearing a wedding ring. He agreed it was hard to say whether he would have intended to see her again had she not been married and had a child. He said that he was seeing other girls at the time.

Carl Nieding said that he did not think he was surprised to hear from Jean Keir “but I wasn’t feeling very comfortable with it”. He gave evidence: “Q. Were you surprised to hear from her? A. Well, surprised? No. I don't know if I was surprised or not but I was, no, I don't think I was surprised, you know. But I wasn't feeling very comfortable with it. Q. You weren't comfortable because she was married and had a child? A. Yeah, I didn't want to get involved with someone like that.”

Carl Nieding agreed that even on the first and second call Jean Keir told him that she loved him and wanted to stay with him. He said he thought she rang every three to four days or once a week before he went overseas in August. He said that she said she wanted to get out of her marriage and things like that.

He could not recall her directly asking for assistance to do that. He remembered her saying things like that she wanted to leave her family and come and live with him and that he told her it was impossible. He gave evidence: “Q. She told you both those things, that she loved you and wanted to come to live with you before you went overseas? A. Yes.”

Carl Nieding said that the visit by the accused was after he had seen Jean Keir for the second time and a week to three weeks before he left for overseas. He said that he could not say if Jean Keir was depressed or unhappy at the time of their second meeting. He gave evidence: “Q. What struck you as to what was her emotional response was to you, seemed to be inappropriate from the view of what occurred, is that right? A. Yeah, that's right. Q. Did she appear to be somewhat excessive? A. Yes. Q. And you were being dragged into a situation that you didn't really want to be in, is that what you're saying? A. That's right.”

Carl Nieding said he did not remember Jean Keir suggesting that her husband beat her. Had she told him of domestic violence he probably would have suggested that she get advice or do something about it. He agreed that she had on one occasion told him that the accused had hit her and she had contacted the police, which he said was quite possibly the only reference to violence.

He was taken to evidence in earlier trials in which he had said that he thinks he would have remembered had Jean Keir told him that she was beaten or frightened of the accused or scared that he would hunt her down and kill her. He said he could not remember anything like that.

He gave evidence: “Q. Do you have any specific recollection of what she said about her marriage? A. Well, apart from the fact that she was in this marriage and that she wanted to get out it, that, I do remember something like that.”

Carl Nieding agreed that the accused was not aggressive towards him when they met at his unit. Mr Hanley raised with Carl Nieding whether he had put to the accused matters such as that Jean Keir was upset about not being able to do things her friends could do or that the accused was possessive towards her or jealous of her. However, Carl Nieding said it would not be likely to be something that he would say, and then went on “I mean, to be there, talking to Mr Keir and he’s come around to see me, pointing out his faults to him at that time, doesn’t seem like a very good idea to me”.

When questioned by Mr Hanley he did say: “possessive, that rings a bell”.

Jean Keir had not mentioned to him that she was concerned that her friends were able to do things she could not or that there were problems with the clothing that she wore.

He gave evidence: “Q. During the time that he was there with you, did you get the impression that he was looking for ways in which he could reconcile any differences they may have? A. That was the impression that I think I had, that impression.”

Carl Nieding gave evidence: “Q. The occasions that you had seen Jean, prior to Tom coming around to your home, did she express to you, then, that she wanted to come and live with you? A. I don’t think so. I had the feeling that she realised that it was just hopeless that, any, I had a feeling that she was kind of resolved, she understood that that was never going to happen.”

He said that there were a couple of occasions when Jean Keir rang him late at night and she seemed to be slightly intoxicated by something.

Carl Nieding was asked whether he was concerned to hear from Jean Keir after he returned and he said, “Concerned, bothered, troubled.” He did not think that she wanted to come and see him. He said that he did not have any memory of ever calling Jean Keir.

In respect of the call from Nowra he gave evidence: “Q. On that occasion did she tell you she had left Tom? A. I have no memory of that either. Like, I really can’t say, I mean, may have done, may not have done. I don’t know. I don’t know.”

Carl Nieding gave evidence: “Q. Had you made arrangements to move out of your unit at that stage? A. Yeah, well depending on the time, the dates, when the phone call arrived, I had at some stage given notice after the first phone call started again, I had at some stage given notice to leave that place. Q. Had you given notice to leave the place to remove yourself from any involvement or contact from Jean Keir? A. Yes. Yeah, well, you know, I wanted to, I didn't want to be part of Mr and Mrs Keir's troubles.””

Carl Nieding said that he had never offered to assist Jean Keir in understanding the Bible although it would seem he could not say that she may not have referred to it. He certainly said that it would not be him to say, “I will help you to understand the Bible”.

Carl Nieding said that Jean Keir appeared flustered when she arrived on 9 February.

He agreed that in his second statement he had said that it was a few days after she came that he left the premises, however, his answer was simply that is what he thought at the time and that having seen the documents he is aware it was the day after. He said that he only had a few items to place in storage which he could move in his station wagon.

Carl Nieding gave evidence about what happened when Jean Keir arrived at his unit: “Q. Did you ask her how she got to your place? A. I didn't ask her. I think she mentioned that she hitchhiked. Q. Did she ask you to do anything? A. No memory of that. Actually she shows up and I'm not sure if she didn't know where to go or didn't have a destination, didn't know what to do or something to that effect. Q. Did she want to stay with you? A. I don't think so. Q. Do you recall her asking you that? A. I recall only one thing about that; it's, like, the first thing when I opened the door, she knocked on the door and looked at my face and she said words to the effect of; ‘I've made a mistake.' Q. 'I've made a mistake'? A. Mm. Q. Did you ask with her that meant? A. I didn't, she just took one look at my face and said something like: "I've made a mistake" or something like that.”

Carl Nieding was taken to evidence given at an earlier trial: “Q. How long did you stay at your flat after the man knocked on the door before you drove. A. I reckon about an hour.” He said that accorded with his recollection now and he agreed the man who knocked on the door would have done so about half an hour, perhaps a bit quicker than that, after Jean arrived. He said that when they left the sun had almost disappeared from the sky but it was still light. It took, he said, an hour, an hour and a half to get to Blacktown and he said that he could have been at the mall for an hour, could have been more and that included the visit to the Pizza Hut. He gave evidence: “Q. Did you ask her: Can I drop you at a friend's place, or mother's place, or a relative? A. I could have done. Q. She didn't offer any other place you could take her to? A. She didn't offer me anything, any other place, so we were just sort of standing there, you know, outside. We were out at the car and we were standing there like idiots, and finally I decided to go and get the address from Tom. So I walked into this sort of like Pizza Hut, I think it was like a Black Stump restaurant, so I made the call and Jean spoke to Tom.”

Carl Nieding agreed that the accused was calm when he spoke to him on the phone, and that Jean directed him to the home. He said it would have been about fifteen minutes, although he later agreed that he had given evidence earlier which included the reference “so we were driving, driving, driving and we were driving and finally we got there and pulled up”. He still, however, appeared to adhere to his view that it was about fifteen minutes.

It was put to Carl Nieding that they got there about midnight, however, he said he thought it could have been nine o’clock, it could have ten o’clock, it could have been anywhere around that area. He said he did not see how it could have been midnight. He agreed that he was not keeping specific track of time. Carl Nieding agreed that the accused was smiling, that he invited him in and did not appear to be angry or upset.

Carl Nieding agreed that at the meditation group he used to go and watch the teacher or a video of the teacher whose name was Mahraji.

Asked if the group had communes where people who followed his meditation lived together Carl Nieding said that they had ashrams. Asked if he visited them he said that he could not remember and said that he was not sure whether they were ashrams or not. After giving evidence Carl Nieding returned to the Court to raise a concern with Mr Crown that he recalled visiting an ashram quite some years before. Counsel agreed that it was unnecessary for him to be recalled.

Carl Nieding denied that on 10 February 1987, when he moved out of his unit, he saw Jean Keir on that day or that she rang him or that Jean Keir went with him to his parents. Mr Hanley cross-examined Carl Nieding as to the apparently rather haphazard nature of the accommodation arrangements he made, however, having heard Carl Nieding, they seem to me to be quite consistent with his lifestyle, particularly given his decision to leave the unit to avoid entanglement.

Carl Nieding said that in the course of his business in 1988 he would regularly receive messages from people seeking to buy his product but he did not have clients at Nowra and that he thought it very unlikely that the Liz Buchner referred to would have been a client. He was concerned that it might have some connection with the Tom and Jean Keir trouble and did not follow it up.

Carl Nieding denied that he had ever gone to The Rocks in Sydney with Jean Keir. He agreed that the accused had been calm and not aggressive towards him when they had a cup of coffee at the Crows Nest meeting.

He gave evidence: “Q. When she spoke to you about wanting to come and live with you, she said, did she, that she wanted to leave her family, didn’t she? A. She could have done, yes.”

In re-examination Carl Nieding was taken to his second statement when he referred to it being about four days before he was due to leave the flat when Jean Keir showed up at the door and to a paragraph in which he had stated: “I would like to say that all of this happened quite some time ago and the dates, times and circumstances are to the best of my memory.”

He was also taken to a paragraph in which he had said: “After returning home for the next two or three months I was relieved that I received no phone calls from Jean or Tom. Then one day Jean started calling me again. I decided then to quit my flat and telephone number, so I gave notice to the landlord and owner of the flat, Mr Mars, from Penkovil Street, Bondi. Jean called me from her house in Tregear and later from somewhere in Nowra".

It was also established that Carl Nieding had provided the police with the message slip in relation to the Buchnor message. The telephone message slip is in a common form and there was the name of whom it was received by. It does not contain a notation as to who it was for, presumably however, Carl Nieding accepted that it was for him. It was dated 22 February. Written next to the printed word “From” is a handwritten “Liz Buchnor” and there is a telephone number entered.

I do not consider there to be any significant conflict in the evidence of Carl Nieding and the accused as to their meetings and conversations on the telephone.

Mr Hanley did ask the accused if he had knocked on the unit door and Carl Nieding appeared to which he replied, “Yes”. However the accused referred to a wall shortly thereafter and I think it was simply a case of a mistaken leading question. The accused had been knocking on doors, on his account, in his searching to locate Carl Nieding and he also, as I understand it, waited for tenants who were not at home to return.

It is convenient to say that I accept Carl Nieding’s evidence, both from the way he gave his evidence and its content. I think him to be truthful. An attractive interlude threatened to become entangling and I accept his evidence that he took the steps he indicated in order to extract himself. Jean Keir’s Trip to Culburra

In early February 1988 it was agreed amongst members of the Keir and Strachan families, including Jean Keir and the accused, that Jean Keir would accompany Heather Strachan and Peter Bullock on a trip to the Strachan family caravan permanently parked at a caravan park at Culburra, near Nowra.

Heather Strachan gave evidence that Jean Keir said: “She was just down and she just wanted some time out, some space. She just wanted to get away from Tom for a little bit and sort her head out.”

In his evidence the accused said: “Q. Had there been any discussions between you and Jean as to why she should go away? A. Yes. Jean said that she needed time to get herself sorted out. She wasn’t, she just wasn’t sure what she wanted to do.”

In the record of interview with Detective Sergeant Lyons of 14 April 1991 the accused said: “Q. Will you tell me when and what your wife told you about this other man? A. It was in December that she told me that she had been having an affair for a couple of months. Then she said she was going to stop, but then in January I found out that it was still going. So after a lot of discussion she said she needed time away. Mother, Jean’s mother and father came around and thay (sic) suggested that she go to there (sic) caravan down at Culburra and stay down there for a week. Her sister, Heather and Heather’s boyfriend went down with her and stayed down there. A couple of days later she phoned me up and thanked me for the flowers that I had sent her for her birthday, but she seemed a bit distressed so I decided to go down and pick her up.”

This provides a contrast with the accused’s evidence as to the position prior to Jean Keir’s leaving for Culburra. He said that the relationship was stretched and gave evidence in chief: “Q. When you say "stretched" what was stretching it? A. It was, Jean was still upset about me having the affair with her mum and we were starting to get things back together but there was still tension. Q. Was there any tension about Carl at that stage? A. No mention of Carl at that stage. As far as I was concerned he was still out of the picture.”

There was some disagreement as to the date of departure and the anticipated date of return. I think that the trip started on Thursday 4 February 1988 and that it is likely that the initial arrangement involved at least Jean Keir being picked up on the next succeeding Saturday or Sunday as Christine Strachan said. That is, a little more than a week.

I am satisfied that Jean Keir wanted to take Michael, that the accused did not think he should go and that family members persuaded Jean Keir that it would be better if she went without Michael.

The accused gave evidence in cross-examination: “Q. You are in no doubt she would have? A. Well, I never asked her, but it was just in agreement that Michael would stay at home even though in the beginning of the conversation and that Jean did want to take Michael to Culburra with her but by the time everything was started out she agreed, yeah, it was better for Michael to stay at home.”

He also said: “I can’t say exactly when or during the talk about it, but I entertained the thought that she might turn around and go with Carl again and take Michael with her. You just don’t know. You have to think of all the options.”

On Thursday 4 February 1988 the accused drove Jean Keir, Heather Strachan, Peter Bullock and Michael to Strathfield station. I accept that Jean Keir and Michael were crying at the station. However, there was a bottle of Galliano on the train and it is clear that Jean Keir’s mood much improved during the journey which took until the early hours of Friday morning.

Whilst I accept Heather Strachan’s evidence that Jean Keir made complaints as to the state of her marriage it is clear, not least from a photograph tendered of a playful scene in the caravan, that she was also enjoying herself.

The accused sent Jean Keir flowers on her birthday. Heather Strachan thought that she was disappointed that they were not from Carl Nieding.

On Tuesday 9 February 1988 the accused went to Culburra to bring Jean Keir home. He said that he did not tell Jean Keir that he was coming. Heather Strachan said that Jean Keir had told her that the accused had told her on the telephone that he was coming. I think that to be a faulty recollection.

On the morning of 9 February 1988 the accused went to the home of Christine Strachan to pick up a card which opens the boom gate at the caravan park.

Christine Strachan gave evidence: “Q. What did Tom say to you about going to Culburra, what did he say? A. He said that ‘Jeanie rang me last night. She was crying. She misses Michael. She wants to come home.’ I said ‘that’s funny, she never rang me’. I was happy as a matter of fact I said ‘all right, can you wait a minute, I will give you her birthday card, that might perk her up a bit. I was surprised, you told us Cliff and me you weren’t going to pick them up until the weekend and he said ‘well she rang me and she is very upset she misses Michael. She wants to come home’. So I said “could you wait a minute I will give her birthday present, her birthday card and I will write to her a letter’ and in the letter I told her that –“

She had the present, being some clothing and a prayer plaque, ready wrapped with a card. Christine Strachan says that whilst the accused waited she wrote a note and put it in the card which in turn was put in an unsealed envelope. She gave evidence: “Q. The question I was about to ask you was can you tell the Court, slowly, what it is that you wrote in the card, to the best of your memory? A. All I said was that when she gets back that we will talk and if she is willing to give – I mean have a divorce with Tom, you know, me and Cliff are going to stay with her, we are going to be with her, and not to worry because Tom can’t take Michael away from her, he has to prove that she is an unfit mother.”

The accused delivered the present. He gave evidence that he had seen Christine Strachan write in the card but did not see a note. I do not consider that I should approach this matter on the basis that the accused became aware of the contents of such a note and I do not do so.

The accused gave evidence that he arrived at the caravan park about 9am. Heather Strachan was still in bed, Jean Keir was down on the beach. He gave evidence: “Q. Was she upset you had come down? A. Well, she was very surprised at first when she turned around and saw me and she goes, you know, ‘why did you come down for’ and everything else. I said, ‘I’ve come down to take you home,’ and she said. ‘I don’t want to go home yet’ and we talked for a little while. She decided, yes, she was coming home and heading back towards the car she decided, no, she’s not. She wants to stay for a few more days so we had a fair discussion of different bits and pieces on the beach and eventually made our way back to the car inside the caravan park and Jean had already agreed then to come home.”

Heather Strachan and Peter Bullock had borrowed the car to go to buy some pies in Culburra. They both said that when they returned Jean Keir’s bags were packed.

Heather Strachan gave evidence in chief: “Q. On your return what was happening? A. Seen a couple of bags out the front and Tom arguing with Jean, saying he was taking her home. And Jean was fighting, she didn’t want to go. …… Q. You said that you saw Jean and Tom; what was happening? A. Tom was trying to grab Jean to drag her to the car. Q How was he doing that? A. Just around her waist, picking her up, arms and legs all over the place. Just, yeah, trying to get her forcefully-- Q. --did you hear Tom saying anything whilst this was happening, from the time you returned till you saw this? A. Not that I can recall. He was just yelling; ‘you're coming home, you're coming home’. Q. Did you hear Jean say anything? A. Yeah, heard her say "I don't want to go", she didn't want to go. Q. Do you remember her saying anything else? A. She just kicking and screaming saying she didn't want to go. She was supposed to stay longer. It wasn't his time to come pick her up. Q. Do you remember her saying, or words to that effect? A. Yep. Q. Can you describe the physical acts of Tom and Jean? A. Yeah, picked her up around the waist she was just all arms and legs. She was all arms and legs. He's just picked her up around the waist and dragged her that way, dragged her to the car. Q. What did he do? A. What did he do? He dragged her to the car. Q. Did he put her in the car? A. He threw her in the car. Q. How did he do that? A. In the car, like opened the door and she had her legs sort of like on the door and on the side of the car and he's threw her in the passenger side and he's locked the door and quickly ran around to the driver's side. And she's jumped out and she's, he's chased her around again and put her back in the car, yeah. Q. How did he put her back in the car? A. Forcefully. Q. Through which part of the car, which side of the car? A. Second time was through the driver's side. He threw her into the passenger side and then just, he's got around, out round and round. I think he threw her into the driver's side. Q. Sorry? A. He's locked the door, like, so she wouldn't get out. He was holding her while he was taking off. Q. What was her emotional state? A. Very ups(et), she didn't want to go. She was pissed off. Q. Was she crying? A. She was crying.”

Heather Strachan said that there was lots of screaming, that Jean Keir was hitting the accused and she thought she was saying “that she hated him, she didn’t want to be there (sic), she hated him.”

Referring to the running around the car she gave evidence “Q. Was it mucking around or was it -- A. There was no mucking around about it. There was no laughing, she was crying. He was yelling at her. She was crying. She didn’t want to go. It was like she knew this was going to happen. Q. What was Mr Keir yelling? A. ‘Get in the car, you’re not staying, you’re coming home’.”

Heather Strachan gave evidence that some of the flyscreen streamers from the caravan were down on the floor. They had not been ripped off before they left to get the pies. She agreed that she had not mentioned this in her statement.

Heather Strachan gave evidence that she has not seen or otherwise had contact with Jean Keir since she drove off with the accused.

In cross-examination Heather Strachan gave evidence: “Q. Was the sequence of events that the first time Jean got in the car she got in voluntarily or she got in by her own motion? A. Yeah, with him on her back, like telling her, "Get in the car", you know. Q. So, he wasn't physically forcing her into the car? A. He had hold of her, like he put the bags in first. No, shouldn't say that. He was forcefully putting her in there because I told him, "It doesn't have to be like this". Q. How was he forcefully putting her in the car on the first occasion? A. I don't know. Grabbed her, like pushing her, like you know, coaxing her in, pushing her in. Q. So, she got in the car? A. Hmmm. Q. What did he do? A. He went around to the driver's side and that's where she jumped out. Q. Was there any laughing going on at this stage by her? A. No, there was more upset, crying. Q. She was very upset, was she? A. Not very upset but she was upset and getting, you know, like—“ …… Q. When he drove away he wasn't holding her in any way, was he? A. I think he - I was behind the car when they were actually taking off and I seen a couple of hands going like this and I seen his arm going (demonstrated). I think he was just trying to hold her there, like he was holding her there. Q. Have you ever mentioned that before? A. I think I mentioned it in a couple of the other ones. Q. Did you mention it in your statement? A. Not my first statement, no.

Heather Strachan also gave evidence: “Q. You didn't like the accused, did you? A. Tom, he was my boss. Why wouldn't I have nothing to like about him? I didn't like the way he treated Jean, but that had nothing to do with me personally. Q. You knew he was responsible for telling the prison officials about quantities of marijuana you had while he was in custody? A.I didn't know that was him until the first trial. …… Q. So when you made your statement, you had no ill-feeling towards the accused, is that correct? A. Before I made the statement? Q. Yes. A. I just didn't like how he used to treat Jean, but they were married and we were brought up that you don't get involved with married life, you sit back. I thought it was a stupidest thing I had heard in my life, but I had to respect what my parents said.”

Heather Strachan gave evidence: “Q. Do you recall yesterday I was suggesting that you were upset with the accused because he had advised prison authorities that you were taking drugs into the gaol to Mr Bullock on one occasion? A. I was upset when I found out it was Tom because I did not know it was him. Q. You did in fact take marijuana to Mr Bullock while he was in custody? A. Yes. Q. You were convicted in your absence when you failed to appear at Waverley Local Court in August of 1988? A. I thought I went to that. I remember going to Waverley Court once. Q. Do you recall being sentenced at Blacktown Local Court in relation to that matter in February of 1988? A. Yes. Q. You received a gaol term? A. Yes, but -- Q. On appeal it was reduced to a bond and 200 hours of community service, that’s correct? A. Yes. Q. I want to suggest that you became aware that it was the accused who was responsible for you being charged? A. I didn’t know. I only found this out at the court.”

I accept the evidence of Heather Strachan and Peter Bullock to which I shall refer later, that they did not know that the accused had informed on them until the first trial.

It is convenient to note at this point that I think it likely that Jean Keir left her handbag in a drawer in the caravan. I shall explain later why I have reached this view. It is also relevant to note that the packing was disorganised, some of Heather Strachan’s clothes being taken.

Peter Bullock gave evidence: “A. As I have gone back towards the caravan, I seen Tom with Jean dragging her up towards the car. Q. Can you describe exactly what you saw Tom doing? A. He had Jean by the arm and Jean was like throwing her little arms around and that and kicking her legs to try and get away from him I'd say. They were just walking up and she asked me to help and I just turned around and I said, "Youse are married, I'm not gettin' involved._ …… Q. What physically do you remember in terms of what Tom was doing to Jean? A. He just had her by the arm and just sort of walking her to the car while she is like throwing her arms around, you know, virtually like an elastic band. She was just throwing her arms out. She was a tall, skinny girl. She has no weight on her. She was just like virtually saying ‘Let me go’, you know. …… Q. After you said, "Youse are married, it's nothing to do with me", what happened? A. Tom took her around, put her in the passenger's side of the car and as he's walked around to the driver's side she's jumped out of the passenger's side and Tom has gone back to get her and she's gone backwards to try and get away from him, she went running backwards and he has reached out to her and grabbed her and taken her to the driver's side, pushed her through over to the passenger's side, jumped back in the car, held her and started the car, put it into the gear and just taken off. …… Q. What physically did Tom do when you say he got Jean and put her through the driver's side, how did he do that? A. He forced her in through the driver's side straight over the console into the passenger side and held onto her, started the car with one hand, hit it into gear and just drove off. Q. When he took Jean and put her into the driver's side, were her feet on the ground, was he carrying her or what was the situation? A. Her feet was still on the ground when he put her into the car. Like I said, she is only a flimsy girl. He has just virtually manhandled her into the car into the passenger side and taken off.”

Peter Bullock said that Jean Keir did not want to go, that she was supposed to be down there until Sunday. He denied that the accused and Jean Keir were just mucking around. He said that he and Heather Strachan remained at Culburra until the Sunday they were supposed to come back.

He gave evidence: “Q. When you came back from the shops with Heather, did you notice anything about the caravan or the annex? A. I think the streamers were pulled down or something. The annex was ripped. Actually, I am positive the streamers, they were pulled down, like hanging down. They were like up across the front of the annex.”

I have earlier referred to cross-examination of Peter Bullock as to his criminal record. He was cross-examined as to the informing upon himself and Heather Strachan and ill feeling towards the accused. He agreed that he was “fucking” upset that he and Heather had been “put in” to the authorities. He received an extra month in gaol. He said that he was not aware that the accused was the informant until he went to court “I think it was last year”. He said, “….I thought it was another bloke by the name of Danny Cook. I did not know it was him until I came to the Court.”

Mr Hanley took Peter Bullock to evidence he had given at the second trial as follows: “Q. ‘By the arm? A. Hmm. Q. But her feet are on the ground as they are walking along? A. Yes. Q. It was not a violent way but it was with, you say, some force? A. Yes, being dragged. Q But not in a violent way? A. No, I would not say it was violent, no. Q. But he is escorting her, if you like, towards the car? A. Yes. Q. And then Jean got into the car on the passenger side? A. Jean got pushed.’ Q. Do you recall giving that evidence? A. Yes. Q. You say he was moving her towards the car in a violent way? A. Well, I wouldn't say like he was dragging her across the tarmac, but he had her by the arm and forcing someone to go somewhere that they don't want is, apparently it could be said as a violent way, but that didn't like show that it was violent, but she didn't want to go there, so why grab her by the arm.”

Peter Bullock denied that Jean Keir was laughing when she got out of the car.

He agreed that he had not mentioned in his statement that the streamers were hanging down, a matter of which he gave evidence in chief.

The accused dealt with this incident in the record of interview with Detective Sergeant Lyons when he said: “Q15 Will you tell me what happened when you went to pick her up? A. At first she didn’t want to come home, then she did want to come home, and then she didn’t want to come home, she couldn’t make up her mind. So I ended up picking her up and putting her in the car. Then she jumped out of the car again. Then she got back in the car. Then we drove off.”

He also dealt with it in the electronically recorded interview with Detective Chief Inspector Dayment (as he now is) on 20 February 1998. The transcript reads” “Q66. Now I understand that on the 9th of May, 1988, you went to Culburra” A. Yeah. Q. And according to witnesses you forced her into the car? A. No, didn’t force her at all just um, basically picked her and put her in the car just so she was muckin’ around half the time and getting’ in and out. Q. That was on the 9th of February, 1988, not May, sorry? A. Yeah, I know because then it was um, it would’ve been 9th of February, yeah. Q. Yes, I apologise. So you say you didn’t force her into the car? A. No, although I did pick her up and put her in ‘cause she got in the car first I think, got out and I picked her up and put her back in again then and she was runnin’ round and round the car laughin’ her head off so, she was muckin’ around with her, her sister and eventually I picked her up and put her back in the car and we left.

In a video interview with a journalist Jane Hanson in March 1994 to which I refer later the accused speaking of this occasion said: “Told you, I just grabbed hold put her back in the car, put her seatbelt on and drove off.” It would be unusual, except for the old or frail, for a driver to put on the seat belt of a willing passenger.

The accused said in chief as to the incident: “Q. When you and Jean were leaving the caravan park did you drag her to the car? A. No. Q. You've heard evidence from Heather and Peter Bullock? A. Yep, heard what they've said. Q. About that particular incident? A. Yeah, heard what they've said. Q. Did you at any stage pick her up? A. I picked Jean up on one occasion when I originally got in the car. We were ready to drive off and she's jumped out of the car. Q. Did she say she didn't want to go? A. She, yeah, she was sort of laughing when she's saying, ‘I am not going. I am not going’ and, as I say, she left the car and started to run and as I've come out of the car I ran into the passenger's side as Jean's running towards me and she just sort of collapsed over me shoulders and I just sort of picked her up and sat her back in the car.”

He denied holding Jean Keir down as they drove out of the park. He gave evidence: “Q. Was she unhappy about going back to Sydney? A. No, she wasn't unhappy at all at that stage. Once we started driving she was looking forward to be getting home. Q. Any discussions about the state of your marriage? A. We talked about a few things and we sort of said we have been pretty stupid to each other, doing all sorts of things, and best thing to do is get the marriage back on the rails and both try a little bit harder to not to annoy each other and things like that. Spoke for quite a way. On occasions things went quite for a few minutes but everything seemed to be reasonable.”

The accused said that Jean Keir asked him to stop at a service station at Casula so that she could go to the bathroom. He did so. He went to the bathroom himself, bought some cigarettes and waited for her. When she did not come he made some enquiries and found that she had left. It later became clear that she had hitchhiked back to Sydney indeed gone to Carl Nieding’s at Bondi.

The accused said that he had telephoned his partner, George Georgieski and also Christine Strachan. He told her that an attendant had seen Jean Keir hitchhiking with a truckie towards Sydney. Christine Strachan gave evidence: “I said to him ‘why would she run away from you, when you told me that she was ready to come home?’ He said, ‘we had a fight. She didn’t want to at first when I got there, so I put her bags in the car and I dragged her in the car and I told her we are going home. And she got out of the car, so then I put her back in the car and she said all (sic) ‘Right then’. She calmed down after and we went’.”

In cross-examination the accused said it seemed to him on the telephone that Jean Keir wanted to come home. He contended that there was only a day taken from the planned trip, although he conceded that Jean Keir initially wanted to stay for a few more days.

In the Hanson interview, after referring to the Culburra trip, the following was said: “Q. Why did you go down to fetch her? A. Well, if she had problems to sort out, she couldn’t sort them out miles away, they’re um got to be sorted out at home.” This, in my view, is a much more probable explanation for the accused going to get Jean Keir early than the notion either that she wished to come home early or that the accused believed that she did.

The accused said that “when Jean decided we were going home went back to the caravan, had some pies and stuff and were getting ready to leave”. He gave this evidence: “Q. Have you introduced that to suggest that the atmosphere was relaxed enough to share a meal? A. It was a relaxed atmosphere, because when we got back from the beach we were sitting in the caravan for a little while talking, so there was no dramas.”

The accused agreed that he did some packing, he said that he was packing what Jean Keir put on the table. He also agreed that some items of Heather Strachan’s were brought back. He said that Jean Keir had agreed to come home, “everything was fine”.

He denied that he used physical force to overpower Jean Keir. He said: “You can’t say that was physical force, it was mucking around”.

He said that when Jean Keir was on the other side of the car “I ran towards her from the opposite side of the car and she collapsed over my shoulder. She was hanging over my shoulder……”.

The accused denied that Jean Keir was calling for help, trying to hit him on the back or saying that she hated him. He said that he did not hear anything like Peter Bullock saying “Youse are married, we’re not interfering”.

It is convenient to say at this point that after considering all the evidence and the submissions of Counsel I am satisfied that: (a) The accused went to bring Jean Keir home several days earlier than planned. (b) That Jean Keir did not want to come home. (c ) That the accused sought to bring her home against her will, and (d) That he used a moderate degree of force to that end. These views are, amongst other things, supported by the fact that Jean Keir ran away at Casula. Jean Keir’s Disappearance

Carl Nieding saw Jean Keir walk up the pathway and enter 18 Wilkes Crescent somewhere, he thought, between 9pm and 10pm on Tuesday 9 February 1988. The accused said that it was about midnight.

Except, on his account, the accused and a limited number of “sightings”, to which I shall come later, none of Jean Keir’s extensive family or circle of friends have seen or spoken to her since that time.

The last entry from Jean Keir’s Medicare claim’s history is of the visit to Dr Vellani on 21 January 1988. She has not lodged a tax return since 9 December 1987.

Extensive enquiries throughout Australia, which it is not necessary to detail, of the Commonwealth Employment Service, of Police Services, Registrars of Birth, Deaths and Marriages, Land Titles Authorities and other Government and non Government agencies have not located a reference to Jean Keir nee Strachan after February 1988. There is no record of Jean Keir leaving Australia.

Extensive enquiries of Banks has yielded no relevant information as to any activity by Jean after February 1988.

It should be said that the searches cannot allow for a change of name.

Mr Payne, a private investigator, with extensive prior experience including with the Australian Federal Police, was called by Mr Hanley. He gave evidence that it is possible for false documents, including passports, to be obtained and for false identities to be established, amongst other things, for use with organisations such as Centrelink. He also said that in his experience people could live for years in the community with false documentation.

In cross-examination Mr Payne agreed that such activities were usually associated with illegal purposes and required payment of money to obtain them.

Mr Payne gave evidence: “Q. In relation to persons who disappear, is this a fair proposition, that a person who remains in the community and perhaps someone who has a child and who does the ordinary things that one does in a community or in a town or city, whatever the true identity of that person is, it's rather difficult to avoid leaving a trail of transactions with some or other name and address, isn't it? A. Yes. Q. Things like access to, for example, medical and hospital treatment, just to name those two, invariably do require providing a name and an address? A. Yes.”

He did say that people have entered and left Australia by yachts or ships without being recorded.

It is convenient to say that I think it unlikely that Jean Keir, at least unaided, had the money or the sophistication to establish a false identity.

The accused gave his account of what occurred after he and Jean Keir were last seen by Carl Nieding as follows: “Q. What happened after they arrived? A. I walked down the driveway or front footpath and walked down the - because I had the front door open so could see any cars coming up the street you could see immediately. I actually met them as the car's pulled up. Jean got out of the car, and I went to give her a kiss and she gave a peck on the cheek as walking past and said "hi" with a big smile on her face, and started walking into the house. I went down to the driver's side and thanked Carl for bringing Jean home and invited him in for a coffee. Q. Did he go in? A. He said, no, he had some things to do in the morning and said too late as it is a long drive back to Bondi but he said thanks for the offer and catch you later, and off he went. Q. When you went inside Wilkes Crescent what happened? A. Jean was sitting on the lounge first up, and we had a cup of coffee and sat there talking about, just stupidity of the evening with her taking off and other bits and pieces. She said, look, that's it. I just needed to have say one last thing to Carl. That's it. All been said, now he's out of my life for good, and stuff like that. Q. How did you feel about her running away from you at Casula? A. It was annoying but she was just playing stupid little games. I thought we were past that already. Q. Did you speak to Christine at all after Jean returned? A. Yeah. Christine phoned up and I said to her that Jean's home. She said, "good, put her on the phone" as Jean said - give me a signal as much as I don't want to talk to her. I just said to Christine Jean's already in bed. I knew it was going to be anyway if Christine came other, they would have a slanging match. All the good work would be undone with her interfering. So I just told Christine she was asleep.”

The next morning the accused took Michael to his mother. He said Jean Keir asked him to saying, “look, I have to get a few more things sorted out”.

On his return from delivering Michael he said they discussed Jean Keir getting another job. He gave evidence: “A. ………and she said she still felt she still might need time away with herself because she was still wasn't thinking straight, and she said so if I needed another weekend away here or there that wasn't going to be a problem. Q. Did she tell you what she wasn't thinking straight about? A. Just herself. She said what sort of hurt her the most was like sort of mudcrap, I suppose, when she was saying the two people she most loved in the world cheated on her, her mother and me, husband and mum screwing behind her back, things like that. And we were sort of getting through things but she just seemed a little bit unsure of herself.”

He also gave evidence: “Q. Did she tell you if she was going to go any where in particular? A. When she said about if she needed more time away and everything still I said it's not a drama. She says, well look I want to go and talk to a friend of mine in Campbelltown, getting bit of advice from them and other things. I thought to myself I'm not going to start any argument about, everything was running along nicely. I said, yeah, no problem, go.”

The accused said that Jean Keir did not tell him the name of the friend at Campbelltown and that he was not concerned that she was going to see Carl Nieding.

The accused went to work, he thought, about 10.30am. Mr Crown drew attention to the evidence of George Georgieski that the accused had said to him, “I couldn’t find her. I don’t know where she is”.

However, at about the same time, also at work, he was telling Christine Strachan of Jean Keir coming home. I do not think he would be so inconsistent and consider the likelihood to be that George Georgieski misunderstood a remark relating to the situation at Casula.

The accused said that when he returned home at quarter past six, half past six, Jean Keir was not at home. She did not return later. He has not seen her since that time.

He gave evidence: “Q. That day, that afternoon or that night? A. Yes I rang up Christine and told her Jean's not home. She said, well, probably just gasbagging and everything else. Time gets away from them. She will and home soon. Q. When she didn't get home that night what did you do? A. That night, again, I spoke to Christine once or twice through the evening. And I said to Christine, well, it's plain and simple this thing with Carl hasn't finished. She is probably back at his place. And she said, well, look if you turn around and drag her back and everything she will go with him again. Just let herself sort it out. She will come back when she's worked things out. Q. Did you go to Carl's place? A. No.”

The accused gave evidence that he telephoned Carl Nieding’s flat without success and then went there. He then was told that Carl Nieding had vacated the flat on 10 February 1988. He said: “I thought to myself she’s taken off on the 10th February exactly the same day he has vacated his flat. Put 2 and 2 together where Carl is Jean is, simple”.

The accused said that he received a telephone call from Jean Keir two to three weeks after she walked out. He said, “she told me that she was pregnant but not to worry, wasn’t mine, and just asked her to come back as Michael was missing her and things like that and she got upset and hung up on me”. She didn’t say where she was and the accused did not ask her whether she was with Carl Nieding but assumed that she was.

Whilst Christine Strachan did say at one point that she thought that Jean Keir might be pregnant it is relevant to note that Jean Keir saw Dr Vellani on 25 January 1988 and had a long discussion with her. One would have thought that a specialist obstetrician, as Dr Vellani was at least by qualification, would have noticed such a thing if it were noticeable and perhaps also that it would have been referred to in a long discussion. If, as I accept, the only act of intercourse with Carl Nieding was prior to his departure for overseas in August 1987 there would have been no doubt about the position in January or February 1988 if he were the father.

The accused said that in May 1988 Jean Keir paid a visit to the house and telephoned him. He gave evidence: “Q. Did you receive any other telephone calls from her after that? A. Yeah, Jean paid a visit to the house one particular day and that was in May and she had left the wedding ring and engagement ring on the coffee table together with the front door key, and there was some Alpine butts in the ashtray, so I knew she had been there, and when I rang Christine to tell her that rings had been left on the table, a bit after Christine said, well, don't waste to much time on the phone just in case Jean is trying to ring, and so I hang up there. Few minutes later Jean phoned and - just trying to think exactly how she got started. She just said she wasn't coming back and stuff like that. As I said, well, look Michael needs you, he needs his mother and everything else. She said I'm not coming back, find somebody else Michael needs a mum. And she ended up hanging up on me again.”

The accused said that Jean Keir telephoned again in October or November 1988. He gave evidence: “Q. Did she ring? A. And Jean phoned and she said she had given birth to a daughter and she was doing fine, baby was doing fine. She had split with Carl, not to worry about her and everything else. She had organised a good job and other bits and pieces. I said, come back, don't come back for me come back for Michael, and she just stated getting upset on the phone and hung up.”

The accused said that Jean Keir telephoned again in April 1989 and wanted to know who was the Vietnamese girl I was going out with. At that time he was going out with Rosalie who became his second wife. He said that that was the last time he spoke to Jean Keir. There was, he said, one more visit to the house. He gave evidence: “There was one more visit to the house after that. Nothing was taken. 'Cause when I come home from work the TV was left on, but nothing appeared to be missing. There was Alpine Lights cigarette butts in the ashtray. Jean smoked Alpine so I assumed she was back in the house again. Like I said nothing was missing, so just the TV was left on, so I don't know what was behind it.”

The accused gave evidence that whilst he was in the Philippines over the Christmas break of 1988 there had been a theft from the house of a stereo system, microwave, radio cassette, Rainbow vacuum cleaner, all of which he said had been gifts to Jean Keir, and Jean Keir’s rings together with one of the two gold ingots that had been in the sock drawer.

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.

The version of the last conversation given in the accused’s record of interview of 14 April 1991 was as follows: “Q. When was the next time you heard from her after November? A. It was in 89 April/May she rang me at home and asked me who the Vietnamese girl was that I was going out with. I told her she wasn’t Vietnamese and that it was her cousin and that we were getting divorced. She started screaming and shouting down the phone so I hung up. That was the last time I spoke to her.”

I do not think that the omission to refer in his evidence to the issue of a divorce itself leads to any conclusion having regard to the fallibility of human memory and the lapse of time. However, I do have some difficulty in following why Jean Keir, who had left the accused and told him to find somebody else because Michael “needs a Mum”, would start screaming and shouting down the telephone at an indication that they would be divorced.

The accused has given evidence of attempts he has made to locate Jean Keir including, for example, speaking to Carl Nieding at Crows Nest. I do not see value in setting out those matters for they are consistent either with, as Mr Hanley submits, a genuine search for a missing person or, as Mr Crown puts, a charade designed to conceal the actual facts.

It is convenient to refer briefly to Christine Strachan’s part in the events of 9 February 1988.

Christine Strachan said that after being told of the events at Casula, she asked the accused where he thought that Jean Keir might have gone, and that he said, “maybe to Carl Nieding”, whereupon she recommended that he ring him. She said that about fifteen minutes later the accused rang to tell her that Jean Keir was with Carl Nieding and that Carl Nieding had said that he would bring her home.

About six or seven o’clock Christine Strachan rang the accused to enquire if Jean Keir was home and she did the same at nine o’clock and ten o’clock. At that time she said the phone rang for a long time and that when the accused finally answered it he was puffing and she said, “where were you”, and he said, “I was down the back feeding the dogs”. She rang again at eleven but he said, “they’re not home yet”, however, when she rang at twelve he said, “Yes, they’ve just arrived”.

She gave evidence: “A. I said, ‘Would you put Jean on the phone, I want to talk with her?’ He said, ‘No, she doesn't want to talk to you, she is very tired, she has gone to sleep’. I said, ‘All right, I'm coming over’, and he goes, ‘No, no, don't do that’. He says, ‘Because you are only going to have a quarrel, she doesn't want to talk to you, she is tired’. So I said to him, ‘Okay, you tell her I will see her tomorrow after work’.”

Christine Strachan went to work the next day. She gave evidence: “Q. Did you see Tom that morning? A. Yes, he came in around - to my recollection it was when we were having either morning tea or lunch, because he came straight to the machine. He used to sit on the edge of the machine while we were having morning tea or lunch, and I said to him, ‘what are you doing here? You should be home discussing with your wife about what is going on’. He said, ‘No, she doesn't want to talk to me. She told me to take Michael to my mother and ”I am going to go and look for a job”.”

After work Christine Strachan went to Wilkes Crescent and knocked on the door, however, there was no answer. She ultimately went home and around six o’clock the accused rang her and said: “ ‘Chris, she has gone’. And I said, ‘What do you mean, she has gone?’ I said, ‘I came home and all her stuff, a couple of suitcases, everything, everything was gone, was taken. She went, she left me’, or something to that effect. Of course I was devastated and I said, ‘Did she leave any messages, any letter?’ And he said, No’. I said, ‘Well, put the phone down and maybe she will ring you back’. And he rang me back after and he said, ‘No, she never rang or anything’.”

Christine Strachan said she was very upset and did not remember much more, but the next day at work the accused said that he was going to go Carl Nieding’s place to see if he was there. She was later told that he went there but a neighbour said that Carl Nieding had moved out.

Christine Strachan also said that the accused had told her that, “the neighbours said that they saw a red car outside, and Jeanie went away with this man with a couple of bags and put it in the car”.

Christine Strachan was uncertain as to precisely when this was said. She said that she was very upset and blank as to certain things. Christine Strachan said that she was crazy with worry but had to go to work. She did make some enquiries herself from the neighbours. She gave evidence: “Q. Did you have a conversation with Tom afterwards about what you had done with the neighbours? A. Yes. Q. What did you say to Tom? A. I said, ‘I asked the girls next door because they used to play with Jean when they were young’, and he says, ‘None of them saw anything’. Q. Is that what you said to Tom? A. Yeah, said to him, ‘none of them saw anything, no red car, nothing’.”

The evidence is not clear, however, no evidence has been given of such a thing being seen

Christine Strachan said that a week or so later the accused rang to tell her that Jean Keir had rung him and told him not to worry about anything and that she was happy. She gave evidence: “Q. What did you say? A. I said, ‘Why would she be ringing you, she should be ringing me?’ I said, ‘did she ask about Michael?’ and he said, ‘no, she never asked about Michael’. I said, ‘did you mention to her that Michael is, you know, missing her?’ And he said, ‘we didn't talk very much’, to that effect. It was like he didn't really want to get-- Q. I am not asking about that. Was anything said in that call about Jean coming back? A. No. He said - there was two or three phone calls, I don't remember which phone call he said, I said to him, ‘if she rings again will you tell her to ring me. It is unusual, she always used to ring me’. And in one of the phone calls he turned around and he said, ‘she said no, she doesn't want to ring you. She said you are a bitch and you are siding with me all the time’. Q. Is that what Tom said she said to him? A. Yes. I said, what about Michael? ‘She doesn't want anything to do with Michael any more, and she told me to remarry because Michael needs a mother’. Q. In any of those calls you have told us about did Tom say anything about Jean having said anything about coming back or never coming back? A. No, she said she was never coming back, she didn't want to come back.”

Christine Strachan said that she was told of, she thought, three or four phone calls from Jean Keir to the accused altogether. Christine Strachan that she was told of the leaving of the engagement and wedding rings and a front door key.

A couple of months later Christine Strachan went to the house at Wilkes Crescent to make sure, “I wanted to make sure, like, he was telling the truth, that everything was taken”.

The accused was present. There were a number of photographs of Michael, there were some shoes, although some of her shoes and clothing was gone, the music box which was a jewellery box was there with most of her jewellery, there were two of them. There were a few items of jewellery and stuff and two dolls in boxes at the top of the wardrobe. They have a long history. There was also a photo album together with a resume which Christine Strachan said she tore up because she was very angry with Jean Keir when the accused was telling her that Jean Keir did not want to talk to her. She had said that she went to see the rings, but it would appear that she did not actually ask for them or look in the sock drawer. The Finding of Human Bones

Although there has been a good deal of evidence dealing with this and related topics I propose to deal with it in relatively short form. I appreciate that there are destroyed official notebooks, a missing application for a search warrant and missing photographs and negatives. Nonetheless, I think that a clear picture of the essential matters emerges from the evidence presented.

In April 1988 the accused was living at 18 Wilkes Crescent with his second wife Rosalie. On 13 April 1988 there was a fire in the house and garage at that home and the dead body of Rosalie Keir was found in the house.

The police then commenced a search of the grounds including using mechanical equipment. Part of the search appeared from the videos of Television News Programmes, particularly those of Channel 10, tendered by Mr Hanley. There was searching on 13, 14 and 16 April 1988 with a search warrant obtained in respect of that last day. Nothing of relevance to a search for Jean Keir was found.

On 1 May 1991 Riley spoke to then Detective Senior Constable Seymour at Malabar. Later that day Mr Seymour obtained a search warrant at the Blacktown Local Court and a search at 18 Wilkes Crescent commenced that afternoon. It continued on 2 May 1991 and for several days thereafter.

On 2 May 1988 then Constable McKay was sent from St Marys Police Station to assist. He said he knew nothing of the search warrant and he was only there on one day. He had no other connection with the inquiry.

When he and two others from St Marys arrived at about mid morning they reported to Sergeant Wye. He gave evidence: “Q. What in essence did they say to you? A. Well, myself and three others turned up and he said, ‘who are you and what are you doing here?’. I think he knew we were coming. I said we had been asked to attend the location to help the search and he said. ‘that is fine, grab some tools and commence to dig.’ That was the only information he gave us.”

He also gave evidence: “Q. And when you arrived, did you commence executing the search as far as you were concerned or digging, how did you decide what to do and where? Was a direction given you? A. Yes I reported to the sergeant in charge and he told me to take some tools and to commence to dig. I then had a conversation with a person, a neighbour, and as a result of what I was told I decided to dig along the side of the house.”

It might be observed that Mr McKay’s evidence was consistent with the somewhat haphazard organisation upon which Mr Hanley commented in his address.

It is sufficient to say that Mr McKay went to an area to the west of the house being a space between the house and the Colourbond boundary fence about 2m wide. The space which was about 9m long closed at the southern end nearest the street by a Colourbond fence. At the northern end of the house there had been a netting fence. The area had been used as a goose pen.

Armed with a spade Mr McKay started to search. I do not think it necessary to go to the details of the photographs he mentions. He gave evidence: “A. Yes I will start at 22, if I may and I started, that tape was not there when I arrived at the premises. That should be roughly the corner of the house. I started to tap the ground or strike the ground with the tip of the spade from right to left across, walking along towards on photograph 22 where you see the tree is and I was striking the ground and it was very hard clay. And I can remember thinking it is hard, hard, hard and until I got to where you go to photograph 23, you will see an excavation area. That area as flat but that ground when I struck it with the spade was soft and that is why I commenced to dig in that area. …… Q. Perhaps I should ask you to have a look at exhibit L. The original photographs (shown) approximately, you have a look at those, you will see they are colour print photographs rather than photocopies and have better quality of detail? A. Yes. Q. You told us you were tapping along and what did you notice? A. I was striking the ground looking for soft areas of the ground because I thought, I considered to dig in the soft area and when I got to that location which is photograph 23, I struck it with the spade and it was ground that I considered it had been turned over or was soft ground so I commenced to excavate that area with a spade in my hand.”

Mr McKay dug with the spade and used his fingers to run through the dirt. He did not have a sieve. He found a number of bones one of which he thought of interest to a possible homicide investigation. I should say that it is common ground that bones other than human were found in the search.

Mr McKay later handed that bone to either Detective Murray or Detective Seymour, he thought Murray. He identified the bone as the bone now known as Bone 1.

He said that the softer area was about six feet long and about two and a half feet wide, maybe three feet. It varied in size. He gave evidence: “Q. If I can have a look at that please. What are you saying about the consistency of the ground in this area compared to the rest of the area that you had tapped with your spade? A. The density the hardness of the ground was like, almost like concrete, it was so hard. The clay was so hard. When I excavated that area I could move the material with my hand, it was loose and it was as though the earth had been taken out and put back in again. Q. That area as shown as dug are you the only one who dug there? A. I was by myself. I excavated the entire area by myself.”

Mr McKay said that the bone was about two to three feet out from the wall line of the house and about four or five feet from the short fence between the house and the boundary fence.

In cross-examination Mr McKay said that the bone “had some soil on it”. He gave evidence: “Q. The bone that you located had some soil on it? A. Yes. Q. And clay can when once it is wet and hardened can firm and attach in large clumps to items? A. Yes of course. Q. Was that particular bone one that had large clumpings of clay soil attached in the hardened fashion to it? A. If you consider the size of the bone it was encased in clay, it just had like, you know, a nugget size, if I can use that term, not all over it but just pieces that were hanging on the bone.”

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.

Inspector Szabo, as he now is, was one of the team of police searching on 2 May 1998. He said that his involvement was underneath the house on the western side underneath some piers next to a fence line. He said that he was present when police located the first bone fragment but he could not recall the police officer and said that the name McKay did not ring a bell.

On the following day he returned to the premises and was searching in the same area. He said he went under the house and then sifted the soil which he had removed. He said that during the evening Detective Fox and he located an object which appeared to be a bone. He handed it to Dr Ellis and Dr Little who were present. This object, which was a patella, later became Bone 4. He handed the bone to Detective Chief Inspector Murray who took possession of it.

Detective Szabo had difficulty identifying the precise spot where he found the bone, however, from his description it seems to me that it was about the same distance from the southern fence as the bone located by Mr McKay, but more easterly, some way under the house. Inspector Szabo said not more than a metre. I should mention that the timber wall of the house there stands on piers leaving a space of some feet between the bottom of the wall and the ground.

In cross-examination Inspector Szabo agreed that he needed some form of digging implement to break the soil up. He gave evidence: “Q. When you located the item did it appear to have large clumps of grey soil attached to it? A. No, I don't remember clay being attached to it, as you say. I remember the doctor looked at the bone and the bones that I and Jeff Fox had located and rubbing it with his hand but there was certainly not clumps surrounding it as if what you are implying. Q. There was a bit of surface dirt? A. There may have been but you could certainly see visually that it appeared to be a bone type object.”

Sergeant Fox said that he was searching with Inspector Szabo on 2 May 1991 and that he located about four what appeared to be bone fragments. He handed them straight to Dr Ellis. The only bone he was able to identify was Bone 4 which is a distinctive round bone. Inspector Szabo had said that he found that, although he had also noted that he was working with Fox and I do not think anything turns on that distinction. Fox had difficulty with recollection of exact locations, however, from his description it seems to me that he was talking of much the same area as Mr McKay. He could not say how deep the bones were when he located them. In cross-examination he gave evidence: “Q. Do you recall any hole under the house that you and Szabo dug? A. Well, the excavation as referred to in, well, shown in photograph 23 is partially under the house so, yes.’

He said that he was a junior member of the team and would have been digging at somebody’s direction, but he could not recall if he was digging there because he had been told by Constable McKay that he had found a bone in that hole or area.

Detective Chief Inspector Murray gave evidence that he was present on the afternoon of 2 May 1991 when he saw Constable McKay locate a bone fragment. He gave evidence: “Q. And do you recall where it was, in terms of the location, that you saw Constable McKay locate this bone fragment? A. Essentially there was a hole that was being dug in an area close to the house on the western side and that bone was located within that area by Constable McKay.:

I should perhaps say that Mr McKay thought that Murray and Seymour arrived somewhat later but I do not think anything turns on that.

It is clear that Mr McKay gave Detective Chief Inspector Murray the piece of bone as he said he did.

At about 8pm on 3 May the Chief Inspector said he saw Detectives Fox and Szabo hand to Dr Ellis, who with Dr Little was oversighting a search at that stage, a number of bone fragments which he thought had been sifted from dirt on the same side of the house.

The Chief Inspector took custody of those bones from Dr Ellis.

On 4 May 1991 he said that he moved a wheelbarrow of excavated dirt from the same side of the house to the yard and when sifting through it located a bone fragment of which he took custody. He said that his recollection was that the soil he sifted came from the same hole, the same vicinity in the immediate area of that hole.

On 6 May 1991 Detective Chief Inspector Murray took the bone fragments located at 18 Wilkes Crescent on 3 and 4 of May to Westmead Hospital and handed them to Dr Ellis.

The Chief Inspector agreed during cross-examination that he was not an officer who had been designated a specific note taker during the course of the search, but said that the job in fact was inherited by himself through necessity.

He said in cross-examination that he could not remember any instructions given to dig at any particular part of the property.

Detective Chief Inspector Murray said that he could only substantially rely upon the matters that were set out in his statement and that he did not have an independent recollection of the condition of the area between the house line and the fence on the western side at the time.

Dr Peter Ellis is a forensic pathologist and Director of Forensic Medicine at the Institute of Clinical Pathology and Medical Research at Westmead Hospital. He said that in early May he attended a search at 18 Wilkes Crescent Tregear. He thought he was only there for one day but said he was shown a number of bones which he identified as human bones and indicated that he thought it would be appropriate to continue excavating. He received some items on 6, 7 and 9 May and also on 17 May he received some bones or apparent bones from Dr Oettle.

Of the items delivered directly to him Dr Ellis identified six bones as being of human origin. The doctor gave evidence: “A. Bone 1 was a finger bone from the right hand and this was the bone that had originally been examined by Dr Oettle. Bone No. 2 was the proximal phalanx of the right big toe which, in simple parlance, the base of the right big toe. Bone 3 was probably the proximal phalanx of the right thumb or base of the right thumb. Bone 4 was the left patella or knee cap. Bone 5 was the five capitate bone, which is one of the bones in the left wrist. Bone 6 was the third metacarpal, which is a hand bone at the bas of the middle finger of the left hand. Bone 7 was the proximal phalanx of one of the right fingers and is the base of one of the right, either index, middle ring or little finger. It is impossible to distinguish.”

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 Crescent in May 1991. It has not been argued otherwise.

The doctor gave evidence: “Q. You also say that "they have the appearance which is consistent with them having been buried in the ground for a similar length of time"? A. Yes. Q. What do you mean by that? A. The surface appearance, the degree of wear or the fact that there wasn't any wear, the colour, the extent of dirt or lack of dirt was virtually identical for all of the bones, which would suggest they had probably been in the ground, not exactly the same time, but certainly a similar time. There wasn't one bone that appeared quite different from the others that might have been in the ground or exposed for any length of time. Q. You go on to say that they are, this is at the time of your examination, "They are not very dry suggesting burial within a small number of years or months"? A. Yes. Q. That do you mean by that? A. Bones that have been buried for 10, 20 years or more, of course they become very dried out and they become very white, chalky. These bones did not look like that. So it is by no means an accurate assessment. It is not suggested that I know how long they were buried for. I do not know how long they were there for. But it suggests to me they weren't there for 20 or 30 years. They were there less than that.”

He also gave evidence: “Q. You go on to say, "As no duplicate bones are received, the collection is consistent with but not definitely originating in one person"? A. Yes.”

He gave evidence: “Q. In paragraph 10 you say, from the size of the finger bones you made a rough estimate that the person would be of small to average stature and was probably an adult. Is that right? A. Yes. I guess it is a matter of rough assessment on the basis of experience. On the fact I am 6 foot tall and I can tell how big the base of my finger is, for example, these bones are smaller than mine and therefore they are likely to come from an individual who would, at least in terms of the hand, have smaller hands than I do. It is no more accurate than that, and in terms of coming from an adult, they certainly show maturity. They don't look as though they were bones that were just developing. Q. And you also say that it is not possible to ascertain the section or the gender of the person? A. Not from my examination of the external appearance of them, no.”

In cross-examination Dr Ellis said that before going to Wilkes Crescent he had been informed of the bone that had been taken to Dr Oettle which the doctor had told him he thought was a human finger bone. Dr Ellis gave evidence: “Q. Are bones capable of absorbing, for example, minerals that might be in the soil? A. I can't answer that. I don't know that. Q. Are you aware of any tests that can be carried out by maybe other experts in that field who could identify whether a bone has been in a particular type of soil for some time or not? A. I would imagine there would be soil scientists that could identify soil from the surface of the bone, I am sure. It is something I am not familiar with and it's not part of my normal investigation or expertise.”

Dr Ellis was asked if he had made any calculations as to the probable size of the person and he said that there some methods for determining the height of an individual from the length of long bones but to his knowledge there is no accurate way of doing it from such small bones. He did not think he could give an estimate or range as to the height of the person from the bones. He said he believed the person would be less than six feet tall and that he believed that it belonged to a person shorter than him. He gave evidence: “Q. That would vary with a person with short hands and short feet in comparison to their height? A. Yes, that's right.” …… Q. Are you aware of any experts who can give or provide that type of opinion based on examination of bones of this size? A. There is some literature on calculating height from, as I said, the length of bones, but the bones that are used are almost invariably what I call long bones which is the thigh bone or the bones of the lower legs or possibly the bones of arms; these are long bones that vary in length of the height of the individual. They form part of the individual's height, particularly the legs. A tall person can have small hands and therefore, to my knowledge, there is no reliable data on calculating the height of an individual from the length of bones that are small and as isolated as those of the hand. In fact, if there were to be any literature, I would have some doubt about its value.”

Dr Thomas Oettle is a forensic pathologist. On 3 May 1991 he received from a police officer a plastic bag containing fragments of bony material one of which he considered was a proximal phalanx of probably the third finger of an adult human hand. He gave evidence that the phalanx appeared to be of an age consistent with three years from the time of death. On 17 May he handed the specimen to Dr Ellis.

Before going to the evidence of Dr Donlon it is convenient to mention that Bones 1 to 6 were sent for DNA analysis. I will deal with that topic later. The Bone 7 was retained less some mishap befall the other six.

Dr Donlon is a lecturer in the department of Anatomy and Histology at the University of Sydney and in 1997 a Consultant Anthropologist to the New South Wales Institute of Forensic Medicine. Her PhD is in Physical Anthropology which is the study of the variations in the human skeleton.

Dr Donlon examined Bones 1 to 6. She said that it was not possible to say whether the bones belonged to one or more than one individual, however, the lack of a duplication in bones is consistent with one individual. She also said that the size of the bones was consistent with them coming from one individual. She considered that the bones probably belonged to an individual of more than sixteen years of age.

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.

She had done calculations on bone number 6 and concluded that on the assumption that the bones were those of a female that the stature, using that particular formula would be in the range 155.6 to 168.8 centimetres. If it were a male the range would be 161.8 to 173.5 centimetres. The top of the range for a female is five foot seven and a half inches.

Christine Strachan said that Jean Keir’s height was five foot six inches to five foot seven inches. Fiona Chalmers estimated Jean Keir’s height as “five foot six inches or five foot five inches”. The Person of Interest Report completed by Constable Higgins, when Heather Strachan reported Jean Keir records a height no doubt supplied by Heather or perhaps Clifford Strachan, of 165 cms. These figures all fall within the range.

The accused said that Jean Keir was taller than those figures. He said that he had always thought of himself as six foot two inches and he thought Jean Keir was about four inches shorter than he. A prison identification photograph, a copy of which was tendered by Mr Hanley, appears to show the accused at about 187 centimetres which is six foot one inch. To my eye the photographs would suggest that the difference in height is somewhat more than four inches though perhaps not very much.

I think Jean Keir’s height fell within the range or at least very close to it.

In any event I think the point is deprived of any real impact by the answers of Dr Donlon in cross examination as follows: “Q. In relation to the mention you made of stature, your report, do I take it, when applying the formula that you have referred to in the footnote to your report, that takes into account the error relevant to metacarpal length in attempting to determine the stature? A. Yes, I have taken that to plus or minus one standard deviation. Q. And is that margin of error in using those bones to determine stature reflected in the height you give in your conclusion? A. Yes. Q. Do I take it from that that you would exclude a female of Caucasoid origin who was 175 metres high? A. Not necessarily, because one standard deviation will actually take into account 67, approximately 67 per cent of the population. If we wanted to include 95 per cent of the population we would use two standard deviations. Q. So that would increase the range you have given there? A. Yes, very much so. Q. I take it from your answer you have given in your calculations, or taken into account, one standard deviation? A. Yes.”

Dr Donlon gave evidence: “Q. Dealing with the time of death, you note there from the information you had been given that these bones had been cleaned prior to DNA analysis and, therefore, it was not possible for you to estimate the time since death on the basis of the condition of the bone? A. Yes. Q. Had they not been cleaned would that have been possible? A. Well, it may have given me a better idea. For example, if the bones had been very greasy then retained a lot of grease from the natural grease, then that may have made me suspect that the bones were fairly recent.”

Dr Donlon gave evidence: “Q. In relation to the skeletonisation, when a human is buried, the body is buried in the ground, depending upon the actual environment of the ground itself, how soon can skeletonisation occur, or could it occur? A. It's a difficult question to answer because there has been no research done on this in Australia. It's very much dependent on environmental conditions. But from my experience and what I have seen over the years I have been looking at skeletal remains, I actually don't - first of all I should say I don't know the depth to which these bones were buried, but a body can be skeletonised if it is on the surface within a matter of three to six months and if buried, then depending on the depth, the time period will increase. But certainly, you know, if a body is buried, for example, to the depth of six foot would be looking at perhaps something like seven years. So can vary between three months on the surface to seven years at six foot.”

In cross-examination she said: “Q. If there was a bone that had been retained in the condition it had been located would you, if on inspection, been capable of possibly estimating the length or time it had been buried? A. In a very broad sense. Q. When you say broad sense it would depend upon what factors? A. It would depend upon, for example, how greasy the bone was. Q. That is something you could examine by looking at the bone or subjecting it to some tests? A. Yes. Q. Any other factors? A. That's probably the main one. Q. After you submitted your report, I take it, you weren't requested by either the Coroner or any police officers to inspect a bone that had been retained in its origin condition from the time it was located? A. No.”

No explanation was given as to why that was not done. However, the bone was a tendered exhibit and it would have been open to Mr Hanley, or Mr Crown for that matter, to have asked Dr Donlon to examine it and express an opinion. Perhaps that would have involved the availability of instruments, however that was not explored. In any event it would seem from Dr Donlon’s answers that it is unlikely that anything very helpful to either case would have emerged. That may well be why neither counsel thought the matter warranted pursuing.

There was a third search of 18 Wilkes Crescent on 2 and 3 June 1992. Mr Merkel, then a Detective Sergeant attached to the Homicide Squad was in charge of the search. It was an extensive one carried out with the assistance of a number of police and also army engineers. A video film was made of the search by the police video unit and I have viewed that. The search involved a good deal of dismantling of multi-layered flooring, amongst other things.

A short time before the search Morian Ward the Manager of a fabric company had made a statement to the police. In cross-examination he said that after Christine Strachan became aware of what he had seen she asked him if he minded her telling the police and he was thereafter contacted by the police.

Morian Ward’s evidence was given by way of the tender of the transcript of his evidence at the second trial which was itself a reading of the transcript of his evidence at the first trial.

Although not of significance in relation to Morian Ward’s evidence, having regard to the outcome of the search, it is convenient to say at this point that where evidence has been given by transcript, as it has in a number of instances, I have borne in mind that I have not had the advantage of seeing the witness in question, and that they are not available for further examination or cross-examination. It is also convenient to say that in respect of witnesses whose evidence has been given by the tender of a statement I have borne in mind that I have not had the advantage of seeing the witness and also that the witness has not been subject to cross-examination.

Morian Ward’s business supplied fabrics to G & T Upholstery. Some time around the middle of 1990 Morian Ward was asked by the accused to bring some samples to his house. He did so without contacting the accused before turning up. He was invited in and over a cup of coffee displayed the samples. The accused wished him to identify fabric on a chair in a van parked in the backyard and to get there they passed through the kitchen area. Morian Ward said that as he went out through the kitchen there was a hole in the floor about three feet square. There was a pile of dirt alongside it, about the amount that would fill a wheelbarrow. He asked about it and said that the accused told him about a bad smell and said there must have been a dead animal and that he was digging it up to get rid of the bad smell.

Morian Ward attended on the search and indicated to the police where he said the hole was.

The search which involved peeling, cutting and chipping back layers of carpet, parquet flooring, ceramic flooring, linoleum and floorboards made it clear that there was no hole answering the description advanced by Morian Ward, or indeed, at all.

The extensive search did not reveal anything of assistance to the Crown case. On the other hand, it was not put to me that anything emerging from the search or its circumstances was of more general assistance to the defence and I need not consider the third search further.

I have already referred shortly to the first search, that is, in April 1991.

In cross-examination Mr Hanley put to Riley: “Q. It is not the situation, is it, that you saw the excavation taking place on the television and you organised for those bones to be placed there? A. Mate, you said that to me last time, you have to be kidding.”

It was not Mr Hanley who had asked the question before, however, nothing turns on that. Riley agreed that he had criminal associates, though he said he did not think that the numerous visitors in April had criminal records.

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.

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 that 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.

I should make the point that even a relatively thorough search might well not have found the small bones ultimately located, especially as there were other types of bones and debris in the area.

I should deal with an issue which arose almost at the end of the hearing relating to a concrete slab.

On the western wall of the house at 18 Wilkes Crescent there is the tank of an oil heater which is, generally speaking, above the area where the bones were found. The heater itself is in the room, referred to as the lounge room, which is on the other side of that wall.

The photographs of the area to the west of the house allow the tank and the exhaust pipe for the heater to be seen. The tank has four lugs for the attachment of supporting legs but no legs attached. These photographs were taken by then Detective Senior Constable Hamilton.

He said that he took photograph 22 on 3 May 1991. He knew when he arrived that a bone, believed to be human, had been found. Photograph 23 was taken later. He could not say precisely when as his official notebook had been destroyed.

Mr Crown showed photograph 23 to the accused in the course of asking him questions as to the hole which had been dug at least in part by Mr McKay. The accused said: “No, I never dug any holes in that area. Simple as that. Could I say one thing about that photo?”

Mr Crown having indicated at my invitation that he did not wish an answer to that question I informed the accused that Mr Hanley would have a chance later on, if he thought appropriate, to ask further questions.

Ultimately after some questions on the topic in what was referred to as re-examination, leave was granted to Mr Hanley to lead further evidence in chief on the matter on the following day. That was done and the Crown called evidence in reply on the issue.

In support of the application for leave Mr Hanley said that he had not been aware of any previous questioning in this regard in the other trials. I will come to accused’s evidence on this point later.

The accused said that below the tank there were four metal legs which sat on a block of concrete about four foot long by about two foot wide which was flush with the edge of a pier shown on the photograph, being the middle pier. He gave evidence: “Q. What year or years are we talking about when that concrete was there? A. That concrete was actually laid by Jean’s grandfather when they were living in the house because they had that heater installed, and that block would have been put in around 76 or 78. Q. Was this there when you purchased the house? A. It was in there when we moved in.”

He said that the slab was there in 1991 and when asked who removed it: “A. The police removed it. That was always there because we were using the oil heater every winter and that concrete block actually extended possibly 2 foot either side of that pier.”

The accused said that the oil heater in the lounge room was used every winter and that it was in working condition in 1991.

The accused gave evidence in answer to questions asked by Mr Hanley: “Q. When do you recall it being raised before? A. I spoke to Peter Zahra about it. Q. That was in the first trial? A. Yeah. Q. Do you recall whether Mr Zahra asked any questions about any of that? A. I’m not 100 per cent sure …. “ Mr Zahra appeared for the accused in the first trial.

The accused gave evidence: “Q. When you saw that photograph did you realise something? A. Yeah, well, the concrete block that it was standing on was missing and also the legs that were attached to the oil tank, they're missing as well. Q. Were you shown this photograph before in other proceedings? A. I've been shown a stack of photographs altogether but I never really took much notice of the photos because there was probably about 100 photos in total.”

He said that the tank contained approximately 120 litres of oil for the oil heater and that when he and Jean Keir purchased the property the oil heater, the container and the support system was in place. He gave evidence: “Q. And those legs, I think you said were at an angle going on to a concrete block? A. Yes. They actually sat on the concrete block. Q. And they supported the block? A. They supported the container and the only reason the container is actually bolted to the house is so the whole thing doesn't fall over so it's got two sorts of supports.”

He said that during 1990 the house was rented to Mrs Smith for a time.

He gave evidence: “Q. When you returned to take up your residency of 18 Wilkes Crescent in 1990 do you recall as to whether you used the oil heater? A. We probably would have used it once or twice when we moved back in it was still in working order. It was still in working condition. No problem.”

The accused said that the slab was approximately four foot by two foot or three foot six by two foot, that he had not removed it or the legs before the police came to the premises in April 1991. He also suggested that you could see a marking on the middle pier where the slab had been in contact with it.

The accused identified in photographs tendered exhibit 19 portions of what he said would be concrete from the slab. In respect of photograph No 1 of exhibit 19 he gave evidence: “Q. And if you goo further down right into the corner of the particular photograph is there something else there? A. That looks like a larger piece of concrete. Q. Do you recognise that? A. It would be part of the slab.”

The accused also identified some concrete in a video tape tendered which became exhibit 20 and he gave this evidence: “HANLEY: Q. Do you recognise any concrete shown in that particular part of the video which appears to be outside the garage? A. That looks like lumps of concrete out of the soak away which was behind the garage but the light coloured pieces of concrete they're more likely to have come from the concrete slab because the concrete slab was above ground whereas the other pieces of concrete were below ground so you got a different colour variation. Q. You're talking about pieces? A. Towards the bottom of the screen.”

To Mr Hanley the accused gave the following evidence: “HANLEY: Q. In the matter which brings you to trial you have given evidence at two previous trials? A. Yes. Q. And have you given evidence about the oil heater and its footings before? A. No, it never came out. Q. Was there any reason why you haven't raised it? A. Well, I raised the part about the concrete block and the legs and that with Peter Zahra and with everything that was going on, sort of thinking about everything that was happening around and other things I just forgot all about it and when I saw the photo yesterday it just reminded me about the concrete block and the legs.”

In cross-examination the accused confirmed that the matter had not been brought up in either of the previous trials although he did say that he had raised it with Peter Zahra, his counsel at the first trial. He agreed that he had opportunities to see the photographs then gave evidence: “Q. Do you tell this Court that that issue of the slab has only occurred to you when you were looking at photograph when you were being cross-examined in this trial? A. No. I spoke to Peter Zahra about it before the first trial, or during the first trial and then with everything that was going on it was, just got sidetracked and I forgot all about it and when I was looking at those photos yesterday it reminded me of this concrete slab. I thought to myself, I looked at the photo and I thought to myself, ‘Well, this concrete slab and the legs are missing’.”

He denied dismantling the legs and said that they were there at the time he was arrested, which was on 13 April 1991, but by the time he got the keys back the legs and the slab were gone. The accused was released on bail on 1 May 1991.

He said that the slab was about four inches thick. When pressed in cross-examination the accused said that they would probably have used the heater once or twice when “we moved back in 1991 but I can’t swear to it but it was in working order. It was still there. Everything was fine”.

He denied a suggestion that he had ceased to use the oil heater before then.

The accused agreed that they had a portable column heater for the bedrooms which could be wheeled in and out. He said he did not remember if Christine Strachan had bought it but that “it’s more than likely she bought it after Michael was born because it was cold in the bedrooms”. The accused gave evidence: “Q. I am suggesting to you, Mr Keir, that you and Jean ceased to use the oil heater not long after Michael was born, or at the time that Michael was born in that winter that followed because oil was too expensive? A. No, we used it all the time.”

He said that the column heater was never used in the lounge room but the oil heater was used there. He denied that he had ever removed the slab and the legs and said that they were there at the time he was arrested. He denied the suggestion that he had removed the slab having put it in place himself over the body of Jean Keir.

In reply the Crown called a number of witnesses dealing with the searches, some work done in relation to the supports of the tank and some evidence as to use of the heater.

Inspector Szabo who was at the premises on 1, 2 and 3 May 1991 said that he did not see any such slab on the western side of the house nor did he see an outline of a four foot or three foot slab underneath the tank, he said “To my recollection, that area, when I saw it, seemed to be untouched.”

He gave evidence that he had used a kanga hammer with a hand shovel-like attachment rather than a pick elsewhere on the premises, but that he had not himself used such a device on a concrete slab nor had he seen anybody else do so. He did not see anywhere in the grounds what appeared to have been a support structure for the tank. In cross-examination he was taken to photograph 19 but said he did not know where the material indicated as concrete which appeared to be piled on the top of the bottom right hand corner of the photograph had come from. He did not believe he had put it there.

In re-examination the Inspector said that he could not tell whether the material was cement, sandstone or concrete.

Mr Seymour had been present during the search in April on a couple of days, he said the 13, 14 and 16 April. He said he was present on the 16th when excavation was undertaken by a backhoe driven by a Mr De Beus. He said on 13, 14 and 16 April he did not walk down the western side himself, he did not have any recollection of observing the presence or otherwise of a concrete slab. The first time he walked down the western side himself was on 1 May. He gave evidence: “Q. And on that occasion can I ask you whether you have any recollection of seeing a slab of approximately 4 foot by 2 foot by four inches thick, something like that, down the western side, approximately, under an oil tank? A. No. Q. Do you remember seeing any steel or other support framework under the tank going down into the ground? A. No. I know the tank was there. I don't recall any steel formwork and certainly not a slab.”

He did not see a steel set of support legs in the vicinity which might have been removed from there, and he did not see the remains of a broken up four inches thick concrete slab.

He said that when he went down the western side on the second search warrant at the start of the execution of the warrant, he did not see anything which looked like an outline on the ground where a slab or rectangular surface may have been removed.

He said that the kanga hammer had a shovel-like attachment but did not have a pick. There were no instruments that he recalled for breaking up concrete slabs although the Rescue Squad might have had a crowbar. In cross-examination he said he was not aware of any digging being done on 13 April other than behind the garage. He said to his knowledge there was no digging done on 14th or 15th. Mr Seymour gave the following evidence: “Q. Did the members of the Rescue Quad assist in the excavation or searching around the house? A. No, that was done by the excavator. Q. What did the Rescue Squad do in relation to the search or excavation of the property? A. On the 16th April? Q. On any date? A. On 16th April, as I said, they started to find where the water pipe was first and a decision was made to bring the excavator in so I don't think they played any more part in the excavation on that day. In the second search warrant in May they went under the house with the scientific officer, Detective Hamilton, and they assisted in digging at various locations under the house, from my recollection. Q. Were any statements taken from any member of the Rescue Quad as to what acts they carried out during the course of the search? A. No, I don't think so.”

Inspector Lyons attended 18 Wilkes Crescent on 13, 15 and 16 April 1991. He first went down the west side of the house on 16 April during the execution of the first search warrant. He gave evidence: “Q. And in relation to the western side, can you tell us to the best of your memory what you did? A. Yes, I climbed over the goose pen which was located on the north western side of the house into the run area which was the area on the western side of the house, I saw an area on the ground near the goose pen that had a divot in the ground and I used a shovel to commence digging there.”

He dug a small hole which he did not pursue because the earth had been compacted. He marked the position on the plan as to where he dug the hole and it is sufficient to say that it was well removed from the area in which the bones were found. He gave evidence: “Q. Are you able to say whether you noticed anything by way of a concrete slab of the rough dimensions of four foot by two foot by four inches thick at the area of the goose pen? A. No, I don't recall a slab at all. Q. Do you recall seeing a remnant, or the pieces of what may have been a slab in that area? A. No, sir.”

Shown photograph 23 the Inspector said that he did not see a slab directly under the oil tank nor did he remember seeing any metallic metal, or wood for that matter, support structure from the tank. He did not notice what might have been a support frame from the tank in the backyard. Nor did he see either on the first or second search the outline of a place where a rectangular surface or slab may have been in that area. He gave evidence: “Q. To your knowledge did anyone connected with the police investigation at either the first or subsequent searches remove or breakup any slab in that area? A. No, sir.”

Shown exhibit 19 he said he did not see any slab or the remains of any slab of that thickness approximately. He did not identify the particular items. He did not on the second search go down the western side. He did not see police using a kanga hammer or jackhammer in any of the searches to break up the slab. He was not aware of any such activity.

In cross-examination the Inspector agreed that on the 13th he did not conduct a search of the yard although he said he believed some homicide investigators were searching behind the garage. There were no members of the Rescue Squad there on that day. Although he said he could not be 100 percent sure he thought there had been slabs of concrete in the hole behind the garage. The Inspector agreed that there were no photographs of the western side of the house prior to the dismantling of the goose pen. He gave evidence in cross-examination: “Q. When you went up the western side of the property were you looking for anything in particular? A. No, sir. I was looking at the ground to see whether it was apparent it had been dug and the area I chose to dig looked like it had some sort of divot in the ground. It wasn't completely flat, it was undulating to a certain extent. That's why I chose to dug there. That's the only reason I was down there. Q. When you first went up the western side of the property there was a tree, wasn't there, near the oil tank which is attached to the house? A. There was two fruit trees up that end of the house. Q. And they covered that area to some extent with their foliage, didn't they? A. Yeah, that's true. Q. Did you go as far as the southern end of the western side where the fence is beyond the trees? A. Beyond the trees, no. Q. You didn't search up there? A. I looked up there but I didn't climb underneath the trees or anything like that.”

Mr McKay described the ground on the western side as follows: “A. ….The ground was just earth. It was fairly smooth - not smooth like smooth like a table but it was just flat with no ridges or anything. It was just looked like a normal piece of earth that you would find at the side of a house. There was no track on it or markings or anything. It was just plain dry earth. Q. At that stage was there any goose pen there, or if there was one had it been removed? A. No. I had been informed that there had been. Well, I was told a chicken pen but it was gone. It was only the trees up the end. Q. And what was the surface of that area in terms of the presence of grass or ground cover? A. Okay. The bulk of the area would have been dried clay type earth. There may have been a few odd pieces of grass, little tiny tufts of grass, but other than that it was just brown stretch of ground that was inconspicuous.”

He had a recollection of a square box on the high side of the house which he thought was white. He gave the following evidence: “Q. Do you have any recollection underneath that tank or the area underneath it on the ground, seeing anything which resembled a concrete slab? A. At no time was there a concrete slab or remnants of a concrete slab. All the earth was completely exposed and bare and there was no structure from the tank to the ground because I kept ducking under the trees and everything and I would remember other obstructions. There was the tank and nothing underneath it, just bare earth.”

He said there was no concrete there and he did not see the remnants of a slab in terms of broken pieces or fragments. He said, “I found no concrete at all. The only time I ever even touched concrete was at the bottom of a brick pillar where there was concrete at the bottom of each pillar where they built the foundations”. He said he did not see any outline on the ground which was consistent with a slab having been there. He did not recall seeing any metallic or other material framework consistent with supporting a tank. When asked whether he saw any slab over the area before he dug that hole, his answer was, “No sir, that area was completely barren earth”.

He gave evidence: “Q. When you saw this area down the western side before you started to dig did you see anything about the surface which was consistent with the area having been disturbed in the last few weeks? A. No. It looked completely untouched, to my eyes.”

He did at one stage use a kanga hammer with a shovel head but did not see anyone breaking up any slab on the western side area. He said: “No not on the western side, there was no one working there at all”. He agreed in cross-examination that he was not aware of any excavations that took place on 13 April, he agreed there may have been some tufts of grass and possibly weeds, and that the area that he dug in was under a tree.

Mr McKay gave evidence in cross-examination: “Q. And the reason you dug there is because the soil seemed looser from other places you looked at on the western side? A. That’s correct.”

Mr Fox said that the first day he attended at 18 Wilkes Crescent was 1 May and that he returned on 2 May and that on 3 May he found the bones of which he has previously given evidence.

Mr Fox said that whilst he would have been searching on the other days the only day of which he has a clear recollection of any specific area and duties was 3 May. He gave evidence: “Q. I want to ask you whether you have any memory down the western side at any time of seeing a concrete slab down the western side of approximately 4 foot by 2 foot? A. At no time do I recollect seeing a slab at all down that side. Q. Did you see what may have been the remnants of a slab down that western side or fragments or pieces of a slab? A. No, not at all, no. Q. Are you aware of anyone having, as part of the investigative team which you were a part, broken up a slab down that western side before you commenced your duties? A. I have no knowledge of anyone undertaking such a task.”

He did not see any metallic or other structure such as might have supported an oil tank on the western side.

He was shown exhibit 19 and his attention drawn to some pieces of concrete, cement or sandstone and he was asked if he knew where they had come from, and he said no.

Mr Fox did not recall some shading which is shown in exhibit 19 but he pointed out that it was an evening when he was working there.

Detective Chief Inspector Murray said he had been present at 18 Wilkes Crescent on 1 May, 2 May and then again thereafter. He had not been there in April.

He could not remember exactly what he had been doing. He said that he did not see anything down the western side which looked like a concrete slab nor did he see anybody breaking up a slab down that side on either 1 or 2 May. He did not see anything which looked like the outline of a slab down the western side nor did he see any remnants or broken up pieces of what appeared to be a slab. He thought the kanga hammer being used had a scoop or shovel-type attachment. He said of the ground on the western side that his recollection was, nearly fourteen years on, “perhaps I would describe it as an unremarkable type of situation but certainly nothing that drew my attention in terms of the concrete block etc., no”.

The Chief Inspector had no recollection as to the time line relating to some shading which appeared to have been erected in the photograph exhibit 19.

Mrs Denise Smith confirmed her previous evidence that she had been renting 18 Wilkes Crescent for a period of about six months roughly in the first half of 1990. She said that she did not go down the western side of the house. When taken to a plan and asked whether she went down that side she said, “No very rarely – very rarely, if I did but not on a regular basis”.

She gave evidence: “Q. On the few occasions that you did do you remember seeing anything that looked like a concrete slab. A. Not to my memory, no.”

Denise Smith said in cross-examination that there was an oil heater in the lounge room but she never used it.

Clifford Strachan gave evidence on this issue. Some transcript from an earlier trial had been tendered previously as he was then not well enough to give evidence.

Clifford Strachan is the husband of Christine Strachan and Jean Keir was brought up as his daughter.

Clifford Strachan said that his father-in-law and his wife, that is, the parents of Christine Strachan, had owned 18 Wilkes Crescent Tregear. In 1978 his father-in-law died. His mother-in-law continued to live in the house until it was sold to the accused and Jean Keir in 1984.

Clifford Strachan gave evidence that he had from time to time helped his in-laws with work around their property. On one occasion he had done some work in respect to the oil heater on the western side of the house, that is the oil heater tank. He gave evidence that he and his father-in-law stabilised the tank using two two foot by one foot concrete pavers which they put under the four legs or supports of the tank packing them up with dirt. He said that the ground had sunk under the legs.

He said that there was not at any time to his knowledge a poured concrete slab about approximately four feet by two feet wide by four inches thick under the legs.

He gave evidence: “Q. And you just tell us again what you did to stabilise? A. Well, there was pavers about two foot long, maybe a foot wide and they were pushed under the legs and then hacked up with dirt and then the legs sit, there was one leg that had a bit of a wobble, as I say, and we tried to stop it wobbling around when the kids ran around so we thought it might pull off the house as they grabbed hold of it or something and because it was fixed to the house as well but with fibro you don't like to tighten it up too much.” And also: “Q. Before you did this you said it needed to be stabilised, what was it that was unstable? A. It was the screws that were under the building, like, it went through the wall and the heaters were screwed on to the, the timber battens. …… Q. The wobble resulted because of the manner in which the tank was supported on the ground, is that correct? A. Yeah. It was in the tank itself where it was screwed on to the, what's the, supported it more to stop it from wobbling down below because we didn't want to tighten up the screws too much because going into the timber of the fibro we didn't how tough that timber was.

He agreed the tank when full would be pretty heavy and gave evidence: “Q. And it needed to be supported to the ground as well, didn't it? It needed to support that would run from-- A. It's, we would have-- Q. Sorry? A. You would think that, yes. It depends on the people who put it in, how they bolted it to the framework.”

Mr Hanley put it to Clifford Strachan that if you had a single slab of cement supporting all of the four legs that would give more stability. To that Clifford Strachan replied: “It probably would, yeah, we used what we had at the house.” He then gave evidence: “Q. You're unaware as to whether your father-in-law may have put in a single slab? A. Yeah. I, I couldn't swear to it whether he did or not.”

He gave evidence that after the accused and Jean Keir bought the house he had assisted the accused in building the verandah at the back of the house including laying the verandah slab, and in laying some tiles in the kitchen floor area and knocking out a kitchen wall.

Maria Boros, being the sister of Christine Strachan, gave evidence that after her father died in 1978 she used to order the oil for filling up the tank at 18 Wilkes Crescent whilst her mother was still in the house. She used also to assist in refilling the tank. She remembered that the tank had four legs but did not think there was anything on the “floor”. She said “I don’t remember ever seeing anything”. She said that the legs went straight down. She gave evidence: “Q. And do you have any memory of any concrete slab under the tank? A. No. No, there wasn’t. Q. What about a slab about 4 feet long and 2 feet wide? A. I know what a slab looks like and there was no slab there.”

Maria Boros gave evidence that the help she gave to her mother included mowing and whipper-snipping the lawns which included the little piece of land to the west of the house. All this ceased when the house was sold to the accused and Jean Keir. Maria Boros said she could not remember any support for the legs, but said she was quite sure there was not a cement slab there. She said there was not much grass on the western side but she liked to keep it down although it was “more like dirt in there”. She said that she just did not do any lawn cutting underneath the trees at the southern end of the area.

Christine Strachan gave evidence that the house had an oil heater which she said “they” continued to use while “they” were there. I think that can be taken to include her mother continuing to use it after her father died.

Christine Strachan said that she bought the Keirs an electrically operated oil column portable heater after Jean Keir told her that it was too expensive to buy oil for the lounge room heater. She said that she bought it just after Michael was born. The portable heater she said, was used in the living room and rolled into the bedroom when the baby was down.

Christine Strachan gave evidence that on one occasion Rosalie Keir took her down the western side of the house to show her a baby goose. She was asked if she saw a concrete slab four foot by two foot and she said “Not that I can recall it was just grass and earth.”

In cross-examination it was put to Christine Strachan: “Q. I want to suggest to you that Mrs Strachan you purchased the heater to put in Michael’s bedroom at night A. Of course, for Michael yes but also in the living room they used it, used it the living room when they were watching tele. Q. The purpose of purchasing it was to keep Michael’s bedroom warm at night in winter wasn’t it? A. As well yes.”

She gave the following evidence: “Q. I want to suggest that the oil heater was used during the time that Tom and Jean lived there? A. They lived. Yes, they did it for, well, until right after, just before Michael was born.”

Mr Hanley pointed out in a question that there was no winter between the purchase of the house in October 1984 by the accused and Jean Keir and Michael’s birth on 31 December 1984. She gave evidence: “Q. And did you say that you were aware that they were using the oil heater before Michael was born, is that correct? A. I don’t remember them using the oil heater. Q. Did you say that or not, that you remembered Jean and Tom using the oil heater prior to Michael being born? A. Yeah, I think I said, I said that, yes. Q. I suggest the reason that you say that was because you knew that they were using it, the oil heater, I n the winter of 1985? That’s correct, isn’t it? A. Yeah, probably.”

Mr Hanley put to Christine Strachan that the heater was used by the accused and Jean Keir during the time they lived there. Her answer was “As far as I can remember they used it for a while but after that it was not in use. I’m telling you this because I was there.”

She then said that she was not sure whether she purchased the heater in 1985 or 1986 but she said that she knew that she bought it when Michael was a baby. Mr Hanley later submitted that Christine Strachan had said that she bought the heater before Michael’s birth or shortly afterwards and then was obliged to change her story when she appreciated that, having said that the accused and Jean Keir used the heater before Michael’s birth, that could not be right as it had at that time been summer. I do not think that the evidence as a whole carries a connotation of deliberate deception. I think it probably demonstrates that Christine Strachan did not remember precisely when she bought the heater.

I think it 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.

Clifford Strachan gave evidence of assisting his father-in-law to put two pavers under the legs and I see no reason not to accept that evidence. Mr Hanley established that he did not know whether his father-in-law subsequently put a slab there. However Maria Boros, after her father’s death, took over the filling of the tank when the hose was passed over the fence from the filling truck and the ordering of the oil and she also mowed the area. She says that she knows what a slab is and there was not one there. I do not think the fact that she may not remember noticing the pavers, which may well have sunk into the earth, casts any real doubt on her evidence.

Inspector Lyons said there was not a slab in April and Mr McKay says that when he dug the hole in which the bones were found the ground above it was level. He saw no indication of a concrete slab having been either in the ground or on top of it. Other policemen, whose evidence I have recounted, had probably less opportunity to observe but saw no slab. I do not think the pieces of concrete, cement or sandstone seen in the various photographs and the video display any characteristic to link them with a slab of the sort referred to, certainly one that was removed after police arrived in April.

Except for an argument derived from the fact the heater had been used at least up until 1986, there is no evidence, other than that of the accused to support the proposition that there was in fact a slab there.

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.

What happened to the support structure does not appear. But the state in which the premises were generally left after the searches makes it clear enough that nobody would have tidied it away. None of the police officers who have given evidence saw it about, nor does it appear anywhere in the photographs or videos which have been exhibited. Mr De Beus gave evidence that his backhoe could not pass down the side of the house on the west. Neither he nor Mr Moynihan who attended on 6, 7 and 8 May 1991 with a narrower backhoe gave evidence of breaking up a slab of the type spoken of.

Mr Crown raised the possibility that the accused had formed a slab over the body of Jean Keir and then removed it at the time, on the Crown case, he took her remains away leaving the seven bones behind. There is no adequate basis for making a finding to this effect.

Mr Hanley submitted that the situation in relation to the slab highlighted the unsatisfactory nature of the police material and in particular the absence of earlier searchers such as Sergeant Wye of the Police Rescue Squad. He referred to equipment that was shown in the video, being a long auger like instrument, however it did not seem to me that that would be a device for cutting up or demolishing concrete. I agree, however, that the evidence does not exclude the possibility that the large rescue van might have had on it equipment which could be used for that purpose.

Mr Hanley made no submission, apart from his general proposition, as to where the presence of a slab would lead.

I accept the evidence of Mr McKay that the ground he dug in did not have the appearance of having been recently disturbed.

If the earlier searchers had removed a slab, which I should make clear I do not think occurred, it would not have altered the position that there were bones in the ground.

Mr Hanley did not submit, one would think for good reason, that the bones found had been in situ from before 1976 or 1978 when the accused said the slab was put in. This would be very unlikely on the medical evidence. DNA Extraction and Analysis

I next deal with the topic conveniently referred to as DNA.

Mr Hanley, in my view correctly, limited the issue he raised in respect of this aspect as follows: “I now wish to move to the area that is probably the most important area the prosecution relies upon, and that is the DNA evidence. That evidence, in itself, of course does not establish that the bones were Jean Keir’s, and I don’t understand the Crown to say it. You Honour has to consider that evidence in view of the various statistics that have been given, and also, as I understand the case law, in the context of the other evidence.”

He also said: “It would seem that in the course of the various bone samples travels, they first went to Dr Atchison, whilst he carried out some tests and extracted some DNA, as I understand his evidence now he has doubts whether or not he may have done. He advised the police they were not reliable or reportable. Up until that time the item which has been the suspected item or item in relation to possible contamination of the bones and thereby, as I understand, possibilities if the bones were denuded entirely of DNA contact with these other items, that is the hairbrushes and the curling wands would have transferred the DNA of Jean Keir to the bones and therefore given it a false positive. In effect, that’s the argument as I understand it.”

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.

The samples arrived at the Armed Forces Laboratory on 16 September 1997 being delivered by Detective Chief Inspector Dayment to Ms Nancy Ann Scibetta (at that time Koszelak).

Evidence as to what occurred there was given by Ms Scibetta and Ms Demris Anita Lee by video link. Both are well qualified analysts with extensive experience in the analysis of DNA.

It was apparent that Ms Scibetta and Ms Lee were accustomed to giving evidence. Allowing for that factor I remained impressed by their evidence in particular their command of the subject matter. This was demonstrated, amongst other things, by their replies to Mr Hanley’s carefully considered cross examination.

The experience of the Armed Forces Laboratory, particularly in dealing with contamination, appears from the following passage in Ms Scibetta’s evidence in chief: “A. The primary purpose of my position at the Armed Forces DNA Identification Laboratory was to obtain mitochondrial DNA sequences from bones that were believed to be the remains of American soldiers who had died in the Vietnam war, World War 2, and the Korean war. Q. Did your laboratory develop a special expertise in relation to bones or human remains from theatres of war? A. Yes Q. And in those situations were the human remains on the bones recovered from environments of difficult situations in terms of contamination, degradation and mixed human A. Yes,. Q. And in relation to bones for example, was it the case that a number of the bones that are recovered sometimes had been passed in hostile territory from people to people in terms of trophies? In other words where there was risk of contamination from other people? A. Yes. Q. Did your laboratory develop a special expertise and indeed become the world’s leading laboratory for the extraction of mitochondrial DNA from bones from those sorts of backgrounds and history? A. Yes we did have a special expertise in extracting DNA from bones and I would say we were one of the best laboratories in the world for doing so.”

Having regard to the contested issues it is unnecessary for me to set out in detail the material upon which Ms Scibetta reached her conclusions as referred to below. I should, however, deal with some aspects of the procedure followed particularly relating to the steps taken to guard against contamination.

Ms Scibetta conducted tests upon the right big toe and the left patella fragment. They were the largest bones and also from opposite sides of the body. She observed as to the latter feature: “If my testing were to show that the bones could be from the same person, it might show maximum trauma if there was a right big toe and a left patella, which is a knee bone, that were both identified and then the DNA were to match.”

Ms Scibetta explained the next step as follows: “I analysed the bones one at a time. I would sand one bone the entire external and internal surface and then I repeated the procedure with the other bone. What I did I didn’t use the entire bone specimen of each that were available to me because I was asked not to consume either sample or not to consume any of the samples that were provided to me and after each bone was sanded and it was ground to a fine powder and then subjected to the DNA extraction procedures. Q. Can you explain in terms of sanding what the purpose of the sanding both external and internal is, why do you do that? A. It was a procedure that was validated at my laboratory and it was to remove any external contaminant such as soil or if there was anything else present on the outside of the bone. The inside was also sanded because the inside of bone contains marrow or spongy bone which is more susceptible to bacterial degradation therefore it is advantageous to remove that for further steps along the way. Some of the items that are removed by sanding can inhibit the PCR process so it is advantageous to remove them.”

Ms Scibetta then conducted a number of procedures which led her to the conclusion that the two bones had a number of similar mitochondrial DNA, “they matched each other”. She gave evidence: “Q. Does that allow you to conclude it was consistent with these 2 bones having come from the same identified individual? A. Probably from the same individual at least from an individual with a common maternal ancestor. Q. Just go on then in relation to what those results showed you? A. They were complete mitochondrial DNA sequences and indicated good quality mitochondrial DNA and led me too conclude that the next step would be to obtain a mitochondrial DNA sequence from the blood of Chris Strachan.”

The maternal reference sample being the only relevant one to mitochondrial DNA, Ms Scibetta then extracted DNA from the sample of Christine Strachan’s blood and, after certain procedures, concluded that the mitochondrial DNA obtained from the blood of Christine Strachan was consistent with the mitochondrial DNA sequence obtained from the two bones. She gave evidence: “Q. How unique are mitochondrial sequences? A. They are not unique because they are the same as a maternal relative. Yours would be the same as your mother and of her siblings yours would also be the same as all of your siblings with the same mother so they are not unique but mitochondrial DNA can be used to determine whether there is consistencies and inconsistencies.”

Ms Scibetta also pointed out that the extraction of DNA from a blood sample is carried out in a different laboratory as an anti-contamination measure.

Ms Scibetta also extracted DNA from the blood of Gaspar Baan. DNA from the two bones and the two blood samples then passed to Ms Lee for STR analysis.

Ms Lee gave the following evidence as to the work of the Armed Force’s Laboratory: “Q. Can you tell us a little bit about the Armed Forces DNA Identification laboratory of which you are the Technical Leader. Can you tell us a little bit about what it does, and in particular what it was doing back in '97 in terms of identification of human remains? A. Yes. I'm actually the Technical Leader of the Nuclear DNA Section. Our laboratory actually has two sections, a Nuclear DNA section that works on death investigations of our Armed Forces and we have a Mitochondrial DNA Section that works on ancient death investigation, more so remains coming back from Vietnam, Korea, World War II. The Nuclear DNA Section primary focus is recent death investigation where individuals are deceased from incidents such as aircraft mishaps, explosion, motor vehicle accident, as well as military attacks, such as gunshots wounds or bombings. Q. In some of those incidents are mass disaster incidents? A. That's correct. Our laboratory also has provided assistance not only to the military community but to the civilian community to assist in mass disasters, such as commercial airline aircraft incidents, such as TWA, Egypt Air Alaska air. We helped in identifying human remains of individuals that were aboard those aircrafts. Q. Getting back to your earlier references, do some of the casework remains come from burial sites? A. Yes, they do. Some of the remains come from burial sites as well as, we have had remains recovered from the ocean floor. Q. In other words, have some of your casework remains come from very harsh environments and environments where there may be mixed samples and a high possibility of contamination? A. Yes, that is correct, particularly in an aircraft accident where you have hundreds of individuals aboard an aircraft that then hits the ground you have a great potential for having co-mingling, or as you mentioned mixed samples. Quite often in some of our aircraft mishaps remains have been exposed to harsh environments such as fire because the aircraft carrying all that fuel once it crashes there is a post crash fire. It also can be exposed to chemical contaminants such as the fuel. So we have quite a bit of experience working with challenged samples. Q. Did your laboratory have those sorts of experiences back in 1997? A. Yes, it did.”

Ms Lee by procedures which required some repetition but which, on the evidence, I am satisfied beyond reasonable doubt were appropriate and valid, obtained complete nuclear DNA profiles of the two bones. She also obtained such profiles of the blood of Christine Strachan and Gaspar Baan.

The profiles were based upon nine markers plus a sexing marker.

Ms Lee compared the profiles and concluded that the two bone samples had an identical profile and that there was no indication of more than one contributor. She also identified the bone samples as female and said: “Based on the DNA results the bone samples were consistent with being an offspring of the two blood samples”

She gave evidence as to the technical review processes within the laboratory to which her work and that of Ms Scibetta was subjected.

Ms Lee gave the following evidence: “Q. ….in the steps that you undertook for the analysis of the nuclear DNA did you see any signs or indication of contamination? A. No. I did not.”

Ms Lee also gave evidence as to the commercial kit used to obtain the profiles and as to the use of population data bases to draw conclusions from the profiles obtained. In the absence of any evidence to challenge that of Dr Goetz, to which I shall come, I do not need to go to this evidence which is less specific to this case than that of Dr Goetz. It does not in any way cut down or derogate from the substance of his evidence.

Mr Hanley cross examined Ms Scibetta and Ms Lee carefully and in some detail, however, I need only refer to those matters which go to the issues as they finally emerged.

Ms Scibetta agreed that she did not necessarily know whether bones had been subject to contamination before they reached the laboratory. She also agreed that one of the two tubes of Christine Strachan’s blood had cracked at the top and that one of the two tubes of Gaspar Baan’s blood was not sealed. She did not use those tubes.

Ms Scibetta gave evidence: “Q. If you had a leak from the purported mother’s blood and if that had come into contact with bone samples, for example, that you were going to compare it to, that could result in contamination, particularly if the bones were denuded of any DNA, would that be a correct proposition? A. If the blood had come in contact with the bone it could affect particularly the mitochondrial DNA results.”

Ms Scibetta agreed she opened the cloth bag containing the hairbrush and curling wand and examined them. She said that was done after the bags containing the other items had been sealed. She did not do any tests on the hairbrush or wand. It is convenient to note that Ms Lee did not ever receive the hairbrush or wand.

Ms Scibetta agreed that the tape seals on the bone packets appeared not to be sticking and the presence of dust, she thought to be bone dust,in the bags. She said that the zip locks were still in place. She gave evidence: “Q. And did you consider that that possibility, that the existence of that dust in those positions could be a potential contaminant? A. Yes. Q. And that existence of powder was that noticed by you in relation to any of the other specimen bags that contained non-bone the subject matter such as the wand or the blood? A. No. Q. You have a clear recollection of that? A. No but my notes says I didn’t note it. I can’t say that it was or was not present.”

She also gave evidence: “Q. Were you concerned about contamination as a result of those observations I’ve taken you to the fact that you were unaware of the specific examinations that had occurred previously? A. I was concerned that there was a possibility of contamination. I was concerned in every occasion that I work, on every skeletal remains case that I worked on that there could have been contamination.”

As to the possibility of DNA from the hairbrush or wand contaminating the bones Ms Scibetta said in cross-examination: “Q. Well, if DNA material was on, for example, the scalp or dandruff from the brushes that came into contact with the bones and the bones were denuded of DNA what I’m suggesting to is that those bones could then reflect the DNA of the material they would come into contact with? A. My opinion is that dandruff would have been sanded away had it been present. Q. I’m not talking about dandruff. I’m talking about the fact that DNA contained in the scalp particles or dandruff that might have come into contact with the bone to permeate the bone and, in effect, become a reflection of the bone’s DNA by way of contamination? A. But DNA is a - it does not exist naked. In nature it is protected by a nuclear membrane and a cell membrane. Q. Are you saying it can’t permeate other items such as bones? A. DNA itself? Q. Yes? A. In order to obtain the DNA sequence, or DNA profile, as a nuclear DNA analyst I would first perform an extraction procedure to get that DNA to come out of the material that was in. If you’re asking me if cellular material could stick to a bone, cellular material could stick to a bone. Q. And so couldn’t that cellular material by way of its contact with the bone allow DNA to pass into the bone? A. I don’t know if it could pass into the bone or not. All I know is that in this case and whenever I handle skeletal remains I would sand the exposed surfaces; the external and internal surfaces to remove the potential.”

Mr Hanley pressed Ms Scibetta with the possibility that the bones may have become contaminated during the sanding process. I accept the evidence she gave in reply as follows: “Q. Just one question, Mrs Scibetta. My learned friend asked you a number of questions about contamination during the process of sanding in the hood and you agreed with some of the propositions by describing them as theoretically possible or theoretically possible on those assumptions? A. In my experience and in my opinion not realistic at all”

Mr Hanley also pursued in some detail the conclusions to be drawn from the fact that one reagent blank showed a contaminant during the course of the examination. I accept Ms Scibetta’s evidence that the incident occurred on one of the amplifications of a reagent blank, was not reproducible and did not affect the results of the tests.

Mr Hanley raised the issue of contamination with Ms Lee. She gave the following evidence: “Q. I'm asking about the combination of those three. Small sample, small quantity of DNA and PCR used to amplify the DNA. If you combine those three conditions is STR susceptible to contamination? A. Yes, it is susceptible to contamination but we would be able to detect the contamination using our controls. Q. If the specimen that you were extracting the DNA from had been denuded from DNA but contaminated by coming into contact with other DNA you would not detect it as a contaminant, would you? A. Coming in contact with what specifically, if you were talking about coming into contact with a person's hand? Q. Anything that contained DNA that wasn't the DNA inherent in the DNA, or the sample originally? A. Given our protocol we actually sanded off the exterior of the bone as well as we wash the bone in ethanol and so if there was an external contaminant of the bone that would be removed before we extracted the DNA. Q. I understand that and I understand you had high standards for removing the possibility of contaminants in the laboratory back in 1997 but what I am asking you is is it possible or is it plausible that if a specimen that had been denuded of any DNA came into contact with another specimen such as a hand or even scalp or dandruff that DNA could be transferred to the degraded specimen? Would you accept that proposition? A. It is plausible, it is plausible that it can be transferred to that sample, that's correct, but in order to obtain the DNA profile from that bone it would have had to actually penetrate that bone because of the clinical procedures I've mentioned. Q. And it's possible that DNA could have penetrated a specimen? A. Not from a touch or from dandruff as you mention. Q. What about contact for some time; days or weeks between two specimens, the denuded one and the one that contains DNA? A. I think it would depend on the sample that contained DNA because as you've mentioned even, we've done studies where we hold, for example, fingernails for hours and hours on end and were able to remove that contaminant by pretty much the same cleaning procedure and so touching with the hand would not be able to penetrate the bone.”

I should note that as well as the washing with ethanol to which both Ms Scibetta and Ms Lee referred, Ms Scibetta gave evidence that the bone was washed two or three times in water before being placed in the ethanol. There was no challenge as to this evidence and I accept it.

Mr Hanley cross-examined Ms Lee in some detail as to the relevant gene scan diagrams. It appeared that what might seem to be anomalies to the lay eye were in fact expected results from controls. In the event it was not submitted that any issue arose from these diagrams.

Mr Hanley cross-examined Ms Lee as to the population data bases and the testing kits used. However, I do not consider that anything emerged in cross-examination or re-examination that conflicted in any material way with Mr Goetz’s evidence and I do not think it necessary to deal with the material at this point.

It is to be observed that for the results obtained to be caused by contamination from the brush or curling wand both bones would have had to have no other DNA, because there was no admixture found. Further, each bone would have had to have contact and react in the same way, as the results were the same for each bone. 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.

These results do not, of course, establish that the bones are those of Jean Keir. As Mr Hanley put, to consider what, if anything, they contribute to the establishment of the identity of the bones it is necessary to consider both the statistical evidence proffered by Mr Goetz and, also, the other evidence on the case.

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.

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)”.

The table then provided likelihood ratios for a considerable number of different populations with three different levels of statistical correction.

Referring to figures taken from New South Wales and Queensland data bases Mr Goetz gave the following evidence: “Q. In other words, in effect using the heading on page 1 are you saying that it is 447,000 times more likely to find the profile that Demris Lee came up with from the bone if it originated from a child of Baan and Strachan than from a child of an unknown couple in the population. A. That’s correct.”

Referring to figures taken from New South Wales and New Zealand data bases Mr Goetz gave the following evidence: “Q. And there what did you do? A. I again used the New South Wales data for profiler plus, six loci, and this time I used, rather than three loci from Queensland I used three loci from New Zealand. And again their population was slightly less. They only had 206 people in their database and I calculated the whole calculation for sample size determined on a sample size of 206 and then came up with a result for the 3 percent FST an upper confidence level of 358,000”

Referring to data bases from a wide range of other countries Mr Goetz gave the following evidence: “Q. And the fourth page as well. Looking at the figures you got for the three at the top of page 3 and all the others as well, what figure did you report to this court as the appropriate figure in terms of the question you posited at the top of page 1, how many times more likely et cetera? A. I have given the court, I suppose, a range of figures that they could select. When you look at the table I presented, that table there (indicated), you can see the range in a tabular form, I suppose, or graphical form. It does show that there is, although it looks wide it really, scientifically is not that significantly different from each other. You probably could draw a line, I would estimate around the 400,000 mark that would cover the majority of the population above that line and the majority of population below that line, and estimate as I did with New South Wales that 447,000 is fairly a good estimate, of the likely ratio in this case..”

In cross-examination Mr Goetz gave the following evidence: “Q. I think his Honour may have asked you about whether there was a medium or contra graph, and I think you pointed to 400,000 level. Does that take into account assessing the likelihood ratio in relation to the world populations? A. The likelihood ratio I am referring to here is really independent of world population or any population size. It is looking at two hypotheses and comparing one hypothesis to the other. It is not comparing population sizes at all. …. Q. What about if you added up the number of people in each of the databases and used the same calculations would that have any differing effect on your likelihood ratio? Or would you expect to get a mean of about 400,000? A. That’s an interesting idea that I never thought about. Because then I would have to add up all the allele frequencies for each of the different locations and then I have ( sic ) would have to work out an average for those and base my calculation on that. I never thought of doing that because it’s not really a scientifically valid way of doing it. I believe if you look at the number of values that have been obtained below 400,000 and above 400,000 and as mentioned here I have included ( obviously should be ‘exclude’ ) two way above it, it was in 4 millions from memory, you end up with a mid point of about 400,000. But I am not saying that is the one that is definitely the one should be taken. By looking at the graph I think it’s an estimate that is reasonable.”

Whilst it is not entirely clear that Mr Goetz would regard the figure of 400,000 as a “reasonable” alternative to his figure of 447,000 I think the better course is for me to adopt the lower figure of 400,000 as an appropriately conservative estimate of the likelihood ration. I should mention that the 447,000 was itself taken from the most conservative level of statistical correction.

Having regard to the absence of any scientific evidence to challenge Mr Goetz’s view and the limited nature of cross-examination it is not necessary for me to go to the detail of how Mr Goetz arrived at his figures. I should mention that he provided for a difference in the kits used in America (Profiler) with the kit used in New South Wales (Profiler Plus) by methods which were not challenged. I should also note that I have directed myself that I am not bound to accept the expert evidence or to act on it unless I consider it appropriate to do so.

I consider that the evidence established that it is 400,000 times more likely that the bones tested in America originated from a child of Baan and Strachan than from a child of an unknown couple in the population.

I should note that it was established that Gaspar Baan and Christine Strachan were the parents of Jean Keir and that they did not jointly have another child.

At this point I should give myself a warning to avoid the “prosecutor’s fallacy” (See Doheny and Adams [1997] 1 Cr App Rep 369 per Phillips LJ at 372, R v Keir [2002] NSWCCA 30, R v GK [2001] NSWCCA 413.) That fallacy arises from a course of reasoning that concludes from the likelihood discussed above that there is a 400,000 to one chance that the bones are those of Jean Keir as distinct from any other person.

Having regard to the view taken by Counsel as to the summing up of Kirby J I direct myself in accordance with the summing up, as amended to delete irrelevant issues and the finding as to the likelihood ratio which I have made.

The relevant section of the summing up, amended as I have said, would read: “Now, there are, of course, many more than four hundred thousand people in Australia. So, statistically, just in Australia, leaving aside the rest of the world, there may be 50 or more people in Australia that you would expect to have the same DNA profile which appears in exhibit (-), that is 20 million divided by four hundred thousand. …. So you can immediately see that the profile, exhibit (-), and the likelihood ratio does not identify the bones as those of Jean Keir. It is consistent with the bones being those of Jean Keir, if you accept Gaspar Baan and Christine Strachan are her parents. But there would be a number of individuals who might, by chance, have such a DNA profile and yet not be offspring of Gaspar Baan and Christine Strachan. …. So, the likelihood ratio tells you how common the DNA profile is in the general population. It does not give you odds as to whether the bones belong to Jean Keir. That is the likelihood ratio does not tell you that it is four hundred thousand to one ….. that these bones belong to Jean Keir. All it gives you is some indication of how rare the profile is. That is, to repeat what I said: That statistically perhaps 50 individuals or more in Australia, leaving aside the rest of the world …. might be expected, as a matter of chance, to have that profile …. .”

Kirby J then went on to the use to be made of the determined ratio in combination with the other evidence. I shall come to that later. I should note that Kirby J later pointed out to the jury that the fact that the bones were of a female and an adult, as opposed to a child, would reduce the broad figures, that is, the number of such individuals. There may be other factors that should reduce that figure, however, as the trial has been conducted I do not consider that I should have regard to them.

I should take account of the further warning expressed in the summing up as follows: “When you approach this issue you should be aware that the use of statistics throws up what looks like a very precise figure; four hundred thousand to one; …. depending upon which evidence you accept. However, the figures are based upon databases and generalisation and there can never be an exactitude in this area. 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.”

As I have sought to explain I consider that the procedures adopted in America and the results obtained exclude any effect from earlier contamination should that have occurred. However, I should deal with Mr Hanley’s submission that contamination may have occurred and, further, that the tests conduced in Adelaide, particularly having regard to missing documents, raised issues which put the profiles established in America in doubt.

On 16 December 1991 Dr Atchison received six bones in separate plastic bags and two tubes of blood labelled “Gaspar Baan” and two tubes of blood labelled “Christine Strachan”.

At that time the doctor was the Scientist-in-Charge of Clinical Sciences at the Victorian Institute of Forensic Pathology. He is now Manager of the Victorian Institute of Forensic Medicine Molecular Biology Unit. For present purposes the changes may be regarded simply as name changes.

Attempts to extract nuclear DNA from all the bones and to carry out PCR analysis produced some partial results. Dr Atchison is now not sure “if those reports were actually due to DNA from the bone or just a spurious result”.

In the circumstances it is unnecessary to go to the details of the tests. Dr Atchison did say that he “felt that the DNA had degraded to the extent it was not reliable”. He accepted that DNA in bones degraded with age and that smaller bones may degrade more rapidly.

Dr Atchison’s laboratory did not receive at that time the hairbrush or curling wands. Analysis was carried out of the blood samples.

On 19 March 1992 the bones and blood were returned to Westmead.

On 4 August 1992 the six bones, blood, a hairbrush and two curling wands were delivered to Dr Van Daal. The bags containing the bones were in an Esky.

Dr Van Daal was at the time a senior forensic scientist at the State Forensic Science Service in Adelaide. She was well qualified and had been working in the field of molecular biology using DNA techniques since 1982.

Bone number 4 was selected for testing and was numbered JK4 by an analyst Ms Harrington for the purposes of the Centre. No other bone was tested, nor were the brush or curling wands tested, I accept, although there had been a request that this be done.

Dr Van Daal supervised the work, however, testing on JK4 between October 1992 and December 1992 was carried out by Ms Harrington.

In a Court Report dated 8 April 1993 Dr Van Daal reported the typing of the blood of Christine Strachan and Gaspar Baan and went on: “DNA extraction was performed on a bone sample and then subject to HLA. DQAI PCR analysis. No result was obtained.”

I should observe that at that time the Centre was using a monoplex rather than the later multiplex DNA testing system.

A covering letter with the report advised Detective Sergeant Merkel that further developments, including STR PCR systems, gender testing and mitochondrial technologies might assist as a later time, gave costings for further work and indicated that the Centre would not have time to do further work for another six months or so.

In the event nothing further was done with any of the items at the Centre although they remained there until 14 July 1994 when Detective Chief Inspector Dayment collected the bones and blood which were in an Esky. On the following day Detective Kinsman picked up the brush and wands, which had been overlooked the day before. It does not emerge whether they were stored in the same room, however, it is clear that the brush and wands were not in the Esky.

On 15 July 1994 Detective Chief Inspector Dayment delivered all the items to Dr Atchison in Melbourne.

There was a good deal of evidence as to the extent to which Dr Atchison opened the various bags. I do not need to go to the detail. I think it likely that he opened, or had opened, the bag containing bone four and the bag containing the blood tubes but not the other bags containing bones. As to the hairbrush and wands I consider it likely that he unzipped the cloth bag and looked at the brush and wands but did not remove them from the cloth bag.

Dr Atchison was assisted by a technician Ms Benton. A mitochondrial DNA test was carried out in respect of bone 4 and Christine Strachan’s blood. No other items were tested.

The test results were indistinct and Dr Atchison reported: “As with my previous report on the DNA tests in this case on 20/2/92 the results of the tests were not of sufficient clarity to make definite conclusions of identity.”

Dr Atchison gave the following evidence in cross-examination: Q. Your past experience had been that you had been able to extract DNA from bones that was reliable and reportable? A. Yes. Q. And I think you informed Sgt Dayment that the inabilities for you to obtain results with the nuclear DNA tests indicated that the DNA was extremely degraded perhaps consistent with your expectation of such small bones, is that right? A. That is what I would expect yes. Q. The mitochondrial DNA is that more susceptible to contamination than nuclear? A. The tests procedures are yes. Q. If these bone that you had been presented with and the ones that you examined had been completely denuded of any DNA, it is possible if they came into contact with other DNA that DNA may be incorporated into the substance of the bones? A. Yes it is possible. Q If the bones were degraded completely of DNA, an occurrence had occurred or contamination in that case had occurred by DNA from another source of bone would give the DNA reading of the contaminant? A. Yes. Q. If there was some DNA contained in the bones and there had been a contaminant which effected the bones, you could get a mixture of DNA? A. You could. It depends on the amount of contaminant, how much DNA was in the bone. Q. Are you saying by that if a contaminant was present it could overwhelm and disguise any other residual DNA that was in the bones? A. I believe there is a limit of detection of mixtures.

He also agreed that contamination can occur in laboratories as a result of human error.

In support of the contention that the bones may have been relevantly contaminated whilst at the Forensic Science Centre Mr Hanley examined in some detail the tests carried out and the apparent results obtained by Dr Van Daal and Ms Harrington, at that time a forensic scientist assisting Dr Van Daal.

After the first attempt to extract DNA failed a number of further attempts were made. Dr Van Daal gave evidence in chief: Q. Now at some stage, was a contaminant or a contamination apparent during some of the processes? A. Yes. Towards the end of the things that I tried, I tried something that was a way of dealing with very, very small amounts of material, but as a result of that, it is prone to contamination and I believe I have results that reflect that. Q. When you say the 'results that reflect that', do they reflect what, that you were aware? A. From the same sample I have three different results, which is not a problem, but by definition they are a result of contamination. Q. And how did you attempt to push the envelope as it were? A. When you do a PCR reaction you put the DNA through cycles of heat, and a different heat goes which allows the DNA to be copied. That's normally done somewhere between 25 and 35 times cycles, and that's an exponential process. What I did is took some of that already amplified material and put it through that same process again. So, in essence, it was going through that process 60 odd times so it's, as you said, 'pushing the envelope'. Q. And were you there dealing with very minute amounts of material? A. Yes. Q. Did you form a view as to whether the contamination was due to the bones themselves being contaminated? A. I did. I believed it is not as a result of the bones being contaminated, because if the bones, themselves were contaminated, I probably would have seen results, without going to the extremes that I did.

Ms Harrington, whose transcript from an earlier trial was tendered, had established by use of a Satellite 3 Probe that DNA was extracted from JK4. The relevant result sheet was dated 5 January 1993. Dr Van Daal did point out that the Probe is extremely sensitive.

Subsequently a DQ.A1 Typing: Cetus Amplitype Kit (Ex 14) produced typing results.

Further, a DQ.A1 Typing: Cetus Amplitype Kit bearing date 29/1/93 (Ex 32) showed positive responses on the relevant “strips”.

Dr Van Daal conceded that the strips showed alleles from up to 5 people. She considered the fact that these results were not repeated showed that they did not come from DNA from the bone.

Mr Hanley drew attention to certain result sheets missing from the file. Dr Van Daal said that she would assume that the tests were done. Mr Hanley submitted that this was supported by the fact that the blood analysis was then carried out suggesting that there was something to compare it with. Dr Van Daal said that it might have been done to add to their database, however, missing records seems more likely. It was said that the Centre would hold the original of the file, however, nothing further was tendered,

Looking at the Adelaide operation as a whole I think it unlikely that anything emerged in further testing to support the contention that the bones were relevantly contaminated or that test results excluded Baan or Christine Strachan. I should note that some of the results rejected by Dr Van Daal did, with one possible exception, appear to exclude them.

Mr Hanley cross-examined Dr Van Daal as to apparently unfavourable audits of some of her work, however, I do not draw any conclusion as to the quality of her work in this case based upon that cross-examination.

I should note also that there was no scientific evidence that put a different interpretation upon the records appearing from the Centre’s file.

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. Interviews with Police and Jane Hanson

The accused had two formal recorded interviews with Police Officers to which I should refer briefly. There were other conversations to which it is unnecessary to go. He was also interviewed on video by a journalist, Jane Hanson. I have already referred to some material from these interviews and will not repeat it all.

The first interview, which was recorded by way of a typed record of interview, was with Inspector Lyons on 14 April 1991. The accused said the last time that he had seen his ex wife Jean Keir was at home and that their domestic situation was “just starting to get better”. He said that his wife left him because she was in love with another man. He said that she had told him in December that she had been having an affair for a couple of months but that it was going to stop. He said that in January he found out it was still going. He referred to the Culburra trip and spoke of a telephone call which thanked him for the flowers he had sent her for her birthday and went on “but she seemed a bit distressed so I decided to go down and pick her up”.

I have earlier referred to his account of what occurred at Culburra and at Liverpool. In the statement he said that Jean Keir was brought home by Carl Nieding and that “We sat on the lounge and talked for a while. She said she was sorry for everything that went wrong and that we would be getting the marriage back on the rails”. He said she left the following day and did not tell him she was leaving. He said at that stage he had an idea that she went back to Carl. He then referred to subsequent telephone contact and I will come to the content of that aspect when dealing with the later video interview.

The record of interview continued: “Q35. Did you report your ex wife missing to the Police? A. In April I came to the desk at this police station and told one of the young blokes on the desk about her being missing and he told me that I couldn’t report her and that I would have to get her immediate family, mother or father, sister or brother to report her missing. I rang Christine Strachan that night and asked her to do it and she said she would.”

The accused said that his wife took a couple of bags full of clothing when she left on 10 February and came back the following day and took some more. She also took jewellery and make-up. He said she had been back since February of 1998 to the house on a couple of occasions and he referred to the wedding ring being left and seeing Alpine cigarette butts.

The record of interview continued: “Q48. Do you know if anyone else has heard or seen your ex wife Jean since she left you on the 10th February, 1988? A. She has been in contact with Christine, her mum, at least once and they arranged a meeting but she never kept the meeting. One of her friends Jenny Solo, she works in a fruit and veg shop in Emerton. She said she had seen her in the shopping centre. My mum seen her down the shops at Emerton. Dad seen her in the laneway near the school. One of Carl’s friends, he seen her near the Rocks in the City around May time in 88. She rang up Mum when I was in Manila. I can’t think of anybody else.”

The accused said that he did not hold any fears for Jean Keir’s safety and that he had never threatened her because of her affair with Carl. He was asked about digging a number of large holes in his backyard and agreed that he had. The record of interview continued: “Q57. Will you tell me when you dug the holes and for what purpose? A. The last one was when I changed the motor in the van, four or five months ago. I dug a hole in the corner of the front fence and side fence at the back. Threw the old motor in it. The other one down near the back gate. There is a sink, part of a gate, some metal items and lumps of concrete. There is one behind the garage where I used to mix compost and stuff. Up near the goose pen. I dug a trench for the telephone cable too. The went from the side of the house to the garage”

On 20 February 1998 Detective Chief Inspector Dayment and Detective Tuckerman went to the applicant’s then home in Blackett and told him that were conducting enquiries into the death of Jean Angela Keir and cautioned him in the usual form. He, accompanied by his mother Joan Keir, was taken to the Penrith Police Station. After he had spoken to his solicitor Mr Wilson he agreed to be interviewed. An electronically recorded interview then took place between Detective Chief Inspector Dayment, Detective Tuckerman and the accused. His mother was present throughout.

It is not practical nor necessary to go through the interview, of which a transcript was prepared and tendered, in detail, however, I do propose to refer to certain parts of it. In particular what might be referred to relationship matters were put to the accused and it was his first opportunity to deal with them.

I should note that there was nothing in the accused’s demeanour throughout the interview which would lead me to conclude, so far as appearances go, that he was not telling the truth.

The accused agreed that the earlier record of interview was correct as to his digging of holes and said that he did not dig a hole on the western side of the house other than perhaps some area of composting.

By that time the police had the DNA reports from America. The accused said that the bones found were definitely not Jean’s and that he knew that because she was not dead.

Leaving aside the detail of the events up until after Jean Keir had left, according to the accused, he said that his wife had been back to the house on three occasions in the next week and a half which he could tell because of the Alpine Light cigarette butts in the ashtrays and on one occasion a glass with a small amount of vodka and orange, her usual drink.

After referring to telephone calls he was asked whether, having been told of the birth of a little girl, Jean Keir had told him where she was at that time. He said, no. The record continued: “Q108 Did she tell you who she was with? A. No. I found that off one of Karl’s mates that um, she was with him for a while Q109 With Karl? A. With Karl. Q110 That was after she - - - A. After she left. Q111 And who was the mate? A. Um, just tryin’ to think of his name, he’s got a weird, weird surname ….. he’s got a practice of the access group up at, up in Brisbane, he moved up there a few years ago.”

The accused said the man’s name was a funny surname Philhole, Hole, Holblum or something like that. He said he was on the telephone but he did not have the telephone number with him, it was probably in some paperwork at home.

The accused said that man told him that he had not seen Carl for a while and the accused continued: “A. …I end up, ended up getting’ in contact with Karl’s father in Adelaide and they’d been there for, for a couple of weeks and went up to this commune but um, the commune didn’t have a phone so I couldn’t get in contact with them there. Q115 And what did Karl’s father tell you? A. He told me I missed ‘em by about a fortnight and um, I just asked him who was with him and he said his new girlfriend and I asked him for a description, the description went pretty well close to Jean. Q116 And when was that? A. That was, that was late ’88, I think, I know it, I know it was in ’88, anyway.”

Asked if Jean had ever attempted to contact Michael since she went missing he answered: “A. Well (me auntie) seen her sittin’ in the car a couple of times across the road when he used to be um, before he went to school and um, he used to be at mum’s place playing on the verandah and me aunty was renting the house and across the street she seen her there a couple of times as though she was sittin’ in the car just watchin’ him play.”

He said that his aunt’s name was Marlene and his mother added that the surname was Wright. He said that the time of the sighting must have been in 1989 that “they’d only just got back from England at the time”.

Peter Bullock’s allegation as to disposal of the body with a grinding wheel and feeding the meat to the dogs was put in more extended form to the accused. The accused said, “conversation never happened”.

The transcript continued: “Q131 Do you know a person by the name of Shana McDonald” A. Yeah. Q132 She’s told police that in January, 1988, Jean had a conversation with her where she told her that she wanted to leave you and take her son Michael. She further told Shana that she, she believed if she took Michael you would kill her. Do you wish to say anything about that? A. Know nothin’ about it.”

When asked if any person other than his relatives had had contact with Jean he replied: A. Well to my knowledge Christine said that Jean had phoned her one time, they had a conversation on the phone and they were going to organise a meeting and then the conversation turned nasty or something and the meeting never took place. That was what Christine told me just a few years back.”

He also mentioned that the phone rang one night about 1989 when his father answered it, Jean was on the phone but she hung up. He said apart from that he did not know of anyone.

The accused said that he had spoken to the man Phil on the phone twice and once at the Crows Nest meeting. He said: “and he’d said he had bumped into Jean and Carl in the Rocks a couple of weeks before”.

In view of the issue to which I shall come later I should also note the following answer: “Q154. All right. And now can you describe Phil for me, what he looks like? A. Um, he’s probably about 6, be about 6/2, very, very thin, his cheek bones stick out he’s, like he looks more anorexic than anything else. He’s got long hair or he had long hair then um, a yuppie type suit, sort of bit too big and wrong, wrong style for him but he just talked a lot. Q155 All right. And what colour was his hair? A. Mmm, darkish brown.”

Shortly after 25 March 1994 the accused was interviewed by Jane Hanson an investigative journalist with TCN Channel 9 Pty Ltd. The Interview was recorded on video. It was quite aggressive in style and content. The accused in general adhered to the position that he taken up until that time in relation to the disappearance of Jean Keir and her subsequent contact with him. Again nothing appeared from his demeanour to suggest that he was telling other than the truth.

There are, however, three questions and answers to which I should go. They all occurred at the beginning of the interview and followed unexceptional questions.

After referring to the accused last seeing Jean Keir on 10 February 1988 the transcript, which I accept is relevantly correct, set out the following question and answer. “V1: What had happened previous to that? Can you tell me about the lead up to that? V2: Well the marriage had started to fall apart a bit and um, apparently she’d been having an affair for about six months, then she’d said the affair had ended with this um Carl bloke and then they um – she took off on the tenth, the same day that he vacated his flat, so [ind] just put two and two together, she took off with him.”

After referring to the trip to Culburra and the accused going to fetch Jean Keir on the 9th the transcript set out the following question and answer: “V1: Why did you go down to fetch her? V2: Well, if she had problems to sort out, she couldn’t sort them out miles away, they’re um got to be sorted out at home.”

Following the accused saying that when he started the car up Jean Keir had hopped out and started running around the car mucking around, the transcript set out the following question and answer: “V1: So what did you do? V2: Told you, I just grabbed hold put her back in the car, put her seatbelt on and then drove off.” SIGHTINGS

I now turn to evidence as to the “sightings” of Jean Keir said to have occurred after 9 February 1988.

The issue in respect of such “sightings” does not involve directions such as required by s116 or s165 of the Evidence Act 1995. Rather, the issue in each instance and overall is whether the Crown has negatived the reasonable possibility that Jean Keir was seen, spoken to or otherwise identified as being then alive. Of course, the decision is to be reached on the evidence in the case as a whole.

Christine Strachan denies that she had spoken to her daughter on the telephone or at all since 9 February 1988.

She did give evidence: “A. Around December or November, something like that, there was a phone call from a very young girl and she was saying, ‘This is Jen, this is Jen’. I said, ‘Who is Jen?’ “Your daughter Jen’. I said ‘My daughter Jen?’ I was just wondering, and she said, ‘Yeah’, and then she hung up. When Jeanie used to ring me up it was, ‘Hello Mum’. All my daughters do that, ‘High (sic) Mum, it’s me’.”

Christine Strachan said that this call was not from her daughter. In a letter to Inspector Neave in the middle of 1989 Christine Strachan referred to a call in 1988 from a female pretending to be Jean Keir.

I shall refer later to an attack on Christine Strachan’s credit, however, for the moment simply say that I accept her evidence on this point. I do not consider there to be any reasonable possibility that she was spoken to by Jean Keir.

In his electronically recorded interview the accused spoke of information obtained at the Crows Nest meetings as to Carl Nieding and Jean Keir. The record is somewhat equivocal, however, it is clear from the accused’s evidence that he relies upon a matter conveniently summarised in his then solicitor’s letter of 10 May 1995 as follows: “PETER HYBLOOM of Nambour Queensland (telephone (008) 072999) informed Thomas Keir in mid 1988 that he had seen Carl Nieding with a young woman at The Rocks in Sydney. The description of the ‘young woman’ fitted Jean Keir.”

The Crown called Mr Heibloem a Queensland man who in 1987 to 1988 conducted about two personal development seminars extending over week ends a year at the Crows Nest venue, which he said was used by a number of groups. He said that he did not know of a company or trading name Access.

He gave evidence that he did not know Carl Nieding, the accused or Jean Keir. He had not been to The Rocks since he moved away from Sydney in 1974.

It is strange that two people with such similar, although somewhat unusual names, should be involved in activities at the Crows Nest site. However, the accused had given at the time of his interview a description which certainly did not fit Mr Heibloem. Further, Mr Heibloem’s presentation as described was very unlikely to have been the type of event Carl Nieding was interested in.

However, it is unnecessary to pursue the matter. I accept that Carl Nieding did not take Jean Keir to the Rocks. Even if he went there himself, as he made very clear, he was interested in other girls than Jean Keir.

It is convenient to note that John Kabealo gave evidence the business, now known as People Know How, which he presently operates, up until about October 1988 was called Self Transformation Seminars and had premises at 175 Elizabeth Street Sydney. After 1988 the business occasionally used premises at Crows Nest also used by other organisations interested in similar activities. His evidence and a tendered statement showed that the business records did not show a Jean Keir, Jean Strachan or Jean Nieding (with various spellings). A note in Jean Keir’s address book showed that she had recorded the name and address of the business and the cost of a course ($400). However, it was not submitted that anything emerged from this or Mr Kabealo’s evidence which I need now consider.

The accused gave evidence that sometime between May and July 1988 he telephoned Carl Nieding’s father in South Australia. He gave evidence: “q. Did you have a conversation with Carl’s father or the man who told you was Carl’s father? A. Yes. Q. Do you recall what you said to him and what he said to you? A. Yeah. I said, look, have you seen Carl, and he said he was here a couple of weeks ago. He said, you have only just missed him actually, and I said, was there anyone with him. He said, yeah, his new girlfriend was with him. They have gone to a commune. I said have you got the phone number for the commune. He said there was no phone Q. Did he describe what the woman looked like? A. Yeah. He said she was 5, 7, dark hair, tall, slim, good looking, and so I thought to myself a pretty good description of Jean. Q. Did you ask him to pass on any messages? A. Well, I said to him if Carl comes back can you ask him to give me a call, because he said he would but never heard back from him.”

Karl Heinz Nieding the father of Carl Nieding gave evidence at the first trial. The evidence was tendered at the second trial and in turn that evidence tendered at this trial. I was informed, without objection that Mr Nieding was 84 and too frail to travel from remote South Australia for the second trial. I bear that circumstance in mind.

Mr Nieding gave evidence at the first trial in 1999 that he was earlier that year shown three photographs of Jean Keir. He said that he had never seen his son with the woman in the photographs.

Mr Nieding said that he recalled, a long time ago, a telephone call from a man asking as to his son’s whereabouts. He said that he could not tell him at the time. He knew nothing of a conversation about Carl going up to a commune with a woman.

He gave evidence: “Q. Do you ever remember Carl bring any female friends from Sydney to your house? A. From Adelaide I believe. Q. From Adelaide? A. It was a girlfriend once, Caroline. Q. Caroline was the woman whose name you remember and she was from Adelaide? A. That’s right. Q. Do you remember any woman from Sydney? A. No.”

Cross-examination demonstrated that Mr Nieding’s recollection of the conversation in 1988 was far from clear. He was, however, clear in his assertion that the girl Caroline was in her late twenties or thirties. He thought Carl Nieding brought her twice to his home.

Mr Nieding did agree that he had heard his son speak of communes. He said: “He looked at that sort of thing, spiritually.”

I consider that the Crown has negatived any reasonable possibility of Jean Keir being alive on the basis of this evidence.

The accused’s Aunt Marlene Joan Wright lived in Willmot in 1984 to 1987, however in 1987 and 1988 she lived in England. In1988 she returned and lived in Blackett for a time.

Before going to England she would occasionally see Thomas Keir and Jean Keir at 66 Franklin Crescent Blackett then the home of the accused’s mother.

After she returned in1988 she did not see Jean Keir. In February 1988 Joan Keir told her that Jean Keir was missing and that the accused had gone to Mount Druitt Police Station to report her missing. Mrs Wright said that she did not tell the accused or any other person that she had seen or heard from Jean Keir.

In cross-examination Mrs Wright agreed that Joan Keir had told her that she had seen Jean Keir in 1988 in a red motor vehicle opposite her house.

When cross-examined as to his claim that Mrs Wright had seen Jean Keir the accused said: “Q. You had to come up with some explanation for what you had said in the interview about that when you learnt that Marlene Wright, your aunt, wasn’t backing your version, didn’t you? A. There was no need for an explanation. When Mum was talking to me she said her car was parked outside and I assumed Marlene had seen her as well. Mum and Marlene were always talking and apparently Mum had seen her and told Marlene – same thing.”

In re-examination he said that Mrs Wright was easily identifiable by name and address. He had said in cross-examination that he would expect police to check.

Mr Hanley did not press upon me, in address, claimed sightings by Joan Keir, the accused’s mother, and Andrew Keir, his father. Both were dead by the time of this trial and their evidence was in documentary form. I have considered the material carefully, however, do not consider, certainly when taken with the other evidence in the case, that it raises any reasonable possibility that Jean Keir was alive after 10 February 1988.

Charlotte Chessnut is the mother of Chad who was roughly two years older than Michael and had been regularly babysat by Jean Keir. Some months after Jean Keir disappeared in February 1988 Charlotte Chessnut was at the Emerton shopping centre with Chad. She gave evidence referring to Chad: “Q. What did he say? A. He said, ‘oh mum. I think I saw Jeanie’. That’s what he used to call her and so what I did I followed the lady, or I chased after her and I eventually saw where she was. I was following her and she turned around and it wasn’t Jeanie.”

Mrs Chessnut was cross-examined as to having told a private investigator in June 2002 that after hearing her son yell out “Jeanie” she “looked up and there was no-one there”.

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.

Michael Keir the son of the accused and Jean Keir gave evidence that he had seen his mother on two occasions subsequent to her disappearance. Although I do not accept that in fact he did so, I think it likely that he believes that to be the position.

Michael Keir was three when his mother disappeared. He had photographs of her and when he lived with his grandmother Christine Strachan for some two years after 1991 there were also photographs in that house. The extent to which photographs in such circumstances assist with the identification of a real person is not clear.

Christine Strachan said that when Michael was about six or seven she went shopping with Irene Page leaving Michael at the Mount Druitt swimming pool with her son Leonard and Irene Page’s daughter Jennifer. She said Leonard was seventeen going on eighteen and Jennifer fifteen at the time.

She gave evidence that when they got home Michael said: “I think I saw my mum”. When she said to him “Did you say anything to Uncle Leonard and Aunty Jenny”, he said “No.”

Michael Keir gave evidence that in the summer of 1991, 1992 he was at the Mount Druitt swimming pool with Jennifer Page. He said in chief that Leonard Strachan was not there. He said he saw “me mum”. He gave evidence: “Q. How did you recognise her? A. I was laying on the pool. I can tell you what I was wearing that day. I was lying - - HIS HONOUR: Just tell us slowly. WITNESS: I was sitting on that shallow end of the big pool and I was just laying there I looked up and she caught me eye and I thought, you know, it spun me out and I said “that’s mum’. I knew it was mum. Q. How long did you look at the woman for? A. Gazed at her five minutes, few minutes. Q. Go and speak to her? A. No. Q. Why not? A. Cause I didn’t know what she would do. Q. Did she approach you? A. No. Q. Did she look at you? A. She glanced around my way. I don’t know if she seen me or not. Q. And do you recall how long she was at the pool for? A. No, like I said, I was laying there, I seen her there and then that was it. Didn’t see her after that in the pool.”

Michael Keir said that he told Jennifer Page after they left the pool. He gave evidence in cross-examination: “Q. ….what did you say Jennifer said? A. She pretty much called me a liar, she said: ‘no, you didn’t see her’. I can’t remember her exact words. I was young, mate.”

Leonard Strachan, who gave evidence, said that on one occasion when he was seventeen he was left in charge of Michael at the Mount Druitt swimming pool. His cousin Jennifer Page was with them. She would have been fifteen or fourteen. He did not see Jean Keir or anyone who looked like Jean. He said that Michael did not mention to him seeing or believing that he had seen his mother. This account does not exclude Michael Keir having told Jennifer Page, as he said he did. That he did refer to the incident is confirmed by Christine Strachan. It may well be as Michael Keir said that he told only Jennifer Page and Christine Strachan.

On 16 August 1998 Michael Keir was going with an uncle and Joan Keir to visit the accused. He was locking the gate when he looked across the road. He gave evidence in chief: “Q. Were you with someone when you saw? A. Grandmother and uncle Andrew over there but he was at the car unfortunately. Q. He was at the car unfortunately? A. Or nearly at the car. Q. What do you mean by that? A. We were going to the gaol to see dad and I was locking the gates because we just locked the screen door and I was just locking the gate and looked across the road and seen the car and looked at the driver, looked for a few more minutes, I thought, no, no, that’s mum, isn’t it. She looked across and I said to Nan ‘that’s mum’ and she ‘F me that is Jean’. Q. Who said that? A. Nan. Q. The car that you saw your mother in how far away was it from you? A. 15, 20 metres across the road. I can’t be exact but about 20 metres. Q. You recall anything about the car? A. No it was red. Q. Get a number plate? A. No, because it was parked directly across, the number plate wasn’t facing my direction. Q. Did you go over to the car? A. No, when we walked down I said, no, when we walked down and come out the car was gone, and that was the end of the car.”

He also gave evidence in chief: “Q. Now, the woman you saw in the car, can you describe what colour hair she had? A. Dark hair. Q. Describe anything else about her, curly or straight? A. Kind of wavy but wasn’t curly like she used to be curly, used to have heaps of curls before when she used to perm it. Q. Short or long? A. No, probably down to her (indicated). Q. Below her shoulder? A. Below the shoulder, yeah.”

Michael Keir agreed in cross-examination that he did not go over to the car, he sad that he did not need to try to attract her attention as “she was already looking at us”. The car he said was about 20 metres away. He could not tell the make as he did not know much about cars.

He said that the hair was not as curly as it used to be, “more straighter”.

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.

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.

Mr Hanley did not expressly rely upon these sightings in address, however, he did press vigorously that the suggested sighting by Jennifer Amos, formerly Soler, did raise at least a reasonable possibility that Jean Keir was then still alive and that the Crown had not negatived that possibility.

Mrs Amos was at school with Jean Keir, both at Blackett Primary School and Plumpton High School. They were in the same year and mostly in the same class. Mrs Amos left school in 1988. In chief she said that she rarely saw Jean Keir after that, however, in cross-examination she agreed that she occasionally saw her as she walked past her mother’s home. On some occasions they would chat. She said that she moved away from that area in 1987.

Mrs Amos said that on one such occasion she was told that Jean Keir had married and said that she had met her husband once prior to that. She gave evidence in cross-examination: “Q. Did you see her on an occasion when she told you she had a little boy? A I actually, the first time I saw her, her little boy was about 18 months to 2 years old.” Presumably she means after an interval.

In about October 1988 Mrs Amos was working at the Emerton fruit shop in Emerton. Her work was that of a cashier and helping pack fruit and vegetables in buckets or bags.

On one occasion when she saw something, to which I shall come, she was the only cashier working. There were three cashier positions but the other girls were at lunch.

Mrs Amos said that “it got very busy”. She gave evidence: “Q. Apart from operating the cashier that was your function at this time, did you have other responsibilities, were you also supposed to keep an eye on what was happening? A. Yes. Q. What were you supposed to be doing as well? A. Making sure that the stock that’s behind us on the registers weren’t getting pinched, and making sure people that were walking in with the stuff and coming through, to pay for them. Q. Was that something that you had to do at the same time as operating the cashier? A. Yes.”

There was a Commonwealth Bank ATM next door to the fruit shop about thirty feet away from where Mrs Amos was standing. She gave evidence: “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 two customers.”

Mrs Amos said that she only needed to turn her head to the right to see the ATM and that she had done so to check on some customers behind the other two registers who were looking at stock.

She said that there were a couple of other people with the person whom she described as follows: “She was, she had curly hair and a bit on the plump side, whether this person’s put on weight or was pregnant or was just wearing a tracksuit”.

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.

Mrs Amos said in chief that she was both long and short sighted and that she did not have her glasses on on that day. She also mentioned glare with the sun coming through some windows “on the ceiling” and bouncing of polished tile.

She said that she was not “real confident” that the person she saw was Jean Strachan and that it was possible that it may have been “a mistaken identity”.

Mr Crown took Mrs Amos to a statement she had made to police on 14 April 1991. She gave evidence: “Q. I think then you concluded by saying that you were certain the lady at the teller machine on that day was Jean, do you remember saying that in your statement? A. Yes. Q. Do you have any explanation as to how you came to express what you thought you saw in that way? A. Well, over the years I have seen so many people from behind and side on, and when they turned around it’s not the person that you’re actually thinking of. I have come across a fair few people like that now.

Mrs Amos said that the police showed up unexpectedly at her home. When asked if she had told anyone of the sighting she said “not that I can remember” and then “No”. She could not explain how the police came to visit her although she remembered that Fiona Strachan was with them.

Mrs Amos said that she had not seen any news footage about Jean Keir being missing and that she did not tell the police of seeing her until she was at the police station.

She agreed that in her statement she had said that she saw the woman look at her and “I recognised her as Jean Strachan”. She said that she was nervous at the time of making her statement. In the statement she said that when she next looked the woman had gone. She described her as wearing a brown track suit and the fact that she had either put on weight or was six months pregnant.

Mrs Amos said that she looked at the woman “just a second” but agreed that she was able to describe the colour of her clothes, her hair as permed or curly and gave a description of two men with her. She gave evidence: “Q. You had no doubts then that it was Jean Strachan you saw, did you? A. No.”

Mrs Amos denied that any of the Strachan family had suggested to her that she might be wrong. She gave evidence: “Q. You have become less and less certain, have you, from the time you made your statement to the police, that it was Jean Strachan? A. Well people make mistakes about seeing people they thought they knew.”

She said “I think so” to Mr Hanley’s suggestion that with long sight in one eye and short in the other the eyes compensated. She agreed that she did not tell the police that she might have difficulty in seeing the person because she did not have her glasses on and agreed that the statement did not mention glare, although she did say that she had told the police of glare.

Mrs Amos agreed that the woman had hair like that in a photograph of Jean Keir, which Mr Hanley put to her (Ex 2), although a bit longer.

Mrs Amos initially said that she saw the woman from the side but agreed that she had given the following evidence in the first trial: “Q. You were then asked: Q. Did she look into your eyes at that time; did you look at each other? A. I can’t actually say she did look me in the eyes or not, but she looked my way and I looked her way, so. Q. And you were certain at that time that was Jean Keir? A. Well it looked like her. Q. You have given that evidence before at the very first trial, haven’t you? A. Yes.”

She then gave evidence: “Q. What I want to suggest to you is that the person you saw on this occasion, you were looking directly at her face, weren’t you? A. For a short time, yes. Q. But it wasn’t a situation where you thought you saw or recognised someone from behind and when they turned around you knew it wasn’t them, was it? A. No.”

Mrs Amos also agreed that at the first trial she had answered, “yes” without qualification to the question “But when you looked at her face the features were the same.”

Mrs Amos in re-examination agreed that she had also given the following evidence in the first trial” “Q. So in 1991 you were certainly correct when you made your statement, certain that it was Jean, that is what you stated? A. Yes, but I wasn’t quite sure at the time, really.”

Fiona Chalmers said that within a year of February 1988 she heard, she could not say who from, that a Jennifer Soler had seen Jean Keir. She went to visit her. She gave evidence: “Q. You spoke to Jennifer Soler? A. If I remember rightly, yes. Q. Did she tell you that she had seen Jean at this ATM? A. For some reason she was – she just looked – she just seemed a bit – I can’t remember if she said ‘I don’t know if I saw her’ or ‘I possibly could have’. I don’t think she was certain that she saw her. She was a little stunned that I was there and naturally a bit frightened, like ‘why are people saying I know where she is?’”.

Leonard Strachan said that he was aware that Jennifer Soler had reported seeing Jean Keir at the Emerton Shopping Centre. He gave evidence: “Q. When you became aware that Ms Soler had seen Jean at the Emerton Shopping Centre did you form a belief that Jean was still alive? A. In 1988 we were of the belief that she had just disappeared.”

I agree with Mr Hanley’s submission that Mrs Amos must have told someone of her belief that she had seen Jean Keir and that information or rumour to that effect reached the Strachan family and Fiona Chalmers.

I do not, however, accept the submission that what occurred or was said on the visit by Fiona Chalmers was “very significant in suggesting why Jennifer Soler has tried to draw back from the certainty of that observation that she says she made of Jean Keir”.

The visit was made within a year of February 1988; the statement in which Mrs Amos expressed certainty was made on 14 April 1991.

Mrs Amos left school in year 10. I accept that she was nervous when she went to the police station. Having seen and heard her give evidence I formed a clear impression that her retreat, I agree it was one, was based on a developing recognition of how hard it is, in terms of human experience, to be sure of an identification in such circumstances.

I noticed that a passing reference in cross-examination to being retrenched from her employment brought a prompt challenge from Mrs Amos until she was taken to her statement. My impression is that an unguarded remark by a statement taker could easily provoke a hardening of her view.

Whether this occurred or not is, of course, unknown, however, what is known is that by the first trial she was saying “Yes, but I wasn’t quite sure at the time really.”

Certainty or otherwise by Mrs Amos is, in any event, far from the end of the matter.

The circumstances for observation were far from ideal and Mrs Amos had her work to attend to. The period involved was brief.

The figure she saw was a bit on the plump side. Jean Keir was thin. The suggestion was that she might have put on weight, that she was pregnant or was “just wearing a track suit”.

The figure she saw had curly hair. Mrs Amos said that she had always known Jean Keir with straight hair. This raises a question as to Mrs Amos’ powers of observation as, according to the accused, Exhibit 2 was taken when Michael was one year old, that is, before the occasion referred to in [854]. There is obviously room for error in age estimates. In the circumstances the fact that the sighted woman had curly hair is of little value unless she was otherwise identified as Jean Keir.

Mrs Amos did say that she saw the woman’s features and that appears to be the only aspect upon which the identification could be made other, perhaps, than an unexpressed impression as to movement, although there could not have been much of that.

Mrs Amos did not remember telling someone of her sighting. Memory for facts may well be different to memory for events. Nonetheless, having seen and heard Mrs Amos I would be very doubtful about the identification of Jean Keir even if Mrs Amos had adhered to the certainty expressed in her statement.

As it is, particularly when all the evidence in the case is taken into account, I do not consider that Mrs Amos’ “sighting” raises a reasonable possibility that Jean Keir was alive after 10 February 1988.

The family view referred to by Leonard Strachan is consistent with a document upon which Mr Hanley laid stress, although how that document came to be completed is undoubtedly puzzling.

As referred to earlier Clifford Strachan and Heather Strachan had attended the Mt Druitt Police Station when a person of interest form was made out by Inspector Higgins, as he now is. That form is dated 1 May 1988.

The police records contained a further person of interest form made out by Inspector Higgins dated 30 October 1988. The form is used both for recording an inquiry in respect of a missing person and reporting the location of a missing person.

The second form, as did the first, recorded the next of kin as Clifford Gale Strachan and noted “person located”. The body of the form contained the following entry: “Approximately 1 month ago, 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 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 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.”

Inspector Higgins made a statement in 1991. At that time he clearly had access to his official police notebook, which has since been destroyed. After receiving the original inquiry he did speak to the accused, who told him that he believed that Jean Keir was living with a man at Crows Nest.

Inspector Higgins gave evidence: “Q. Do you have any independent recollection in relation to 30 October as to who it was that was the person reporting on this occasion, 30 October 88? A. Only what is recorded in my statement from 1991. Q. And what you have already indicated, that that was the attendance of two persons, Jean Keir’s father, Cliff Strachan, and Jean’s sister, Heather? A. This is in relation to the attendance on 30 October. Q. Yes? A. Yes, that’s correct.”

He said that he had no independent recollection as to whether he spoke to Leonard Strachan. He did, however, say that from the document he assumed that Leonard Strachan was present.

The Inspector said that no check was made on the identity of persons making such inquiries or reports nor are they required to sign forms or entries in official notebooks.

He gave evidence: “Q. Did you ask these people who is the friend who saw Jean at the shopping centre? A. I assume I either asked or the information was offered but I can’t tell you one way or the other only that the information now appears in my statement. Q. In your statement you have the name Jennifer Solo that recorded as the person who you say the family told you about? A. That’s correct. Q. Was it in effect Jennifer Solo who had seen Jean Strachan at the Emerton shopping centre? A. That is what was indicated. Q. This is not terribly clear in the copy I have, is Ms Solo’s name mentioned in the narrative of the report in Ex M2? A. No it isn’t. Q. When you made your statement on 25 September ’91 you specifically included her as in effect being the person who saw Jean? A. That’s correct. Q. Do you know where you got that name from? A. I can only assume that that information may have been contained in my official notebook at the time.”

The reference in the document to “a friend” and in the statement to Jennifer Soler makes it clear enough that so far as Inspector Higgins was concerned there was one source of the sighting of Jean Keir. Jennifer Soler was not interviewed and the reference to running away is the type of detail that can well accrue in a hearsay repetition or be the result of a misunderstanding. I do not believe that Mrs Amos ever said that the person she saw ran away. Amongst other things it is very unlikely that she would have left her post unattended to go 30 feet to the ATM to speak to the person she saw.

However, the situation is complicated by the fact that each of Clifford Strachan, Heather Strachan and Leonard Strachan deny that they took part in such an interview or “withdrew” concern about Jean Keir.

Clifford Strachan gave evidence about this matter at the second trial in September 2002, having made his first statement the day before. The evidence in that trial was tendered in this one. He gave evidence in cross-examination: “Q. That is the only statement you ever made? A. Yes. Q. And you have been asked for the first time to recall events from 1988 in relation to missing person files, person located files? A. Yes. Q. So you have been asked to recall events from 14 years ago? A. Yes. Q. I don’t want to be at all offensive. Is your memory the best about events? A. Not really. Q. And from that kind of period, 14 years ago, you would agree you don’t have the best of memories? A. Not the best. Q. Is it possible and I know that you have given evidence today, that you would have had no reason to go to the police and have them close this file – missing persons file – do you agree – that is your evidence, you would never have wished that to happen? A. I would never want it closed, no”

After reference to the first visit to report Jean Keir missing he gave evidence: “Q. “Is it possible that you went to see the police subsequent to that date in relation to Jean and you just don’t remember 14 years later? A. I don’t think so, no.”

Mr Crown raised with the accused the possibility that he had in some way instigated the completion of this form. The evidence does not support such a possibility.

Mr Hanley submitted that all three Strachans are lying. This is clearly a possibility but having seen and heard them I do not think it likely.

Leonard Strachan seemed a straightforward witness to me. He was only fourteen at the time and it would not seem unlikely that an issue as to the family’s beliefs would be discussed with him. His position is clearly that at the time he thought Jean Keir alive. It is not easy to see why he would lie now as to expressing that view if he in fact did so.

Heather Strachan denied going to the police station and again it is not easy to see why she would deny doing so if it were the fact.

In so far as the documents record that Jean Keir has been seen that depends upon what the then Jennifer Soler saw and that is a matter which has been examined. The possibility that the Strachans, or some of them, are lying on the point leads me to scrutinise their evidence with great care. However, the circumstances of the case and their relationship with Jean Keir and, indeed, the accused would call for that in any case.

Mr Hanley submitted that this was another example of the accused being handicapped by the destruction of the official notebooks. On this aspect the notebook may have given a clearer answer in some respects, however, the Inspector had access to it when he made his statement and I think it unlikely that it would have assisted further.

It is convenient to now deal with some other matters which could be described as sightings or occasions indicating that Jean Keir was alive after February 1988.

Mrs Aiken lived at 17 Wilkes Crescent Tregear across the road from No 18. She did not work outside the home and in the period 1985 to early 1988 was basically at home. She did not know the accused but she talked to Jean Keir when she went up and down to the shops, just “hello and stuff like that”. They did not visit each other at home. She last saw Michael she thought when he was about two.

About three weeks after she last saw Jean the accused, to whom Mrs Aiken said she had never previously spoken, came over to her where she was sitting on the verandah. She gave evidence: Q. And he, when you had this particular conversation did you go across the road? A. He came across to my place. Q. Where were you staying at the time? A. Just sitting on the verandah. Q. Did he say something to you? A. Yes he told me he had seen Heather speaking to me and we wanted to know where Jean was. Q. Then what? A. That we wanted to know where Jean was and he told us she had gone up to the Hare Krishna at Colo and he had been up there and bashed her and taken Michael back. Q. Did you say anything? A. I said well she has gone. Q. To the best of your memory can you tell us how Mr Keir said these things to you, using the words that he used or the gist of what he said? A. He said she had pissed off to Colo to the holy Krishnas and he had gone up there and bashed the shit out of her and took Michael back. Q. Did you say anything to that? A. I said yeah she has gone.”

Mrs Aiken said that Heather Strachan had come to her on her verandah some ten minutes before and asked her had she seen Jean Keir. Gwendoline Aiken agreed that after she no longer saw Jean Keir she had seen Michael coming and going from the house in Wilkes Crescent with the accused’s mother. Gwendoline Aiken agreed that when she made her statement to police on 15 July 1991 it was several years after the event, however, she denied that she could have been mistaken as to what was said to her.

Gwendoline Aiken said that she had not spoken to the accused since.

In respect of this matter the accused gave the following evidence in chief: “Q. Do you recall a lady Mrs Aiken, one of your neighbours? A. Yes, I remember what she said. Q. Did that happen? A. No. Q. Did you ever speak to her? A. No.”

Having seen and heard Mrs Aiken I think that this conversation very probably did take place. It was said to follow an inquiry by Heather Strachan which could give it purpose. I note that the words “bashed the shit out of her” are not too dissimilar to the accused’s account of his threat to Dai Buckley that “You being a copper or no copper …..just don’t bother coming over anymore. If you do I will kick the shit out of you.”

My view upon this conflict reflects upon the accused’s credit.

Joseph Sarasola died on 25 April 1995 and the Crown tendered a statement made by him on 15 July 1991.

In his statement Joseph Sarasola said that he lived at 20 Wilkes Crescent across the road from 18 Wilkes Crescent and that he had done so for 21 years. He said that he first met the accused and “Jeanie” in about 1984 and that they had a son named Michael who was about six years old. Mr Sarasola said that about three and a half years ago was the last time he had seen “Jeanie” and that at that time she appeared in good spirits.

The last paragraph of his statement reads as follows: “7. In 1989 I went across the road and spoke to Tom. I said, ‘What happened to Jeannie’. He said, ‘She went with a Bargwarn. Jeannie was no good. I caught her with two men in the house and she left me for the Bargwarn’. I said, ‘Where is she now’. Tom said, ‘I don’t know, maybe she went overseas’.”

The accused denied this conversation. I have not seen Mr Sarasola. I am not satisfied that this conversation, if there was one, might not have been in terms not inconsistent with the accused’s position that Jean Keir left him for Carl Nieding.

Christine Strachan gave evidence that she and her husband visited the caravan at Culburra at Christmas 1988 or Easter 1989. She said that she found in a drawer or wardrobe the present which she had sent to her daughter with the accused and her daughter’s handbag and the prayer plaque which had endorsed on the back in her handwriting “To Dear Jean Happy Birthday Mum and Dad”.

Both the bag and the plaque are exhibits. The endorsement is in fact a little different. It has on the top “To Dear Jean” and a date “5/2/88”. That is the date of Jean Keir’s birthday. On the bottom appears “Love from Mum and Dad”.

The bag Christine Strachan said had in it some cosmetics, some hair curlers, a hairbrush and comb and keys including a front door key.

Christine Strachan gave the bag to police in March 1992 and the brush and curlers formed part of the material sent away for DNA analysis, although not in fact used for that purpose.

The accused gave evidence that he had loaded that handbag into the car with two other bags when he and Jean Keir left Culburra. He said that he had taken it into the lounge room at 18 Wilkes Crescent when he arrived home that night.

The accused said that he found that the handbag with the two other bags had gone when he came home on 10 February 1988. He gave evidence. “Q. It had been given to them (the police) by Christine Strachan, that’s right isn’t it? A. It was found in the caravan, but Jean has been back to the caravan since then. Simple as that. Q. Sorry? A. Jean had been back to the caravan since then. That’s how it got back to the caravan, simple. Q. How did it get back to the caravan with Jean? A. I said Jean has been back to the caravan, simple. Q. On what basis do you say Jean went back to the caravan? A. If she had the bag with her when she walked out on 10th and the bag discovered in the caravan that means she been back to the caravan between the time she left and the time it was found. Simple as that quite logical. Q. Is that the conclusion that you subsequently drawn or is that based on information you had at the time that Jean went down to the caravan? A. When Christine said they found the bag down there we concluded Jean had been back to the caravan. Q. Who was ‘we’? A. Christine. She said she found the bag down there, right. I said that goes to prove Jean has been back to the caravan and at that point of time that’s what she believed as well.”

The difficulty with this proposition is that it requires an assumption that Jean Keir, having visited the caravan, would not only leave her handbag behind for no apparent reason but further would leave it in the same drawer or wardrobe as the present her mother had sent to her together with the plaque. I appreciate that Heather Strachan has given evidence that she did not think anything was left behind in the caravan, and that the accused took all the bags, however, I think she must have overlooked the area in which the items were.

To my mind the only reasonable inference is that these items were left behind in the disorganisation that took place when the accused brought Jean Keir back from Culburra. The presence of the plaque in the same place as the handbag adds to the improbability that, visiting the caravan, Jean Keir would at some later time happen to leave her bag behind and to leave it in the same place as the plaque was.

I should note that the accused said that he went through the handbag searching for a telephone number for Carl Nieding. He did not suggest that it contained the plaque.

I do not consider that the finding of the bag in the caravan supports the view that Jean Keir was alive after 10 February 1988. I do consider that the evidence relating to the bag supports the view that Jean Keir was taken against her will from Culburra and also has relevance to the credit of the accused.

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. The Relationship Between the Keirs – The Accused’s Evidence

I have, in general, referred to the accused’s evidence, where relevant, in relation to various issues as I have dealt with them. I should now refer to his evidence on the relationship issue in respect of which I have not, in general, followed that approach.

The evidence established that the accused had no criminal convictions for any crime of violence and a number of witnesses gave evidence that they had never seen him be violent towards Jean Keir or generally.

It is appropriate that I take note of the direction concerning the accused’s character given by Kirby J in the following terms: “Mr Keir is entitled to raise this aspect of his character as being relevant to the charge which he faces; that of murder, which is the most serious of crime of violence that there is. The law provides that the accused is entitled to have you take that evidence into account in his favour. That is, the improbability of a person of that character having committed the offence alleged. In other words, you are entitled to take that aspect of his character into account on the question of his guilt. Further, the accused has given evidence at this trial. He has denied that he was guilty of violence towards Jean Keir, leading to her death. In assessing his credibility you may take account the fact that he is a person with no conviction for violence. He is entitled to ask you to take that into account when deciding whether you accept his evidence.”

The accused said in chief that his relationship with Jean Keir before they became married was very good. They used to go everywhere together. After they were married they continued to engage in social activity. He instanced competition bowling, going fishing, camping with friends and going to the Strachan’s caravan at Culburra. He said that they did that a dozen or more times. His boat was sometimes taken there. He gave evidence: “Q. Did you prohibit Jean from going out with her friends? A. No, I never prohibited her from going out. After we got married, when she wanted to go out a few times, I said, ‘You know with me working so much, we need to spend time together.’ So I just put my foot down and I said, ‘Forget going out this weekend. Let’s go out together.’ That happened 2 or 3 times.”

There was no dispute that the accused worked long hours.

The accused said that he did not object to his wife attending the Chalmers’ 21st birthday and denied that he had sent a minder.

He was sure that Jean Keir had gone to the hen’s night for Shona. He did not object to her going out with the sisters. He did give evidence: “Q. Where did they go? A. I know one time they were going to Panda Restaurant. That might have been the hen’s night actually because they were going to have a dinner and show and everything else at the Panda Restaurant. After that I found out they ended up at the Stallions’ Nightclub. Q. Did you object to her going to that? A. I didn’t know about it.”

The accused said that Jean Keir had worked before they were married in the city at Consolidated Press and as a checkout operator at a grocery store and at the Penrith Council. She enjoyed working he said, and he did not object to her doing so nor force her to leave work.

After Michael was born she stopped work for some two and a half years and then went back to work, he thought initially at Uniwire and that the last job she had prior to 1988 was at Associated Lighting.

The accused gave evidence as to a Mr Warren living with them and I have already dealt with that aspect. He referred to Maria Jones (later Mateo) living with them, he thought for a couple of months, and said that he had not seen her since she had been at the house. He recollected that the day she left there was an argument and he never saw her come back.

The accused said that prior to Mr Tonkin and Heather Strachan coming to live with them the families had seen a fair amount of each other although earlier Heather and Mr Tonkin had been in Tweed Heads.

The accused said that he had not objected to his wife wearing makeup and a number of photographs were tendered which clearly showed that she was wearing at least some makeup.

The accused gave evidence: “Q. Did Jean ever argue with you about your attitude towards the clothes she wore? A. Yes. Not argue. It’s, there was a couple of bits that, of clothing and that that we had discussion over. She said I was being stupid in getting clothing adjusted and that but there was not a real argument.”

He said the he did not object to his wife wearing shorts but that there was pair of cut down denim shorts which had started to fray and became shorter to which he did object.

Heather Strachan gave evidence which supported the view that there was only one particular pair of shorts to which the accused objected and that would be consistent with a photograph tendered which shows her wearing shorts when with the accused and Michael.

The accused did agree that he had asked Christine Strachan to put some lining in a swimming costume which became see-through when wet.

He did say that Jean Keir on a couple of times said that he was being silly and that it did not matter much but that these occasions did not lead to fights or arguments.

He gave evidence: “Q. Did she express any frustration to you about not being able to go out with her friends? A. Yeah. She was getting annoyed and she was saying, like, being stuck at home all the time with Michael, not being able to go and do things with her friends, do things she used to do before and I said, ‘You’re married now’. Q. There was frustration, she was getting annoyed with you. Was that your evidence? A. Yep.”

The accused said that he was not aware that the applicant had depression medication prescribed in February and again in mid-1987.

He said that whilst Heather Strachan and Mr Tonkin were residing with them in 1986 the marriage was going along fine.

When referred to Mr Tonkin’s evidence that he had said to Jean that if she played up she knew what would happen to her he denied that he had ever said anything like that to Jean Keir at any time.

He gave evidence: “Q, You’ve heard friends of Jean say that she told them that you have threatened to hunt her down and find her if she ever went away? A. I’ve heard them say all that but I’ve never said anything like that. Never been said. Q. And you’ve heard them say that Jean told them that she was fearful that if she left you you would kill her? A. Yeah, I heard them say that but, again, I’ve never said anything like that to Jean.”

Taken to Christine Strachan’s evidence as to a threat to put a bullet through Michael’s head the accused said: “A. That’s what I heard Christine say but I never said that at all. The only mention of a bullet is, as far as that was concerned was, actually came from Christine and that was the night that I told Jean that Christine and I were having the affair and Jean rang up Christine’s place to talk to Cliff because she was going to tell Cliff that me and Christine were having the affair and Christine came (as I said) over and Jean was absolutely going ballistic, jumping around and screaming and yelling. Well, then she’s gone in the lounge room. Christine turned around and said to me, ‘You’re stupid. What the hell would you say that for. If you tell Cliff and everything else that means a bullet for you and a bullet for me because you know that he’s like when he gets drunk and he said that, you and me, the pair of us’. That’s where the conversation came from. Q. When was that conversation? A. That conversation was, I think, November ’87.”

I return later to the issue as to whether the accused was having an affair with Christine Strachan.

Taken to the occasion on which Heather Strachan referred to him slapping Jean Keir following some wrestling, the accused referred first to an earlier occasion. He said Garry, Gavin, Heather and Jean had been on the lounge room floor wrestling. He said that Jean had got a few carpet burns on her knees and he had assumed she was just wrestling with Heather, but then he had found out that Garry and Gavin had been over so he said to her, ”Look cut out the wrestling especially when they’re around because you’re married”.

He then said: “A. I just asked Jean to cut out the wrestling because she was married and they were just two young boys hanging about Lisa and Heather and Jean said she wouldn’t be doing any more wrestling in the lounge room and then one particular afternoon early evening when I come home from work I heard all the jumping around and yahooing coming out of the lounge room and I went around the back, came in through the back door and sprung the four of them in the middle of the floor wrestling, arms and legs everywhere. Q. Did that upset you, did it? A. They said that when Jean came over I gave her a slap in the head. Q. Did she hit you back? A. No.”

I think it a reasonable inference that the slap was not so much for the wrestling but rather the wrestling following upon a request to cut it out and acknowledgement by Jean Keir that she would not do it anymore.

The accused said that the slap was not a hard one and that he apologized to Jean Keir, however, he said that she did not slap him back as Heather Strachan had deposed.

The accused denied that he had ever punched Jean Keir nor hit her to cause a bruise and he had caused bruises on her legs by assaulting her. He said that he did smack her face at the time “Christine was there” and that his little finger, which does not straighten, left a tiny mark under the eye which did not last long. It is clear enough from other material that the occasion he refers to is the one on which he says that he told his wife that he was having an affair with her mother.

Taken to the evidence of Peter Bullock as to getting rid of a body and cutting the flesh off, the accused denied having said that. He said of Lisa Bullock that he had never met her before, he had not met her at his home and that the first time he had ever seen her was the first time she came to the Court.

The accused gave evidence: “Q. In 1986 how would you describe the marriage between you and Jean? A. It was running along okay. We had a few ups and downs but nothing dramatic.”

The accused gave evidence as to his telephone conversation with Dai Buckley in the following terms: “A. Well, what actually happened; Jean mentioned that he was calling over and I had asked Jean to ask Dai Buckley to come over on weekends when he was at home and he could bring his girlfriend over, we would have a few drinks on the weekend because it really wasn’t the right thing to do for a single bloke to visit a married woman during the day and stuff like that so Jean had talked to him but Lisa told me a couple of weeks later that she had seen a patrol car parked out the front of the house and Dai Buckley had been visiting again.”

Lisa was a neighbor.

The accused said that in the conversations with Buckley he said “You were asked nicely ….you still persisted … you being a copper or no copper ….I don’t give a shit just don’t bother coming over anymore. If you do I will kick the shit out of you.” He denied that he had threatened to kill Buckley or to use the whip or iron bar on him.

The accused denied that there was an occasion on 1986 when he rang Christine Strachan and told her that Jean Keir was packing her bags and was going to leave him but did agree that there had been an incident involving a “Wendy” (see [1062]). He gave evidence: “Q. And did Jean raise something with you about Wendy? A. Yeah. Well, Jean came into the shower and she said to me that Wendy had come around and she said that we were supposed to be having an affair. Q. How did Jean react to that? A. Well, when she came in she called me a bastard and everything else for screwing one of her friends, as she put it, and when I came out into the lounge room we got it sorted out there and then. Q. Who was present? A. Wendy, Jean and myself.”

He said that Christine Strachan came over a little later, that Jean Keir had phoned Christine and told her about the affair and Christine came over and that they all sat down and had a talk about it and “there was no dramas, everything was finished.” He denied that he had had an affair with Wendy.

In about July or August 1987 Jean Keir went back to work with an arrangement that the accused took Michael to his parents’ place where he was looked after during the day. Michael was then picked up by Christine Strachan who was also to pick up Jean Keir from work. The accused usually took Jean Keir to work in the morning.

In answer to a question as to how the marriage was in early 1987 the accused said: “A. It was, there was a few problems because with the rumours with me and Christine with Jean getting annoyed about a few things, going off the deep end now and again, that is. We had a few hiccups but nothing that we couldn’t sort of get past because I know one time in particular I got home from work one Saturday afternoon and Jean was in an absolute shit of a mood. As she said, Michael had locked a chain around her neck and she was stuck at the house. Can’t do anything and she just went right off and after a while she settled down.”

He also referred to an occasion at Culburra when the accused and others had gone fishing, Jean Keir having elected to stay at the caravan park. He said that when he got back “she just sort of snapped, jumped up and said ‘I’m sick of this fucking baby ….it’s got a dirty arse You change it”. She then gave him Michael, grabbed a towel and went to the beach. The accused said that she cooled down after it but there were just a few things that on occasions she just snapped.

He said that in 1987 Jean Keir raised seeing a marriage counselor but that he said something like “she wouldn’t know what they were talking about because they were not here….if we’ve got any problems we will sort them out between ourselves”.

The accused said that in about September 1987 he became aware of Carl Nieding as a result of something Jean Keir said to him. He gave evidence: “Q. What did she tell you? A. Well, one night in bed Jean and I had just finished making love and she turned around and said, ‘By the way, I’m having an affair’ and I thought she was just joking at first and she said that she had met this bloke and she was having an affair with him.”

He said he went off the deep end a little bit asking her what the hell she was playing at. He said that she would not tell me who he was other than that the name was Carl. That she had met him in a park in the city and started an affair. She would not tell him where Carl lived. He gave evidence: “Q. How did you feel when she told you she was having an affair with Carl? A. I felt pretty lousy but on the other hand I felt although I can’t really. It’s like the pot calling the kettle black because I had been having an affair with her mother that long and it upset me her saying that she’s having an affair with this Carl but I had already been doing the wrong thing for quite a few years as it was.”

He said that Jean Keir told him that the affair was finished and that the next day at work Christine Strachan told him that she was only mucking about with him. When he got home Jean Keir said “yeah, I was only pulling your leg. There was no affair”.

However, he said that the only way he could satisfy himself as to whether there was an affair or not was to locate Carl which in due course he did. He was assisted by the fact that he had on one occasion gone to Bondi Beach with Jean Keir and noticed the direction of her gaze towards some apartment buildings where he later carried out a door knocking exercise.

He had been through the phone book checking out every Carl in the Bondi area and also been to the Randwick Electoral office and examined the Rolls for that area.

The accused said that when he did meet Carl Nieding, and I need not go back to that meeting, he was told by Nieding that they were not having an affair. He gave evidence: “Q. When you first went to try and find him what were you feeling about it? A. Well, driving down there and even at work in the morning before I left work I just wanted to go down there and punch his lights out. Q. When you spoke to him did you still feel angry towards him? A. No. It was funny. When I was sitting on the wall waiting for him I’m thinking to myself, ‘Well, I will give him a chance to explain first and then if he can’t give me a reasonable explanation then I will belt him and there was all sorts of things going through my mind to whether Jean was lying to me or whether he did or whether he didn’t. It was just the not knowing.”

He also gave evidence: “Q. When you left did you believe that he and Jean were not having an affair? A. Yes, eventually. Yeah. The way he spoke to me and everything else he convinced me there was no such affair happening and nothing went on between them, just friends and I thought to myself that Jean was just sort of, sort of saying all that crap and everything else just to annoy me. Just playing silly little games.”

The accused said that he and his wife spoke of Nieding quite a bit in the following week but then ceased to do so. However, he said that Christine Strachan at work was criticising him for “big-noting” Nieding despite him having been “screwing your missus”. It is hard to reconcile this passage in the accused’s evidence with the position, which he had previously said Christine Strachan had taken, namely that Jean Keir was “just mucking him about”.

He said that Jean Keir did not mention Carl Nieding again and did not mention that she had telephoned him. He said that he believed Carl Nieding was out of the picture “that was the end of it”.

Taken to the occasion when he went to pick up Jean Keir at the Page’s home he said that he had to believe that Jean had gone to see Carl Nieding. He gave evidence: “Q. What made you believe that? A. Well, one time – I was most of the time when Jean was at home I would actually ring her from the factory at times just to say goodday and other bits and pieces and on one particular day I rang up and the phone was engaged and I rang up 15 minutes later and the phone was engaged still and it was going on four, three hours. I just couldn’t get through so when I got home I mentioned to Jean about her being stuck on the phone to her mates all the day and she just had a snigger and for some reason I just went over and pressed the redial button on the phone and Carl answered it.”

He gave evidence that Carl Nieding told him that “Jean keeps ringing me.” He said that was in November or December 1987 but that he did not go to see Carl Nieding again nor did he have discussions about Carl Nieding with his wife.

In Christmas 1988 he and Jean Keir went as a family group to Culburra. The accused said that at that point Jean Keir hated Christine Strachan’s guts. He gave evidence: “Q. Were they talking? A. Not at that stage. Originally we were supposed to go down as a family group and when I told Jean about me and Christine having the affair Jean didn’t want to have a bar to do with Christine but eventually talked her into coming to Culburra for the Christmas holidays.”

In January 1988 Associated Lighting was on holidays and Jean Keir was expected to go back to work around 18 or 19 January 1988. The accused said that she just decided that she was not going to go back and that she was going to find another job.

Shortly after this arrangements were made for the Culburra trip which I have already dealt.

The accused gave evidence that in 1988 he received work records from Jean Keir’s last employer Associated Lighting which showed that after the last couple of months she had been there she had taken 6 days off. Clearly he did not receive this information until after Jean Keir’s disappearance.

The accused said that Jean Keir was supposed to be putting the money she was earning away to finance the purchase of a new car as he was teaching her to drive. He said the only reason she had gone back to work was to get enough money to purchase a second car but that he did not know where she was putting that money.

In cross-examination the accused gave evidence: “Q. Mr Keir, you and Jean had quite different personalities, didn’t you? A. Not really. No-one can be exactly the same as each other. We were a little different here and there. She saw things and I saw them a bit differently, but we would get around that. Q. I am suggesting with her outgoing nature and socialising with friends, she was quite different to you, wasn’t she? A. No, I had friends. I used to socialise.” And also: “Q. The friends that Jean brought when she married you was really your circle of friends, wasn’t it? A. It was developing that way, yeah. Q. You came to resent in some ways, didn’t you Mr Keir, her social skills and her circle of friends and the way she made friends? A. No, I got annoyed with a couple of her friends. Q. You became somewhat jealous of her and her friends? A. I got annoyed with a couple of her friends. There is a difference. Q. You became somewhat jealous, didn’t you, in relation to the way she maintained the circle of friends and saw them? A. I wouldn’t say jealous. There might have been a bit of jealousy there, but I can’t see any bloke that is married who’s not a little but jealous of his missus. There’s nothing wrong with a bit of jealousy. Q. I am asking you in your opinion there was some jealousy on your part? A. More than likely. Q. There was possessiveness on your part towards Jean? A. Well Jean was my wife. You would have to be a little bit possessive, wouldn’t you.”

The accused denied that he resented his wife going out with friends but did agree that there were some occasions when he told her no, she was not to go out as planned but that she was to go out with him. He said, however, there were no more than some four of such occasions. He gave evidence: “Q. Do you say she was free to go out with her friends during the week? A. If she was going out somewhere with her friends, she would ring me and let me know and just let me know what time she’ll be back. That is common courtesy. Q. You expected her to keep you informed of when she was going out and with who, isn’t that right? A. Not expected, that was just normal. Q. You expected that as a courtesy? A. It was just normal courtesy.”

He gave evidence: “Q. The fact of the matter is you resented to some degree the extent to which she continued to met with her friends? A. I didn’t resent her. Some things annoyed me like with some of her friends such as they would planning to go to one place and I would find out a week later they went somewhere else. I was lied to. Wouldn’t you be annoyed? You have got to accept the fact that we were married, so therefore I am going to get annoyed. If they say they are going to one place and they end up at another, I was being lied to.”

He also gave evidence: “Q. You said on occasions Jean would lie to you when she went out with her friends? A. Yep. Q. Did that lead to you not trusting her? A. That affected the trust, yes.”

When it was put to the accused that a source of contention between him and Jean Keir was some the clothes she wore, he said “we are talking about seven items of clothing over a period of say, three years”. But he denied there was resentment about his attitude to her wearing makeup and indeed said he had bought it for her. He said “there was never any problem with Jean wearing makeup, never.”

The accused was asked if he expected her to behave differently now that she was married and he replied that that was normal. He gave evidence: “Q. But it was a source of disagreement I am suggesting to you? A. A source of disagreement to the stage where if she wants to go out with her friends on a Saturday night and we were going to go out somewhere, then rather than for us to cancel our plans so she could go out with her friends, we would stick with our plans. When Shona or Fiona rang up and said, ‘Do you want to go out somewhere dancing or something’. I said to Jean, ‘We are going out to dinner instead. Tell your friends no, I am going out with Tom instead.’ They would get annoyed.”

He also gave evidence: “Q. Did you feel that Jean should be behaving more like a married woman and less like a single person? A. Well I was expecting her to start behaving like a married person rather than a single person. Q. And in your opinion on occasions she wasn’t doing that, isn’t that right? A. Well the thing with her friends going out yahooing and carrying on at nightclubs, it’s all right while you are single, but it’s not a good idea to do it when you are married.”

The accused denied that he sought to control the way Jean Keir lived her life. He agreed his wife got annoyed about the sunscreen incident but he said he himself got annoyed about that. It was “not a problem”.

He agreed that he had found some pills in her handbag and thrown them away and that she would not tell him what they were for. He gave evidence: “Q. Did you trust her to look after her own medication? A. Well the point was you can’t say about trust, you have to ask what they were and what they were for, which I did. She wouldn’t tell me, so therefore if she couldn’t be bothered telling me what they were for or what they were they were going in the toilet, and that’s what happened to them.”

He agreed that he hid her contraceptive pills on a number of occasions because he thought that if she fell pregnant then she would be happy about that. He did not agree that, being older and more experienced than his wife and being her mother’s boss, he had trouble accepting Jean Keir as his equal and said that he had no problem with that at all.

The accused disagreed with the proposition that when there were disagreements his wife would bow to his wishes but said that she would eventually, for example, in matters of clothing, change them. 1000 The accused agreed that Christine Strachan’s approach was that he and his wife should work through their differences and seek to make their marriage work. 1001 He gave evidence: “Q. Nonetheless, Mr Keir, as the years went by, 85, 86 and 87, I want to suggest to you that your relationship with Jean tended to deteriorate, didn’t it? A. In 86 there was a few hiccups, and that’s all they were, hiccups. 87, that’s when it started to down a little bit, once Carl came on the scene.” 1002 He gave evidence: “Q. So far as you were concerned, Jean was not unhappy as far as you could tell? A. She was not unhappy. We had a few minor problems, minor disagreements. When Carl came along things went downhill then, but prior to that, we had a few ups and downs, but 95 percent of the time we were happy.” 1003 The accused said that he felt lousy when told of Carl Nieding but that after a few seconds of thinking about it it didn’t hurt that bad “because I had been doing a bad thing against Jean for a long time”. 1004 He said that he did not regard it as a threat to his wife’s loyalty to him because he had been doing the same thing himself. 1005 The accused, when it was put to him that Jean Keir might end in the arms of another man, said that he supposed it was all husbands’ nightmares but denied that it was his nightmare. He gave evidence: “Q. You could see your relationship with Jean gradually eroding, couldn’t you? A. We were having problems and then we were getting the marriage back on the tracks. Things were improving. Everything was starting to get better. As soon as I told Jean about the affair with Christine, after she told me about it with Carl was about the lowest point. The marriage was then stretched but we were getting things back. I realised things were starting to improve. Everything was going along fine.” 1006 He denied that the relationship was deteriorating progressively through 1985, 1986 and 1987. He denied making threats to his wife and in particular denied threatening that he would kill her and Michael if she ever left him or ended up in the arms of another man. 1007 The accused gave evidence: “Q. An occasion when Jean described to him, that’s Colin Page, an incident where you took her in a choke hold and said, ‘This is how easy. It would be easy to kill if ever I caught you messing around with someone else.’ Do you remember that evidence of Colin Page? A. I remember what Colin Page said but that never happened. It was never said. Never happened.” 1008 Mr Crown took the accused through the evidence of the various witnesses as to both threats made by the accused which they had heard and threats to be inferred from evidence given on a hearsay basis. The accused denied them all. It is unnecessary for me to set out the questions and answers in detail to record that fact. 1009 The accused has maintained that he had an affair with Christine Strachan commencing before his association and subsequent marriage with Jean Keir, continuing at times throughout their marriage and after Jean Keir’s disappearance. Christine Strachan denies that allegation. 1010 The accused said that at least ten people are aware of this relationship however, there was remarkably little evidence to support it. The issue is relevant as it could explain the estrangement between Jean Keir and her mother in late 1987 and in1988 and also afford a reason for Jean Keir to dissociate herself from the accused and the marriage. It would seem to me, however, to be a vastly different question as to whether it would provide a reason for her to dissociate herself from her friends and relatives other than her mother. 1011 It would also affect Christine Strachan’s credit. 1012 It is convenient to deal with this matter when considering Mr Hanley’s submissions on the issue of Christine Strachan’s evidence. Consideration 1013 I should note that the Crown in address did not rely upon the smells referred to by Christine Strachan, Mrs Smith and Ben Wilkes and in respect of which Dr Oettle gave some evidence. Accordingly I take that aspect no further. 1014 In considering the many issues that arose as to the relationship evidence I have not found it necessary to reach a concluded view on all the disputed matters. I have earlier indicated a view on some issues and I will not revisit them. 1015 A number of matters of which I am satisfied appear in the discussion below and they, together with the other evidence in the case, lead me to my final conclusion. 1016 It is convenient to deal with certain general matters first. 1017 I accept Mr Hanley’s submission that the passage of time and the two previous trials has led to the possibility of contamination of evidence by an awareness of what others have said before. In general, although not always, I have gone to the earliest version of each witness which has, in general, been brought out where relevant in the cross-examination. 1018 It is, I consider, apparent that following the marriage there was a period of considerable happiness and I do not think it correct to characterise the relationship as one of unrelieved disharmony. However, from about 1985 onwards the relationship was deteriorating and continued to do so. There were significant difficulties before Carl Nieding appeared on the scene. 1019 On the evidence the accused was not violent to his wife other than following the wrestling incident and on one occasion, which he raised, following his advice to her of his affair with her mother. Little was said of this occasion and I think it best not to rely upon it. 1020 The accused was, however, prepared to go beyond verbal disapproval. I accept that he put a T-shirt on his wife, he cut a swimming costume and secured Christine Strachan to line another. 1021 I accept that the long hours the accused worked and also the degree of involvement of her mother in the marriage were causes of dissatisfaction to Jean Keir. 1022 However, I think the accused’s jealousy, suspicion and control were also causes of dissatisfaction. I refer to the evidence of Dai Buckley and Darren Tonkin, the “minder” at the Chalmers’ party and the accused’s evidence that he expected his wife to let him know if she was going out. In this connection he clearly resented being lied to, as he said had occurred. 1023 Mr Hanley submitted that shortly before she went to Culburra Jean Keir faced a dilemma which he described in this way: “ …..that is, she was dissatisfied with her life, dissatisfied with her marriage with the accused, she had become somewhat infatuated in a fairly immature way with Mr Nieding, and she was in a dilemma as to what to do with herself and what to do with her life”. 1024 In substance, his later submissions put that she resolved that dilemma by flight. 1025 Mr Hanley put that Jean Keir had been laying the groundwork for such a flight without taking Michael or suffering condemnation for such a step by complaining to her relatives and friends of the accused’s threats to hunt her down and kill her, particularly if she took Michael. 1026 He supported this view by reference to Jean Keir’s statement to Helen Page that Carl Nieding was teaching her about the Bible. Having regard to Helen Page’s views on religious matters I think that probably a social subterfuge from which no general conclusion should be drawn. 1027 Mr Hanley further referred to Jean Keir’s rejection of offers to help her leave from Fiona Chalmers and Shona McDonald and the explanation that “she loved Tom” and further, that, if they helped, the accused would hunt them down. Having regard to her general state of irresolution I do not think that any positive conclusion can be drawn from these statements. 1028 In any event, I think the calculated scheme Mr Hanley puts is very unlikely to have been within the contemplation or capacity of Jean Keir. It would not be consistent with someone who felt bound to tell her husband of her infidelity, despite warnings and who displayed the naivety, to which Mr Hanley referred, in her relationship with Carl Nieding. 1029 I do not think it probable that Jean Keir would have left without Michael. It is true that she told Carl Nieding that she wanted to leave her family and join him and that Maria Mateo spoke of her saying that she was thinking of leaving and not taking Michael. However, Maria Mateo insisted that these were thoughts, rather than plans and there is much evidence of the attachment of Jean Keir to Michael. 1030 Dr Vellani would be a very experienced judge of the attachment of individual mothers to their children. She had had a long discussion with Jean Keir in January 1988. She said: “I knew that she was a very happy mother. She was very happy to have him and my recollection is that she was very close to her child.” 1031 I propose to go now to a number of matters that I accept, at least, as more probably than not having occurred. 1032 As I have said I was impressed by the evidence of Shona McDonald, I accept it. I think that Jean Keir did say at the high school in late 1987 that she could not leave that, “He’ll kill me. It doesn’t matter where I go”. I also accept that similar words were said on a number of occasions and that on one, at least, Jean Keir said to Shona McDonald, “If I took Michael he would definitely track me down, find me, kill me.” 1033 I also accept Shona McDonald’s evidence that Jean Keir told her that the accused had said to her, Jean Keir, that he would kill her if she ever left him. 1034 Fiona Chalmers gave evidence that on least three occasions Jean Keir told her that she could not leave home because the accused would kill her. I accept that was said. 1035 She later gave evidence as to a threat by the accused to “chop her up and feed her to the dogs”. This item was not referred to in her statement and at the earlier trials. It was also preceded by the words “I think”. 1036 I approach the evidence of Fiona Chalmers with an awareness that she, correctly as it turns out on my findings, formed the view the accused had murdered Jean Keir, relatively early. She also obviously had an adverse view of Christine Strachan. Apart from the matter referred to in the last paragraph she appeared to me to place a gloss on some of her earlier evidence to counter what she perceived to be an attack upon it by Mr Hanley. She had become a protagonist. That is not to say that her evidence is not correct, but it does mean that it should be considered carefully for bias, conscious or unconscious. I think it is better not to rely upon the threat as to “chopping her up”. 1037 Mr Hanley did refer to the unlikelihood of the use of some of the grisly expressions referred to. In fact I think it better not to rely upon them, however, I should point out that the accused does use forceful and colourful language on occasions. For example, his threat, on his own account, to Dai Buckley, Mrs Aiken’s evidence and the accused’s threat in relation to Carl Nieding that he would punch his lights out. 1038 I accept Mr Tonkin’s evidence as to the warning to Jean Keir in the event of infidelity. 1039 I accept Catherine Moore’s evidence as to the statements by Jean Keir, confirmed by the accused, that he had said to Jean Keir that if he could not have her nobody could have her. 1040 Catherine Moore said that this was put boastfully and standing alone it would mean little. However, it does not stand alone. 1041 I accept Catherine Moore’s evidence that the accused “ grabbed Jean Keir out of the water and put the T-shirt on her. He basically stuck it over her head and arms and sort of shoved her back in the water”. 1042 It is convenient to note that neither Counsel put to me that anything followed from Catherine Moore’s evidence as to a telephone call on 9 February 1988. Presumably it was made whilst Jean Keir and Carl Nieding were at the plaza. Its content is neutral. It would be consistent with Jean Keir returning home and being aware that the accused would not let her go to the function or with an intention to flee beyond contact with family or friends. Apart from Catherine Moore’s confidence that the call was not made after 9 February 1988, it would seem highly unlikely that such a call would be the only one that Jean Keir would make after “disappearing”. The timing of Catherine Moore and Carl Nieding would not seem to accord with the call being made by Jean Keir after arriving at 18 Wilkes Crescent. 1043 I accept Maria Boros’ evidence that Jean Keir sought her advice and said “I am upset and I love my little boy I want my marriage to work but I am afraid of Tom.” To her inquiry as to why she was afraid Jean Keir replied “I couldn’t tell you.” I also accept that Maria Boros suggested to Jean Keir that she discuss her problems with Helen Page. 1044 I accept Helen Page’s evidence that Jean Keir told her a week or two before she went missing that she was “terrified of Tom”. 1045 I accept Colin Page’s evidence. In particular his evidence that Jean Keir said to him: “She said that she was frightened of him because she – sometimes they would be fooling around and they would be wrestling around, all of a sudden he would get very serious and get her in some sort of choke hold and say, ‘This is how easy it would be to kill you if ever I caught you messing around with somebody else’.” I think more probably than not that the incidents of which Jean Keir spoke actually occurred. 1046 I accept Marie Mateo’s’ evidence that Jean Keir told her on at least one occasion that she felt that if she left the accused would kill her. 1047 Heather Strachan said in her original statement to police: “Sometimes Tom used to sit around all night when there were a few of us in the house. He said, ‘If Jean ever left me he would cut her up and feed her to the dogs’.” 1048 However, in her evidence in chief she added to this “hunt her down and kill her” and she seemed quite unable to put a context to these statements. As I explain later I do not rely on these expressions. 1049 As Mr Hanley pointed out Christine Strachan, whilst noting Jean Keir’s unhappiness about the accused’s controlling ways, did not give evidence to suggest he had been violent to her or had threatened her. One would hardly expect such conduct, if it did occur, to take place before a mother-in-law. 1050 I come now to deal with Mr Hanley’s submission that Christine Strachan “is a witness who is prepared to say what suits her, whatever she is pursuing at the time” and the further submission as to her alleged affair with the accused. 1051 I should say first that Christine Strachan is a protagonist in this matter. I have, in any event, treated her evidence with caution and relied upon it, in general at least, only where there is other material to support it. 1052 Christine Strachan agreed that in a letter which she wrote to provide background information for a detective she set out certain factually incorrect material so, as she put it, “he would do something.” 1053 In chief Christine Strachan had said that about a year after Jean Keir disappeared a friend Anne Wilkes told her that she had a friend, a detective, who might be able to help find her daughter. 1054 She wrote out a letter of some six pages about the events that had happened. In chief she gave evidence: “Q. Was there anything inaccurate? A. Yes, I put, what I put down was inaccurate. I said, because I remember Heather and a friend went to Crows Nest one night and I put down that Heather did talk to Carl Nieding. Because I wanted him to find this Carl Nieding, because for all I’ve heard was only from Tom, that Carl Nieding ever existed. Q. You wanted the detective to find Carl Nieding? A. Yeah, and I thought if I wrote down that Heather talked to him, he might do something about it. Q. Was that correct, true? A. No, it was not. Q. Apart from that, was the rest of it correct, to the best of your knowledge? A. To my knowledge, yes.” 1055 She agreed in cross-examination that the letter also said that Jean Keir had meet Carl Nieding through a friend at work. She said: “I didn’t want him to know that she met him at a park.” She agreed the statement was incorrect. 1056 Christine Strachan said that she could not remember speaking to the detective and claimed that she thought he was a “private eye” rather than a policeman. 1057 Mr Neave gave evidence that he is now a retired Inspector of Police. As the son of Anne Wilkes, who knew Christine Strachan, he was asked by his mother if he could help. He said that he told Christine Strachan on the telephone that he was a Detective Sergeant of Police. He arranged for her to supply the letter in April 1989 and thereafter spoke to her on the telephone up to three more times. He did in fact make quite extensive enquiries, including meeting with Carl Nieding, however, there was no result. He then passed his material to Detective Oxford of the Homicide Squad. 1058 Mr Neave was not a private detective and I find Christine Strachan’s evidence that he was not easy to accept. On the other hand, they did not meet. They clearly had spoken on the telephone and she had written the letter at his request rather than, as she said, at the suggestion of his mother. There would seem little purpose in being untruthful about that. 1059 More significant, I think, is that, whilst there was reference in the letter to the birthday card and present sent with the accused to Culburra, there was no reference to the enclosed note which Christine Strachan had said she sent. In cross-examination she said that she had forgotten to put that down. No doubt that is possible but seems somewhat unlikely. In any event, as I have indicated earlier, I have not relied upon the accused seeing such a note. 1060 The letter for Mr Neave was not a sworn document, however, what was done reflects significantly upon Christine Strachan’s credit. 1061 Mr Hanley also referred to the matter of the electric heater. I have already indicated why I do not consider that this is material to this issue. 1062 Another matter relied upon by Mr Hanley was Christine Strachan’s evidence in relation to what has been referred to as the Wendy incident. 1063 Christine Strachan gave evidence in chief that the accused had telephoned her to say that Jean Keir was packing and leaving him because she had been told by a girl Wendy that she, Wendy, and the accused were having an affair. Christine Strachan went to the house and found an angry Jean Keir packing. She gave evidence that the accused said: “She couldn’t leave me ….if she leaves me I’ll put a bullet through her head and through her son’s.” Subsequently, she said everybody calmed down “So I didn’t take any notice of it.” 1064 Mr Hanley established in cross-examination that this threat was not brought forward in Christine Strachan’s earlier statements and first appeared in a statement of 6 May 1992 when she said the police wished to resist an application by the accused for access to Michael. 1065 It may be that Christine Strachan had not mentioned the matter before, as she claims, because she did not take it seriously, however, appearing when it did met the needs of the moment and I have not thought it appropriate to rely upon the incident. 1066 A further matter relied upon by Mr Hanley relates to the issue of whether the accused and Christine Strachan were having an affair. 1067 The accused’s evidence is that, although not continuous, he and Christine Strachan were having an affair before his marriage, during the marriage including after the disappearance. Christine Strachan strongly denies any affair. 1068 I do not accept the accused as a truthful witness, on the other hand, Christine Strachan’s credit is not untarnished. 1069 It is significant that the accused gave evidence that the tension leading to the Culburra trip was that “Jean was still upset about me having the affair with her mum”. Carl Nieding, he said, was “out of the picture.” Yet in his record of interview he clearly ascribed it to the affair with Carl Nieding, which, he said, “in January I found out that it was still going.” 1070 Fiona Chalmers gave evidence (see [141]) that Jean Keir had complained to her at age 14 years that she believed that her mother and the accused were having an affair. She also gave evidence that she had said in her statement that Jean Keir was irrational and angry in 1987 and told her that “Christine and Tom were having an affair.” She said in evidence, however, that that occasion was “just her frustration of her mother not helping her and her mother always on Tom’s side.” 1071 Fiona Chalmers also said that Heather Strachan claimed that she had caught Christine Strachan washing the accused’s back in a bath tub. Heather Strachan denies saying such a thing. 1072 Fiona Chalmers made a statement to police after the first trial that at a coffee shop during the trial Christine Strachan had referred to washing the accused’s back. Christine Strachan denied doing so and said that it was her sister Irene Page who made that comment. Irene Page gave evidence confirming that statement and that she had washed the accused’s back whilst he was incapacitated by a back injury. (See [277] to [283]). 1073 Mr Hanley submitted that it was “totally unbelievable” that Irene Page would act as she said she did. I do not find it so. After all she was employed by the accused just as Christine Strachan was. She was asked to help. She was reluctant but did assist. Many people do such things in such circumstances. Having seen Irene Page I find it hard to accept that she had committed deliberate perjury as to which of the two sisters washed the accused’s back. 1074 The accused was aware that Christine Strachan had a scar in the area of her vagina. His solicitors wrote to the Director of Public Prosecutions seeking a gynaecological examination. That was not agreed to, however, Christine Strachan did not deny the scar which she said was due to intercourse too soon after childbirth. 1075 Christine Strachan gave an explanation as to how the accused became aware of this as follows: “Q. Did you tell Tom that you had a scar on that part of your body? A. I didn’t tell Tom nothing. I talked to my daughter, I was referring to the two of them the day Michael was born. She had stitches in and out of her and I had told her that this is what happened to me and for her not to go through this, not to go and have intercourse---- …. I told Jeanie not to get, and I asked him to, I was talking to the two of them in the hospital and well, he didn’t do it, did he, because a week after my daughter was in the same boat I was and she had to be taken to hospital for the stitches.” 1076 Mr Hanley focused upon the added reference to Jean Keir experiencing the same difficulty and by reference to hospital records and Dr Vitelli’s evidence showed that this was not, literally at least, so. This, he put, was evidence of Christine Strachan’s willingness to lie. 1077 I do not agree. The warning Christine Strachan gave seems, having regard to her own experience, by no means unlikely. Jean Keir did seek some treatment and the precise nature and extent of it does not seem to me to matter much. The detail could easily be misunderstood. 1078 The accused and Christine Strachan were associated for quite a long time, as employer and employee, as mother of a young future wife and as friends. I think it improbable that there was an affair but cannot in the evidence before me exclude the possibility that there was. 1079 The result of these matters is that I approach Christine Strachan’s evidence with great care and that I bear in mind a possible reason for Jean Keir to leave her husband but not one, in my view, at all likely to cause her to sever communication with all her family and friends including her son. 1080 Mr Hanley laid emphasis upon the absence of violence in the accused’s past and pointed out that despite his comments as to what he might do to Carl Nieding he in fact adopted a very calm and reasonable attitude. He put that Christine Strachan’s evidence portrayed the accused as an essentially reasonable man. He drew attention to the accused’s willingness to take in Heather Strachan, Mr Tonkin and Maria Mateo. 1081 Mr Hanley raised a question as to why Jean Keir went back to 18 Wilkes Crescent on the night of 9 February 1988 if she were in fact afraid of the accused and what he might do. 1082 The point is a valid one, however, I think there are several answers to it. Jean Keir was clearly reluctant to go home and was urged by Carl Nieding to attempt to work out her problems with the accused. She respected Carl Nieding and obviously regarded him as a man who gave sound advice. 1083 Further, it is likely that she had realised that there was no future for her with Carl Nieding. He gave evidence “….the first thing when I opened the door, she knocked on the door and looked at my face and she said words to the effect of, ‘I’ve made a mistake’.” 1084 Further, Michael was at 18 Wilkes Crescent. 1085 Carl Nieding described her “as resigned to go back”. It seems likely that she proposed to try again to make her marriage work. 1086 Appreciating that there is a good deal of hearsay evidence involved, I consider that there is enough material from enough sources and of sufficient consistency to lead me to conclude beyond reasonable doubt that the accused did over a period of years convey threats to Jean Keir that he would kill her if she left him or “messed around with somebody else.” 1087 I think it more probable than not that the threats extended on occasion to such phrases as “cut her up and feed her to the dogs”. However, I think it better on this aspect to rely upon the matters of which I am satisfied beyond reasonable doubt.” 1088 The occasion on which the accused slapped Jean Keir was not an instantaneous response to some event. He heard the “yahooing” and went around the back. He “sprung” the group and then he disciplined his wife with a slap to the face. 1089 It is convenient to now set out a number of propositions: (a) By the end of 1987 the relationship between Jean Keir and the accused, to use his words, was “stretched”. (b) Jean Keir had had an association with Carl Nieding which had involved intercourse of which the accused was aware. (c) To Jean Keir’s suggestion of marriage counselling in 1987 the accused had replied to use his words: “She wouldn’t know what they were talking about because they were not here. If we’ve got any problems we will sort them out between ourselves”. (d) In February 1988 Jean Keir had gone to Culburra. In the accused’s words: “Jean said she needed time to get herself sorted out. She wasn’t sure what she wanted to do”. (e) On 9 February 1988 the accused went to Culburra to bring his wife home to Wilkes Crescent. He did so because, to use his words to Ms Hanson, “Well, if she had problems to sort out, she couldn’t sort them out miles away, they’ve um got to be sorted out at home. 1090 For ease of reference I repeat my findings in relation to the Culburra trip: (a) The accused went to bring Jean Keir home several days earlier than planned. (b) That Jean Keir did not want to come home. (c ) That the accused sought to bring her home against her will, and (d) That he used a moderate degree of force to that end. 1091 On the way home Jean Keir fled from the accused. She did not tell him that she proposed to do so and left him to discover that she had gone. Further, she went to Carl Nieding. 1092 Communication having been established between the accused and Carl Nieding, the accused said, I accept, something like “bring Jean home, bring her back here.” 1093 That was done under the circumstances I have discussed earlier. 1094 At that point the accused knew that his wife had run away from him and that she had gone straight to Carl Nieding. He must have known that his marriage was in grave difficulty. Having regard to his expressed attitudes he had, I infer, a motive to kill or at least inflict grievous bodily harm upon Jean Keir. Of course having a motive does not, of itself, establish that he acted upon it. 1095 Jean Keir went into the house. Except for the ‘sightings”, in the broader sense, which I have discussed earlier and the accused’s evidence there is no basis for concluding that Jean Keir was ever seen or heard from again by her family, her friends or the services of Government. 1096 In May 1991 seven human bones were found in the area to the west of the house 18 Wilkes Crescent Tregear, an outer suburb of Sydney, quite close to the western wall of the house. 1097 I am satisfied beyond reasonable doubt that the mitochondrial DNA of two of these bones is consistent with an offspring of Christine Strachan and that their nuclear DNA is consistent with an offspring of Christine Strachan and Gaspar Baan. 1098 I am also satisfied that it is 400,000 times more likely that the two bones originated from a child of Christine Strachan and Gaspar Baan than from a child of an unknown couple in the population. 1099 It is my view that the only reasonable inference to be drawn from these circumstances, taken together with the other findings I have made, is that the bones are those of Jean Keir, that she is dead and that her death was caused by an act of the accused on or about 9 February 1988. I am satisfied that the Crown has proved beyond reasonable doubt that Jean Angela Keir is dead and that her death was caused by an act of the accused on or about 9 February 1988. 1100 It is also my view that the only reasonable inference to be drawn from these circumstances, taken together with the other findings I have made, is that at the time of carrying out that act, the accused intended to kill Jean Keir or cause her grievous bodily harm. I am satisfied that the Crown has proved beyond reasonable doubt that at the time of carrying out that act, the accused intended to kill Jean Angela Keir or cause her grievous bodily harm. 1101 I should note that, on the whole of the evidence, I do not accept the accused’s account of what happened in relation to Jean Keir on the night of 9 February 1988 or thereafter. I bear in mind in that regard the principles referred to in [12]. 1102 I have earlier indicated my view that the Crown had proved beyond reasonable doubt that the accused was not acting under provocation when he killed Jean Keir. I should set out my reasons for that conclusion. Provocation 1103 Mr Hanley referred to an alternative verdict of manslaughter based upon provocation, albeit, he made it clear that it was not part of the defence case. 1104 Section 23 of the Crimes Act 1900 provides: 23 Trial for murder—provocation (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of he accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. (3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if: (a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission; (b) the act or omission causing death was not an act done or omitted suddenly, or (c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm. (4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation. (5) This section does not exclude or limit any defence to a charge of murder.” 1105 Mr Hanley helpfully stated in short form some of the matters that might be relied upon when he said: “That is the behaviour of Jean Keir as typified by the Crown’s submissions that her behaviour was provocative to the accused and on this particular day when she had left him and gone to Carl Nieding’s home that was the final insult, and I take it final act of provocation, that may have caused him to act in a manner in which he lost control, taking into account the objective fact and those particular to him of which there is some evidence in this trial.” 1106 Were I hearing this matter with a jury, it would be my duty to first consider whether there could be constructed a realistic hypothesis concerning the facts proved in evidence, and the available inferences which could give rise to the possibility of the defence being a serious issue for consideration. ( R v Peisley [1990] 54 A Crim R 42.) 1107 As I am sitting alone I think it more direct to go straight to the question: “May the conduct of Jean Keir have induced an ordinary person in the position of the accused to have so far lost self control as to have formed an intent to kill or inflict grievous bodily harm on Jean Keir’? 1108 In considering this question I direct myself: (a) An “ordinary” person is one who has the minimum powers of self control expected of an ordinary citizen who is sober and of the same age and consequent level of maturity as the accused. (b) When one speaks of the effect of provocation on an ordinary person in the position of the accused, that phrase means an ordinary person who has been provoked to the same degree of severity and for the same reason as the accused. (c) That I should take full account of the sting of the provocation actually experienced by the accused. (d) That the provocation can include grossly insulting words or gestures. (e) That the conduct or words of Jean Keir which allegedly induced the loss of self control on the part of the accused, need not have occurred immediately before the act causing death but may have occurred at any previous time and may be a course of conduct over a period of time, even years, or may include a course of conduct over a period of time together with other conduct immediately prior to the act causing death. (f) That the words or conduct in question must be viewed as a whole and also in the light of the history of disputation between Jean Keir and the accused. (g) That when dealing with this question I am considering the possible reaction of an ordinary person in the position of the accused, not his or her inevitable or even probable reaction, but his possible reaction. 1109 I have no doubt that the answer to the question I have posed is in the negative. I do not propose to go to the evidence in detail because, on no reasonable view of it, do I consider that the answer should be otherwise. 1110 I should note that I do not consider it necessary to address the question arising under s 23(2)(a). 1111 The negative answer has the consequence that the Crown has negatived provocation. Conclusion and Finding 1112 The above views and findings lead to the conclusion that the accused is guilty of murdering Jean Angela Keir on or about 9 February 1988 at Tregear in the State of New South Wales. I so find.