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Supreme Court 12 October 2015

R v Maybir (No 1)

[2015] NSWSC 1736

Assault & violenceHomicide
CRIMINAL LAW EVIDENCE TENDENCY S 97 EVIDENCE ACT EVIDENCE INADMISSIBLE

Citation: R v Maybir (No 1) [2015] NSWSC 1736
Court: Supreme Court of New South Wales
Date: 12 October 2015
Judge(s): R A Hulme J

Background

The accused faced trial for the murder of a seven-year-old child at Oatley in May 2013. The deceased was the eldest child of a woman with whom the accused had been in a relationship since early 2013. The Crown alleged that in the early morning of 20 May 2013, the accused deliberately assaulted the child with intent to kill or cause really serious harm. The defence position was that the child's fatal injuries resulted from an accidental fall while playing.

The Crown also proposed to rely on evidence from the accused's mother, Ms Patricia Connell, who had recorded observations about her son in a statement made on 21 May 2013. She described him as sometimes "losing it inside himself" when things became overwhelming, and recalled two occasions on which he had punched a wall or window in frustration, hurting himself in the process.

The Crown sought to use this evidence as tendency evidence to support the inference that the accused was the kind of person who, when overcome with frustration or anger, would strike out. The defence objected to its admission.

  • Whether the mother's observations about the accused's behaviour constituted admissible tendency evidence under s 97 of the Evidence Act 1995 (NSW)
  • Specifically, whether the proposed tendency evidence had "significant probative value" as required by s 97(1)(b)
  • Whether a tendency to strike inanimate objects when losing control was sufficiently connected to the alleged intentional striking of a child to carry the necessary probative weight

Decision

Hulme J ruled the evidence inadmissible. The core difficulty was that the proposed tendency, as articulated, was too general and too remote from the conduct charged to satisfy the significant probative value threshold in s 97(1)(b).

The mother's characterisation of her son as someone who sometimes "loses it" and needs to "let it out" was, on its own, so general as to be almost devoid of probative value. The two specific instances she recalled involved the accused punching a wall or window in frustration, not striking a person, let alone a child.

Hulme J noted there was no evidence that the accused was in any particular state of overwhelm on the morning of the alleged assault. Crucially, nothing in the proposed evidence connected the prior conduct to any interaction with children, nor did it bear a meaningful resemblance to the Crown's allegation of a deliberate, forceful assault intended to kill or cause serious harm.

The Crown's submission that the evidence showed a general tendency to "strike out at anything" when angry was insufficient to bridge that gap. Applying the principles in R v Ford and Sokolowskyj v R, the court found the evidence failed the significant probative value requirement and was inadmissible.

Orders Made

• The evidence regarding the accused punching a wall or window is inadmissible as it does not have significant probative value under s 97(1)(b) of the Evidence Act 1995 (NSW)

Key Takeaways

  • Under s 97(1)(b) of the Evidence Act 1995 (NSW), tendency evidence must have significant probative value; a generalised description of a person's emotional disposition without specific, relevant prior conduct does not meet that standard.
  • A tendency to strike inanimate objects when frustrated was held to be sufficiently different from an alleged intentional assault on a child to lack the necessary connection to the charged conduct.
  • The absence of evidence linking the prior incidents to the accused's state or behaviour at the time of the alleged offence was a significant factor weighing against admissibility.
  • Where proposed tendency evidence relates to conduct bearing no meaningful resemblance to the charged act, courts applying s 97 will scrutinise whether the inferential chain to the alleged offence is genuinely supported, rather than speculative.
  • This decision should be read alongside the companion ruling in R v Maybir (No 2) [2015] NSWSC 1737, where different tendency evidence (from the accused's former wife) was found admissible on the same trial.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 97 (tendency evidence)

Cases
- R v Ford [2009] NSWCCA 306; 201 A Crim R 451
- Sokolowskyj v R [2014] NSWCCA 55
- R v Maybir (No 2) [2015] NSWSC 1737