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Supreme Court 12 October 2015

R v Maybir (No 2)

[2015] NSWSC 1737

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

Citation: R v Maybir (No 2) [2015] NSWSC 1737
Court: Supreme Court of New South Wales
Date: 12 October 2015
Judge: R A Hulme J

Background

The accused stood trial for murder and other offences against a seven-year-old boy in the care of his partner. The offences were alleged to have culminated in the child's death on 20-21 May 2013. The Crown sought to lead two categories of additional evidence: tendency evidence from several witnesses, and context evidence from the accused's former wife.

The tendency evidence concerned the accused's alleged pattern of physically disciplining children in his care, including by grabbing their faces with his hand. The proposed context evidence related to events from the accused's earlier relationship, some five or more years before the death.

The defence objected to parts of both categories. The court heard submissions on 9 October 2015 and delivered rulings on 12 October 2015, with these reasons published thereafter.

  • Whether the Crown's proposed tendency evidence was admissible under s 97(1) of the Evidence Act 1995 (NSW), specifically whether it had significant probative value in establishing a tendency to assault young children in his care using hands or objects for the purpose of discipline, or to cause or be indifferent to harm.
  • Whether paragraph 20 of the former wife's statement, which recounted general conduct including road rage behaviour, was admissible as tendency evidence.
  • Whether proposed "context evidence" from the accused's former wife, relating to events from approximately 2005 to 2008, was admissible, and if so whether it should nonetheless be excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice.

Decision

Tendency evidence: admissible in part

Hulme J reformulated the Crown's tendency notice to identify two tendencies: a tendency to assault young children in the accused's care using hands or objects for disciplinary purposes, and a tendency to cause or be indifferent to harm to such children. The former wife's statements described the accused grabbing children's faces by the cheeks with his right hand, smacking them with wooden spoons and other objects, and pinching their upper arms. This evidence aligned closely with the forensic pathologist's findings on the deceased's body, including bruising consistent with fingertip grip on both sides of the face and injuries consistent with a right-hand grip applied with significant force. The court found this evidence had significant probative value and was admissible under s 97(1).

The mother of the former wife gave substantially similar evidence about the accused grabbing a male child by the face and hitting him with a wooden spoon. That evidence was also admitted as tendency evidence. Paragraph 20 of the former wife's statement, which covered generalised irritability and driving conduct rather than the specific tendencies identified, was not admitted.

Context evidence: inadmissible

The Crown sought to lead evidence from the accused's former wife about events in the earlier relationship, including incidents from 2005, 2007 and 2008, as context evidence going to the accused's state of mind. Hulme J accepted the defence submission that the significant gap in time, at least five years, and the fact that the events involved a different relationship and different children, tended to negate any continuity of mindset. The court was not persuaded the evidence had substantial probative value. Even if it were relevant as context evidence, Hulme J concluded the danger of unfair prejudice under s 137 of the Evidence Act would warrant exclusion. The evidence risked distracting the jury and inviting impermissible tendency reasoning rather than informing any legitimate question about state of mind.

Orders Made

  1. Paragraphs 17 and 18 of the statement of Ms Naomi Brealey (29 May 2013) are admissible as tendency evidence.
  2. Paragraph 20 of that statement is inadmissible.
  3. Paragraph 9 of the statement of Ms Ecelini Brealey (29 May 2013) is admissible as tendency evidence.
  4. The proposed context evidence to be given by Ms Naomi Brealey is inadmissible.

Key Takeaways

  • Tendency evidence under s 97(1) of the Evidence Act 1995 (NSW) requires significant probative value; here, evidence of a specific physical habit (grabbing children's faces by the cheeks with one hand) was found to carry significant probative value where the forensic pathology of the deceased's injuries closely matched that described conduct.
  • A tendency notice that is inapt or poorly expressed may be reformulated in the course of submissions, provided the reformulated tendency is properly grounded in the evidence proposed to be led.
  • Where proposed tendency or context evidence covers a discrete aspect of conduct that does not align with the identified tendency, that portion may be severed and excluded while the remainder is admitted.
  • Under s 137 of the Evidence Act, evidence that poses a real risk of inviting impermissible tendency reasoning may be excluded even if it has some residual relevance, particularly where the gap in time is substantial and the circumstances have materially changed.
  • A court assessing "context evidence" directed at state of mind must be satisfied that the evidence genuinely illuminates a continuing mental state rather than merely importing bad character reasoning; a five-year gap and a different relationship were sufficient here to undermine that foundation.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97(1), 101, 137

Cases
- R v Maybir (No 1) [2015] NSWSC 1736
- Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303
- Sokolowskyj v R [2014] NSWCCA 55