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Supreme Court 22 October 2015

R v Maybir (No 4)

[2015] NSWSC 1739

Assault & violenceHomicidePublic order & justice offences
CRIMINAL LAW EVIDENCE S 137 EVIDENCE ACT EVIDENCE OF ACCUSED’S STATE OF MIND EVIDENCE ADMISSIBLE

Citation: R v Maybir (No 4) [2015] NSWSC 1739
Court: Supreme Court of New South Wales
Date: 22 October 2015
Judge(s): R A Hulme J

Background

The accused stood trial for the murder of a seven-year-old intellectually disabled child, allegedly killed on 20 to 21 May 2013. He also faced multiple charges of assault, reckless wounding, and production of child abuse material relating to conduct in the months before the child's death. The accused had entered guilty pleas to several of those charges in the presence of the jury.

During a recorded police interview, the accused admitted to having previously forced the child to eat his own excrement, describing the reason simply as anger. The Crown sought to tender that portion of the interview as part of its case. Defence counsel objected to its admission.

The trial proceeded against a background of significant alleged mistreatment. The Crown's case was that the accused had singled out the deceased child for particularly harsh treatment, while the defence attributed primary responsibility for the child's injuries to the child's mother.

  • Whether the probative value of the objected-to questions and answers from the police interview was outweighed by the danger of unfair prejudice to the accused, under s 137 of the Evidence Act 1995 (NSW)
  • Whether the evidence was properly characterised as tendency evidence or, alternatively, as evidence of the accused's actual state of mind toward the child

Decision

Hulme J ruled the evidence admissible. His Honour found that the admission was highly illuminating of the accused's attitude toward the deceased. The fact that the accused recounted the conduct matter-of-factly, without apparent recognition that it was outlandish or cruel, was itself significant. The jury could take it as indicating an extreme level of disregard and contempt for the child's dignity and wellbeing.

The Court distinguished between tendency evidence and evidence of actual state of mind. Tendency evidence supports an inference that a person was disposed to act or think in a particular way. This evidence, by contrast, showed the accused in fact held a particular state of mind toward the child throughout the relevant period. His Honour drew on the Court of Criminal Appeal's analysis in Elomar v R [2014] NSWCCA 303 in drawing that distinction.

On the s 137 balancing exercise, Hulme J acknowledged the evidence was confronting and inflammatory. However, his Honour was not persuaded that the danger of unfair prejudice outweighed the significant probative value of the evidence. The anticipated defence case, which framed the accused's conduct as misguided but well-intentioned, made evidence of his actual attitude toward the child particularly relevant to the Crown's rebuttal of that narrative.

His Honour also noted that the jury had been directed before empanelment about the need for objectivity and dispassion, and indicated that those directions would be repeated. The evidence was accordingly admitted.

Orders Made

  • Questions and answers 576 to 578 of the accused's police interview of 20 November 2013 were ruled admissible.

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (NSW), a court must exclude evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant; the Supreme Court here found that threshold was not met, even for evidence of deeply disturbing conduct.
  • Evidence of a defendant's actual state of mind toward a victim is distinct from tendency evidence: the former goes directly to what the accused in fact thought or felt, while the latter supports only an inference of a disposition to act or think in a particular way.
  • The anticipated defence case is a relevant consideration in assessing probative value; where a defence narrative characterises the accused's conduct as misguided but benevolent, evidence directly contradicting that characterisation may carry particularly significant probative weight.
  • Highly inflammatory evidence is not automatically excluded; the existence of the danger of unfair prejudice must be weighed against probative value, and judicial directions to the jury about objectivity are a relevant factor in that assessment.
  • The Court confirmed the approach to the state of mind versus tendency distinction set out by the NSW Court of Criminal Appeal in Elomar v R; Hasan v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 at [356] to [367].

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 137

Cases
- Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303
- R v Maybir (No 2) [2015] NSWSC 1737