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Supreme Court 12 November 2015

R v Maybir (No 7)

[2015] NSWSC 1742

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

Citation: R v Maybir (No 7) [2015] NSWSC 1742
Court: Supreme Court of New South Wales
Date: 12 November 2015
Judge: R A Hulme J

Background

The accused stood trial on an indictment of 14 counts, including the murder of a seven-year-old child and multiple assault charges. The alleged offending occurred over approximately four months in early 2013, during the accused's relationship with the child's mother. The Crown alleged the accused administered a harsh physical disciplinary regime to the children in the household, causing the deceased child extensive injuries documented at autopsy, including bruising, lacerations, and fractures.

The accused pleaded not guilty to murder but guilty to manslaughter on the basis of criminal negligence, contending the fatal head injury resulted from a wrestling mishap. His defence on the assault charges was largely that the alleged incidents did not occur, or that the child's mother was primarily responsible for the physical abuse.

This ruling addressed whether evidence already admitted before the jury as "context evidence" could additionally be relied upon by the Crown as "tendency evidence" under s 97 of the Evidence Act 1995 (NSW). A related earlier ruling in R v Maybir (No 2) [2015] NSWSC 1737 had already permitted some evidence from the accused's former wife to be used as tendency evidence.

  • Whether evidence already before the jury as context evidence could be re-characterised and relied upon as tendency evidence under s 97 of the Evidence Act 1995 (NSW)
  • Whether that evidence demonstrated, with substantial probative value, a tendency to assault young children in care using hands or objects for disciplinary purposes
  • Whether the evidence demonstrated a tendency to cause harm to young children in care, or indifference to harm caused
  • Whether items describing injuries rather than specific acts could support an inference of tendency
  • Whether the evidence established two further tendencies: an attitude of disdain, dislike, and disrespect toward the deceased, and a tendency to anger directed at the deceased

Decision

Hulme J ruled that all of the evidence identified by the Crown could be relied upon as tendency evidence in addition to its existing role as context evidence. Because the evidence was already before the jury, the defence did not seriously contest its admission on the ground of unfair prejudice alone. The central question was whether it met the threshold of "substantial probative value" required by s 97.

On the question of injuries described by result rather than specific act (items 14 to 18 in the Crown's table, consisting of forensic evidence of particular wounds and fractures), the defence argued these did not demonstrate any tendency because they described outcomes, not conduct. The court rejected that argument. The Crown was entitled to ask the jury to infer that the accused caused those injuries, particularly given that the child's mother denied responsibility when challenged in cross-examination, leaving the accused as the only other candidate on the evidence.

The court found the combined effect of the evidence was powerful in establishing tendencies (a) and (b): assaulting young children in care, and causing or being indifferent to harm to such children. This carried substantial probative value on both the murder charge and the contested assault counts. Item 1(b), evidence of the accused grabbing and shaking the deceased's face, was noted as particularly significant, being consistent with autopsy findings of facial bruising.

Regarding tendencies (c) and (d), the court was satisfied that certain items, including footage of the accused inciting other children to assault the deceased and evidence of forcing the deceased to consume his own faeces, had powerful combined probative value in establishing the accused's disdainful and hostile attitude toward the deceased. The court noted that any risk of misuse by the jury would be adequately addressed through directions.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 97 of the Evidence Act 1995 (NSW), the assessment of substantial probative value requires consideration of the evidence in combination with other evidence the Crown adduces, not merely the individual item in isolation.
  • Evidence already admitted for one purpose (context) is not automatically inadmissible for a second purpose (tendency); the court confirmed that the same material can serve both functions where the statutory threshold is independently satisfied.
  • Where forensic evidence describes an injury by its result rather than a named act, it can still support a tendency finding if the jury is able to draw a reasonable inference that the accused caused the injury, particularly where an alternative candidate was identified and denied responsibility.
  • The Supreme Court identified that tendency evidence is not confined to physical conduct. An attitudinal tendency, such as disdain, dislike, or habitual anger toward a particular victim, can constitute a cognisable tendency under s 97 where the evidence supporting it carries substantial probative value.
  • Residual prejudice from admitting tendency evidence that is already before the jury is substantially reduced, and the court treated appropriate jury directions as a sufficient safeguard against misuse.

Legislation and Cases Referenced

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

Cases
- R v Maybir (No 2) [2015] NSWSC 1737