R v Maybir (No 1)

[2015] NSWSC 1736

Supreme Court

New South Wales

Medium Neutral Citation:	R v Maybir (No 1) [2015] NSWSC 1736
Hearing dates:	9 October 2015
Decision date:	12 October 2015
Before:	R A Hulme J
Decision:	Evidence inadmissible
Catchwords:	CRIMINAL LAW – evidence – tendency – s 97 Evidence Act – admissibility of evidence that accused had a tendency to strike out at an inanimate object when he lost control – evidence too general to have significant probative value – evidence inadmissible
Legislation Cited:	Evidence Act 1995 (NSW) s 97
Cases Cited:	R v Ford [2009] NSWCCA 306; 201 A Crim R 451 R v Maybir (No 2) [2015] NSWSC 1737 Sokolowskyj v R [2014] NSWCCA 55
Category:	Procedural and other rulings
Parties:	Regina Kodi James Maybir
Representation:	Counsel: Mr C Maxwell QC (Crown) Mr G Brady SC (Accused)   Solicitors: Solicitor for Public Prosecutions Younes Espiner Criminal Lawyers
File Number(s):	2013/285215

Judgment

1. HIS HONOUR: The accused, Kodi James Maybir, has pleaded not guilty to the murder of a 7 year old child at Oatley on 20-21 May 2013. He was also arraigned upon a number of other charges, to which he pleaded guilty to some and not guilty to others. Those other charges concern offences of assault, assault occasioning actual bodily harm, reckless wounding, inciting a person under 16 to an act of indecency knowing the act was being filmed for the purpose of producing child abuse material, and producing child abuse material. All of those charges relate to the same child and they are alleged to have been committed in the period of 8 March to 19 May 2013.

2. The child who is the victim, or alleged victim, of these offences was the eldest of three children of a woman with whom the accused had been in a relationship since about mid-January 2013.

3. The Crown alleges that in the early morning of 20 May 2013 the accused physically assaulted the child with the intention of killing him, or at least of causing him really serious harm. The defence case is that there was no such assault, let alone such intention. It will be contended that the injuries which caused the death of the child were sustained as a result of an accident; in the course of the accused playing with the child he accidentally fell to the floor and thereby sustained the relevant injuries. No medical attention was provided to the child. He was found to be deceased about 24 hours later.

4. Other injuries to the child were detected during the course of an autopsy examination. Of particular significance for the Crown are certain bruises and a bone fracture to the front and sides of the face. The Crown contends they were caused by the accused forcefully taking hold of the child’s face but the defence contends that the facial injuries were sustained as a result of the child being hit by his mother with force in the face “shortly before” (T57.18).

5. The Crown will be relying upon the evidence of the accused’s former wife to the effect that he had a practice of taking hold of their children’s faces with one hand and with force; something that is consistent with bruising and a fracture found on the deceased child. The Crown relies upon this for tendency reasoning. I ruled on the admissibility of this evidence separately (see R v Maybir (No 2) [2015] NSWSC 1737) but held that it is admissible.

The evidence to which objection was taken

6. The Crown proposed to lead evidence from a witness, Ms Patricia Connell, the mother of the accused, in terms of what appeared in a statement she made on 21 May 2013 (at [19]). Before referring to it, the context was that Ms Connell gave evidence that she received a telephone call from the accused at 6.00am on 21 May 2013 and he said to her: "Mum, can you come to the studio please as soon as possible because something really bad has happened". (The “studio” was the place where the accused, the deceased, and the deceased’s mother and younger siblings were then living.)

7. It was anticipated that Ms Connell would give evidence that she went to the studio in response to this call. She would say that she parked her car and then the following occurred:

“[19] I walked up the driveway around to the car park of the studio and I saw some ambulances parked there. I saw the ambulance officers and uniformed police standing around talking. My immediate worry was for Kodi as he is my son. Kodi has been so broken hearted lately and sometimes he loses it inside himself. It all gets too much for him and he will have to let it out. I know on two occasions he has punched a wall or a window in pure frustration and he hurt himself. I was thinking that Kodi had probably done something like that but hurt himself really badly.”

8. Mr Brady SC, on behalf of the accused, objected to the evidence I have italicised in the above extract from the statement. On 9 October 2015 I ruled that the evidence was not admissible (T156.5). The following explains that ruling:

Submissions

9. The Crown Prosecutor referred to the features of the anticipated defence that I have summarised above (taken from the defence opening to the jury) and also to three other versions of explanation by the accused as to how the child sustained the fatal injuries given in police interviews: the child fell off a pogo stick; the child fell once when required to stand on objects as a disciplinary exercise; the child fell twice during such an exercise. It is the Crown case that the three versions the accused has given, and the fourth anticipated to be given, are incapable of belief and that “accident” is not a reasonably possible cause of the relevant injuries.

10. It was submitted that:

“[The accused] has assaulted this child in a brutal and violent way and [the] evidence [of Ms Connell] that he acts, to the extent of punching a wall or window extremely [hard] enough to hurt himself when it all gets too much for him, the Crown says has powerful probative force on a circumstantial basis.” (T. 151.19)

11. At this point of the submissions it was conceded that the purpose for which the Crown wished to adduce the evidence was to support tendency reasoning. No notice of an intention to rely upon this evidence as tendency evidence pursuant to s 97(1)(a) of the Evidence Act 1995 (NSW) had been given but Mr Brady indicated that he did not wish to (he said he did not need to) take any point about notice.

12. It was submitted for the Crown that the probative value of the evidence was greater when assessed in the light of the defence case as outlined in Mr Brady’s opening address.

13. Mr Brady submitted that the evidence does not have significant probative value as required by s 97(1)(b). A tendency to strike out at an inanimate object when the accused loses control is too different to what the Crown alleges was the striking of the deceased child with the intention of killing or causing really serious harm. Further, there was a real risk of unfair prejudice in that the jury may place too much weight on a tendency to strike out in circumstances where it is to strike an inanimate object; it may place too much weight on a conclusion that the accused just loses his temper generally and too readily conclude that he is more likely to have assaulted the deceased with the necessary intention for murder.

14. In reply, the Crown Prosecutor submitted that it did not matter that Ms Connell’s evidence concerned the accused striking out at an inanimate object. The important feature was that it showed that he had a tendency, when angry, to strike out at anything; even at a hard surface oblivious to the risk of harming himself.

Determination

15. Ms Connell’s assertion that the accused “sometimes … loses it inside himself” and “it all gets too much for him and he will have to let it out” on its own is so general as to be almost completely devoid of probative value. It is qualified by the subsequent sentence that she is aware of two occasions in which “he has punched a wall or a window in pure frustration and hurt himself”.

16. However, as far as I am aware, there is no evidence that on the morning of 20 May 2013 when the fatal assault is alleged to have occurred, “it all [got] too much for [the accused]” and “he … [had] to let it out”.

17. Moreover, there is nothing to indicate the circumstances in which the prior acts of punching a wall or window occurred and certainly nothing to suggest that it involved the accused’s interaction with children. The evidence is so general as to lack the necessary probative value: s 97(1)(b) Evidence Act; R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at [53] (Campbell JA); Sokolowskyj v R [2014] NSWCCA 55 at [39]-[45] (Hoeben CJ at CL).

Conclusion

18. The evidence is inadmissible as it does not have significant probative value.

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Decision last updated: 20 November 2015