R v Maybir (No 2)

[2015] NSWSC 1737

Supreme Court

New South Wales

Medium Neutral Citation:	R v Maybir (No 2) [2015] NSWSC 1737
Hearing dates:	9 October 2015
Decision date:	12 October 2015
Before:	R A Hulme J
Decision:	Tendency evidence admissible. Context evidence inadmissible.
Catchwords:	CRIMINAL LAW – evidence – tendency – s 97 Evidence Act – admissibility of evidence that accused had a tendency to assault young children in his care using his hands or objects for the purpose of disciplining or punishing them – admissibility of evidence that accused had a tendency to cause harm to young children in his care or to be indifferent to harm caused – evidence that accused had a habit of grabbing children by the face is significantly probative – where evidence establishes tendencies relevant to the Crown case – jury to be directed about the permissible and impermissible uses of the evidence – evidence admissible   CRIMINAL LAW – evidence – admissibility of context evidence – where that evidence is said to inform the state of mind of the accused – where evidence is of an earlier relationship of the accused five years before the relevant events – danger of evidence being used for tendency reasoning – little probative value – danger of unfair prejudice – evidence inadmissible
Legislation Cited:	Evidence Act 1995 (NSW) ss 97(1), 101, 137
Cases Cited:	Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 R v Maybir (No 1) [2015] NSWSC 1736 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: This trial involves an allegation by the Crown that the accused committed a variety of offences against a seven year-old boy, the son of Ms Kayla James, culminating in murder on 20-21 May 2013. (See R v Maybir (No 1) [2015] NSWSC 1736 at [1]-[4] for a slightly more detailed overview.)

2. The Crown has given notice pursuant to s 97(1)(a) of the Evidence Act 1995 (NSW) of an intention to adduce tendency evidence from a number of witnesses. It has also put the defence on notice of an intention to lead "context evidence". Mr Brady SC objects to such evidence being given by the accused's former wife, Ms Naomi Brealey.

3. I received evidence on the voir dire and heard submissions from counsel on the afternoon of Friday 9 October 2015. Just before I was to give my ruling when court resumed on Monday 12 October the Crown Prosecutor drew my attention to other evidence that may be relevant to my decision. He referred to a police interview of Ms Kayla James on 4 September 2014 and a statement by Ms Ecelini Brealey of 29 May 2013. Mr Brady said that he accepted that the former was admissible as context evidence but he objected to the latter on the basis that it was being led in support of tendency reasoning.

4. I announced rulings upon the conclusion of the submissions on 12 October 2015. The following represents my reasons for such rulings.

Tendency evidence

5. The tendency set out in the notice is inaptly expressed. It was reformulated in the course of submissions by the Crown Prosecutor as a tendency of the accused to act in a particular way, or to have a particular state of mind, namely:

(a) to assault young children in his care using his hands or objects for the purpose of disciplining or punishing them; and

(b) to cause harm to young children in his care or to be indifferent to the harm caused to them. (T157.47)

6. The evidence in the statement of Ms Naomi Brealey of 29 May 2013, the subject of the objection appears in three paragraphs:

“[17] Kodi would get very angry easily when the kids would cry. When the kids would cry he would yell at me to make them stop or he would yell at them. When they wouldn’t stop or were throwing a tantrum, Kodi would grab the kid’s faces by their cheeks with his right hand as he was right handed. Kodi had huge hands and would be able [to] wrap his hands around from ear to ear of each of the kids to stop them from crying. As he was holding their faces, he would yell at the kids telling them to stop. I would disagree with how he did this and would have many arguments about this. The more noise the kids would make, the harder he would squeeze which made things worse as the kids would cry even more as I could see that it was hurting the kids. When I tried to stop him, it made him even more angrier. Kodi would only do this in front of me or his immediately family, but never in front of anyone else. When we were out [in] public, if the kids were to misbehave, he would use a technique which his mother told the two of us she would use which was to grab the misbehaving child by the upper arm and whilst grabbing the upper arm, softer flesh part of the arm would be pinched whilst the child was being dragged along to act as a punishment without causing a scene. I saw Patricia use on her grandchildren and Kodi tried to use it as well when we were going out, however I saw that it didn’t work, the pinching of the upper arm only caused the kids to be more upset and I would step in before Kodi could use this technique on the kids.

[18] When [the children] were misbehaving but more so if they were crying, Kodi would lose control and would depending on the circumstances, he would react in different ways. He could stand and scream, he could grab the child’s face to stop the crying, lock them in a dark room or he would smack the child with his hands or an object. Kodi would smack the kids on the bottom, back of the legs, sometimes the back and on the hands, rarely around the face or neck. Kodi used to use a wooden spoon, a wooden ruler or a plastic kitchen utensil. He was really old school with his discipline methods and there were times when I was cooking I couldn’t find a wooden spoon in the kitchen, but there were wooden spoons all over the house except for in the kitchen. Kodi also carried a wooden stick in the car, which he would use to smack the kids if they were mis-behaving in car trips. Although he would try [to] not leave bruises on the kids, if he used his hands, the strength of his hands would leave bruising on the kids bodies. There was one occasion where Kodi smacked [our son] on the bottom so hard, I could see a bruise in the form of Kodi’s hand print on [our son’s] bottom.

…

[20] In February 2012, I got a job with Sony at North Ryde. We soon moved from Carlton to Kyeemagh to save some money as I was the sole money earner. Kodi had finished working with the concierge job and was unemployed. Kodi would then drive me to work at North Ryde almost everyday with the kids in the car. The trip from Kyeemagh to North Ryde would be at least 45 to 90 minutes one way. The kids would be in the car for the whole time and would become distressed at being in the car for such a long time. We would argue almost the entire time going to work as he was always irritable in the morning, however on the way home, he would be excited as he would be going back to the studio after we got home. The kids, especially [our daughter] would be so distressed with the travel and our arguing that she would on occasions become physically ill and Kodi would get angry and tell me to ignore her as [our daughter] was only doing it for attention. Kodi would also frequently use the wooden spoon or stick in the car to smack the kids. He would go into fits of rage when he was angry and driving, he would drive in the direction of a telegraph pole to scare us or scream at the top of his lungs and striking the dashboard frightening me and the kids.

7. Ms Naomi Brealey's evidence of the accused grabbing the children's faces by their cheeks with his right hand is of particular significance. In the report of the autopsy examination of the deceased's body, Dr Issabella Brouwer, forensic pathologist, included that she found bruising consistent with having been caused by fingertips and subsurface bleeding on both sides of the face (one bruise on the right side and three on the left) as well as a fracture in the left parietal bone that are consistent with having been caused by the deceased's face having been gripped by a person's right hand with significant force.

8. The statement of Ms Ecelini Brealey, the mother of Naomi Brealey, provides similar evidence:

“There were times when the kids were not listening to Kodi, especially with [the male child] when they would come out of the room with Kodi. Kodi would grab [the male child] by the face especially if he was crying and yell, ‘Look at me, I’m talking to you.’ Kodi would grab [the male child] by his cheeks with the one hand and pull [the male child’s] face towards him whilst Kodi would yell at him. If [the male child] was still crying he would hit him with a wooden spoon and also with his hands across [the male child’s] bottom or legs. Kodi would not hit [the female child], but just yell at her.”

9. The police interview of Ms Kayla James of 4 September 2014 (at Q415 - 443) contains an account of a practice of the accused to grab the deceased child's face, for example:

“Open hand, or he would grab [the deceased’s] face and shove it backwards … he’ll grab him by the face and I can see him getting really angry and upset and squeeze his face and he’ll try and force him to say something. [The deceased] would just squeal.”

Crown submissions

10. The Crown Prosecutor submitted that the evidence of Ms Naomi Brealey, having regard to the evidence of the forensic pathologist, has significant probative value (s 97(1)(b)) in tending to show that the accused acted in the same way at or around the time of the acts which caused death.

11. Ms Brealey's children were much younger than the deceased at the time the accused is said to have behaved in this way towards them; probably aged 2 and 4 compared to the deceased who was aged 7. The Crown Prosecutor noted in this context that whilst the deceased was aged 7, he weighed only 20 kilograms at the time of his death; a weight more consistent with a child of the age of 5.

12. It was also submitted that the multiple injuries sustained by the deceased, including but not limited to the fatal severe blunt force trauma to the back of the head are not explained by any of the versions given by the accused in police interviews, or in the further version that it is anticipated will be given according to the defence opening address.

13. Also in paragraph 17 of Ms Naomi Brealey's statement is her account of the accused having a habit of grabbing the upper arm of a misbehaving child and pinching the soft flesh part. The Crown Prosecutor referred to Dr Brouwer's report in which she said she found multiple bruises on both arms, many having a round to oval shape suggestive of having been caused by fingertips. These findings did not exactly align with what Ms Brealey will speak of but it was submitted that there was "quite strong probative value" nonetheless. This was not developed, but I assume he was referring to a tendency to forcefully grab the arms of children.

14. In paragraph 18 of Ms Brealey's statement there is reference to the accused using his hands or an implement such as a wooden stirring spoon, a wooden ruler or a plastic kitchen utensil to strike her children. This was said to go to a tendency in the accused to punish young children in a way that is not consistent with any civilised view (which it is anticipated that the accused will claim to have had) about the welfare of the deceased.

15. It was submitted that if the conclusion was reached that the evidence had "significant probative value" (s 97(1)(b)) I would find that there is no danger of unfair prejudice, or, using the terms of the statute, "the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant" (s 101). This was said to be because there is no danger of the jury misusing the evidence or, if there was some minimal danger, then the usual directions that would be given by me to the jury would be sufficient to alleviate against it.

16. I take the Crown to be advancing the evidence of Ms Ecelini Brealey as tendency evidence on the same basis as the evidence of her daughter. In further submissions made on 12 October 2015, the Crown Prosecutor referred to the anticipated defence case, as disclosed in Mr Brady's opening, to blame Ms Kayla James for having assaulted the deceased child in a manner that caused the injuries that the Crown says were likely caused by the accused having forcefully grabbed the child's face as described by both Ecelini and Naomi Brealey (as well as Ms James herself).

Defence submissions

17. Mr Brady accepted that "the more specific the evidence in relation to … tendency the more probative it is going to be" and conceded that the most probative of the evidence the Crown seeks to rely upon is that relating to the fingerprint bruises to the deceased's face. However, he submitted that the difference in the ages of the children concerned was significant and so too was the fact that Ms Naomi Brealey speaks of the accused's behaviour with his own children whereas he had no familial relationship with the deceased. The latter point was said to be significant in the context of the accused having some responsibility for disciplining his own children and not in relation to Ms James' children.

18. As to the evidence concerning the accused grabbing the arms of his own children, Mr Brady submitted that there was little or no similarity with the bruising observed by Dr Brouwer. The same was said in relation to the evidence of the accused hitting children with an implement such as a wooden spoon. These activities Ms Naomi Brealey may give evidence about were submitted to be too broad, even generic, to have significant probative value in establishing a relevant tendency.

19. As to whether the probative value of the evidence substantially outweighed the prejudicial effect upon the accused, Mr Brady accepted that there was less danger in relation to the face grabbing evidence. However, in relation to the other activity there was a danger that the jury would simply conclude that the accused is a violent person, or conducted himself in a way that was inconsistent with a civilised view as to the welfare of children, and in either case move from such a conclusion to a finding of guilt.

20. Mr Brady, in essence, relied upon the same submissions when the evidence of Ms Ecelini Brealey was raised on 12 October 2015.

Determination

21. After reflecting upon Mr Brady's submissions, I raised with the Crown Prosecutor on 12 October 2015 whether the Crown was confining the use of the proposed tendency evidence to the acts which caused death. As I suspected, it was confirmed that the Crown would rely upon the evidence as being capable of establishing the tendencies as formulated during the course of submissions (see above at [5]) which is relevant to the treatment of the deceased by the accused in the weeks and months preceding his death as well as, by inference, on the day the injuries that caused death were inflicted.

22. As to the differences in the ages of Ms Brealey's children and the age of the deceased, rather than detracting from probative value this factor is either neutral, or enhances it. That a person was prepared to act in such a way towards children of extremely tender years may indicate that they would be equally likely, and perhaps more likely, to act in such a way towards a child who was a little older.

23. In my view, Ms Naomi Brealey's evidence of the accused's habit of grabbing children by the face, and with force, has significant probative value on its own. So too does the similar evidence of Ms Ecelini Brealey. So too does the combination of this with the other acts of "discipline" referred to by Ms Naomi Brealey in establishing a tendency to act in a particular way and to have a particular state of mind as the Crown has described those attributes. That the accused may be shown to have had such tendencies is relevant generally to the Crown case and particularly so in relation to the inferences the Crown will be inviting the jury to draw as to the manner in which the deceased's death was caused.

24. The jury will be directed that they cannot use the evidence in the illogical way that Mr Brady expressed concern about in his submissions regarding the prejudicial effect of the evidence. I do not believe that the evidence is of a type that would be beyond the capability of a jury to comply with directions as to its permissible and impermissible uses: see, for example, Sokolowskyj v R [2014] NSWCCA 55 at [48]-[50].

25. As an exception to this reasoning, I was not persuaded that the evidence set out in paragraph 20 of Ms Naomi Brealey's statement of 29 May 2013 is admissible. The Crown Prosecutor said that he relied upon the last two sentences. That which precedes them simply provides their context. There is already evidence in paragraph 18 of the statement about the accused's resort to an implement such as a wooden spoon to discipline the children. That which appears in the penultimate sentence is just repetition. That which appears in the last sentence is irrelevant and unfairly prejudicial. The evidence in this paragraph is inadmissible.

Context evidence

26. The Crown has notified the accused's solicitor of an intention to adduce evidence as "context evidence … relating to the punishment and discipline regime implemented by Kodi Maybir on [the deceased] (and where applicable on [the deceased's two siblings])". It was specified that this evidence will include as components of such regime:

1.   Running on the spot

2.   Running along the beach

3.   Food deprivation

4.   Water deprivation

5.   Segregation

6.   Eating faeces

7.   Ice down the underpants

8.   Cold showers

9.   Tying string between the toes and penis

10.    Standing on coffee tin

11.   Squatting against the wall

12.   Shaving head of the deceased

13.   Chanting

27. It was said that the above matters "demonstrate the environment in which the alleged offences occurred and place the alleged offences in their proper context". (Query whether the evidence might more aptly be described as "background evidence".)

28. In relation to Ms Naomi Brealey, the Crown Prosecutor pointed to certain passages in her statement which indicate she may give evidence of the following matters:

An incident in 2005 when the pair were at a shopping centre when he became angry with her. He gave vent to his anger by yelling at her when she was in the ladies restroom and, after she had emerged, taking off his sunglasses and crushing them in his hands and taking out his wallet and throwing it at her. Later that day he apologised to her. He blamed his childhood and as well as an evil spirit that caused him to behave that way. He said a prayer to remove the evil spirit. (Paragraph 9)

After the couple became engaged in 2007 they moved to live together as her parents were not supportive of the engagement. She described this as a "very tumultuous period where he would try to turn me against my family by saying that it was an evil spirit sent from my family that was causing the unhappiness we were experiencing". (Paragraph 12)

There was an occasion after they were married and had seen the birth of their first child in the latter half of 2008 when the accused came home late at night well affected by drugs. Ms Brealey was awoken by a loud crashing noise and found the accused lying on the bottom of the staircase asleep. The next day he told her "that he was pushed in the back by an unknown force which he claimed was an evil spirit". (Paragraph 13)

Crown submissions

29. It was conceded that this was evidence of "the context of another relationship" but submitted that it "tends to inform the state of mind and the view of the world that Kodi Maybir had". Further, it was anticipated that it would confirm a number of things that Ms Kayla James would say in her evidence.

30. The Crown anticipates that it will be the defence case that the accused was infatuated with Ms James and that "really she was the driving force" in the relationship and in the parenting of the children. Ms James, the Crown expects, will paint a contrary picture. The Crown case is that "she was under his thrall" and one aspect of her evidence will concern a belief, derived from the accused, about the "devil" getting into people, particularly the children.

Defence submissions

31. Mr Brady submitted that this was not context evidence; it was really evidence led to invoke impermissible tendency reasoning. The Crown intends to invite the jury to reason that inferences can be drawn from the way the accused spoke and behaved in an earlier relationship to support Ms James' evidence that he spoke and behaved in the same way in his relationship with her.

32. In the course of Mr Brady's submissions I raised with him the case of Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303. He submitted that the so-called "context evidence" in this case was in reality a tendency to have a particular state of mind, as was recognised by the Court in that case (at [361]). But the Court went on in Elomar to accept that the trial judge in that case was right to have held that the evidence established that the appellant had a particular and continuing state of mind and as such it was not tendency evidence. Mr Brady maintained, however, that in this case and having regard to the gap in time between the events Ms Brealey would speak of and the events of 2013 with which this trial is concerned that it is inapt to speak of the evidence establishing a "continuing state of mind".

33. It was submitted that even if I came to the view that the evidence was relevant as context evidence in the way the Crown contended I would exclude it nonetheless on the basis that the probative value was outweighed by the danger of unfair prejudice: s 137 of the Evidence Act. The evidence is concerned with events in 2005, 2007 and 2008. The events with which this trial is concerned occurred about five or more years later when the accused was in a relationship with a different woman with, obviously, different children. It involves evidence of the accused dealing with "evil spirits". And, questions of bad character also arise.

Determination

34. This trial is more concerned about the conduct of the accused than his “state of mind”. His state of mind might provide an explanation for his conduct but that is as far as it goes. The fact that he had a particular state of mind might also make a conclusion more easily reached that he behaved in a particular way. However, I think there is considerable force in Mr Brady's submission that the gap in time tends to negate continuity of mindset and renders the evidence more akin to invoking tendency reasoning.

35. I am not persuaded that the evidence has much probative value and I am concerned about the danger of unfair prejudice. It is quite peripheral to the issues the jury will be called upon to decide. It will be a distraction. If the evidence of what occurred in 2013 is insufficient to persuade the jury about the accused's conduct then I do not think they will be assisted in a fair and rational way about other events which occurred five or more years earlier and in a different relationship if they were not to engage in tendency reasoning.

Conclusions

36. The ruling which I gave on 12 October 2015 was as follows:

1.   The evidence in paragraphs 17 and 18 of the statement of Ms Naomi Brealey of 29 May 2013 is admissible as tendency evidence.

2.   The evidence in paragraph 20 of that statement is inadmissible.

3.   The evidence in paragraph 9 of the statement of Ms Ecelini Brealey of 29 May 2013 is admissible as tendency evidence.

4.   The proposed "context evidence" to be given by Ms Naomi Brealey is inadmissible.

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Decision last updated: 20 November 2015