R v Maybir (No 5)

[2015] NSWSC 1740

Supreme Court

New South Wales

Medium Neutral Citation:	R v Maybir (No 5) [2015] NSWSC 1740
Hearing dates:	14 & 16 October 2015
Decision date:	19 October 2015
Before:	R A Hulme J
Decision:	Statements inadmissible
Catchwords:	CRIMINAL LAW – evidence – admissibility of prior statements of witness to re-establish credibility – s 108 Evidence Act – where evidence in statements already before the jury – evidence not relevant – evidence inadmissible
Legislation Cited:	Evidence Act 1995 (NSW) ss 45, 55, 108
Cases Cited:	R v Maybir (No 2) [2015] NSWCCA 1737
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 judgment is concerned with an objection by senior counsel for the accused to the tender by the Crown of a number of prior statements by a witness for the purpose of re-establishing her credibility which was seriously challenged in her cross-examination. The provisions of ss 45 and 108 of the Evidence Act 1995 (NSW) are relevant. Leave is required in respect of prior consistent statements: s 108(3).

2. The witness concerned is the accused’s former wife, Ms Naomi Brealey. At the conclusion of her evidence the Crown tendered statements she had made to the police on 25 August 2012 and 6 September 2012 in their entirety as well as paragraph 20 of a statement of 29 May 2013 and paragraph 6 of a statement of 6 August 2014.

3. I have ruled that the evidence would not be admitted (T599.22). The following are my reasons.

The issue

4. The deceased was a 7 year-old boy who the Crown alleges was fatally assaulted by the accused. The child was said to have been injured on the morning of 20 May 2013 and was found deceased about 24 hours later.

5. There is no direct evidence, on the Crown case, as to how the fatal injuries were caused. An autopsy examination revealed there were a number of other injuries, some likely caused at about the same time and others in the preceding days and weeks. Of particular significance (to the Crown case), there were bruises on either side of the child’s head as well as an associated fracture to the left parietal bone in the region of the temple. There will be expert evidence to the effect that these injuries are consistent with having been caused by a hand grabbing the child's face with the thumb causing a bruise and the fracture on the left side and fingers causing three bruises on the right.

6. The Crown case is that the accused engaged in a pattern of physical abuse of the deceased in the guise of “discipline” and “punishment” in the months preceding his death. He subjected the child to a variety of assaults including striking him with implements. There were other forms of mistreatment as well.

The Crown’s evidence concerning similar assaults by the accused of his own children

7. The Crown has adduced evidence of the accused having in the past regularly grabbed his own children (when they were toddlers) by the face with fingers and thumb extended from ear to ear. Ms N Brealey gave evidence that he did this and there is evidence from her mother, Ms Ecelini Brealey, which tends to confirm it. Ms N Brealey also gave evidence that the accused would scream at the children; he would smack them with implements such as a spatula, a wooden spoon or a ruler; and, when they were in public, he would pinch the children underneath the upper arm. Such evidence was allowed as tendency evidence: R v Maybir (No 2) [2015] NSWCCA 1737.

8. This evidence is of significance to the Crown case given there is no direct evidence of how the critical injuries to the deceased were caused. It has added significance given the anticipation that the accused will contend that it was the deceased’s mother who caused the facial bruising and the associated fracture and will also contend that she was primarily responsible for harsh physical “disciplining” of the child.

The challenge to the Crown’s evidence

9. Ms N Brealey's evidence about these acts of physical "discipline" and "punishment" of their children prior to the marriage breaking down and the couple separating in July 2012 was disputed and she was cross-examined with some vigour. It was put to her that she had complained to the accused that he did not physically discipline the children at all and that it was she who was involved in physical discipline (T283.5). It was put to her that he never grabbed at the children's faces in the manner she described (T275.48; 311.43; 312.15). It was put that it was her, rather than him, who grabbed the children’s upper arms and struck them with implements such as a wooden spoon (T282.30; 283.35).

10. In the course of the cross-examination, Ms N Brealey was asked about applications she had made for apprehended domestic violence orders against the accused. Specifically, she was asked about statements dated 25 August 2012 and 6 September 2012 that she made in support of such applications. The point of the cross-examination was to establish that in neither of those statements did she make any allegation of the assaults she had said in her evidence that the accused had committed against the children. She said a number of things in response to this questioning, including that the concern she had was not that he was grabbing at the faces of the children but that he was going to kill her and the children and “that was ultimately a bigger threat that I was concerned for” (T277.45). When challenged as to this she cited an incident when the accused was driving with her and the children in the car and he accelerated in the direction of a telegraph pole, saying “he was going to kill us all” (T278.5).

11. Ms N Brealey also said that in the context of making the apprehended domestic violence order applications she was concerned about the accused’s threats to take the children away; he would take them into the bush and do whatever he wanted to them; to “take them and permanently do harm to them”; and that she and the children had been in danger and were living in a terrible time of violence and aggression and were exposed to the accused’s unstable behaviour (T278.43; 279.40; 280.22; 295.50). She said she told the officer taking her statement that the accused was “very abusive and aggressive and threatening” and she and the children were “in imminent danger” (T296.32).

12. The incident which included the accused threatening to kill Ms N Brealey and the children by driving into a telegraph pole was the subject of her statement of 6 September 2012. In that statement she spoke of other aspects of an incident that occurred that day but did not mention this specific allegation. Ms N Brealey appeared to be nonplussed about the omission of this from the statement and suggested that it should be there, or should be in another statement she made. She maintained that she had told the police officer taking her statement about it (T303.11; 307.10). It was put to Ms N Brealey that the reason it did not appear in the statement of 6 September 2012 was because it did not happen but she maintained that she had signed a statement which included it; just not in the one that counsel was referring to (T308.18). Ultimately it was established that she had included that allegation in statements she made on 29 May 2013 and 6 August 2014.

13. Mr Brady SC questioned Ms N Brealey about the later statements. In the course of this the critical portion of paragraph 20 of the statement of 29 May 2013 that the Crown now seeks to get into evidence was adduced before the jury:

“Q. You say [in the statement], ‘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’, do you see that?

A. Correct.

Q. Then you would say, ‘or scream at the top of his lungs striking the dashboard frightening me the kids?’

A. Yes, I do see that.” (T309-310)

14. The Crown also now seeks to get into evidence the content of paragraph 6 of the statement of 6 August 2014. Mr Brady’s cross-examination included the following as to that statement:

“Q. And finally in that statement you actually said at paragraph 6, ‘When we were driving he said words similar to 'I'm going to drive us into a pole and we're all going to die. If you're not with me at least we can all die together’. You said that in August 2014, right?

A. After some experience of having to make up locations I realised that it was something I had to specifically request.

Q. So by that stage 23 months after you say it had occurred?

A. It happened numerous times before that too.

Q. Just didn't happen, did it?

A. The frightening feeling of it is something certainly is traumatic and you don't forget.” (T310-311)

15. (Whilst Ms Brealey’s answers might not appear from the transcript to have been responsive, in the sense of agreeing that what was put in fact appeared in her statement, the impression she conveyed in giving these answers was that she accepted that it did appear in her statement.)

16. Towards the end of the cross-examination it was put to Ms N Brealey that she was “not telling the truth” about the accused “grabbing his kids and squeezing their head” and “assaulting the kids the way you described”. She denied such propositions. (T312)

Re-examination

17. In re-examination, Ms N Brealey was referred to the cross-examination about the lack of reference to the “driving at the tree” [sic – pole] incident in her statement of 6 September 2012. She agreed that “the first time that detail did appear was in your statement of 29 May 2013.” (T314.40)

Determination

6 August 2014 statement (paragraph 6)

18. Working backwards, the Crown sought to get before the jury that in Ms N Brealey’s statement of 6 August 2014 she said that she reported to police on 6 September 2012 an incident which included that she and the children were in the car and the accused’s “moods varied from being upset, crying to yelling and screaming” and “he said words similar to ‘I’m going to drive us into a pole and we’re all gonna die, if you’re not with me at least we can all die together”.

19. This evidence is already sufficiently before the jury. The tender of the relevant paragraph of the statement adds little. Placing it before the jury in written form would only tend to give it more prominence than is warranted. Leave to tender this prior consistent statement is refused.

29 May 2013 statement (paragraph 20)

20. The same could be said in respect of paragraph 20 of the statement of 29 May 2013. Whilst the paragraph is relatively lengthy and provides some context for the critical sentence, that sentence was adduced in the course of the oral evidence and tendering it in written form is both unnecessary and would give it unwarranted prominence. Leave to tender this prior consistent statement is refused.

6 September 2012 statement

21. Mr Brady’s cross-examination of Ms N Brealey in relation to her statement of 6 September 2012 included that she had told the officer and it was recorded in that statement that the accused assaulted her as she was getting out of his car and that her father became involved (she added that her father “protected my children and I”) (T281.38). Mr Brady also obtained her agreement that the statement included that the accused pushed her when she had the children in her arms (T296.47). She, implicitly at least, agreed that there was nothing in the statement about the specific assaults by the accused upon the children that she had given evidence about. She claimed that the officer had not asked her to “go into specifics” but that she had said that “I feared for my children’s safety and myself as we had been living in a situation of severe domestic violence” (T297.40). She was not challenged as to the latter.

22. Mr Brady did not challenge that the 6 September 2012 statement was concerned with an incident in which Ms N Brealey said the accused pushed her against the car while she had the two children in her arms (T298.40). He read to her the entirety of paragraphs 4 through to the first sentence of paragraph 6 which described the events of the car journey during which she had claimed that the accused had threatened to drive the car into a pole. She agreed that it did not contain any mention of that incident but doubted that this was the complete statement; she had a recollection of telling the police officer about it and seeing that it was included in a statement she had made. She thought this copy of her statement might be “ingenuine”. She said she had her copies of all of the statements she had made in her car. A short adjournment was taken to allow her to retrieve them.

23. When the Court resumed Ms N Brealey maintained that she had told the police officer about the driving into the pole threat but the officer had omitted it from the statement. He had shortened the reference by inserting that during the course of the journey, “We had a further discussion”. (That explanation does not make sense because the full sentence states: “We had a further discussion about where the kids and I were going to stay”.) She added that:

“I did sign a statement saying it did happen. It was just a different statement than the one you are referring to.” (T308.21)

24. Mr Brady then put to her that the statement she was referring to was one she made in August 2014.

25. It is clear that Ms N Brealey set out a description of the events of 5 September 2012 in her statement of 6 September 2012. It is equally clear that it contained no reference to the driving into the pole aspect. Her explanation for it not appearing in that statement did not include any claim that she was more focussed upon other aspects of the events of 5 September 2012. If she had, then placing the statement before the jury would be useful in allowing them to assess such a claim. The only purpose that would be served by the jury having access to the statement would be to confirm that there is no mention of the driving into the pole aspect in it; but that is abundantly clear and common ground.

26. Having regard to the evidence that is already before the jury, the statement of 6 September 2012 has no relevance.

Statement of 25 August 2012

27. This statement appears to have been the first made by Ms N Brealey in which she complained of the conduct of the accused. It is relatively short (10 paragraphs) and, aside from formal parts, states the following matters:

The accused was “extremely aggressive and unpredictable”.

Ms N Brealey was assaulted by the accused on 11 November 2011.

Thereafter the accused was increasingly verbally abusive towards her and her parents.

On 10 August 2012 he forced the locked front door of her home. He then verbally abused her and tried to force himself upon her.

He left threatening and harassing messages for her on her phone twice on 20 August 2012.

She had received about 200 text messages in the past month, some being “quite threatening and harassing in nature”.

She felt “scared, intimidated and harassed” and believed that he was stalking her.

She feared for her safety and that of her family.

She did not mind if he wanted to see the children.

28. The statement is said to be relevant in re-establishing Ms N Brealey’s credibility. Given the complete absence of any allusion to the accused being violent towards the children, I fail to see how it could possibly do that. The fact that she did not mind if he wanted to see the children tends to the opposite effect.

29. Having regard to the purpose said to be served by the tender of the statement, I cannot see how it passes first base; it is not relevant: s 55 of the Evidence Act. Even if it was, any probative value that it might have is substantially outweighed by the danger of unfair prejudice.

Ruling

30. It is for these reasons that I have ruled that none of the statements are admissible.

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Decision last updated: 20 November 2015