R v Maybir (No 2)

1. [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. [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. [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. [4]

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

Tendency evidence

1. [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:

2. [6]

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

3. [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.

4. [8]

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

5. [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:

6. [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.

7. [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.

8. [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.

9. [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.

10. [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.

11. [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.

12. [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).

13. [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.

14. [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.

15. [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.

16. [20]

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

17. [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.

18. [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.

19. [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.

20. [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].

21. [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

1. [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:

2. [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".)

3. [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:

4. [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.

5. [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.

6. [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.

7. [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".

8. [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.

9. [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.

10. [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

1. [36]

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