Supreme Court New South Wales Medium Neutral Citation: R v Maybir (No 4) [2015] NSWSC 1739 Hearing dates: 22 October 2015 Decision date: 22 October 2015 Before: R A Hulme J Decision: Questions and answers 576-578 of police interview are admissible Catchwords: CRIMINAL LAW – evidence – admissibility of certain questions and answers in accused's police interview that reveal accused made deceased eat his own excrement – s 137 Evidence Act – whether probative value outweighed by danger of unfair prejudice – evidence of accused's state of mind – where evidence has significant probative value – evidence admissible Legislation Cited: Evidence Act 1995 (NSW) s 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 2) [2015] NSWSC 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: The accused is on trial for the murder of a 7 year-old child on 20-21 May 2013. He also faces charges of assault, assault occasioning actual bodily harm, reckless wounding and production of child abuse material alleged to have been committed between 8 March and 19 May 2013, all involving the same child. 2. The Crown will be tendering a recorded interview by police of the accused that occurred on 20 November 2013. Mr Brady SC objects to the following portion (the deceased and his sister have been anonymised): "Q576 [Sister] has told her grandmother that on the morning that [the deceased] went to sleep for the day, which I think we can fairly safely assume is the, the day that he's had his accident - - - A So we assuming now. Q576 - - - that you forced him to eat his own poo - - - A On that morning I made him eat his own poo. Q576 - - - and you have also hit him on the head. That's what [sister], a 5-year-old girl, has said. A So I made him eat his own poo on that morning and hit him on the head. That is a lie, but he has, I have made him eat it before, but not the, then. Q577 You've made him eat his own poo before. A Yes, I have. That was in the very first time they were in the studio and he kept pooin' and hiding his stuff. Q578 O.K. What was the purpose of making him eat his own poo? A There was no purpose. I was just angry." 1. Mr Brady conceded that the evidence was relevant but contended that it was inadmissible on the basis that its probative value was outweighed by the danger of unfair prejudice: s 137 of the Evidence Act 1995 (NSW). 2. After hearing submissions on 22 October 2015 I indicated that I would allow the evidence. The following are my reasons. Background 1. This trial involves a number of allegations of mistreatment by the accused of the deceased child prior to 20 May 2013 when the Crown contends he assaulted him and caused injuries which caused the child's death. There is, and will be, evidence to the effect that the accused had some rather peculiar views (putting it mildly) about what was appropriate in terms of discipline and punishment of children. The Crown alleges he chastised the child's mother for her relatively mild means of disciplining her children and introduced physical punishments and harsh "boot camp" style disciplinary methods into the family. 2. The accused has pleaded guilty in the presence of the jury that on 16 March 2013 he assaulted the child himself and required the child's siblings to punch him (3 counts of assault) and he filmed this cruelty (produce child abuse material). He accepted his guilt of striking the child with a kitchen implement at Bulli on 31 March 2013 (assault). He has also pleaded guilty to his involvement in the beating of the child with a piece of wood by the child's mother at Bulli on an occasion between 12 and 20 April 2013 (reckless wounding). 3. The accused has also pleaded not guilty to the balance of the charges. Aside from the murder of the child, he disputes that on 8 March 2013 he filmed the deceased child as he tried to persuade him to demonstrate how the child's grandfather had sexually molested him (produce child abuse material). He disputes that on 17 March 2013 he assaulted the child in various ways (2 counts of assault). He disputes that on Bulli Beach on 31 March 2013 he struck the child with a stick and that later the same day he punched the child (assault occasioning actual bodily harm, alternatively, assault). He disputes that at Oatley on 19 May 2013 he filmed the "disciplining" of the child for "lying" because he would not agree that he had been sexually abused by his grandfather (produce child abuse material). 4. There is, or will be, other evidence of other forms of inappropriate and/or unsavoury behaviour by the accused towards the deceased, and his siblings. For example, when they lived in his music studio in a small commercial unit block that had no internal bathroom but only communal facilities, he required the children, including the deceased, to urinate into a bucket and defecate into nappies. They lived there in late January – early March 2013 and returned to live there in early May 2013. 5. The Crown case is generally to the effect that the accused particularly singled the deceased child out for "discipline" and punishment to a greater extent than his two younger siblings. The deceased was intellectually disabled and was less communicative and socially adapted compared to them. 6. There is also evidence before the jury that he mistreated his own children in somewhat similar ways. That evidence was allowed on the basis that it had the capacity to establish that the accused had a tendency to act in a particular way or have a particular state of mind, namely to assault young children in his care using his hands or objects for the purpose of disciplining or punishing them and that harm be caused to young children in his care or to be indifferent to the harm caused to them: see R v Maybir (No 2) [2015] NSWSC 1737. 7. The evidence of the forensic pathologist and related expert witnesses is anticipated to reveal that the deceased child had been the subject of quite an ordeal of physical abuse in the months preceding his death which resulted in him sustaining a considerable number of injuries including bone fractures. 8. The circumstances of the murder itself are worth mentioning. It is alleged early in the morning of 20 May 2013 the child was subjected to a brutal assault which caused a catastrophic brain injury. The accused, and his mother, did nothing to summon medical attention until they woke the following morning to find the child dead. The defence case as opened 1. The defence case, as opened by Mr Brady, is to the effect that it was the mother of the children, Ms Kayla James, who physically disciplined the children, particularly the deceased. "She would do that by hitting him hard" (T53.43). The accused sought to circumvent this by introducing the "boot camp" concept. It was said that the accused now accepted that, in hindsight, this was inappropriate for such young children (aged 3, 4 and 7), but at the time he thought it was "a better option" than Ms James hitting them in the way that she was. It was said that he was "ill-equipped to handle the situation he found himself in" and was applying disciplinary techniques he had acquired from television and movies (T55.27). But it was also conceded that he was becoming increasingly infatuated with Ms James and he started doing things to the children that she was doing; for example, he concedes the matters the subject of his pleas of guilty. 2. The defence case was also said to include an assertion that the numerous injuries found on the body of the deceased during the autopsy examination were "in large part caused by Ms James" (T57.10). It will also be contended that shortly before the deceased was injured and died, Ms James struck him to the face with such force that he smacked the back of his head against a door frame (T57.15). There was an element of vagueness in whether this is said to have caused the fatal injury (which was as a result of blunt force trauma to the back of the head) because it was also said that "the injury" was caused as a result of an accident which occurred during playful wrestling between the accused and the deceased (T57.35). Crown submissions 1. The Crown Prosecutor contends that the impugned evidence may properly be placed before the jury as "context evidence". I find that term rather vague. He amplified this by saying that the evidence showed the nature of the interaction between the accused and the deceased. It provided the background to the events that led to the death of the child. It showed that the fatal assault simply did not occur "out of the blue". I take that to mean if there was no such "context" evidence, the jury would be left wondering about how and why the accused could have acted so abominably towards the 7 year-old child on 20 May 2013 by assaulting him with such force as to cause the fatal injuries. 2. It was also submitted that the probative value of the evidence needed to be assessed in the light of the anticipated defence case (and that is why I have summarised it above). In short, it was anticipated by the Crown that the accused's case could convey the notion that he behaved in what he thought was the best interests of the children, albeit conceding now that he had been misguided. Evidence which portrayed the real attitude of the accused towards the children (and particularly the deceased) in the weeks and months leading up to the death could, permissibly, assist the Crown in dissuading the jury from such a view. Whilst there is other evidence that might assist the Crown in this respect, this piece of evidence was said to be particularly compelling, especially as the accused provided this in the interview as if it was not at all outlandish, outrageous or cruel but simply something he did when he was angry. 3. It was acknowledged that anyone would find it highly shocking and offensive that an adult would force a 7 year-old child to eat his own excrement as some kind of punishment. But the Crown contended that this provided its probative force. If that be the case, then there was no danger of any unfair prejudice outweighing such probative force. Defence submissions 1. Mr Brady accepted that the defence case involved a contention that the accused's "boot camp methods" were thought by him, at the time, to be in the best interests of the children. But there was already evidence before the jury that is sufficient to provide the "context" that the Crown sought to establish: the offences to which he has pleaded guilty; the evidence relevant to the offences to which he has pleaded not guilty and other evidence of his behaviour towards the children (for example, the deceased being denied food and water). 2. So, it was submitted that the probative value of the impugned evidence was significantly reduced when regard was had to the other evidence that is, or will be, before the jury. However, the unfair prejudice associated with it was said to be "massive". There was a danger of misuse of the evidence. The jury would find the evidence repulsive. They might misuse it as tendency evidence, namely to act in a particular way if the deceased had done something the accused did not like. The jury might find it more likely that the accused committed the murder. There was also a risk that the jury would consider it to be evidence of bad character "and simply say, 'this man shouldn't be allowed to walk free'" (T815.35). Determination 1. The evidence is admissible because it is very illuminating of the attitude of the accused towards the deceased. That the apparently sane accused would force a 7 year-old intellectually disabled child to eat his own excrement, simply because the accused was angry, could be taken by the jury to indicate that he had an extreme level of disregard and contempt for the dignity and well-being of the child. The other evidence in the case to which Mr Brady referred simply goes to establish the accused's view about what was appropriate discipline and punishment for a child at the time but now concedes was misguided. 2. The relevance of the evidence was conceded. It certainly is relevant in that it may assist in establishing that the accused had such a high level of disdain for the child that he was prepared to perpetrate a brutal assault which caused catastrophic and what would have been obvious brain injury and then failed to summon medical attention for 24 hours. 3. It is not tendency evidence. It does not support an inference that the accused had a tendency to act in a particular way or to have a particular state of mind (and it is not tendered for that purpose). It is evidence that the accused in fact had a particular state of mind. It is a state of mind he held from early in his relationship with the child's mother through to the death of the child a few months later. (See Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 at [356]-[367] for a discussion as to the difference between a person having a state of mind and having a tendency to do so.) 4. The evidence is certainly capable of being regarded as confronting and inflammatory. Before the jury were empanelled I was at pains to point out to them the need for objectivity and dispassion in a case of this nature. I will be reminding the jury of the importance of this. I am not persuaded that they will allow passion or prejudice to prevail over rationality in the assessment of the evidence. 5. In terms of s 137 of the Evidence Act, I was not of the view that the probative value of the evidence, which is significant, is outweighed by a danger of unfair prejudice. Ruling 1. For these reasons, the ruling I made on 22 October 2015 (T840.36) was that questions and answers 576 – 578 of the police interview of 20 November 2013 is admissible. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 November 2015