Solicitors:
Solicitor for Public Prosecutions
Younes Espiner Criminal Lawyers
File Number(s): 2013/285215
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Judgment
HIS HONOUR: On 12 November 2015 I made a ruling that certain evidence already adduced as "context evidence" could be relied upon by the Crown as "tendency evidence" pursuant to s 97 of the Evidence Act 1995 (NSW). I gave abbreviated reasons at the time but the following are my more detailed reasons for the ruling.
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The Crown case
The accused is on trial in respect of a number of assaults upon a 7 year-old child and in respect of the murder of that child. The events in question occurred during the course of a 4 month relationship of the accused with the deceased's mother, Ms Kayla James.
The Crown case is to the effect that Ms James was a caring mother who did not mistreat the deceased or his two younger siblings. However, that changed after her relationship with the accused commenced in January 2013. He persuaded her that there was a need to adopt a stricter regime of discipline with the children which included physical punishments. The Crown case is that she came under his thrall and she endeavoured to comply with his disciplinary philosophy.
Ms James has been sentenced for a number of acts of violence towards the deceased. She pleaded guilty to those offences and also to manslaughter on the basis of criminal negligence. The latter was based upon her failure to obtain medical attention for the deceased after he suffered a substantial head injury on the morning of 20 May 2013. He was found dead early the following morning.
The Crown case is that the accused was responsible for administering harsh physical punishments to the children, particularly to the deceased. A great many injuries, including bruises, lacerations and broken bones, both aged and recent, were found on the body of the deceased during an autopsy examination. There is expert evidence to the effect that they cannot be explained by childhood accidents and are indicative of the deceased having been subjected to a considerable degree of physical violence and neglect over some period of time.
The indictment contains 14 counts, the details of which are as follows:
1 Aggravated act of indecency on 8 March 2013
The accused filmed as he tried to get the deceased to insert his fingers into his younger brother's anus.
The accused has pleaded not guilty.
2-4 Assaults on 16 March 2013
5 Produce child abuse material
The accused commanded the deceased's younger brother and sister to slap and punch him. The accused filmed this and laughed as he did so.
The accused has pleaded guilty.
6-7 Assaults on 17 March 2013
While "wrestling" with the deceased the accused struck him a number of times, including by punching. The incident was filmed.
The accused has pleaded not guilty.
8 Assault on 31 March 2013
The accused struck the deceased with a spatula after he had soiled his pants.
The accused has pleaded guilty.
9 Assault on 31 March 2013
The accused hit the deceased around the back and buttocks with a stick after he fell to the ground exhausted while being forced to run along a beach.
The accused has pleaded not guilty.
10-11 Assault occasioning actual bodily, alternatively, assault on 31 March 2013
The accused punched the deceased to the face after he fell to the ground exhausted while being forced to perform "interval running".
The accused has pleaded not guilty.
12 Reckless wounding between 12 and 20 April 2013
The accused, with Ms James, repeatedly beat the deceased with a wooden board on the buttocks causing a number of lacerations.
The accused has pleaded guilty.
13 Produce child abuse material on 19 May 2013
The accused and Ms James filmed the deceased as he was forced to run on the spot while being interrogated for lying.
The accused has pleaded not guilty.
14 Murder on 20-21 May 2013
The accused violently assaulted the deceased during the course of which he inflicted blunt force trauma to the back of his head causing internal injuries that led to death.
The accused has pleaded not guilty to murder but guilty to manslaughter on the basis of criminal negligence for his failure to obtain medical attention. The latter was not accepted by the Crown.
The Crown has also led evidence of a number of other acts of the accused towards the deceased which involved physical or psychological abuse.
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The defence case
The defence case is that the injuries that caused the death of the deceased were sustained as a result of a mishap when a "wrestling" manoeuvre went wrong and the deceased accidently fell to the floor.
The accused's response to most of the assault charges to which he has pleaded not guilty is to the effect that the incidents alleged did not in fact occur. In relation to the assaults in counts 6 and 7 he contends that the acts were incidental to a playful wrestle with the deceased.
The defence case also involves an assertion that it was Ms James who was responsible for the vast majority of the physical abuse of the deceased.
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The asserted tendencies
The Crown asserts that the accused had a tendency to act in a particular way, 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.
I have already ruled that certain evidence by the accused's former wife, Ms Naomi Brealey, may be used as evidence to establish these asserted tendencies: R v Maybir (No 2) [2015] NSWSC 1737. At the time of making that ruling, reference was made by counsel to evidence of Ms James that would also be relied upon by the Crown to establish the tendencies. As that evidence was accepted to be admissible as "context" evidence, it was led on the basis that I would rule later as to whether the Crown would also be able to rely on it for tendency purposes.
When submissions were made in relation to this tendency issue on 12 November 2015, the Crown indicated that it was also relying upon the evidence to establish a tendency of the accused to have a particular state of mind, namely:
(c) an attitude of disdain, dislike and no respect towards the deceased; and
(d) to get angry with the deceased.
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The evidence relied upon to establish the tendencies
The Crown set out the evidence in the form of the following table which I have slightly modified to give each item a unique number and to avoid identification of children:
DESCRIPTION LOCATION WITNESS Transcript
1(a) Grabbing the faces of his children Home of Naomi Brealey Naomi Brealey 271
1(b) Grabbing the face of the deceased and shaking him Studio Kayla James 883 - 884;
912; 1080
2 Inciting CB and AB to assault the deceased Woodpark Kayla James 1343
(Video 13 - Ex CQ)
3 Wrestling with the deceased including punching and elbowing to the ribs and pulling his body by the legs causing the head to whiplash backwards Studio Kayla James 919
(Video 14 - Ex BB)
456; 470
Michael Comer 484-485;
4 Hitting the deceased with a stick across the back and/or buttocks Bulli Beach Belinda Comer 500
Simone Brodar 510; 518;
Kayla James 519-520
904
5 Punching the deceased in the face whilst forcing him to run between two points Bulli camp site Michael Comer 458; 472
Belinda Comer 485-486; 501; 503-504
Belinda Comer 482-483;
6(a) Hitting the deceased with a spatula Bulli camp site Kayla James 495
880; 900-901; 925; 930; 960; 1051
6(b) Hitting his children with a spatula and/ or ruler Home of Naomi Brealey Naomi Brealey 272
7 Holding the deceased down by the arms and torso whilst being hit with a wooden plank by Kayla James Bulli cabin Kayla James 910-911
8 Forcing the deceased and AB to eat their own faeces Studio Kayla James 964
9 Tying a piece of string between the toe and penis of the deceased Bulli camp site Kayla James 963-964
10 Putting ice down the pants of the deceased Bulli camp site Kayla James 964
11 Punching the deceased in the chest whilst forcing him to stand under a cold shower Bulli cabin Kayla James 964
12 Hitting the top of the deceased's feet with the heel of a shoe Studio Kayla James 880; 931
Bulli
13 Hitting or stomping on the right leg of the deceased with a shoe Unknown Dr Brouwer 1157; 1163
14 Causing the crater-like wound to the right foot of the deceased Unknown Dr Brouwer 1164-1166
15 Causing the round healing wound to the left foot of the deceased Unknown Dr Brouwer 1169-1171
16 Causing the fractured fifth left toe of the deceased Unknown Dr Brouwer 1171-1172
17 Causing the fractured ribs of the deceased by either punching, kicking or hitting with a rod-like implement Unknown Dr Brouwer 1148-1149
18 Causing the fractured right little finger of the deceased Unknown Dr Brouwer 1186
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Items 1(a) and 6(b) in the table were the subject of the earlier ruling (R v Maybir (No 2)) and were allowed to be relied upon in support of tendencies (a) and (b).
The Crown clarified that items 2 and 8-10 were relied upon specifically in relation to the tendencies (c) and (d).
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Reasons
Mr Brady accepted that because the evidence was already before the jury he could not realistically submit that there was a danger of unfair prejudice. That was an appropriate concession to make, with respect, but I have nonetheless borne in mind that I will be giving the jury the usual sort of directions that are required in relation to tendency evidence. (In this regard I am mindful of the suggested directions in the Criminal Trials Bench Book).
An exception in relation to that concession was that in relation to items 8 to 10 the jury could misuse the evidence by reasoning that "if someone got angry enough to do that, they would get angry enough to seriously hurt [the deceased]". Rather than being a matter of prejudice, in my view this describes the probative value. The jury has evidence that the accused assaulted the deceased on a number of occasions but not to the extent of causing really serious bodily harm. But then they have the evidence that the deceased was, on the Crown case, violently assaulted by the accused on the morning of 20 May 2013. That would seem to be out of keeping with the previous levels of assault. However, in light of evidence which shows the degree of disdain, dislike and disrespect the accused had towards the deceased, and his ready resort to anger towards the deceased, the events of 20 May 2013 become significantly more explicable. It would, as the Crown Prosecutor pointed out, also serve to support a rejection of the accused's version of "accident".
Mr Brady argued that some of the items were significantly different to some of the alleged incidents the indictment. I do not think that is a valid criticism. It is the overall force of the evidence that must be looked at. Moreover, s 97 requires that regard be had not only to the evidence "by itself" but also to "other evidence adduced or to be adduced by the party seeking to adduce the evidence" in the assessment of whether it has "significant probative value".
In relation to items 14 to 18, Mr Brady argued that they did not establish any tendency because what is described is a result rather than an act. Further, he submitted that there was a "competing inference", namely that Ms James caused those injuries.
Items 14 to 18 as they appear in the above table do describe a result but what the Crown is relying upon is the jury drawing an inference that the accused, in some fashion, caused each of those injuries. Whilst the Crown is somewhat hamstrung in alleging precisely how he did so, it relies upon the general thrust of the evidence, mainly of Ms James, that the accused behaved violently towards the deceased. Moreover, it was put to Ms James that she caused these injuries. Ms James denied such propositions. In these circumstances, as the Crown Prosecutor pointed out, the only other "candidate" is the accused. Accordingly, in my view these items are capable of being regarded by the jury as further evidence that the accused had either or both of tendencies (a) and (b).
In my view, the combined effect of each of the items (aside from item 2 and 8 to 10) has powerful force in establishing tendencies (a) and (b) which, in turn, would have substantial probative value in making out the charge of murder as well as the various assault charges to which the accused has pleaded not guilty. This is particularly the case in relation to item 1(b) which is powerful evidence in connection with the finding at autopsy of bruising and other injury indicative of the deceased having been grabbed by the face in a manner consistent with that described by Ms James and Ms Brealey.
Items 2 and 8 to 10, considered in conjunction with the other items, have powerful probative value in relation to the asserted tendencies (c) and (d). The manner in which I propose to direct the jury will safeguard adequately, in my view, against any risk of misuse.
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Conclusion
For the foregoing reasons I ruled that the evidence could be relied upon by the Crown as tendency evidence.
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Decision last updated: 20 November 2015