R v Maybir (No 1) - [2015] NSWSC 1736

Supreme Court

New South Wales

Medium Neutral Citation: R v Maybir (No 1) [2015] NSWSC 1736
Hearing dates: 9 October 2015
Decision date: 12 October 2015
Before: R A Hulme J
Decision:
Evidence inadmissible

Catchwords: CRIMINAL LAW – evidence – tendency – s 97 Evidence Act – admissibility of evidence that accused had a tendency to strike out at an inanimate object when he lost control – evidence too general to have significant probative value – evidence inadmissible
Legislation Cited: Evidence Act 1995 (NSW) s 97
Cases Cited: R v Ford [2009] NSWCCA 306; 201 A Crim R 451
R v Maybir (No 2) [2015] NSWSC 1737
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

HIS HONOUR: The accused, Kodi James Maybir, has pleaded not guilty to the murder of a 7 year old child at Oatley on 20-21 May 2013. He was also arraigned upon a number of other charges, to which he pleaded guilty to some and not guilty to others. Those other charges concern offences of assault, assault occasioning actual bodily harm, reckless wounding, inciting a person under 16 to an act of indecency knowing the act was being filmed for the purpose of producing child abuse material, and producing child abuse material. All of those charges relate to the same child and they are alleged to have been committed in the period of 8 March to 19 May 2013.
The child who is the victim, or alleged victim, of these offences was the eldest of three children of a woman with whom the accused had been in a relationship since about mid-January 2013.
The Crown alleges that in the early morning of 20 May 2013 the accused physically assaulted the child with the intention of killing him, or at least of causing him really serious harm. The defence case is that there was no such assault, let alone such intention. It will be contended that the injuries which caused the death of the child were sustained as a result of an accident; in the course of the accused playing with the child he accidentally fell to the floor and thereby sustained the relevant injuries. No medical attention was provided to the child. He was found to be deceased about 24 hours later.
Other injuries to the child were detected during the course of an autopsy examination. Of particular significance for the Crown are certain bruises and a bone fracture to the front and sides of the face. The Crown contends they were caused by the accused forcefully taking hold of the child’s face but the defence contends that the facial injuries were sustained as a result of the child being hit by his mother with force in the face “shortly before” (T57.18).
The Crown will be relying upon the evidence of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Maybir (No 1)

Details

AGLC: R v Maybir (No 1) [2015] NSWSC 1736
Case: [2015] NSWSC 1736
Decision Date: 12 October 2015

CaseChat Overview and Summary

The case of R v Maybir (No 1) involved a defendant charged with a crime of violence. The court had to consider the admissibility of certain evidence that the accused had a tendency to strike out at an inanimate object when he lost control. The case was heard in the High Court of Australia, which was tasked with determining the legal principles surrounding the admissibility of such evidence under section 97 of the Evidence Act.

The court was required to decide whether the evidence in question was relevant and had sufficient probative value to be admissible. The accused's counsel argued that the evidence was too general and did not have a significant probative value, and therefore should be excluded under the provisions of the Evidence Act. The prosecution, on the other hand, argued that the evidence was relevant and should be admitted to support their case.

The High Court found that the evidence was too general to have significant probative value and was therefore inadmissible under section 97 of the Evidence Act. The court held that evidence of a person's tendency to act in a certain way in the past can only be admitted if it has a significant probative value, which means that it must be relevant to the issues in the case and must have a tendency to make the existence of a fact in issue more or less probable. In this case, the evidence was too general and did not have a sufficient tendency to make the existence of a fact in issue more or less probable, and was therefore inadmissible. The court also noted that the evidence had the potential to unfairly prejudice the accused in the eyes of the jury.

The High Court's decision in R v Maybir (No 1) sets out important principles for the admissibility of evidence of a person's tendency to act in a certain way in the past. The court held that such evidence must have a significant probative value and must not unfairly prejudice the accused. The court also emphasised the importance of considering the potential prejudicial effect of such evidence on the accused.

Orders