R v Maybir (No 2) - [2015] NSWSC 1737

Supreme Court

New South Wales

Medium Neutral Citation: R v Maybir (No 2) [2015] NSWSC 1737
Hearing dates: 9 October 2015
Decision date: 12 October 2015
Before: R A Hulme J
Decision:
Tendency evidence admissible.
Context evidence inadmissible.

Catchwords:
CRIMINAL LAW – evidence – tendency – s 97 Evidence Act – admissibility of evidence that accused had a tendency to assault young children in his care using his hands or objects for the purpose of disciplining or punishing them – admissibility of evidence that accused had a tendency to cause harm to young children in his care or to be indifferent to harm caused – evidence that accused had a habit of grabbing children by the face is significantly probative – where evidence establishes tendencies relevant to the Crown case – jury to be directed about the permissible and impermissible uses of the evidence – evidence admissible
CRIMINAL LAW – evidence – admissibility of context evidence – where that evidence is said to inform the state of mind of the accused – where evidence is of an earlier relationship of the accused five years before the relevant events – danger of evidence being used for tendency reasoning – little probative value – danger of unfair prejudice – evidence inadmissible
Legislation Cited: Evidence Act 1995 (NSW) ss 97(1), 101, 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 1) [2015] NSWSC 1736
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: 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.)
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.
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…

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 2)

Details

AGLC: R v Maybir (No 2) [2015] NSWSC 1737
Case: [2015] NSWSC 1737
Decision Date: 12 October 2015

CaseChat Overview and Summary

The case of R v Maybir (No 2) dealt with the admissibility of evidence in a criminal trial. The accused, Maybir, faced charges related to assault of young children in his care. The central issue was whether certain evidence of Maybir's past behaviour towards children was admissible. Specifically, the prosecution sought to introduce evidence that Maybir had a tendency to assault young children in his care using his hands or objects for disciplinary purposes, and that he had a tendency to cause harm to young children or be indifferent to the harm caused. The court had to determine whether such evidence was relevant and admissible under the Evidence Act.

The court considered whether the evidence of Maybir's past behaviour had sufficient probative value to outweigh any prejudicial effect it might have. The prosecution argued that the habit of grabbing children by the face was significantly probative, establishing tendencies relevant to the Crown's case. The court acknowledged that while the evidence could inform the jury about Maybir's state of mind, there was a risk that it would be used for improper tendency reasoning. The court found that the evidence of an earlier relationship five years before the relevant events had little probative value and carried a significant danger of unfair prejudice. Consequently, the court held that this evidence was inadmissible.

The court directed that the jury could consider the admissible evidence that Maybir had a habit of grabbing children by the face, provided they were properly instructed on its permissible and impermissible uses. The court concluded that the evidence was admissible as it established tendencies relevant to the Crown's case and had sufficient probative value. The court also directed the jury on the proper use of the evidence to avoid any potential prejudice.

Orders