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 1. 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. 2. 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. 3. 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. 4. 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). 5. The Crown will be relying upon the evidence of the accused's former wife to the effect that he had a practice of taking hold of their children's faces with one hand and with force; something that is consistent with bruising and a fracture found on the deceased child. The Crown relies upon this for tendency reasoning. I ruled on the admissibility of this evidence separately (see R v Maybir (No 2) [2015] NSWSC 1737) but held that it is admissible.