R v Maybir (No 3) [2015] NSWSC 1738

Supreme Court New South Wales

Medium Neutral Citation: R v Maybir (No 3) [2015] NSWSC 1738 Hearing dates: 22 October 2015 Decision date: 22 October 2015 Before: R A Hulme J Decision: Application for view granted Catchwords: CRIMINAL LAW – evidence – application for a view – s 53 Evidence Act – unopposed by defence – where accused does not wish to be present – where alternations to premises can be sufficiently explained to the jury – application granted Legislation Cited: Evidence Act 1995 (NSW) s 53 Cases Cited: Jamal v R [2012] NSWCCA 198; 223 A Crim R 585 Tongahai v R [2014] NSWCCA 81 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: Many of the events with which this trial is concerned occurred at a studio in Oatley where the accused, the deceased and the deceased's mother and siblings were living. The Crown proposed that the jury be taken to the premises in order to carry out an inspection ("a view"): s 53 of the Evidence Act 1995 (NSW). 2. Mr Brady SC initially opposed the view on the basis that alterations had occurred since the events in question to an extent that it would not be of assistance to the jury (T595.48). However, after receiving further information about those alterations he withdrew the objection (T598.41). 3. The accused is aware of his entitlement to be present at a view: see Jamal v R [2012] NSWCCA 198; 223 A Crim R 585 and Tongahai v R [2014] NSWCCA 81. However, and for understandable reasons (he is in custody), he wishes to waive that right (T839): s 53(3)(a). 4. Having regard to the evidence which has been given to date as well as my (albeit limited) understanding of the evidence yet to come, I am satisfied that a view of the studio premises will assist the jury in understanding the evidence and in resolving issues of fact: s 53(3)(b). 5. It has not been submitted, and I do not consider, that there is a danger that a view might be unfairly prejudicial, misleading, confusing or result in an undue waste of time: s 53(3)(c). 6. I am also satisfied that the alterations that have been carried out to the premises as outlined to me by the Crown Prosecutor (T595) can be explained sufficiently to the jury so that they will not be diverted from a proper understanding of how it was at the material times: s 53(3)(e). There are sufficient visual depictions already in evidence that will aid the jury in this respect (for example, the photographs in Exhibit A and the Interactive Scene Recording and Presentation in Exhibit AH). 7. I accede to the Crown's proposal that there be a view.