R v Maybir (No 4) [2015] NSWSC 1739

Supreme Court New South Wales

Medium Neutral Citation: R v Maybir (No 4) [2015] NSWSC 1739 Hearing dates: 22 October 2015 Decision date: 22 October 2015 Before: R A Hulme J Decision: Questions and answers 576-578 of police interview are admissible Catchwords: CRIMINAL LAW – evidence – admissibility of certain questions and answers in accused's police interview that reveal accused made deceased eat his own excrement – s 137 Evidence Act – whether probative value outweighed by danger of unfair prejudice – evidence of accused's state of mind – where evidence has significant probative value – evidence admissible Legislation Cited: Evidence Act 1995 (NSW) s 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 2) [2015] NSWSC 1737 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 is on trial for the murder of a 7 year-old child on 20-21 May 2013. He also faces charges of assault, assault occasioning actual bodily harm, reckless wounding and production of child abuse material alleged to have been committed between 8 March and 19 May 2013, all involving the same child. 2. The Crown will be tendering a recorded interview by police of the accused that occurred on 20 November 2013. Mr Brady SC objects to the following portion (the deceased and his sister have been anonymised): "Q576 [Sister] has told her grandmother that on the morning that [the deceased] went to sleep for the day, which I think we can fairly safely assume is the, the day that he's had his accident - - - A So we assuming now. Q576 - - - that you forced him to eat his own poo - - - A On that morning I made him eat his own poo. Q576 - - - and you have also hit him on the head. That's what [sister], a 5-year-old girl, has said. A So I made him eat his own poo on that morning and hit him on the head. That is a lie, but he has, I have made him eat it before, but not the, then. Q577 You've made him eat his own poo before. A Yes, I have. That was in the very first time they were in the studio and he kept pooin' and hiding his stuff. Q578 O.K. What was the purpose of making him eat his own poo? A There was no purpose. I was just angry." 1. Mr Brady conceded that the evidence was relevant but contended that it was inadmissible on the basis that its probative value was outweighed by the danger of unfair prejudice: s 137 of the Evidence Act 1995 (NSW). 2. After hearing submissions on 22 October 2015 I indicated that I would allow the evidence. The following are my reasons.