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Supreme Court 19 October 2015

R v Maybir (No 5)

[2015] NSWSC 1740

Assault & violenceHomicide
CRIMINAL LAW EVIDENCE ESTABLISH CREDIBILITY S 108 EVIDENCE ACT EVIDENCE NOT RELEVANT EVIDENCE INADMISSIBLE

Citation: R v Maybir (No 5) [2015] NSWSC 1740
Court: Supreme Court of New South Wales
Date: 19 October 2015
Judge(s): R A Hulme J

Background

The accused stood trial in the Supreme Court charged in connection with the death of a seven-year-old boy. The Crown alleged the accused had engaged in a pattern of physical abuse of the deceased in the months before his death, with no direct evidence of how the fatal injuries were caused.

A key Crown witness was the accused's former wife. She gave tendency evidence that the accused had habitually grabbed his own children by the face, screamed at them, struck them with implements, and pinched them in public. The Court of Criminal Appeal had previously ruled this tendency evidence admissible.

In cross-examination, the former wife's credibility was strongly challenged. Defence counsel put to her that she had fabricated the allegations of the accused's physical abuse of the children, pointing in particular to the absence of such allegations from statements she made to police in August and September 2012. At the conclusion of her evidence, the Crown sought to tender four of her prior police statements in their entirety, or in part, to rehabilitate her credibility under ss 45 and 108 of the Evidence Act 1995 (NSW).

  • Whether the Crown required leave under s 108(3) of the Evidence Act to tender prior consistent statements to re-establish the witness's credibility.
  • Whether each of the tendered statements was relevant to rehabilitating that credibility, as required by s 55.
  • Whether, where the substance of a prior statement had already been placed before the jury during cross-examination, the statement itself retained any relevance.

Decision

Hulme J ruled that none of the four statements were admissible. The central reason was that the substantive content of the statements the Crown sought to rely upon had already been put before the jury during cross-examination. Defence counsel had read out the relevant paragraphs of the May 2013 and August 2014 statements in the course of cross-examining the witness, and the jury therefore already had that material.

Where evidence is already before the jury, tendering the document containing that evidence adds nothing. His Honour found that admitting those statements would be cumulative and serve no rehabilitative purpose. The statements accordingly failed the relevance threshold in s 55 of the Evidence Act.

Regarding the September 2012 statement, its only purpose would have been to confirm the absence of the "driving into the pole" allegation from it, a matter that was already common ground and abundantly clear. It too lacked relevance. The August 2012 statement made no reference whatsoever to the accused being violent toward the children, and its tender could not serve to rehabilitate the witness on that issue. One passage in that statement, noting she had no objection to the accused seeing the children, tended against her credibility rather than in support of it.

His Honour concluded that, even had any marginal relevance been established, any probative value would have been substantially outweighed by the danger of unfair prejudice to the accused.

Orders Made

• None of the statements are admissible.

Key Takeaways

  • Under s 108(3) of the Evidence Act 1995 (NSW), leave is required before prior consistent statements can be tendered to re-establish a witness's credibility.
  • Where the substance of a prior statement has already been read to the jury during cross-examination, tendering the statement itself adds no further relevance and the document will not be admitted.
  • A prior statement cannot rehabilitate a witness's credibility on a matter it does not actually address: the August 2012 statement, which contained no reference to the accused assaulting his children, could not assist in restoring the witness's credibility on that very issue.
  • Relevance under s 55 operates as a threshold requirement. In this ruling, each statement failed that threshold before any question of balancing probative value against prejudice arose, though Hulme J noted the balance would have weighed against admission in any event.
  • The decision illustrates that rehabilitation under s 108 is tightly confined to evidence that genuinely assists the fact-finder in assessing the witness's credibility in light of the attack made upon it.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 45, 55, 108

Cases:
- R v Maybir (No 2) [2015] NSWCCA 1737