R v LMW

[1999] NSWSC 1342

CITATION:	R v LMW [1999] NSWSC 1342
CURRENT JURISDICTION:
FILE NUMBER(S):	070031/99
HEARING DATE(S):
JUDGMENT DATE:	25 November 1999
PARTIES :	Regina (Crown) LMW (Accused)
JUDGMENT OF:	Studdert J

COUNSEL :	G. Smith (Crown) P. Zahra (Accused)
SOLICITORS:	Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Accused)
CATCHWORDS:	CRIMINAL LAW - evidence - juvenile accused - psychiatric testing - admissibility of expert psychiatric evidence
ACTS CITED:	Evidence Act
DECISION:	Evidence excluded under s 137 of the Evidence Act.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

STUDDERT J

Thursday 25 November 1999

070031/99 REGINA v LMW

JUDGMENT
(On admissibility of evidence of Dr Wotton)

1. HIS HONOUR: Counsel raised a matter concerning the admissibility of certain of the material covered in a report served by the Crown upon the defence. This was a report of Dr Wotton, psychiatrist, who assessed the accused on behalf of the Crown. In the course of that discussion the Crown indicated that endeavours would be made to obtain a supplementary report but, in any event, I indicated I would entertain an application for the doctor’s evidence, or those parts the subject of concern, to be taken first on the voir dire. That course was indeed followed yesterday and the doctor was examined and cross-examined in the absence of the jury at some length. Mr Zahra then called Dr Waters, a psychiatrist qualified in the case for the defence.

2. The focus of the objection taken to the evidence of Dr Wotton was the following:

(i) a passage of page 8 of his report:

“[LMW] now seemed to have dropped his guard, and was quite enthusiastic when I asked him what sort of music he liked. He told me excitedly that he liked ‘Two Pack - he died 2 years ago!’ I asked [LMW] how this had happened. He told me importantly: ‘He died in a drive-by shooting. It was a gang killing. He bashed the hell out of another gang dude.’ I asked [LMW] how he had come by this information, and he told me that his sister had told him. He added ‘Me Mum’s boyfriend said about Two Pack: “He’s shit and he’s dead!”’”

(ii) a passage on page 10 under the head “Spontaneous play”:

“The two figures that [LMW] had chosen to play with were both fighting-action type figures. One was a figure from ‘Star Wars’, the other was a heavily-muscled warrior. [LMW] told me that one of the figures was ‘Predator’. I professed ignorance about this. [LMW] told me: ‘He’s invisible - he goes around killing everyone.’ He engaged the two figures in a fight, looked pleased as he did so. I asked what he liked about Predator. [LMW] told me: ‘I like the way he killed him. The dude was laughing and then they had ten seconds to get away and then the bomb went off!’
[LMW] continued engaging the two figures in a fight. I asked him which one would he choose to be. He told me (pointing to ‘Predator’): ‘This dude. He can never be killed - he’s invisible.’
[LMW] was staring at the figures, and seemed to have some realisation of what he was saying. He suddenly dropped the figures back into the box. I asked him if what he had been playing had reminded him of something. [LMW] told me ‘I just put it away.’”

(iii) a passage on page 13:

“This shows a large tiger springing into mid-air towards its intended prey - a monkey. [LMW] said in a sing-song way: ‘He’s goin to get a monkey to eat…he’s hungry.’ I asked how the tiger would be feeling. [LMW] told me: ‘Hungry!’ I asked about the monkey. [LMW] put on a funny voice: ‘What you doin’ man? You gonna eat me?’ I asked how the monkey would be feeling. [LMW] told me: ‘Sad - because he will die.’”

(iv) a further passage on page 13:

“This picture shows two adult bears asleep in a cave, with a younger bear at the mouth of the cave, awake. [LMW] said: ‘Bears in the cave asleep.’ I asked if he could see anything else. [LMW] looked again, telling me that: ‘There’s a baby lying with its eyes open.’ I asked what it might be able to see. [LMW] told me that: ‘It might be looking at an animal or a human.’ I asked why a human would be coming towards the cave. [LMW] told me: ‘For a bear skin.’ I asked if this meant the bear would be killed. [LMW] said cautiously: ‘Probably.’”

3. Each of these passages records events in the course of the doctor’s assessment that had been prompted by measures taken by the doctor in an endeavour to draw the accused out.

4. The first passage appeared in the context of the doctor having asked the accused about his sister and he told the doctor that the sister let him borrow her songs on CD and tape. The second passage followed upon the child reaching into a play box which the doctor had available and selecting the two figures from Star Wars. The third and fourth passages appeared in the context of the doctor having provided for the child a series of cards used in what the doctor described as a standard projective test administered to children.

5. As opposed to the tests conducted on behalf of the defence by Dr Langeluddecke and commented upon by Dr Waters, what is recorded in the passages above set out relates essentially to subjective responses. Dr Waters was critical of the usefulness of these procedures as compared with what he said in effect were the generally accepted and reliable objective tests that Dr Langeluddecke had carried out. However the criticisms by Dr Waters of the probative value of the responses recorded by Dr Wotton would not, in my view, alone warrant the exclusion of the evidence contained in the passages, assuming such evidence was otherwise relevant and probative. It seems to me that any question of a disagreement between Dr Wotton and Dr Waters as to the usefulness of testing could ordinarily be left for a jury to determine.

6. However, yesterday, having considered the evidence and the submissions of counsel, I determined that the evidence in the above passages and any opinion evidence that might otherwise be based upon it should be excluded and I now state my reasons for the conclusion I reached.

7. The objections taken to the evidence warranted careful consideration of the relevance of the evidence, and assuming its relevance, its probative value, but on the other hand, assessment of the danger of unfair prejudice to the accused in the event of its admission.

8. In the course of questioning yesterday, Dr Wotton gave the following answer to the following question directed to the significance of the matters reported upon in passages (i) to (iv):

“Q. Do I understand then from the responses you have just given to counsel, that those various tests which you conducted, and the responses that he gave, did not tell you anything about this issue of doli incapax?
A. Not really, no.”

9. Further, in his evidence on the voir dire, Dr Wotton said that the evidence in passage (i) did not assist him in forming any opinion as to whether or not the accused’s behaviour indicated some understanding of life and death. In these circumstances no basis of relevance was established for the introduction of the evidence and the danger of unfair prejudice to the accused is self-evident from the narrative of the accused’s behaviour and comments. Hence, in my opinion, s 137 of the Evidence Act required the exclusion of evidence concerning passage (i).

10. As to each of the remaining three passages, Dr Wotton was of the opinion that they indicated some understanding in the accused of the meaning of life and death. To prove such an understanding would be relevant for the jury’s consideration in the context of determining whether the accused was aware that what he was doing was seriously wrong. On that issue, of course, the Crown has the onus of proof and evidence going to establish this element in the Crown case is plainly admissible.

11. The difficulty, however, with the evidence is that the responses which Dr Wotton recorded were all made some nineteen months or more after the event. In that period not only had the accused grown older but much more importantly he had undergone very unhappy experiences resulting from the death of the deceased. He had experienced threats from those who obviously believed he was responsible for what had occurred, he had undergone the ordeal of proceedings in the Children’s Court and he had been subject to much attention by the media. My attention was drawn to this on the earlier application for a permanent stay of proceedings.

12. In the light of events since 2 March 1998 and by reason of them, the accused could well have developed an understanding of life and death such as the responses observed by Dr Wotton indicated. It does not follow however that such an understanding was present on 2 March 1998. The Crown looks to other evidence to prove such understanding at the time that the deceased died. That evidence concerns the observed behaviour of the accused at the relevant time.

13. The responses recorded in the passages the subject of objection do not afford any basis for assessment of the cognitive ability of the accused. Those responses and the opinion which the doctor formed on the basis of them that there was indicated some understanding of life and death do not undermine or go to the objective findings made by Dr Langeluddecke.

14. It seems to me that the introduction of the evidence referred to in the three remaining passages and the opinion evidence which Dr Wotton would have been asked to give involved the danger of unfair prejudice to the accused. It involved attention to the accused’s reactions to death in a variety of circumstances. In my opinion the probative value of evidence based on the passages would be outweighed by the danger of unfair prejudice to the accused. In these circumstances s 137 of the Evidence Act was enlivened and required the exclusion of this evidence. Hence I so ruled.

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Last Modified: 10/28/2009