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Supreme Court 25 November 1999

R v LMW

[1999] NSWSC 1342

Other
CRIMINAL LAW EVIDENCE JUVENILE ACCUSED PSYCHIATRIC TESTING

Citation: R v LMW [1999] NSWSC 1342
Court: Supreme Court of New South Wales
Date: 25 November 1999
Judge(s): Studdert J

Background

The accused, a juvenile identified only by initials, faced criminal proceedings in the Supreme Court. A central issue in the case was whether the accused had been capable of understanding that their conduct was seriously wrong, a question directly relevant to the common law presumption known as doli incapax (which holds that children below a certain age are presumed incapable of criminal responsibility unless the prosecution proves otherwise).

The Crown served a psychiatric report prepared by Dr Wotton, who had assessed the accused on its behalf. The defence objected to four specific passages in that report, which recorded the accused's responses to various prompts during the assessment, including reactions to popular culture references, spontaneous play with action figures, and responses to standard projective test cards.

The objection was heard on the voir dire (a preliminary hearing conducted in the absence of the jury to determine whether evidence is admissible). Both Dr Wotton and a defence psychiatrist, Dr Waters, gave evidence at that hearing.

  • Whether the four contested passages from Dr Wotton's report were relevant to the issue of doli incapax, specifically the accused's understanding of the seriousness of their conduct at the time of the alleged offence.
  • Whether the probative value of the evidence in those passages was outweighed by the danger of unfair prejudice to the accused, engaging section 137 of the Evidence Act.

Decision

Studdert J excluded all four contested passages and any opinion evidence Dr Wotton would have given based on them, applying section 137 of the Evidence Act, which requires exclusion of prosecution evidence where its probative value is outweighed by the danger of unfair prejudice to the defendant.

In relation to the first passage, Dr Wotton himself conceded on the voir dire that the recorded responses had not assisted him in forming any opinion about the accused's understanding of life and death. Because the Crown could establish no basis for relevance, and the passage carried an obvious risk of unfair prejudice from its narrative of the accused's comments and behaviour, the evidence was excluded on that ground alone.

As to the remaining three passages, Dr Wotton considered them indicative of some understanding of life and death, which would have been relevant to the doli incapax issue. However, the assessment had taken place more than nineteen months after the alleged offence. In that intervening period, the accused had endured significant and distressing experiences, including threats from community members, Children's Court proceedings, and sustained media attention. The court found that any understanding of life and death apparent during the assessment could readily have developed as a result of those subsequent events, meaning the responses did not reliably reflect the accused's understanding at the time of the alleged offence.

The court also noted that while Dr Waters had criticised the subjective nature of Dr Wotton's testing methods compared with the objective tests conducted on behalf of the defence, that disagreement between experts would not, by itself, have warranted exclusion. The decisive factor was the temporal gap and its effect on the probative value of the evidence when weighed against the risk of unfair prejudice arising from the jury's exposure to the accused's responses about death and violence.

Orders Made

  • Evidence in the four contested passages of Dr Wotton's report, and any opinion evidence based on those passages, was excluded pursuant to section 137 of the Evidence Act.

Key Takeaways

  • Under section 137 of the Evidence Act, prosecution evidence must be excluded where its probative value is outweighed by the danger of unfair prejudice to the accused, even if the evidence might otherwise be relevant.
  • Where a Crown expert concedes on voir dire that contested material did not assist in forming any relevant opinion, the threshold of relevance is not met and exclusion follows independently of the prejudice assessment.
  • The Supreme Court held that a significant gap between the alleged offence and a psychiatric assessment can critically undermine the probative value of responses recorded during that assessment, particularly where the accused has experienced materially changed circumstances in the interim.
  • A disagreement between expert witnesses about the reliability of subjective testing methods, standing alone, is not sufficient to warrant exclusion under section 137; the balance between probative value and unfair prejudice requires separate and careful evaluation.
  • Projective and play-based psychiatric testing of child accused persons raises particular admissibility concerns where responses are sought to be used as evidence of cognitive understanding at a point in time considerably earlier than the assessment itself.

Legislation and Cases Referenced

Legislation:
- Evidence Act (NSW), section 137 (exclusion of prosecution evidence where probative value is outweighed by danger of unfair prejudice to the defendant)

Cases:
- No cases were cited in the judgment text provided.