R v LMW [1999] NSWSC 1342

New South Wales Supreme Court 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!"'"