25 April 2012


In State of Western Australia v Mack [2011] WASC 127 the WA Supreme Court has found an autistic man, accused of murdering his mother, is fit to stand trial (albeit before a judge without a jury and with the defendant being allowed to attend trial by a video link). The Court found that the man's demeanour and detachment from his trial process was deliberate rather than a result of his autism.

In WA s 9 of the  Criminal Law (Mentally Impaired Accused) Act 1996 (WA) defines 'Mental unfitness to stand trial'  as -
An accused is not mentally fit to stand trial for an offence if the accused, because of mental impairment, is -

(a) unable to understand the nature of the charge;

(b) unable to understand the requirement to plead to the charge or the effect of a plea;

(c) unable to understand the purpose of a trial;

(d) unable to understand or exercise the right to challenge jurors;

(e) unable to follow the course of the trial;

(f) unable to understand the substantial effect of evidence presented by the prosecution in the trial; or

(g) unable to properly defend the charge.
After considering 9(e) and 9(g) in particular McKechnie J found at 41-42 that Mack can stand trial.
My observation of the accused certainly confirms that his behaviour is unusual. I am satisfied that the accused has a mental impairment due to autism. The question is whether his detachment from his trial process manifested by apparent nonresponsiveness is primarily due to his autism.
There is no doubt that a trial judge will have to be responsive to the problems that the accused's autism raise in relation to the conduct of the trial to ensure that the trial is fair and that the accused is given adequate opportunity to instruct his counsel and make a proper defence. ... I am not persuaded that the marked difference between the accused's presentation in the VROI's and his appearance in court is the result of a deterioration due to lifelong autism. Also, notwithstanding Dr Hall's explanation about the telephone call made by the accused a relatively short time before his interview, an equally plausible explanation is that the accused has decided not to engage in the trial process. The telephone call showed a good grasp of the issue he was talking about. It is likely that the accused's current presentation is more as a result of choice coupled with his autism than a result simply of his mental impairment. Applying the legal principles I have outlined to the evidence I prefer, I find that, provided the trial process accommodates the accused's autism, he is fit and able to stand trial. I am not persuaded that the accused's autism is such a contributor to his presentation that he is unfit for trial.
In finding for trial by judge alone he stated at 43-44 that
The State did not oppose the application for trial by judge alone. That is never determinative of the issue, it being a matter for a judge in the interests of justice. However, the position of the prosecution is naturally a matter of significance and weight. The principles governing an application for trial by judge alone have been recently restated in The State of Western Australia v Rayney [2011] WASC 326. The present circumstances are somewhat different from those that have arisen in other cases. In this case the accused's autism, while falling short of an impairment rendering him unfit for trial, will necessarily make a trial more protracted and may require a greater number of adjournments than normal. If the accused participates in the trial via video link from prison this will lead to frequent adjournments, possibly lengthy, while instructions are taken. Such adjournments are unfair burden on a jury both in the time that will have to be set aside for the trial and the fragmentary nature in which the evidence may have to be presented.
The accused also raises the possibility that the accused's unusual personal characteristics may cause him some prejudice in that the jury are distracted by his behaviour or draw adverse inferences against him as a result of such behaviour. I put little weight on this submission as I consider that a jury, properly instructed, would be able to put aside such matters and concentrate on the evidence in the case. However, I conclude that because of the accused's autism and its impact on the trial process generally, the interests of justice require a trial by judge alone.
An affidavit by Mack's representative had stated -
I first met the accused at Hakea Prison on 31 October 2011. It was immediately apparent that the accused had a number of unusual personal characteristics, including:
  • The absence of eye contact, in that his head remained bowed throughout the interview. 
  • The robotic manner in which he spoke.
  • The shortness of his sentences and the absence of any fluent conversation with me.
  • The inability to develop any form of rapport throughout the interview.
At a subsequent meeting at Hakea Prison on 2 February 2012, the accused advised that he would not participate in the trial in any way if he had to attend court in person. He stated that he would only participate in the trial if he was able to appear by video-link from Hakea Prison.
Apart from consideration of psychiatric evidence (by Febbo and Hall) McKechnie J noted -
I ordered that the accused should attend the hearing so that I could see him. The accused entered court 6 in company of security officers. He entered the court without eye contact and after being directed, hurried into the dock and sat down. He stood when asked but made no response to an enquiry about his name. He then sat and for the remainder of the hearing averting all eye contact, keeping his head down, staring at the corner of the dock. He was occasionally twitching or shaking. 
The accused was interviewed by police on 26 August 2010, 2 September 2010 and 10 September 2010. 
In the first two interviews the accused made eye contact with the interviewer. His answers are coherent and appropriate in that he is able to freely convey by his answer that which he wishes to convey. His mood is congruent with his situation. In the final interview on 10 September 2010, his eye contact with interviewers is less although still observable but he spends more time looking to his right at the edge of the table. That said, however, his answers remained logical and coherent. At one point he makes a light and joking remark about an officer's tie. 
On 19 October 2011, the accused telephoned his brother, Adrian, and spoke generally about the case. The accused's tone was appropriate, his thoughts and ideas coherent. He displayed a good grasp of the issues about which he was speaking which related to possible courses of action relative to his litigation. While on occasion there was a slight stammer, the overall impression did not give rise to any indication of an unfitness to plead.