Dr Ian Freckelton1
1University of Melbourne, Melbourne, Australia
Biography:
Professor Freckelton is a barrister in practice throughout Australia, a judge of the Supreme Court of Nauru and a Professor of Law and Professorial Fellow in Psychiatry at the University of Melbourne. He is a former President of ANZAPPL and an elected Fellow of the Academies of Health and Medical Sciences, Law, and Social Sciences. He is the author of some 50 books and over 850 articles and is the Editor of the Journal of Law and Medicine and the Founding Editor of Psychiatry, Psychology and Law. In 2021 he was made an Officer of the Order of Australia.
Abstract:
Foetal Alcohol Spectrum Disorder (FASD) as a neurodevelopmental disorder presents particularchallenges for the criminal law. Those difficulties have particular application to the Indigenous populations of Australia and New Zealand. They are challenging approaches adopted by the law to both criminal responsibility and also, especially, culpability. Early appellate authorities, principally from Western Australia urged multidisciplinary assessment of persons with FASD who come into contact with the criminal justice system and the taking of active measures to identify ways in which their FASD could be addressed. The decision of the Privy Council in Pora v The Queen [2015] UKPC 9 also highlighted the vulnerability of persons with FASD during the police investigative process and the risk that admissions or confessions that they make may be unreliable.
In the absence of the potential for any cure for the symptomatology of FASD, the early focus of the courts (eg in LCM v Western Australia [2016] WASCA 164 and Churnside v Western Australia [2016] WASCA 146) was on education for pregnant mothers, intervention with offenders at as early a juncture as possible, and the identification of creative measures to maximise safety against recidivism for the community.
The succeeding years have seen constructive steps toward consensus on diagnostic criteria and challenging analyses of the impact of FASD upon responsibility for criminal offending, as well as on exploration of measures likely to limit the potential for reoffending. This paper focuses upon these current developments and the likely trajectory of measures adopted by the criminal justice system.