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Neurolaw in Australia: The Use of Neuroscience in Australian Criminal Proceedings

Abstract

Recent research has detailed the use of neuroscience in several jurisdictions, but Australia remains a notable omission. To fill this substantial void we performed a systematic review of neuroscience in Australian criminal cases. The first section of this article reports the results of our review by detailing the purposes for which neuroscience is admitted into Australian criminal courts. We found that neuroscience is being admitted pre-trial (as evidence of fitness to stand trial), at trial (to support the defence of insanity and substantial impairment of the mind), and during sentencing. In the second section, we evaluate these applications. We generally found that courts admit neuroscience cautiously, and to supplement more well-established forms of evidence. Still, we found some instances in which the court seemed to misunderstand the neuroscience. These cases ranged from interpreting neuroscience as “objective” evidence to admitting neuroscience when the same non-neuroscientific psychiatric evidence would be inadmissible for being common sense. Furthermore, in some cases, neuroscientific evidence presents a double-edged sword; it may serve to either aggravate or mitigate a sentence. Thus, the decision about whether or not to tender this evidence is risky.

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Notes

  1. 1.

    We are aware of two recent and well-considered works analysing Australian neurolaw that have adopted a narrow focus. First, for a focus on the fMRI methodology, see [7]. And for a focus on New South Wales sentencing decisions in which the neuroscientific evidence was a mitigating factor, see [8].

  2. 2.

    See [11] for a review of the current theoretical arguments surrounding neurolaw.

  3. 3.

    In adopting this scope, we follow other recent works, see, e.g., [4, 5].

  4. 4.

    A large proportion of cases on the Database are not published, and the public do not have access to them. However, one of the authors (Armin Alimardani) was able to access all the cases due to his involvement with the project and was authorised to use them for the purpose of this research.

    See, https://neurolaw.edu.au.

  5. 5.

    See, https://www.austlii.edu.au/austlii/guide/user_guide.pdf.

  6. 6.

    The Australian jurisdictions are as follow: (i) New South Wales, (ii) Victoria, (iii) Queensland, (iv) Western Australia, (v) South Australia, (vi) Tasmania, (vii) Northern Territory and (viii) Australian Capital Territory.

  7. 7.

    We will describe these criminal law concepts in Part II.

  8. 8.

    [2012] SADC 47.

  9. 9.

    Id. at 25.

  10. 10.

    Id. at 42–43.

  11. 11.

    Id. at 43.

  12. 12.

    Id. at 39–59. But note that two other experts, a psychiatrist and a forensic neuropsychologist opined that Moar’s condition was not severe enough to merit a finding that he was unfit to stand trial.

  13. 13.

    [2010] QMHC 6.

  14. 14.

    Id. at 47–49.

  15. 15.

    Id. at 24.

  16. 16.

    Id. at 11–13.

  17. 17.

    For other instances of the use of neuroscience for determination of accused’s fitness to stand trial see, R v Blackman [2016] NSWSC 1579; R v Wilson [2015] NSWSC 1538; Robinson, Clifford Mark v R [2008] NSWCCA 64. See also R v Littler [2001] NSWCCA 173 in which evidence of organic brain disease revealed in a CT scan support a decision to permanently stay the charges against the accused.

  18. 18.

    [2010] NSWSC 638.

  19. 19.

    Id. at 18.

  20. 20.

    Singh 24, 37–38.

  21. 21.

    Ibid.

  22. 22.

    Id. at 44.

  23. 23.

    [2003] SASC 109.

  24. 24.

    Id. at 83, 93–128.

  25. 25.

    Id. at 120.

  26. 26.

    Id. at 54.

  27. 27.

    Id. at 66.

  28. 28.

    Id. at 57.

  29. 29.

    Id. at 151.

  30. 30.

    Id. at 237–238.

  31. 31.

    Id. at 235. In this case, there were a number of expert witnesses who made different conclusions about accused’s mental condition. For more detailed examination of their reports please refer to the case.

  32. 32.

    The defense of substantial impairment by abnormality of mind is only recognized in four Australian jurisdictions, see [20]

  33. 33.

    See [20].

  34. 34.

    [2014] NSWSC 1056.

  35. 35.

    Id. at 59.

  36. 36.

    Id. at 45.

  37. 37.

    Id. at 56.

  38. 38.

    Id. at 57.

  39. 39.

    Id.

  40. 40.

    Id. at 60.

  41. 41.

    Id. at 62.

  42. 42.

    Id. at 76.

  43. 43.

    Id. at 75.; We will also discuss another substantial impairment case, Director of Public Prosecutions v AB [2013] NSWSC 1739 in our analysis in Part IV.

  44. 44.

    For example, see R v Glanville [2010] NSWSC 364, in which damage to the accused’s frontal lobes from a motorcycle accident supported his substantial impairment defence.

  45. 45.

    [1999] NSWSC 233

  46. 46.

    [2013] SASC 183.

  47. 47.

    Id. at 75.

  48. 48.

    Id. at 65–68.

  49. 49.

    Id. at 66.

  50. 50.

    Id. at 65.

  51. 51.

    Id. at 82.

  52. 52.

    i.e., the psychiatrist, of course, could not have examined the accused while he was intoxicated, and therefore the expert’s report was not about the accused per se, but generally how brains are affected by alcohol.

  53. 53.

    The State of Western Australia v Clifton [2012] WASC 302.

  54. 54.

    Id. at 43–58.

  55. 55.

    Id. at 54.

  56. 56.

    Id. at 59–63. For more cases about memory and admission of evidence see, CDK v Commissioner of Victims Rights [2016] NSWCATAD 300; R v Hawi & ors (No 27) [2011] NSWSC 1673.

  57. 57.

    R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 (at 33–36).

  58. 58.

    Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; R v Hemsley [2004] NSWCCA 228.

  59. 59.

    Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; also see, R v Henry (1999) 46 NSWLR 346, (Wood CJ at CL, Adam and Kirby JJ) at 46.

  60. 60.

    See, R v Hemsley [2004] NSWCCA 228.

  61. 61.

    Benitez v R (2006) 160 A Crim R 166; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

  62. 62.

    For more discussion of mental condition and sentencing see [20, 23].

  63. 63.

    [2015] VCC 116.

  64. 64.

    [2011]. Unreported judgment. For a summary of this case see, https://neurolaw.edu.au/cases/10703.

  65. 65.

    [2013] VCC 471.

  66. 66.

    Id. at 1; 3; 4.

  67. 67.

    Id. at 12.

  68. 68.

    Id. at 13.

  69. 69.

    Id. at 14.

  70. 70.

    Id. at 11; 14.

  71. 71.

    See, https://neurolaw.edu.au/cases/10703.

  72. 72.

    [2013] VCC 47.

  73. 73.

    Id. at 12; 13.

  74. 74.

    Other than custodial hardship there are other sentencing factors that do not require a link between neurological impairment and criminal behaviour. For example, because an offender with brain impairment may not be a proper tool to deter the society from offending, the court may give lower consideration to general deterrence even if the brain impairment is not causally connected to offending or it occurs after the crime, see, R v Caleb James O’Connor aka John Coble [2013] NSWDC 272.

  75. 75.

    [2012] NSWSC 1462.

  76. 76.

    Id. at 2–13; 28.

  77. 77.

    Id. at 17.

  78. 78.

    Focal abnormalities in the frontal lobes and significant cerebral atrophy Id. at 21.

  79. 79.

    Id. at 21.

  80. 80.

    Id. at 36; Although two psychiatrists believed that the risk of re-offending was fairly low, the judge accepted the third psychiatrist’s opinion that the offender posed a risk of violence to community once he is released (Id. at 37–40).

  81. 81.

    Proof of brain impairment may also have another negative outcome for the defendant. For instance, according to the Crimes (High Risk Offenders) Act 2006 (NSW), in order to prevent further offending by ‘high-risk sex and violent offenders’, the court may impose post-sentence preventive detention order or an extended supervision order at the end of the custodial sentence. See, Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld); Dangerous Sexual Offenders Act 2006 (WA); Serious Sex Offenders Act 2013 (NT); also see [24]. There are many concerns with regard to these Acts such as proportionality of the sentence, double punishment and procedural fairness. See [24,25,2655].

  82. 82.

    [2012] NSWSC 1180.

  83. 83.

    Id. at 5–10.

  84. 84.

    Id. at 41.

  85. 85.

    Id. at 30.

  86. 86.

    Id. at 32, 41–43.

  87. 87.

    Id. at 33.

  88. 88.

    Id. at 34–36.

  89. 89.

    ‘cerebral atrophy and lesions in the white matter’ Id. at 35.

  90. 90.

    Id. at 31.

  91. 91.

    Id. at 35.

  92. 92.

    Id. at 34; 36.

  93. 93.

    Id. at 37.

  94. 94.

    Id. at 18; 37.

  95. 95.

    Id. at 44; 45.

  96. 96.

    Id. at 46.

  97. 97.

    For further cases about contribution of neuroscience to sentencing in Australia see, R v Lepore [2013] SASCFC 13 (where fresh neuroscientific evidence in the appellate court required mitigation of the sentence); The Queen v Hildebrandt [2014] VSC 321 (where the offender’s frontal-lobe damage was a mitigating factor in sentencing); The Queen v Giles [2014] VSC 210 (where neuroscientific evidence indicated further consideration of future offending and protection of the society); The Queen v Furlan [2014] VSC 361 (where the offender’s acquired brain injury was a mitigating factor in sentencing); Ross v R [2006] NSWCCA 65 (where the sentence was found to be excessive for the defendant who suffered from frontal-lobe impairment); Regina v Michael James ELSWORTH [2000] NSWSC 582 (where neuroscience explained the criminal behaviour); R v Tortell, R v Tsegay [2007] NSWCCA 313 (where neuroscientific evidence indicated frontal-lobe damage); R v Millard [2014] ACTSC 267 (where neuroscience reduced the consideration of moral culpability).

  98. 98.

    [2012] NSWSC 1462

  99. 99.

    [1979] HCA 7; (1979) 143 CLR 458

  100. 100.

    Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 (29 March 1988).

  101. 101.

    Also, in R v Morton [2010] NTSC 26, EEG and MRI scans confirmed brain damage and temporal lobe epilepsy resulting in mental impairment, that led to a reduced weight given to moral culpability, and general and specific deterrence, but resulted in a greater consideration of the need to protect society from the risk of recidivism.

  102. 102.

    Similar to this study, an empirical study in the U.S. by Deborah Denno titled “The Myth of the Double-Edged Sword: An Empirical Study of Neuroscience Evidence in Criminal Cases” indicates that only in a few cases neuroscience is an indicative of the offender’s risk of recidivism. [5]

  103. 103.

    Roper v. Simmons, 543 U.S. 551 (2005).

  104. 104.

    Graham V. Florida, 560 U.S. 48 (2010).

  105. 105.

    [2016] VSCA 66.

  106. 106.

    Majority decision.

  107. 107.

    Id. at 7.

  108. 108.

    Id. at 8.

  109. 109.

    Id. at 26.

  110. 110.

    Id. at 27. For a similar case see, R v Hawkins [2015] ACTSC 333 at 64, “[the offender’s] age is also relevant in itself. He is still a relatively young man and neuroscience shows that the male brain is not fully mature and developed until mid twenties.”

  111. 111.

    R v Khosravi, Alborz [2008] NSWDC 298 at 1.

  112. 112.

    Id. at 71.

  113. 113.

    [2010] NSWSC 171.

  114. 114.

    Id. at 27.

  115. 115.

    Beyond the cases reviewed above, see also R v Santos [2001] NSWSC 923 where the offender’s substantial impairment defence (manslaughter) was based on three contributory factors. First, the offender suffered personality change (i.e. irritable and predisposed to losing temper) as the result of a head injury. Neuropsychological testing also showed cognitive impairment as another result of head injury. The third factor was depression that according to expert report “added to his difficulties in understanding [victim’s] actions and resolving the issues which arose from them.” (at 20) While none of these factors seems to be sufficient to substantially impair the offender’s abilities, the combination of these factors met that threshold.

  116. 116.

    Uniform evidence jurisdictions are New South Wales, Tasmania, Victoria, the Northern Territory, and the Australian Capital Territory.

  117. 117.

    The neurolaw literature mainly criticises the use of brain imaging evidence and it seems there is less concern about other types of neuroscientific evidence (See [45, 46]). As such, the main focus of this section is on cases that brain imaging evidence is discussed because that seem to present to most possibility for prejudice.

  118. 118.

    [2011] NSWDC 103.

  119. 119.

    MRI and EEG scans did not indicate any abnormality. But the third test a Ceretec Brain Perfusion Study, showed some abnormalities. Id. at 20, 24.

  120. 120.

    Id. at 40–43.

  121. 121.

    Id. at 40.

  122. 122.

    Id. at 46, 47.

  123. 123.

    [2013] NSWSC 1739.

  124. 124.

    See Part II for a description of substantial impairment.

  125. 125.

    Id. at 51.

  126. 126.

    Ibid.

  127. 127.

    Id. at 52. It is noteworthy that as discussed above in cases such as Berlingo and Re Ma’a that malingering is suspected neuroscientific evidence might be helpful and provide additional information on which to base a diagnosis.

  128. 128.

    R v Haidley and Alford [1984] VR 229 at 233, quoting R v Darrington and McGauley [1980] VR 353. And for similar reasoning see R v Morgan [1986] 2 Qd R 627 at 656; R v Carn [1982] 5 A Crim R at 469–470.

  129. 129.

    H, LP at 66.

  130. 130.

    Although note that H, LP was a judge alone trial and thus the trial judge may have been more permissive towards the evidence for that reason. Still, the contrast between the traditional position whereby intoxication evidence is irrelevant and the trial judge in H, LP taking the time to specifically report the “neuroscientific” opinion evidence about intoxication is striking. We cannot, however, conclusively rule out other distinctions between H, LP and the traditional position towards evidence of the effects of extreme intoxication.

  131. 131.

    The two main standards of proof are ‘beyond reasonable doubt’ and ‘on the balance of probability’. When the ultimate fact in question is to the detriment of the accused/offender, the standard is the former, and when it is for their benefit, the standard is the latter.

  132. 132.

    For instance, in R v McCann (discussed above) two psychiatrists suggested that the offender posed a low risk of re-offending. However, the court, based on the irreversible condition of the offender’s brain and another psychiatrist’s report (i.e. referred his ‘dementing process’), concluded that the offender was a danger to the community.

  133. 133.

    And this is consistent with empirical research examining the effect of neuroscientific jargon on laypeople. See [29].

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Acknowledgements

Special thanks to Prof. Gary Edmond, Dr. Allan McCay, Prof. Nicole Vincent and anonymous reviewers for providing feedback that greatly improved the manuscript.

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Correspondence to Armin Alimardani.

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Appendix

Appendix

Following our review of criminal cases on the Australian Neurolaw database we sorted them into different categories such as ‘fitness to stand trial’, ‘sentencing’, ‘the juvenile brain’, and ‘the brain and memory’. As our categories were largely based on a review of cases in the Australian Neurolaw Database, the general search on AustLII aimed to find any other reasons for the use of neuroscience in Australia that were not included in the Australian Neurolaw Database.

We used a variety of keywords including ‘neuroscience’, ‘brain’, ‘neuropsychology’, ‘EEG’, ‘MRI’, ‘CT scan’, ‘fMRI’ and ‘SPECT scan’. As the result of our search thousands of cases were produced; however, as the purpose of this study is to explore different uses of neuroscience in criminal courts, we purposefully reviewed a number of cases to find out whether neuroscience is used in a way that we had not previously considered. Accordingly, revision of cases ended when we could not find any new use of neuroscience.

In order to identify cases where neuroscience was used for specific purposes, we used Boolean operators. For instance, to find cases in which reference is made to both ‘memory’ and ‘the brain’, we searched ‘brain AND memory’. We also used more complex searches such as ‘(false/5/memory) AND brain AND eyewitness’. This only produced results in which ‘brain’, ‘eyewitness’, ‘false’ and ‘memory’ were noted in the case, and where there are not more than 5 words between ‘false’ and ‘memory’. This approach (proximity operator) helped to avoid cases where irrelevant combinations (i.e. ‘false accusation’ and ‘childhood memory’) are noted in different parts of the judgement.

We then sorted the cases into different categories (similar to our categories on the Australian Neurolaw Database). A review of the dataset indicated that in some categories all the cases were from a single jurisdiction (i.e. New South Wales). We conducted a further search to balance the distribution of cases from different jurisdictions. As such, our research better represents the use of neuroscience in Australia.

Of the 779 cases that we reviewed, a proportion of the cases were irrelevant to the study and were excluded. For instance, in many cases neuroscientific tests, such as MRI and CT scans, were used to examine other body parts than the brain, or were conducted on the victim rather than the accused/offender. Occasionally the cases were also the same as those listed on the Australian Neurolaw Database.

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Alimardani, A., Chin, J. Neurolaw in Australia: The Use of Neuroscience in Australian Criminal Proceedings. Neuroethics 12, 255–270 (2019). https://doi.org/10.1007/s12152-018-09395-z

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Keywords

  • Neurolaw
  • Australian criminal justice system
  • Neuroscience
  • Criminal law
  • Law and science
  • Law and technology
  • Sentencing