FASD and False Confessions
In April 2015 the Law Report profiled a New Zealand case where Teina Pora spent more than twenty years incarcerated for the rape and murder of Auckland woman, Susan Burdett.
His confession to the crime was the central piece of evidence that convicted him.
But the highest court in the Commonwealth, the UK's Privy Council found that Pora's confession was unreliable and that the case amounted to a miscarriage of justice.
Key to that finding was evidence from specialists in Foetal Alcohol Spectrum Disorder (FASD).
How often is FASD considered a factor in the Australian criminal justice system?
here is the link to the Law Report
Here is the transcript of that story as well as an interview with Heather Douglas from Queensland Transcript
Anita Barraud: Hello, welcome to the Law Report, I'm Anita Barraud.
Honest lying. It seems contradictory but can be the truth for those born with a disability like Foetal Alcohol Spectrum Disorder or FASD. It's an umbrella term for a set of disorders caused by a mother drinking alcohol during pregnancy. People with FASD can genuinely lie.
Heather Douglas: Confabulation is a kind of honest lying I guess. People with brain damage or cognitive disabilities often do confabulate, so they make up an answer, but they believe that they are telling the truth.
Anita Barraud: And what if that confabulation or honest lying is taken as a confession for a serious crime? A case heard in the UK Privy Council, the highest court in the Commonwealth, has ruled on this very issue. It involves an appeal of a New Zealand man convicted of rape, murder and burglary.
UK Privy Council:
Man [archival]: The court will rise.
Woman [archival]: Judgement in the appeal Pora and the Queen.
Man [archival]: In March 1992 a woman called Susan Burdett was raped and brutally murdered in her home in Papatoetoe, New Zealand.
Anita Barraud: The panel of five judges on the UK Privy Council Board who quashed the convictions of Teina Pora, a man who spent more than 20 years incarcerated. The Privy Council is the last appeal resort for some Commonwealth countries, including Jamaica, Grenada and Tuvalu. This appeal held last month is likely to be one of the final New Zealand cases to be heard by this route; it's been abolished for cases after 2003.
UK Privy Council:
Man [archival]: The jury on his first trial was told of the various confessions that he had made, but he was quite unable to explain why he had made the confessions…
Anita Barraud: The five judges found Teina Pora's confession was unreliable and that the case amounted to a miscarriage of justice. Key to that finding was new evidence from specialists in Foetal Alcohol Spectrum Disorder.
One of them is Dr Valerie McGinn, a neuropsychologist.
Valerie McGinn: I think internationally it's a very important case. The highest court has recognised that FASD is a factor that needs to be accommodated in the legal practice.
Anita Barraud: And it's not just that it was a factor, it was in fact the deciding issue in quashing a conviction.
Valerie McGinn: It was, I think it provided the explanation as to why it was that Mr Pora was led or responded in the way he did to increasingly incriminate himself, and that's typical of how people with FASD communicate and interact. So whereas previously it seemed that his stories were inconsistent, there was no reason, and FASD is a reason why his stories came out as they did.
Heather Douglas: So it really tells us that certainly in the New Zealand context, evidence of Foetal Alcohol Spectrum Disorder given by a neuropsychologist is certainly admissible and may be relevant in particular cases. And I think this would be considered to be very persuasive in the Australian context as well. So it's a very important case.
Anita Barraud: That's Heather Douglas, a Professor of Law at the University of Queensland. And we'll hear more about the Australian context later. But let's stay with the case of Teina Pora.
Journalist [archival]: Susan Burdett was bludgeoned to death with a softball bat in 1992. Two years later, 17-year-old Teina Pora is found guilty of her murder…
Woman [archival]: And on count two, do you find the accused Teina Pora guilty…
Man [archival]: On the verdict of murder you are convicted and sentenced to life in prison.
Anita Barraud: The main evidence against Teina Pora was a confession made during a series of police interviews over four days. Christine Rogan is the Health Promotion Advisor and FASD Project Co-ordinator at New Zealand's Alcohol Healthwatch. She's been watching the case of Teina Pora closely. It's a story of a young man from a dysfunctional family, patchy schooling and no good role models.
Christine Rogan: Teina Pora, he was a young lad and caught up with gangs, people who were less than positive in his life, let's put it that way. He basically said he knew something about the crime at a time when there was a reward on offer, and suddenly through the interviews he was confessing to it.
Anita Barraud: He was interviewed by the police on a separate matter, a minor matter I understand, and during those interviews he confessed variously to the rape, murder and burglary of a Miss Susan Burdett.
Christine Rogan: Correct.
Journalist [archival]: Because having told police he was there, Teina Pora implicated himself, and the police had the beginnings of a case.
Man [archival]: A jigsaw puzzle. I wouldn't say it's fully complete by any stretch of the imagination, but a lot of the important pieces are there.
Anita Barraud: There were two trials, and in all both trials he was convicted. The original trial in 1994, and then at the retrial in 2000 following evidence of DNA at the crime scene of a known rapist called Malcolm Rewa.
Christine Rogan: Yes, he was a serial rapist in fact. It was his DNA that they found at the scene, not Teina Pora's. But of course he has never been tried for the murder, because already there had been a trial involving Mr Pora. The system thought they had their man.
Anita Barraud: Some things did ring true, there was a graphic account of the rape, there was a search for money in a suitcase type bag which contained paper, and, as it was discovered, her briefcase was on the bed with papers spread on the floor. So some of the things that Mr Pora said did ring true. And of course the question is why would anyone confess?
Christine Rogan: It's pretty compelling.
Anita Barraud: A confession trumps all perhaps, but there were inconsistencies: Mr Pora described Miss Burdett as fat when she was slim, he was unable to lead police to the crime scene, and there were other vague and contradictory statements. Even some police had doubts. There was a media and public campaign to prove his innocence.
Journalist [archival]: In April last year the parole board releases Pora after 20 years in jail. In November Pora's lawyers attend a two-day Privy Council hearing in London.
UK Privy Council:
Man [archival]: …that reports from a series of experts had been obtained by his lawyers, and it was said that those reports cast doubt on the reliability of the confessions which Mr Pora had made, and which for the first time gave explanations as to why he might have made false confessions…
Teina Pora's daughter [archival]: I hope that my dad gets out, and hopefully his innocence will be proven. But there's nothing that will replace so many years in jail. You know, he could have spent 20 years out here with me.
Anita Barraud: Teina Pora's daughter has grown up and had a child of her own during Mr Pora's long incarceration.
The UK Privy Council found his evidence was strewn with inconsistencies, implausibilities and vagueness, his replies to questions halting, incoherent and bizarre.
Christine Rogan: I think the Privy Council didn't find that there was anything inappropriate as such by the process that the police undertook, so I don't know whether there will be a review of some of that. I guess there was a heightened sense of need to solve the case at that stage, and when there is a confession on the table that's pretty hard to not take into consideration.
The implications of what has happened with Mr Pora's case are huge. I mean, not only has this 17-year-old been locked up for more than 20-odd years, and goodness knows how much the appeal cases cost without all this information, to only find that had we done it better, that that would not have been a cost and it would not have been his loss of freedom for all those years. So just taking that one scenario alone, we can only shake our heads and think how big is this problem?
Anita Barraud: Christine Rogan, coordinator of the FASD Project at New Zealand's Alcohol Healthwatch.
Dr Valerie McGinn, a neuropsychologist and specialist in FASD, was one of the expert witnesses for the Pora case at the Privy Council. While she can't speak in too much detail, Dr McGinn says honest lying or confabulation was accepted as a reason. The Privy Council said there are such things as false confessions.
Valerie McGinn: Yes, confabulation comes from executive brain impairment, which Mr Pora has. It's not lying, it's more like storytelling and not being able to check in what you are saying with the evidence and the truth. So, often people with FASD and other forms of frontal type of brain damage will say things believing them to be true.
And I guess in this case because of how he was functioning at such a young level and because of the offer of a large reward, he was just filling in the gaps to try and make it seem that he knew what had happened when in fact it was obvious in looking at the tapes that he had no idea what had really happened. And this is very typical of someone with FASD.
So that indicated to me that his brain impairment was impeding his capacity to give a true account of what really did happen. And in light of that, the Privy Council could then understand why it was that his different stories were so inconsistent and not based in fact.
Anita Barraud: From viewing the interviews and transcripts, that Mr Pora, in your opinion, was thinking and acting like a much younger child, about seven or eight, rather than what he was, 17 at the time, and he often didn't volunteer, he lacked understanding of the questions asked of him, there were long silences, and he seemed confused and didn't know what to say.
Valerie McGinn: That's right, and that's the primary feature of FASD. A 17-year-old who perhaps legally is just old enough to be held accountable in an adult legal system with FASD would in fact be developmentally many, many years younger.
Anita Barraud: And I suppose the question is why wasn't this kind of investigation done earlier? I mean, the reliability of his confessions were raised in an earlier trial.
Valerie McGinn: Well, I think especially in New Zealand it has really only been in the last few years that we have come to understand the exact nature of FASD and how it implicates in the legal system. I only did my specialist training in Canada in 2008. So although people obviously knew there was something wrong, and even his legal team knew that communicating with him was different than communicating with other people, it was really only once they started to read about FASD and look at the literature that it started to make sense.
Anita Barraud: How much is FASD mentioned as a factor in the criminal justice system in New Zealand now?
Valerie McGinn: It is being recognised increasingly. I've put probably more than 100 FASD assessments to the courts, including the Appeal Court and the High Court, but mostly the Youth Court because I mostly work with youth who are very similar to how Teina was when he was arrested. And it is recognised sometimes as a factor that makes someone unfit to stand trial, but more likely as a mitigating factor, so that sentences can be tailored better to that person's needs. We know that punishment is not effective in changing brain-damaged behaviour but putting support in the community and providing oversight is effective.
Anita Barraud: In its final statements the board said both yours and the other expert witness, Dr Immelman's evidence, established the risk of a miscarriage of justice. False confessions do happen, they said. Do you think there might be other cases where an individual has taken the blame for something they didn't do, or perhaps said they were involved more than they had been in an offence?
Valerie McGinn: Absolutely. I mean, this was a huge case in that respect, and I wouldn't be surprised if there aren't others. It's very difficult to find out exactly what that role may have been in some events because it is difficult for the person with FASD to communicate that. There may be other people entirely innocent. We know of international cases where DNA has established that they weren't involved in a particular offence which they may have been led to confess to, but there are certainly a lot of other people who may have been involved but not to the degree that they are held to account maybe.
Anita Barraud: So how is Mr Pora now?
Valerie McGinn: He's pretty good. He's sort of coming down from the high of finally being found innocent and the excitement I guess…he's waited years for it. But he's got to learn how to live in the world. The world has obviously changed in the years that he has been inside, and for people with FASD it is difficult to live, you do need support. Unfortunately, despite us trying to get support from Corrections to help him re-establish living in the normal world, we have been unable to source any. So he has literally been dumped out really.
Anita Barraud: And I guess his daughter has grown up since he was in jail, she was a little girl. She now has a child. He's missed out from the age of 17 to, what is he now, 39.
Valerie McGinn: Absolutely, so he is spending as much time as he can with his daughter and his grandson. It's hard to have the same sort of bonds when you are not continuously involved with someone. So he is trying to spend as much time as he can with them.
Anita Barraud: Dr Valerie McGinn. It should be noted that there were three expert witnesses, but the evidence from one forensic psychiatrist was not admitted because he was seen to have advanced a theory as to why the confessions were made, not just that they were unreliable. The UK Privy Council Board felt this went beyond his remit as an expert. Teina Pora's case therefore rested on the opinions of the two experts in Foetal Alcohol Spectrum Disorder.
New Zealand Police have said unless new evidence arises, Susan Burdett's murder is unlikely to be pursued. Malcolm Rewa is serving a sentence for her rape, but two separate juries could not decide his guilt on her murder.
This is the Law Report on RN, Radio Australia, ABC News Radio, and on your mobile device. You can podcast or stream us from the RN website, and that's where you can also leave comments and read transcripts of all our programs. I'm Anita Barraud.
To Australia now and the issue of Foetal Alcohol Spectrum Disorder in our criminal justice system.
Heather Douglas is a Professor of Law at the University of Queensland. She's been keeping a watching brief on the number of mentions of FASD in Australian courts.
Heather Douglas: Yes, I gave a presentation a couple of years ago at a conference in Vancouver and said that there had been seven mentions and reported cases, and I think I can say now we are probably up to 12 or 13. So it's very rare that Foetal Alcohol Spectrum Disorder is being mentioned in reported cases. There's a whole lot of reasons for that. A lot of cases aren't reported, for a start, and they are not making it into public databases. But I think a key reason for it is that it's not being picked up by psychologists, neuropsychologists, people doing presentence reports in the courts. And I think a recent case in the Western Australian Court of Appeal is a great example of that, that numerous psychologists, neuropsychologists, forensic psychologists, psychiatrists saw a particular individual, in that case AH, and none of them directly identified FASD or even apparently thought it was a possibility.
Anita Barraud: And this case of AH, this was a sentencing appeal in the Supreme Court of Western Australia last December. AH is a young woman from the Pilbara who I understand, despite graduating high school, had very basic literacy and numeracy skills and she'd never been employed, and she'd come from this chaotic home life.
Heather Douglas: I think AH is a terrible example of system neglect really. AH started off her offending as a child but really wasn't in trouble very often, but when she got into her late teens she started mucking around with cars I guess you would describe it, and doing convenient crimes, where keys where available with friends she may take a car. So there were a couple of cases where she did this and she was charged with offences relating to that. And this led her into the higher courts where she was then assessed basically in the first instance. So she committed these offences in 2011, and by the time she was initially assessed she was ultimately placed on remand and she was able to be assessed by a number of professionals.
They brought back their reports around mid-2012. There was a neuropsychological set of notes that were reviewing her case. There was a forensic psychologist's report and there was a presentence report. And all of those reports really came to the same conclusion, that she had lack of literary skills, that she had mild use of alcohol and cannabis, and they recommended a proper psychological evaluation. They recommended educational vocational interventions, and they also recommended general assistance with substance abuse and that she needed mentoring so that she could actually get to appointments and so forth. So those reports were all made…
Anita Barraud: Nothing happened.
Heather Douglas: And absolutely nothing happened. So she was released for a period of time and committed some more offences. Again, these offences were not violent offences, they related to minor thefts and minor use of cannabis utensils, possessing smoking utensils. And certain appointments were made for her. She wouldn't turn up at the actual appointment, and so instead of dealing with her as she turned up, the new appointment would be made, which she would miss, and so forth.
Anita Barraud: This is another symptom too of Foetal Alcohol Spectrum Disorder.
Heather Douglas: Absolutely…
Anita Barraud: And in fact in one court appearance they were quite surprised that she had never been assessed for FASD.
Heather Douglas: Yes, that's right. One of the judges basically said, well, why hasn't she been assessed for Foetal Alcohol Spectrum Disorder? And by this time she had been in remand again for some time, and there is a suggestion in the case that difficult period of remand led her to have some quite severe psychotic episodes. So by the time this suggestion was made, that Foetal Alcohol Spectrum Disorder assessments should be made, she was quite unwell and it was impossible to assess her.
So that case ended with the court suggesting that she be released forthwith. She had already spent some long time in remand. And that the idea of placing her on any bonds or requirements for specific attendance was really inappropriate. So at this stage I think the position is that there's an attempt being made to find her a guardian. There's been some efforts made to find her housing with extended family, and there has been some steps made to put her in touch with disability services. But this is three years later. It's quite tragic.
Anita Barraud: AH's case is sadly common. A study in the Fitzroy Valley community in WA found a third of the children have FASD, brain damage or cognitive impairments. There's no way of knowing how many have had brushes with the law in Australia. Canadian studies suggest 60% of people who come in contact with the criminal justice system there have FASD.
Heather Douglas and colleagues carried out a survey of Queensland lawyers' and judges' knowledge of FASD and found there wasn't a strong understanding, but there was a desire to learn more.
Heather Douglas: We found that there wasn't a strong knowledge of Foetal Alcohol Spectrum Disorder generally from the profession, either the judges or the lawyers, and that those who did know about it, their information was coming from the media, so it wasn't coming from arguably more reputable sources. But it wasn't coming from journal articles or professional development training or anything like that, it was coming from the media articles that they'd read. And some of the things that we found were that they associated Foetal Alcohol Spectrum Disorder with a low IQ, so under 70, which obviously isn't always the case with people with Foetal Alcohol Spectrum Disorder. And in fact in 25% of cases where people have severe dysfunction as a result of Foetal Alcohol Spectrum Disorder they don't have a low IQ.
We also discovered that a lot of people, judges and lawyers associated Foetal Alcohol Spectrum Disorder with facial dysmorphia, so the kinds of facial characteristics that are associated with Foetal Alcohol Spectrum Disorder, such as a thin upper lip, wide placement of eyes and th lack of a philtrum, the dip between the nose and upper lip. Certainly if people have Foetal Alcohol Syndrome, the most serious form of the set of issues, they are likely to have that facial dysmorphia. There was a case in the Northern Territory, Doolan in 2009, where he was not even able to manage toileting, couldn't learn to speak properly and was identified as having Foetal Alcohol Spectrum Disorder and Foetal Alcohol Syndrome within the collection. The better triggers to be relying on would be the issues around language and attention, reasoning, memory, adaptive behaviour and so forth.
Anita Barraud: Heather Douglas.
New Zealand neuropsychologist Dr Valerie McGinn says there are some clear red flags to look out for. She has been to Australia to train health professionals in identifying FASD ahead of the opening of a clinic on the Gold Coast. It's the first to specialise in diagnosing FASD in children and adolescents.
Valerie McGinn: People with FASD are all different because the pattern of drinking and the way the brain is insulted differs. Not all children who are exposed to alcohol do have a disability, but many of them do. And unless they are getting supported at school and extra help, then they are on a life course which is not necessarily going to lead to positive outcomes.
The other red flags that really should be taken into account in the court system are children in care. They have a highly increased incidence of FASD because many of them come into care because families just can't manage their difficult behaviours. Also what we see with young people with FASD is that they find it very difficult to follow their court conditions. Children who may be bailed on certain conditions like curfews and not associating with certain people, and they break those conditions over and over.
Often they have trouble telling the time and they may be impulsive and not think through to consequences, so therefore it is difficult for them to follow conditions without support. I think the nature of the crime, that may have some kind of naiveté where it looks as if the person didn't make good decisions, then there may be issues of FASD.
Anita Barraud: So, say, stealing a car while the owner is standing right by it, or something like that.
Valerie McGinn: Yes, or staying in the stolen car while everyone else runs off when the police arrive. There's a variety of things, but after a while some of our judges are starting to recognise…you know, just to think, hmm, this is starting to look a bit like FASD.
Anita Barraud: And is it the case too that sometimes youths, children, will be diagnosed with other intellectual mental disorders, like ADHD or ADD or ODD or any of the other conditions that people call the alphabet soup of disorders, that it might mask this underlying issue?
Valerie McGinn: Certainly by the time young people come to the courts they've usually accumulated a large number of diagnoses. Many of them do have ADHD as part of their brain impairment from prenatal alcohol exposure. They do become oppositional and not follow rules, so they may be diagnosed with oppositional defiance disorder. There are screening tools that we can use in the courts that come from Canada that are very applicable here. So if there was finances available we could screen every youth offender coming through the courts, provide FASD assessments to try and accommodate that disability, if that's what they have. We have no government funding for that.
Heather Douglas: I think the more of these cases we see, so Pora is a great example, it's a Privy Council, so it's a powerful statement from a High Court about FASD being taken seriously and evidence of Foetal Alcohol Spectrum Disorder being relevant and reputable. I think also in the AH case, having the Chief Justice of the Court of Appeal in Western Australia speaking out to say, well, why hasn't anybody been looking at Foetal Alcohol Spectrum Disorder here? I'm seeing all the red flags, why isn't someone looking at this? I think these statements I really important to develop a culture where we think about this. It's on the radar, it's something that we consider.
And certainly in Western Australia and Queensland I think there is a growing awareness, and I just know about those two states, but I think there is a growing awareness amongst police of Foetal Alcohol Spectrum Disorder. They have a database where they record people's disabilities so that police know better how to deal with those people if they come across them again, and that covers things including mental health issues and so forth, so it's not just limited to Foetal Alcohol Spectrum Disorder.
I think once you identify a disability properly, then you can better respond to what you need to do in relation to that disability. So some disabilities, like brain injury as a result of motor vehicle accident, there can be some recovery, so there can be some change, we can hope for that and plan for that. But with Foetal Alcohol Spectrum Disorder, it's probably going to remain much the same. So it is about working on changes to the environment.
Anita Barraud: And the trouble is, too, the diagnosis is complex, it requires a lot of specialists, from paediatricians, psychologists, speech pathologists, all sorts, as well as a detailed family history. That's not always available.
Heather Douglas: I think the interesting thing in the Pora case was that the report presented by Valerie McGinn, who is a very experienced neuropsychologist who has worked a lot with Foetal Alcohol Spectrum Disorder, they accepted her report by itself as evidence that he suffered from FASD, that therefore the FASD might be an explanation for why he made a confession that was possibly false, was certainly unreliable. To get a certain diagnosis there is often a suggestion that we need to have more professionals involved, but clearly this case suggests that a single neuropsychologist would potentially be sufficient.
So bench books and things like that which provide broadly education for judges and magistrates I think are useful, police manuals could set out this kind of information as well. I think we should be teaching it to lawyers and law students, so part of professional practice education. So I think really getting the information out there, because once lawyers and judges start asking presentence report writers and sending people off for assessments for this particular issue, amongst others, this will put other people on notice that these reports are wanted, this question needs to be answered in particular cases. So I think that's really important, to have information out there about it. But it is a question of making Foetal Alcohol Spectrum Disorder visible, and that's a bit of a long road I think.
Anita Barraud: Heather Douglas, Professor of Law at the University of Queensland, and before her New Zealand neuropsychologist Dr Valerie McGinn. In the recent NSW election, both major parties promised big bucks for a Foetal Alcohol Spectrum Disorder clinic in Sydney's Westmead Hospital.
FASD is specifically mentioned in the judges' bench book in Western Australia. This is the handy tool which lists factors to consider when sentencing.
That's the program for today, I'm Anita Barraud. Producer is Matthew Crawford, and technical producer Nick Mierisch.
Thanks for joining me.
Patrick McGee ADJC Coordinator 0448 610 105