Black Saturday arson accused found to be mentally unfit for trial

Black Saturday arson accused found to be mentally unfit for trial

09 August 2011

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Australia — A JURY has found two boys accused of starting a fatal Bendigo bushfire on Black Saturday unfit to be tried because of their intellectual disabilities. The fire killed one man and destroyed more than 60 homes.

The teenagers, aged 15 and 16, cannot be named. They are charged with arson causing death, and intentionally or recklessly causing a bushfire.

The Supreme Court yesterday heard that both teenagers were accused of deliberately lighting the fire, which claimed the life of 47-year-old Long Gully man Kevin Kane and caused $23.5 million in damage to homes, farmland and machinery on February 7, 2009.

They were aged 13 and 14 at the time.

A forensic psychologist testified that both boys had low intellectual capacities that would never improve, therefore they were unfit to be tried.

Several other mental health experts had reached the same conclusion, he said.

In addition to requiring medication for attention deficit hyperactivity disorder, the youngest boy was diagnosed as ”intellectually disabled in the area that we would call mild to moderate range, and this means that his level of functioning is equal to or lower than two out of 1000,” the forensic psychologist said.

”So if you had 1000 people … he would fall at the bottom two people in that group.”

”[His] IQ score was 56 and the average IQ score in the population is about 100, so a cut-off of intellectual disability is generally 70.”

He added that the boy’s intellectual capacity and level of functioning were consistent with a child aged eight or nine rather than 15, and would never surpass the intellectual skills beyond years 5 or 6 at school.

The older boy suffered from epilepsy and had also been diagnosed as being intellectually disabled, he told the court. He had a similar IQ and intellectual functioning to the other boy.

Prosecutor Kieran Gilligan said the evidence was ”overwhelming” and all pointed one way – ”that each of the accused are unfit to stand trial”.

Defence lawyer Nick Pappas, for the 16-year-old, and Peter Chadwick, SC, for the 15-year-old, agreed and, after a deliberating for only a short time, the jury decided that on the balance of probabilities, the boys were unfit to stand trial.

The verdict means the teenagers will now face ”special hearings” to determine whether or not they lit the fire, but they will not have to enter pleas. More than 100 witnesses are expected to be called.

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