Marie Shaw KC calls charging autistic 13-year-old boy with extremist material possession ‘oppressive’

One of the state’s top silks says laying a terror charge against a severely autistic teen was an “abuse of power” – as a magistrate recused herself.

One of the state’s most senior barristers says a police decision to charge a severely autistic with possessing extremist material was “oppressive”, and an “abuse of power” – as the presiding magistrate recused themselves.

Former District Court judge Marie Shaw KC said the process of charging her 13-year-old client – who the court heard was able to communicate only at the level of a three-year-old – was “doomed to fail” from the start.

“The proceedings are an abuse of process, doomed to fail and oppressive,” Ms Shaw told the Adelaide Youth court on Wednesday.

“The objects (for this court) as not to traumatise the child by process, when there is no dispute that he is on the spectrum.

The 13-year-old has been charged with terror offences. Picture: Isabel McMillan

“There is material to be submitted relating to the conduct of police on arrest in relation to this child that all informs the process of charging.”

Magistrate Alison Adair said the application filed to the court, and set for argument, was “very different” from the submissions made by Ms Shaw.

The 13-year-old boy has been charged with one count of having possession of extremist material after his arrest on July 4 “following an investigation”. He is yet to enter a plea.

At the previous court appearance, counsel for the boy – who cannot be identified by law – said police prosecution had “no evidence to rebut the principal of doli incapax”.

Doli incapax is used to describe the common law principle that a child aged under 14 cannot be held criminally responsible for their actions.

On Wednesday, the court heard prosecutors were confident they could overcome the principle.

After a short adjournment, an application was filed for Ms Adair to recuse herself of hearing the application to stay proceedings.

The boy is now “under the care” of one of the states top silks, Marie Shaw KC. Picture: Isabel McMillan.

“The fair-minded lay observer may be of the view I would not determine the application as framed seven minutes ago by Ms Shaw in a fair way,” Ms Adair said

“In my view, the application described by her does not reflect the application as filed, nor the material that has been referred to.

“Nonetheless to remove any difficulty that might arise from that position I am prepared to recuse myself from hearing this application.”

Ms Shaw’s application arose from what was intended to be a hearing into the legal principal of doli incapax.

Police prosecution said they were not of the view that Ms Adair had stepped “over the line” and was “more than capable” to hear the argument and make a “fair decision”.

Ms Adair’s recusal means the application would next be heard by a different youth court judicial officer in Christies Beach.

Originally published as Marie Shaw KC calls charging autistic 13-year-old boy with extremist material possession ‘oppressive’