CRPD/C/16/D/7/2012
1.
The author of the communication is Marlon James Noble, an Aboriginal national of
Australia, born on 11 February 1982. He has a mental and intellectual disability and claims
to be a victim of violations by Australia of his rights under articles 5 (1), 12, 13, 14 (1) (b),
14 (2) and 15 of the Convention. The Optional Protocol entered into force for Australia on
19 September 2009. The author is represented by counsel, Phillip French.
A.
Summary of the information and arguments submitted by the parties
Facts as submitted by the author
2.1
In October 2001, when he was 19 years old, the author was charged with two counts
of sexual penetration of a child under the age of 13 and three counts of indecently dealing
with a child aged between 13 to 16, pursuant to sections 320 and 321 of the Western
Australian Criminal Code of 1913. Those offences carried a maximum penalty of 20 and 7
years’ imprisonment respectively. The author was arrested, taken into custody at Hakea
Prison, a correctional centre operated by the Western Australian Department of Corrective
Services, and refused bail.
2.2
In early 2002, the author appeared before the Court of Petty Sessions in Perth. He
was remanded in custody for assessment of his intellectual impairment. On 18 July 2002,
he appeared before the District Court of Western Australia on indictments for both charges.
The prosecution put before the Court an expert report indicating that the author may be
unfit to plead to the charges. The prosecutor viewed the report as inconclusive. The
prosecution and the defence joined in an application to the Court for a further psychiatric
assessment of the author to be conducted pursuant to section 12 of the Mentally Impaired
Defendants Act of 1996. The prosecutor submitted to the Court that the assessment should
be made under that section so that it could be conducted without the author’s consent. The
application was granted and after the hearing, the author was remanded in custody at Hakea
Prison.
2.3
At a further hearing on 2 September 2002 before the District Court of Western
Australia, the prosecutor advised the Court that the author had been assessed by a
psychiatrist, but that only a preliminary report had been received. The prosecution therefore
sought an adjournment, which was granted. The author was again remanded in custody at
Hakea Prison. The author next appeared before the District Court on 25 October 2002,
when the decision was taken to conduct a fitness to plead hearing on 24 January 2003. On
that date, three psychiatrists’ reports were presented: two concluded that the author was
unfit to plead, and one recommended further assessment. The last report noted that the
author appeared to understand the nature of the charges against him, and that he had
expressed the intention to plead not guilty. While the prosecution and the defence did not
formally concede that the author was not fit to plead, both advised the Court that such a
finding was possible. The Court reserved its decision. In the meantime, the author was
remanded in custody at Hakea prison.
2.4
The author appeared again before the District Court of Western Australia, around 7
March 2003. He submits that all court records of that appearance were lost or destroyed. 1
The Court found that the author was unfit to plead and was made subject to a custody order
pursuant to sections 16 and 19 of the Mentally Impaired Defendants Act. The author did not
therefore have the opportunity to plead not guilty, and the Court made no finding of guilt.
Responsibility for oversight of the author’s custody order was vested in the Mentally
Impaired Defendants Review Board, which determined that the author was to be detained in
1
2
Counsel submits that he was advised of the above by the Registrar’s office, District Court of Western
Australia on 15 March 2013.