CCPR/C/132/D/2900/2016 Advance unedited version
1.
The author of the communication is A.S., a national of Australia born in 1963. He
claims that the State party has violated his rights under articles 2 (1), 7, 9 (1) and (4), 10 (1),
10 (3), 17 (1), 23 (1), 26 and 27 of the Covenant. The Optional Protocol entered into force
for Australia on 25 December 1991. The author is represented by counsel.
Facts as submitted by the author
2.1
The author submits that he is an indigenous Australian and identifies himself as
Pitjantjatara. He experienced a traumatic childhood and suffers from cognitive and mental
impairments due to a development disorder and substance abuse. He also suffers from
paranoia and delusions. He has a long history of hospital admissions both for medical and
psychiatric treatment, including for aggressive behaviour.
2.2
On 15 August 1995, the author, at the age of 32, was arrested on the charges of murder,
robbery and attempted sexual intercourse without consent, allegedly committed against a
woman unknown to him on the same day as his arrest. He was held on remand from the day
of his arrest until his trial in October 1996. On 14 October 1996, he was indicted on those
charges by the Northern Territory (NT) Supreme Court.
2.3
On 15 October 1996, he was found not guilty on the ground of insanity on each count
of the indictment. Pursuant to the then effective s 382(2) of the NT Criminal Code, the
Supreme Court ordered that the author be kept in strict custody at Alice Springs Correctional
Centre, until the NT Administrator’s pleasure was known.
2.4
On 27 September 2001, the Administrator ordered that the author be detained at Alice
Springs Correctional Centre, subject to the authority of the Director of Correctional Services.
2.5
On 15 June 2002, the NT Criminal Code was amended by the NT Criminal Code
Amendment Act 2002 (the Amending Act). Part IIA was inserted into the Criminal Code,
titled “Mental Impairment and Unfitness to Be Tried”. Among other things, it provides for
the making of custodial or non-custodial supervision orders where a person has been found
not guilty of an offence by reason of mental impairment. As of that date, on the basis of the
transitional provisions of the Amending Act, the author was deemed to be a supervised person
held in custody on the same terms and conditions under a custodial supervision order within
the meaning of Part IIA.
2.6
The NT Supreme Court conducted a mandatory review of the author’s supervised
custody in August 2003 pursuant to s 6(3) and 43ZH of the NT Criminal Code.1 The Supreme
Court found that the resources available at Alice Springs Correctional Centre were not
appropriate for the custody and care of the author. Despite the inherent problems with the
prison environment, on 10 September 2003, the Supreme Court ordered that, due to his
mental impairments and the fact that he could be a risk to himself and society if left
unsupervised, the author be kept at Alice Springs Correctional Centre subject to a custodial
supervision order. The Supreme Court noted that since there were no adequate resources
available for the treatment and support of the author, there was no practicable alternative to
incarceration at Alice Springs Correctional Centre.
2.7
The author submits that according to another decision of the NT Supreme Court
delivered in 2007, the NT Criminal Code does not require the court to review his custodial
supervision order at any other point in the future. In that decision, the NT Supreme Court
stated that the only compulsory review of the author’s custodial supervision order had taken
place in 2003.2 The author informs that s 43ZK of the NT Criminal Code provides that an
1
2
2
When a person becomes subject to custodial supervision on the basis of the transitional provisions of
the Amending Act, a report should be submitted within 6 month of the entry into force of the
Amending Act to the court that must conduct a review.
The author explains that when a court makes a supervision order, the court must fix a term that is
equivalent to the period of imprisonment that would have been appropriate if the person had been
found guilty of the offence. Between six and three months before the expiry of this term, the court
must conduct a review to determine whether to release the supervised person or to vary the
supervision order. However, given that the author became subject of custodial supervision by virtue
of the transitional provisions of the Amending Act and formally speaking no custodial supervision
order was ever made, the Supreme Court found that the mandatory elements of a supervision order