At the age of about 4 months, Marlon Noble, a Yamatji (Aboriginal) child in Western Australia, contracted meningitis which left him left intellectually impaired. He has ‘well below average intelligence and cognitive difficulties. A 1995 assessment found he had problems with literacy and numeracy, and was likely to be confused by complex instructions. He also had problems expressing himself verbally.’¹

In October 2001, when he was 19, Noble was arrested and charged with sexual offences against two sisters under the age of 16. He was remanded at Hakea Prison in Perth and denied bail.

The prosecution and defence jointly applied for a court-ordered psychiatric assessment of Mr Noble without his consent. A fitness to plead hearing was held in the District Court of Western Australia in January 2003, at which 3 psychiatric assessments were presented. Two of the reports concluded that Mr Noble was unfit to plead, while the third said he appeared to understand the charges against him and wished to plead not guilty. The court decided he was unfit to plead and made him subject to the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) (or 'MID Act'), such that Mr Noble was not permitted to plead, no finding of guilt was made and decision-making regarding his custody was vested in the Mentally Impaired Accused Review Board. This Board had Mr Noble moved to Greenough prison in Geraldton, 400km north of Perth, where he remained indefinitely.

A psychological assessment undertaken in 2010 concluded that, with appropriate assistance, Mr Noble was capable of standing trial. On that basis, his lawyer sought to bring the matter to trial. The WA Director of Public Prosecutions chose not to proceed with the prosecution, owing to insufficient evidence against Mr Noble and limited prospects of conviction.

In fact, the alleged victims and their mother refuted the accusations against Mr Noble and publicly supported calls for his release. The mother of the girls described Mr Noble as a ‘big softy’, while the older daughter described him as a ‘good bloke’. She ‘couldn't think of anything’ (he did) when her mother pressed her to remember any wrongdoing. ‘I just thought of him being good to us.’²

The original charge sheet, which might explain this anomaly, was missing from Mr Noble’s police file.³

Mr Noble was not released, but remained in prison until January 2012, a total of 10 years and 3 months (including 17 months on remand). Court statistics suggest that, had he been tried and convicted, Mr Noble’s likely sentence would have been 2-to-3 years, with time spent on remand deducted from the sentence.

When finally released into the community, Mr Noble was subject to 10 ‘very restrictive’ conditions of unlimited duration and with no avenue of appeal to have them lifted. The conditions included never entering a licensed premise, including restaurants; not staying overnight anywhere other than his primary address without prior approval of the Board, nor being in the company of any girl under 16 without a pre-approved supervisor. The conditions meant he could neither lead 'a normal life’, nor visit his mother’s grave, almost 500km north of Geraldton, his mother having died in 2004 while Mr Noble was in prison.⁴ This ‘civil detention’ continued for over 13 years.

Alleged violations

Mr Noble’s communication to the CRPD relates to events occurring after 20 September 2009, when the Optional Protocol entered into force for Australia. That is, his final 2 years and 4 months of imprisonment, and his continued civil detention, which amounted to deprivation of liberty, all based on a presumption of guilt, without the opportunity to enter a plea or test evidence against him.

Mr Noble maintained that his imprisonment and the restrictions on his liberty since release, all without conviction, were imposed on the basis of his disability, in breach of art 14(1)(b) of the Convention: ‘one of the most serious and pervasive forms of violations of the rights of persons with disability’ (para. 5.10). He maintains that reasonable accommodations⁵ could enable someone with intellectual disability or mental illness to stand trial and receive a fair trial.

Mr Noble further maintained that his prolonged incarceration with convicted persons was ‘humiliating and degrading’; that he suffered ‘frequent incidents of violence and abuse from other prisoners’, from which he was unable to protect himself owing to his disability. He alleged the significant risk of harm posed by other prisoners constituted a breach of articles 14(2) and 15.

“I don’t like it, gaol. I don’t like it in there. Scary place.
You have no family in there, no brothers or sisters to talk to. You’re on your own.”⁶
– Marlon Noble

Australia’s response

Responding to the CRPD, Australia accepted the facts as presented by Mr Noble. It maintained that, despite inconsistencies in the evidence, there was a prima facie case alleging serious offences against young children and that public safety must take priority over the judge’s ‘deep concern’ that prison was not an appropriate environment for Mr Noble. It noted Mr Noble’s imprisonment was reviewed 8 times, noting the ‘lack of available support services’ for him in the community, such as ‘trained supervisors and carers’.

Australia also noted that in 1980 it entered a reservation to article 10(2) of the ICCPR, accepting the obligation to remand accused persons separately from convicted prisoners as a goal to be achieved progressively. (In 2015, the WA government opened a 10-bed ‘disability justice centre’ in Perth for people with disability who face charges but who are deemed mentally unfit to plea. In its first 3 years of operation, the facility is said to have housed no more than 3 people at a time.)

Final Views

The Committee on the Rights of Persons with Disabilities found Mr Noble’s complaints concerning the conditions of his detention inadmissible, due to Australia’s unrefuted claim he had not exhausted domestic remedies in that regard.

The Committee found that, by operation of WA’s Mentally Impaired Defendants’ Act, Mr Noble was denied a fair trial and equal protection under the law, amounting to violations of CRPD art 5(1) and 5(2) concerning equality and non-discrimination.

It also found that, despite his clear intention to plead not guilty, Mr Noble was denied the support he required to exercise his legal capacity, in violation of articles 12(2), 12(3) and 13(1) concerning equal recognition before the law and access to justice.

Further, the Committee found that Mr Noble’s disability was the ‘core cause’ of his deprivation of liberty (both his imprisonment and the restrictive conditions of his release), amounting to violations of art 14(1)(b) concerning arbitrary detention.

Finally, the Committee found that Mr Noble was imprisoned ‘without having any indication as to the duration of his detention’, ultimately for more than 10 years. It noted the ‘irreparable psychological effects that indefinite detention may have on the detained person’ (para. 8.9) and concluded that Mr Noble’s imprisonment amounted to inhuman and degrading treatment in violation of CPRD art 15 which prohibits inhuman or degrading treatment or punishment.

Urgent reforms needed for legal services, courts & prisons

"Ten years for nothing -- hurt me bad."⁷
– Marlon Noble (2011)

The non-repetition measures recommended by the Committee (see box above) are critical reforms for Australia’s prison systems. Given that people living with mental illness and/or cognitive disabilities are so over-represented among the prison population, high rates of disabilities should be ‘assumed as the norm’ rather than the exception. In Victoria, 42% of male prisoners and 33% of female prisoners in Victoria have an acquired brain injury, compared with just 2.2% of the general population – and that’s just one form of impairment.⁸

In 2015, the Chief Justice of Western Australia called for ‘urgent’ reform in this area, saying some lawyers were recommending their mentally impaired clients not engage the supposed protection of the Mentally Impaired Accused Act (as the MID Act was renamed in 2005), because they were likely to face ‘a lot’ shorter period of imprisonment ‘if they simply plead guilty to the charge brought before the court’.⁹

In 2015, before the final views of the CRPD in Noble, Australia’s Department of Social Services funded a 2-year interdisciplinary research project undertaken at the University of Melbourne and University of New South Wales. Called Unfit to Plead, it sought to ‘develop practical and legal options to help ensure that accused persons with cognitive disabilities can participate in criminal proceedings brought against them on an equal basis with others.' The project assessed the impact of embedding disability support workers within community legal services and found that a ‘relatively modest support intervention at a crucial point in criminal justice proceedings can improve the timeliness and quality of outcomes for accused persons with cognitive disabilities, and potentially provide significant cost savings to government.’

In 2016, a committee of Australian Senators undertook an inquiry into the issues raised by Mr Noble’s experience in the criminal justice system, making a series of recommendations to all Australian governments to prevent the indefinite detention of people with disability. At the time of the inquiry, there were 16 people detained indefinitely in the Northern Territory deemed unfit to plead. The Territory lacked any independent review process to monitor these unconvicted prisoners. The inquiry also found an increasing number of people entering the criminal justice system with foetal alcohol spectrum disorder (FASD).¹⁰

In 2016, Western Australia also conducted a review into its Mentally Impaired Accused Act (concluding 5 months prior to the final views in Noble). It recommended that courts need more options in dealing with people deemed unfit to plead, beyond the existing choice of unconditional release or custody. The review rejected suggestions that indefinite detention be abolished altogether.¹¹

Australia’s response to CRPD’s Final Views

In its response to the Committee in 2017, Australia cited admissions of failure by Western Australia regarding Mr Noble’s detention and the operation of its MID Act and requested guidance from the Committee ‘on the type of measures that could ... assist an author to exercise legal capacity’ and enjoy ‘inclusion in the community’.

But it rejected the Committee’s conclusion that Australia had violated Mr Noble’s Convention rights and declined to compensate him or comply with any of the Committee’s other recommendations.

Australia asserted WA’s MID Act, while deficient and under revision, did not discriminate against people with disability, but was in fact a form of reasonable accommodation as required under the CRPD, because the Act ‘operates on a case-by-case basis to enable persons with mental impairment to engage with the criminal justice system while providing for appropriate and effective safeguards to prevent abuse’.

Australia denied there were any adjustments or additional support that could have enabled Mr Noble to stand trial. Australia criticised the Committee’s failure to understand legal capacity ‘as a spectrum’. It acknowledged Mr Noble’s right to exercise legal capacity was limited, but maintained the limitations were justified and accorded with international human rights law.

Partial individual remedy: Noble's liberty made unconditional

Robert Cock QC, as special counsel to the Premier of WA and later chair of the Mentally Impaired Accused Review Board (2012-18), wrote a series of reports on Mr Noble which led to his conditional release in January 2012 and, eventually, after years of this 'civil detention', an end to all 10 conditions of his release.

As such, the CRPD's views in Noble have been partially implemented, but the conditions of Mr Noble's release were not revoked immediately, as required by the CRPD, nor were they replaced "with all necessary support measures for his inclusion in the community" (para. 9(a)(ii)).

The complex care support Mr Noble needs does not necessarily exist or, where it exists, it may not be the right fit for him. "The model of support [available] is not what Marlon needs," says his friend and advocate, Ida Curtois. "He wants to live independently and doesn't want to put his hand up. So he goes without."

The CRPD's Final Views are published online by the Commonwealth Attorney-General's Department, but have not, to our knowledge at Remedy Australia, been circulated in accessible formats. (Please contact us if you have seen or published Noble v Australia in more accessible format(s).)

Neither the Commonwealth nor Western Australian government has compensated Mr Noble (and he had no legal costs, thanks to pro bono legal assistance).

Says Patrick McGee of the Australian Federation of Disability Organisations, "There's a legal principle at stake: accountability for people with disability. Lack of compensation has always meant no-one's in a hurry [to remedy violations]."

Still waiting for non-repetition measures

See the blue box above for the detailed recommendations the CRPD made to Australia to prevent the violations found in Noble from recurring, including ending the imprisonment of unconvicted people with disability, and ensuring support and accommodation for people with disability in the criminal justice system. Particular attention was drawn to reforming WA's MIA Act.

Supported decision-making enabling people with disability to exercise legal capacity is not enshrined in law, either federally or in any Australian state or territory.

One of Labor's key promises in the 2017 WA state election was to reform the MIA Act in its first 12 months in government. While it has yet to do so, it has been consulting with relevant civil society organisations to draft a bill and has taken steps to remedy similar violations.

1. Michael Brull, 'The sad story of Marlon Noble’, ABC Ramp Up (9 December 2011).
2. Colleen Egan, ‘Marlon Noble “victims” don’t recall sex crimes’, The West Australian (18 April 2011).
3. Aviva Ziegler, Held Without Trial: The True Story of Marlon Noble, incomplete/unreleased feature documentary (2016).
4. ‘Man to face Carnarvon murder trial/2020426’, ABC News (5 August 2004).
5. Art 2 of the CRPD defines ‘reasonable accommodation’ as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.
6. Aviva Ziegler, Held Without Trial: The True Story of Marlon Noble, incomplete/unreleased feature documentary (2016).
7. ‘Marlon Noble released after 10 years', Perth Now (25 March 2011).
8. Piers Gooding, Bernadette McSherry & Anna Arstein-Kerslake, ‘Unfit to plead: Imprisoned without conviction’, University of Melbourne (2015-17).
9. ‘“Urgent need” for law change as mentally-impaired accused detained indefinitely, WA Chief Justice Wayne Martin says’, ABC News (10 July 2015).
10. Stephanie Zillman, ‘Indefinite detention of cognitively and mentally impaired people inquiry labelled “predictable”,’ ABC News (10 April 2016).
11. Jacob Kagi, ‘Mentally-impaired accused laws: WA review recommends more discretion for courts’, ABC News (7 April 2016).
12. Para. 32 of the CPRD’s Concluding Observations on the initial report of Australia (September 2013), UN doc. CRPD/C/AUS/CO/1.