Unfit to plead: Imprisoned without conviction

Monday, Sep 4, 2017, 02:14 AM | Source: Pursuit

Piers Gooding, Bernadette McSherry, Anna Arstein-Kerslake

In 2001, nineteen-year-old Marlon Noble was charged with sexual offences against two young girls. If convicted, he would likely have served two to three years in custody.

Instead, Mr Noble was imprisoned for over 10 years without conviction. The charges were never tested in court and he remained in prison despite the alleged victims subsequently informing prosecutors that Mr Noble had never assaulted them.

42 per cent of male prisoners and 33 per cent of female prisoners in Victoria have an acquired brain injury. Picture: iStock

How could anyone be imprisoned without conviction for so long in Australia?

Mr Noble is an Indigenous man with an intellectual disability. He was found ‘unfit to plead’ by the District Court of Western Australia which meant that he became subject to legislation governing ‘mentally impaired defendants’. This legislation enables indefinite ‘civil’ detention and/or intensive supervision of those with mental impairments based on their perceived risk to the community.

Our two-year interdisciplinary research project, conducted in collaboration with researchers at the University of New South Wales, indicates that embedding disability support workers in community legal services can reduce the need for people with cognitive disabilities to be found unfit to stand trial and detained indefinitely.

Detention with No End in Sight

Marlon Noble’s case is not a unique one in the Australian criminal justice system.

Unfitness to plead laws are based on the idea that accused persons should not be put on trial if they can’t understand the legal process and the charges against them.

The main aim of these laws is to avoid unfair trials.

However, declarations of unfitness may lead to indefinite detention of unconvicted persons in prison or special facilities based on community protection. They may also lead to state intervention for a period which exceeds the length of the potential sentence for the original charge.

The current laws regarding ‘fitness to plead’ or ‘fitness to stand trial’ raise serious concerns about accused persons with cognitive disabilities potentially being denied equal access to justice.

Are Prisons the New Asylums?

The New South Wales Mental Health Commission reported recently that people living with mental illness and/or cognitive disabilities are so over-represented among the prison population, that high rates of disabilities should be ‘assumed as the norm’ rather than the exception.

According to the Victorian Department of Justice, 42 per cent of male prisoners and 33 per cent of female prisoners in Victoria have an acquired brain injury, compared to just 2.2 per cent of the general population.

The scale of these statistics reflects a lack of appropriate services and supports to people with cognitive disabilities in the community.

There are also physical disabilities that may affect people’s ability to comprehend what’s happening around them. Hearing loss is a major issue which can compound disadvantage for people with cognitive disabilities, particularly for Indigenous people. According to researchers at James Cook University, nine out of 10 Aboriginal inmates in Northern Territory jails have significant hearing loss.

People with mental illness and/or cognitive disabilities are over-represented in the prison population. Picture: Getty Images

Unfitness to plead laws have other unintended consequences. They may exacerbate the overcrowding of people with disabilities, and particularly Indigenous people with disabilities, in the criminal justice system.

Supporting Just Outcomes

In 2015, the Unfitness to Plead Project began.

Its aim is todevelop 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 was funded under the National Disability Special Account and administered by the Department of Social Services on behalf of the Commonwealth, state and territory Research and Data Working Group.

Researchers from the University of Melbourne and the University of New South Wales explored the need for legislative change.

Our research team developed a Disability Justice Support Program, which helps accused people take part in legal proceedings and exercise their legal rights. The program involved embedding disability support workers within two Aboriginal led community legal services in Victoria and the Northern territory and one non-Indigenous legal service in New South Wales.

The benefits went further than originally anticipated in that support workers made referrals and assisted in building relationships between community legal centres and local disability support services, as well as other relevant support services.

Embedding support workers within community legal services could ideally reduce the need for people to be found unfit to plead.

Additionally, our research 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.

Resourcing trained supporters to work in legal centres could reduce the significant economic and social costs of people with cognitive disabilities becoming ‘stuck’ in the criminal justice system.


Marlon Noble is now 35-years-old.

Only last year, the United Nations Committee on the Rights of Persons with Disabilities found that Mr Noble had several of his human rights violated while he was in prison without conviction, including: rights to equality before the law, freedom from deprivation of liberty, and freedom from cruel, inhuman and degrading treatment.

A 2016 Senate Committee Inquiry into the issues raised by Mr Noble’s case, noted that ‘indefinite detention is unacceptable’ and recommended ‘that state and territory legislation be amended in line with this principle’.

Throughout Australia, people with disabilities are more likely to get caught in the criminal justice system, and it is generally agreed that more could be done to make sure criminal proceedings are more accessible to those with disabilities.

Interdisciplinary and participatory research which informed the Unfitness to Plead project could pave the way to providing fairness in the Australian criminal justice system for those people who may find it the hardest to navigate.

Banner image: iStock