A Kafkaesque conundrum
I
Matthew* is getting agitated. There are eight of us sitting around a large, rectangular table in the Melbourne Social Equity Institute’s meeting room in Carlton, with four others joining in by video from the Northern Territory and New South Wales. It is the second advisory board meeting for our interdisciplinary research project on unfitness to plead laws.
Matthew is part of the Voice at the Table project, which aims to increase the number of people with cognitive disabilities on advisory boards and committees across Victoria. He joins an advisory board populated by lawyers, psychologists, representatives from Indigenous organisations and court staff.
Piers Gooding, one of the researchers, is explaining how we’re going to train disability support persons to work in community legal centres with those with cognitive disabilities who’ve been charged with crimes. The aim is to help accused people understand the legal process. We’ll assess what happens and interview the clients, support workers and lawyers about the program. The program will go for six months because that’s all the funding from the Commonwealth Government allows for.
Matthew asks, ‘What happens then?’
There is silence. As researchers, we work from project to project, most of which are dependent on finite external funding, hoping that our recommendations will be taken up by sympathetic policymakers.
Matthew’s face reddens. ‘You can’t give people support and then take it away,’ he says.
II
There is a scene in Kafka’s The Trial where the protagonist, Josef K, visits the court’s artist, Titorelli, in the hope of gaining information about the trial process. Titorelli explains there are three possible outcomes: genuine acquittal, which never occurs; apparent acquittal, where a person is released from the charge but can be rearrested at any moment; and protraction of the proceedings, where the trial is kept permanently at the lowest stage, but never comes to an end.
In Australia, those found ‘unfit to plead’ frequently experience this Kafkaesque situation of protracted proceedings, with their liberty curtailed and their lives monitored for indefinite periods. 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 is to avoid unfair trials.
However, being found unfit to plead may lead to indefinite detention and/or supervision until the accused person is considered able to understand the legal process. For those with cognitive disabilities—conditions that can affect the ability to learn, process, remember or communicate information—it may never be possible to meet the criteria for fitness. They remain in a bureaucratic conundrum where they can’t be released or unsupervised because of concerns about community protection, but they can’t be convicted or acquitted because holding a trial is considered ‘unfair’.
III
In the advisory board meeting, we try to answer Matthew’s concerns. The clients will still have lawyers helping them. This is just something extra we’re trying out and if it works, we’ll be able to present our findings to the people who make the laws.
Matthew is eventually reassured and the meeting continues. However, his concern resonates throughout the course of our research project. He has voiced the frustration that researchers, especially those working in law, humanities and social science disciplines, often feel. We develop recommendations for public policy that we think have a solid evidentiary basis, but what happens then? Do we abandon the people we’ve attempted to help through applied research? Where does research end and advocacy begin?
Our interdisciplinary research team has six chief investigators: Kerry Arabena, Anna Arstein-Kerslake, Piers Gooding and me from the University of Melbourne; Eileen Baldry and Ruth McCausland from the University of New South Wales. We have knowledge of Indigenous health, law, criminology, history, sociology and social work. We are committed to research that is community led, engaged, participatory; but can a two-year project ever make a difference?
IV
Marlon Noble, a 35-year-old Yamatji man, was raised in Carnarvon, Western Australia. Four months after he was born he was hospitalised with meningitis, a condition that affects the membranes covering the brain and spinal cord. He experiences difficulties with literacy and numeracy and following complex instructions.
When Marlon was 19 he was charged with the sexual assault of two young girls. If convicted, he probably would have served two to three years in custody. Instead, for more than ten years, without being convicted, he was kept first in Hakea Prison just south of Perth, then in Greenough Regional Prison in Geraldton. The charges were never tested in court and he remained in prison despite one of the alleged victims reportedly denying Marlon had assaulted her and the
other girl.
In March 2003 Marlon 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.
The finding that Marlon was unfit to plead was based on psychiatric evidence. Two psychiatrists concluded that Marlon was unable to understand the legal proceedings due to an intellectual disability, while another psychiatrist recommended further assessment because Marlon appeared to understand the nature of the charges against him and said he wanted to plead not guilty.
The Mentally Impaired Accused Review Board was responsible for overseeing Marlon’s time in custody. Despite regular reviews of his situation, Marlon was kept in prison. In June 2010 a forensic psychologist assessed Marlon as capable of standing trial, provided he had access to appropriate assistance. Marlon’s lawyer went to the District Court of Western Australia seeking an order that Marlon was now fit to plead. The WA director of public prosecutions decided not to proceed with any further prosecution because there was insufficient evidence to prove the charges and because Marlon had already been imprisoned for longer than any reasonable term of imprisonment should he be convicted of all charges.
The District Court ruled that it didn’t have any jurisdiction to find Marlon fit to plead because Marlon was not a person committed to the court on a charge. In November 2011 the review board recommended to the WA attorney-general that Marlon be conditionally released to supported accommodation. The WA governor adopted this recommendation. On 10 January 2012 Marlon was finally released from prison. Despite never having been convicted of a crime, his release was subject to ten conditions including not entering any licensed premises, not drinking any alcohol and undergoing regular and random testing for illicit substances.
In writing about Marlon Noble’s imprisonment and subsequent monitoring, I am conscious of Alexis Wright’s powerful essay in Meanjin (no. 4, 2016) about how white people tell stories on behalf of Aboriginal people in Australia. Throughout the project, we worked with Jody Barney, a Murri woman from Urangan who is a Deaf Indigenous Community Consultant, as well as with Lenny Clarke from the First Peoples Disability Network Australia, to ensure the unfitness to plead project was culturally sensitive. Nevertheless, I acknowledge I’m writing about Marlon from a position of white privilege and academic advantage. His own words are reported below.
It was through the advocacy of a family friend, Ida Curtois, and several lawyers that Marlon’s lengthy imprisonment came to be questioned. Unfitness to plead laws are now being reformed in Western Australia.
V
The title of Kafka’s novel refers to Josef K’s experience of the incomprehensible bureaucratic manoeuvres rather than to an actual court case. For those found unfit to plead because of cognitive disabilities, once in the system, it is very difficult to escape. Perhaps because of this, unfitness to plead matters arise relatively rarely.
The Victorian Law Reform Commission estimated that cases involving those considered to be unfit to plead or not guilty on the grounds of mental impairment make up less than 1 per cent of the total cases that result in a sentence or supervision order in the higher courts. However, data isn’t kept in relation to summary offences and there’s no national database to make comparisons across states and territories.
Marlon Noble’s case is indicative of a much wider problem. Individuals with cognitive disabilities form a disproportionately large cohort of prisoners. In 2010, Professor Elisabeth Pickelsimer and colleagues at the Medical University of South Carolina calculated that 60 per cent of prisoners in the United States, Britain, Australia and New Zealand suffer from ‘traumatic brain injury’, defined as a brain injury acquired after birth.
The Victorian Department of Justice has estimated that 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. Similarly, the New South Wales Mental Health Commission released a report in 2017 that found that people living with mental illness and/or cognitive disabilities are so overrepresented among the prison population that high rates of disabilities should be assumed to be the norm, rather than the exception.
Report after report indicates that Indigenous people with disabilities face disadvantage in the criminal justice system. Mindy Sotiri and colleagues found in 2012 that in Western Australia, all nine men on indefinite supervision orders because of findings of unfitness to plead were Indigenous, as were 11 of 33 individuals found unfit to plead or ‘unsound of mind’ under the jurisdiction of the Western Australian Mentally Impaired Accused Review Board.
There are also physical disabilities that may affect people’s ability to understand what’s happening around them. Hearing loss is a major issue that can compound disadvantage for people with cognitive disabilities, particularly for Indigenous people. According to a 2011 report by Troy Vanderpoll and Damien Howard, nine out of ten Aboriginal inmates in Northern Territory jails have significant hearing loss.
The scale of these statistics does not reflect an association with cognitive disabilities and criminal activities, but rather a lack of appropriate services and supports to people with cognitive disabilities in the community.
VI
Bonnie* is part of a panel discussion on proposed reforms to unfitness to plead and mental impairment laws in Victoria. It’s a Saturday morning and there are 80 people crammed into a city hotel’s conference room for a seminar organised by the Victorian Branch of the Australian and New Zealand Association of Psychiatry, Psychology and Law.
Bonnie’s fresh face and ponytail make her look far too young to be caught up in a system of indefinite detention and supervision. She was considered fit to plead, but was found not guilty due to mental impairment. The president of the Victorian branch asks her about her experiences staying at Thomas Embling Hospital, a high security forensic mental health facility.
‘This was my first offence,’ Bonnie says. ‘I didn’t know anything about the hospital. You hear bits and pieces, but you don’t understand the full picture.’
‘What would have helped you?’
‘Give people more information. It’s a full-time job being a patient.’
Bonnie is out of the hospital now, on a supervision order. She talks about the challenges of being outside the ‘bubble’ of the hospital.
‘Nothing prepares you for being out and people asking you where you’ve been.’
Tim Marsh, chief counsel at Victoria Legal Aid, makes the point that unfitness to plead and mental impairment laws are intrinsically tied in with service provision.
There are more services available for accused persons with mental health conditions than there are for those with cognitive disabilities, particularly acquired brain injury. As he says, ‘A better Act won’t make more beds appear or decrease service gaps.’
VII
In the penultimate chapter of The Trial, Josef K meets a young priest who turns out to be the prison chaplain. He says, ‘The right understanding of any matter and a misunderstanding of the same matter do not wholly exclude each other.’ One view is that indefinite detention of individuals with cognitive disabilities after findings of unfitness to plead is justified for community protection—after all, they’ve been charged with a crime and are usually assessed by mental health practitioners as likely to harm themselves or others.
A coexisting view is that indefinite detention raises substantial questions concerning human rights.
When Marlon Noble was found unfit to plead, the judge assessing him had to consider ‘the public interest’, which encompassed whether Marlon was considered likely to harm others. The judge emphasised the psychiatric evidence that Marlon had difficulty controlling his impulses, a prior record of criminal convictions and had living arrangements that were best described as ‘chaotic’. He concluded that public safety had to be put first, while noting his ‘deep concern’ that prison was not the appropriate environment for Marlon.
Current unfitness to plead laws, like many others that enable civil detention and supervision, are generally couched in terms of likelihood of harm to self or others. Assessing this generally requires mental health practitioners to estimate the likelihood of harm through techniques that have been criticised on several fronts. Forensic psychiatrists Andrew Carroll, Mark Lyall and Andrew Forrester have pointed out that no method of risk assessment ‘achieves anywhere near 100 per cent predictive power, whether short- or long-term risk is considered’.
Yet evidence of risk is considered necessary for decisions to be made about what should happen to those found unfit to plead. As the prison chaplain in The Trial says, ‘It is not necessary to accept everything as true, one must only accept it as necessary.’
Most Australian laws now allow the prosecution case to be tested through a ‘trial of the facts’ or a ‘special hearing’ once an accused person has been found unfit to plead. The Western Australian Government is exploring such an option in its law reform endeavours. The very notion of a special hearing, however, singles out persons with disabilities and this is now being questioned at an international level.
The United Nations Convention on the Rights of Persons with Disabilities, which Australia has ratified, places obligations on governments to promote and ensure the rights of person with disabilities. It also sets out the steps that should be taken to ensure equality of treatment. It goes into much more detail than previous general human rights conventions concerning what action needs to be taken to prohibit discrimination.
Neither ‘disability’ nor ‘persons with disabilities’ is defined in this convention, but Article 1 states that the latter term includes ‘those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.
In 2016 the United Nations Committee on the Rights of Persons with Disabilities found that several of Marlon Noble’s human rights had been violated while he was in prison without conviction, including his rights to equal recognition before the law, liberty, and freedom from cruel, inhuman or degrading treatment.
The committee concluded that Australia as a party to the Convention had an obligation to recompense Marlon, revoke the ten conditions on his release and take measures to prevent similar violations in the future. In 2017 the Australian Government responded that it ‘respectfully’ disagrees that it has breached Marlon’s rights under the Convention, but noted that the Western Australian Government is reforming its unfitness to plead laws and is committed to giving Marlon the support he needs to live independently in the community.
VIII
In December 2015 a Senate inquiry began into the indefinite detention of people with ‘cognitive and psychiatric impairment’. The inquiry, chaired by WA Greens senator Rachel Siewart, focused on how criminal proceedings could be made accessible to people with cognitive disabilities, reducing the need for declarations of unfitness to plead.
The inquiry considered the issues raised by Marlon Noble’s case and concluded that ‘indefinite detention is unacceptable’. It recommended ‘that state and territory legislation be amended in line with this principle’. It also recommended the implementation of schemes to improve access to justice for people with disabilities contained in earlier reports by the Australian Law Reform Commission and the Productivity Commission.
The Victorian Law Reform Commission, the New South Wales Law Reform Commission, the Australian Law Reform Commission and the Productivity Commission have all recommended the introduction of a formal scheme of support for accused persons at risk of being found unfit to plead.
The Victorian Law Reform Commission noted that ‘The importance of support measures in the unfitness to stand trial process was one of the strongest themes to come out of the Commission’s review.’ According to the Commission, support measures can ‘optimis[e] an accused’s fitness where they might otherwise be unfit’.
Several support schemes have been trialled in Canada and Britain, such as allowing communication assistants or ‘intermediaries’ to help those in court. Most Australian courts have formal or informal schemes for the provision of support persons whose role is generally limited to providing information about the legal process, rather than facilitating communication. The courts have also indicated a willingness to develop measures to assist persons with disabilities in the court system such as providing additional breaks, ensuring language is accessible and allowing for informal support persons to be included in the trial process. However, these measures have been ad hoc and uncoordinated at the national level.
As part of our fitness to plead research project, we developed a program in Victoria, New South Wales and the Northern Territory where four disability support workers were embedded in the North Australian Aboriginal Justice Agency, the Victorian Aboriginal Legal Service and the New South Wales Intellectual Disability Rights Service (one support person worked in Redfern and the other in Wollongong).
The support workers, who had backgrounds in law, disability education and brain injury support services, underwent two days of specialised training. Half of the trainers were people with disabilities and the focus was on how to assist people to understand and participate in their own legal case. Those who took part reported several benefits from the program. Support workers not only helped those with cognitive disabilities negotiate the legal process, they also helped lawyers develop a better understanding of disability issues.
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 in community legal services could reduce the need for people to be found unfit to plead. Economically, this makes sense. Our colleagues at the University of New South Wales provided economic modelling based on the case of David*, who was charged with the indecent assault of a fellow resident in a supported residential facility. Before the support worker became involved, two options were raised: that David have a hearing to determine whether he was fit to plead, or he enter a guilty plea to get a finite sentence.
After the support worker became involved, services were put in place, David moved accommodation and the charges were withdrawn. All up, the costs for the support worker, defence counsel and an appearance in the Magistrates’ Court came to approximately $5000. If an unfitness to plead hearing were to have been held and David were to have been given a supervision order, the costs were estimated as reaching $88,000. If a custodial order were made, costs were estimated at $393,000.
IX
Marlon Noble’s fingers drum on the table top. We are in a small room at the Victorian Law Institute, being interviewed over a mobile phone by a radio presenter in Sydney. Marlon’s supporter, Ida Curtois, puts her hand under Marlon’s fingers to stop the noise. He laughs, she smiles and I try to concentrate on answering the interviewer’s questions.
The University of Melbourne has funded Marlon, Ida and Marlon’s lawyer, Kelly Beard, to attend a workshop and the launch of the final report of our research. It is the fourth interview Marlon has given. He must be tired from the flight over the day before, but when the interviewer asks him the same questions he must have heard repeatedly, he answers immediately with just the occasional eye-roll at Ida.
‘You were in prison a long time.’
‘I never done that stuff. Seen people in and out of prison. In and out. I wanted to finish.’
‘How was getting out of prison after so long?’
‘Bit hard.’
Marlon is dressed in a grey suit, blue shirt and striped tie. He is so pleasant and agreeable that it is difficult to imagine the difficulties of his past.
After the interview we return to the workshop we’re holding for key people working in the criminal justice field. There are representatives from community legal centres, the Office of the Public Guardian, government departments, as well as disability advocates and mental health practitioners.
Marlon, Ida and Kelly take part in a panel discussion. My colleague Anna Arstein-Kerslake asks them what they would like changed. Marlon talks about how he had no family, no-one to help him. Ida explains that when Marlon was charged with the offences, he was taken to prison in Perth, 900 kilometres from his home. He was then transferred to a prison near Geraldton, 480 kilometres away.
Ida first met Marlon when he was nine, when she was working for disability services and promised his mother, who was murdered a few years after Marlon’s imprisonment, to look after him. Ida says that the key issue for her is the way that unfitness to plead assessments are conducted. She can’t understand why psychiatrists, rather than psychologists, provide the assessments to the court. She points out that one of the psychiatrists noted Marlon mumbled and wouldn’t look them in the eye, showing a lack of cultural understanding.
For Marlon’s current lawyer, Kelly Beard, changing the conditions of his release is a continuing battle. Marlon now has a partner and a one-year-old daughter. One condition was that Marlon not have ‘any contact with any female children under the age of 16 years unless supervised by an adult previously approved by the supervising officer’. She had to fight to get that lifted for fear that Marlon would not be able to look after his daughter.
X
The unfitness to plead project is drawing to a close, but Matthew’s question in the advisory board meeting echoes. ‘What happens then?’ The good news is that two of the four support workers are continuing in their roles in New South Wales, funding is being sought to continue the positions in the Northern Territory and Victoria and the lawyers involved have reported that what was learnt through the program has informed their practice.
The unfitness to plead project has emphasised the power of ensuring people with lived experience lead research directions and advocacy. There have been enough commission and committee inquiries. Only collaboration between persons with disabilities, advocates and researchers can bring about change.
Towards the end of Kafka’s The Trial there is the following exchange:
‘But I’m not guilty,’ said K. ‘There’s been a mistake. How is it even possible for someone to be guilty? We’re all human beings here, one like the other.’ ‘That is true,’ said the priest, ‘but that is how the guilty speak.’
Even now, 15 years after the charges were made, Marlon Noble is unable to enter a plea of not guilty and to test the evidence against him. While still under conditional release, he is telling his story wherever he can in the hope of changing law and practice.
After our report is officially launched by the former chief justice of the Federal Court, Michael Black AC QC, we all thank Marlon for coming all the way to Melbourne and wish him a safe trip back to Carnarvon.
‘Going home,’ he says. ‘See my daughter.’ He smiles and gives us the thumbs up. •
Bernadette McSherry is foundation director of the Melbourne Social Equity Institute and an adjunct professor of law at the University of Melbourne and Monash University.
