A NOBLE PROBLEM: Prisoner still not free

BY AMY MCQUIREMARCH 20, 2012

 Originally published in Tracker Magazine.

An ABC TV screencap of Aboriginal man Marlon Noble. Mr Noble was jailed for ten years without trial after he was deemed a risk to community safety under the Criminal Law (Mentally Impaired Accused) Act.

WESTERN AUSTRALIA:Aboriginal man Marlon Noble may be free from jail, but he is still being treated like a criminal, writes AMY MCQUIRE*.

He may technically be free, but Marlon Noble remains in legal limbo. At 29 years of age, the Aboriginal man has served over 10 years in prison for a crime he has never stood trial for.

He was released from jail last year, but is still subject to conditions termed “draconian” by supporters.

“The whole situation is a disgrace,” Greens MLA Alison Xamon told Tracker.

“West Australian laws are way behind the ball in relation to this. He didn’t even get a chance to have his day in court, he’s no longer facing charges, and he’s still being treated as a criminal.”

So how did an Aboriginal teenager end up a prisoner for over a decade, without ever being convicted of a crime?

In 2001, the then 19-year-old Marlon Noble was charged over allegations he had sexually assaulted two minors.

Mr Noble has an intellectual disability, which was identified early on in court assessments. From 2002 he was held in custody while these assessments were being made, and the next year was deemed unfit to stand trial because of his mental impairment.

There was no finding of guilt over the allegations of sexual assault. Mr Noble was subsequently issued an indefinite custody order under the Criminal Law (Mentally Impaired Accused) Act. The act allows a person to be held in prison without criminal conviction if they are deemed a risk to themselves or community.

Mr Noble’s case was then referred to the Mentally Impaired Accused Review Board, who deemed him a risk to community safety. He was put behind bars at the Greenough Regional Prison in Geraldton, about 400 km north of Perth, which the state corrections department acknowledges has a “high percentage of Aboriginal prisoners”.

That’s where Mr Noble remained until 2008, when he was allowed day release without overnight visits. In 2010, his day release was increased to two days a week.

That privilege was taken off him when he was forced to admit he took drugs, in contravention of his conditions.

An independent inquiry by Robert Cock QC found that he had actually taken a cough tablet – Sudafed – and had been coerced into admitting he had used drugs.

For mistakenly taking a cough tablet, Mr Noble ended up back behind bars. It was only this year, after media pressure, that he was released, although on conditions that his advocates claim unfairly target him as an offender.

Ida Curtois is his carer, supporter, and his adopted grandmother.

She has known Marlon since he was a child, but only found out about his situation in 2004, when she met him again while he attended his mother’s funeral (both of Marlon’s parents were murdered in separate incidents).

Ms Curtois believes Marlon should never have been sent to prison.

“He should have been set up like he is now, in his own home, with support people around him, along with counseling.”

For years she advocated on his behalf, before finally turning to the media for help.

“I’ve been working for so hard and for so long and nothing was happening,” Ms Curtois told Tracker. “It was only because it was the media got involved… that it kept going. If not, he’d still be (in jail).

“No one wants to know. No one really cares and a lot of people don’t even realise this happens. I’ve spoken to people who say that ‘you can’t do that,’ ‘that can’t be allowed’, but yes it is. And that’s why a lot of noise has to be made, so governments have to do something.”

There are now reasons to believe he may have been innocent. Earlier this year, Ms Curtois accompanied the West Australian newspaper to Carnarvon, where Mr Noble was born and where the two girls he is alleged to have sexually assaulted live.

“(The journalist) spoke to the girls, and she spoke to the mother, and the mother was actually quite flabbergasted because she’d always thought the girls were witnesses to something else that happened,” Ms Curtois said. “She never realised that the girls would have complained because she was never involved in the police interviews.”

The West Australian newspaper reported that the older sister, now 24, could not remember the incident. Her younger sister, who was nine at the time and also has an intellectual disability, could not recall Mr Noble, or the police interview where she made the allegations.

Her original allegations claim that Mr Noble sexually penetrated her, the newspaper reported. But her mother told the West Australian she didn’t believe Mr Noble had raped her daughter, labeling him a big “softie”.

The Director of Public Prosecutions (DPP) also last year wrote to the Mental Health Accused Review Board and Mr Noble’s lawyer to inform them he was dropping the charges.

“The DPP dropped the charges after actually going back and speaking to the girls,” Ms Xamon said.

“The mother has come out and said ‘we don’t know what they’re talking about’. There is no one out there claiming that they’ve been offended against.”

Mr Noble was released from Greenough in November last year, but the board has still placed strict conditions on him.

They include that he be subject to random alcohol and drug testing, and the provision that he must stay in the same place every night. The board also recommended he be placed on the child sex offenders registry, which has outraged his supporters.

“The problem is he may inadvertently offend, he might accidently step onto a place which serves alcohol, and he could be back in jail,” Ms Xamon says.

The other concern is he is still being treated like a criminal, even though his charges were dropped.

“The most important thing is that this custody order is lifted entirely so Marlon could be free,” Ms Xamon says.

“He’s never had the opportunity to have his name cleared and he’s never been found guilty. He’s been treated like a criminal.”

Ms Curtois does not believe Mr Noble is a threat to community safety – a view held by those who know him.

“There’s absolutely nothing to justify (he’s a threat),” Ms Curtois says. “He’s been on day leave for about four years and he’s never done anything wrong in that time. All the people around him, that have children, have trusted him.

“We’re not fools. One of his mates, her husband is a police man and she’s got a six-year-old boy. So you can’t tell me a policeman isn’t astute enough to know whether (he’s a threat).”

Mr Noble’s case comes up for review in April, but there is no guarantee the board will relax his conditions, Ms Xamon says.

“In actual fact, they could just turn around and say we want you back in prison again… That wouldn’t be able to be appealed,” she says.

“That’s the sort of situation he’s currently in. Even if he doesn’t offend, his life is always going to be in limbo until the custody order is lifted. This is what we do with people with disabilities. It’s just an absolute disgrace and it urgently needs reform.”

According to Ms Xamon, the board does not have to give justification of its ruling. And while Mr Noble is not the only one in the same situation, he’s arguably one of the fortunate ones. His strength has been in the advocacy of people like Ms Curtois.

“Because they do not fit the legal definition of a prisoner, special custodial services have no authority to advocate,” Ms Xamon says.

“They are not in a mental health facility either. So they are in this terrible situation where they have absolutely no government or independent body to come in and advocate for them and check they are ok.

“The only reason Marlon managed to get out is because he had an advocate (Ms Curtois)… there are not a lot of other people with custody orders who have that. They are sitting there with no one to advocate for them.”

The lack of a ‘declared places’ in Western Australia, which would place people with intellectual disabilities somewhere other than prison, is another real concern, Ms Xamon says.

The Mental Health Law Centre’s Sandra Boulter recently told the ABC that when the act passed in 1996, people with custody orders were supposed to be placed in declared places.

“What I imagine the parliament meant was that a declared place would be a secure hospital where people would be treated as patients rather than as prisoners, and where they would be securely cared for,” Ms Boulter said.

“But we’ve never built a declared place. We’ve always needed declared places and in the country as well as in the city.”

The WA Government has since announced plans to build one. WA Attorney General Christian Porter told Tracker in a statement that “the declared places initiatives are being considered as part of the 2012-13 budget process and are progressing well”.

“This is a significant deficiency in the mental health system which has existed for more than 15 years,” Mr Porter told Tracker.

“The Liberal-National government is the first government which has committed to addressing this issue.”

Meanwhile, Mr Noble remains in legal limbo and under conditions for a crime he hasn’t been to court over. Ms Curtois wants to take the matter to parliamentary inquiry in an attempt to clear his name.

It is unlikely he will receive any compensation, because he has never been convicted and is no longer charged with any crime. Mr Porter did not commit to any ex-gratia payment for Mr Noble, but said any application would be “considered on its merits”.

“Ex-gratia payments are extraordinary events which are only considered in exceptional circumstances where a person has suffered misfortune or due form of negligence or wrongdoing on the part of the state,” Mr Porter said.

“It appears that Mr Noble was lawfully dealt with throughout his involvement in the criminal justice system, however because it was clear Mr Noble could be appropriate dealt with in the community, the state government made funds available to ensure this could occur.”

For now, it looks like Mr Noble will only get justice through the media and his advocates – like Ms Curtois and Ms Xamon. It’s a sad situation, Ms Xamon says.

“It shouldn’t be up to journalists to give justice to these people, and it shouldn’t be up to politicians to get justice. We shouldn’t be the ones doing this.

“The system is there to give justice but Marlon Noble has no avenues open to him.

“That’s why we need reform urgently. We have to be able to rely on our systems of law.”

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