Updated Tue Apr 19, 2011 5:41am AEST
Marlon Noble and his campaigner Ida Curtois. (ABC News: Karen Barlow)
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Imprisoned Western Australian man Marlon Noble has spoken out about the 10 years of his life he has lost to a crime he has not been convicted of.
After being deemed unfit to stand trial on sexual assault charges, the 29-year-old mentally impaired man has spent more than a third of his life in a WA jail on an "unlimited" custody order.
Marlon Noble says he has lost himself in Geraldton's Greenough Prison.
"I just crumble in myself, crumble, just like bricks off a walls," he said.
"Crumbs all over me. I try and push it off me. [The bricks] have got more strength than me."
For Noble and 29 other accused people in Western Australia, the only current options available to authorities are prison or release.
Authorities have kept him in jail over community safety concerns even though the case against him has not been tested.
Noble has friends in jail, but he wants to be released. He has a job and 24-hour support lined up for him when he is outside prison.
"I don't like it in there it is hurting me. [It is] too much in there for me. I wanna go to my family," he said.
Noble's mental impairment is due to a bout of meningitis contracted as a child.
Retired social worker Ida Curtois, who has known Noble since he was nine, says he is easily led.
"He has an amazing personality. He is really funny. He will do anything for anyone.. he only sees good in people," she said.
"Part of him can get into a bit of strife because he is so good and he will do anything for anyone and therefore due to his intellectual disability he can be coerced in to doing something wrong.
"But over the years he has really learnt and he can define what is right and wrong. He know knows when he is being manipulated. He now has lots of strategies on how to stop that manipulation."
In 2001, Noble was accused of sexually abusing two girls in Carnarvon.
Deemed unfit to stand trial in 2003, but also weighing up community safety, the court was faced with a choice between making a custody order or making a release order.
His barrister Matthew Holgate says the hearing was not based on hearing any evidence from the people involved.
"It was conducted on the basis on the court reviewing the papers that the police had prepared and reviewing a number of psychiatric reports and some community justice service reports. As a result of that a custody order was made," he said.
Noble is not an isolated case - there are currently 29 other people in West Australian jails who have never been found innocent or guilty.
Of those in prison, 13 - including Noble - are unfit to stand trial and 17 are in jail despite being found not guilty due to an unsound mind.
If a custody order is made in Western Australia, it is for an unlimited time.
Ms Curtois says Noble has been in prison for more than a third of his life.
"If he has been tried and found guilty he would never ever been sentenced to the length of time," she said.
Mr Holgate says Noble's imprisonment is open ended.
"Most people I've spoken to and the consensus is that if he'd been found guilty or pleaded guilty to what he had been accused of, he would have been sentenced to something of the order of four to five years in prison with parole," he said.
"That would have meant serving two years less than that in prison."
Setting up to fail
For West Australian courts issuing custody orders, the only choice is to release the mentally impaired accused person or send them to prison.
Judges have called out for an option of a "declared place" to house mentally impaired accused people while also protecting them and the community.
Principal solicitor at the Mental Health Law Centre in Perth, Sandra Boulter, says it criminalises their illness.
"We set them up to fail in the first place and when they fail and we make a custody order then they're locked away one would say as cheaply as possible, because as I understand it, a prison bed is $100,000 a year to keep and a secure hospital bed is $300,000 to keep," she said.
Western Australian shadow attorney-general John Quigley says people with the mental impairment should not be put in with general prison population.
"We have got a hopeless situation in WA, an absolutely hopeless situation. The justice situation in WA is falling apart," he said.
An accused person subject to the custody order comes under the control of West Australia's Mentally Impaired Accused Review Board (MIARB).
The board's chair, Justice Narelle Johnson, cannot speak about Noble's case, but she has been actively lobbying the State Government for the option of a declared place.
She says legislation does not have to be changed to make it happen.
"It is extremely frustrating because membership of the board exposes you to very, very sad cases," she said.
"Although these people may have done some very dangerous things, some of the people are people who are only in those situation because of things beyond their control.
"That is their intellectually impairment or their mental illness and it is something that all members of the board are very concerned about."
Justice Johnson says a declared place just needs political will.
"We think that these people should be protected and the community be protected but in the nicest way possible, so these people have a good quality of life," she said.
"I am not suggesting that they are not well cared for in prison but they are vulnerable people and it is not an optimum environment."
She says the MIARB is open to scrutiny.
"I think that if you went to a community member and said to them these are the circumstances, I am sure that they would be concerned," she said.
"But I think that it is just something that people just don't think about. The other thing too is that the community are entitled to be protected and they have an interest in ensuring that that board does its job appropriately and applies the criteria, which includes the safety of the community.
"So I don't think there is a huge community interest in the board. I have certainly not seen any signs of it, but it does not follow that the community don't care but they are entitled about their own welfare as well."
The West Australian Government, which also will not speak about Noble's case, is now viewing a declared place favourably.
Mental Health Minister Helen Morton says she will make custody orders a priority.
"I'm not finding it embarrassing. I'm finding it something I'm anxious to do some work on," she said.
"I've certainly had some discussions with the Attorney-General and the Minister for Corrective Services, the Director General for Disability Services has worked quite solidly now. I've asked him to pull together some option papers that we can consider and take through to Government for some consideration."
Supporters also want the legislation covering mentally impaired accused people amended so custody orders are not unlimited.
Labor wants Noble released now. Mr Quigley says Attorney-General Christian Porter should sign the release form today.
"The justice system in Western Australia is a disgrace to the good name in Western Australia and it brings to Australia international embarrassment and we need help," he said.
Mental Health Minister Helen Morton says she hopes to have an announcement soon.
"I understand there are around 11 people in prison at the moment who are intellectually disabled and are in similar circumstances and I'm a relatively new minister," she said.
"It's been brought to my attention about two months ago; I believe I'm taking the steps forwards that are necessary at the moment."
Noble has never had a hearing in court of the allegations, which means the case against him has never been tested. Now the alleged victims are coming forward to clear his name.
The alleged victims' mother spoke to ABC Radio yesterday.
"The girls are saying nothing ever happened, and that's all I thought when I heard he went to jail - that these fellas are going to be witnesses - and then I kind of heard later a bit later down the track about that nothing ever happened," she said.
The mother says she is still waiting for the police to talk to her about the allegations.
Noble just wants to be released.
"I'm bouncing off the walls - four corners, that corner, this corner and this square that corner and that corner and that corner and that's corner and going in straight in the middle ... I bounce that corner .. bang. Bounce against that," he said.
The West Australian Director of Public Prosecutions is reviewing Noble's case.
If it does lead to his release, his supporters say they will not stop until all accused people on custody orders have other options.