Case of Indigenous man's indefinite jailing without trial sparks reform push

An Indigenous man with mental impairment has spent 10 years in jail in Western Australia without trial after being imprisoned as a teenager, in what disability advocates have labelled an “extraordinary” violation of human rights.

The Western Australian attorney general, Michael Mischin, is being urged to intervene and release the man, who is known only as “Jason” for legal reasons, and is facing indefinite imprisonment otherwise. Mischin said it was “mischievous” to suggest the state was throwing people with mental impairments in prison.

Jason was 14 when he was involved in a car accident in which his 12-year-old cousin was killed. He was initially charged with unlawful killing but was found unfit to enter a plea and stand trial. He was found to have mental impairment from sniffing solvents.

He has been detained ever since under a custody order imposed by the Mentally Impaired Accused Review Board.

If Jason had been convicted of unlawful killing, he would be likely to have finished his sentence by now.

Damian Griffis from the First Peoples Disability Network Australia (FPDN), said the issue of indefinitely jailing Indigenous people with mental impairment was not confined to WA.

“It’s happening right across the country. Jason is not just an isolated incident, we are seeing this happen more and more, Aboriginal people with disabilities detained in jail,” he told Guardian Australia. “It’s an extraordinary violation of human rights.”

Griffis said it would take time to change the way Indigenous people with disabilities engaged with services but it was a fundamental part of reducing the number jailed indefinitely.

“We need Aboriginal people to be engaged with disability service,” he said. “Aboriginal families lack confidence to be engaged. There is still a worry from these families that they will end up having their children taken off them.

“Sadly that’s how they end up on this trajectory where an individual is jailed indefinitely and it’s a failure of the disability services to engage.”

The CEO of Developmental Disability WA, Taryn Harvey, has written to Mischin asking for Jason to be released and calling for clearer safeguards for prisoners with mental impairments.

“I think Jason has a very strong case for release … he’s not a risk to the safety of the community. He’s accessing support. The protection of Jason’s safety is no longer a suitable reason to continue to imprison him,” she said.

Mischin has defended the legislation and offered no signal he is open to releasing Jason.

“The legislation is designed to work. There may be tweaks that are necessary but at the moment the idea that we are simply throwing people who are mentally impaired into prison without any regard for their interests is simply wrong, and it is mischievous, and I do feel strongly about that,” he told ABC’s AM program.

When asked if some people simply could not be let into the community, he responded: “Some people can’t, no. What do you think ought to happen to someone who is inclined not to control their actions, can’t be reasoned with, isn’t criminally responsible and hence can’t be deterred, is a clear and present danger to themselves or to the community, how should they be dealt with?”

Disability advocates point to a legal quagmire blocking Jason’s path out of prison. He is entitled to a leave of absence under his court order to transition back into the community, but Harvey says the jail he is being held in does not allow leave of absence. She says he is unable to transfer to another jail where a leave of absence could be granted because prison charges have been laid against him over alleged drugs offences.

“It would be a concern if someone facing indefinite imprisonment based on an impaired capacity to understand the nature of proceedings did not have representation to support him in any prison proceedings,” Harvey said.

Developmental Disability WA estimates there are about 30 people with mental impairment or disabilities being held indefinitely in the state’s prisons. Jason’s case echoes that of Roseanne Fulton, who has foetal alcohol syndrome and was held for 18 months without charge over driving offences, and released earlier this year.

The most notorious case is that of Marlon Noble, who has a mental impairment and was jailed for more than a decade over sex crimes he was never convicted of.

The WA government has previously committed to introducing safeguards in legislation to protect prisoners with mental impairment and is reviewing the legislation under which Jason is being held.