Damning difference – the start of the slippery slope

A few months back I penned an article about the plight of Marlon Noble, an Indigenous intellectually disabled man consigned to the correctional justice system for a crime of dubious veracity. One commenter has recently left a reply arguing that Mr Noble’s plight is more related to that of his handicap, than one of colour. I disagree, although it is certainly part of the issue and one that challenges more healthcare systems than those simply in Australia. The issue is very much one of human rights, as not only is Mr Noble under the care of the wrong department, but he has been held for much longer than would have been the case had he been tried and judged for the crime. Other people with psychological impairments and disabilities are not subjected to this sort of unfair treatment; in fact, their sentences are often ameliorated when such facts are proven and taken into account by the presiding judge, even if they are found unfit to stand trial.

The proportion of intellectually disabled Indigenous Australians held within the correctional system in Western Australia is disproportionate; it is also notable that the incarceration of Indigenous women is noted as zero in both 2008 and 2010. Western Australia has the highest rate of indigenous incarceration in the country.

The supposed victims of Mr Noble’s original crime have indicated that they do not recall the incident. However, the most damning fact in the handling of the case of Mr Noble is that evidence was withheld that would have proved his innocence for an offence he was alleged to have committed whilst on day release. The consequence was withdrawal of Mr Noble’s privileges and incarceration in the maximum security unit.  This is where I get annoyed with the manner in which police manage alleged criminals. I have taken a swipe are another commenter named ‘Sam’ in the past who has identified as a former police officer, for overstepping his role as a bastion of unbiased law enforcement and investigation. The case of Mr Noble is no different. The police handling the case should have presented the evidence and left the determination of culpability and appropriate outcome to a magistrate. In withholding evidence they not only failed to treat this man with the equality with which the rule of law supposedly endows each person who lives within or visits Australia’s shores, but acted as judge and jury, a role well beyond the scope of their professional role.

It would be easy to write this off as simply a failure of the system, to blame the incapacity of our publicly funded social welfare services and a lack of understanding by the constabulary. But take a look at Bakchos’ statistics about the racism perpetuated against Indigenous Australians by law enforcement, specifically police, within Australia. All of the Indigenous people he has taken statements from, a project which he continues to this day, have been refused fair treatment at the hands of the police or have been subjected to direct attacks by police themselves. Bakchos himself has been assaulted by individuals presenting Australian Federal Police identification, individuals who also threatened a young relative of Bakchos at the same time. In fact, the same child has again been threatened this weekend with reference made to the same issue, namely the stolen money from the ACT Home Loan Portfolio, although this time the culprit did not identify his allegiance.

Then there’s the former Commissioner for ACT Revenue, a man still denied justice by the AFP a decade on from the debacle that has left his family disadvantaged to a most crushing extreme. Manipulation of relatives is not a singular tactic for the AFP, for in the case of the former Commissioner, the AFP are known to have also threatened his former wife. This was known to happen on two separate occasions. The first was simply the warning; in the second those culprits indicated that if the former Commissioner did not cease his pursuit of justice with the AFP, that they would ‘find’ some form of crime with which to charge her and ruin her life. Is it any wonder that “fucking boong cunt(s)” feel that the law enforcement agencies have not only discriminated against them, but are deliberately targeting them and their families?

Multiple cases of Aboriginal deaths in custody, some of which are still awaiting coronial investigation, also leave us to worry about the law enforcement system in this country. I personally know of the death of one indigenous man who died in custody within 8 hours of an alleged assault by several police that has yet to be presented to the coroner, yet the death of Constable Bill Crews, who died in tragic circumstances in a police operation some nine months later is already before the coroner. The sudden death of any person, white or black, is a tragedy, but why is the death of a man almost two years ago who was held by the law enforcement system that is responsible for the care of literally thousands of inmates shuttled to the back of queue? Why has his case, with the possibility of disciplinary action against both those who made the arrest as well as those into whose custody he was transferred, languished in the depths of the coroner’s system for such an extended period of time? Because the man who died was Indigenous and those who failed in their duty of care are employees of the law enforcement system.

Do I hear you say that sounds a lot like Mr Ward? He died in the back of a paddy van in which the air conditioning was known to be faulty and in fact was not operating on the day he was transferred between facilities. The intercom was not operating and his prone body on the floor of the searing hot metal cabin was ignored, despite Mr Ward not responding when water was thrown over him through the partially opened van door during the trip. Such a death in Australia is completely incomprehensible to me. It should never have happened.

Yet another case of discrimination is that of Mr Phillips, assaulted by a seventeen year-old youth in daylight. The assault was captured on video and posted to Youtube. Later that day Mr Phillips was arrested and left to die in a police cell. A man who has lost several toes and an arm, arrested for disorderly conduct, who was denied his right to see a doctor as recommended in the review into deaths in custody. Mr Phillips had been arrested for breach of non-existent bail conditions a few months earlier. His lawyer indicated that it was an example of how Indigenous Australians are over policed. Others would simply say they are victimized.

We could go on, but the original subject of this post, Mr Noble remains detained by the correctional justice system. He is permitted release for two 48 hour periods each week, but between those times he returns to the correctional system. His case was slated for review by the Mentally Impaired Accused Review Board in 2003. Why is he still incarcerated even after a finding that critical evidence was withheld by police? Mr Noble is truly doubly damned by virtue of his heritage and his intellectual limitations. He has been consigned by an accusation for which he will never be able to mount a defence and therefore not completely expunge from his reputation.