CRPD/C/16/D/7/2012 2.8 The author submits that his communication relates to facts that continued after the entry into force of the Optional Protocol for the State party. In particular, he remained subject to civil detention; he was incarcerated in Greenough Regional Prison from 19 September 2009 to 10 January 2012; and since 10 January 2012, he has been subject to civil detention in the community. He is also still deprived of the opportunity to enter a plea of not guilty and to test the evidence that was presented against him, and is therefore still presumed guilty. 2.9 The author contends that he has exhausted all available and effective domestic remedies. In March 2003, the District Court of Western Australia determined that he was unfit to plead to the charges against him. In August 2010, the author applied to the Court to enter a plea of not guilty, but the Court determined that it did not have jurisdiction to deal with that application. In September 2010, the Western Australian Director of Public Prosecutions determined that he would not instigate further prosecution against the author, who can therefore not bring his case before any other court. The Review Board periodically conducted reviews of the author’s case and could have recommended that the Governor of Western Australia release him unconditionally. It did not do so, despite the evidence that the author has been subjected to a gross miscarriage of justice. The author contends that the High Court has determined that the Australian legislation providing for preventive detention under the Mentally Impaired Defendants Act is constitutionally valid. 7 A claim that the Act is constitutionally invalid therefore has no chance of success before national jurisdictions. The complaint 3.1 The author submits that the State party violated his rights under articles 5 (1), 12, 13, 14 (1) (b), 14 (2) and 15 of the Convention. 3.2 The author submits that the Mentally Impaired Defendants Act constitutes a discriminatory status-based law in violation of article 5 (1) of the Convention. He considers that once a person is found unfit to plead, and if the presiding judicial officer is satisfied that the accused person will not become mentally fit to stand trial within six months of that finding, the judge must make an order either quashing the indictment or dismissing the charge without deciding the defendant’s guilt. The judge then has the possibility to release the defendant or, as in the author’s case, to make a custody order in his or her respect. The decision to make a custody order will be taken having regard to the following factors: (a) the strength of the evidence against the defendant; (b) the nature of the alleged offence and the alleged circumstances of its commission; (c) the defendant’s character, antecedents, age, health and mental condition; and (d) the public interest.8 No limits exist as to the duration of the custody order,9 and once declared unfit to plead, the defendant has no possibility of exercising his or her legal capacity before the courts. He or she is therefore prevented from pleading not guilty and from testing the evidence against him or her. Persons who do not have cognitive impairments are protected from such treatment. 3.3 The author submits that he has continued to be dealt with as “unfit to plead”, in violation of his right to enjoy legal capacity on an equal basis with others. He also submits that he continues to be deprived of the reasonable accommodation he requires to exercise 7 8 9 4 approved by the supervising officer; (g) any overnight stays away from the primary residence must be pre-approved by the Mentally Impaired Defendants Review Board; (h) not to change address without the prior approval of the Mentally Impaired Defendants Review Board; (i) to submit to breath testing as requested by the police; and (j) not to enter licensed premises. The author refers to Fardon v. Attorney General (Queensland) (2004) 210 ALR 50. See Criminal Law (Mentally Impaired Defendants) Act 1996 (Western Australia), sect. 19 (5). Ibid., sect. 19.