CRPD/C/16/D/7/2012 his legal capacity, to effectively enter a plea of not guilty and to have the evidence against him tested, in violation of articles 12 (3) and 13 (1) of the Convention. 3.4 He further submits that he has been deprived of his liberty pursuant to the Mentally Impaired Defendants Act, while in view of the state of the evidence in his case, it is unlikely that he would have been convicted for the offences with which he was charged. Had he been convicted, he would probably have been released from prison within 3 years. Instead, he was imprisoned together with convicted criminals for more than 10 years, and now remains subject to very restrictive civil detention in the community. The author concludes that he has been deprived of his liberty on the basis of his disability, and that this situation amounts to a violation of article 14 (1) (b) of the Convention. 3.5 The author submits that he remains deprived of his liberty, but has not been convicted for any offence, in violation of article 14 (2) of the Convention. 3.6 He alleges that while he was in prison, he was at significant risk of harm from other prisoners, and that he now remains subjected to conditions that impose unjustifiable restrictions on his liberty, in violation of his rights under articles 14 (2) and 15 of the Convention. State party’s observations on admissibility and the merits 4.1 On 4 April 2014, the State party submitted its observations on admissibility and the merits of the communication. It considers that under article 2 (f) of the Optional Protocol, the temporal mandate of the Committee is applicable only in respect of events that occurred on or after 19 September 2009, when the Optional Protocol entered into force for Australia.10 It therefore considers that events that occurred prior to 19 September 2009 are referred to by way of background information only. 4.2 The State party accepts the facts as stated by the author. Nonetheless, it reports that copies of the transcripts of the 2003 proceedings have been retained by the Western Australian Department of Corrective Services.11 4.3 The State party reports that the author was declared unfit to stand trial on 7 March 2003 by the District Court of Western Australia, pursuant to section 9 of the Mentally Impaired Defendants Act. On 11 March 2003, the Court decided to make a custody order under section 19 of the Act, resulting in the transfer of the author to prison, under the supervision of the Review Board. No formal written reasons for those decisions were published, but the transcripts reveal that neither decision was made lightly. The judge stated that the author met “practically all of the criteria” of section 9 of the Mentally Impaired Defendants Act, namely that he is unable to understand: (a) the nature of the charge; (b) the requirement to plead to the charge or the effect of the plea; (c) the purpose of a trial; or (d) the right to challenge jurors. He is also unable to follow the course of the trial and to understand the substantial effect of evidence presented by the prosecution in the trial, or to properly defend the charge. 4.4 Having reached that conclusion, the Court had to quash the indictment and determine whether a custody order should be made. The District Court heard detailed arguments from the Crown and from the author’s legal representative. The judge noted certain discrepancies in accounts from the complainants and other witnesses. Nonetheless, he concluded that such inconsistencies are not unusual in child sexual abuse cases, and that 10 11 The State party refers to the Committee’s jurisprudence in communication No. 6/2011, McAlpine v. United Kingdom of Great Britain and Northern Ireland, Views adopted on 28 September 2012, para. 6.4. The State party provided the Committee and the author’s counsel with a copy of the documents. 5