If you are an adult accused of sexually abusing a child, a person under the age of 18, and the person is still a child at the time bail is being considered then recent amendments to the Bail Act 1982 compel bail decision makers to consider the safety and well-being of the child before bail is granted.
Any safety concerns can be expressed by the child, family members, police or prosecutor. A prosecutor must then inform the court of those concerns when considering whether to grant bail.
Safety concerns of the court
Courts have always given priority to the safety and welfare of children and family members. Independent evidence of the behaviour both positive and negative of the accused towards the child and family feature largely in bail decisions. Further verifiable facts include the respective ages of the child and accused, whether the two are in a family relationship, the preservation of the child’s family and community arrangements and the physical and
emotional well-being of the child.
The bail decision maker has powers to delay bail for up to 30 days while inquiries are made to determine what bail conditions could be imposed to protect the child from asserted traumas.
Presumption of innocence in criminal proceedings
A cornerstone of our common law system is the presumption of innocence afforded accused in criminal proceedings. The presumption of innocence imposes on the prosecution the burden of proving the charge unless or until the charge has been proved beyond reasonable doubt. A denial of bail could appear to side-step this fundamental principle of common law.
There is the potential for justice to not be served. It is not hard to imagine that in allegations of child sexual abuse, the child and family may invariably have an axe to grind and therefore, given to raise spurious concerns to oppose bail.