BAIL AMENDMENT (SERIOUS SEXUAL OFFENCES) BILL 2006 Second Reading Speech

Northern Territory Second Reading Speeches

BAIL AMENDMENT (SERIOUS SEXUAL OFFENCES) BILL 2006

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Bill presented and read a first time.

Mrs BRAHAM (Braitling): Madam Speaker, I move that the bill be now read a second time.

The aim of the bill is to add serious sexual offences to the list of offences where bail is not presumed. The bill defines serious sexual offences as eight particular offences under the Criminal Code. These eight offences already fall within the category of ‘serious violence offence’ for which section 7A of the Bail Act does not presume bail, but only if the accused was on bail for a separate serious offence and had previously been found guilty of a further serious offence within the previous two to 10 years. Section 8 also does not presume bail for some specific sexual offences, but only if the offender had been found guilty of murder, bodily harm, common assault, or sex without consent within the last 10 years. I totally agree with these provisions except they do not apply to an accused who does not fall within these criteria.

Bail is the right to be at liberty instead of in custody based on the principle that the accused person is innocent until proven guilty. However, there are situations where it is considered that the accused should not be at liberty such as if there was a risk that they would not front up to court for their case, or they may re-offend, or they may be a risk to the victim or community. In these circumstances, a court can reject bail. At the same time, it is accepted that there are certain crimes for which bail should not be presumed. That is why many Australian jurisdictions do not presume bail for murder, as an example. In the Northern Territory, the Bail Act does not presume bail for murder, treason, and some drug offences.

Let me go into some of the details of the bill. First, the bill amends section 3, Interpretation, to include a definition of ‘serious sexual offence’ which will constitute eight offences from the Criminal Code. These are generally considered to be of a serious nature: section 127, sexual intercourse or gross indecency involving a child under 16 years; section 128, sexual intercourse or gross indecency involving a child over 16 years under special care; section 130, sexual intercourse or gross indecency by a provider of services to a mentally ill or handicapped person; section 131A, sexual relationship with a child; section 132, indecent dealing with a child under 16 years; section 134, incest; section 192, sexual intercourse and gross indecency without consent; and section 192B, coerced sexual self-manipulation.

Second, the bill amends section 7A(1), Presumption against bail for certain offences. The amendment adds the offence of serious sexual offence to the list of other offences where bail is not presumed. This clause also amends section 7A(1)(e) which details circumstances where bail is not presumed for serious violent offences. The definition of these offences includes the sections relating to serious sexual offences. It is necessary to amend section 7A(1)(e) to ensure the circumstance where bail is not presumed for serious violent offences will not limit the new section 7(A)(1)(db), which includes serious sexual offences, being included in the list.

Third, the bill amends section 8, Presumption in favour of bail for certain offences. This section lists the offences and circumstances where bail may be presumed. It is regarded as a ‘neutral presumption’ in that there is no presumption that bail will be granted, nor is there an express presumption that bail not be granted. This is because an offence may fall under the categories of section 7A or section 8. Section 8(1)(aa) states that bail may not be presumed for some offences defined as serious violent offences under the Criminal Code. These offences are section 181, Grievous harm, and some parts of section 192, Sexual intercourse and gross indecency without consent, if the accused has previously been found guilty of certain offences under the Criminal Code.

Amendment to this clause is necessary, therefore, to ensure that serious sexual offences do not fall into the neutral presumption area. This is done by removing the references to the Criminal Code section 192 offences in section 8(1)(aa) so as to avoid any potential confusion about the presumption of bail because these offences will be listed as serious sexual offences.

Fourth, the bill inserts a new section of transitional matters. The presumption against bail for serious sexual offences will apply retrospectively for an alleged serious sexual offence committed before the commencement of the new act. This will not apply to an accused person who is granted bail for such an offence prior to the commencement of the new act. However, it will apply if that person’s bail is up for review after the commencement date, as the new provisions will apply.

Section 24 of the Bail Act, Criteria to be considered in bail applications, is not removed or altered, but allows a court to consider each case and whether to grant bail on the probability of the accused appearing in court, the interests of the accused, and the protection and welfare of the community. I stress that section 24 will not be altered or removed.

Opponents will argue the courts are well aware of potential negative impact on granting bail and will not do so if there is any risk to the victim, their family or the community. However, a brief look at a number of cases shows the majority of accused are granted bail, even those accused of sexual assault against children. I could go into descriptions of cases but too often they are distressing and I am assuming as members you are in touch with your community and you know of them.

What has prompted me to introduce this amendment? The increasing reports of violent and sadistic sexual offences against children and adults. Statistics taken from the Office of Crime Prevention quarterly report show that for the last three years sexual assault offences constitute between 4.4% to 9.3% of all offences against a person. The average monthly number of sexual assaults for the same period is between 22 and 38; that is almost one every day. Of course we cannot measure the long-term effects on the victims. It affects their attitudes to relationships, and sometimes without closure and unrepaired damage there is often no closure at all.

Many of you may ask why I am bringing this amendment. It is not for political chest beating as one lawyer group has suggested. It is for the victims. It is a fact that I have worked with children for many years and I can tell many sad stories. As well as that, many people who consider the system has let them down have contacted me. What would you do if a Year 6 girl in the middle of development lesson asked you how many times you have to have sex to get pregnant, and when told as little as once, retreats into her shell and takes no part in that lesson. Yes, her stepfather was the offender.

How do you react to a six-year-old at show and tell when she said she slept over at a friend’s place but did not want to stay again as the games her friend’s father wanted to play, hurt her?

Do all cases go to court? No. What made an 11-year-old burst into tears when her mother said she was going out and her grandfather would look after her? Her mother would not report him to the police. Her excuse? He is my father. But what of the daughter?

There are cases where the accused is released on bail and these cause even greater concern to the victim and the family. Let me read you part of a letter I received when this amendment was circulated. Obviously, I will not reveal who it came from. The young person said:

In response to the letter by Col Friel in Saturday’s paper concerning denying bail to people accused of sexual offences, I am a 29-year-old mother of three who struggles with life every day due to the effects of sexual abuse. I am one of the many victims whose life will never recover from the trauma of a shattered childhood. Not only do I live with the memories, the shame and the effects of my abuse, but I also have to deal with the fact that my offender was never made to face trial due to him being granted bail. He was granted bail to another state, never to return for trial - never to answer for anything he did to me. I pay everyday, not him! The proposed legislation should be supported so there may never be the benefit of the doubt given to these predators, and there will no longer be the chance of people like me suffering because they are still waiting for justice to be done - all because he got bail!

The feedback I have had to the distribution of my amendment for discussion has produced a variety of responses. Some too ignorant to respond to, and some too set in their ways to see the victim’s side of the story such as some of the ridiculous remarks made by lawyers even before they saw the bill. On a positive note, I heard on the weekend at the White Ribbon Day event, a lawyer referring to domestic violence say: ‘We should not walk on by’. We should not stop being shocked. I do not intend to walk away from these hard topics.

I thank the groups which have taken time to give me constructive or objective feedback. Many use the argument of innocent until proven guilty, but one group of lawyers concedes that a reduction in the number of offences listed may be acceptable. One group submits that the definition of ‘serious sexual offence’ is too broad. As an alternative argument, they concede that the following would be appropriate to include within a proposed definition of ‘serious sexual offence’: a sexual relationship with a child, section 131A; sexual intercourse and gross indecency without consent, section 192; coerced sexual self-manipulation, section 192B.

They say:

So far as the other sexual offences proposed … we concede that these offences are both serious and of concern to members of the public. However, they are not so serious when, in the context of allegations (ie charges) and the presumption of innocence that applies to persons charged with any criminal offence, that there should be a presumption against bail for persons charged with such offences. We therefore submit that the inclusion of any definition of ‘serious sexual offence’ should not include such offences.

But could include the three of which I have spoken. I trust the Attorney-General will discuss this proposal with me. I will give him copies of the letters from this group.

Other community groups offer thoughtful support. This was from a community club in Alice Springs:

Club members discussed the draft bill at our November meeting as part of our observation of ‘16 Days in November’ to Eradicate Violence against Women and our continuing club self-education awareness efforts.

The club of Alice Springs fully supports your draft bill to amend the act. While keenly aware that the justice system must protect the rights of those who appear before it having been charged with an offence, we are firmly convinced of the imperative to also protect the rights of victims.

In cases of serious sexual offence, as defined by your draft bill, the impact to victims can be life-threatening as well as horribly demoralising; some of the victims such as small children and/or those individuals who are impaired, handicapped and otherwise unable to fend for themselves often have no voice in the judicial system. Full consideration should be given to previous convictions, complaints and circumstances of family and community members who may be at risk, if the individual charged is not held on bail.

Since the draft bill still provides for courts to weigh each case individually, club members are assured the rights of all individuals who are party to the case are still protected.

I stress that, Madam Speaker. It is a very sound way of summing up what we did. Courts will still have the right to look at each case individually, but the presumption of bail has been removed for serious sexual offences.

Members, I am not asking you to support this for me. Support it so that all victims are not afraid to come forward. I am not denying the accused the right to defend the case and seek bail. Section 24 still gives the court that option. I am asking that it be weighted in favour of the victim, not the accused. I know you will vote on party lines, but if you know of cases such as those about which I have spoken, then you must acknowledge the rights of the child and the victim. Do not allow the victim to be violated again by someone walking out the door on bail.

I have heard the Leader of the Opposition many times criticise government for their inaction in this area. Let us all work together for a better system for victims. I urge you to support this. Madam Speaker, I commend the bill to the House.

Debate adjourned.

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