To Bail, or Not to Bail?

A Queensland father was released on conditional bail yesterday, after being charged with the sexual assault of a Korean national in Caboolture, north of Brisbane.

Police allege the 23-year old man stalked the woman at Morayfield shopping centre before attacking her in broad daylight at about 11.30am on Friday.

Witnesses say they heard her screams and rushed to help, pulling the alleged attacker away from the woman, before catching him and performing a citizen’s arrest until police arrived.

Prosecutors yesterday opposed bail but the magistrate ordered the man’s release after being told he was needed at home to look after his kids while his partner worked.

Local sexual assault workers say they have “grave concerns” about the man’s release, saying the risks to the community were not properly taken into account by the court.

Opposing views about grant of bail

Members of the public are outraged by the man’s release, fearing he will strike again.

But the Queensland Law Society has defended the imposition of strict bail conditions, saying they address the risk of reoffending and absconding:

“Only a very small proportion of people on bail commit further offences. These people are dealt with very harshly”, said President Bill Potts.

At Caboolture Magistrates Court, the man’s criminal defence lawyer argued his client’s family would be under financial pressure if he was kept in custody because he looks after his children while his partner works.

But Magistrate Louisa Pink noted the defendant has no prior criminal convictions and that the evidence relating to sexual assault is questionable.

“The strengths of the evidence in this case relates certainly to an assault. But at this time, the evidence of the allegation of rape — the scientific evidence – is still pending,” she said.

“Despite that, I don’t think it could be described as a weak Crown case.”

The man was given a strict curfew, requiring him to stay at home except when reporting to Caboolture police station. He must also call police before he leaves and after he returns to his home. The Magistrate also banned him from contacting witnesses or the complainant.

He is scheduled to reappear in court in September.

Concerning cases

Ashraf Makary used online ads for language exchange to lure his Korean victims in Brisbane.

Makary’s case caused public outrage earlier this year after he ignored strict bail conditions and committed sexual assault while on bail. Makary was found guilty of sexually assaulting two women and attempting to rape a third. He was sentenced to 18 and a half years in prison.

In a separate case, a man is accused of raping a woman he met on Tinder while on bail. The man has been charged with four counts of sexual assault, after being granted bail when the Magistrate found he “had previously been subject to court orders and had not committed any bail offences”. He is due to appear in court next month.

With “violence against women at an all time high”, there are concerns that releasing men changed with sexual assault will just add to the problem. Destroy the Joint’s Counting Dead Women initiative says 37 women have already died violently at the hands of men in Australia this year.

Striking a balance

By the same token, those who are charged with criminal offences are supposed to be presumed innocent until proven guilty, and with serious cases often taking upwards of two years to finalise, significant injustice can occur when an innocent person is refused bail and left to languish in prison.

In NSW, the Bail Act has undergone significant amendments in recent times to make it much harder for those who are accused of serious offences to be granted bail. The biggest change is the “show cause” requirement, which says that defendants in relevant cases must prove that their detention is not justified. In all cases, courts are required to impose conditions which mitigate (lessen) any ‘unacceptable risk’ before bail can be granted; so it’s often the case that defendants are on a ‘tight leash’ while awaiting the finalisation of their cases.

At the end of the day, bail laws are supposed to strike a balance between a range of competing considerations – including the presumption of innocence and protection of the community – and despite the media focusing on a handful of cases where defendants breach bail, we need to bear in mind there are thousands of others who strictly comply, many of whom ultimately have their cases withdrawn for lack of evidence or are found not guilty.