A west Auckland man who allegedly hired his neighbour's young daughter for sex has been released back to his family's custody without bail conditions, with the judge now asking the Government to urgently consider changing the law.
The 73-year-old man, who cannot be identified, was found unfit to stand trial on charges of attempted sexual violation by rape of a girl over a period of five years from 2009, when she was nine-years-old.
The court alleged the girl's mother, who was also found unfit to stand trial on grounds of mental impairment, consented and even encouraged the man's sexual activities with her daughter while they lived next door.
Due to a combination of mental impairment from childhood and dementia, the man was found unable to face charges and a psychiatrist assessing him told the court he was a low risk of reoffending, especially if he received supervision.
But while Justice Graham Lang ruled the man should be immediately released to his family - citing his age, deteriorating health and that he would continue to receive supervision by the Disability Offender Liaison Service - he bemoaned restrictions that kept him from imposing bail conditions for a period.
"I consider such restrictions to be justified," he said.
"On balance, however, I do not consider the court has the power to require [the man] to remain on bail subject to conditions.
"A grant of bail is a release on terms designed to ensure that the defendant appears when a criminal proceeding is next called. Once charges are stayed, however, the criminal proceeding has no future event.
Justice Lang said the case was not isolated either and he had sent the ruling to the Ministry of Justice's policy division to consider possible changes to the law.
"At least one other proceeding involving similar issues is currently being considered by the court. The problem therefore needs to be addressed as a matter of urgency."
The court found the man was not of a risk level that justified putting him in a secure facility.
Comment has been requested from the Ministry of Justice.