Lijo & Ors v The Commonwealth Director of Public Prosecutions
[2003] WASCA 4
•17 JANUARY 2003
LIJO & ORS -v- THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2003] WASCA 4
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 4 | |
| THE FULL COURT (WA) | 17/01/2003 | ||
| Case No: | FUL:105/2002 | 16 DECEMBER 2002 | |
| Coram: | ANDERSON J TEMPLEMAN J OLSSON AUJ | 16/12/02 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Magistrate's order for bail reinstated on terms set out in judgment | ||
| B | |||
| PDF Version |
| Parties: | MANUEL PEREZ LIJO JOSE MANUEL LOJO EIROA JUAN MANUEL GONZALEZ FOLGAR THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
Catchwords: | Criminal law and procedure Illegal fishing Spanish nationals Bail Conditional on providing cash deposit Whether cash deposit excessive Appeal Effect of events since order |
Legislation: | Bail Act 1982 (WA) Criminal Procedure Amendment Act 2002 (WA) Fisheries Management Act 1991 (Cth), s 100(2) |
Case References: | Gillis v Gawned & Anor (1992) 8 WAR 211 Perez v The Queen (1999) 21 WAR 470 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : LIJO & ORS -v- THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2003] WASCA 4 CORAM : ANDERSON J
- TEMPLEMAN J
OLSSON AUJ
- First Appellant
JOSE MANUEL LOJO EIROA
Second Appellant
JUAN MANUEL GONZALEZ FOLGAR
Third Appellant
AND
THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
(Page 2)
Catchwords:
Criminal law and procedure - Illegal fishing - Spanish nationals - Bail - Conditional on providing cash deposit - Whether cash deposit excessive - Appeal - Effect of events since order
Legislation:
Bail Act 1982 (WA)
Criminal Procedure Amendment Act 2002 (WA)
Fisheries Management Act 1991 (Cth), s 100(2)
Result:
Appeal allowed
Magistrate's order for bail reinstated on terms set out in judgment
Category: B
Representation:
Counsel:
First Appellant : Mr T F Percy QC & Mr C P Shanahan
Second Appellant : Mr T F Percy QC & Mr C P Shanahan
Third Appellant : Mr T F Percy QC & Mr C P Shanahan
Respondent : Mr A L Troy
Solicitors:
First Appellant : Leask & Co
Second Appellant : Leask & Co
Third Appellant : Leask & Co
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Gillis v Gawned & Anor (1992) 8 WAR 211
Perez v The Queen (1999) 21 WAR 470
(Page 3)
Case(s) also cited:
Nil
(Page 4)
1 ANDERSON J: My reasons for joining in the orders made on 16 December 2002 are fully expressed in the judgment of Olsson AUJ. There is nothing I wish to add.
2 TEMPLEMAN J: I have had the advantage of reading in draft, the reasons for decision of Olsson AUJ. It was for the reasons articulated by his Honour that I joined in the decision of the Court on 16 December 2002. There is nothing I wish to add.
3 OLSSON AUJ: On 16 December 2002 the Full Court heard argument on the appellants' notice of motion by way of appeal. This related to issues arising with regard to an application to vary conditions of bail granted to them in respect of pending criminal charges against them. In view of the relevant circumstances, this Court pronounced its conclusions following the submissions of counsel. It then pronounced its order on the appeal and indicated that it would publish formal reasons at a later date. What follow are my reasons for concurring in the order made.
The factual background
4 All three appellants in this matter were, on 7 February 2002, members of the crew of the fishing vessel "Volga". This vessel is said to have operated under a Russian flag with a Russian captain and to have been worked by the three appellants, and a crew of persons recruited from South East Asian countries. It was one of a fleet of seven or eight vessels, somewhat similarly crewed, said to have been illegally taking Patagonian Tooth Fish on a massive scale, by long line fishing, within the Australian Fishing Zone ("AFZ"), in the vicinity of Heard and McDonald Islands in the Southern Ocean, some 4,000 kilometres south-west of Fremantle. In a somewhat related matter of The Queen v Rivas & Ors, Kennedy DCJ, in sentencing crew members from another ship in the fleet on 10 June 2002, made the point that illegal fishing in the AFZ is depleting the fishing resource in a manner which could have very serious long term consequences.
5 The prosecution alleges that, on the above date, the "Volga" was observed by a patrolling RAAF C130 Hercules aircraft within the AFZ. It was pursued by naval patrol vessels and a Navy helicopter as it sought to leave the AFZ and did not respond to radio challenges. It was boarded by an armed naval boarding party and searched.
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6 The prosecution case is that large quantities of frozen Patagonian Tooth Fish and bait were found in the main freezers, there was clear evidence that long line fishing equipment on board had very recently been used and an electronic plotter used to record positions at which long lines had been laid at sea was found to have had all files deleted from its memory. Those files were subsequently recovered from the hard drive of the plotter and showed the precise locations at which long lines had been laid and the quantities of fish caught. According to such files, in the period leading up to the boarding of the vessel, it had been engaged in extensive, illegal, long-line fishing in the AFZ.
7 The ship was apprehended and the crew taken to Fremantle. The Russian captain subsequently died in unfortunate circumstances.
8 The three appellants were all Spanish nationals, who had their permanent residence in Spain. All were employed by a company known as "Olbers Co Ltd" which, it is to be inferred, was the operator of the fishing fleet in question.
9 The appellant Lijo was the "fishing master" of the "Volga", responsible for the conduct of its fishing operations. He appears to have been second in seniority to the captain, in the sense that the captain was in ultimate command of the working of the vessel, whilst Lijo directed its fishing operations. He is a married man 32 years of age and of modest means. His wife and 2-year-old son are dependent upon him. He earns $6,000 per month over a six-month fishing season. In the off-season, his employer pays him $1,000 to $1,200 per month to perform maintenance and repair work to fishing equipment and machinery.
10 The appellant Folgar was first mate on the Volga. He is 36 years of age and has a wife and two young children dependent upon him. He also is of modest means. He earns $5,000 per month whilst at sea and the same amount as Lijo during the off-season.
11 The appellant Eiroa was the fishing pilot of the Volga. He is 30 years of age and is married with one young child. His wife and child are wholly dependent on him. His income situation is similar to that of Folgar and he has very modest assets.
12 Having been taken into custody, all three appellants were charged with one indictable offence that, on or about 7 February 2002, they made unauthorised use of a foreign fishing vessel for commercial fishing in the AFZ, contrary to s 100(2) of the Fisheries Management Act 1991 (Cth). It is said that the appellant Lijo has since been charged with a second
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- offence under that Act, although the precise details of such charge do not emerge from the material before this Court. Each charge gives rise to a maximum pecuniary penalty of a fine of $275,000.
13 The three appellants propose to defend the charges and were due to appear before a Court of Petty Sessions, for the purposes of a preliminary hearing, in November 2002. However, the committal proceedings were abandoned, consequent upon the proclamation of the Criminal Procedure Amendment Act 2002 (WA). The appellants will be tried in the District Court at a time well into the future.
14 It is said that the defence will be based essentially on the proposition that, at the time when the "Volga" was ordered to stop, it had proceeded outside the AFZ and that the apprehension of it and the appellants was contrary to the relevant Rules of the Sea and unlawful.
15 It seems common ground that the trial will be lengthy and raise complex legal issues. The present estimate is that the trial proper could well occupy four weeks.
Bail history
16 Upon arrival at Fremantle on 19 Fremantle 2002, the appellants were initially detained, pursuant to the provisions of the Fisheries Management Act, for the purpose of investigating what offences (if any) they may have committed. They subsequently appeared in the Perth Court of Petty Sessions charged with the s 100(2) offences and were remanded in custody. They had been admitted to bail on the condition that they each deposit $75,000 in cash, reside at a place approved by the Supervising Fisheries Officer, surrender all passports and seamen's papers and not leave the Perth metropolitan area. The cash deposits were not forthcoming until 23 March 2002, when the employer of the appellants made the requisite funds available to them by way of loan. They were then released into the community.
17 On 30 May, the appellants appeared before a Magistrate on application to vary bail conditions. They sought to obtain their passports and papers and return to Spain, pending trial. The learned Magistrate acceded to their applications on condition that the passports and papers be deposited with the Australian Embassy in Madrid on arrival. The Director appealed against that decision to a single Judge of this Court. It was argued on behalf of the Director that any financial deposit would be insufficient to guard against the risk that the appellants would not reattend
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- when required to do so, or that, in the alternative, an amount of $75,000 per person was manifestly inadequate to ensure reattendance.
18 In the course of reasons published by the learned Judge on 14 June 2002, it was noted that:
• the employer was meeting the appellants' then current accommodation and living costs;
• they were, however, unable to speak English, socially isolated and suffering significant anxiety concerning financial matters and the situation of their families in Spain;
• although they were at liberty to seek employment in Australia, it was impractical for them to do so, due to language difficulties;
• it would be about five months before a preliminary hearing could be held and, potentially, a long time thereafter to trial, if they were committed;
• the circumstances relied on by the prosecution were such that the alleged offences were serious;
• the strength of the prosecution case was difficult to assess, although the defence had flagged serious legal issues to be tried;
• the appellants had no apparent ties with Australia and, on the face of the situation, their employer was not shown to have a clear interest in ensuring that they comply with Australian law; and
• the likely actions of the appellants must be considered, bearing in mind the inconvenience and expense to them in returning from Spain to Australia (possibly on several occasions), together with the cost of defending proceedings which would not be recouped in the case of an offence charged on indictment, even if there was an acquittal.
19 In the lastmentioned regard, the learned Judge was of the view that maximum fines of the order of $100,000 could be in prospect in the event of conviction. A preliminary hearing and trial could occupy something of the order of 30 hearing days and may well involve the engaging of senior counsel. This might well throw up a potential liability of the order of $300,000, plus costs of travel and associated inconvenience, loss and stress.
20 Bearing all factors in mind, it appeared to the learned Judge that a deposit of the order of $275,000 per head would be required to provide an effective assurance that it was reasonably probable that the appellants would attend for trial, if permitted to leave the jurisdiction. She therefore
(Page 8)
- varied the conditions of bail appealed against, so as to require a deposit of $275,000 per person, in lieu of the $75,000 ordered by the learned Magistrate.
21 The appellants appeal against that variation on the bases that:
(1) the learned Judge is said to have erred in concluding that, in the circumstances, a deposit in access of $75,000 was inadequate to secure the attendance of each appellant at trial;
(2) the amount of deposit ordered was excessive, in that, in each instance, it exceeded the heaviest fine that might be expected to be imposed in the event of a conviction; and
(3) the amount of deposit stipulated was manifestly beyond the proven means of each appellant, so as to render the condition incapable of fulfilment and the grant of bail illusory.
Events subsequent to the decision appealed against
22 It was not disputed that, on the evidence before the Full Court, there had been several developments, subsequent to the order appealed against, which both entitled and required it to consider the situation afresh.
23 First, the abolition of the preliminary hearing process necessarily negated the continuing validity of the cost figures relied on by the learned Judge. The likely court hearing times could well be reduced by about a third.
24 Second, following the making of the order, the employer of the appellants has declined to advance them the funds required to satisfy the increased deposit and the appellants have no means of personally raising the moneys in question.
25 Third, clear medical evidence has been adduced to establish that, due to the social and cultural isolation and prolonged absence from their families, the appellants Folgar and Eiroa have developed psychiatric problems. The former is being treated for an anxiety disorder and the latter for a depressive disorder.
26 Partly because of cramped living conditions, the appellant Lijo moved out of the accommodation occupied by his co-accused; and his wife and son came to Australia from Spain to be with him for a time. They received some financial support from the owners of the "Volga" to enable that to occur. The wife and son returned to Spain on 10 November
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- 2002 and all three appellants are currently accommodated by the Flying Angel hostel for seamen.
27 It should also be mentioned that the additional charge was laid against Lijo on 23 August 2002. He was then required to increase his bail deposit by $20,000. That additional sum has been lent to him by his employer and he therefore remains on bail.
The issues
28 The core argument advanced by the appellants before the Full Court was that a requirement to increase the bail deposit in each instance to $275,000, on the basis of reasoning adopted by the learned Judge, was not in conformity with the concepts outlined in the Bail Act 1982 and, in any event, did not recognise the matters revealed by the further evidence now adduced.
29 Paragraph 1 of Pt C of Sch 1 to the Bail Act stipulates that a grant or refusal of bail is to be at the discretion of the relevant judicial officer, but that discretion must be exercised having regard to certain specific factors (as applicable), "as well as to any others" which are considered relevant. Of the specific factors referred to, only one appears to be relevant to the instant case, namely whether, if the appellants are not kept in custody, they may fail to appear in accordance with their bail undertaking.
30 By virtue of s 28 of that Act, release on bail is contingent upon entry into a written bail undertaking to appear, which contains an agreement to forfeit any money stipulated by the bail agreement. A bail authority may, pursuant to s 17, impose conditions on a grant of bail, but only to the extent authorised by cl 2(3)(c) of Pt C and Pt D of Sch 1. Inter alia, Pt D authorises imposition of conditions requiring specified cash deposits by way of security for due observance of bail requirements and agreements for forfeiture on breach of those requirements if it is considered "desirable to do so to ensure the performance of a defendant's bail undertaking". However, s 17(2) expressly provides that conditions imposed on the grant of bail "shall not be any more onerous on the defendant" than are considered "required in the public interest having regard to the nature of the offence for which the defendant is in custody and the circumstances of the defendant".
31 On the hearing before the Full Court, counsel for the appellants developed his submissions in this way:
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- • the only legitimate purpose for and public interest in the imposition of a bail deposit in the instant case was to ensure that the appellants duly appeared at their trial in the District Court, when ultimately required to do so;
• there can be no public interest in the imposition of a requirement for deposit of an amount which far exceeds what the public purse might ultimately receive by way of fine if the appellants were convicted;
• even given that the present charges are of a serious nature and fines on conviction are potentially large, this is not a situation in which there is any presumption against bail (cf Gillis v Gawned & Anor (1992) 8 WAR 211);
• the approach adopted by the learned Judge reflected an inappropriate emphasis on the means and circumstances of the employer of the appellants (which had been standing behind them), rather than those of the appellants themselves;
• the appellants were patently unable to raise the additional cash deposits required, with the consequence that they were suffering considerable personal and (in the case of two them) medical hardship;
• the proceedings will be defended, there are substantial and complex issues to be addressed and it is likely to be a long time before their cases actually came to trial;
• on a consideration of other cases in which fines have been imposed in comparable circumstances, it is likely that any fines imposed on conviction would be substantially less than the cash deposits already in hand; and
• the likelihood of non-reattendance is not high. The employer of the appellants has a significant interest in their return, by virtue of the fact that it has lent cash deposits totalling $245,000. In the event of non-reattendance, the capacity of the appellants to repay the money to their employer would appear somewhat minimal.
32 In my opinion, certain of those propositions are of dubious validity.
33 It is, of course, far too simplistic to argue that a determinant factor ought to be whether or not a cash deposit is at least of the order of any fine which might ultimately be imposed, although that is by no means an irrelevant consideration. As counsel for the Director pointed out, there is also a very real public interest in the deterrent aspects of securing actual convictions for serious offences of this type, which can have a major
(Page 11)
- adverse economic impact on Australia and do considerable damage to ecosystems for which it has a responsibility. If the appellants do not return for their trial, it may well be impossible to proceed against them in their absence.
34 Nor is it fair comment to suggest that the learned Judge embarked on what was an impermissible assessment of the situation of the employer and/or "cost/benefit" analysis. Given that the figures referred to by her do not now reflect the current situation, all that she was seeking to demonstrate was that the practicalities of the situation could not be ignored. Common sense indicated that the appellants were necessarily financially reliant on their employer to be able to answer to their bail. The employer might well reason that, bearing in mind the potential high unrecoverable cost of defending the charges, due to the need for the appellants to return to Australia (possibly more than once) and a probable lengthy and complex trial, it would be economic sense to "write off" the bail deposits following the repatriation of the appellants to Spain on bail - rather than incur much greater subsequent costs attendant on honouring bail conditions and defending the charges. That was a relevant consideration in weighing the evidence as to the possibility of the appellants failing to reattend.
35 It must be conceded that the developments that have occurred since this matter was before the learned Judge are matters for anxious consideration. This is the more so as it must be accepted, as a matter of practical reality, that as in Perez v The Queen (1999) 21 WAR 470, the appellants appear to have been little more than pawns in a much larger game orchestrated by their employer - even if it is fair comment to say that they knowingly and willingly acted in accordance with the instructions given to them.
36 That said, it is undeniable that, on the evidence now before the Court, because the employer has declined to put up additional funds by way of security and the personal circumstances of the appellants are such that they have no independent means of finding further additional finance, they will not be able to leave Australia if further substantial deposit moneys are required. They and their families will suffer considerable hardship and, at least in two instances, also medical detriment, if they are unable to return to Spain. This could well persist for a substantial period of time whilst they await trial.
37 Further, as earlier noted, the calculations relied on by the learned Judge are now irrelevant and inaccurate due to supervening events.
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38 The deposits already made by way of security are substantial and, in my view, certainly more than ample to cover any fines likely to be imposed on the appellants, if convicted. As the evidence clearly shows these deposits to be loans to the appellants which they would be liable to repay in the event of forfeiture, this situation constitutes a powerful incentive for them to honour their obligations to attend for trial. An added incentive is the requirement that they surrender their passports and papers on arrival in Spain as ordered by the learned Magistrate, although it is fair comment that the evidence does not reveal how easy it would be for them to procure replacement documents if they sought to obtain them.
39 Whilst it must be acknowledged that, realistically, there is some risk that the appellants will not honour their bail obligations if permitted to return to Spain, nevertheless, I consider that common fairness and decency indicates that bail conditions be set that, in practical terms, will enable them to return their homes and will, at the same time, provide a reasonable guarantee of their reattendance.
Conclusion
40 It was for the foregoing reasons that I concurred in the conclusions that, having regard to the present circumstances, the appeal should be allowed and the order appealed against set aside. This was on the footing that the order of the learned Magistrate varying bail conditions should be reinstated, save that the time for surrender of passports and papers be extended to 21 days after arrival in Spain; and that there be an additional condition of bail that the appellants each enter into a specific agreement, pursuant to s 28(2) of the Bail Act that, if that appellant fails to comply with the requirement to surrender his documentation within the stipulated time, the deposit money in respect of such appellant shall, ipso facto, be forfeited.
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