RIBOT-CABRERA & ORS -v- THE QUEEN [2004] WASCA 101
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 101 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:4/2004 | 20 APRIL 2004 | |
| Coram: | STEYTLER J EM HEENAN J LE MIERE J | 18/05/04 | |
| 36 | Judgment Part: | 1 of 1 | |
| Result: | Appeals by first to fourth appellants dismissed, Appeal by fifth appellant allowed, His bail varied to allow him to return to Chile pending trial | ||
| A | |||
| PDF Version |
| Parties: | RICARDO MARIO RIBOT-CABRERA ANTONIO GARCIA-PEREZ FRANCISCO FERNANDEZ-OLVEIRA JOSE GONZALES-PEREZ ROBERTO ENRIQUE REYES-GUERRERO THE QUEEN |
Catchwords: | Bail Pending trial Bail Act 1982 Fisheries Management Act 1991 (Clth) Exclusive economic zone Charges of unlawful fishing in Australian Fishing Zone Risk of flight by defendants Application for return of passports United Nations Convention of the Law of the Sea (UNCLOS) Treaty provisions Significance of treaty provisions in relation to application for bail pending trial of offence against statute partly implementing treaty |
Legislation: | Bail Act 1982 (WA) Crimes Act 1914 (Clth) Fisheries Management Act 1991 (Clth) Judiciary Act 1904 (Clth) Justices Act 1902 (WA) Supreme Court Act, s 58(1)(b) |
Case References: | Akimin & Ors v Cooper, unreported; SCt of WA; Library No 950071; 24 February 1995 Aruli v Mitchell, unreported; FCt SCt of WA; Library No 990161; 31 March 1999 Australia v Russian Federation (case No 11, judgment 23 December 2002, vol 42 International Legal Materials p 159) Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 Dietrich v The Queen (1992) 177 CLR 292 Green v Sommerville (1979) 141 CLR 594 KM v R, unreported; SCt of WA; Library No 7193; 14 July 1988 La Ode Arifin & Ors v Ostle, unreported; FCt SCt of WA; Library No 8923; 18 June 1991 Lijo & Ors v The Commonwealth Director of Public Prosecutions [2003] WASCA 4 Lim v Gregson [1989] WAR 1 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 O'Brien v Komesaroff (1982) 150 CLR 310 Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 Panama v France (case No 5, judgment 7 February 2000, vol 39 International Legal Materials, p 66) Pedersen v Young (1964) 110 CLR 162 Perez v The Queen (1999) 21 WAR 460 Pinkstone v The Queen (2000) 119 A Crim R 462 Re Grinter; ex parte Hall [2004] WASCA 79 Re McBain; ex parte Catholic Bishops Conference (2002) 209 CLR 372 Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 77 ALJR 699 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Theseus Exploration NL v Foyster (1972) 126 CLR 507 United Mexican States v Cabal [2001] HCA 60; (2001) 75 ALJR 1663; and (2001) 183 ALR 645 WCVB v The Queen (1989) 1 WAR 279 Gillis v Gawned (1992) 8 WAR 211 Jemielita v The Queen (1994) 12 WAR 362; (1995) 78 A Crim R 91 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA)
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- AGLC
- Ribot-Cabrera v The Queen [2004] WASCA 101
- Case
- [2004] WASCA 101
- Decision Date
CaseChat Overview and Summary
The case involved five defendants, all Chilean nationals, who were charged with offences under the Fisheries Management Act 1991 for allegedly fishing without a licence in the Australian Fishing Zone, which falls within Australia's Exclusive Economic Zone. The defendants applied for bail pending their trial, and the court was required to consider whether the risk of flight was such that bail should be refused. The defendants argued that the provisions of the United Nations Convention of the Law of the Sea should be taken into account in the bail application, as the Fisheries Management Act was partly based on the treaty.
The court considered the relevant provisions of the Bail Act 1982 and the Fisheries Management Act, as well as the United Nations Convention of the Law of the Sea. The court found that the defendants' status as foreign nationals and the nature of the charges were relevant factors in considering the risk of flight. The court also found that the treaty provisions did not have a direct bearing on the bail application, as the Fisheries Management Act was an independent piece of legislation that implemented the treaty obligations. The court ultimately found that the risk of flight was such that bail should be refused for four of the defendants, but the fifth defendant's bail was varied to allow him to return to Chile pending his trial.
The appeals by the first to fourth appellants were dismissed, as the court found that the primary judge's assessment of the risk of flight was correct. The appeal by the fifth appellant was allowed, and his bail was varied to allow him to return to Chile pending his trial. The court found that the primary judge had not given sufficient weight to the fact that the appellant had complied with all conditions of his previous bail, and that there was no evidence to suggest that he would not appear for trial if granted bail.
In summary, the court found that the risk of flight was such that bail should be refused for four of the defendants, but the fifth defendant's bail was varied to allow him to return to Chile pending his trial. The court found that the United Nations Convention of the Law of the Sea did not have a direct bearing on the bail application, as the Fisheries Management Act was an independent piece of legislation that implemented the treaty obligations. The appeals by the first to fourth appellants were dismissed, and the appeal by the fifth appellant was allowed with his bail varied as stated.
The court considered the relevant provisions of the Bail Act 1982 and the Fisheries Management Act, as well as the United Nations Convention of the Law of the Sea. The court found that the defendants' status as foreign nationals and the nature of the charges were relevant factors in considering the risk of flight. The court also found that the treaty provisions did not have a direct bearing on the bail application, as the Fisheries Management Act was an independent piece of legislation that implemented the treaty obligations. The court ultimately found that the risk of flight was such that bail should be refused for four of the defendants, but the fifth defendant's bail was varied to allow him to return to Chile pending his trial.
The appeals by the first to fourth appellants were dismissed, as the court found that the primary judge's assessment of the risk of flight was correct. The appeal by the fifth appellant was allowed, and his bail was varied to allow him to return to Chile pending his trial. The court found that the primary judge had not given sufficient weight to the fact that the appellant had complied with all conditions of his previous bail, and that there was no evidence to suggest that he would not appear for trial if granted bail.
In summary, the court found that the risk of flight was such that bail should be refused for four of the defendants, but the fifth defendant's bail was varied to allow him to return to Chile pending his trial. The court found that the United Nations Convention of the Law of the Sea did not have a direct bearing on the bail application, as the Fisheries Management Act was an independent piece of legislation that implemented the treaty obligations. The appeals by the first to fourth appellants were dismissed, and the appeal by the fifth appellant was allowed with his bail varied as stated.
Orders
Orders of the court
Appeals by first to fourth appellants dismissed, Appeal by fifth appellant allowed, His bail varied to allow him to return to Chile pending trial
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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