The Commonwealth Director of Public Prosecutions v Lijo - [2002] WASC 154

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS -v- LIJO & ORS [2002] WASC 154

CORAM: WHEELER J

HEARD: 7 JUNE 2002

DELIVERED : 14 JUNE 2002

FILE NO/S: MCS 30 of 2002

BETWEEN: THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
AND
MANUEL PEREZ LIJO
JOSE MANUEL LOJO EIROA
JUAN MANUEL GONZALEZ FOLGAR
Respondents

Catchwords:

Bail - Foreign nationals - Turns on own facts

Legislation:

Fisheries Management Act 1991 (Cth), s 100(2)

Result:

Conditions of bail varied

Category: B

Representation:

Counsel:

Applicant: Mr A L Troy
Respondents : Mr T F Percy QC & Mr C P Shanahan

Solicitors:

Applicant: Commonwealth Director of Public Prosecutions
Respondents : Leask & Company

Case(s) referred to in judgment(s):

Perez v R (1999) 21 WAR 470

Case(s) also cited:

Beljajev v Director of Public Prosecutions (1998) 101 A Crim R 362
Gillis v Gawned (1992) 8 WAR 211
Jemielita v The Queen (1994) 12 WAR 362
Lazaro v R, unreported; SCt of WA (Pidgeon J); Library No 930595; 3 November 1993
Pinkstone v R (2000) 119 A Crim R 462
R v Clarke (No 2) (2000) 118 A Crim R 585

WHEELER J: This is an application to vary conditions of bail. On 6 March 2002 the respondents were each charged with an indictable offence that on or about 7 February 2002 they made unauthorised use of a foreign fishing boat for commercial fishing in the Australian fishing zone, contrary to s 100(2) of the Fisheries Management Act 1991 (Cth). Initially, they were admitted to bail on the condition that they deposit $75,000 each in cash, that they reside at a place approved by the Supervising Fisheries Officer with the Australian Fisheries Management Authority ("AFMA"), that they surrender all passports and seaman papers to the AFMA and that they not leave the metropolitan area. On 14 March 2002 they had not met the cash deposit conditions and were placed in custody. Those deposits were made on about 23 March 2002 and the respondents were released into the community.
On 30 May, on an application before his Worship Mr Tarr SM, the purpose of the application was to enable the respondents to obtain their passports and to leave not only the metropolitan area, but the State, so as to return to Spain. His Worship varied the bail conditions so as to enable the respondents to obtain their passports and seamen's papers, permitted them to leave the jurisdiction, but ordered that the passports and seamen's papers should be deposited with the Australian Embassy in Madrid.
The applicant submits that the previous condition should be reinstated, or that alternatively, the existing bail deposit of $75,000 in respect of each respondent be varied so that a total deposit of not less than $1.5 million is required before the respondents are permitted to leave the jurisdiction. The Applicant's primary submission is that any financial deposit will be insufficient to guard against the risk that the respondents would not re‑attend when next required to do so or that in the alternative the amount of $75,000 is manifestly inadequate for that purpose.
The circumstances of each of the respondents are deposed to in an affidavit of Leo Gatica‑Evans sworn 7 May 2002. Mr Evans is an articled clerk with the solicitors for the defendants and is fluent in the Spanish language. None of the respondents is able to speak or understand English. Each is a Spanish national, with a dependant wife and child or children in Spain. Although their assets vary somewhat, each has what would be regarded as modest assets by Australian standards in Spain. They are presently residing together in a unit in Beaconsfield and their employer is meeting their present accommodation and living costs. Although they are not prohibited from obtaining employment in Australia, their complete lack of English skills makes it unlikely that they will be able to do so. Unfortunately, the affidavit deposes that they are "likely" to apply for social security subsistence payments of some kind from the Australian Government, but there is no information about what payment might be available to them. Nothing is said in the affidavit about any extended family support or support from the respondents' employer for their families in Spain; however it seems to me fair to assume that the employer's support would not be unlimited, that the respondents' assets are likely to diminish as they remain in Australia, and that they face, at the least, significant anxiety over financial matters. Because of their inability to speak English they are socially isolated in Australia. They have no contacts within the Spanish‑speaking community. If they were able to return to Spain, they would seek employment with their current employer doing repairs and maintenance of fishing equipment, and it seems to me likely that such employment would be forthcoming.
I am informed that a preliminary hearing has been set for November this year, so that if the original conditions of bail were reinstated, the respondents would have to remain in their present circumstances for a further five months until the Crown case could be tested. It was submitted to me on behalf of the respondents that an actual trial could be "years away" but at this stage I do not consider that it is useful to have regard to a likely date of trial, for a number of reasons. One is that the likely length of trial, and hence availability of trial dates, can be better assessed after the preliminary hearing. Another is that one would expect some priority to be accorded to the trial of the respondents, having regard to their circumstances. Finally and most importantly, once a preliminary hearing had been held it would be open to reconsider the question of bail in the light of the strength or otherwise of the Crown case as that preliminary hearing had revealed it to be.
In my view, the considerations referred to above suggest that the hardship which would be caused to the respondents by the original conditions of bail is such that those conditions should not be reinstated unless it is reasonably clear that their attendance at trial cannot otherwise be secured. It seems to be common ground between the applicant and the respondents that in considering whether their attendance can be secured, it is to be assumed that a person in the respondents' position would undertake a rational analysis of the likely costs and likely benefits of attending at trial, having regard to the bail conditions. It is also common ground that the present deposit of $75,000 has been loaned to the respondents by their employer, and that any further sum which may be required will also be obtained from the same source, so that the respondents' employer is likely to have a considerable influence upon their decision whether or not to return to Australia to attend at trial, and it is necessary to have regard to the employer's position in that cost benefit analysis.
I am advised that the employer is not at risk of forfeiture of the vessel or any similar penalty in these proceedings. There are forfeiture proceedings which can be undertaken but forfeiture does not, in those proceedings, depend upon the conviction of the respondents. The maximum penalty available in respect of each offence is one of $275,000; although that penalty is enforceable by imprisonment, there is no provision for a sentence of imprisonment in the first instance.
In considering the risk that the respondents will not attend, an important consideration is the apparent strength of the Crown case, likelihood of conviction, and the likely quantum of any penalty. The strength of the Crown case is difficult to assess at this stage. The Crown case is essentially that the vessel was detected inside the Australian fishing zone, and was boarded some 20 minutes or so after it appeared to have left the Australian fishing zone. Visual inspection of the vessel when it was within and as it was leaving the Australian fishing zone, together with many items located on the vessel are said to lead to an inference that it had been fishing while within the Australian fishing zone. My understanding is that a feature of the defence will be a challenge to the way in which the vessel's location was established; it may also be that it will be submitted that the inference sought to be drawn does not necessarily follow from the facts upon which the Commonwealth relies. At this early stage, and without hearing the depositions, it is difficult to do more than to assess the Crown case as not being a weak one. The offences, if committed, would appear to be relatively serious offences of their kind, since the volume of the catch is asserted to be some 138 tonnes (valued in excess of $2 million), the vessel is asserted to be part of a fleet of up to eight boats which could have a very significant impact on the relevant fishery, one of the respondents is the "Chief Mate" of the vessel and another is the Fishing Master. If the respondents were convicted after trial there would of course be no discount for any plea of guilty. It is therefore likely that a significant fine would be imposed, subject to any enquiry into the means of the respondents to pay. It seems to me appropriate to have regard to the fine originally imposed in the case of Perez v R (1999) 21 WAR 470. In that case the applicant had been the Master of a vessel and the offence was apparently his third incursion into the Australian fishing zone, but there was a plea of guilty and there was nothing to suggest that the vessel was part of an enterprise of the scale alleged in the present case. In that case the initial fine imposed was one of $100,000, which was subsequently reduced because of the limited means of Mr Perez.
I accept the Crown's submission, which I do not understand to be disputed, that the object of any deposit of money in this case would not be merely to ensure that the Commonwealth obtained some sum roughly equivalent to an appropriate fine for these offences. Rather, the Commonwealth's interest is in the vindication of the law and in the deterrent effect which such proceedings may have on others.
Further, in considering what any rational cost benefit analysis by a defendant would include, one must have regard not only to the quantum of any likely fine. In this case, the respondents have no apparent ties with Australia. In the case of an Australian resident, one might assume that a factor which would be considered would be the likelihood that the defendant would eventually have to face the music in any event if he wished to remain within Australia, and the likelihood that a defendant would wish to clear his name within the community in which he resides. Those considerations are absent here. Unlike the cases of foreign servicemen who have been permitted to leave the jurisdiction, these respondents do not have an employer with a clear interest in ensuring that their employees respect the laws of other jurisdictions. There is to be considered also the inconvenience to the respondents of leaving Spain, possibly on more than one occasion, to return to Australia, and the expense involved together with the loss of income for the duration of court proceedings. Finally, there is the cost of defending proceedings which are not recouped in the case of an offence charged on indictment even if there is an acquittal. All of these considerations suggest that a very significant sum would be required.
In relation to a number of the matters referred to above, it is possible to ascribe, however roughly, some momentary value to the relevant factor. In relation to the quantum of any possible fine, I have already indicated that a fine of the order of $100,000, or perhaps somewhat more, would be a starting point based upon what little is known of the relevant factors at present. I am advised that the preliminary hearing is likely to take a fortnight, and it would not in my view be unreasonable to assume that the trial will take perhaps four weeks. With 30 days of court time, engaging senior counsel and with a considerable volume of evidence one could roughly allow a sum of the order of $300,000. A further allowance would then need to be made for costs of travel, associated inconvenience and stress. Apportioning the trial costs between the three respondents, it seems to me that a deposit of the order of $275,000 in the case of each of them would be required in order to ensure that it was reasonably probable that they would attend for trial if permitted to leave the jurisdiction. I have had regard also in fixing this figure to the fact that under the terms imposed by his Worship, which I propose to continue, the passports and seamen's papers of the respondents will be held at the Australian Embassy. I accept that this may provide a further reason for the respondents to comply with their bail conditions, but I do not place a great deal of weight on it because of the lack of information about the difficulty of obtaining duplicate papers and because of the difficulty of assessing what alternative employment will be available to the respondents without those papers.
I would therefore vary the conditions of bail imposed by his Worship Mr Tarr SM on 30 May 2002 so as to require, in lieu of the existing $75,000, a deposit of $275,000 in respect of each of the three respondents.