Criminal law and procedure - Appeal - Bail - Bail Act 1982 (WA) - Appeal against second decision of single Judge refusing bail - Whether new facts discovered or new or changed circumstances shown - Whether applicant a flight risk - Whether he would be able to return to and remain in Poland - Whether Polish law of limitations would prevent his extradition - Whether Judge erred in concluding new facts or changed circumstances not such as to trigger fresh consideration of application for bail

Bail Act 1982 (WA), s 14(2a)

Respondent : Commonwealth Director of Public Prosecutions

Edwards (1988) 35 A Crim R 465

Ex parte Maher [1986] 1 Qd R 303

Firkins v Director of Public Prosecutions [2002] WASC 203

KM v The Queen, unreported; SCt of WA; Library No 7193; 14 July 1988

Musarri v The Queen [2001] WASC 200

Oates v The Queen [2003] WASC 180

Pinkstone v The Queen [2000] WASC 199

Pinkstone v The Queen [2000] WASC 321

Saka v The Queen [2001] WASC 92

United Mexican States v Cabal [2001] HCA 60; (2001) 183 ALR 645

1 MILLER J: This is an appeal from a decision of Wheeler J delivered in this Court on 18 September 2003 when her Honour dismissed an application by the appellant for bail, pending his trial on an indictment for offences of one count of conspiracy to defraud, seven counts of making improper use of his position as an officer of a company and a further seven counts of failure to act honestly in the exercise of his powers and discharge of his duties as an officer of the company. These offences are alleged to be in breach of the provisions of s 142 of the Criminal Code, s 294(4) and s 570 of the Companies (WA) Code and s 294(1)(b) and s 570 of the Companies (WA) Code respectively.

2 The decision of Wheeler J on 18 September 2003 was a decision on a second application to her Honour for bail. The appellant had first made on application for bail before Wheeler J on 4 July 2003, on which date her Honour dismissed that application.

3 The application on 18 September 2003 was necessarily an application limited by the provisions of the Bail Act 1982 (WA) s 14(2a): that is, her Honour had to be satisfied that new facts had been discovered, new circumstances have arisen or the circumstances had changed since the previous occasion on which bail had been refused. Any change in this context is a relevant change and not matters of mere detail: Musarri v The Queen [2001] WASC 200, Pinkstone v The Queen [2000] WASC 321.

4 There are two grounds of appeal from the decision of Wheeler J on 18 September 2003. The first is that in holding that there were no circumstances justifying a fresh consideration of the appellant's application for bail, the learned Judge erred in failing to take account of the fact that since the first application for bail evidence had become available that, firstly, the appellant would not be permitted to enter Poland should he defy an order granting bail and abscond from Australia, and secondly, pursuant to the provisions of the Aliens Act of the Republic of Poland, the appellant, should he enter Poland in breach of an order of this Court granting bail would be subject to immediate expulsion from the Republic of Poland.

5 The second ground is that the learned trial Judge took into account an irrelevant consideration in refusing bail, namely, the consequence of any limitation period imposed by the Republic of Poland on the ability of the Commonwealth to obtain an order for extradition from Poland, as the evidence established that the appellant would not be able to enter or remain in the Republic of Poland should he defy a court order for bail and seek to return there.

6 To understand the reasons for judgment delivered by Wheeler J on 18 September 2003 it is first necessary to refer to the reasons her Honour gave in refusing bail on 4 July 2003. When her Honour considered the initial application for bail on that date, she noted that the primary factors upon which bail was sought were, firstly, the length of likely delay to trial and, secondly, the difficulties for the appellant's legal advisers in having unfettered access to him for the preparation of the case for trial.

7 The primary reason for opposition by the respondent to bail was the perceived flight risk that the appellant presented. Undoubtedly this was a highly relevant factor: Saka v The Queen [2001] WASC 92, KM v The Queen, unreported; SCt of WA; Library No 7193; 14 July 1988. Her Honour pointed out that there is a general presumption in favour of bail but it is no more than a presumption and there is a list of factors which the Court must consider in determining whether or not an application has properly been made out for bail.

8 Her Honour considered first in her reasons the question whether the applicant was considered a flight risk. She concluded that it was plainly in the interests of the applicant to flee. The reasons for that decision need not presently be canvassed. Her Honour considered that in the event that the applicant did flee and returned to Poland, there would be serious difficulties for Australia in extraditing him again by reason of expiration of limitation periods in Poland in relation to the offences charged in Australia.

9 In relation to the question of delay, her Honour accepted that delay prior to trial was likely to be of the order of six months if the trial were expedited. Her Honour then thought the case would be in the District Court but her Honour made the point that no serious attempts seemed to have been made at that time for the applicant to expedite the trial. Indeed, he had not then entered pleas in relation to the charges being faced.

10 Her Honour took into account difficulties with access to the applicant by his legal advisers for the purpose of preparation for trial but considered that in the absence of any real understanding of the depth of the prosecution case, it was difficult to make a clear assessment on this. In any event, although her Honour did not say so, difficulties in preparation for trial by reason of being forced to remain custody do not generally constitute sufficient circumstances for a grant of bail: see Ex parte Maher [1986] 1 Qd R 303.

11 I turn now to her Honour's reasons on the second application. In considering this application, Wheeler J considered the various factors which led her to refuse bail on the first occasion and looked at new material which had been made available on the second application to see whether any relevant changes had occurred. Her Honour pointed out that there were three broad categories to be considered, although they overlapped. They were, firstly, factors personal to the appellant, secondly, the offences and preparation for trial, and thirdly, Polish law and practical considerations.

12 Her Honour found that there were no new circumstances in relation to the first two factors and no issue has been joined with those conclusions on the hearing of this appeal. It is in relation to the learned Judge's conclusions on Polish law/practical considerations that the appeal is based.

13 The conclusions reached by her Honour in relation to this aspect of the matter can be formulated this way:

(1) it was clear from affidavits before her that it would not be possible if the appellant returned to Poland for Australian authorities to be able to complete extradition proceedings against him there before the charges he presently faces became spent;

(2) once the charges being faced by the appellant became spent under Polish law, no extradition would be possible;

(3) information from Polish authorities confirms that it would not be possible, however, for the appellant to enter Poland without valid travel documents from Australia or some other country; [I note that the appellant does not presently have an Australian passport]

(4) if the appellant were to enter Poland without appropriate travel documentation he would be liable to be deported as an illegal non-citizen;

(5) he would be deported from Poland to the country from which he arrived, and

(6) any order for deportation would, however, be subject to various rights of appeal in the Polish courts.

14 Her Honour concluded that whilst it was true that without a valid travel document of some kind the appellant would be unable lawfully to travel to Poland, whether or not he would be promptly returned to Australia if he travelled to Poland in breach of any bail condition was a matter of speculation and much would depend upon whether he entered Poland directly from Australia or from another country.

15 Her Honour further concluded that it would be open to the appellant to take proceedings to resist, for some unspecified time, any order for deportation in accordance with Polish law. Her Honour's overall conclusion was that the new material from the Polish authorities did not do any more than confirm these things: firstly, like most countries, Poland required valid travel documents for entry into the country; secondly, if entry was unlawfully obtained then, as with other countries, the authorities would take steps to deport the entrant generally, but not always, to the country from which the entrant immediately arrived; thirdly, there was provision for detention of a person unlawfully within the country and, fourthly, such detention would be liable to challenge by way of legal proceedings in Poland. For these reasons, her Honour did not consider that there was any new material put before her which would amount to a change of circumstances or the discovery of new facts which would trigger a fresh consideration of bail.

16 In my view, her Honour applied the correct test to the appellant's second application. She understood that she had before her material which elaborated upon the situation in Poland, both in relation to the expiration of any limitation periods concerning Australian charges and the effect of illegal entry to the country.

17 I am of the opinion that the learned Judge accurately summarised the effect of the new material before her. I consider that she fully appreciated that there was a preliminary jurisdictional matter that she was called upon to decide, namely whether the new material before her was such as to require her to reconsider the various factors which were previously advanced in support of the appellant's application for bail. It cannot, in my view, be properly contended that her Honour failed to appreciate either the existence of or the totality of the new material that was before her.

18 I turn then to the grounds of appeal. These two grounds are interrelated. The first contends that her Honour erred in law by failing to appreciate the strength and content of the new material in relation to the difficulties or impossibility faced by the appellant in re-entering Poland should he defy any order of this Court granting him bail. The second ground contends that the learned trial Judge took into account, by way of irrelevant consideration, the question of consequence of any limitation period imposed by the Republic of Poland on the ability of the Commonwealth of Australia to obtain an extradition order.

19 As I have already indicated, I consider her Honour clearly understood that there was in fact new material before her and what that material was. She simply refused to accept that the new material made any significant change to situation as she had previously assessed it. In this respect, I consider she was correct. At least it was open to her to reach that view. It was therefore, in my view, open to her Honour to reach the follow conclusions which I paraphrase from her judgment.

(1) It is well known that persons can leave Australia without valid travel documents and/or can obtain travel documents unlawfully. It might therefore be open to the appellant to get into Poland with false travel documents.

(2) Alternatively, if the appellant arrived in Poland without appropriate travel documents he would be liable for deportation as an illegal non-citizen, to the country from which he arrived. If he arrived from Australia, he would be deported back to Australia. If he arrived from a third country he would, however, be deported back to that third country.

(3) If deportation was not immediately determined the appellant might be kept in detention pending deportation and in such circumstances there are various rights of appeal to the Polish courts.

(4) It was therefore speculative to say that if the appellant unlawfully travelled to Poland he would be promptly returned to Australia. Much would depend upon whether he entered Poland directly from Australia or from some other country. Moreover, it would also depend on whether proceedings were taken in Poland to challenge any deportation order.

20 Although it is contended that her Honour took into account an irrelevant consideration in relation to the question of any limitation period imposed by the Republic of Poland on the ability of the Commonwealth to obtain an order for the appellant's extradition, I am of the view that her Honour rightly considered that if the appellant did get into Poland the Australian charges would, within a short period of time, become spent. Once spent, under Polish law no extradition would be possible.

21 For the reasons that I have given, I therefore consider the appellant has failed to make out the two grounds of appeal upon which this appeal is brought. Had I taken a different view and been required to consider afresh whether the appellant ought to be granted bail, I would in any event have refused bail for the following reasons:

22 Although a decision given in relation to bail pending extradition proceedings, the decision the High Court of Australia in United Mexican States v Cabal [2001] HCA 60; (2001) 183 ALR 645 contains a relevant observation in relation to the relevance of flight risk to bail at [61]:

"Absence of a real risk of flight is ordinarily a necessary but not a sufficient condition of bail. When there is a real risk of flight, ordinarily bail should be refused. Further, the risk of flight should be considered independently of the effect of the proposed bail conditions. In this area of law, the history and character of the defendant and the potential punishment facing the defendant are likely to be surer guides to the risk of flight than bail conditions - even rigorous conditions. A person, fearing punishment and inclined to flee, is unlikely to be diverted from that course by the prospect that his or her sureties may forfeit their securities or by stringent reporting conditions. Even if the defendant has to report twice daily to the police, he or she will have a period of 12-14 hours in which to leave Australia."

23 The reasons why I consider the appellant poses a considerable flight risk are these. Firstly, for objective reasons it would plainly be in the interests of the appellant to flee Australia for these reasons: he faces charges of very serious offences; two co-offenders have already received significant terms of imprisonment after pleas of guilty; the prosecution case establishes for present purposes there is a case to answer; the appellant has some family connections with Australia but has not lived here since 1991 and does not have ties which would be such to make it difficult for him to sever connection with Australia.

24 The appellant's closest ties are with Poland, where he went for legitimate business reasons and where he remained in due course for both business and personal reasons. The appellant's wife and home are in Poland. Under Polish law, there is the complication of limitation periods, according to which some charges might be spent if the appellant were to return to Poland, making his extradition back to Australia impossible if that occurred.

25 For subjective reasons it would also be in the appellant's interests to flee. The reasons are that there are no sufficient family links to require him to stay in Australia; he has ties in Poland which do not exist in Australia; and he has engaged in a lengthy course of litigation both in Poland and Australia to challenge extradition proceedings. Whilst no criticism can be made of the appellant for doing that, it is relevant in that it shows that the appellant is unwilling to face trial in Australia.

26 The appellant has been in custody in Australia since approximately 21 June 2003. This means he has spent six months in custody to this point. Prior to that time, he was in custody for several months in a Polish prison awaiting extradition. Whether and to what extent serving time in custody in Poland is a relevant factor to take into account in any sentencing exercise that may be necessary is an open question.

27 As things presently stand, the appellant's case can be listed for trial in this Court on 4 August 2004. That is just under eight months away. If the appellant remains in custody, he will have served approximately 14 months in custody in this country before trial. There is a very real question whether if the appellant spends that period of time in custody before he is tried that would involve unreasonable detention of the appellant pending his trial. I would respectfully adopt, however, what was said by the High Court in United Mexican States v Cabal (supra) at [66] to the effect that it is hardship for any innocent person to be held in custody for a lengthy period of time but there will be cases, particularly where charges are numerous and complex, where detention for a lengthy period before trial is a necessary consequence.

28 There have been many cases in which the question of delay has been considered in the context of the need to show exceptional reasons for bail, whether by way of application for bail pending appeal (Bail Act, sch 1, cl 4), or an application for bail where a serious offence is committed whilst the defendant is on bail for another serious offence (Bail Act, sch 1, cl 3A).

29 In the context of these cases it has been said in this Court that detention of a person presumed innocent by law for a period in excess of a year must be regarded with grave concern (Saka v The Queen (supra) per McKechnie J at [38], and even that the trial of an accused person held in

custody should take place within six months of the time of his or her arrest (Pinkstone v The Queen [2000] WASC 199 per Heenan J at [5]).

30 More recently in Firkins v Director of Public Prosecutions [2002] WASC 203, Pullin J said that the necessity for an applicant to remain in custody for 13 to 14 months was not so excessive as to show exceptional reasons why he should not be held in custody. His Honour pointed out that it must be accepted that time will have to pass before accused persons can be tried and cases cannot be tried immediately.

31 Leaving aside the fact that these cases deal with the need to show exceptional circumstances, they are still generally applicable to the present case. It cannot in my view be said as a matter of course that detention by the appellant in custody for a period of 14 months from the date of his arrival in Australia is such as to constitute such a lengthy period in custody as to demand his release on bail. This, on any view of it, is a very complicated case.

32 The appellant's committal to this Court on 2 February 2004 will mean a six-month delay from the date of committal until trial. For a case which is likely to last in excess of two months, that seems to me to be a very speedy trial in the circumstances of today's court lists. Thus, I would not have concluded that for reasons of delay alone or in combination with any other reasons, the appellant was a person who should be released on bail. It follows that in my view this appeal should be dismissed.

33 ROBERTS-SMITH J: Miller J has detailed the nature of this appeal and the grounds advanced in support of it. I need not repeat what his Honour has said. I do observe, however, that the way in which the appeal was argued on behalf of the appellant did not seem to me to reflect the stated grounds of appeal.

34 The findings of Wheeler J which are challenged are dealt with by her Honour at [10] to [14] of her published reasons for decision of 18 December 2003: Oates v The Queen [2003] WASC 180.

35 I will return to them in a moment but for the present it is sufficient to say that her Honour there first addresses the effect of Polish law on limitations on the charges against the appellant in the context of the problem that would present to Australian prosecuting authorities seeking his extradition from Poland and then addresses the situation with respect to his deportation from Poland. That is, in the context of information concerning the appellant's ability to leave Australia and enter Poland

without, as her Honour put it at [11]: "... a conventional Australian passport obtained in the usual way."

36 The particular finding challenged by the appellant is at [14]. It is that the new material put before her Honour on the second bail application did not amount to a change of circumstances or the discovery of new facts sufficient to trigger a fresh consideration of the appellant's application for bail. That was a finding that the appellant had not brought himself within the provisions of s 14(2a)(a) of the Bail Act 1982 (WA). Miller J has already referred to the terms of that provision.

37 It is common ground before us that for the discretion to consider bail afresh to be enlivened there must be a relevant change in relevant circumstances: Pinkstone v The Queen [2000] WASC 321. It is accepted on behalf of the appellant that any new facts or changed circumstances would need to be of some weight and not as to mere matters of detail in order to justify a reconsideration of bail.

38 In Musarri v The Queen [2001] WASC 200, White AUJ referred to the decision of MacPherson J in Edwards (1988) 35 A Crim R 465. At [10] of Musarri there is set out what purports to be a quote from the reasons of MacPherson J in Edwards. What is there set out, however, is only partly a quotation. The balance of that text within the quotes is White AUJ's summary of what was said by MacPherson J.

39 Furthermore, Edwards concerned legislative provisions which were expressed quite differently to those in s 14(2a) of the Bail Act. Nonetheless, that being said, I do, with respect, agree with White AUJ that s 14(2a)(a) does raise the question whether there are new considerations which were not before the court on the occasion of the previous application when bail was refused, and that a persuasive and satisfying case is required, not one in which the differences disclosed by the additional material go only to matters of mere detail or to considerations which, although not previously raised, would not have been likely to alter the balance to one favouring the granting of bail.

40 This is an appeal against the decision of her Honour on the appellant's second bail application. It is not a fresh application for bail on which this Court is called to exercise its discretion to grant or refuse bail. As counsel for both the appellant and the respondent acknowledged, that situation would arise only if her Honour be shown to have made some relevant error. As I have mentioned, the relevant error is said by the appellant to be that her Honour wrongly concluded that the new material did not constitute new facts or new or changed circumstances sufficient to enliven the jurisdiction under s 14(2a)(ii) to reconsider the appellant's application for bail.

41 As a result of that finding, her Honour had no occasion to reconsider the merits of the appellant's bail application. Were this Court to be satisfied her Honour's finding was in error then, and only then, would it be necessary to undertake the exercise of discretion to decide for ourselves whether or not bail should be granted. If we are not satisfied her Honour has been shown to be wrong in her finding that her jurisdiction was not enlivened then the appellant must fail and there would be no occasion for this court to consider the merits or otherwise of the appellant's application for bail.

42 I accept the appellant's submission that whether the criteria in s 14(2a)(a) are established is to be tested in the framework of the earlier bail application, the evidence then before the court and the matters found to have led to the unfavourable disposition of the initial application.

43 I further accept that there were three factors critical to her Honour's conclusion that the appellant is a flight risk, they being:

(1) the seriousness of the offences charged and the likely disposition on conviction;

(2) the potential effect of the prosecution limitation periods in Polish law; and

(3) the fact that the appellant had made his home in Poland and his closest ties were with that country, or I think to put it better in context in practical terms, that the appellant had no relevantly real ties with Australia but did have practical ties with Poland.

44 The argument put is that the significance of the last two of these was affected by the new material put before her Honour on the second application. It is important to note, however, that although these factors were critical they were not taken by her Honour in isolation, but in combination with the other circumstances to which she referred as bearing on the issue of the risk the appellant might not appear for his trial.

45 The new material relied upon was identified by Mr Beech, counsel for the appellant, as follows:

(a) all border crossings, whether road, railway, seaport or airport were attended by border guards;

(b) all persons entering Poland at a border crossing have their travel documents checked;

(c) a person without a passport is not permitted to enter Poland;

(d) a person who seeks to enter Poland without a passport will be detained and deported to the country from which they arrived, and

(e) in such circumstances, no question of extradition will arise.

46 It is important to appreciate what was put to her Honour on the first application. That has in general been referred to by Miller J already and I will not repeat it all. Some of those matters, however, included, (AB 178) submissions by then counsel for the appellant that the appellant had no travel documents and were he to make his way to Poland, he would have no way of lawfully entering the country.

47 If he were to try to enter, it was submitted to her Honour, the appellant would be refused entry and if he were able to enter and was caught he would be deported. It was submitted that there was no reason to think on the evidence that the appellant "would not be on the next plane back to Australia" as an illegal entrant and that therefore further extradition proceedings were really irrelevant.

48 At AB 187 the submission was again put that there is not a flight risk and that some of the factors indicating that include that after the appellant was released from gaol in Poland he was put on bail conditions there and they included a weekly reporting condition and a requirement that he not leave Poland. It was explained to her Honour that the appellant faithfully honoured those conditions for years. It was submitted further that if he had the inclination or the ability to go somewhere then he would have had more than adequate opportunity to do so, but did not.

49 At AB 190, again, it was reiterated that there was no evidence that suggested the appellant had any ability to return to Poland in such circumstances as would enable the Polish limitation period to expire. Counsel reiterated that the appellant is in Australia with no travel documents and no means of lawfully travelling. He has family and friends in this country who are willing to provide sureties for him and he is himself willing to provide an assurance to the court that he would attend for his trial.

50 Her Honour recognised the principle that for the purposes of new information going to new facts or changed circumstances, any change should be of some weight and not as to mere matters of detail, in order to justify a reconsideration of the application. That was a correct statement of principle. Her Honour then turned to the various factors to which she had regard, although importantly stressing that they overlapped. As I have already said, that I think is an important point to appreciate.

51 She dealt with factors personal to the appellant, noting that although he has some ties of family and friendship in Australia, he had not visited Australia since 1991.

52 She noted that he is a person of significant financial resources. She dealt with the question of the offences and the difficulties of preparation for trial. Having done that, she then turned to the considerations of Polish law, or what she described as practical considerations going to the ability of the appellant to travel, particularly to Poland. She then dealt with the issue of the fresh information going to whether or not the appellant would be able to enter and remain in Poland without valid travel documents from Australia.

53 True it is that the new information in part went to confirm what on the first occasion her Honour had regarded as only speculative about the prospect of the appellant's deportation from Poland without valid travel documents, but her Honour expressly acknowledged that and concluded that the new information did not change her assessment of the risk of flight as it pertained to the appellant.

54 It seems to me what her Honour is saying at [13] of her second decision is that the new information, notwithstanding that it constituted new information confirming that without a travel document the appellant would be unable lawfully to travel to Poland and as to the prospect of his deportation from Poland, should he get there without valid travel documents, did not change her assessment that, objectively, there was a significant concern that he may fail to appear in accordance with his bail undertaking.

55 That was so because her Honour took the view that even with the new information, whether the appellant would be "promptly returned" if he were to travel to Poland, was still a matter of speculation. As her Honour said, "Much would depend upon whether he entered Poland directly from Australia or from another country." She said at [13]:

"It seems that there certainly would be proceedings which he could take in order to resist, for some unspecified time, deportation in accordance with Polish law. How long such proceedings might take is a matter of speculation, and whether they would ultimately be of any use to the applicant would depend upon the state of Polish law at the relevant time."

That conclusion was open to her Honour on the material before her.

56 Counsel for the respondent submitted to us that one concern on the material before her Honour would obviously be that if the appellant were to enter Poland from a country which did not have an extradition treaty with Australia, it would be that country to which he would be deported from Poland if he were deported. That is obviously a realistic concern of the kind to which her Honour was referring when she spoke in that context of the appellant entering Poland from a country other than Australia.

57 It is not disputed that a number of countries which have land borders with Poland are countries with which Australia has no extradition treaty and, of course, the appellant would not have to enter Poland by land nor from a country bordering Poland.

58 It seems to me that, in the end, the argument being advanced on behalf of the appellant really goes to a proposition that her Honour failed to give sufficient weight to the new material; that is to say, she did not accept it as having sufficient weight to change her assessment of the degree of risk of the appellant not appearing for his trial. That is a matter of discretionary evaluation of the evidence.

59 It is not said that her Honour failed to have regard to the new information at all. It is clear that she did, but she concluded it was not of sufficient weight nor import as to cause her to think it would affect her assessment of that factor.

60 I do not need, I think, to repeat the reasons given by her Honour at AB 15 to 17. As counsel for the appellant submitted, the critical aspect of these considerations was the effect that they had on her Honour's assessment of the degree of risk of the appellant failing to attend for his trial if bail were granted.

61 I have already adverted to my view of the way in which her Honour dealt with that. The matters relied upon by counsel for the appellant as set out at [10] to [14] of the outline of submissions do not, in my view, raise new facts or change circumstances not previously considered by her Honour. Those are the matters to which I have already referred as adumbrated as items (a) to (e) inclusive.

62 They may have added more detail but it was, in my opinion, well open to her Honour to find, as she did, that the effect of the new information was not to change in any material respect the position as it had been before her on the first application and on which she had concluded the degree of risk of the appellant failing to attend for his trial was so great as to preclude granting bail.

63 That being so, it follows that the appellant has failed to demonstrate relevant error by her Honour in finding the new material was not such as to enliven the jurisdiction under s 14(2a)(a) to reconsider the appellant's application for bail.

64 I should also say that were I wrong about that and it were necessary for this court to consider the question of bail afresh, I would refuse it for the reasons given by Miller J.

66 WALLWORK AJ: The facts and the relevant prior decided cases have already been referred to by Miller and Roberts-Smith JJ and I will not repeat them.

67 The appellant appeals on the ground that the jurisdictional basis of the first decision to refuse bail had been materially changed by new evidence by the time the second application was heard; further, that the learned judge erred in not recognising that fact.

68 In my view, that submission should be upheld essentially on the basis that on the first occasion the Commonwealth made the submission, as her Honour put it:

"In the relatively near future the limitation period under Polish law in relation to the remaining offences will expire and, should the appellant be able to avoid the determination of these offences in Australia and be able to avoid any further extradition or return to Australia prior to 29 May, he would be able to remain at his home in Poland without incurring any risk of further prosecution for these offences."

"That, as I say, is my present understanding. When one puts those facts together, one has, as it seems to me, a very powerful incentive and one has what I would regard as objectively a

significant concern that the appellant may fail to appear in accordance with his bail undertaking."

69 Her Honour dismissed as speculation the proposition that because the appellant did not have an Australian passport he would be unable lawfully to travel to Poland and that if he were able to do so he would be promptly returned. I emphasise the words that "her Honour dismissed as speculation that proposition."

70 The situation at the time of the second application was fundamentally different due to new information concerning Polish law which was available to the court. Amongst other things, that information confirmed that it would not be possible for the appellant to enter Poland without valid travel documents and that if he did so without them he would be likely to be deported as an illegal non-citizen; further, that were deportation not possible immediately, the Polish courts would issue an order to have him put into a camp or kept in detention pending deportation.

71 It could not be said therefore, as it was said at the time of the first decision, that the appellant would be able to remain for the jurisdictional facts on which the two decisions were based appears from the following extracts in the two respective decisions. In the first decision, the learned Judge said:

"In that context, the Commonwealth makes the submission that in the relatively near future the limitation period under Polish law in relation to the remaining offences will expire and that were the applicant able to avoid the determination of these offences in Australia and able to avoid any further extradition or return to Australia prior to 29 May 2004, he would be able to remain at his home in Poland without incurring any risk of further prosecution for these offences. That, as I say, is my present understanding. When one puts those factors together one has, it seems to me, a very powerful incentive and one has what I would regard as objectively a significant concern that the applicant may fail to appear in accordance with his bail undertaking.

It is submitted in that connection that Mr Oates does not have an Australian passport, that he would be unable lawfully to travel to Poland and that if he were to do so, he would be promptly returned. Those seem to me to be at present matters of speculation."

72 An important consideration in the above passage was that her Honour accepted the fact that the appellant would possibly be able to remain at his home in Poland without any risk of further prosecution. Her Honour then said:

"When one puts those factors together, one has, it seems to me, a very powerful incentive and one has what I would regard objectively as a significant concern that the appellant may fail to appear in accordance with his bail undertaking."

73 Her Honour then dismissed as being at that time matters of speculation the facts that without an Australian passport the appellant would be unable to travel lawfully to Poland and, if he did, he would be promptly returned.

74 In the second decision, the learned Judge stated that the information from the Polish authorities confirmed:

"It would not be possible for the appellant to enter Poland without valid travel documents from Australia or some other country. If he were to enter Poland without such documents, he would be liable to be deported as an illegal non-citizen. He would apparently be deported from Poland to the country from which he arrived so that if he arrived from Australia he would be deported to Australia, while if he travelled via a third country he would be deported to that third country. Deportation may be executed immediately or there may be a deadline given to the illegal non-citizen before which they must depart Poland."

75 In circumstances where deportation is not possible immediately the court will issue an order to have the person put into a camp or kept in detention pending deportation. There is no information about precisely what type of facilities would be used for that purpose. It is also reasonably clear that a decision to deport a foreigner, even under those circumstances, is subject to various rights of appeal in the Polish courts, the time frame for which cannot be defined with any precision.

76 The learned Judge then said that it seemed that the effect of that information "is not to change in any material respect" the position from that on the last occasion. With respect, I do not think that on the second occasion it could be said that the appellant would be able to remain at his home in Poland without incurring any risk of further prosecution for these offences, as had been said in the first application.

77 In her reasons for judgment on the second application, her Honour said that on the first occasion she had noted that the submission that the appellant did not have an Australian passport, and that he would be unable lawfully to travel to Poland, and that if he did so he would be promptly returned, had seemed to her at the time matters of speculation. Her Honour said:

"It now seems clear that without a valid travel document of some kind Mr Oates would be unable to travel lawfully to Poland."

78 Her Honour said that whether he would be promptly returned if he were to travel to Poland "is still, it seems to me, a matter of speculation".

79 The learned Judge concluded that she did not think that the new material could be considered to amount to a change of circumstance, or the discovery of new facts which would trigger a fresh consideration of the application for bail. She therefore dismissed the application. With respect, as I have stated above, I consider that to be an error.

80 If this appeal was allowed, I would allow the application for bail for the following reasons: there is no evidence before the Court that the appellant wishes to abscond from Australia and, in my view, it should not be assumed against him in the absence of such evidence that he has any such desire to do so; second, there is no evidence that he has any forged travel documents or that he wishes to get any, or that he could if he wanted to; thirdly, he is presumed to be innocent and he should not be kept in custody unnecessarily, especially as by the time he comes to trial he will have served 21 months in custody approximately, 7 months in Poland and 14 months in this State; thirdly, I assume that even if he went back to Poland, the Polish authorities would immediately imprison him or expel him. That is because pursuant to the treaties between the two countries he has already been returned to Australia once after a proper extradition process and the Polish laws should not be undervalued.

81 If he returned to Poland illegally in defiance of that country's legal system, it would be improbable that he would be accorded rights under the limitation statutes as applies to those persons lawfully in the country. For those reasons, I would allow bail had this application been successful.