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

Bail Act 1982 (WA)

Crimes Act 1914 (Clth)

Fisheries Management Act 1991 (Clth)

Supreme Court Act, s 58(1)(b)

His bail varied to allow him to return to Chile pending trial

Respondent : Commonwealth Director of Public Prosecutions

Gillis v Gawned (1992) 8 WAR 211

Jemielita v The Queen (1994) 12 WAR 362; (1995) 78 A Crim R 91

1 STEYTLER & LE MIERE JJ: We have had the considerable advantage of reading, in draft, the judgment to be published by EM Heenan J. We are in general agreement with it, with one exception and subject to one reservation. The exception relates to his Honour's conclusions in respect of the fifth appellant, Roberto Reyes-Guerrero and the reservation relates to the use to which provisions of the United Nations Convention on the Law of the Sea ("UNCLOS") might be put in the circumstances of this case.

2 As to the exception, we have arrived at a conclusion different to that arrived at by EM Heenan J as regards ground 2 of the grounds of appeal, insofar as it relates to the fifth appellant. Ground 2 is that which challenges the decision of the primary judge in declining to treat the applications by each of the appellants separately. In oral submissions before us counsel for the appellants focused, in particular, upon the fifth respondent who was an ordinary seaman on the foreign fishing vessel "Viarsa", unlike the remaining appellants who where officers or senior crew members of that vessel.

3 The fifth appellant, in common with the other appellants, has been granted bail on various conditions (referred to by EM Heenan J) including conditions requiring him to surrender his passport and seaman's papers, to remain within the Perth Metropolitan Area and to deposit a sum of $20,000 in cash by way of security. He, like the other appellants, has complied with those conditions. The variation of his bail conditions which was sought by him, and refused by the primary judge, was one which would see, inter alia, the return to him of his passport and seaman's papers, the grant of permission for him to return to his homeland, Chile, upon specified reporting conditions and the deposit by him of a sum sufficient to cover the cost of his air travel to and from Australia for the purposes of his impending trial. The bail deposit would be liable to be forfeited should he not return for the trial. Similar variations were sought by the other appellants, save that the first appellant, the vessel's Master, was prepared to increase his deposit to a sum of $35,000 and each of the second, third and fourth appellants was prepared to increase his deposit to a sum of $25,000.

4 The primary judge, in his reasons for decision, mentioned that he had been asked to distinguish between the applicants, so far as the respective applications for variations were concerned, but declined to do so upon the basis that "they all fall into the same category of persons who pose a considerable flight risk". We agree that all five appellants pose a flight risk. It would be idle to suggest otherwise. None of them has any connection with Australia. Each of them has a family in his country of origin and each is unable to earn a livelihood in Australia. Most importantly, in no case is there any applicable extradition law which could be relied upon in order to compel a return to Australia. However, it does seem to us that the fifth appellant, while still posing a flight risk, is in a different category to the other four appellants and that the primary judge erred in the exercise of his discretion in declining to treat him as being so.

5 The most important distinction, in our opinion, is that he was a mere deckhand on board the "Viarsa", in contradistinction to the other appellants who were, as we have said, officers or senior crew members. That being so, we consider that it can be assumed, with some confidence, that he would have had little or no say as regards the use to which the vessel was to be put, as to the area in which it was to operate, or as to the course of conduct which it should adopt when challenged by Australian fishing authorities. While counsel representing the respondent suggested that he was charged, notwithstanding his lowly status, because he was said to have been found to have been serving on another vessel suspected of conducting unlawful fishing operations in the Australian Fishing Zone, we are not disposed to accord any significance at all to that alleged fact. That is because he has not previously been convicted of, or even charged with, any offence in that respect.

6 The fifth appellant, who is 34 years of age, is married, with two children aged 13 and 5 years respectively. He ordinarily lives with his family in Chile. His wife is not employed and his family is totally dependant upon him for their financial maintenance. His usual income with his current employer is a mere $1100 per month although he earns a bonus of $2500 during eight months of the fishing season. He earns no income during the off-season, and has no skills, knowledge or expertise in any other trade or occupation than that of a deckhand. While he owns a house in Chile, it has a value of only about $15,000. As at December last year he had no more than $750 in the bank. The sum of $20,000 put up by him by way of security for his bail was loaned to him by his employer at a rate of interest of 7.1 per cent per annum. The fifth appellant and his family will suffer considerable hardship if he is unable to return to Chile and have the opportunity of earning income pending his trial.

7 It seems to us that, when regard is had for the lowly status of the fifth appellant, and his very limited financial circumstances, there is little prospect that the fine imposed upon him, should he be convicted, will exceed the sum of $20,000. Indeed, it may very well be less than that sum, given the factors to which we have referred and the fact that this would be his first conviction. That fact provides some incentive, at least, for the fifth appellant to return to Australia, using the further sum of money to be deposited by him to cover the cost of so doing, for his trial. Indeed, given the fact of the loan, his employer may also have some interest in encouraging him to do so.

8 Section 17(2) of the Bail Act 1982 requires that any conditions imposed on a grant of bail shall not be any more onerous on the defendant than the judicial officer considers is 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. While there is an undoubted public interest in having any person charged with an offence against Australian law face a trial in respect of that offence, in our opinion the public interest is much greater, in the case of the officers and senior crew members of the "Viarsa", than it is in the case of a mere deckhand. In our opinion, in considering the nature of the offence for which the defendant is in custody the offence to be considered is the offence alleged to have been committed by the defendant not the offence in the abstract. For the reasons we have given, the fifth appellant appears to have played a much lesser part in the commission of the offences with which the appellants are charged than the other appellants. That seems to have been recognised by the Commonwealth DPP in deciding not to charge the other deckhands on the "Viarsa". Also, it seems to us that, even given the public interest in ensuring that he face trial, and the fact that there is, undoubtedly, some flight risk in his case, it would be more onerous on him to require him to remain in Australia for the five months or so prior to the trial than is required in the public interest, having regard to his limited status, his difficult financial circumstances, his separation from his family and the bail deposit which has been made by him.

9 We would consequently allow the appeal in his case and vary his bail conditions, by making orders generally as follows:

1. The existing cash deposit made by the fifth appellant by way of a bail deposit in the amount of $20,000 do stand.

2. The fifth appellant is to deposit with the Australian Fishing Management Authority a sum sufficient to cover the payment of his air travel between his home town in Chile and Perth for the purpose of attending the District Court hearing of the charges laid against him.

3. The fifth appellant undertakes that he will not engage in employment other than with his current employer, Navalmar SA, and that he will not return, in the course of that employment, to the Southern Ocean.

4. After compliance with orders 1 to 3 hereof, the passports and seaman's papers belonging to the fifth appellant currently held by the Australian Fishing Management Authority be returned to him.

5. The applicant, if he should return to Chile, shall report within seven days to a consular official to be nominated by the Australian Embassy in Chile and, thereafter, keep that nominated official informed of his whereabouts on each occasion upon which he leaves the town in which he lives.

6. Upon any default in respect of any of these conditions, the appellant is to forfeit his bail deposit of $20,000 as well as the sum provided pursuant to par 2 above.

10 We would be prepared to hear counsel as to the precise form of these orders.

11 That brings us to the reservation to which we have referred. We would prefer to leave open the prospect, not fully argued before us, that, in exercising a discretionary power under the Bail Act in respect of Commonwealth offences under ss 100, 100A, 101 and 101A of the Fisheries Management Act 1991, a court may have regard to treaty obligations under UNCLOS, albeit it has not been adopted by the legislature as part of Australia's municipal law. The principles governing the grant or refusal of bail are set out in part C of sch 1 to the Bail Act. Par 1 thereof reads, relevantly, as follows:

"1. Bail before conviction to be at discretion of bail authority, except for a child

Subject to clause 3A, the grant or refusal of bail to a defendant, other than a child, who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial officer or authorized officer in whom jurisdiction is vested, and that discretion shall be exercised having regard to the following questions as well as to any others which he considers relevant -

(a) whether, if the defendant is not kept in custody, he may -

(i) fail to appear in court in accordance with his bail undertaking;

(ii) commit an offence;

(iii) endanger the safety, welfare, or property of any person; or

(iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;

(b) ..

(c) whether the prosecutor has put forward grounds for opposing the grant of bail;

(d) whether, as regards the period when the defendant is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;

(e) whether there is any condition which could reasonably be imposed under Part D which would -

(i) sufficiently remove the possibility referred to in paragraphs (a) and (d);

(ii) obviate the need referred to in paragraph (b); or

(iii) remove the grounds for opposition referred to in paragraph (c);

(f) ..

(g) whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate."

12 That paragraph, while requiring the judicial officer to take into account the questions identified, expressly empowers that officer to have regard to any other questions which he or she regards as relevant. Undoubtedly, the nature of the offence charged will be a relevant consideration. Here, the offence is, as we have said, one against a Commonwealth Act which, as EM Heenan J has said, gives effect, in part, to treaty obligations arising under UNCLOS. Particularly noteworthy, in our opinion, is the fact that while the legislation imposes very substantial fines for breach of the sections in question ($275,000 in the case of each of ss 100 and 101, and $550,000 in the case of each of ss 100A and 101A) no sentence of imprisonment may be imposed. It seems to us that this is so because of a recognition by the Australian legislature of the positive statement by the executive government of Australia, in the form of ratification of UNCLOS, to the Australian people and to the world that the Executive Government and its agencies will act in accordance with UNCLOS (cf Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 291, per Mason CJ and Deane J).

13 The convention, by article 73, provides as follows:

"Enforcement of laws and regulations of the coastal State

1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.

2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.

3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment.

4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed."

"Prompt release of vessels and crews

1. Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree.

2. The application for release may be made only by or on behalf of the Flag State of the vessel.

3. The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. The authorities of the detaining State remain competent to release the vessel or its crew at any time.

4. Upon the posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining State shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew."

15 These provisions appear quite plainly to provide the flag state with a means of securing the prompt release of a vessel and crew (which, we apprehend, imports a freedom to return to their country, or countries, of origin) arrested for violations of fisheries laws by posting a reasonable financial security: cf the decision of the International Tribunal for the Law of the Sea in the "Volga" case; Australia v Russian Federation, case no 11; 23 December 2002; volume 42 International Legal Materials 159 at par 77.

16 It seems to us that it may be open to a judicial authority, acting under the Bail Act, to take into account, as a discretionary consideration, the evident purpose of articles 73 and 292, in considering whether there should be a grant of bail, and if so any conditions to be imposed on the grant, in respect of offences falling within the purview of those provisions, notwithstanding that those articles do not form part of Australia's municipal law, in circumstances in which there is no legislative provision expressly or impliedly precluding the taking into account of any such consideration. In Teoh, Mason CJ and Deane J said (at 183 CLR 287) that the fact that a convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. It is at least arguable that treaty obligations are permissive relevant considerations which can, but do not have to, be taken into account in exercising a statutory discretion.

17 We should say, in this last respect, that in our respectful submission, the case of Aruli v Mitchell, unreported; FCt SCt of WA; Library No 990161; 31 March 1999, is distinguishable. That case, which has been referred to at some length by EM Heenan J seems to us to have turned upon a somewhat different question, being that of whether imprisonment, as a means of enforcing the fines imposed, was precluded by the provisions of Article 73 of UNCLOS in circumstances in which that imprisonment, empowered by legislation, was imposed as a consequence of the inability of convicted and fined offenders to pay their fines. The appellant in Aruli argued that Article 73 of UNCLOS had been incorporated into Australian law by the Seas and Submerged Lands Act and s 58 of the Sentencing Act could not be applied to permit imprisonment of a convicted person who had not paid a fine because it was inconsistent with Commonwealth law. That issue does not arise here. The appellant does not submit that the Court cannot impose the relevant bail conditions because they are inconsistent with Commonwealth law. The issue here is a different one - are Articles 73 and 292 of UNCLOS relevant considerations to which the Court may have regard in the exercise of its discretion to grant bail and set bail conditions to a person charged with offences against the Fisheries Management Act 1991 (Clth).

18 It is necessary for us to add that we are able to leave open the question to which we have referred because, in our opinion, the answer to it makes no difference to the outcome of these appeals.

19 So far as the first four appellants are concerned, we have mentioned that the first appellant has offered to increase his bail deposit to an amount of only $35,000 and that the second, third and four appellants have been prepared to increase their deposits to an amount of only $25,000. Given their senior status on board the "Viarsa", the circumstances of the chase which have been outlined by EM Heenan J and the obvious flight risk to which we have referred, it seems to us that so limited a bond is not "reasonable" for the purposes of par 2 of Article 73 in the sense that, in each case, it is insufficient to ensure the return of the person concerned to face his trial and quite possibly less than the amount of the fine which might be imposed. While it may, of course, turn out that, if convicted, one or more of them will not be fined more than the amount of the deposit provided, there is at least a real prospect, given the very substantial fines provided for by the legislature, and the circumstances of this offence, that more substantial fines might be imposed. That being so, and given the substantial public interest in securing their attendance at the forthcoming trial, we would not be disposed to vary the bail conditions of the first four appellants in the manner contended for, if it be assumed that regard might be had to the material provisions of UNCLOS in considering the question of their bail.

20 So far as the fifth appellant is concerned, we have already said that we very much doubt that any fine imposed in his case would exceed the amount of his deposit, given his lowly status as a deckhand and his limited financial means. That being so, if regard is had for the provisions of Articles 73 and 292 of UNCLOS, in his case, it would, in our opinion, lend further support to the conclusion that his appeal should be allowed and his bail conditions varied.

21 We would consequently allow the fifth appellant's appeal and make orders, in his case, of the kind suggested, but we would dismiss the appeals brought on behalf of each of the first to fourth appellants.

22 EM HEENAN J: The five appellants are officers and members of the crew of the MFV "Viarsa 1" each of whom has been charged with alleged breaches of the Fisheries Management Act 1991 (Clth) ("FMA"). There are some differences in the charges against the various appellants but, essentially, the common feature is that they were using a foreign boat for fishing in the Australian Fishing Zone ("AFZ") contrary to the provisions of s 100 and s 100A of the FMA.

23 The appellants were charged with these offences on or about 10 October 2003. Each was then released on bail upon various

conditions, including an obligation to surrender his passport and upon a prohibition against leaving Australia. They had a series of appearances from then until October 2003 in Courts of Petty Session in this State making applications for variations of the conditions of bail. Despite some minor, and presently immaterial, variations in the terms of bail there was no variation of the condition to surrender passports nor of the prohibition against leaving Australia. None of the applicants has any family, occupational or other connection with Australia and, each is only in this country because of the arrest of the vessel upon which he was serving in the circumstances which are about to be described. Of the five appellants three are Spanish, usually resident in Madrid, one is from Uruguay usually resident in Montevideo and the fifth is from Chile, usually resident in Santiago de Chile. All five have now been charged on indictment with alleged offences contrary to the provisions of the FMA and their joint trial is presently listed for hearing in October this year and is expected to last about four weeks.

24 By applications heard by Miller J on 19 December 2003 each of the appellants sought a variation of the terms of his bail which, in effect, would permit him to recover his passport and leave Australia upon a recognisance, supported by a surety, to return to Perth for his trial, the date of which had not then been fixed. After receiving evidence and hearing submissions, including opposition by the Commonwealth Director of Public Prosecutions, Miller J dismissed those applications essentially because his Honour was satisfied each of the applicants represented a considerable flight risk, leading his Honour to conclude that, in respect of each applicant, there was a substantial risk that if bail were to be varied as sought, that person would be unlikely to return to Western Australia to appear at his trial as required. Also, as will be seen, his Honour was satisfied that, should any of the applicants breach the terms of his bail and fail to return for trial, it would be extremely difficult, if not impossible, for the Director of Public Prosecutions or other authorities of the Commonwealth to locate that person, or to compel him to return to Australia, in the absence of any extradition law which would apply in the circumstances of these cases. Accordingly, the applications for the variation in the terms of bail were dismissed by Miller J on 19 December 2003.

25 It is from those decisions dismissing the applications for the variation in the terms of bail of each of the five applicants that these appeals have been brought to this Court. A right of appeal, without leave, to the Full Court from a decision of a single Judge refusing bail is available under s 58(1)(b) of the Supreme Court Act 1935 - Lim v Gregson [1989] WAR 1.

26 The conditions of bail of each of the applicants are those set by her Worship Mrs Lane SM in the Court of Petty Sessions at Perth on 31 October 2003 as renewed by Mr D Jones SM on 19 December 2003, namely:

(a) the defendants remain within the metropolitan area of Perth and not approach within 100 metres of an international airport or 50 metres of the water at Fremantle wharf;

(b) the defendants reside at the Flying Angel Club for Seafarers (the British Sailors' Society and the Missions to Seaman WA Inc) 76 Queen Victoria Street, Fremantle, or at accommodation agreed with the supervising fisheries officer of the Australian Fisheries Management Authority ("AFMA"), Mr Tom Morris;

(c) the defendants surrender their passports to AFMA and not apply for any passports;

(d) the defendants report to the supervising fisheries officer in attendance at AFMA, Koolinda House, 1 Port Beach Road, North Fremantle, each Monday and Friday at a time between the hours of 9.00 am and 4.00 pm;

(e) the defendants surrender their seaman's papers to AFMA and not apply for any seaman's papers;

(f) each defendant deposit $20,000 cash with the Clerk of Courts, Court of Petty Sessions at Perth and not be released until the cash deposits are made;

Cash deposits as stipulated by these conditions have been made on behalf of the appellants and each of them has been living in Fremantle under these conditions of bail since October last. However, before Miller J and at the hearing of this appeal, each submitted that he was not truly at liberty because the conditions of bail restricted his movements, required him to remain in Western Australia thus preventing him from returning to his home country and from obtaining work as an ocean-going fisherman or seaman. Because of their particular circumstances a criminal justice visa was granted by the Commonwealth in respect of each of the appellants permitting him to remain in Australia while that visa is in effect. In addition, because none of them had means of support, the appellants applied for and were granted subsistence payments by the Commonwealth Director of Public Prosecutions in an amount of $385 each per fortnight.

27 Since the appellants' unsuccessful applications before Miller J on 19 December 2003 there has been one development which has changed the prospects for the parties which then existed. At the time of the December hearing no date for the trial of the charges before the District Court had been set and counsel had suggested that the trial might then be as much as 18 to 24 months off in the future. That is not the case now because, on 19 March 2004 an application for an expedited trial was made after each appellant had been formally arraigned and pleaded not guilty to the charges. As mentioned, the trial has since been listed to commence on 5 October 2004 and is expected to last up to four weeks. Accordingly, the time for the appellants to remain subject to the appellants' bail conditions in this State is slightly less than six months from the hearing of this appeal.

28 The appellants each had different positions on the "Viarsa" and, as already stated, there are differences in their nationalities and in the charges preferred. Their respective positions are summarised in the following table:

29 Under the FMA 1991 offences against s 100 and s 101 carry a penalty of a fine up to $275,000 and are offences of strict liability. Section 100A and s 101A involve fault-based offences, s 100A concerning intentional use of a foreign fishing boat for commercial fishing in the AFZ without there being in force a foreign fishing licence and recklessness as to those facts. Section 101A involves intentionally having been in charge of a foreign fishing boat equipped for fishing in the AFZ and having been reckless as to those facts. Offences against those two sections carry a penalty of a fine up to $550,000. No sentences of imprisonment can be imposed for any of the offences charged.

30 As an example of fines which have been imposed in other comparable cases there are the decisions in Perez v The Queen (1999) 21 WAR 460; La Ode Arifin & Ors v Ostle, unreported; FCt SCt of WA; Library No 8923; 18 June 1991 at 25 and Akimin & Ors v Cooper, unreported; SCt of WA; Library No 950071; 24 February 1995. These show that, on charges involving multiple counts, defendants have been fined between $10,000 and $68,000 on each count with aggregate fines ranging up to $136,000. In the case of Perez (supra) aggregate fines of $100,000, comprising fines varying from $12,500 to $25,000 on each of six counts were set aside on appeal and aggregate fines of $24,000 (six counts at $4,000) were substituted.

31 As is apparent from the foregoing table, two of the appellants, the captain and the fishing master, each face two charges under the Act, one under the strict liability sections and another under the fault-based sections which carry the higher penalties, whereas the three more junior crew members each face one charge under the strict liability provisions of the legislation.

Variations in bail conditions which are sought

32 The variations of principal significance sought are those which would allow each of the appellants to leave Australia upon (in four of the five cases) increasing the cash already deposited as a condition of bail and, in addition, depositing sufficient additional moneys to secure payment of return air travel costs from their countries of origin to Perth for the October trial. The actual terms so sought are:

1. that each appellant deposit cash by way of bail deposit in the following amounts:

2. the passports and seaman's papers currently held by the Australian Fishing Management Authority be returned to each of the appellants within 24 hours of each executing their bail undertaking;

(i) Ricardo Mario Ribot-Cabrera, upon return to Uruguay report within 21 days to the Australian Consulate in Montevideo and thereafter to report bi-monthly to the Australian Consulate in Montevideo or to a consular official nominated by the Australian Consulate in Montevideo;

(ii) Antonio Garcia-Perez, upon return to Spain report within 21 days to the Australian Embassy in Madrid and thereafter to report bi-monthly to the Australian Embassy in Madrid or to a consular official nominated by the Australian Embassy in Madrid;

(iii) Francisco Fernandez-Olveira, upon return to Spain report within 21 days to the Australian Embassy in Madrid and thereafter to report bi-monthly to the Australian Embassy in Madrid or to a consular official nominated by the Australian Embassy in Madrid;

(iv) Jose Gonzalez-Perez, upon return to Spain report within 21 days to the Australian Embassy in Madrid and thereafter to report bi-monthly to the Australian Embassy in Madrid or to a consular official nominated by the Australian Embassy in Madrid; and

(v) Roberto Enrique Reyes-Guerrero, upon return to Chile report within 21 days to the Australian Embassy in Santiago de Chile and thereafter to report bi-monthly to the Australian Embassy in Santiago de Chile or to a consular official nominated by the Australian Embassy in Santiago de Chile

4. that each appellant not engage in employment whereby he would return to the Southern Ocean;

5. that each appellant not engage in employment other than with his current employer, Navalmar, SA;

6. that each appellant prior to their departure from Australia deposit into the trust account of Leask & Co, barristers and solicitors, the sum sufficient for the payment of air travel between their country of origin and Perth, Australia, for the purposes of attending the District Court hearing of the charges laid against each appellant;

7. that each appellant enter into a specific agreement, pursuant to s 28(2) of the Bail Act 1982 (WA) that upon any default in respect of conditions 3 to 6 above by any appellant the bail deposit of that appellant shall, ipso facto, be forfeited;

8. any other orders which the court deems fit to make.

33 In evidence on the bail applications in the Court of Petty Sessions, and before Miller J, was a statement of facts filed by the prosecution under the provisions of s 100 of the Justices Act 1902 (WA). This is dated 30 October 2003 and is a lengthy document comprising some 72 paragraphs ranging over 25 pages. Very briefly, it outlines that the AFZ as defined by the FMA is a 200 nautical mile ocean zone surrounding Australia and its territories including the Heard and McDonald Islands within the Antarctic convergence of the Southern Ocean approximately 4,100 kilometres southwest of Fremantle and 1,400 kilometres north of the Australian Antarctic Territory.

34 The AFZ around Heard and McDonald Islands includes a Patagonian Toothfish fishery which is a valuable resource, as these fish are in demand in Japan, the USA, Asia and Europe. It needs to be carefully managed to ensure its preservation. The Australian Fisheries Management Authority is responsible for the conservation and management of that fishery and has imposed a series of conditions designed to conserve the fishery and to protect other living species. Vessels may not operate in that fishery without authority from the AFMA and then only subject to compliance with the conditions imposed.

35 On the morning of 7 August 2003 an Australian Customs and Fisheries patrol vessel the "Southern Supporter" then operating in the AFZ in the region of Heard Island and McDonald Island made radar contact with an unknown vessel. Shortly afterwards the "Southern Supporter" attempted to contact that vessel by radio on an international frequency and ordered it to stop and to allow inspection by Australian Fisheries Officers under their statutory powers. No immediate response was received and less than an hour later visual contact with the unknown vessel was made. It was a long line style fishing vessel with a red hull, a white and red wheel house and three masts later identified as the MFV "Viarsa 1". Further attempts were made by the "Southern Supporter" to contact this vessel by radio on established international frequencies and then later by flag signals but the vessel failed to respond and continued on its course to the south. More unsuccessful attempts at contact were made. Radio contact was later established that morning when the "Southern Supporter" was preparing to send a boarding party to the vessel which prompted a reply that personnel from the "Southern Supporter" had no permission to come aboard and that the other vessel did not intend to stop. In the process an officer from the vessel being pursued identified himself as Ricardo Ribot its master, and identified the vessel as the "Viarsa" and said that the vessel was from Uruguay. He denied that the "Viarsa" had been fishing in the AFZ.

36 There then followed a long pursuit of the "Viarsa" by the "Southern Supporter" which lasted until the afternoon of 27 August 2003. By then the "Southern Supporter" had been joined by a South African vessel "John Ross" and by a British Fisheries vessel "Dorada". With these three vessels hemming it in, the "Viarsa" was then boarded by an armed party of South African Fisheries officers from the "John Ross" and an AFMA officer. It is sufficient to say that under the direction of Australian Fisheries officers, this party took control of the "Viarsa" and found an estimated total catch of about 85 tonnes of Patagonian Toothfish on board.

37 The boarding party disembarked from the "Viarsa" on 4 September 2003 and Royal Australian Navy personnel and a Fisheries officer took over and the vessel was then escorted by the "Southern Supporter", with the RAN crew aboard, to Fremantle after stopping to refuel in Cape Town. The "Viarsa" arrived in Fremantle on 3 October 2003. Detailed investigations had been carried out en route and were continued on arrival at Fremantle, leading to the charges which have now been preferred.

38 The pursuit of the "Viarsa" from its initial interception by the "Southern Supporter" until its successful boarding lasted some 20 days followed by a return journey under escort to Fremantle of 37 days including the refuelling stop at Cape Town. As will be apparent, a large deployment of Australian Fisheries and naval resources, together with international co-operation with South African and British authorities, was required to secure the passage of the vessel to an Australian port.

39 In his reasons for decision Miller J recounted these events and concluded that, although clearly warned of the need to stop and to answer to the Australian authorities, the captain of the vessel declined to do so ostensibly because he had been told by some government official in Uruguay that he was to return directly home. His Honour described this as "a very high-handed attitude on the part of the captain". His Honour also held that the pursuit of the vessel took it and the "Southern Supporter" through ice floes and very dangerous conditions and that, notwithstanding all dangers, there was absolutely no intention on the part of the captain of the vessel to stop. Indeed, by 24 August 2003 the masts and decks of the "Viarsa" had been rigged in such a way as to inhibit boarding from a helicopter.

40 His Honour also observed that, since the decision on appeal reducing the fines imposed in the case Perez v The Queen (supra) it is likely that Australian courts may take a different view as to the need for the magnitude of financial penalties to deter unauthorised fishing in the AFZ so that the dimension of the penalties which might be imposed if the appellants were convicted remained an open question. His Honour noted the submission by counsel for the appellants, made in reliance on the decision in Lijo & Ors v The Commonwealth Director of Public Prosecutions [2003] WASCA 4 (the "Volga" case), that in such cases fairness and reasonableness required that people on board such vessels should be able to return to their home country on proper terms and conditions pending trial and then return to Australia for such trial. In particular, his Honour noted and accepted the submission to the effect that:

"The circumstances presently imposed upon the applicants amount to at least economic incarceration, if not also social incarceration, and one can understand and accept the submissions that have been made persuasively on behalf of the applicants in that regard."

41 In substance, however, his Honour identified that the determining factor as to whether or not the conditions of bail should be varied is whether or not the appellants represented a significant flight risk. His Honour cited and applied the decision of Nicholson J in KM v R, unreported; SCt of WA; Library No 7193; 14 July 1988 to the effect that the prosecution bore the onus of establishing that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer it. His Honour also cited United Mexican States v Cabal [2001] HCA 60; (2001) 75 ALJR 1663; and [2001] HCA 60; (2001) 183 ALR 645, for the proposition contained in that judgment at par 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."

The appellants submit that his Honour erred in applying principles from the decision in United Mexican States v Cabal (supra) because that was a case where the applicant was seeking bail following arrest on a warrant, seeking his extradition to Mexico and where a sentence of imprisonment was a significant option as the ultimate penalty. However, it is plain that his Honour appreciated that Cabal was an extradition case but nevertheless, correctly in my respectful view, considered that the decision applied principles of general application in relation to the grant of bail. His Honour also cited and applied the decision of this Court in Lijo & Ors v The Commonwealth Director of Public Prosecutions (supra) where Olsson AUJ at [39] said:

"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 to their homes and will, at the same time, provide a reasonable guarantee of the re-attendance."

But his Honour distinguished the decision in Lijo (supra) on the basis that it did not address the question of flight risk. His Honour concluded by observing that he regarded each of the appellants as a flight risk and that in those circumstances there should be no variation in the terms of their bail so as to enable them to return to their countries of origin. His Honour directly addressed a submission by counsel for the appellants that he should distinguish between the applicants individually but concluded that he considered that they all fell into the same category of persons who pose a considerable flight risk and, for that reason, all the applications were dismissed.

42 It has already been noted that only fines, and not sentences of imprisonment, may be imposed following the conviction of persons for offences under s 100A, s 101 and s 101A of the FMA. Accordingly, if the appellants were allowed to leave Australia on bail pending their trial on these charges and were to breach the conditions of their bail and failed to appear at their trial, it would not be possible for the Australian authorities to obtain their extradition to Australia even if they could be found abroad. As they have no connection with Australia of any kind (except their involuntary presence here to face these charges) if they were to breach their terms of bail and fail to return for the trial, it is most unlikely that they would ever return to Australia in the future or become subject to the jurisdiction of the Australian law enforcement authorities. Unless present in Australia for the trial in October it would not be possible for the trial against any absent appellant to proceed - Criminal Code, s 635. Were this to happen then, not only would any such appellant be likely to escape the consequences of his alleged commission of the offence or offences charged, if indeed they could otherwise be proved to have been committed, but a major public interest in securing the trial of persons charged for offences alleged to have been committed in the Australian Fisheries Zone, and the public adjudication of such changes in an Australian court according to law as part of the exercise of the Australian jurisdiction over the AFZ would be frustrated.

43 Initially, the appellants raised four grounds of appeal from the decision of Miller J. As will be described a little later, as the course of argument developed at the hearing of the appeal the appellants' counsel effectively introduced further reasons upon which he sought to challenge the decision refusing the applications for the variation of bail made in December. In view of the importance of the new issues so introduced, and in the absence of objection by the respondent, the court granted leave for the appellant to add a fifth ground of appeal as then formulated, and for supplementary written submissions addressing that ground to be filed and served within a short period. That has since been done. An amended notice of appeal incorporating this fifth ground was served on 20 April and written submissions from the appellants' counsel and from the respondent's counsel have since been received and considered by the court. Accordingly, the grounds of appeal which have now been raised are:

"1. The Learned Judge erred in law and in fact in concluding that each of the Appellants (Applicants) was a flight risk if bail was granted on the conditions sought allowing each of the Appellants (Applicants) to return to their home countries.

1.1 There was no evidence presented by the Respondent (Complainant), other than in relation to Mr Ribot-Cabrera, that the Appellants (Applicants) sought to evade capture by Australian authorities whilst in the Southern Ocean which would allow the Learned Judge to infer that the Appellants (Applicants) are likely to fail to appear in court in accordance with their bail undertaking.

1.2 The Learned Judge failed to take into account or take into sufficient account the employment, domestic, social and economic circumstances of each of the Appellants (Applicants) coupled with the proposed conditions of bail to apply to each Appellant (Applicant), including the condition that a substantial cash bail deposit be put up, in concluding that the Appellants (Applicants) 'present a very real flight risk for the reasons that the respondent has contended they do have no ties with Australia. They have no assets here, no families here.'

2. The Learned Judge erred in law in declining to treat the applications by each of the Appellants (Applicants) separately.

3. The Learned Judge erred in law in adopting as the test to determine 'flight risk' for the purposes of his consideration of the provisions of clause 1(a)(i) of Part C of the 1st Schedule of the Bail Act 1982 (WA) the High Court decision of United Mexican States v Cabal [2001] HCA 60; (2001) 183 ALR 645 in that the reference in that case to 'flight risk' was made only in the context of extradition cases [where] an applicant has to show the 'special circumstances' requirement in s 21(6)(f)(iv) Extradition Act 1988 (Cth), and as a result thereby effectively reversed the onus of proof from the Respondent (Complainant) to the Appellants (Applicants).

4. The Learned Judge erred in law in not following the test laid down by the Full Court in Lijo & Ors v Commonwealth Director of Public Prosecutions [2003] WASCA 4 at p 12 para 38 (the 'Volga Case') on the determination of the grant of bail under the Bail Act 1982 (WA) to foreign nationals under conditions which would enable them to return to their home country pending the trial of the charges against them, in which case bail was granted to accused persons who were in similar circumstances to the Appellants (Applicants).

4.1 The Learned Judge was mistaken in concluding that in the Volga Case the issue of flight risk was not argued in any detail when in fact the issue of flight risk was one of the issues considered in the appeal: [31] and [34].

5. That in determining an application for the variation of bail conditions the provisions of Articles 73(2) of the United Nations Convention of the Law of the Sea form one of the discretionary matters that the court should properly take into account, which matter was not taken into account, for the purposes of paragraphs 1 & 3 of Part C and paragraphs 1 & 2 of Part D of Schedule 1, and s 17 of the Bail Act 1982 (WA)."

44 It is quite evident that the learned Judge gave very full consideration to whether or not the appellants, constitute a flight risk and expressly stated that he had done so individually. That his Honour did not separately analyse the position of each of the applicants is in no way inconsistent with this approach because of the major factors which were common to them all. All served on the vessel which had refused to stop and co-operate with the "Southern Supporter" when first called upon to do so, and had then attempted to outrun that vessel in an extraordinarily long and hazardous ocean chase over about three weeks, only submitting to eventual boarding when confronted with the combined force of the other vessels which had joined the "Southern Supporter" in the chase and then only when faced with clearly superior force.

45 None of the appellants had any family, business or other connection with Australia. The money which had been posted for their bail for release into the community at Fremantle, subject to the reporting conditions and the prohibition on leaving the country, had been put up by their employer who, clearly on one view of the facts, was instrumental in ordering and directing the attempts to evade capture by the vessel while in the Southern Ocean. It is true that the financial arrangements for the provision of the bail moneys were that, while the employer actually deposited the funds, it did so on behalf of each of the individual appellants on the basis that each was indebted to the employer for the amount deposited and would be required to repay that should there be any default. The payments required were said to be large, having regard to the earnings of these men.

46 It cannot be overlooked that the Patagonian Tooth fishing trade is extremely lucrative, that there was a large catch on board this vessel and that the cost of posting bail for members of the crew might possibly be regarded as an additional, but occasional, overhead expense of an operator who is prepared to take the chance of detection and capture as and where necessary. The sustained attempt by the vessel to evade capture, while it was known to be in radio contact with the owner and others in Uruguay gives rise to this implication. Nor do I consider that the appellants' submission that for the appellants, other than the Captain, Ribot-Cabrera, there was no evidence presented that they had individually sought to evade capture. The fact of the matter is that, save for the fifth appellant, all the appellants were officers or senior crew members, and that the attempt to evade capture involved a sustained and co-operative effort of all the officers and crew on the vessel. That the crew members were no doubt obliged to obey orders does not mean that they are not responsible for their own actions, although that fact may be quite significant if the point is ever reached where factors of mitigation need to be evaluated. Apart from these five, the other members of the crew who had originally been detained at Fremantle have been allowed to leave Australia and return to their homelands. The fifth appellant, an ordinary seaman, was found to have been serving on another vessel suspected of conducting unlawful fishing operations in the AFZ and it may be for that reason that he has been charged with offences along with the senior members of the crew. It might possibly be the case that the fifth defendant has a good defence to these charges but that would not excuse him from standing trial nor remove the need to ensure that any bail conditions are reasonably sufficient to ensure his attendance at trial. I do not consider that any aspect of the first ground of appeal has been made out.

47 I have already canvassed the manner in which the learned Judge dealt with these applications pointing out that, in the circumstances before him, the common factors of all the appellants made it entirely appropriate and acceptable for his Honour to deal with the applications collectively but that, in fact, his Honour expressly directed himself of the need to deal with them individually but saw no significant distinguishing factors in this regard. For that reason, the second ground of appeal must also be rejected.

48 The third ground of appeal contends that there was a misapplication of the test to determine "flight risk", for the purposes of the first Schedule of the Bail Act by reference to the decision in United Mexican States v Cabal [2001] HCA 60; (2001) 183 ALR 645 because that case related to bail sought for a person facing extradition. Miller J expressly noted that factor, and the associated factor of the possibility of eventual imprisonment for Cabal, when evaluating the application of that case at the December hearing. His Honour also made specific references to a case dealing exclusively with bail for persons faced with charges for alleged offences under the FMA, namely Lijo & Ors v The Commonwealth Director of Public Prosecutions (supra). I do not consider that there has been any error or misapplication of the alleged test for "flight risk" in the present case, nor do I consider that there is any established principle for determining whether or not there is a "flight risk". That is no more than an issue of fact to be resolved by determining the degree of risk that a person will breach any terms of bail set and fail to appear at trial having regard to his or her particular circumstances including the risk of consequences and other incentives confronting that person in the particular case. There is simply nothing to suggest that Miller J made an error of any kind in concluding that there was a "flight risk" presented by each of these appellants. Accordingly, this ground of appeal must also be rejected.

49 The fourth ground of appeal contends that the learned Judge erred in law by failing to follow the test for the determination of the grant of bail in like circumstances laid down by this Court in Lijo & Ors v Commonwealth Director of Public Prosecutions (supra) at 12. Miller J was referred to this case in the course of argument and expressly made reference to it in his reasons for decision concluding, however, that it did not address a "flight risk" which had featured so prominently as the risk of flight did in the present case. Taking his Honour's remarks in context it is evident that in this case Miller J considered that the risk of flight was more significant than had evidently featured in the consideration of the applications in the "Volga" case and that in view of other decisions which established the rule that where there was a significant risk that the person applying for bail would flee the jurisdiction and not return, that was the prevailing factor so that terms of bail which might allow this to happen, should be refused. His Honour correctly set out that the onus of establishing the existence of a significant risk of flight was upon the prosecution and there was no error in the identification of the onus of proof in this respect as contended by the appellants. His Honour expressly concluded that he was satisfied that the respondent had discharged the onus of establishing the existence of flight risk. It is clear that the absence of any possibility of obtaining the return of the appellants to this jurisdiction by any form of extradition, in the event that they breached the terms of their bail, was also a significant factor in that conclusion.

50 The offences charged are plainly regarded as serious by the Parliament of the Commonwealth, as can be seen from the magnitude of the pecuniary penalties which may be imposed. It is a principle of general application, with regard to bail, that the gravity of the offence charged may generally be regarded as increasing the risk of failure to appear at trial - WCVB v The Queen (1989) 1 WAR 279 per Ipp J and Lim v Gregson [1989] WAR 1. These two cases were applications for bail by persons charged with what could be designated as serious offences, in Lim v Gregson (supra) there was a charge of wilful murder. In those cases, upon conviction, long periods of imprisonment could be expected to be imposed. For that reason it might said that those cases form a special category and, indeed, such a category of cases has been recognised where an applicant for bail must demonstrate exceptional circumstances - see Pinkstone v The Queen (2000) 119 A Crim R 462. However, it must still be recognised that these are illustrations of the wider principle that the worse the potential consequences facing the person charged with a criminal offence, the greater is the incentive for that person to abscond so that, correspondingly, the greater is the need for a person seeking bail which would involve a risk of flight, to demonstrate that he or she will answer to the obligations of bail and attend the ultimate trial.

51 In cases where the consequences of conviction are likely to involve very long terms of imprisonment then the more obvious is this need for the applicant to show special or exceptional circumstances justifying the grant of bail so that, in the absence of such circumstances, bail may be refused and the person charged may have to remain in custody pending trial. The decision of Miller J in this regard is plainly an application of this general principle and no error has been demonstrated by the appellants as asserted in their fourth ground of appeal.

52 The circumstances under which the fifth ground of appeal was added at the hearing of this appeal and supported by written submissions made by the parties after the hearing has already been described. The issues raised by this ground were not raised in any form before Miller J and it is therefore necessary to consider how they may come to be addressed now. The potential anomaly arising by addressing such a new ground of appeal is that this Court is being asked to reverse a decision which has been made which, as the examination of the original grounds of appeal so far undertaken has demonstrated, was plainly correct, and to do so for reasons which the Judge at first instance was never asked to address.

53 The general rule is well-known, namely, that parties are bound by the conduct of their cases and the issues which they have chosen to agitate before a court and are, subject to some exceptions, not permitted to introduce on appeal issues which could have been raised at first instance - O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310. However, one of the exceptions to this practice is that a point may be raised for the first time on appeal if it is one of law or construction which has the potential to affect the outcome of the case and the determination of which could not have been affected by any evidence or other plea which might have been raised against it at the trial or earlier hearing - Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480; Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 438 and Green v Sommerville [1979] HCA 60; (1979) 141 CLR 594 at 607 - 608.

54 In the present case, by the new ground of appeal the appellants seek to argue that, when considering the application for the variation of bail, the court should take into account the fact that the FMA was enacted by the Parliament of the Commonwealth to implement a part of the United Nations Convention of the Law of the Sea (UNCLOS) and, in particular, that Article 73(2) of the Convention provides as follows:

1. The Coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.

2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.

3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment.

4. In cases of arrest or detention of foreign vessels the Coastal State shall promptly notify the Flag State, through appropriate channels of the action taken and of any penalties subsequently imposed."

As the question of whether or not an application for bail, or an application for the variation of conditions of bail, for persons charged with offences against the FMA, should be affected by any consideration of the Treaty provisions is plainly a question of law, the outcome of which could not be affected by any evidence which might have been led or other defences put by the respondent at the original application, this ground falls within the exceptions mentioned and accordingly can be considered on this appeal.

55 There are, however, additional features of this case which, in my opinion, produce the same consequence. An application for bail pending trial, or a variation of the terms of the bail, can be made and repeated notwithstanding that it has previously been rejected or granted on restricted terms. As it is a matter which affects personal liberty a court can and will entertain any such application whenever made - Bail Act 1982, s 14 - although this will necessitate an obligation for the applicant to establish that new circumstances have arisen or have changed since the jurisdiction was first invoked or that he failed adequately to present his case for bail on the first occasion.

56 It is also the case that the Full Court may treat an appeal from the decision refusing bail, or a variation in the terms of bail previously set, as a new application - Lim v Gregson (supra) per Kennedy J at 25. Accordingly, there are these two bases upon which this Court may consider the fifth ground of appeal, raising as it does a fresh issue, notwithstanding that in doing so this might lead to the result that a decision at first instance, which was correct on the issues raised before the learned Judge, could be varied on the appeal where no error was shown in the decision under appeal - see Theseus Exploration NL v Foyster [1972] HCA 41; (1972) 126 CLR 507 per Stephen J at 523, Barwick CJ at 514 and Gibbs J at 515. The alternative would be to dismiss the appeal on the grounds originally raised, leaving the appellants to renew their applications for variation of bail before a single Judge on the basis of the new ground. Not only would that involve much additional effort and expense, and occupy precious time resources of the court, but it would not be in keeping with the policy behind s 24(7) of the Supreme Court Act requiring the court, as far as possible, to deal finally with all matters in controversy between the parties and to avoid multiplicity of proceedings - compare Re McBain; ex parte Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 per Hayne J at 467. I consider that it is, therefore, preferable that this issue should be considered and determined by this Court now that it has been raised, notwithstanding that it was not raised by the appellants on the original applications.

57 The FMA (1991) implemented in part the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America signed at Port Moresby on 2 April 1987 - see s 4 and Sch 1 of the Act (see also s 104). The Act also provides for the implementation of the "Fish Stocks Agreement" which is annexed to Sch 2 to the Act and which means the "Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks". That Agreement, as reproduced in Sch 2 to the Act does not, however, contain any incorporation of Article 73 of UNCLOS which is relied upon by the appellants in relation to this aspect of their submissions.

58 The United Nations Convention on the Law of the Sea (UNCLOS) was adopted by the Third United Nations Conference on the Law of the Sea and was signed for Australia on 10 December 1982. An instrument of ratification was deposited for Australia on 5 October 1994 including ratification of Article 73 - see Australian Treaty Series 1994 No 31 - which designated that the treaty came into force generally and for Australia on 16 November 1994. It follows from this that while parts of the 1982 UNCLOS have been expressly incorporated in the provisions of the FMA, and hence have become part of the domestic law of Australia, not all parts of the treaty have been so incorporated notwithstanding that Australia is a signatory to, and has ratified, the entire treaty. Article 73 remains of that status not being incorporated as part of the municipal law of this country.

59 This relationship between the FMA and the UNCLOS in relation to other provisions under the Act has been recognised in Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 per French J which dealt with applications for the forfeiture of the catch found on board the vessel "Volga", the same vessel which was the subject of the litigation in Lijo & Ors v The Commonwealth Director of Public Prosecutions (supra), but that decision did not deal with the question of whether, and if so to what extent, the interpretation of the provisions of the statute were affected by the terms of the Treaty.

60 That very question and, in particular, the significance of Article 73 of the UNCLOS Treaty was considered by this Court in Aruli v Mitchell, unreported; FCt SCt of WA; Library No 990161; 31 March 1999 (Kennedy, Pidgeon and Murray JJ). Shortly stated, the ratio of that decision is that where fines are imposed on a person convicted of an offence established by s 100 and s 101 of the FMA (1991) by a Western Australian Court of Petty Sessions, and where orders for imprisonment of each offender are also made for a specified period or until the fine was paid, those sentences of imprisonment are validly imposed and can be enforced under Australian law notwithstanding that the penalty of imprisonment is precluded under UNCLOS Article 73. The reason is because that Article is not part of the municipal law of Australia.

61 The submissions made by the appellants in relation to the significance of Article 73 of UNCLOS are, in my view, determined by the ultimate decision and the reasons given in Aruli v Mitchell (supra). As these issues were dealt with so comprehensively in that earlier decision I can, with respect, do no better than to set out the following passages from the judgment of Kennedy J who agreed with the judgment of Murray J with whom Pidgeon J also agreed. Kennedy J said:

"Stephen J considered the status of treaties entered into by the Australian Government in Simsek v MacPhee (1982) 148 CLR 636. At 641, he said:

'Accepted doctrine in this Court is that treaties have "no legal effect upon the rights and duties of the subjects of the Crown" - Chow Hung Ching v The King [1948] HCA 37; (1948) 77 CLR 449 at 478; aliens are in no different position - Bradley v The Commonwealth [1973] HCA 34; (1973) 128 CLR 557 at 582.'

At 641-642, he explained, '(t)he reason of the matter is to be found in the fact that in our constitutional system treaties are matters for the Executive, involving the exercise of prerogative power, whereas it is for Parliament, and not for the Executive to make or alter municipal law : Wade & Phillips, Constitutional Law, 8th ed (1977), p277. Were it otherwise "the Crown would have the power of legislation" : Mann, Studies in International Law (1973), p328'.

The position was expressed succinctly by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273. They said, at 286-287:

'It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.' (footnotes omitted)

It was common ground in that case that the Convention in question had not been incorporated into Australian municipal law. Their Honours went on to say, however, at 287:

'But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law.' (footnote omitted)"

Kennedy J also explained that merely because a treaty, in part or in whole, was included in the schedule to an Act did not incorporate the treaty into municipal law - Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 305, 321 and 361 and that it is plainly the case that Article 73 of the UNCLOS Treaty has not been so incorporated. Subsequent authorities are to the same effect: Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 77 ALJR 699 where it was held that on no view can the doctrine of "legitimate expectation" give rise to substantive rights rather than procedural rights.

62 In Aruli v Mitchell (supra) Murray J went on to explain that by s 15A(1) of the Crimes Act 1914 (Cth) the laws of a State relating to the enforcement and recovery of fines apply to persons convicted in that State or Territory of a federal offence in relation to the punishment of such federal offence "so far as those laws are applicable and are not inconsistent with the laws of the Commonwealth". It is also the case that in these present prosecutions s 68 and s 79 of the Judiciary Act 1903 (Cth) pick up and apply the laws of Western Australia relating to the arrest and custody of persons charged with Commonwealth offences, and the laws of each State relating to procedure which are then applied as Federal law - Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162 at 165 but, in that regard, the State law so applied as Federal law applies as far as applicable or except as otherwise provided by a law of the Commonwealth or by the Constitution - see per Steytler J in Re Grinter; ex parte Hall [2004] WASCA 79 at [86] - [106].

63 The question, therefore, becomes whether there is any provision in the FMA, or in any other law of the Commonwealth or in the Constitution, which would prevent or qualify the applications of the provisions of the Bail Act 1982 when dealing with the custody of persons charged with a breach of provisions of the FMA pending their trial before the District Court of Western Australia in accordance with the applicable laws of procedure. The short answer is that there is no such provision in any law of the Commonwealth or in the Constitution which would prevent such offenders being held on bail, the terms of which restrict their liberty of movement and prevent them from leaving Western Australia pending trial, even to the extent that bail may be revoked entirely if the circumstances so warranted. The availability of imprisonment in default of payment of the fine which was upheld in Aruli v Mitchell (supra) involves the application of the same principles and I do not consider that there is any ground upon which that decision can be distinguished in the present circumstances.

64 It is undoubtedly the case that applicants, in the position of the present appellants, may have a legitimate expectation that when charged with or convicted of offences against the provisions of s 100, s 101 or s 101A of the FMA, the procedure relating to their release pending trial, and the enforcement of any orders for fines following a conviction will take into account the provisions of the Treaty that imprisonment, and restrictions on personal liberty, are not contemplated as sanctions. However, the power of any Australian court applying this legislation to resort to imprisonment in default of payment of a fine which is imposed, or to create reasonable restrictions upon the freedom of movement of persons released on bail pending trial, remains and is not restricted by any of the provisions of the Treaty.

65 This means that the decisions of the International Tribunal for the Law of the Sea (ITLOS) cited by the appellants, namely the "Volga Case": Australia v Russian Federation (case No 11, judgment 23 December 2002, vol 42 International Legal Materials p 159) and the "Camouco Case": Panama v France (case No 5, judgment 7 February 2000, vol 39 International Legal Materials, p 66) can have no application for Australian municipal law. In the end, it may be said that the Treaty, partially implemented by the FMA, the provisions of that Act itself, and the legitimate expectation of any person charged with an offence under that Act, all favour non-custodial treatment of persons charged with offences or persons convicted of offences under the legislation subject always, however, to the prevailing interests of the State to prosecute before an independent court persons charged with such offences and to secure their attendance for the trial.

66 In the end, this means that discretionary power must be exercised by any court dealing with an application for bail by a person charged with such offences and, as has been shown in the decision of this Court in Lijo & Ors v The Commonwealth Director of Public Prosecutions [2003] WASCA 4, there may be found discretionary considerations which justify the release on bail of a person charged under terms which will permit him or her to return to his country of origin pending trial. Whether those factors exist in any particular case is a decision for the Judge or Magistrate dealing with the application for bail. One of the established reasons to restrict the freedom of a person charged with such offences pending trial, is the risk that he or she may not return to Australia to face trial. That was the discretionary consideration which Miller J was required to evaluate in this case and his Honour was satisfied that there was a real risk of flight which did not justify a variation to the terms of bail. As the decision in Lijo & Ors v The Commonwealth Director of Public Prosecutions (supra) demonstrates there are circumstances in which a contrary conclusion is justified but there is nothing which has been demonstrated in this case to show that the discretion exercised by Miller J miscarried, or was exercised with regard to any erroneous or irrelevant principle of law. For these reasons I do not consider that any of the arguments made by the appellants under the fifth ground of appeal has been established. Accordingly, I would dismiss these appeals.

• The Charges
• Variations in bail conditions which are sought
• Background to charges
• Decision under appeal
• The grounds of appeal
• New ground of appeal