If and how will the AFP pursue Abu Quassey when his short jail sentence is completed on 1 January next year? Last night Commissioner Keelty indicated that there is no current intention to prosecute Quassey over the sinking of SIEVX. Our understanding is that Australia can only indict Quassey if it can be proven beyond reasonable doubt that SIEVX sank outside Indonesian territorial seas - ie within international waters.
This is a key issue and it is one of the reasons that the CMI Report was such a disappointment.
By the end of its work, the CMI Committee had four pieces of strong evidence that SIEVX sank in international waters and in Australia's declared border protection operational zone:
These four pieces of strong evidence point consistently to SIEVX sinking in the same area between 50 and 60 nautical miles south of Java, well inside the Australian operational zone and well into international waters. And yet the CMI Majority Report chose to sit on the fence about this crucial issue, giving equal weight to two less substantive (and in one instance misrepresented) pieces of evidence that indicated the boat may have sank in Indonesian territorial waters. (See CMI Report paras. 8.5, 8.144 [8.145 in hard copy report])
First, 'PM and C email traffic of 24 October' [p1, p2, p3] that the vessel capsized between Java and Sumatra. On looking up this document, we find it was actually a 'preliminary' internal email sent on the morning of 23 October and thus clearly having far less evidentiary weight than the two substantive circulated intelligence reports later that day.
The Report secondly refers to advice provided to the Prime Minister on 24 October, which referred to the boat sinking in 'Indonesian waters'. But on looking into this, we find it is frail evidence indeed. It relies solely on Jane Halton's oral testimony on 30 July 2002 (CMI final Hansard, pages 2127-2137). Halton claimed that an inter-agency report was produced in PM and C and sent to John Howard on 24 October. She declined to table the report, saying it was not 'her gift' because interdepartmentally sourced. She declined to name the agency that provided the information. She declined to name the author of the report, who she later said was currently on long service leave overseas. To cap it all, she covered herself that the report's sub-heading 'Boat sunk in Indonesian waters' did not necessarily mean territorial waters; she said it could equally have referred to the Indonesian so-called 'search and rescue zone' which extends to south of Christmas Island!
It will be a bitter irony indeed if prosecution of Quassey cannot proceed because it cannot be proved that SIEVX sank in international waters...
