Navy personnel who seized and destroyed an Indonesian fisherman’s boat under the mistaken belief that he had been illegally fishing did not search his boat properly, a judge has ruled.
In reasons published this week, Justice John Mansfield of the Federal Court said the Navy witnesses were not as reliable as the boat owner and captain, Sahring.
His engine had broken down and he was drifting in Indonesian waters in April 2008 when HMAS Broome approached and boarded on the suspicion that he was illegally fishing for trepang, or sea cucumber.
The seabed there, and the marine life that rests on it beneath Indonesian waters, belong to Australia.
But Sahring, 43, from Kupang in West Timor, said his boat was strictly for catching groper and snapper, which Justice Mansfield upheld.
The Navy seized the boat and set it alight, which Justice Mansfield ruled was invalid as no offence was committed.
Sahring was a reliable witness, he said, but doubted the evidence given by Chief Petty Officer Boatswain Glenn Peck and Petty Officer Boatswain Peter Morrison, saying they had colluded on their evidence but denied doing so to the court.
This caused Justice Mansfield to doubt their other evidence, saying they may have made assumptions about the significance of equipment they saw, or been superficial in their observations.
They did not search the boat thoroughly enough, there was no other direct evidence of fishing for trepang and no trepang was found on board or in the possession of divers, he said.
The way Sahring was questioned, via English-Indonesian language cards, was limiting, Justice Mansfield said.
“CPOB Peck was listening only for what he wanted to learn, without regard to the particular circumstances and the terms and context of the answers.”
Justice Mansfield awarded Sahring $44,000 in compensation for the destruction of his boat, for the loss of income, and for some of the three months he was detained in a Darwin immigration centre.
But he also found it was not unlawful for Customs to take Sahring and his crew to Australia once their boat had been destroyed.
Lawyers for Sahring had been seeking $300,000 for false imprisonment and damages for his destroyed boat.
The compensation ruling – the first of its kind – has now set a precedent for other Indonesian fishermen accused of illegal fishing in Australian waters.