The court charged with deciding convicted killer David Harold Eastman’s fate has thrown out an ACT law which prescribes how the matter should be handled.
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The decision gives the Office of ACT Director of Public Prosecutions a last chance to keep Eastman behind bars.
The full bench of the ACT Supreme Court found on Monday the DPP had the right to be heard on whether Eastman’s conviction for the 1989 murder of ACT police chief Colin Stanley Winchester should be quashed.
The DPP indicated it would argue against the findings of the Eastman Inquiry – which recommended the conviction be overturned – and seek to have the life sentence confirmed.
The matter will now go to a two-day hearing next month.
Earlier this month, the full bench called for submissions on whether it had the power to follow the recommendation to quash Eastman's conviction, to do nothing, or to order a retrial.
Lawyers for Eastman, the DPP, the ACT government, and Commonwealth were asked to provide submissions on how to interpret the legislation governing the inquiry system.
The legislation said the full court "may have regard only to matters stated in the report" and "must not hear submissions from anyone".
Eastman’s counsel, Shane Gill, argued the DPP had already been given fair opportunity to respond during the inquiry.
But lawyers for the DPP and Commonwealth argued the legislation contradicted procedural fairness and was inconsistent with the constitution, which guaranteed the independence of the courts.
The three judges - Justice Steven Rares, Justice Michael Wigney, and Acting Justice Dennis Cowdroy – found the legislation did not apply to the full court’s exercise of power as it was fundamental for courts to hear parties involved.
The judges also found the ACT DPP, as party to the original conviction, should be party to the proceedings.
Justice Rares said the ACT Attorney General, Simon Corbell, could also seek to intervene and be heard. The matter was listed for mid-July.
The DPP requested access to all documents used by Acting Justice Brian Martin during the Eastman Inquiry, including confidential sections of the report and Australian Federal Police subpoena material.
But the court ordered all non-confidential documents be supplied.
The AFP were asked to prepare claims of privilege or public interest immunity by early next month.
Access would then be argued at the hearing.
Eastman – who listened to proceedings via audiolink – interrupted the proceedings in the afternoon to implore the court to abandon the constitutional argument and decide on his fate.
Eastman told the court this weekend marked two significant anniversaries: 19 years since he had been incarcerated and one month since the publication of the Martin report.
“You would think in the month since the report, the court would move quickly to take action on the recommendation,” Eastman said. “Instead, the court is bogged down in preliminary issues.”
He said the DPP’s bid had been a "vexatious, delaying tactic" to keep him in jail longer than necessary.
“We’re only here today because the Martin report recommended to quash the conviction,” Eastman said. “If he recommended the conviction stand you would not have heard a squeak from the DPP or a whimper from the Commonwealth.”
