An ACT law shift to abolish judge-alone trials for indictable offences could backfire on the government by preventing a fair retrial for David Eastman, a legal academic says.
Subscribe now for unlimited access.
$0/
(min cost $0)
or signup to continue reading
Defendants accused of serious crimes – such as murder or rape – previously had the right to choose whether their trial would be heard by a judge or a jury in the ACT Supreme Court.
But the ACT Legislative Assembly in 2011 passed new laws that made jury trials the default for indictable offences.
The old system was introduced in the 1990s to give defendants the right to waive a jury trial where media coverage and community prejudice might prevent a fair trial, or to avoid jurors being bogged down by complex legal arguments.
Attorney General Simon Corbell said at the time the change had been necessary to reduce delays in hearing cases in the Supreme Court.
But University of Canberra justice and criminology associate professor Lorana Bartels said the changes now mean a fresh trial of Eastman would be before a jury, which posed an issue of prejudice.
"The prospect of not being able to find 12 people who can bring a fair and impartial mind has always been a real issue in murder trials in the ACT," Dr Bartels said.
"But for Eastman, it's not just a possibility, but a high likelihood.
"That would make defence counsel's argument, that it's impossible for Eastman to get a fair trial and consequently he should get a permanent stay, much stronger."
Canberra criminal lawyer, Michael Kukulies-Smith, from Kamy Saeedi Lawyers, agreed it would be difficult to find jurors in the territory untouched by the 25-year legal saga.
"The association of Mr Eastman to Colin Winchester and his murder is almost part of the Canberra psyche," Mr Kukulies-Smith said.
"Irrespective of individuals' beliefs of his guilt or innocence, nearly all Canberrans associate the two names together."
Mr Kukulies-Smith said he expected the DPP would pursue a new trial, and Eastman's legal team to launch a stay application in response.
"There's a lot of momentum in the DPP and AFP to proceed with a new trial, evidenced by how staunchly they defended the original conviction," Mr Kukulies-Smith said.
"The stay application is likely to centre on the availability of evidence and witnesses after such a long time, and the large and often prejudicial media coverage of Mr Eastman."
Prejudicial issues aside, Dr Bartels said Canberra prosecutors must also overcome a two-step policy process in deciding whether to seek a second trial.
According to prosecution policy, posted on the ACT DPP website, the first step to consider in making a decision to prosecute is to ask whether there is a reasonable prospect of conviction.
The policy then outlines 16 factors to weigh up within that question, including are the witnesses available to give evidence, and the strength of the evidence.
The second consideration is if the prosecution is in the interests of justice.
There are 22 factors to then consider, including the likely length and expense of the trial.
Dr Bartels said the fact Eastman has already spent 19 years in jail for the crime would also be a relevant factor under consideration.
"It's extremely complicated," Dr Bartels said.
"Logistically, it would be well beyond ACT DPP and ACT Policing resources … to go back to the beginning and say 'What actually did go on that day in 1989?'
"Would that mean a further budgetary allocation to deal with it and would that then mean delays for other cases?
"If so, at the expense of what other justice related issues?"
