ACT News

David Eastman certain to launch stay application to prevent re-trial, lawyers

David Eastman is almost certain to launch a stay application to permanently stymy attempts to put him on trial for a second time, lawyers say. 

The Office of the Director of Public Prosecutions is expected to tell the ACT Supreme Court on Tuesday it will retry Eastman on accusations he murdered ACT police chief Colin Stanley Winchester in 1989.

Arrest of the Colin Winchester murder suspect, David Harold Eastman, left, at his Reid flat.
Arrest of the Colin Winchester murder suspect, David Harold Eastman, left, at his Reid flat. Photo: Graham Tidy

Such a trial would come almost 20 years after Eastman was first put before a jury for the infamous murder in 1995.

Eastman's counsel was told on Friday of the DPP's plans for a retrial, a decision made months after the ACT Supreme Court quashed his conviction and set him free after 19 years behind bars.

David Eastman at an earlier hearing.  He has spent more than 19 years behind bars.
David Eastman at an earlier hearing. He has spent more than 19 years behind bars.  

But the DPP's decision is now likely to lead to a stay application from Eastman's team, experts believe, which could permanently halt a retrial on the grounds that it cannot possibly be conducted fairly.

That stay application would be most likely to take place in the first half of next year.

Lawyer Michael Kukulies-Smith, of Kamy Saeedi lawyers, said Eastman's legal team would be certainly considering a stay application.

He said the large volume of media reporting and the publicly-available report of Acting Justice Brian Martin's inquiry into Eastman's conviction were likely to feature in any such move.

But Mr Kukulies-Smith, also chair of the Law Society's criminal committee, said accused often face a significant hurdle in permanently staving off a trial.

"It's rare that courts stop the process preventing a final determination of guilt or innocence. It would only occur when there are special or exceptional circumstances," he said.

"However, this case is exceptional in ACT legal history."

The Winchester family, speaking through Victims of Crime Commissioner John Hinchey, said they welcomed a second trial.

Mr Hinchey said the family were left in a difficult position following the findings of Acting Justice Martin.

"A new trial would help resolve those issues," Mr Hinchey said.

Recent law changes made by the ACT Government to limit the use of judge-alone trials have also played into the equation.

The 2011 changes now prevent indictable offences, like murder and rape, going before a judge only.

Mr Kukulies-Smith said the problems with finding a jury free of prejudice would not exist if cases like Eastman's were still able to go before a judge.

"The concern that such a circumstance may arise was raised by both the Law Society and the Bar Association as an issue at the time of the reforms," he said.

"A judge alone trial could have been an out for exactly this scenario. However, the reforms prevent this."

Other problems could also be raised in a stay application. A number of witnesses have died since the first trial in 1995, and some evidence has been lost.

Peter Woodhouse, of Ben Aulich and Associates, said he expected Eastman's defence to seek a stay immediately.

He questioned the DPP's decision to push ahead with the retrial.

"Mr Eastman has already served 19 years in gaol.  That is more than what most get in the territory for murder."

"What public benefit is there in retrying him?"

Ben Aulich, principal of the same firm, said it would be very difficult for Eastman to now get a fair trial.

 "Given forensic evidence has been lost and destroyed, and some witnesses have even died, there is a strong likelihood that Mr Eastman's defence team will file an application for a permanent stay of proceedings," he said.

Eastman's case is due to come before Chief Justice Helen Murrell on Tuesday morning. 

It is expected that the DPP will seek a hearing date from the court.