David Eastman will be retried on a charge of murdering Assistant Commissioner Colin Winchester outside Winchester's house in Deakin in January 1989, the ACT Director of Public Prosecutions, Jon White, SC, informed counsel for Eastman late on Friday.
Mr White said he would be seeking a date for hearing of the trial when the matter comes before the ACT Supreme Court on Tuesday. Sydney barrister Murugan Thangaraj, SC, has been engaged to prosecute the case.
Under ACT law, the trial must be by jury.
"Mr Eastman is entitled to the presumption of innocence. Pending the trial, the DPP will make no further comment about the matter," Mr White said on Friday night.
The DPP's announcement comes six months after an independent review of Eastman's 1995 conviction for the murder concluded Eastman had been denied a fair trial and a fair chance of acquittal. The review was scathing about the quality and credibility of forensic evidence from a former forensic scientist seeming to link gunshot residue said to have been in Eastman's car to residue at the murder scene. Former Justice Brian Martin, who conducted the inquiry, was also highly critical of police investigators, harassment of Eastman and of the fact Eastman's team was not told of material that could have helped him.
Justice Martin had recommended that the murder conviction be quashed and Eastman, now 69, be released after serving 19 years in jail. In making these findings he had considered and rejected arguments made by counsel for the DPP and for the AFP that he should affirm the result. They had argued even if the dubious forensic evidence were completely dismissed, there was still enough evidence upon which Eastman could be found guilty beyond a reasonable doubt. After the report was published, they made the same arguments to a full court of the Supreme Court. The court decided to quash the conviction but to leave open the possibility of a new trial.
The evidence used in the 1995 murder case consisted primarily of witness statements gathered immediately after the murder. All of the police witnesses have long retired from the AFP, and some are dead. Some other witnesses are also dead. Many exhibits have disappeared.
The DPP's decision to proceed with a fresh trial presumably follows a fresh review by investigators of the evidence that is still available, possibly fresh evidence and scientific examinations of exhibits conducted since the Martin report, and a review by lawyers of the state of the brief.
But just who conducted any such investigations, or who reviewed the material, is not yet known. Neither the AFP nor the DPP conducted fresh investigations or independent reviews of the case before or during the inquiry.
Justice Martin also drew attention to evidence, given secretly before him, of information given by Victoria Police to the AFP that had tended to support the hypothesis of Mafia involvement in the murder. The DPP obtained ACT Supreme Court permission to view this evidence, but his decision to proceed with a trial suggests he has decided it has no value.
Lawyers from the DPP's office have been consistently uncommunicative with the courts about what was happening, or what its timetable for making a decision was, even in the face of direct questioning from the Chief Justice, Helen Murrell. At the last callover, Justice Murrell said that if the DPP continued to have nothing to offer at next week's callover, she would drop all of the (already considerably relaxed) bail conditions imposed on Eastman since his release from the ACT jail in August.
A problem for the ACT Court in setting down a new trial will be the fact that, as in 1995, many potential judges have conflicts of interest, even in managing pre-trial litigation. Justice Murrell's husband gave handwriting evidence for the Crown in the 1995 trial. Justice Richard Refshauge is both a former DPP and a person who had previously represented Eastman. Justice John Burns has likewise appeared for Eastman, and clashed with Eastman while he was pursuing his claims of innocence from jail. Many other judges, including Federal Court judges available as extra judges for the Supreme Court, have sat over the years on Eastman litigation, many of them seeming to commit themselves to views of the case.
The Crown has alleged that Eastman, then a former public servant seeking re-entry into the APS after having been retired on psychiatric grounds, lay in wait for Winchester and shot him twice in quick succession through the head after Winchester arrived home in January 1989, then left the scene without being observed. It says Eastman had conceived a hatred of Winchester because the ACT Commissioner had refused to intervene to stop the prosecution of an assault charge by Eastman, who was said to be concerned that a conviction would destroy his prospects of being re-employed in the APS.
The murder weapon was never found, although AFP forensic evidence suggested it was a particular Ruger which, the AFP claimed, Eastman had purchased from a Queanbeyan gun dealer. The dealer, who died before the trial, consistently denied Eastman had purchased the gun.
Although the DPP is seeking that the case be set down for hearing, it seems unlikely there could be a trial within the next 18 months, particularly if Eastman pursues applications for a nolle prosequi, or for a permanent stay. Eastman must be supplied with a brief of the evidence the DPP proposes to call. The last trial took three months, and - if somewhat lengthened by dramas involving Eastman, who repeatedly dismissed lawyers, sometimes represented himself and other times refused to participate - was probably shortened by failures to test and cross-examine critical prosecution witnesses. The court is already struggling with its existing workload, including getting trials for defendants still in custody.