David Eastman, convicted of the murder of assistant police commissioner Colin Winchester, has had one bite of the inquiry cherry and, under ACT law, that is as many as are allowed, according to an ACT Supreme Court judge.
Refusing an application for an inquiry based on a claim of new evidence raising doubt about Eastman's guilt, Judge Shane Marshall said that the effect of amendments made to the ACT Crimes Act in 2001 was that a convicted person was limited to one judicial inquiry into the soundness of a conviction.
Eastman had had that, and, as a result the judge had no power to consider whether another one was warranted by new material put before him.
The effect of the ruling, as Victoria silk Robert Richter, QC, arguing in favour of a fresh inquiry, told the judge, is that there can be no judicial exoneration of Eastman even if evidence is found proving conclusively that he was innocent.
Mr Richter used the example of a man having been convicted for murder in a case where no body had been discovered, and where the man succeeded in getting an inquiry on the base of doubts about bloodstains, but failed to persuade the inquiry that the matter raised new doubts.
Even if, later, the supposed victim was found alive, no subsequent ACT application for a judicial review would be possible.
The ACT provisions are unique, put in by then attorney-general Bill Stefaniak when revising the Crimes Act in 2001.
Other states and territories allow fresh inquiries if fresh doubts arise about a case.
In some, the resolution of a particular doubt may effectively foreclose re-agitation of that particular doubt, but it does not prevent an inquiry if there is new evidence raising other doubts about the soundness of conviction.
The NSW McLeod-Lindsay case is an example of where there were two inquiries, the second of which saw Alexander McLeod-Lindsay exonerated of the murder of his wife and paid $700,000 for unlawful imprisonment.
The effect of the decision is that the only avenue by which Eastman can now contest his guilt is through an inquiry ordered by the ACT government. Marshall's judgment is probably not appealable.
Eastman was convicted of the 1989 murder of Mr Winchester in 1995, after a prolonged trial frequently disrupted by dismissals of counsel and, over extended periods, Eastman's refusal to take part in the trial, including cross examining witnesses. There was a strong but circumstantial case, depending in part on ballistic evidence, linking him to a gun said to have killed Winchester.
Eastman appealed to the Federal Court but explicitly refused to allow counsel to raise issues about his fitness to plead.
When the High Court, on the first of a number of occasions, expressed some concerns about the case, even as it dismissed appeals, Eastman applied for an inquiry on wide grounds.
Then ACT chief justice Geoffrey Miles decided to hold an inquiry, but limited it only to questions about Eastman's fitness to plead. He held that the issue had arisen, but, rather than concluding that the trial had miscarried, determined himself on the evidence available.
After the 2001 amendments were made, Eastman got another limited inquiry before justice Tony Besanko, but the judge found that some issues were foreclosed by Federal Court rulings and otherwise ruled that no doubt was raised as to the soundness of the verdict. While critics of Eastman complain of non-stop litigation and re-agitation of his case, the fact is that there has never been an independent inquiry into the central strands of scientific evidence said to point clearly to his guilt. Among the matters those who had hoped that the application before Justice Marshall would have led to an inquiry had intended to raise were:
■ The jury was not told that the expertise of Robert Barnes, the primary ballistic ''expert'', whose findings about gunshot residue linked a particular rifle to the murder, had been questioned by the Victorian Supreme Court and his own forensic unit, nor that the conclusions he had drawn about the use of a silencer was contrary to evidence he had given at the inquest, and, in any event, directly contradicted by a witness who was positive he had heard the relevant shots but had not been called at the trial.
■ Hints of misconduct by police and the prosecution in not disclosing to defence counsel the doubts that had arisen about Barnes, and about his dismissal from the Victorian police forensic science unit.
■ Gunshot residue of a type similar to that found in cartridges by Winchester's body was found in Eastman's car. But fresh evidence has emerged from a witness who has produced a gun he said he had used rabbit shooting after borrowing Eastman's car.
In 2001, a British court of appeal, hearing a case involving the linking of minute particles of gunshot residue has written new rules for the presentation of such evidence, based on the present scientific consensus of what is probable as a result of similarities. Those new rules would have virtually precluded the giving of any probative weight to the residue evidence.