PIC BY PALANI MOHAN; 921222 DAVID EASTMAN BEING ARRESTED AT HIS HOME BY COMMANDER RICK NINNES
A Federal Court judge has blasted the government for its handling of David Harold Eastman's bid for an inquiry, and says he'll never work in the ACT Supreme Court again.
Justice Shane Marshall said he ''will not be making myself available to sit again on this court in any capacity'' once his current workload is done.
Experienced legal observers have told The Canberra Times it is unheard of for a judge to blanket refuse to sit in a territory court.
In a fiery ruling, Justice Marshall accused the executive of lacking the ''intestinal fortitude'' to order an inquiry itself.
And he lashed out at the office of the Director of Public Prosecutions, describing their request for clarity into the inquiry's scope as seeking to ''muddy the waters further''.
Justice Marshall has been a federal judge for 17 years and an additional judge of the Supreme Court since 2004.
The respected Melbourne-based judicial officer has often been called upon to help Canberra's full-time judges deal with the caseload.
A spokeswoman for Attorney General Simon Corbell's office did not directly respond to the judge's criticisms last night.
But she said the government hoped to appoint a judge or magistrate to head the inquiry soon, and the looming caretaker period in the lead-up to the October election was no barrier to announcing any appointment.
Eastman is serving a life sentence in the Alexander Maconochie Centre for the 1989 murder of assistant police commissioner Colin Winchester. Mr Winchester was shot dead outside his Deakin home and in 1995 Eastman was convicted of his murder.
But he has always maintained his innocence, and last month won the right to a broad-ranging new inquiry into the soundness of his conviction.
Justice Marshall, ordering the new inquiry, ruled there was ''fresh doubt'' and ''significant risk'' the conviction was unsafe.
Several months earlier the judge effectively ruled out the possibility of a second inquiry, saying the Crimes Act meant he had no power to grant a new probe.
But in July a full court of the Supreme Court overturned his decision after the ACT Government Solicitor's Office and Eastman's legal team found themselves on the same side, arguing Justice Marshall's interpretation was wrong.
''These circumstances allowed the matter to proceed before the full court with no contradictor [opposing party],'' the judge said yesterday.
In August, when the matter went back before Justice Marshall, the DPP did not oppose an inquiry.
But yesterday the prosecution sought to clarify the terms of the judge's order.
Justice Marshall said they filed ''no suggested variation to the court's orders'' but effectively sought to reverse their position.
''The entire saga of the Eastman jurisdictional issue has been attended with a bizarre attitude by the DPP,'' the judge said.
''The DPP now seeks to further muddy the waters in an inappropriate way.
''The only way to place an inquiry into Mr Eastman's conviction on a completely secure footing and lead to an urgent hearing of such an inquiry would be for the ACT executive to have the intestinal fortitude to order an inquiry under its undoubted powers to do so.
''This whole sorry saga is the reason why I will not be making myself available to sit on this court in any capacity once my reserved judgments [have been published and final week completed].''
Senior Canberra barristers were shocked to hear the news of Justice Marshall's comments yesterday.
Jack Pappas, a barrister with more than 30 years in the law, said he had never heard of a judge refusing to work in a jurisdiction.
John Purnell, SC, whose career spans almost 40 years, concurred.
His decision to reject the DPP's application yesterday paves the way for the ACT government to appoint a judge or magistrate - or ''board of inquiry'' - to head the probe.