A muddied and messy business

THE trouble is, "one of my colleagues remarked during one of the interminable office discussions about the Winchester murder case more than 20 years ago," that David Eastman is his own worst enemy.''

"Not while I'm alive, he isn't," rejoined another colleague. Like me, and numerous other colleagues, journalists on other newspapers, politicians and public officials, this colleague had been subjected to any number of angry and abusive conversations with Eastman over the years, in some cases even long before the murder itself. In a number of these calls, Eastman made threats that some of the recipients took seriously.

Eastman's propensity for anger and abuse, and in some of his more florid, paranoid and delusional stages of the mental condition from which he seemed to be suffering, his tendency to fall out with people trying to help him, clearly made the investigation and trial of Eastman particularly difficult.

During the trial, for example, he clashed repeatedly with his own lawyers, often dismissing them for failing to follow his instructions. Then sometimes he conducted the defence, at other times simply refused to participate or to cross-examine accusers because, he believed, the whole system, including the trial judge, were failing to do anything about obvious harassment by police. Eastman could always be distracted from his more serious predicament by more instant ones.

The courtroom antics meant that a good deal of the evidence against Eastman was not tested in cross-examination and that some obvious questions about some of it were not asked. Just as importantly, both the trial judge and the prosecution team believed that Eastman was faking symptoms of mental illness in an effort to have the trial aborted. As they saw it, they simply refused to rise to his bait and were slow to intervene to address any signs of unequal combat, or to draw attention to matters that could have been said in Eastman's favour but weren't.

No one raised the question of Eastman's mental fitness to plead. At times, indeed, Eastman had cross-examined witnesses into a cocked hat, or had made legal submissions of a brilliance that few senior counsel could match. Then, he was rational, logical and well able to mount an argument. Did this not mean that he was ''sane'' and able to understand what was going on, and to instruct counsel?


Yet even when Eastman could show reason, he was often not showing reasonability. He was simply unable to judge his own interests, or to weigh different ones in the balance. On many matters, he could be detached and rational, on others, directly touching his own interests he was ratty, emotional, suspicious, and apt to snap. He repeatedly committed social and forensic suicide. Detectives were well aware of this tendency; they had on deck a psychiatrist given regular reports of his behaviour, and advice on how to deal with him. They repeatedly have denied that they were consciously ''pushing Eastman's buttons'' in an effort to make him blurt out a confession, lead them to the murder weapon or do something incriminating. But surveillance was overt and consciously ''in-your-face'', evidence shows efforts to provoke him, and there were many and obvious (and reported) examples of harassment.

Eastman was convicted of murder in 1995, six years after Colin Winchester was shot dead as he arrived home in Deakin. A chain of circumstantial evidence pointed to Eastman having a grudge against Winchester. There were attempts to purchase a gun, and claims of close similarities between gunshot residue from the murder scene and materials found in Eastman's car. Forensic evidence from a Victorian ''expert'' clearly linked Eastman's car to the murder.

The jury was not told that this expert had recently been dismissed from the Victoria Police forensic science laboratory for professional and scientific misconduct. He had a two-year trade qualification in metallurgy.

Eastman has maintained his innocence. There have been numerous appeals and a welter of litigation attempting to get the matter re-examined. Although judges up to the High Court have expressed concerns, most judicial review has had hostile and complacent consequences, reflecting satisfaction that all was well.

This has been in spite of widespread unease about the competence of the investigation, suggestions it became infected by tunnel vision, concerns about the forensic evidence, and dismay about the shenanigans and unfairnesses of the trial. Many are uncertain of Eastman's guilt, but certain he was never shown to be guilty.

It is now nearly 20 years since Eastman was convicted and this week the ACT Supreme Court will receive will receive a report from the first reasonably open-ended inquiry into the safety of the conviction, conducted by Brian Martin, a retired South Australian judge.On Thursday, a full bench of the ACT Supreme Court acknowledged that evidence uncovered by the inquiry now cried out for resolution.

It seems clear that Martin will find that the evidence of the Victorian forensic witness is completely discredited, and, on some matters, invented. Martin gave notice to the DPP of a likelihood that he would find that the prosecution team (which includes the police) failed in its duty to give Eastman evidence and reports that could have helped his defence.

It is also clear that he will strongly criticise police conduct over the surveillance, including lying about it to police and ombudsman investigations. It is not so clear that he will find that Eastman's fitness to plead should have been raised. A witness, who produced a gun he says he had in Eastman's car, will be rejected. The judge has had secret hearings into whether there is a plausible case that Winchester was murdered by Calabrian gangsters, and no one knows what the findings will be on this.

It is clear that the judge's criticisms of the investigation will be devastating and will shake confidence in the AFP, modern as well as 1989 model, the DPP the ACT government and the courts.

We do not yet know if Martin will find that the deficiencies raise doubts about Eastman's guilt. Or if he will suggest that there should be a fresh trial - surely impossible after 25 years.

The final approach of the AFP and the DPP was, in effect, to admit serious deficiencies, but to insist that Eastman was, nonetheless, guilty and that the verdict should stand.

Ultimately, that is for the Supreme Court, unassisted by any further submissions, other than a copy of the Martin report and its appendixes.

Last week, three judges of that court said, in effect, that Eastman should never have been granted this inquiry even if, they now grudgingly admit, the results of the inquiry cannot now be ignored.

Eastman's fate now - as since 1993 - is in the hands of judges who mostly seem to wonder what the fuss has been all about.