The assassination of Assistant Commissioner Colin Winchester as he arrived home in Deakin in January 1989 was one of the most audacious in Australian history.
The murderer fired two bullets into the back of Winchester's head, then coolly left the scene. No one saw him. The murder weapon has never been found, and, within an hour of two, an enormous crowd of detectives, and even the Coroner, had seriously compromised the crime scene, mostly by gawking in the lawn and dirt near to the open car door.
No Australian crime has ever involved more resources, or a higher budget. One could investigate 10 Belanglo murders with the money spent on the investigation into the murder, two inquests creating 60,000 pages of transcript, one murder trial extending for three months, two appeals, two-and-a-half independent inquiries and possibly 30 other pieces of litigation that the case has involved over the past 25 years.
Investigating police, too many of whom were close mates of the victim to be properly detached, knew that no senational murder would ever get more critical scrutiny from outside. But they came from a inexperienced and not very competent force unused to close scrutiny, accountability, quality review, second thoughts or learning from mistakes; to this day, many are in denial about the basic flaws in their competence and modus operandi. The detectives involved are mostly long retired, but they schooled a fresh generation of detectives who may well be repeating the same mistakes today - and getting away with them because most do not get anything like the same attention.
Flaws in the investigation may have put an innocent but difficult man, now nearly 70, in jail for nearly 20 years. That says little for the quality of justice provided to Canberra , at Rolls Royce prices, by police, prosecutors, a justice department and a very well paid local judiciary.
But even if the firm belief of those police and prosecutors that David Eastman was the murderer is confirmed by a fair verdict at a future fair trial, citizens of the ACT still live with the knowledge that they had then a detective force that was manifestly not up to the job, and that they have even now, a police force more interested in shielding itself from criticism than in having an open mind and in discovering the facts. The AFP is prisoner to a misplaced loyalty to its good old boys.
A few months ago, an independent judge expressed himself as having a strong nagging doubt about the safety of the conviction of David Eastman for murder.
Beyond that doubt, inspired by what is now agreed to have been fundamentally flawed forensic evidence, was the disturbing finding that Eastman had not, in any event, received a fair trial. At a fair trial an accused person must have a fair chance to put forward evidence consistent with his innocence. The police and/or prosecutors knew of many facts that made their case look weaker. But despite a principle that the prosecution team, including policer, must tell the defence everything relevant, vital bits of potentially exculpatory evidence were not made available to Eastman's side. This defect is no mere technicality, nor a result of some slavish addiction to process at the expense as opposed to common sense. It is there because police and prosecution have access to all of the resources of the state, able to overwhelm an individual with limited resources.
There were other strong criticisms of the case, but these were the two central ones.
None were new. I wrote my first article expressing doubt about the safety of the conviction, after a travesty of a trial, on the day Eastman was found guilty. I wasn't disapproving of the jury, whose verdict was given every encouragement by the trial judge, but of the case and the fairness of the trial itself. Many others shared my view, and at times even High Court judges expressed concern. It is a case now up there with the Lindy Chamberlain case and the Splatt case, founded in bad science, overconfident experts, clouds of prejudice, and police lacking proper professional detachment. It was compounded by some actual police misbehaviour, particularly in harassing Eastman in the hope of making him blurt out a confession.
The most critical scientific witness, Robert Barnes, attached to the Victoria Police Forensic Unit, made findings not supported by the evidence. He lacked independence and was biased, even though he pretended to be careful and conservative. He failed to properly document his work. Although his unit was at the time well regarded, he was a lone operator whose work was never peer reviewed, and who was deeply resentful of, and resistant to any questioning. Police and prosecutors say they did not know how dodgy he was, but, even in those times, mere professionalism required those making a case to take some care about and some responsibility for the work of supposed experts.
It seemed that some of the tests Barnes claimed to have done could not have been done, and that he misinterpreted the results of others. His general technique of evading close scrutiny was long delay in submitting statyements and reports, so that, ultimately, their reception caused relief rather than careful analysis and review. The Victoria Police got on to him before the Eastman trial, and he was, in effect, sacked. But the Eastman trial was not told; indeed, the presentation of Barnes's evidence, and his supposed qualifications were repeatedly stressed by judge and prosecution.
The evidence of Barnes was critical in linking gunshot residue found at the murder scene to particles found in Eastman's car. We now know his conclusion were wrong and that police had no evidence allowing that critical connection to be made.
The AFP and the ACT DPP spent more than $2 million each trying to resist adverse findings by the Commission of Inquiry. Neither took the opportunity to review evidence gathered up to 25 years ago, to resubmit it to modern forensic techniques, or to bring in fresh detectives, and new eyes, to cast a sceptical eye over the case put together by the Winchester investigation team. There was a search for the truth, but it was not assisted by the AFP or the DPP. Instead, the resources of the police and the state were focused on defending the conviction at all costs, on denying any problems, or, if these were obvious, denying that they could affect the strength of a powerful case. Police and prosecutors to action took try to close down the inquiry, or, when that was impossible, to limit it as much as possible. After this was unsuccessful, they demanded and got a second bite of the cherry to argue, in effect, that a full court of the ACT Supreme Court should ignore the findings and recommendation of Justice Martin, who conducted the inquiry.
No one doubts that the prosecution case was strong, if circumstantial, though the full court noted that intact parts of it were by no means as strong as the prosecution claimed. But there were always ample grounds for concern about whether there had been a fair trial, or whether the evidence, much of which, at trial, had not been cross-examined, was as strong as it seemed. These were concerns expressed from the start. They did not turn on any idea of police corruption or efforts to "fit" or "frame" Eastman. They came from indications and unease that police had become badly affected by tunnel vision, and had looked at all evidence through a prism of whether it seemed to confirm Eastman's guilt. Unhelpful information and leads were discounted. Eastman did not help himself. Repeatedly, he committed what one observer called forensic suicide. But public confidence in the effectiveness of the criminal justice system cannot always depend on evenly matched teams of lawyers matching wits. Nor is the demand for a fair trial, with respect for the conventional protections accorded defendants, a mere matter of form, unimportant if police claim to "know" that the defendant is guilty.
The court has ordered a retrial. Whether that happens is up to the DPP. Yet it seems impossible that there could be one. This is not only because of the passage of time, the death of critical witnesses, and, amazingly, the loss of some exhibits, and a host of prejudice, old as well as new. It is also because a good many police witnesses are now so discredited that fresh prosecutors will hesitate to call them, or will do so only while obviously holding their nose. The forensic evidence is, probably, so compromised as to be unable to be redone. Moreover, the defence will have a field day about evidence that police ineptness, perhaps malfeasance, meant that promising lines of inquiry, even recent ones, were ignored and can probably not be any longer followed up.
The secret and confidential material, still suppressed, involves a report sent by the Victorian Police to the AFP last year. It reported new evidence of the involvement of an organised crime figure in the murder, and that an apparent alibi, cursorily checked by the AFP at the time, had been very suspiciously concocted. The AFP did not mean to tell the inquiry, but the inquiry fell upon a note of it accidentally, and held secret and productive hearings which showed promise about an alternative thoeory of the murderr. After the information was sent from Melbourne, AFP detectives decided not to investigate it, lest it become "an unnecessary diversion from the factual issues surrounding the conviction of David Eastman". Not for the first time, police were consciously ignoring material that did not support their firm belief that Eastman was the man.
"The community has a vital interest in ensuring that a person against whom a strong circumstantial case of murder exists does not escape conviction if, on a trial conducted in accordance with law, a jury is satisfied beyond reasonable doubt of his guilt. ... Whether the Director [of Public Prosecutions] decides to present Eastman for trial again will be a matter for the exercise of his prosecutorial discretion in accordance with his prosecution policy," the court said.
This is perhaps smart politics by the court, particularly against those, such as defensive detectives, bound to insist that Eastman is now free on some technicality, rather than because of basic deficiencies in the way they did their job. If the DPP is so sure that Eastman's guilt is manifest, and detectives are too, they will have an opportunity to put up. If, for example, the police work was as exemplary as was claimed by some retired investigators yesterday, the DPP should have no trouble in bringing an indictment quickly. Though presumably, there will have to be a detour finding a new, and quite independent, investigative team to check over and tick off everything done in the past. The DPP may also, of course, have some duties of helping dispel the cloud of prejudice evoked by all of the confident public assertions that the cops got it right and that the law is an ass. The one thing of which we can be sure is that the ACT government, Justice Departmenbt, DPP and ACT AFP will use all the delay a fresh trial promises to avoid having any sort of inquiry into how they performed. This is a cause in which (public) money is no object.