David Eastman inquiry tested the legal system

The report of the Martin inquiry will cause most Canberra citizens no surprise, because many have questioned the verdict for nearly 20 years. 

There was a strong circumstantial case against David Eastman, and police and prosecutors argued at the inquiry that there was still a strong case, even if some of the evidence was now to be rejected. Justice Brian Martin said that Eastman was probably guilty. But, he said, he had nagging doubts, which meant that he was not persuaded beyond a reasonable doubt. The case was not overwhelming, and there was material which pointed to an alternative hypothesis – in effect, that Winchester was murdered by organised drug criminals. Moreover, it was clear that Eastman had not received a fair trial and had been denied a fair chance of acquittal. Key evidence against him was deeply flawed, and Eastman had not had the full benefit of disclosure by police and prosecutors of information known to them that could have helped his case. Martin says that had a 1996 court of appeal known what he now knows, it would have quashed the verdict as unsafe and ordered a retrial. This, after 20 years, is now impossible and Eastman ought to walk free, with a pardon.

The prosecution's case was that Eastman had killed Winchester for refusing to intervene to stop an assault charge. A conviction for assault would have kept Eastman from rejoining the public service. Investigators thought Eastman was dangerous, and put him under close surveillance. But many thought this surveillance turned to harassment, directed by a belief that if Eastman was annoyed enough he might ''crack'' and do or say something that clearly established his guilt. The continuing surveillance certainly distracted Eastman, and, increasingly, the judicial process. Eastman's personality won him few sympathisers, but police tactics, and material suggesting that the focus on Eastman was at the expense of other potentially useful lines of inquiry, made many concerned even before the trial. In retrospect, it is also clear that investigators, all former colleagues and subordinates of the victim, were far too close to the action.

But more than a want of detachment was involved. The failure to properly scrutinise and reproduce the evidence of the key scientific witness, particularly when it was clear he lacked objectivity, was inexcusable. The tendency to take wrong scientific conclusions as read was the more incompetent and unprofessional, bearing in mind that the investigation occurred after widespread publicity to significant miscarriages of justice caused by relying on forensic evidence: the Chamberlain case and the Splatt case. Police and prosecutors did refer ''findings'' for external analysis, but those invited to comment were invited to assume that tests had been done as claimed, and results found as claimed – assumptions that were wrong. Even then, serious reservations from international experts were concealed from the jury and the Eastman team.

The case reveals significant weaknesses in ACT policing and prosecutions. They are the more worrying in that both doggedly defended everything they did right to the end. A search for the truth about events 25 years ago ought to have brought more open minds, particularly if there was nothing to hide. There has been no sign of introspection, or acknowledgment that things might have been better handled in retrospect. Citizens of the ACT, who pay Rolls-Royce rates for a contracted-in policing service, are entitled to wonder if they get value for money.

That the ordinary judicial system, and the processes set down by law for dealing with error and miscarriage of justice, worked so ineffectively, in spite of non-stop agitation and litigation by Eastman, is also a matter of great concern. Indeed, a review of the Eastman case for future lessons should probably also consider the long litany of failed prosecutions, or nil-prosecutions, over ACT murder cases going back to the early 1980s. In many, the same investigators were involved; in many, the flaws in prosecutorial theories of the case have been strikingly similar. These cannot be discounted as simply belonging to another time, unlikely to recur today.  

Meanwhile, the system must decide what to do about Eastman. For the courts, the first question, at least after considering bail, is in the execution of its function to consider the Martin report. It would seem that they have little choice. But they might wonder whether development of a better system of judicial review might save more money than non-stop ineffective litigation over 20 years.

There are wider questions, and not only of possible compensation, or of reorganisation directed towards a more professional and competent detective service, and a more detached directorate of public prosecutions. Eastman has been in jail for nearly 20 years. He no longer appears to be mentally ill, but it can be expected that his reintegration into the community will be difficult, quite probably a test of the community's patience as much as his own. But in this context it is worth remembering that he is in part as he is because of a significant miscarriage of justice. It is not good enough to remark that Acting Justice Martin thinks that he was rightly one of the objects of police suspicion. What the judge has found is that police failed to prove their case beyond reasonable doubt, and in the common law system, that means he is as entitled to be regarded as not guilty as someone actually found to be innocent.