Hands up for lawyers' picnic
David Eastman being arrested at his home by Commander Rick Ninnes. Almost all senior ACT lawyers have been involved in the case over the past 30 years. Photo: Palani Mohan
EIGHTEEN years ago, I remarked that I was going to make my first million by selling T-shirts carrying the message, ''I was David Eastman's lawyer.'' This was a wry joke about the fact that the Eastman trial had been punctuated by dramatic sackings of Eastman's legal team, the engagement, sometimes of other teams, rehirings, resackings and prolonged periods during which Eastman was either battling on alone or flatly refusing to play any role in the trial.
There are many legacies of that farce of a trial, not least the farce of an inquiry about to start into the safety of Eastman's conviction, in 1995, for shooting dead assistant commissioner Colin Winchester of the Australian Federal Police in January 1989. Discussing questions of getting fresh representation for Eastman, experienced senior counsel remarked on Wednesday that there were hardly any ACT barristers of any seniority who had not been employed, one way or another, in the Eastman industry over the past 30 years. About $12 million of public money has been divvied around - of which about 5 per cent has gone to representation of Eastman.
But the remark was not prompted by another dramatic clash between Eastman and his team. For the moment at least, Eastman has affirmed, at least through his lawyers, complete confidence in his representatives. But they are being forced to stand aside because the Director of Public Prosecutions, Jon White, says that all are conflicted, or otherwise compromised, in their capacity to represent Eastman. They disagree, but the president of the ACT Bar, Greg Stretton, does not.
At a stroke, therefore, David Eastman is again without representation at the bar table, other than through the barristers' instructing solicitor. Another barrister, Robert Richter, QC, is on the record as appearing for Eastman, but he has an array of long-term engagements (one a long-running criminal trial in Western Australia, followed by a royal commission) and had never intended to do more than short appearances.
One of those made to stand down is Terry O'Donnell, whose work and energy on behalf of Eastman secured the new inquiry. During his investigations, he became aware of the existence of a rifle, the owner of which said it had been in the boot of Eastman's car - potentially answering the question of why there was gunshot residue in the car. Peggy Dwyer, of Sydney, representing the DPP, says she wants to cross-examine O'Donnell closely about this to persist with a DPP argument that the owner of the rifle could have been, or should have been, found before the appeal. In any event, she says that she would be ''embarrassed'' to be cross-examining O'Donnell were he also at the bar table. Counsel assisting, Liesl Chapman, from Adelaide, is inclined to agree. If they are right, Eastman is to be deprived of the services of someone who has represented him off and on for 24 years. (O'Donnell has, I think, been ''sacked'' by Eastman at least three times, each time being re-engaged later. O'Donnell himself has ''sacked'' his client Eastman in frustration at least three times.)
The DPP would, of course, insist there has been no intention to handicap Eastman in the inquiry, even if the DPP's office has consistently argued that the inquiry is ill-conceived and beyond the powers of the judge who ordered it. As Kevin Duggan, the retired South Australian Supreme Court judge commissioned to do the inquiry, has commented, the DPP should have raised his objections with Justice Shane Marshall, who ordered the inquiry and set its terms of reference: Duggan simply has no power to rewrite them.
Duggan naturally has no desire to see Eastman unrepresented, and, if he has read the record, even less desire to see Eastman, a formidable advocate in his own right, appearing for himself. There is no problem whatever with Eastman's forensic advocacy; he is brilliant, cogent and, on most matters, brutally logical and rational - but he lacks judgment and balance when it comes to weighing some of his interests against others. Thus he is easy to get distracted by baiting - and others, including the police, knowing this, have consciously needled him in the hope that he would snap and confess all. He hasn't, but the consequences of the distractions - and the indifference of the trial judge to them - are one of the reasons so many people have been deeply uneasy about the verdict.
The trial judge, retired NSW judge Ken Carruthers, and the prosecutor, Michael Adams (now himself a judge, and, apparently, to be a witness in this case) plainly believed that Eastman's over-the-top behaviour was the deliberate tactic of a cunning man trying to frustrate the trial. Many who have pointed to Eastman's long history of mental illness flatly disagree.
The other problem is Eastman, for prolonged periods during the trial, flatly refused to co-operate. Unrepresented, he would refuse to cross-examine witnesses or make submissions. As a result, a good deal of a strong but entirely circumstantial case was not subject to critical scrutiny. This inquiry is - or could be - the first at which this scrutiny will occur, and this time in the light of a science (and admissibility rules) that has moved considerably since 1995.
If everyone is conscious of the possible appearance of conflict of interest on the part of Eastman representatives, both the judge and counsel assisting have been far more relaxed in recruiting, as one of Ms Chapman's junior counsel, a person who was a research assistant on Justice Miles's staff while he was conducting an inquiry in Eastman's mental health.
This person, Joseph Kellaway, says he was essentially collating material and had no foreknowledge of, or access to, the thinking of Justice Miles. This is enough to satisfy those on the NSW Bar Council from whom he sought ethical advice (although it is not clear that it would satisfy Greg Stretton were he at the Canberra bar) and the judge has ruled, despite objections, he can appear.
While the judge heard submissions on the subject, he was, in fact, ruling on his own judgment, and that of Ms Chapman, in hiring Kellaway in the first place. There has been a tradition that it is the relationship of trust and confidence between judges and their associates, tipstaffs and research officers, rather than the factual details of their interactions, which should be preserved, in much the same way (it is said) that cabinet deliberations are intrinsically confidential. Otherwise, it is said, the relationship is controlled by the employee (unlikely to be objective if an engagement is in the offing) rather than the judge.
The test in such matters is not whether the person in question asserts, or believes, that he or she is not conflicted, or indeed the subjective belief of another that actual conflict exists. It is an objective test: what a reasonable outsider, knowing the situation, would think. In my opinion, for example, there is a very real appearance of conflict of interest. It seems so obvious that it shakes my belief in the judgment of the inquiry judge and counsel assisting. If it were otherwise, we might next see a former associate of a judge appearing, next day, as counsel for the appellant against his judge's ruling. That same obliviousness to appearances is obvious from the way the inquiry has decided to make use of the public relations services of the Justice and Community Services directorate, rather than to submit itself to any direct questioning from the media. JACS supervises agencies responsible for the investigation, prosecution, enforcement, sentencing and parole of crime, including the DPP and legal aid. A senior representative of JACS has been present in court, presumably to keep ACT Attorney-General Simon Corbell, who is without any legal qualifications, aware of what is happening, and to advise him on his response on what seems likely to be a fertile field of blunders, embarrassments and pratfalls.
The form the inquiry should take is very much open to the judge, who would have the power, if he were so minded, to hold a wide-ranging inquisition along the lines, say, of the Coles royal commission into the wheat for oil scheme, the inquest in the Canberra bushfires, the British Criminal Cases Review Commission or even the recent inquiry into the conviction of Phuong Ngo, the man convicted of assassinating NSW MP John Newman.
The judge has, however, chosen to follow a traditional and very constrained model, whereby he sits, in effect, as a court of appeal, with material apparently to be bowled up by counsel for Eastman, if any can be found, before being hit to the boundary, if necessary, by counsel assisting, the DPP, the police force generally and any prosecutor, police officer or other individual able to persuade the judge there is any chance of their being criticised.
This is a farce which will go on and on, and it seems highly unlikely that anyone, except the lawyers involved, will be in any way satisfied by its outcome.