David Eastman Photo: Supplied
The taking of evidence in public in the inquiry into the 1995 conviction of David Eastman for the murder of Assistant Commissioner Colin Winchester in 1989 is fast coming towards an end. The inquiry will soon move into submissions about the impact of material put before it.
But those wondering about the outcome must do more than guess the significance of comments, one way or another, falling from the lips of the inquiry head, Justice Brian Martin. Most, but not all of his remarks have been scathing about the investigation and the prosecution. Nor can one guess much from the focus of the examinations by counsel assisting, who works for, not independently of Martin.
The style of inquiry has been focused on weak links in a chain of circumstantial evidence. Many of the links have been greatly weakened, and procedural irregularities in the trial have been shown to be abundant and serious. But it is not clear what weight Martin will accord to unexamined evidence suggestive of guilt. And he is not conducting an appeal - asking in effect whether Eastman was denied a fair trial. If he were doing that, it already seems clear that he would find the trial miscarried. For some judges, and some types of inquiry, that might be enough to see Eastman walk free. But Martin will almost certainly go beyond that to ask whether, bearing that in mind, he has a doubt about Eastman's guilt.
Some interested parties - such as the teams representing the Director of Public Prosecutions and the AFP, will be arguing that any irregularities during the investigation, the inquest or the trial are not sufficient to create real doubt about Eastman's guilt.
Making any sort of forecast of the outcome is made even more difficult by the fact that the inquiry will soon move into secret session, in which Eastman and his legal team are not allowed to be represented. They and the public will be allowed to know only what, if anything, Martin chooses to tell them.
Martin sees nothing particularly strange about such a procedure. ''There are plenty of examples of judges making decisions when public interest immunity is claimed, the judge sees information, relies on it but cannot tell the parties about it,'' he remarked on Friday.
''In fact some of the more modern drugs-type legislation and confiscation of profits … judges have to sit there and say to the offender or the accused person, 'Sorry, I can't tell you the information that's been given to me in a confidential affidavit, but I have to take it into account in arriving at a decision …
''That's one of the examples where a judge decides that material is relevant, but for other reasons cannot disclose it to the parties.
Still, he said, ''the interests of the accused would rate far higher than the interests of the DPP or the AFP in an inquiry such as this''.
The secret sessions are into suggestions that the murder could have been committed by Italian organised criminals, or by other people, including some who have been the subject of information given to the inquiry or to the Australian Federal Police over the years.
The AFP officers, in a policy decision, decided not to investigate any fresh leads, (or indeed to reinvestigate any of the material it put forward to support the case against Eastman). But material handed to the AFP, including by other forces since the conviction, was discovered by the inquiry, with investigations of the inquiry's own motion, and with its own resources, following.
The hearings will consider evidence about an investigation by the national AFP, which originally ran parallel to the investigation mounted by the ACT section of the AFP.
Immediately after the murder, experienced detectives said that the assassination bore the hallmarks of a professional hit, including the use of the double-tap style or second shot. Some pointed to Winchester's presiding over a sting of Calabrian drug barons who had been growing cannabis near Bungendore, believing, until they were rounded up and charged, that Winchester had been bribed to overlook their activity. It was said Winchester was punished for his ''treachery'', or so as to prevent his
giving evidence in a trial that had been scheduled to start only a month after the murder.
Those following up these suggestions were using secret informants, including players who had been ''turned''. Bugs recorded many conversations, but interpretation of a thick dialect was problematic - at times hilarious. In some conversations the murder was discussed, and names mentioned. The national AFP received considerable intelligence from Italian organised crime investigators in Italy pointing to an N'draghata hit. But, though detectives on the case were convinced of the hit theory, they were unable to take it to proof by the time that ACT detectives had convinced themselves that Eastman was their man. The national investigation was shut down, in part because it was said that the Eastman case could hardly proceed if police were still holding open an investigation into an alternative theory.
Documents associated with the organised crime investigation are still suppressed - more than 20 years later - because of what is said to be a continuing danger to particular informants.
The inquiry has heard much evidence criticising the investigation, harassment of Eastman and suggestions of efforts to bait him in the hope that he might do something that was conclusive proof of guilt. There has been minute examination of the forensic evidence, with doubt cast on the personality, qualifications, scientific method and conclusions of the main witness. The judge has been interested in whether police told prosecutors all they should know about their case, and whether the DPP fulfilled the obligation to disclose material to Eastman. He has also foreshadowed criticism of the trial judge, Ken Carruthers, over his possession of psychiatric reports on Eastman at a time when he (the judge) seemed to believe that Eastman was just faking mental illness in an effort to force the trial to abort. Martin has much to criticise, and his record, and his behaviour, suggests he will not shrink from it.
But it is harder to judge just where he will end up in part because of procedures adopted rather than forced on the inquiry. Spectators have only a limited idea of what is occurring. Judge and counsel mostly speak in shorthand, and make reference to statements, transcripts and exhibits on computer screens. All counsel can see them, but they are unreadable from the public gallery.The pace is glacial. Transcripts, on a good day, are available to the public on the night of the day after.
No doubt justice is being done, but, despite the millions spent on lawyers, and $100,000 spent on what was said to be a purpose-built hearing room, it is scarcely being seen or heard to be done.