Photo: Pat Campbell
Simon Corbell is not off to a good start in his decision to support some sort of inquiry into the conviction of David Eastman for the murder, 22 years ago, of AFP assistant commissioner Colin Winchester. It bodes ill for whether an inquiry, if there is to be one, will satisfy anyone expressing doubts about the safety of the conviction, which has seen Eastman behind bars over the past 17 years.
The ACT government could, from its own powers, order an inquiry into the case. This is a power Corbell seems scared to use, perhaps because it might put him in the direct firing line from powerful interests who will be annoyed by an inquiry, and even more annoyed if its findings are devastating about the ACT justice system.
Instead, Corbell has in effect, invited the ACT courts to consider mounting its own inquiry, on terms of reference decided, without accountability or review, by itself. If experience is any guide - there have been inquiries like this before - a judge will set terms of reference that will be both very narrow and procedural, defensive of the role of previous judges, and the judge holding the inquiry will feel highly constrained by any findings of law or fact in any previous rulings at any level. Neither the manner nor the findings of such an inquiry is likely to satisfy those who fear there were fundamental flaws in the conception of the case, the investigation and analysis of evidence, the prosecution, and the management, by the trial judge, Ken Carruthers, of a long and complex trial.
That Eastman, an obviously mentally ill man, contributed to his fate by his behaviour is neither here nor there, unless (as Carruthers concluded) you think Eastman was a perfectly sane but cunning man who was completely play-acting his apparent incapacity to defend his own interests.
But the Corbell plan does not even guarantee judicial review. He has announced he will ask the ACT Government Solicitor to intervene on Friday to support a case being mounted by Robert Richter, QC, seeking to appeal a decision by Justice Marshall that he is unable to hold an inquiry into Eastman's conviction. Amendments to ACT law made when Bill Stefaniak was attorney-general meant a person seeking an inquiry into the safety of a conviction has only one bite of the cherry, and cannot get any further inquiry even if new evidence proves complete innocence, Marshall ruled. Only the ACT has such an obviously unjust law, but if Marshall was not compelled to interpret it this way, his interpretation was probably right and probably what was intended.
If Marshall is right it cuts off any further chances to agitate his consistent claim of complete innocence in court. Corbell's intervention, even if successful, does not give Eastman a review but the right to have a request for review considered. Will Corbell just walk away if the review is refused?
It may not even get to that. Friday had been set down for a directions hearing about how the appeal would be conducted. The intervention of the ACT Government Solicitor is unlikely to upset Marshall's decision. It will be interesting to see if the office of the DPP, which enthusiastically supported the ''only one bite of the cherry'' argument once it was suggested by Marshall (it did not seem to have previously occurred to the DPP), still does, in its supposed independence of government. Either way is unlikely to make much difference to the outcome.
Another arms-length non-involvement by Corbell could be simply to repeal the silly and unjust amendment, so that Eastman was in no different a position than he would be in NSW or Victoria. That would be better than arguing for a wrong interpretation, but would still leave critics unsatisfied that the courts have the ability or the will to do a proper review.
A simple judicial review poses other problems. Winchester was murdered in 1989. A long inquest, which wandered everywhere with little regard for admissibility, substituted for committal proceedings. The trial was in 1995. Since then, many witnesses have died, more have retired, a lot of institutional memory has disappeared, and, in some cases, the law has moved on to a point where some of the evidence presented - for example about gunshot residue - is probably no longer admissible.
There are modern criticisms of the conviction going to issues of propriety by prosecutors and police. For example, the court was not told the major forensic witness had been dismissed for professional failings from the Victorian Police forensic unit, nor that he had significantly altered critical testimony between inquest and trial. Counsel for the DPP misled the High Court on whether Carruthers had seen material raising the question of fitness to plead. There are complaints of police misbehaviour, not least in efforts, admitted by police, to harass Eastman so he would explode, and, they hoped, make damning admissions.
Making the DPP or the police prime parties, or contradictors, of an Eastman review, could see them more focused more on defending their own conduct, and concealing their own errors, than in helping the court reach the truth, the proper role of prosecutors. It might be better if an inquiry had a neutral party - or counsel assisting - to lead the review, so police and prosecutors can focus those in the prosecution team represented by people without dual duties.
Likewise, of course, it has never seemed to me essential that Eastman himself must be heard - directly or through counsel - on all issues. Or that he must be present. By his account he is a ''patsy'', a person ''fitted into'' available evidence. He has no knowledge of his own (other than that acquired since conviction) of the whereabouts of weapons, types of weapons fired and so on. Counsel acting for him must obviously closely test evidence actually linking Eastman to the matter, but have little to contribute to assessment of the conclusions to be drawn from all of the many bits of a very complicated, credible but entirely circumstantial chain of evidence, highly dependent on the strength of its weakest bit.
Perhaps Corbell has shrunk from exercising his discretions because he remembers one of the long-time rules of politics: never set up inquiries when you do not know what the findings will be. Corbell is obviously well aware that many people are far from persuaded of Eastman's guilt, and even less persuaded that Eastman's guilt was proven beyond any reasonable doubt. He is equally well aware that there are others who have no doubts, or who assume the system worked, or who have, in any event, little compassion from a difficult, troublesome, damaged and annoying (and ill) Eastman. Speaking for myself, as one who has long voiced doubts, I will be happy even if the consequence is they are properly put to rest, something that has not happened from any judicial intervention so far. (A good many judgments indeed have compounded my sense that Eastman was screwed.)
But it would, of course, be far more disturbing and shameful were it to be found that Corbell's policemen, lawyers and judges have combined, wittingly or unwittingly, to put an innocent man in jail for 17 years.
The shame would not be mitigated by a reflection that Eastman has tried a lot of public and private patience. He is not the sort who readily invites sympathy (or for long); but if his conviction were ultimately to be quashed as unsafe, it is difficult to know how the system Corbell supervises could make it up to him. But that is no reason why politicians - at least those with some sense of justice - should shrink from their duty.
Jack Waterford is Editor-at-Large, Canberra Times.
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This article and the comments below may have been understood by some readers to suggest that the prosecutor at the trial of David Eastman, Michael Adams, now a judge of the Supreme Court of NSW, had intentionally breached his duties as a prosecutor by failing to disclose certain material to Mr Eastman. No such meaning was intended. The Canberra Times expresses regret if any reader understood the publications that way.
The recent judgment of the full court specifically accepted the finding of Justice Martin in the Eastman inquiry that "Mr Adams and others in the prosecution team adhered to the highest standards of ethical conduct", and that "the failures to disclose were inadvertent and occurred as a result of a combination of circumstances". The Court noted Justice Martin's finding that "Mr Adams QC endeavoured at all times to comply fully and properly with the prosecution's duty of disclosure"