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A diffident path to justice

Date

Editor-at-large, The Canberra Times

View more articles from Jack Waterford

Corbell's shortcut murder inquiry is not the quickest, cheapest or most likely way to get to the truth, whatever it is

Jack Waterford

Jack Waterford 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.

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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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12 comments so far

  • There was never any direct evidence linking Eastman to the murder of Winchester, believed by some to be an inside job. However, Eastman was aggressive, unpredictable, litigious and a nuisance to the police. Was imprisoning him a convenient way of killing two birds with one stone?

    Commenter
    Alpha
    Location
    Canberra
    Date and time
    May 02, 2012, 12:10PM
    • A very senior public servant once said to me "Jack, you might be right in expressing doubts about Eastman's conviction. But even if he were framed, it wouldn't be the greatest miscarriage of justice I've ever heard of''. But I suspect that this has been a big part of the problem. Eastman is difficult and abrasive. He has annoyed many many people, not least people who have tried to help him. A good many such people, even as they too harbour doubts about the case, no longer care very much.

      Commenter
      Jack Waterford
      Date and time
      May 02, 2012, 12:57PM
  • I suspect this will all go nowhere again, too many people have an interest in keeping him in gaol.

    Commenter
    slamskram
    Date and time
    May 02, 2012, 12:30PM
    • It would certainly be much more convenient all around if we had no doubts about the competence, efficiency and calibre of the ACT, the competence and calibre of our prosecution authorities, and the manner of conducting criminal trials in this territory. Or the guts and character of our politicians. If Eastman were demonstrated to be innocent, it would fundamentally shake confidence in all these institutions.

      Commenter
      Jack Waterford
      Date and time
      May 02, 2012, 1:01PM
  • There were many rumours that it was an inside job, one of the more dramatic being that a hitman was flown into a private rural airstrip near Canberra and flown out within an hour of the crime.

    Whatever the truth, Eastman was not convicted on solid evidence.

    Commenter
    Beta
    Location
    Canberra
    Date and time
    May 02, 2012, 1:03PM
    • Eastman had a trial. He was found guilty. The evidence followed a long list of circumstantial events, as it would have to be in these cases. He subsequently has had more appeals than a cat has lives - all funded by us taxpayers. These appeals were based on this or that minute possible issue that have been presented to various courts and thrown out. Now - some possible person who apparently 'borrowed' Eastman's car once some time and supposedly placed a gun in his car boot, is just another grasping at straws. Where was this evidence at the trial or later appeals? Will we be looking at toe nail clippings since they were not considered along the way.?
      This man has had more than a fair go. All this mulling over the coals that tries to cast doubt on past verdicts, judges, courts and processes is from a few people's belief he is not guilty. I have no interest in keeping him in goal. He has been found guilty - he belongs there.

      Commenter
      GAMMA
      Location
      Kambah
      Date and time
      May 02, 2012, 1:29PM
      • And yet the range of each and every one of these appeals has been very much restricted, and his right to have them at all fought by the DPP (up to the High Court on a number of occasions). A number of judges, including High Court judges, have expressed concern about aspects of the case. So have a number of forensic experts, including the world's leading expert on gunshot residue, who says, flatly that what the jury was told was wrong. (What the jury was told was said, incidentally, by a man whom the prosecutor forgot to tell the jury had recently been dismissed by the Victoria Police forensic science unit over his style of analysis, and whom judges of the Victorian Supreme Court had expressed no confidence.)

        You seem to suggest that being "found" guilty is more important and significant than being guilty. Perhaps the next step should be to not bother with trials, or appeals, at all. We could, perhaps, lock people up if the police think they are guilty.

        Commenter
        Jack Waterford
        Date and time
        May 02, 2012, 1:41PM
    • What a strange notion of justice Mr W. has, completely disregarding the rule of law when it does not suit his personal doubts. He seems to be suggesting that people who work in the relevant legal circles are conspiratorial or incompetent by their very nature.

      Mr Eastman did little to assist himself at the trial and the jury likely found him not only to be distasteful, but also unreliable, both in terms of what he evidence he gave and what he did not, eg. his memory failed him at a number of very convenient times. Any doubts hey may harboured likely fell away as the trial progressed and, due to Mr Eastman's instructions, the circumstantial aspects of the case were largely untested. This may or may not have been due to his alleged illness, but that was a matter for the court, through Carruthers, J., not Mr W.

      Commenter
      jd
      Location
      warakurna
      Date and time
      May 02, 2012, 2:38PM
      • You are quite right. Lets put Lindy back in jail too. And the Guilford 4. And those Western Australian "murderers" whose guilt, in part based on "confessions" said to have been made to detectives was repeatedly affirmed by  Western Australian judges until it was demonstrated that the men were actually innocent. Jorors, and jurists, are not always the best judges.

        Commenter
        Jack Waterford
        Date and time
        May 02, 2012, 2:58PM
      • There has been no reference to putting people back in gaol, although I am certain you are referencing the rule of law being applied through the available legal channels. The use of hyperbole by Mr Eastman was not very convincing at the time of his trial, neither is it convincing in your argument. Jorors (sic), as you'd be aware from your lengthy studies at ANU, are not judges in our legal system. In any event, once again, you appear to know better than the duly appointed people who sat through the case and were tasked with their role - perhaps it would have been best to take the case and run it before you, or one of your "high ranking public servants" (ave Jack!).

        Commenter
        jd
        Date and time
        May 02, 2012, 3:21PM

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