If David Eastman had been convicted of murder in England or Scotland then the untidy stand-off between the judiciary and the ACT government over his case would not be happening. That is because, unlike Australia, Britain and Scotland (Scotland has a slightly different legal system to the rest of Britain) both have independent criminal cases review bodies which examine thousands of cases where there are claims of wrongful convictions every year. The Eastman case is a perfect example of why such an organisation ought to exist in each state and territory, or at the national level in this country.
Eastman was convicted in 1995 of the murder of former Australian Federal Police assistant commissioner Colin Winchester in 1989. He is serving a term of life imprisonment. Justice Shane Marshall, a respected senior Federal Court judge, has found that there is significant risk the conviction was unsound and that an inquiry must be held into the case. This is something the ACT government, in common with the powers that all state and territory governments have, could have done of its own volition rather than putting Eastman and his legal team through the court process. A point well made on Monday by Justice Marshall.
Governments of course are not too keen on wrongful conviction inquiries and there are many prisoners in this nation who are serving sentences for crimes they did not commit. Wrongful conviction inquiries can show police or prosecutorial misconduct, or poor forensic practices. Governments are morally compelled to compensate victims of wrongful convictions. In summary, relying on the political process to grant a person their right to have new evidence tested is unfair because the urge to resist the establishment of such inquiries outweighs the imperative to ensure justice is done.
That governments are reluctant to allow a potentially innocent person to be able to argue their case before an independent inquiry was exemplified by Attorney-General Simon Corbell who defended himself and his government against the attack by Justice Marshall by arguing that, his ''view as attorney, has always been that an inquiry ordered by a government should be the last resort. It is better for these matters to be dealt with, if they can be dealt with, by the court and that's what's occurred in this case.'' Corbell is wrong. Governments, and particularly the Attorney-General as first law officer, ought to be taking the lead on ensuring that justice is done and that if there are real doubts about a person's conviction for a serious criminal offence that has resulted in their loss of liberty for a lengthy period, move to establish an inquiry immediately.
It is also arguable that the courts are not the place to order an inquiry because as we have seen in Eastman's case they can lead to lengthy litigation.
This is why a criminal cases review body ought to be established. The British and Scottish model is a good one. Staffed by experienced lawyers, forensic and police experts, cases are reviewed to see if there are grounds for arguing a wrongful conviction. If the case meets the required threshold it is sent back to the courts for an assessment to be made about guilt and in some cases the length of sentence if it is found that a person committed a crime but a less serious one.
Between 1999, when it was established and this year, the Scottish Criminal Cases Review Commission has sent 107 cases to the courts for review and in 58 of those cases convictions have been overturned or sentences reduced. The British body, established in 1997, has sent 461 cases to the courts for review and the courts have overturned 325 convictions. While these commissions have their critics, with some in Britain saying that they are too conservative in the number of cases referred back to the courts, they are a very good mechanism for ensuring that innocent people do not remain behind bars, which is the ultimate sanction any one pays in a democratic society, short of loss of life.
Only in South Australia has anything approaching the British/Scottish model been proposed. A parliamentary inquiry in South Australia has looked at a proposed criminal cases review commission and baulked at that concept, proposing instead a forensic review panel which will enable convicted individuals to argue about forensic evidence that helped convict them.
Eastman's case ought to get ACT lawmakers thinking about how to better ensure that claims of wrongful convictions are tested fairly and at arm's length from politics. The criminal cases review model does both those things.
It is imperative that in a democratic society we protect against the evil of the innocent being convicted. It simply requires the political will to establish what citizens of Scotland and Britain have had access to for almost two decades and which have set nearly 400 innocent people free.
Greg Barns is a barrister and criminal law spokesman for the Australian Lawyers Alliance