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Half-hearted not good enough

Date: November 08 2012


Jack Waterford

Another inquiry is being held into the conviction of David Eastman with more questions being raised about the seriousness of the action.

The assassination of Assistant AFP Commissioner Colin Winchester will be more than 24 years old before the latest inquiry into the safety of the conviction of the man accused of murdering him begins next year, but decisions made over the next few days may have a vital impact on what happens.

Thursday sees a directions hearing before Kevin Duggan, the retired South Australian Supreme Court judge conducting the inquiry. Duggan has appointed another croweater, Liesl Chapman, SC, a well-respected criminal lawyer, as counsel assisting. Her remit, and indeed her formal independence from the judge, is not as yet clear, though it might be by the time the day is over.

In some inquiries, as at some inquests, counsel assisting are, in effect, operating on instructions from the presiding officer, both as to the scope of the inquiry and the witnesses and evidence to be called. They are, in effect, actors in a play directed by the presiding officer, who knows the script in advance. In other cases, presiding officers stand aloof from the case until it is presented in an open hearing.

The latter is the preferable course, particularly in an inquisition, if only because of the risk that a judge's role in ''managing'' an inquiry often suggests prejudgment of issues. This is frequently noticeable at inquests.

If the inquiry has been allocated a budget, it has not yet been confided to anyone. Judge and counsel assisting have been given chairs in the judges' quarters at the ACT Supreme Court, and the part-time services of the Chief Justice's associate.

If the inquiry is to be adversarial, other than an inquisition, the judge may see himself simply as a pseudo court of appeal, focused only on determining if any evidence or argument presented, presumably by counsel for Winchester's convicted killer, David Eastman, raises matters that have not been agitated before, that could not have been agitated before, and that raise doubts about the innocence of Eastman.

Apart from counsel assisting, the judge might not think he needs contradictors, or to consider representation for other parties, such as the Director of Public Prosecutions, or police or forensic investigators. Indeed, he might think he needs only a copy of a previous decision by Justice Tony Besanko, also of South Australia, who seems to think that any conceivable doubt has been eliminated by successive binding rulings from various appeal courts. Not fresh, not new - ergo, obviously, justice has been done.

If the inquiry were to go this way, it is likely to be of short duration, with a passive judge, a largely passive counsel assisting, able to be conducted, perhaps, by written submissions exchanged by mail.

That is the outcome that seems to be desired by the ACT DPP, Jon White, who is continuing with efforts to seek to limit the inquiry even if, on the face of it, he is both too late and before the wrong tribunal.

Duggan's inquiry follows a decision by ACT Supreme Court judge Shayne Marshall. Duggan's jurisdiction is defined by the terms of reference given by Justice Marshall who, in effect, adopted every criticism of the case made by counsel for Eastman as the terms of reference.

White believes that many of these points are too wide, and raise issues that are either not new or which could have been raised before, and that, as a result, Duggan does not have the power to go as wide as Marshall directed.

He might be right, but his argument is with Marshall, not Duggan. And his complaint is more about the law, rather than the politics, of the matter. That approach is why there has been so little resolution of doubts about the outcome. Eastman has had inquiries before - some as a result of hints by High Court justices that there should be an inquiry. Judges, offered a ''smorgasbord'' of complaints about the trial, have chosen the morsels they wanted, putting others aside. Even then, previous ACT DPPs have gone to higher courts seeking to sharply limit, or even to prevent altogether, the inquiries held. They have not been successful but their resistance, which has cost hundreds of thousands, means the case has never been extensively reviewed, even if any number of bits have had scrutiny. Eastman's campaign to prove his innocence has given him a nuisance reputation for non-stop litigation over 17 years. But that campaign, which has also cost the public purse dearly, has yet to permit agitation of many of the points that might be put on his behalf. Some of that, of course, is a result of early unwillingness to have his mental health in contest.

The unease this has excited, even openly from High Court judges, is bolstered by the fact that the appeal grounds - and the terms of reference of the Duggan inquiry - embrace strong criticism of the forensic and ethical conduct of individuals involved in the prosecution case. In this sense, it is inevitable that some will think that the DPP is conflicted between defending the conviction and defending the conduct of counsel involved in the case. (White, of course, was not DPP at the time of the trial.)

Duggan is entirely at large in how he conducts the inquiry, so long as it is into the issues or questions posed for him by Marshall, and he complies with the rules of natural justice. It ''is not bound by the rules of evidence but may inform itself of anything in the way it considers appropriate; and may do whatever it considers necessary or convenient for the fair and prompt conduct of the inquiry''.

The reason for a review is to resolve doubts about whether Eastman is or is not guilty of murder. In that sense, it is well within Duggan's power to assemble a team to critically review the chain of evidence. This is what regularly happens in reviews in some other jurisdictions.

Attorney-General Simon Corbell has always had the power to order a wide-ranging inquiry, and Justice Marshall was highly annoyed that Corbell shirked doing this while, in effect, urging the judge to order a narrow one. An inquiry at the executive government's motion is probably less constrained, both as to subject matter and procedure, than one ordered by a judge.

Even now, it is possible for the government to change the remit of the inquiry - if only to stop DPP resistance to scrutiny of its actions or further public frustration about the deviation of a procedure designed to allay doubts about whether justice has occurred towards a technical and legalistic review of whether the i's were properly dotted, and the t's properly crossed.

Some might say that the need for a wide, rather than, narrow review is because Eastman committed forensic suicide during the trial. Both the trial judge, Ken Carruthers, and the Crown prosecutor seem to have believed that Eastman was faking a mental condition in the hope of aborting the trial, and that he should bear the consequences of tactical choices he made and get no concession or mercy.

Tomorrow Katy Gallagher announces a new cabinet, and there is some hope that Shane Rattenbury rather than Simon Corbell is made Attorney-General, and that one of his first actions is to put the inquiry on to a better basis.

Corbell has been timid, seemingly terrified of annoying police, and has never manifested any anxiety to see critical scrutiny of Canberra's justice system in operation. Those who would hope Rattenbury might be adventurous should contemplate that the Winchester murder involved the biggest, widest and most expensively resourced AFP investigation ever. The public might feel entitled to expect that it was the absolute showpiece of investigative competence, detachment and professionalism. Those who fear that it fell significantly short of this ideal are entitled to wonder what the standard might be in a more ordinary case.

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