David Harold Eastman is arrested by Commander Rick Ninnes. Photo: Palani Mohan
The Eastman inquiry will have a sensational start on Guy Fawkes Day when counsel for the judge who presided over the 1995 trial seeks leave to appear to protect his good name against aspersions he has been warned are coming from the inquiry itself.
The now long-retired Ken Carruthers has been served notice by the board of inquiry that it is likely that there will be severe criticism of one part of his management of the trial. The general nature of the criticism was at one stage outlined in an open tribunal hearing, and certainly made a few of the audience, including me, sit up. Soon after, however, Liesl Chapman, SC, counsel assisting acting Justice Brian Martin, realised that the material had been put in the public domain. She asked successfully for a host of suppression orders, so as to not frustrate inquiries.
So I cannot, yet, tell you what it is.
It is understood that Justice Carruthers has been served with the statements and materials likely to make him the subject of serious personal and professional criticism.
When initially approached by the inquiry investigative team, it is understood, he declined to give any sort of statement. He drew attention instead, through a firm of Sydney solicitors, to the general immunity that any judicial officer enjoys against being questioned, asked, or held to account for anything while performing judicial functions. It can be expected this immunity is not now being waived, and that it will not be possible to take any sort of official action against the judge - in any event long retired - if the criticisms made of his conduct are sustained. It is, however, very difficult to imagine how the judge will escape stringent criticism if the inquiry is to conclude suggestions made in a number of statements - none from people associated with the Eastman camp, or the defence during the trial - are found to be sustained.
Indeed, a question will arise immediately about whether the inquiry will have grounds for concluding there was a mistrial.
One can expect, however, that it will be put to the inquiry judge that he is not, as it were, sitting as a court of appeal over Eastman's conviction for murdering Colin Winchester, assistant AFP commissioner, in 1989. It is, instead, asking itself, whether there is a doubt about Eastman's guilt. Some can be expected to argue that whether Eastman received a fair trial, whether evidence should have been accorded the weight it was given, or whether Eastman suffered from forensic choices made while he was mentally unfit to be tried, are now immaterial. The question on which the inquiry should be focused is whether Eastman did it or not, it will be said.
But some of those who will argue this most virtuously have done very little to assist the inquiry in any fundamental examination of that sort. Their purpose has been to resist any examination of the trial or the conduct of those involved in the investigation.
The office of the Director of Public Prosecutions, for example, has its focus on two issues quite removed from any guilt investigation. One part opposes any further inquiry whatever, on the basis that Eastman has by now made all points, in courts or before inquiries, that he is allowed to make. [Though they will find it difficult to dispute that the material involving the judge is fresh and cogent.] Another is on defending the office and the prosecution team against criticisms implicit in the inquiry's terms of reference. These involve alleged failures by the prosecution to inform the defence, or the jury, of evidence that might have been useful to a defence.
Likewise, the Australian Federal Police have done nothing to refresh the case presented, first to a coronial inquest in the early 1990s, and later to the trial of Eastman. Judging by remarks made by counsel assisting during directions hearings, the AFP has not even been particularly helpful in supplying inquiry staff with names and
addresses of former AFP officers. The AFP dragged its feet for well over a year producing to the inquiry statements, running sheets, exhibits and other materials it could still find. Its investigation began 24 years ago, long before modern case management, or computer files, so it is not surprising the records are in a mess - and still, probably, incomplete.
But it was not until about a month ago that the AFP suddenly disgorged 40,000 relevant documents, entered onto a primitive spread sheet. It may prove to have been simply too much for all of the other teams to absorb, sort and manage in the time they have had left.
Until then, the AFP inquiry team had been insisting that documents would be produced only by subpoena. When it suits, even in ordinary public relations terms, the AFP can put on a particular cloak of righteousness pretending that everything is above board, but that the law, particularly privacy law, forbids the disclosure of any information actually establishing this. This has never been any sort of barrier when the AFP is polishing its own chest, or poisoning the public well against particular classes of people charged with offences. It is also claiming public interest immunity over its investigations into the possible involvement of Calabrian organised crime, or corrupt NSW Police, in the murder.
It says disclosure of intelligence materials, and reports, prepared more than 23 years ago can still do great damage to the AFP and its informants. It might expose investigative techniques still in use, and reveal the names of some of its informants. The public interest in suppressing such material outweighs any interest in its being considered in any inquiry as to whether a man was properly convicted of murder.
The AFP is also rejecting freedom-of-information requests for materials on the supposition that it might be improper to make public anything which might be useful at the inquiry. Alas, the Information Commission is so far behind in processing appeals that even the Eastman inquiry - doomed to go for years - may be over before any appeal is considered.
The AFP investigation into drug or police corruption links to the Winchester murder was one of several parallel investigations begun in the immediate aftermath of the murder - initially declared by detectives to look like a professional hit job. The national AFP team focused on this, concluding it had strong evidence pointing to a hit by organised crime. But the inquiry was closed when the major team, led by ACT detectives, focused on David Eastman, a former Treasury officer who had been retired because of mental illness, who was said to have a grudge against Winchester because Winchester had refused to intervene in an assault prosecution against Eastman. AFP legal advisers thought it would be impossible to run a prosecution case against Eastman if it could be said there were ongoing inquiries into the possible guilt of other entirely unconnected people.
There have been many public expressions of doubt, including by judges and some uninvolved police, about Eastman's guilt, or whether it was proved in court, in the 18 years since he was sent to jail for life. Eastman has maintained his innocence. There has been non-stop litigation, whether in appeals, inquiries, or efforts to get inquiries started. But the AFP has never reviewed the case it presented, checked forensic materials by new, modern techniques, or performed any sort of cold-case reconsideration.
Even an exemplary investigation - and Carruthers, in his sentencing remarks declared unprompted that this was one - can benefit from detached review. A very senior police officer of the time, who had close knowledge of the investigation, has, for example, conceded to me that the main investigative team - all colleagues and close ''mates'' of the victim - were too emotional, and insufficiently detached. There have been suggestions of tunnel vision - a propensity to see as relevant only material confirming suspicions, and to reject or minimise material that does not.
Some of the scientific evidence has been strongly criticised, not least by modern lights that seriously dispute confident conclusions then made. So also has been a principal scientific witness, used to make damning conclusions from gunshot residue. The jury was not told that he had been discharged as a Victoria Police forensic scientist after an inquiry into his conduct and science. He had also been accused of acting more as an advocate for the ''side'' - generally the prosecution - which had engaged him, rather than an independent witness.
The AFP knew this, but it remains to be seen how much the office of the DPP did. At the trial, the ''proving'' of the expertise and qualifications of the witness was capable of suggesting he ought to be given a Nobel prize, and the jury was not told that on some critical matters - say, about whether a silencer had been used - the invariably certain, even dogmatic witness, had changed his mind since he had given equally certain and dogmatic evidence at the inquest.
There will be close attention given to the use of Robert Milton, a psychiatrist retained by the AFP team to advise on how to deal with the irascible Eastman. Milton prepared a number of reports on Eastman, using information from a compensation case about Eastman's condition, and evidence volunteered by doctors who had treated him. He thought Eastman still seriously ill, and dangerous. He was often in court watching his behaviour and writing fresh reports.
It has been alleged that one of the uses these reports were put to was to help police to devise tactics of baiting and harassing Eastman in the hope that he might ''snap'' and say or do something putting his guilt beyond any doubt. This included obvious close surveillance, ''anonymous'' phone calls, and friendly, if menacing, encounters, one of which involved a senior investigator mashing Eastman's ice-cream.
The ethics of such techniques, and whether material they were capable of evincing proved anything, is one thing. Not much emerged. But it made Eastman obsessed and paranoid, including during the trial, about harassment, real or imagined, by police and others. He irritated judges by his insistence that they deal with the harassment as an abuse of process before they dealt with the case against him. It was, in major part, Eastman's clashes with judges and his own counsel over such matters that led to much of the drama of sacked and later re-engaged counsel, and his refusal, at times, to participate which made such a farce of proceedings.
Carruthers was firmly determined not to let the trial be distracted or diverted by such issues. His sentencing remarks made it clear he had believed all along that Eastman had been putting on all of the evidences of a florid mental disorder in an effort to abort the trial.
Lawyers for Eastman had been expressly forbidden to raise the issue of whether he was fit to plead. One sought professional ethical advice about whether he could raise the issue against instructions. He was told - wrongly as now everyone agrees - that he could not.
Although the prosecution had read Milton's reports, or most of them, it did not raise fitness to plead. Nor did it seem to occur to Carruthers. The existence of Milton's reports emerged very late in the case - they had not been disclosed to the Eastman team.