Highly sensitive evidence that could potentially help David Eastman in his long-running case will remain secret and out of the reach of his lawyers, after a successful push by federal and Victorian police.
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But lawyers for a "settled" Eastman have won a separate battle on bail, successfully arguing to further relax restrictions preventing him from obtaining a passport and travelling interstate without notification.
Preparations are continuing for a second trial for Eastman over the alleged murder of Assistant Federal Police Commissioner Colin Winchester in 1989, after the Supreme Court quashed his conviction last year and set him free.
Eastman is set to launch a stay application to prevent that trial from ever taking place, on the basis it cannot now be conducted fairly. He is also expected to seek the judge presiding over the case, acting Justice Anthony Whealy, be removed.
The ACT Supreme Court heard on Thursday that Eastman was now settled, living in a local property, participating in the ACT government's throughcare program for released prisoners, and engaging with support from St Vincent de Paul.
His lawyers had issued subpoenas to the Australian Federal Police and Victorian Police, seeking sensitive information relating to a witness expected to give evidence in the second trial, should it take place.
The defence says theevidence of the witness is important to their case and would tend to be exculpatory of Eastman, the court heard.
But the federal and Victorian police forces both claimed public interest immunity, a principle that allows evidence to be kept secret if it is clearly in the interest of the public.
Acting Justice Whealy ruled on that claim on Wednesday and upheld the immunity claims of the police.
A small group of lawyers for Eastman will be able to gain restricted access to some of the confidential material, and to redacted versions of other documents. But some aspects of the evidence will be kept entirely secret from them.
Eastman's barrister Christopher Boyce, SC, told the court that would mean that the identity of the witness, whose evidence would be "crucial" to the defence, would be hidden from a jury.
Mr Boyce said the situation would create "extreme prejudice" for Eastman.
He said the prosecution was likely to attack the witness' reliability, making it crucial that the jury members were fully able to assess him or her.
"That witness should be viewed by the jury," he said.
Acting Justice Whealy said directions could overcome any prejudice arising from the way the witness gave evidence.
Later, Mr Boyce argued for a relaxation of Eastman's bail. He said his client had been in the community for six months, had complied fully with his bail conditions, and posed no risk of flight. Mr Boyce said the test for whether bail conditions should remain was whether they were "necessary" in achieving the aims of the ACT's bail laws; namely ensuring an accused appears in court, does not interfere with witnesses or evidence, and does not reoffend.
"The time has come, now on this bail review ... to return Mr Eastman back to the status quo, or the position that existed before the trial," he said.
Before his 1995 trial, Eastman was on bail simply on his own word that he'd reappear in court. He never breached bail.
But following Eastman's release from the Alexander Maconochie Centre last year, much stricter bail conditions were put in place.
Some of those have since been removed, including a restriction preventing the contact of witnesses. He has still been restricted from obtaining a passport, leaving Australia, or travelling interstate without notifying authorities.
Mr Boyce argued those conditions were not necessary. Acting Justice Whealy agreed and removed the conditions.
Eastman has also been reporting to the Justice and Community Safety directorate once a month, and Mr Boyce tried to change that to allow him to report to the ACT Supreme Court registrar every six weeks. That argument failed, and Acting Justice Whealy said he had no evidence that the court was an appropriate place for Eastman to report.
Eastman's bail still requires him to accept the supervision of ACT authorities and comply with residential conditions.
Eastman's lawyers will return to court on Friday.
