David Eastman's bid to prevent his second murder trial has been vacated and will be significantly delayed, after it was revealed a serious illness has left his barrister unable to take further part in the case.
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The news has forced the court to vacate the date set down to hear Eastman's stay application next month, and could potentially threaten the six months set aside for the retrial between February and August next year.
Eastman is trying to prevent his second trial for the murder of Assistant Federal Police Commissioner Colin Stanley Winchester, arguing media coverage, delay, the death of witnesses, the destruction of exhibits, and other factors mean it cannot possibly be conducted fairly.
His lawyer Michael Toole told the court there was simply no way they could find a new senior counsel to act in the stay application before it began in mid-July.
That's because a new barrister, even if Eastman finds one quickly, could not possibly get across the vast and complex material involved in the case in time.
But prosecutors opposed delaying Eastman's stay application, fearing such a move would threaten to disrupt the retrial, when has been set down for six months from February.
Prosecutor Keegan Lee argued Eastman still had a junior counsel who could represent him, and that Legal Aid had acted in the case since 2012, meaning they were well across the material.
Acting Justice Michael Wigney disagreed, finding there was simply no other alternative but to vacate the stay application.
He said it took months for the judge who was recently removed from the case, Acting Justice Anthony Whealy, to get across the voluminous material involved.
"The notion that a new senior counsel could do the same in two weeks, with the greatest respect, is absurd," he said.
Acting Justice Wigney was clearly shocked by the news that Christopher Boyce, SC, had been diagnosed with a serious illness.
When Mr Toole first told him the illness rendered Mr Boyce unable to take any further part in "this matter", the judge replied:
"Sorry, when you say 'this matter', you mean?"
Mr Toole replied:
"Mr Eastman's matter."
Acting Justice Wigney described the news as "very troubling".
"I can't see how the stay application could possibly go ahead in July," he said.
When the prosecution objected to delaying the stay application, he questioned what they would do if they were left without a senior counsel weeks away from the stay application.
Mr Lee responded that it would "depend on the circumstances".
Eastman is facing a retrial for the murder of Mr Winchester outside his home in 1989, after his initial conviction for the crime was quashed over serious flaws with the forensic analysis linking him to the scene.
But his stay application will argue that is now not possible for him to have a fair trial.
The judge who was to hear the stay application, Acting Justice Whealy, was removed from the case by the ACT Court of Appeal earlier this month, after Eastman claimed he may be seen to be bias because of links to the man who prosecuted the original 1995 trial.
The ACT Supreme Court is still looking for another judge to replace Acting Justice Whealy.
That also contributed to the decision to vacate the stay application.
The court will consider how to proceed with the stay application on Thursday, when the matter is listed for a directions hearing.
