His findings reflect ill on the most expensive and one of the most lengthy murder investigations in Australian history, on police competence and good conduct, on the competence of an expensive and well-resourced prosecution, the capacity of the ACT justice system to provide a fair trial, and on public confidence in the capacity of that system to detect legal and forensic error.
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Right to the end, counsel for the ACT DPP and the AFP were attempting to prevent the inquiry, and complacently denying extensive public concerns about the safety of the verdict.
As one of many who has agitated those concerns for nearly 25 years, I can say that little of the material which so disturbed Acting Justice Martin was new. It has been about for a long time – simply not adequately investigated by the justice system, and by a very antiquated and inadequate system of external review. A good many of the doubts were not, of themselves, focused on whether Eastman was guilty or not. It was, instead whether the material produced by the Crown at trial, and the way that the trial was conducted, proved Eastman’s guilt beyond a reasonable doubt.
Acting Justice Martin, like many other judges who have looked at the case, has rejected many of the concerns which have been expressed. He is not worried about Eastman’s fitness to plead at trial, and apparently thinks, as the trial judge and prosecuting counsel thought, that Eastman’s forensic antics during the trial were a clever stunt intended to abort the trial, not the product of mental illness. I have, over the years, spent a good deal more time knowing, observing and listening to Eastman than any lawyers or policeman, or even psychiatrists, but, even allowing a lack of psychiatric training, I wish I was more convinced that this was always so. Martin found that key forensic evidence was faulty.
Given that the case occurred in the aftermath of forensic disasters in the Chamberlain and Splatt cases, it seems amazing that the defects in the evidence, and genuine doubts about the calibre, competence and good conduct of the major forensic witness was not discovered, and that what Martin thought to be police failures to communicate with prosecution lawyers meant that the prosecutions were unaware of adverse information about the bona fides of the witness. Nor were Eastman or the defence team made aware of doubts by other scientific witnesses about the evidence of the major witness.
The judge did not hold prosecution lawyers individually responsible for such shortcomings; rather, he decided reasonably, that discussion about the prosecution’s duty to disclose all the evidence – helpful or unhelpful – extends to police investigators.
The judge was also critical of police harassment that was obvious from the start, even if it was blandly denied by police, and complacently ignored by the legal and administrative system, including the Ombudsman’s office.
It incidentally established the police under investigation lie to investigators without any sanctions. But the system did not show that the failure of police to bring a convincing case flowed from efforts to frame Eastman. Rather it flowed from tunnel vision, probably a want of experience, an insufficient attention to detail, and, most probably, investigators who were far too close, emotionally and intellectually, to the victim.
The investigation lacked detachment. The ACT, and Colin Winchester, deserved a lot better.
The Martin inquiry was quite constrained by its legalistic format, and by the reluctance of the Attorney-General, Simon Corbell, to order an open-ended inquiry.
That did not reduce expenditure; indeed it probably increased it, as did the cost of efforts, at public expense, by police and prosecutors to frustrate an inquiry that has now declared a plain miscarriage of justice.
What is needed now is a further inquiry – not one focused on guilt, but on whether ACT policing, the prosecution system and the executive justice system is in good hands.
Given the doggedness with which everything done before has been defended, and the complete failure of police and prosecutors to hold any sort of frank review of efforts made a generation ago, with investigators now retired, it would be simply too easy to declare that it all happened in another time, and another place.
Given that this was the biggest thing AFP detectives have done since establishment in 1978, it is hard to be sure they would do any better today.
