It is an inquiry that the ACT Supreme Court - so often, including on Wednesday in a separate matter, the bane of David Eastman - admits has uncovered issues ''which cry out for resolution''. It should never have occurred, three judges think, but now that it is there, it would be unconscionable to stop its progress.
In saying this, the court upheld the ACT Director of Prosecutions, Jon White, on every submission in his efforts to stop the inquiry - bar his last one. By contrast, counsel for the ACT Attorney-General, Simon Corbell, and for Eastman were thought wrong on every argument. The result of Thursday's decision is one in which nearly everyone involved, but perhaps particularly the ACT Supreme Court, looks silly. Except for the inquiry team and its acting judge, Brian Martin. Simon Corbell was unwilling to take political responsibility in 2012 for an inquiry into the safety of the 1995 conviction of Eastman for the 1989 murder of assistant commissioner Colin Winchester. He accepted the need for one but wanted the ACT Supreme Court to order one under its antiquated and much more expensive procedures. The case has so far probably cost ACT taxpayers about $6 million, of which about half was entirely unnecessary.
An ACT Supreme Court judge, Shayne Marshall, refused to oblige in ordering the inquiry, so Corbell successfully appealed. Marshall then granted the application without showing that he had considered the grounds argued by Eastman. The DPP was unhappy, but as he was told repeatedly by the inquiry and now by the court, made his complaints in the wrong quarters. A full court of the Supreme Court has now found that Marshall was wrong to grant Eastman a judicial inquiry on the submissions and grounds, not least because these had been effectively ruled on before by another judge.
Had Marshall followed the rules, we would have the complacent conclusion that Eastman was simply wasting the court's time again. How dare his lawyers, or he himself, impugn the capacity of the ACT justice system to produce a fair outcome, by proper processes, and the right verdict, least of all in the most important murder case the ACT had ever investigated? Especially when so many judges had reviewed the case, and in many cases, and made firm and confident statements about the safety of the verdict?
Alas, the very delay caused by the prosecution has served to reinforce all the old doubts about the ACT's criminal review system, about the integrity of criminal investigations and scientific evidence, and about the competence of police and their close political masters.
And whether a Supreme Court, which has specialised so often in getting these things wrong, can ever be the vehicle of setting them right.
The wrongly instituted inquiry - started 20 months ago and now concluded - has found that some of the evidence complacently considered, and ticked off, by numerous Supreme Court judges over the years, was seriously flawed, perhaps made up. It had pointed to serious procedural irregularities. For the first time in 20 years, a Supreme Court bench has conceded that there are real questions about the safety of the verdict. The DPP, the AFP and senior detectives, and the most significant forensic witness, have been served with notices warning them that they will probably be criticised in the report. During submissions, Justice Martin appeared to accept that prosecution failures were inadvertent, but made it clear he nonetheless thought the consequences significant to the fairness of the trial.
His findings will go to the Supreme Court - which one might hope to be constituted by judges whose own past reflections on the case will not be haunting them - next week. One way or another, their deliberations, and the failure of the ACT to adopt a modern criminal review system, may have the reputation of the ACT justice system, and its custodians, in an unwelcome spotlight for some time to come.