David Eastman is without representation, other than by a legal aid solicitor, today after three barristers briefed by him have found themselves forced to stand down from an inquiry into his conviction for the 1989 murder of Canberra's top cop.
But this is not because of any decision or action by Eastman, who has been famous in the past for abruptly dismissing legal representatives if he thinks they have failed to follow his instructions.
Instead it is because the ACT Director of Public Prosecutions, Jon White, insists that all three of the lawyers are conflicted, if in different ways, or that otherwise they should not appear.
Dr Peggy Dwyer, appearing for the DPP, has said it would be embarrassing for Eastman's principal representative, Terry O'Donnell to appear, because he is likely to be a witness subject to cross-examination about the discovery of a rifle said to have been in Eastman's car. Counsel assisting, Liesl Chapman, SC, has said she agrees with the DPP.
The DPP has also objected to the presence on Eastman's team of John Harris, SC, who, in an earlier inquiry into Eastman's 1995 conviction for the murder of Assistant Commissioner Colin Winchester of the AFP, was counsel assisting Justice Miles. Mr Harris has indicated that he would not be making submissions into questions of Eastman's fitness to plead at his trial, but the DPP has said that his earlier brief means that he is conflicted. Mr Harris told the board, Justice Kevin Duggan, of South Australia, yesterday that the president of the ACT Bar Association, Greg Stretton, QC, had indicated that he agreed with the DPP that Harris was conflicted. Harris said he had other advice, but did not believe he could continue for the time being until he could decide what to do.
The DPP has also objected to the presence of Alyn Doig, another barrister, on the Eastman team. Doig has previously worked as a prosecutor in the DPP's office, and, apparently, was involved in some matters involving Eastman prior to his 1995 trial. Doig has told the court that he has no recollection of being involved in any matters involving Eastman, and does not believe himself conflicted. He was, however, notified of the DPP's objection only late on Wednesday, and had not had time to take advice from the Bar Council. He anticipated, however, that Stretton's advice would be similar, and thought, likewise that he should stand aside for the time being.
The departures have completely disrupted the timetable for the inquiry into Eastman's conviction, which had been due to start on March 4. Justice Duggan was told yesterday that almost all of the older members of the ACT Bar had been involved one way or another in aspects of Eastman litigation, and that the search for counsel might have to go interstate. Robert Richter QC is retained in the matter, but is involved indefinitely in a long-running criminal trial in Western Australia, to be followed afterwards by a Royal Commission into Victorian bushfires.
The litany of potential conflicts was not finished, however. A barrister on the inquiry team, Mr J Kellaway, served as a research assistant to Justice Miles, and as tipstaff to a magistrate taking depositions for Justice Miles, in an earlier inquiry. He says he has no conflict of interest, and Justice Duggan cannot see that there is a risk of reasonable observers thinking there might be one.
But if the retirement of three lawyers from the Eastman team has reduced the capacity of the inquiry to get at the truth, it has not reduced the squeeze in the courtroom. Yesterday Mr Andrew Berger, in-house counsel for the Australian Government Solicitor's office, appeared for the Australian Federal Police. There were, I think, seven other young members of the AGS present in court, as well as two serving police officers.
Justice Duggan has set down March 4 – the day originally intended for the start of the inquiry – for a further directions hearing.
