ACT Attorney-General Simon Corbell awaits advice from his Solicitor-General on what he should do about the inquiry into the conviction of David Eastman for murdering assistant AFP Commissioner Col Winchester in 1989.
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He can do nothing, or nothing much, since there is a process of sorts on foot as a result of Friday's decision by an ACT Supreme Court judge, Shane Marshall. Marshall's decision that a doubt - indeed an array of doubts - about the safety of Eastman's conviction has been raised, requiring an inquiry, means that the ACT Chief Justice, Terry Higgins, must soon convene a hearing to appoint someone - usually a magistrate - to take preliminary evidence, to hear legal submissions and to prepare a report for the ACT Supreme Court. Corbell could leave it to Higgins, simply appointing a lawyer to represent the interests of the ACT in maintaining the conviction.
He could dip out even more by telling the Director of Public Prosecutions to defend it. But Corbell has reasons to get more involved. He knows, or will soon be told, that the Legal Aid Commission budget of $4.8 million dollars is pretty much committed, or overcommitted, for routine cases over the year ahead. Even the extra $200,000 always put aside for an ''expensive cases fund'', for the inevitable cases that threaten to take up the budget all by themselves, is said to be committed. No doubt this reflects the success of Corbell's blitz on the backlog in the courts.
But the threat of extra costs does not come only from representation of Eastman, or the cost of bringing from Ireland of one of the world's leading scientific experts on guns, Dr Jim Wallace. The Eastman case is old, and files on the case contain millions of words. The inquest sat for 125 days, with hundreds of exhibits. The trial took months. Appeals, further appeals, inquiries and their legal aftermaths, and a blizzard of other litigation means that stacks of transcripts and exhibits, and files would be 100 metres high.
Mercifully, the DPP has most of them in digitised form so that, in theory at least, a good deal of the evidence or argument can be accessed quickly by a Google-style operation. But any lawyer wanting to become familiar with the case and the hundreds of issues it raises would need to take days and days of reading to be across the material.
Eastman's trial was 17 years ago. Few can come into the case without a long and expensive period of reading. Some of the old ''insiders'' are now dead, retired, on the bench, or can be forgiven for having almost completely erased the nightmares of their lives from their minds.
Corbell will find it difficult to get the DPP, Jon White, to simply volunteer his office's services, without a significant special budget. White, who was not DPP 17 years ago, knows that matters before Marshall included allegations of misconduct in the prosecution. His office may be at any inquiry defending itself, too conflicted to be advising, in a detached manner, on the merits of Eastman's arguments.
His office has been criticised for not disclosing that Barnes had been discredited and sacked by the Victorian Police forensic science unit. It did not raise obvious questions of fitness to plead when it knew Eastman's lawyers could not. Before the High Court it omitted transcript material in the appeal book that showed the trial judge had read legal texts saying that, in cases such as Eastman's, trial judges should raise fitness to plead. (The High Court charitably, but wrongly, assumed the trial judge did not know of authority to this effect. It thought, wrongly, that this would agitate the minds of more junior judges ready to review the conviction.)
By 1996, when the inquest, the trial, and the first round of appeals was over, Rod Campbell, Canberra Times legal reporter at the time, thought that the murder investigation, and the various hearings had cost the taxpayer the present day equivalent of about $10 million, possibly more. Barnes alone is said to have been paid fees of about $300,000 for about six months' work.
By contrast, the cost to taxpayers of the representation of Eastman was probably only about $200,000 - much of it wasted by Eastman's actions in repeatedly sacking counsel, and often being unrepresented in court. Eastman, probably spent about the same from his own resources. Since then, millions more have gone to lawyers defending the verdict, without much success in satisfying public opinion that the guilt was proven beyond reasonable doubt.
Over recent years, there have been a number of cases in which men found guilty of serious charges have subsequently been found to be innocent. In many such cases, initial jury verdicts were rubber-stamped by courts of criminal appeal - even the High Court - until independent reviews identified clear miscarriages of justice. A judicial seal of approval no longer has the cachet it once did - and, alas, with no hanging, there are prisoners still alive to complain.
In Britain, in 1989, about the time of Winchester's murder, four Irishmen - the Guildford Four - were convicted of IRA terrorism offences, before a judge, now dead, whose prejudice at the trial was manifest. He said, giving defendants long prison terms, that he wished he had the power to hang them. Perhaps he was not to know that much of the police and scientific evidence was perjured and planted, but his own conduct of the trial, good faith or not, was tantamount to judicial lynching. Soon after, there was a similar case - the Maguire Seven case. These verdicts had not disturbed judges on appeal; only independent inquiries showed complete innocence. Judges and the criminal justice system had failed.
A shocked Parliament set up a new system, outside the courts, to review cases in which defendants insisted on their innocence. The British Criminal Cases Review Commission, with about 70 of its own investigators, as well as a capacity to hire experts for particular cases, was established: it has reviewed so far, more than 14,000 cases, and sent nearly 500, with an extensive report to the Court of Criminal Appeal. Of this, about three-quarters have seen original convictions quashed.
South Australia has adopted similar legislation, after some gross miscarriages of justice there.
The Law Council of Australia believes there ought to be one in every Australian jurisdiction.
Corbell does not need legislation to do something on the model of the way the commission works. Section 423 of the ACT Crimes Act says that the ACT Executive can order an inquiry into a conviction ''of its own initiative''. Nothing circumscribes the form such an inquiry could take.
It need not have a judicial officer at $3000 a day, with the same each for several senior counsel, and more for those at the table. A retired Anglican bishop-cum scientist, an ex-detective independent of the AFP, and a retired criminal lawyer could do the job for a fraction of that, probably in half the time of an judicial inquisition working off a reversed onus of proof. With a result more likely to be searching, definitive and capable of resolving doubts, once and for all. Even Corbell must have an interest in that.
Jack Waterford is The Canberra Times editor at large.
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