A substantial miscarriage of justice
Court in the Act • Thursday, May 29, 2014 UPDATE ... Report of the Eastman inquiry goes to the ACT Supreme Court ... Trial infected by flawed forensic evidence ... Former public servant spends 19 years in jail for murder of senior police officer ... Former prosecutor sues for defamation ... Full Court finds Justice Martin's inquiry into Eastman's conviction affected by judicial error ... Recommendation that Eastman be pardoned and his conviction quashed
Eastman: inquiry pinpointed trial flaws
Acting Justice Brian Martin's report examining the murder conviction of David Eastman has by now been surrendered into the arms of the trusty ACT Supreme Court.
The expectation is that Martin has found Eastman's conviction for the murder 25 years ago of assistant ACT police commissioner Colin Winchester was a miscarriage of justice and that it be quashed.
Eastman was sentenced to life imprisonment in 1995 and has been in the clink ever since.
The trial in the ACT Supreme Court was conducted by Justice Ken Carruthers and the prosecutor was Michael Adams, now Justice Adams of the NSW Supremes.
The Martin inquiry has uncorked serious doubts about the forensic evidence that helped convict the former Canberra public servant.
Robert Barnes provided gunshot residue analysis at the trial, linking Eastman to the murder scene. His methods and record keeping have been called into question and Barnes himself admitted that his earlier evidence may have been misleading.
Police tactics also have been called into question, particularly the listening devices in Eastman's home which recorded the suspect talking to himself. Counsel assisting the Martin inquiry, Liesl Chapman, submitted that these "in your face" tactics caused Eastman to make statements confessing to the crime in his bugged home.
This evidence should have been excluded at the trial.
On the other hand, the ACT DPP and the federal police say that even if these elements are excluded, there was still plenty of circumstantial evidence to convict Eastman: motive, threats, access to firearms, identification, and the suspect's inability to explain to police his whereabouts.
The DPP submits that Martin should not interfere with the conviction, even if he finds a miscarriage of justice.
Eastman also submitted that the trial judge was biased because it was questionable how he came into possession of the accused's mental health reports.
However Martin has already ruled out apprehended bias, saying that Carruthers did not receive the reports improperly.
Observers of the Martin inquiry say that a key issue is whether the prosecution disclosed important information to the defendant, particularly concerns about the forensic scientist Barnes.
Overseas experts had reviewed Barnes' work and told the DPP they were sceptical about some of his findings.
Eastman's conviction has been the subject of numerous inquiries and applications to the High Court.
Eastman's arrestHistory
June 2000 - Eastman applies for an inquiry into his conviction for the first time. Formerly, a prisoner could petition for an inquiry under s 475 of the Crimes Act 1900 (ACT), where "any doubt or question arises as to his or her guilt, or any mitigating circumstance in the case, or any portion of the evidence therein". Chief Justice Jeffrey Miles rejects the application.
May 2001 - Eastman makes a second application. This time the CJ orders an inquiry into Eastman's fitness to plead during the whole or part of his trial. The DPP successfully challenges the order on appeal, but it's later upheld by the High Court.
February 2005 - Eastman applies to the Supreme Court once again, this time under new provisions of the Crimes Act (s 475 has been repealed). Section 422 provides an inquiry can only be ordered where there is doubt about whether the person is guilty of the offence and six additional requirements are met.
October 2005 - Chief Justice Miles publishes his findings from the 2001 inquiry, concluding it had not been shown that Eastman was unfit to plead during any part of his trial.
April 2008 - Justice Anthony Besanko publishes his decision regarding Eastman's 2005 application. He concludeds the s.422 preconditions have not been satisfied and declines to order a new inquiry. Eastman applies unsuccessfully for judicial review under the Administrative Decisions (Judicial Review) Act 1977.
April 2011 - Eastman applies for the fourth time. Justice Shane Marshall decides the court cannot order another inquiry into Eastman's conviction, as this does not meet the precondition in s.422(1)(f) that - "an application has not previously been made to the court for an inquiry in relation to the doubt or question".
July 2012 - a Full Court finds Marshall has misconstrued s.422 and he is ordered to reconsider the application.
August 2012 - Marshall orders an inquiry. In formulating his order, HH says that he is "skipping" s 422(1)(f).
July 2013 - Acting Justice Brian Martin (ex CJ of the Northern Territory) is appointed as the board of inquiry.
The inquiry affected by judicial error
In November last year, the ACT DPP filed an application to halt the inquiry into Eastman's conviction.
Last Thursday (May 22), the full court held the order for the inquiry was not authorised under the Crimes Act 1900 (ACT).
However, given the report was almost complete the court decided it was too little, too late for the Director and refused to grant the application. The application was heard by Chief Justice Helen Murrell, Anna Katzman and Michael Wigney. They found Justice Marshall's order in August 2012 was based on a misinterpretation of the full court's decision in July that year.
The court held Marshall had erred in ordering the inquiry before determining whether all of the preconditions in s.422 were made out - i.e. that no previous application to the court had been made for an inquiry in relation to the same doubts about the prisoner's guilt.
It was noted that the entire hearing before Marshall took place over 17 minutes.
In particular, the judge did not seem to consider how s.422(1)(f) might be satisfied, after the matter came back from the full court:
John Lundy (Deputy DPP): I just wanted it on record that your Honour is satisfied of the grounds under section 422.
HH: But I'm doing this under the authority of the Full Court of the ACT Supreme Court.
Lundy: Yes.
HH: Whether that's right or wrong is not a matter for me; I must assume it to be right.
The full court concluded that Justice Marshall's order was "affected by reviewable error."
However, the appeal judges went on to say that the decision of a court to order an inquiry, once tainted by judicial error, should nonetheless be effective until it is set aside.
Therefore, granting the DPP relief in this case was a matter of the court's discretion. The court's major concern was the DPP's delay in bringing forward the application.
Once Marshall ordered the inquiry, the DDP did not seek judicial review for 14 months.
Instead, the director tried to persuade the board to limit the scope of the inquiry - "a course which was doomed to fail".
The DPP's application to overturn Martin's investigation was filed four days after the board began hearing oral evidence.
As of November 19, the board had issued 44 subpoenas to produce documents and 49 subpoenas to give evidence.
By the time the Supreme Court adjourned in December, the board has heard evidence from 15 witnesses.
By early December, the Legal Aid Commission of the ACT had incurred or committed to spend more than $2 million in legal fees. The full court judgment was reserved in February, by which time the board had heard from 36 witnesses during 26 days of public hearings.
In addition, the Martin had received 89 affidavits and a further 23 witnesses were due to give evidence.
The full court pointed out that the inquiry has already raised issues "which cry out for resolution" - notably those connected with evidence given by Barnes, the crown ballistics expert. The court concluded: "At this late stage, having regard to the inordinate delay and the considerable work the board of inquiry has carried out, the personal and financial investment in that work and the matters the board has uncovered, we are of the opinion that it is in the interests of justice that the inquiry take its course and the board complete its investigation."
Justice Adams suing Fairfax
A further element in the plot is that Justice Adams, the prosecutor in the Eastman trial, is suing Fairfax Media for defamation over reports in The Canberra Times.
Ace journalist Jack Waterford told the paper's readers that the prosecution in the Eastman trial withheld information that ballistics expert Robert Barnes had previously been reprimanded for "professional failings" and that he altered important evidence. Also, that the prosecution misled the High Court on whether the trial judge was aware of evidence suggesting the defendant was mentally unfit to stand trial.
Waterford is reported to have said that his article recited allegations put to the Supreme Court in 2012, which now form the terms of reference for the judicial inquiry.
Further information
Eastman inquiry website
Jack Waterford on the Eastman inquiry
Justice Miles report on Eastman's fitness to plead
ACT full court decision on the question of judicial error
Martin inquiry's submission to the ACT full court
Justinian
On May 30, 2014 Acting Justice Brian Martin's report was released in redacted form.
He found that Eastman did not receive a fair trial according to law and was denied a fair chance of acquittal.
Guilt was determined on the basis of deeply flawed forensic evidence in circumstances where the applicant was denied procedural fairness, in that the prosecution did not disclose all relevant material.
The miscarriage of justice was such that in ordinary circumstances a court of criminal appeal hearing an appeal against conviction, soon after the conviction, would allow the appeal and order a retrial.
However, a retrial in these circumstances is not feasible and would not be fair.
Martin said he was "fairly certain" the applicant is guilty of the murder of the deceased, yet "a nagging doubt remains".
The case against the applicant based on the admissible and properly tested evidence is not overwhelming; it is properly described as a strong circumstantial case.
There is also material pointing to an alternative hypothesis consistent with innocence, the strength of which is unknown.
The board of inquiry recommends that Eastman be granted a pardon and that his conviction for the murder of Colin Winchester be quashed.
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