News: David Eastman conviction quashed

The Supreme Court of the Australian Capital Territory today quashed David Eastman’s conviction for the 1989 murder of the Commissioner of the Australian Federal Police, Colin Winchester. This result followed a wide-ranging report into the safety of his conviction by former Northern Territory Chief Justice Brian Martin that concluded that his conviction was unsafe for a combination of reasons, the primary one being a finding of flawed science and bias by a ballistics expert. The Supreme Court agreed with Martin’s conclusion, but not his further view that any retrial would be impossible. Today’s decision is a lengthy and complex one raising difficult questions about judicial inquiries into the safety of finalised convictions, including matters such as whether the court is limited to inquiring into doubts about guilt (as opposed to the fairness of the trial), whether the court can have regard to material that is kept confidential from the parties, whether an otherwise strong circumstantial case becomes unsafe because of doubts about forensic evidence and whether retrial should be ordered so long after the original 1995 trial.

It may be that questions about these issues will be appealed to the High Court. If so, it will be the latest of many High Court rulings on Eastman’s prosecution, including:

  • Deane J’s 1994 dismissal of Eastman’s application for habeas corpus following his 1994 arrest
  • the Court’s 1999 ruling (with Kirby J dissenting) that the appointment of Carruthers J to hear Eastman’s 1995 trial was valid, despite it it arguably not complying with constitutional requirements relating to the federal judiciary
  • the Court’s 2000 narrow dismissal of Eastman’s appeal against his 1995 conviction, where he had belatedly argued that he was not fit to be tried in 1995.
  • the Court’s 2003 unanimous upholding of his argument that the ACT’s then law allowing for post-conviction inquiries allowed for consideration of whether he was fit to be tried.
  • the Court’s 2008 rejection of his application for special leave to challenge the outcome of the inquiry into his fitness to be tried.
  • the Court’s 2011 rejection of his application for special leave to challenge a ACT judge’s refusal to expand that inquiry to cover doubts about Eastman’s guilt. (A further ruling that year refused Eastman special leave to appeal the termination of his lease on his flat.)

Of these rulings, the most extraordinary was the Court’s 2000 dismissal of the appeal against conviction, because Eastman lost even though a majority of judges were actually willing to grant him relief. Justices Gaudron, Hayne and Callinan would have remitted the issue of Eastman’s fitness to be tried to the federal court, on the basis that there was enough evidence of his lack of fitness when that court heard his first appeal that the court should have considered that issue. Justices Callinan and Kirby would have been willing to hear the fresh evidence itself, but the remainder of the Court upheld an earlier ruling in the case of the Mickelberg brothers (who, like Eastman, subsequently had their convictions quashed) that the High Court cannot hear fresh evidence in appeals. Eastman nevertheless lost because of the split within the majority judges, meaning that his remittal argument lost 4-3 and his fresh evidence argument lost 5-2.

As Heydon J noted in the 2003 ruling, the complex outcome of Eastman’s High Court appeal may have prompted the first post-conviction inquiry into whether Eastman was fit to stand trial. The present inquiry followed Eastman’s failed attempts to broaden the earlier inquiry.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

2 thoughts on “News: David Eastman conviction quashed

  1. I note your post with interest. But I think the central issue is not Eastman’s fitness to plead but the appalling conduct of the Crown and the police case against him. As Martin J found in his inquiry the case against Eastman rested on the forensic evidence of Barnes who has been completely and utterly discredited. The ACT Supreme Court may have ordered a re-trial and the office of the DPP clearly is under extraordinary pressure to begin the process but with what evidence? I disagree with you that there is a strong circumstantial case against Eastman. There is nothing forensically to tie him the murder. I think if Eastman were to be re-tried the DPP in a sense would be on trial as well over its conduct of his case and the manner in which it withheld vital evidence. The kind of evidence that would have helped his defence, and, in all probability secured an acquittal. I am pretty sure Eastman’s lawyers would try and run this as one element of his case against the Crown. That coupled with the fact that witnesses have died puts the DPP between a rock and a hard place I would have thought. I think Martin J was spot on when he said there can be no re-trial. Of course that will mean one of Australia’s longest, most expensive and controversial criminal investigations is back to square one. A big, fat, cold case.

    • Both Brian Martin and the Court of Appeal criticised the state parties. But they (not me) are also the ones who described the case against him as nevertheless a strong one. Friday’s appeal judgment contains a detailed summary of the remaining case against him, for those who want to read more. As for fitness to plea, that was the focus of Eastman’s 2000 High Court appeal and the first inquiry into his conviction from 2002-2007. As I said in the post, the issues in the second inquiry that freed him are much broader.

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