The courts, DPP and justice officials agree to deny FOI access to trial transcripts. Criticism of their roles can thus be called ill-informed.
A decision by an ACT Supreme Court judge that David Eastman receive $7 million compensation for 19 years in prison, and the decision, soon afterwards, by the ACT Government that it would not appeal marks the formal end of the legal saga of the prosecution of David Eastman for the murder of Colin Winchester. Or so a good many people hope.
But if the book is now closed on Eastman, it ought now to be open on some of the other players who have long been able to avoid scrutiny of their actions, or their judgments, on the ground that the Eastman case was sub judice, and that they were thus inhibited in their capacity to defend their conduct.
That excuse is over now. Instead we will soon be hearing new excuses for avoiding any sort of critical review of what was wrong in the ACT justice system that could see an innocent man behind bars for nearly 20 years.
It will be said that it is all ancient history, with most of the active players now long retired. The processes and procedures of 30 years ago are not those of now. That we have nothing to learn. That even if there were deficiencies, failures, incompetence, mismanagement or misconduct, there would be little profit, and not a little unfairness, in drawing them to public attention.
Shouldn’t we let sleeping dogs lie? And bygones be bygones, if only out of respect for the family of the murder victim, or so as to avoid any continuing agitation of the suggestion that Eastman was factually guilty, even if, by some “technicality,” he got off?.
But many of the actions and judgments that invite review are not ones between January 1989, when Winchester was shot dead outside his Deakin home, and the end of Eastman’s first trial for murder in 1994, 25 years ago.
They involve, instead, decisions by modern players over the past five years. These include decisions made by senior officers in the modern AFP. Decisions made by the former Director of Public Prosecutions, Jon White. Decisions and advice given to ACT Attorneys-General by ACT government lawyers. Even decisions made by ACT judges after an independent inquiry recommended that the decision on Eastman be quashed (a recommendation accepted) and that there be no further trial (a recommendation rejected).
Had Eastman been let go in 2004, as an independent inquiry conducted by an experienced former judge recommended, ACT taxpayers might have saved a further $12 million. It is not clear what benefits taxpayers got from this extra expenditure.
Actually, Eastman was to be a beneficiary of a sort. He now has the advantage, for what it is worth, of having been acquitted of a charge of murder, rather than having merely had his conviction quashed by order of a court. This had the effect of prolonging his suffering for another five years. That did not get him extra compensation: he got that only before time served in jail.
In a murder case, the question for a police investigator, or for a prosecutor, even for a judge is simple: is the evidence properly able to be put forward in court capable of proving a person’s guilt beyond a reasonable doubt? Anything short of such evidence entitles a defendant to an acquittal – and a claim of being innocent. Even AFP detectives associated with this case have benefited from this presumption in the past. Usually, police find it difficult to persuade a DPP to file an indictment unless, on paper at least, a conviction looks virtually certain.
This week Justice Elkaim quoted approvingly from remarks made in a similar case by the High Court. What Eastman required to get compensation, he said, was “not a judicial determination of his innocence, but merely the absence of any judicial determination of his guilt”. He was very critical of the way ACT government lawyers had run their case.
About a year after Winchester’s murder, ACT Coroner Ron Cahill called an inquest, if only to allay public concern about the lack of progress in the murder investigation. By then some senior detectives strongly believed that Eastman was the probable murderer, even though police had suggested, soon after the murder, that the assassination had been a hit by the Calabrian mafia.
The inquest took evidence on a host of theories about the murder. Various propositions were explored at considerable, and embarrassing length, only to be shown to be doubtful. Some, for example, thought that the murderer could have been a cop, a colleague of Winchester’s. Others pointed to a grubby ACT Police history of corruption or ignoring crime occurring in their midst. Perhaps at the Pine Lodge legal bar and illegal casino and brothel frequented by a number of ACT detectives, including Winchester. Winchester’s wife, Gwen, told of an attempt by a Queanbeyan businessmen to bribe Winchester, and the mysterious lack of investigation that followed.
The public was aware of Winchester’s involvement in a planned police sting on a cannabis plantation near Bungendore, when Winchester had pretended to accept a bribe for closing his eyes to the crop. Winchester passed over control of what was to become a combined AFP-NSW Police operation to other officers. When eleven men of Calabrian background were charged, they were said to have been angry that they had been, as they saw it, betrayed. AFP national detectives monitoring organised crime had a range of phone taps and other information suggesting a range of suspects, including, as suggested by Italian anti-Mafia police, a “hit” by assassins brought in from Italy and back on the other side of the world before detectives even thought to check flight movements.
While national detectives continued to believe there was solid evidence pointing to mafia involvement, this part of the investigation was closed down. In the opinion of the senior detective investigating ACT angles, the Calabrian angle was getting nowhere. His view, some suggested, might have been affected by the open contempt former ACT Police officers (including Winchester) had for cops who, before the AFP amalgamation, had worked for the Commonwealth police. This detective had had a strong hunch from early in the investigation that the murderer was Eastman, who had been angry at Winchester for his failure to intervene to stop an assault charge Eastman believed to have been unfairly laid.
The choreography of the inquest seemed designed to build up a picture of how strong the case against Eastman was, and how weak other cases looked after inspection. Even so, there were significant gaps in the case against Eastman. At the end of hearings, Cahill declared that there was not enough evidence against Eastman to put him to trial. Room for suspicion, perhaps, but not enough to establish a cogent case of guilt.
The inquest was reopened after a Victorian forensic scientist, Bob Barnes, a tradesman metallurgist, announced that he had found gunshot residue in Eastman’s car which was identical with residue found at the murder scene. This was the missing link clearly connecting Eastman to the murder scene. This was was the fresh evidence that persuaded Cahill to reopen the inquest and then to commit Eastman for trial on a charge of murder.
These and other findings by Barnes, accepted without proper scepticism by both police and prosecutors, and never cross-examined at the first trial while Eastman was unrepresented and refusing to participate, came under intense scrutiny during the 2014 Martin inquiry into the safety of the conviction.
It emerged that the evidence of Barnes simply could not be relied on. There had been significant clues to his scientific misbehaviour – but they had been ignored or concealed, or both, by police. It was of a pattern sometimes called confirmation bias – a tunnel vision tendency to accept uncritically material that supports one’s theory of what happened, and to ignore, or dispute anything that did not agree.
In a normal independent inquiry into the safety of a criminal conviction, prosecutors attend to help the inquiry discover the truth. So do police.
Not in the Eastman inquiry. Representatives of the ACT office of the DPP (usually with the police in tow) repeatedly attempted to kill the inquiry off, or to limit its investigations. Both resisted the production of records, and dragged their heels in any cooperation.
The AFP made no effort to re-investigate the case, whether in search for fresh evidence, for more modern interpretations of the significance of evidence they already had, or as part of a genuine review with sets of fresh eyes. Instead AFP lawyers acted only to protect the reputations of the original detectives, the DPP those engaged in prosecuting. No new evidence emerged or was used at the second trial.
Once the carelessness in failing to properly scrutinise the original evidence became clear, the AFP argued that it didn’t matter anyway, because Eastman was guilty. It emerged that after the first conviction, the AFP had routinely filed away any forwarded evidence or tips coming in, whether from other police forces or the public. Nothing capable of disturbing their “knowledge” of Eastman’s guilt was further investigated. Had some of the tips been investigated, the 2014 inquiry concluded, there might have been a credible case against others. Now it was probably too late.
Perhaps both DPP and AFP lawyers were acting in accordance with instructions to keep faith with the original team. But it had the look of cover-up, a lack of interest in the truth, and an unwillingness to accept accountability for what was clearly a miscarriage of justice.
It did not suggest that investigators, or the prosecutors set out to “fit up” Eastman. But it showed them as being less than competent, less than professional, and, on occasions, willing to take short cuts. Intentionally or not, they had denied Eastman the opportunity of a fair trial. It showed cowboy justice, sometimes improperly spiteful, not skilled, professor and detached detective work.
One can understand the political decision not to pursue an appeal against the compensation verdict. Andrew Barr, the chief minister, would like it to fade into ancient history, rather than remain a standing reproach to his administration. He has had no significant personal involvement in the matter since he became a politician. But he has had, until now, to be captive to the enthusiasms of others for the throwing of good money after bad.
If anyone involved in the matter criticises him, he might have been able to point out that virtually every piece of strategic, tactical, legal, political or practical advice given successive ACT ministers over the years about the case – in the zone where government and politicians, rather than police and directors of public prosecutions, were the ones with discretions — had proven to be wrong. And at a great ultimate cost to the taxpayer. That advice also significantly increased the hardship for Eastman – a hardship that we now known to have been a breach of his human rights.
Now that the case is over, there should be hold an inquiry into how it was that the police prosecution case was not adequate. It was certainly not for lack of resources. Just how was the most extensive and most expensive police investigation in Australian legal history not up to discovering that one of their experts was not who he said he was, that his tests, when or if they were conducted did not prove what he said they did, and that he had been sacked by Victorian police for scientific misconduct? And if senior detectives cock up cases of this significance, just what does it say about routine criminal cases coming before the court?
There is ample evidence that the same old “good old boy” system continues to operate in the AFP, particularly in ACT Policing. Some of the team made it to commissioner level before retirement, one repeating, in higher office, the sort of mistakes he made in the Eastman case. The AFP impulse to circle the wagons, to show contempt for (and to lie to) watchdogs, to leak out information unfavourable to enemies and to tough out criticism has, if anything, increased over the years. The AFP – including the ACT AFP – is now 40 years old: it is the only Australian police force to have never had an independent outside review.
Over the years, the Eastman case has cost ACT (not Commonwealth) taxpayers probably $37 million – probably $60 million in today’s terms. A good deal of that has been in resisting any fundamental sort of review of a case that was always inadequate, and in concealing those misjudgments by police, prosecutors, coroners, magistrates and judges that made it an epic case of miscarriage of justice.
Luckily for them, those who do not want an inquiry still have weapons in their armoury.
Since about 2013, it has been almost impossible to discuss some of the evidence because of suppression orders. Names well known to the case, such as the Bungendore defendants, cannot be published because of judicial orders during the secret part of the trial dealing with the “alternative hypothesis” – the theory that it was a Mafia killing.
Some suppression orders – there are continuing ones going back to the inquest – had a point when made, but serve no purpose now., other than to make discussion of shortcomings in the case difficult. In many cases information once on the public record is now suppressed. No-one has any interest in seeing the mess tidied up. The judiciary seems to think that the purpose of a trial is only the achievement of an outcome, whether from themselves or a jury. That’s only one bity: the other lies in doing it in the open and on a record.
The transcripts, and in some cases, the judgments, of some interlocutory hearings are not accessible to the public. Nor indeed are any of the transcripts, including ones (of the first trial and the inquest) that the Martin inquiry had put on a website for public view.
The second trial judge asked that the Martin website be suspended pending the outcome of the second trial. While it was off-line, the ACT Justice Department incompetently let the site registration expire, and lost the contents. It has since have only been able to restore a fraction of what it originally contained, including transcripts of the inquest and the first trial. The agency says it cannot locate most of the missing material, but its inquiries do not seem to have extended to the Crown law area of their own department – who plainly had access to such material during the compensation hearings.
Indeed the ACT Supreme Court, the DPP and the department itself are now resisting FOI production of any of the transcripts. They say transcripts are exempt under the FOI Act — a foolish principle from a time when only judges had access to them. In 2014, with the Martin inquiry, the inquiry team, the DPP and Legal Aid cooperated to produce a super-digitised transcript of successive court proceedings, witness statements and judgments. With this, judges and counsel could readily Google search previous statements, rulings, and evidence, and make quick reference, via computer terrminals, to the source of their statements.
If needs be, material could be put on screen to witnesses – although some judges insisted that the public not be allowed to see. It was not justice in the open, even if the court was not closed: it was justice administered in club. The public’s capacity to understand was limited.
And now, each of the agencies, asked separately but answering via the ACT justice department, acting for them all, says that none of them has “possession” of this transcript. Each certainly still has access to it. It is very difficult to define what public interest keeps it from public inspection, but luckily, under the ACT FOI Act, public interest does not come into it.
No doubt this will help shield the court, and its officers, from criticism of its own almost completely useless role, over 30 years, in protecting the human rights of a man now agreed to have been innocent. It serves a similar function in concealing statements made in court by the DPP.
Absent a searching review, Canberra citizens can confidently expect that no one involved has learnt anything. The probability is high that there have already been repetitions and will be more. The city state with the highest standard of living in the world cannot be confidently said to have a system of finding and convicting criminals better than Bulgaria, Texas or Indonesia. Perhaps even China.
Jack Waterford is a former Editor of The Canberra Times.