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The Eastman case: an unstable defendant, a lawyers' picnic, and a huge waste of public money

By Brendan O'Reilly - posted Tuesday, 4 December 2018

If you ask a lawyer (especially one from over the border in NSW) to comment on the criminal justice system in the Australian Capital Territory (ACT), there is a good chance they will break into a suppressed smile or even shake their head. The reason is that the ACT system is widely regarded as a bit odd, - a "defendant's jurisdiction" with the most "progressive" laws and judiciary in the country. The ACT system is noted for light sentences and having a (very expensive) "Alexander Maconochie Centre" (the first prison in Australia purpose built to meet "human rights obligations"). You get the drift.

Against this background you would think that David Harold Eastman was fortunate to be investigated and tried within such a system. This turned out not to be the case.

On 10 January 1989 (almost 30 years ago!) AFP Assistant Police Commissioner Colin Winchester (who commanded the ACT's police force) was shot dead near his Canberra home. Twenty-three years ago (in November 1995) Eastman (now aged 73) was convicted of the murder, and was sentenced to life imprisonment without parole (the heaviest sentence I can ever recall in Canberra).


Even back then, Eastman was widely regarded as intelligent but suffering a hair-trigger temper. He was later diagnosed by a criminal psychiatrist as also suffering from an extreme paranoid personality disorder. Another psychiatrist diagnosed Eastman with chronic paranoid schizophrenia, believing he was not fit to plead. It was claimed that Eastman had become distracted when representing himself, and became micro-focused (on issues like his treatment by the police or the judge) instead of being able to look at the bigger picture.

I can personally recall (in the 1980s) being at a Canberra social event, and someone pointing Eastman out, suggesting we give him a wide berth. Eastman reportedly once assaulted a female journalist and punched the deputy registrar of the Administrative Appeals Tribunal. He allegedly also threw a jug at a judicial officer in 1992, called a judge a "corrupt shit" and swore at the prosecutor.

During the original 85-day trial, Eastman repeatedly (ie 11 times) sacked various legal teams (often subsequently reinstating them). He eventually chose to represent himself. In June 1995 (in the middle of the trial) Eastman's bail was revoked after frequent clashes with the judge, who accused him of disrupting proceedings. There had been reports that former ACT Supreme CourtChief Justice Miles (who had stood aside due to illness) feared for his life and requested security, following alleged threats by Eastman. Eastman continued to be difficult during his many later proceedings and appeals, his conviction being subsequently the subject of almost continuous litigation.

In May 2001 Justice Miles ordered a judicial inquiry into the case, setting off a raft of appeals from David Eastman and the Director of PublicProsecutions (DPP). Eventually in 2003 the High Court upheld a decision to order an inquiry into his conviction, and determined the Federal Court was wrong to stop it.

A first Judicial Inquiry on 6 October 2005 reported there had been no miscarriage of justice and that Eastman had been fit to plead. Between November 2005 and April 2008, Eastman unsuccessfully appealed the 2005 finding. Then in October 2007 he appealed his original conviction but it was dismissed by the Full Bench of the Federal Court. Leave to appeal to the High Court was also refused. In April 2011 Eastman applied for another inquiry into his conviction, which was ordered in September 2012.

The second inquiry was headed by Acting Justice Brian Martin. The inquiry was on a similar scale to the original trial - six months of hearings, more than 50 witnesses, 260 exhibits culminating in a 450 page report plus a confidential section that was not released.


The second inquiry found that:

A substantial miscarriage of justice occurred in the applicant's trial. The applicant did not receive a fair trial according to law. He was denied a fair chance of acquittal. The issue of guilt was determined on the basis of deeply flawed forensic evidence in circumstances where the applicant was denied procedural fairness in respect of a fundamental feature of the trial process concerned with disclosure by the prosecution of all relevant material. ........A retrial is not feasible and would not be fair. While I am fairly certain the applicant is guilty of the murder of the deceased, a nagging doubt remains. ......Regardless of my view of the case and the applicant's guilt, the substantial miscarriage of justice suffered by the applicant should not be allowed to stand uncorrected. ......In view of the nature of the miscarriage of justice that has occurred and the period the applicant has spent in custody, and in view of the powers conferred on the Full Court, I do not recommend that the Court confirm the conviction and recommend that the Executive grant a pardon. I recommend that the applicant's conviction on 3 November 1995 for the murder of Colin Stanley Winchester be quashed.

On 22 August 2014 the Supreme Court of the Australian Capital Territory quashed the conviction. Contrary to the recommendation by Martin J that "a retrial is neither feasible, nor fair", a retrial was ordered. Eastman appealed the decision for a retrial to the ACT Court of Appeal and then to the High Court. Both appeals were dismissed.

Eastman was freed on bail late on the evening of 22 August 2014 after serving 19 years in prison. He left prison lying beneath a blanket in the back seat of a station wagon (to escape photographers). Between mid-2014 and the end of his second trial, his period on (strict) bail conditions seems to have passed without incident.

The re-trial commenced in Canberra on 18 June 2018. Five months later, on 22 November 2018, Eastman was found not guilty. The jury spent seven days deliberating and at one point seemed deadlocked. A shell-shocked ACT public is now digesting the result of its most high-profile criminal case in living memory.

One big issue following the acquittal is who actually did the crime. On this there are several schools of thought.

The family of Colin Winchester reportedly is "extremely disappointed" following David Eastman's acquittal of the ACT police chief's murder. There is little doubt that the victim's family, the police, and the DPP were all convinced of Eastman's guilt.

A second and more common reaction follows the reasoning of inquiry judge Martin. He concluded that he was "fairly certain the applicant is guilty of the murder of the deceased"but "a nagging doubt remains". In other words the case did not pass the "reasonable doubt" test and Eastman had to be acquitted.

The third response was that some other person or persons did the crime. Eastman has always proclaimed his total innocence, and some of his former legal representatives as well as some journalists suggest that the Italian Mafia are credible suspects, despite very limited direct evidence.

We can conclude that the legal system overall found that Eastman's original conviction was unsafe. He retains the presumption of innocence and the crime remains officially unsolved.

A bigger issue is whether the legal system worked well in this case.

It came to a conclusion of sorts, - but it took 30 years, and a now presumed-innocent man spent nearly 20 years in prison, and nearly another 10 years under investigation. The legal system clearly did not work particularly well nor in a timely manner.

It is now clear from the second official inquiry that the first trial was badly conducted. Terry O'Donnell, a public defender who had represented Eastman remarked"the first trial was an absolute disgrace, it was a shambles, it was a miscarriage - the forensic evidence was almost certainly fabricated in some respects". Eastman himself must take some of the blame for this "shambles", which to a substantial degree stemmed from his own erratic behaviour. Questions do arise concerning how the presiding judge handled the case, particularly for allowing the defendant to torpedo his own defence. (The judge at the second trial had the advantage of knowing the destructive effect the defendant had on the outcome of the original trial.) The DPP has also been accused of not disclosing all relevant material to the defence in the original trial.

A huge question relates to why there was a second trial at all, and (given the acquittal) whether the investigation should be reopened.

Acting Justice Martin recommended that ("in view of the nature of the miscarriage of justice that has occurred and the period the applicant has spent in custody") Eastman should be pardoned. To again quote Terry O'Donnell, he sees no point in re-opening the investigation because "it's so long ago, the witnesses I know are alive are subject to suppression and protection orders, and a lot of the people are dead," he said. "There's too much water under the bridge to get to grips to it."

My guess is that the main reason for proceeding to a second trial (contrary to Justice Martin's call for a pardon) was that the murder was that of a senior policeman. There are strong links between the police and the DPP, and the police did not want Eastman released. The ACT Attorney General did not intervene (and I am not sure whether that would have been appropriate given the doctrine of separation of powers).

The financial outcome of the Eastman case is that in 2016 (before the occurrence of the re-trial) it was then reported that the legal proceedings to date had cost the ACT Government approximately $30 million. ACT taxpayers subsequently forked out about $7 million more for this year's re-trial. The ACT Government had been forced to allocate dedicated funding to the Eastman case in recent territory budgets in order to retain legal aid funding for other cases. We have not seen the last of the matter. Eastman is seeking compensation, with the claim said to amount to about $20 million in damages sought.

In the end there are few winners. The Winchester family received no closure, though in this respect they are no different to many other victims of unsolved crime. David Eastman (for someone now legally found not guilty) has lost nearly half his life to jail. Whatever his character defects, one has to acknowledge than a less resilient person would not have persevered as he has.

Money-wise, the expenditure on this case, if allocated elsewhere, could (for example) have saved the lives of some hospital patients, built a school, or repaired a dangerous section of road.

Overall, the only (big financial) winner in all this has been the legal profession.

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About the Author

Brendan O’Reilly is a retired commonwealth public servant with a background in economics and accounting. He is currently pursuing private business interests.

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