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The Shadow of Eastman

By Gary Humphries Ex MLA - 1 September 2014 18

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The David Eastman saga still casts a long, ugly shadow over the capital.

It casts a “shadow” for several reasons, and not necessarily due just to the personality of Eastman himself.

First, the cost.  The cost of investigating, prosecuting, imprisoning and variously litigating the person charged with the 1989 murder of Assistant Commissioner Colin Winchester has been obscene – conservatively estimated at $10 million, but probably twice that when other policing and administrative  costs are taken into account.  Of course justice needs to be done, but costs of this magnitude should be prompting serious questions about how we run our criminal justice system.

It’s true that the expensive end of any administrative scale produces bigger expense for smaller “dividends”, but in the case of our courts such costs present a powerful case for reform.  Eastman has relentlessly pursued every avenue to have his initial conviction thrown out – consistent, the critics would say, with his innocence – but it is astonishing to see how many avenues there actually were to pursue that goal.

Costs at the early stages were artificially inflated by Eastman repeatedly sacking his lawyers (necessitating “getting-up-to-speed” costs for the next set of advisors), but the real expenses mounted when repeated appeals and “inquiries” were pursued – something like a dozen.  Can any legal system really afford to offer so many avenues for justice?

The steadily growing cost of all aspects of government (and yes, the courts are an arm of government) is an issue moving steadily closer to the top of our national agenda.  Even as economies of scale ought to be pulling costs down, another factor keeps dragging costs higher: process.  What once was done simply and according to the principles of common sense now needs an act of parliament spelling out each step in excruciating detail, proper notice to affected parties, review rights, accountability mechanisms, etc, etc.  In the case – say – of asbestos-affected homes in Canberra, the administrative costs alone of removing the offending fluff probably exceeds the costs of installing it in the first place.

We can’t keep multiplying in this way the expense of government “doing things”.  Any reasonable cost-benefit analysis will tell us that.

But back to Eastman.  Courtesy of the 3 Supreme Court judges who ordered the retrial, we are committed to at least considering the question of whether he should be tried again for a crime committed over 25 years ago, of which he was once convicted nearly 19 years ago.

I was initially appalled at the idea of attempting to send to trial matters which happened so long ago.  It is almost unheard of.  I was convinced that due process – there’s that word again – would dictate that the prosecution would be terminated long before a jury is empanelled.   Indeed, this might well be what occurs; either the Director of Public Prosecutions might decide that a conviction is impossible, and pull the plug there, or the trial judge at the outset of the trial might consider that the prejudice to the accused is too great, and do likewise.

But after reading the judgment, I have a different view.  Their honours point out that the passage of time has been more damaging to the prosecution case than to the defence case.  Many more prosecution witnesses have died than defence ones, it seems.

The forensic evidence which was used to convict Eastman has been comprehensively discredited, and rightly so.  (This is another shadow the case casts over the ACT: to what extent is the police bungling which so undermined the forensic evidence an historical anomaly, and to what extent a subsisting weakness in our criminal justice system?  And how will we ever know?)

But the judges pointed out that there is other evidence, not forensic evidence, which could support a conviction after all this time.  The evidence of Eastman’s doctor, who said he heard Eastman make a threat to Winchester, and recordings of Eastman in his bugged flat, talking to himself in a remarkably incriminating way.

The essence of this evidence has not, the judges maintain, deteriorated over time.  And looming over such considerations is a sobering reality: an abandonment of this prosecution would almost certainly leave one of the most serious assassinations in Australian history unsatisfactorily explained, and that outcome would be very strongly contrary to public policy.

It will cost us an arm and a leg.  And a conviction will not settle the matter in everyone’s eyes – David Eastman’s obsessive personality will see to that.  But a prosecution must nevertheless be brought.  At the very least, we owe it to the taxpayer not to have nothing to show for such a vast expense after a quarter century of chasing the truth behind this awful crime.

What’s Your opinion?


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18 Responses to
The Shadow of Eastman
portal0001@lycos.com 10:12 pm 05 Sep 14

curiouser and curiouser.
Humphries said on 4 Sep that he had read the judgment of 3 eminent jurists and been persuaded by them that a retrial is required in the interests of justice. Logic and reason have won the day”.

SO far I have read the first half of the judgement. The judges say in paragraph 213: “..213. We deal later with a different issue in relation to this confidential material in the section of these reasons dealing with whether a new trial should be ordered. It would appear to us that it may be necessary for the Director to be provided with this material to allow him to make a considered decision about whether a retrial should take place. The information may impact on the Director’s exercise of his prosecutorial discretion. He may also wish to direct further investigations to be made of the information disclosed in the material. Significantly, the Director may also need to consider whether a retrial should take place if the public interest in preserving the secrecy of this information would prevent him from disclosing it to Mr Eastman. The potential operation of s 130(5)(f) of the Evidence Act will also need to be considered. If Mr Eastman were prevented from adducing the confidential information as evidence at his trial because it is the subject of a direction under s 130(1) of the Evidence Act, this may result in the prosecution being stayed”.

It is clear from the above that the judges are advising the DPP to think about whether a retrial should take place.

Humphries may be out of the loop now and not able to influence whether there is another trial. (He said “I might have been able to influence events subsequent to the conviction, say to push for it to be overturned, had I felt that the outcome was unjust.”, but maybe this refers to the past rather than any influence he can have now). But if he does have any influence, I would beg him to be a force for good rather than evil, and to take into account the advice of the judges, and work with it to advise the DPP, if this will prevent the DPP going off the rails again on another witchhunt of Eastman.

RIchard Mullins

Masquara 8:38 pm 04 Sep 14

For Pete’s sake, Humphries – enough already! They guy has effectively served 25 years – much more than most sentences for murder.

Can we please NOT spend another gazillion on this issue?

And you might think that having your conviction quashed does not reset the clock, but I think most of us probably think that if there’s been a miscarriage of justice, it’s back to “innocent until PROVED guilty”.

HenryBG 7:05 pm 04 Sep 14

Gary Humphries Ex MLA said :

There’s no debating this line of thought; it’s like ghosts or UFOs – you either believe in them or you don’t.

Any further commentary on the “conspiracy” would be rather pointless because, presumably, as the former Police Minister, I’m part of the cover up.

As the former police minister, at what point did you notice that “forensic evidence” was a pile of horseapples?

Gary Humphries Ex ML 3:20 pm 04 Sep 14

Richard Mullins is “horrified” that I’ve changed my mind about the need for a retrial of David Eastman.

Really? Presumably Richard makes long posts on this site to persuade people to his perspective. If, by reading his post, they do so, Richard would presumably be pleased. In this case, I’ve read the judgment of 3 eminent jurists and been persuaded by them that a retrial is required in the interests of justice. Logic and reason have won the day. Why would anyone be horrified by that?

Perhaps Richard is “horrified” because I prefer the reasoning of the 3 judges to his reasoning. Isn’t that just a little narrow-minded, Richard? Don’t you think Their Honours’ logic has something going for it? While you may not agree with it, don’t you think it’s a little melodramatic to be “horrified” because someone is persuaded by it?

Richard goes on to make out a spirited case for a police conspiracy: planted evidence, witnesses “coached to have false memories”, doctored recordings… the whole shebang. There’s no debating this line of thought; it’s like ghosts or UFOs – you either believe in them or you don’t.

Any further commentary on the “conspiracy” would be rather pointless because, presumably, as the former Police Minister, I’m part of the cover up.

portal0001@lycos.com 4:48 pm 03 Sep 14

GARY HUMPHRIES: It reflects very badly both on the police and on the judicial system. I mean, we’ve all heard of the Chamberlain case and various other miscarriages of justice, but the idea that a man has been rotting in jail for 19 years when there is no satisfactory proof of his guilt ought to cause a lot of concern I would think.

Humphries, the above is clipped from the abc web site, 31 May I think. Why have you changed your mind? Shouldn’t you be checking the bona fides of anyone who has been advising you to change your mind?

Richard Mullins

portal0001@lycos.com 9:01 am 03 Sep 14

I am horrified that Humphries is now saying (current article by him on Riot Act web site) there should be a retrial, although only a few weeks ago he says that he said that there should not be a retrial). This is funny (but not so funny for Eastman).

(abc.net.au 31 May had this transcript: GARY HUMPHRIES: It reflects very badly both on the police and on the judicial system. I mean, we’ve all heard of the Chamberlain case and various other miscarriages of justice, but the idea that a man has been rotting in jail for 19 years when there is no satisfactory proof of his guilt ought to cause a lot of concern I would think).
In hindsight it is not surprising that Humphries still thinks Eastman is guiity. This has been his position all along. Was his statement reported on 31 May a Freudian slip which revealed accidentally that he thinks Eastman might be innocent).

My hypothesis is that the evidence against Eastman is false. It may be quite difficult to get convictions and therefore guilty people sometimes have false evidence added. If this is a standard practice then it means that the machinery has already been put in place to convict innocent people by planting false evidence. (e.g. sprinkling blood at OJ SImpson’s home).

This would mean that the Sylvia Hartgrove evidence was falsified – as a drug user, she may have been coached to have false memories of what Eastman said to her and when he spoke to her. Ninness originally claimed that Eastman had visited Hartgrove her at 7pm and and 9pm on the night of the murder, talking cryptically about a murder. (I don’t know what Hartgrove said in court and I think her evidence was thought to be of no value to the prosecution).

If the evidence against Eastman is false, this also suggests that the tape recordings may have been falsified in some way. (Last year a forensic phonetician Helen Clarke gave me a test to do on internet – I had to listen to a three minute recording and match it to the supplied transcript. It was very hard to hear but I listened cold several times. The result was that a small amount of the transcript was damning to the defence, but this small amoutn of transcript did not match the recording, and (presumably) had been faked by the prosecution. This was another case, nothing to do with Eastman).
I am very dubious about the tape recording evidence because forensic phoneticians could not agree on what was said. Let us either rely only on the later recordings from 1992, which did not need to be “enhanced” in Germany, or if we are use the earlier recordings, make them publically available on the web, in unenhanced form, so that they can be studied by the worldwide acoustic phonetics community. (Last year a forensic phonetician Helen Clarke gave me a test to do on internet – I had to listen to a three minute recording and match it to the supplied transcript. It was very hard to hear but I listened cold several times. The result was that a small amount of the transcript did not match the recording, and (presumably) had been faked by the prosecution. This was another case, nothing to do with Eastman).

But even if Eastman said what the transcript says he said , this is not necessarily evidence against him. This has been pointed out already at the Martin inquiry, and by HenryBG on this blog.

Richard Mullins

justin heywood 2:52 pm 02 Sep 14

I agree that the case should run again. We have heard on this thread and on the others that the ‘truth’ about Winchester’s killer/s is a widely known secret, indeed ‘Canberra’s worst-kept secret’ according to one poster. If RiotACT is any guide (and I’m not sure that it is), a new trial might at least show if there is any substance to the conspiracy theories.

Otherwise, the quashing of Eastman’s conviction will only serve to reinforce the idea that he was ‘stitched up’. Either a guilty man has been set free or the ‘real killers’ are still walking around. We should try to resolve it.

Gary Humphries Ex ML 2:29 pm 02 Sep 14

My comments have certainly stirred the friends and supporters of David Eastman into life!

These people are all apparently convinced of Mr Eastman’s innocence, and subscribe it seems to more than a few conspiracy theories along the way to explain his conviction. They are entitled to their view, but they should not use the events of recent days as vindication of them.

The decision of Martin AJ, to recommend that his conviction be quashed, is not a finding that Eastman is an innocent man. Indeed, Judge Martin said he thought Eastman probably killed Winchester. It is a comment on a flaw in the evidence produced to convict him. As anyone who ever saw the classic movie Witness for the Prosecution will remember, a serious flaw in a prosecution case does not equal an innocent defendant!

These commentators argue that I bear some responsibility for Eastman’s conviction. I remind them that justice is delivered at arm’s length from government – as it should be. I had no role whatsoever in the legal process that led to Eastman’s trial and conviction, other than very remotely as the minister responsible for the smooth operation of the justice system. I might have been able to influence events subsequent to the conviction, say to push for it to be overturned, had I felt that the outcome was unjust. But on the basis of the information available to me, I did not regard the outcome as unjust then, and I do not regard it as being unjust now.

Feel free to indulge in terms like “corruption” and “stitchup”, but I have greater faith in the integrity of our courts and police, even if the high standards the community expects are occasionally not achieved.

portal0001@lycos.com 1:14 pm 02 Sep 14

Humphries said above: “an abandonment of this prosecution would almost certainly leave one of the most serious assassinations in Australian history unsatisfactorily explained”.

How would running a trial again, and having another stitchup of Eastman, “satisfactorily explain” anything?

portal0001@lycos.com 1:08 pm 02 Sep 14

Humphries said above: “I was initially appalled at the idea of attempting to send to trial matters which happened so long ago. It is almost unheard of. I was convinced that due process – there’s that word again – would dictate that the prosecution would be terminated long before a jury is empanelled. Indeed, this might well be what occurs; either the Director of Public Prosecutions might decide that a conviction is impossible, and pull the plug there, or the trial judge at the outset of the trial might consider that the prejudice to the accused is too great, and do likewise.

But after reading the judgment, I have a different view. Their honours point out that the passage of time has been more damaging to the prosecution case than to the defence case. Many more prosecution witnesses have died than defence ones, it seems”.

Let us focus on the last two sentences: “Their honours point out that the passage of time has been more damaging to the prosecution case than to the defence case. Many more prosecution witnesses have died than defence ones, it seems”. Is your second sentence an interpretation of what the judges said. Or is it a wilful misinterpretation? The plainest reading of the judges’ words out of context, is that over time more evidence has been found pointing more to Eastman’s innocence than Eastman’s guilt.

RIchard Mullins

Antagonist 9:35 pm 01 Sep 14

Mr Humphries, you point the finger at Mr Eastman for cost blowouts by sacking his legal team, yet conveniently ignore the fact that you as AG (along with Mr Stanhope) fought him tooth and nail the whole way for years on end. You are equally responsible for the $10m+ costs. I think your view in this matter smacks of hypocrisy.

Your argument, it seems, is predicated on the idea that justice should be cheaper than it currently is. Personally, I have never heard of a cheap solicitor/barrister/SC. You therefore attempt to present a case for removing the very protections and legal avenues that have been put in place to ensure that the justice system can address mistakes or miscarriages of justice – such as the flawed conviction of Mr Eastman. The checks and balances are there for a reason whether you like it or not, and it appears that they are working. It is not your job to determine innocence or guilt, and never has been. This is the function of the judiciary. Yet, you are on the public record as saying that you are convinced of his guilt (eg. Canberra Times, June 1 2014). It appears to me that you want a justice system with an Attorney-Generals thumb on the scales.

Bennop said :

Either way, I would argue the tax payer has something to show after all the efforts: the assessment of the ACT police and DPP as incompetent and possibly corrupt during the prosecution of David Eastman.

+1. The first rule of management: EVERYTHING is your fault. As Attorney-General at the time, this is the legacy you, the AFP and the DPP have left for the people of the ACT. I think you should be ashamed of what transpired on your watch, and I think you should take some responsibility for it too.

HenryBG 7:35 pm 01 Sep 14

Bennop said :

Either way, I would argue the tax payer has something to show after all the efforts: the assessment of the ACT police and DPP as incompetent and possibly corrupt during the prosecution of David Eastman.

And that’s the point: the forensic evidence didn’t just suddenly become dodgy earlier this year, it was dodgy from the outset. Nobody was better placed to realise this than the AFP officers who commissioned it, or the DPP prosecutors who employed it in their case against Eastman. The failure of the former to recognise this truth was misconduct, and the failure of the latter was improper behaviour.

If there are to be further investigations in this affair, it should be investigations into those whose misconduct/improper behaviour led to the expenditure of $10million in public funds pursuing an obsessive prosecution that was not based on any facts.

Masquara 6:42 pm 01 Sep 14

Wow – if using any Canberrans’ angry moments muttering vengeful thoughts to themselves out loud, in the privacy of their own home, qualified as a case for convicting us of actual murder, even if half of one per cent muttered in such a way, that would be more than 1,000 Canberrans in jail for life. That desperate tack on the part of the AFP will NEVER arrive at a conviction for Eastman. Head down the B94 west, AFP, and try there.

HenryBG 5:39 pm 01 Sep 14

” recordings of Eastman in his bugged flat, talking to himself in a remarkably incriminating way.”

Ummm…I’m no psychologist, but Eastman having undergone lengthy interrogations and an overt police surveillance program designed specifically to place Eastman under psychological pressure, is it any wonder that he would replay to himself in private the scenario forcefully described to him by the investigators?

You should also be far more upset that it has taken 19 years for the ACT justice system to finally discover that the prosecution case was so very faulty, relying on complete nonsense masquerading as “expert forensic evidence” not to mention various other lapses.

You don’t want “one of the most serious assassinations in Australian history unsatisfactorily explained”?

How about an actual professional investigation by an outside organisation but this time with the years of corruption, obsessive misconduct, and continued denial left to one side?

Bennop 9:57 am 01 Sep 14

It appears you critique the costs of Justice and due process only when they relate to the opporutnity for judicial/institutional scrutiny or appeal to be exercised. When it comes to prosecuting an individual, you waive the concern.

Either way, I would argue the tax payer has something to show after all the efforts: the assessment of the ACT police and DPP as incompetent and possibly corrupt during the prosecution of David Eastman.

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