The dream machine: The 59th Venice BiennaleCurator Cecilia Alemani’s long overdue Biennale overwhelmingly features female artists and champions indigenous voices and other minorities
December 2018 – January 2019
The retrial of David Eastman
David Eastman could be very annoying. Throughout the 1970s, ’80s and early ’90s, everyone who was anyone in the nation’s capital received complaints, threats, tip-offs, late-night crank calls and early morning doorknocks from Eastman, a former dux of Canberra Grammar, son of a decorated ambassador, and one-time Treasury wunderkind.
He would go to Australian National University public lectures and heckle the speakers, forcefully arguing about economics (and if forceful argument didn’t work, he used force; his punching of a presenter is university legend). He harassed staff for refusing him access to the Parliamentary Library and had to be escorted out of ANU’s Law Library for yelling when he wasn’t allowed to borrow arcane legislation. One day he showed up at the office of a French lecturer and demanded to be tutored. When the lecturer, an acclaimed translator of Proust, admitted to not possessing a degree in linguistics, Eastman ridiculed his credentials and was removed by police.
In 1977 Eastman was passed over for a promotion by Treasury. He quit in protest, and then successfully sought to have his resignation reclassified as an invalidity retirement caused by stress. He spent the next decade both trying to re-join the department and destroy it.
That August, a young Opposition frontbencher named Paul Keating asked the government to explain allegations of Japanese bribery “in respect of a foreign investment proposal”. The then minister for overseas trade, Doug Anthony, confirmed that an “Australian source” had told him a local company with government ties was bribed $10 million by a Japanese firm the previous year; Treasurer Phillip Lynch assured parliament that an “exhaustive examination of all foreign investment proposals by Japanese companies” had uncovered no corruption. Of course, the source was Eastman.
When that didn’t work, he went to the press (“Treasury Man Claims Many Given Bribes” ran the headline in The Australian on September 24, 1977). This too was rejected, as was Eastman’s missive to the head of the Public Service Board to hold an inquiry into the matter.
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But most of his energy was spent trying to have his invalidity pension revoked and his mental fitness approved to facilitate a return to the public service. He throttled a bureaucrat he felt was obstructing his efforts; he tipped a glass of orange juice over another. He was benignly described by the Canberra media as “a ‘stirrer’, that uniquely Australian blend of whistleblower and guerrilla”. And, like any good stirrer, he was a smartarse. When one of his many phone calls to the office of the justice minister was accidentally put through to the minister himself, Senator (now Reverend) Michael Tate, Eastman was met with an expletive. “Now now, Senator,” came Eastman’s reply. “That’s no language for the leader of the Parliamentary Christian Fellowship to use.”
He threatened to kill federal Liberal senator Margaret Reid; he threatened to kill ACT Labor attorney-general Terry Connolly. He even threatened to kill Australian Federal Police assistant commissioner Colin Winchester.
And that’s when Canberra stopped trivialising the harmless antics of a “stirrer”. Because one night soon afterwards, on January 10, 1989, Colin Winchester was gunned down outside his home.
The coronial inquest into Colin Winchester’s murder took 125 days over three years, and returned an open finding, but Eastman was a suspect from the day after the killing. When questioned by police he was vague and uncooperative, failing to account for his whereabouts. It emerged that he had visited a sex worker on the night of Winchester’s death, though she could only provide an alibi for the hours after the murder.
It took until 1991, during the closing stages of the inquest, for Eastman to state his innocence. The following year, after a campaign of AFP surveillance that often constituted harassment, the coronial inquest was reopened to take new evidence, and Eastman was charged with murder. During a long and difficult trial over seven months in 1995, he ranted and raged, at one stage appearing in a separate room from the court via video link; when his language became obscene, the volume was turned down.
Eastman seemed more concerned with highlighting police harassment than proving his innocence. Twelve times he sacked his counsel, claiming they were unable or unwilling to follow these instructions; he fired any lawyer who questioned his fitness to plead.
For much of the trial he represented himself, using the platform to abuse the prosecutor and the judge. (One day, Acting Justice Kenneth Carruthers asked if the accused had any questions of a police witness. “Yes,” said Eastman, “I wish to ask your Honour why you are such a lying cunt.” His Honour, who had been briefed on Eastman’s paranoid personality disorder, replied: “I will treat that as a no.”)
The prosecution’s case was largely circumstantial. Although the murder weapon was never found, spent cartridge cases left by the body were linked to a rifle Eastman was alleged, by one witness, to have been on his way to buy and, by another, trying to sell. Witnesses told of seeing Eastman looking into police cars at Winchester’s station on the day of the murder, and allegedly staking out his home two nights before. In the months prior, Eastman was heard saying: “If it’s the last thing I do I’ll get back at the police”; “I will kill Winchester and get the ombudsman too”; and, of Winchester, “I should shoot the bastard.”
The recorded evidence, from when police planted listening devices in Eastman’s flat in the years after the murder, was contentious: was he admitting guilt or rambling to himself? But the forensic evidence was apparently unequivocal. An expert witness matched gunshot residue found at the crime scene to that found in Eastman’s car, a cobalt 1979 Mazda 626. The jury took three days to return a guilty verdict.
In handing down his sentence of life imprisonment, Acting Justice Carruthers concluded: “This investigation must surely rank as one of the most skilled, sophisticated and determined forensic investigations in the history of criminal investigation in Australia.”
All I remember from that time is his hat. The consensus is that the style – wide-brimmed, straw, tapered crown – is called a “Lifeguard”. But lifeguards in this country don’t wear hats like that – dads at the cricket do, done up with a chinstrap so they don’t fall off during the Mexican wave.
In my mind’s eye David Eastman was wearing that hat when he was arrested in 1992; and throughout his trial in 1995 and every day of his many subsequent appeals. He was still wearing it 17 years later, in 2012, when new evidence helped prompt the ACT government to call a judicial inquiry into the case. And in 2014 when Acting Justice Brian Martin found that a “substantial miscarriage of justice has occurred”; though he was “fairly certain” of Eastman’s guilt, “a nagging doubt remains”.
So, when Eastman arrives at the Supreme Court of the Australian Capital Territory in June 2018 for the first day of his retrial, I don’t recognise him. Now 72, he is short and slight and reptilian (iguanan?) in the face; he wears black sneakers, cuffed jeans and a navy windcheater over a flannel shirt. On his head, Eastman wears a grey stevedore’s beanie.
The Canberra Times photographers waste no time. Apart from an obscured shot of him being bundled into a car upon his release from prison, it’s been decades since they updated their stock shots of David Eastman; he’d been wearing his Lifeguard in that newspaper’s articles I’d been reading up until the retrial.
Like Canberra itself, the make-up of this court is a compromise between Melbourne and Sydney. In the interests of neutrality, Victorian Supreme Court Justice Murray Kellam will oversee the retrial. The prosecution is from Sydney; the defence from Melbourne; the jokes about how things are done “this side of the Murray”, plentiful.
The courthouse resembles a regional airport: the same sole metal detector that is only set off by belt buckles half the time; the same groups of uniformed men hurriedly wheeling suitcases (though here they wear barristers’ gowns, not pilots’ wings). The building – constructed in 1963, when the population of the ACT was under 70,000 – is no longer fit for purpose, and is being refurbished.
“You think you’re cramped,” a sheriff tells the media gallery as we squeeze into our seats, “but try fitting 16 jurors into that jury room.”
“Cosy?” the ABC reporter asks.
“Oh yeah. There’s only one toilet for the lot of ’em. Imagine … It’d be so obvious whodunnit.”
Late on the last evening of his life, Colin Winchester turned his Falcon down Lawley Street in the inner Canberra suburb of Deakin, slowed as he approached his driveway – then overshot it. A favour he liked to pay his elderly neighbour: it made her feel safe, she said, to have the assistant commissioner of the AFP park in front of her house.
Winchester – 55 and stocky, with wavy brown hair and a distinct protruding jaw – was driving an unmarked vehicle; he wore jeans, sneakers and a T-shirt. He left Canberra City Police Station at 5pm and ate dinner with his wife, Gwen, at home before driving to the satellite town of Queanbeyan to see his brother Ken. The siblings drank a few beers and discussed an upcoming hunting trip to western New South Wales. Colin left before 9pm, telling Ken he had work to do that night: “A lot on my plate.”
In Colin’s absence, Gwen retired to the lounge room to watch a video. She heard the sound of her husband’s car pulling into the neighbour’s driveway, followed by two sharp cracks she took to be kids mucking about.
Five minutes passed, and Gwen wondered what was taking Colin so long to come inside. He wasn’t in the backyard turning off the hose, and when she walked to the driveway next door she found the Falcon’s driver-side door ajar and her husband still sitting behind the wheel, his right foot pressed to the concrete as if about to alight.
The ambulance arrived at 9.26pm, followed by two members of the AFP’s Accident Investigation Squad. Gwen heard a paramedic tell one of the policemen, “He was D.O.A.”
As assistant commissioner, Colin Winchester was in charge of policing for the ACT: the territory’s top cop, the boss of those who attended his murder scene, and the mate of many. Two of them, commanders Lloyd Worthy and Ric Ninness, arrived at 9.50. They ducked under the police tape, assumed control and supervised operations from beside the Falcon. When a member of the AFP’s Scientific Division told them not to enter the crime scene until forensics arrived, Ninness told him, “Fuck off, constable.”
Detective Sergeant Peter Nelipa, acting superintendent of the Scientific Division, was at home when he got the call. Before hanging up, he instructed that nobody enter the crime scene without his permission. Ideally, he later said, he would’ve combed it in a systematic fashion, wearing protective clothing.
When he arrived there were upwards of 20 people milling around the driveway, and policemen leaving and entering Winchester’s property, walking across the lawn to question the neighbour and, before another line was secured, to use her telephone. (She’d neither seen nor heard anything before being woken by the sirens.) None of them wore protective clothing.
News of the murder shocked the neighbourhood. Deakin is home to The Lodge, the Royal Australian Mint, several embassies, senior public servants and wealthy retirees. Many of its houses date from Canberra’s foundation, with large, established gardens fronted by oaks and conifers; at Deakin’s southern end, the leafy streets give way to the scrubby bushland of Red Hill Nature Reserve.
On the night of the murder, the sun set over the Brindabella Range at 8.22. A military veteran was at his kitchen window diagonally opposite the Winchesters’ around 9pm when he heard two gunshots, followed by a V8 engine start (also heard by two other witnesses) and climb through the gears as it drove away.
A psychologist was in her home office, at a right angle to the Winchesters’ backyard, anxiously checking the wall clock as she waited for her teenage son to return home. At 9.15, she heard someone “in heels” run into her driveway, run back to the street, utter something, and then enter a car and leave.
When he was finally granted control of the crime scene at 11.40, Peter Nelipa looked for evidence of an assailant. Sometime after midnight, a spent .22 cartridge case glinted in his torchlight. A few minutes later he found a second shell, parallel with the first but a metre nearer to the back of the car.
A picture began to emerge. Colin Winchester had been shot twice within seconds of parking. He was ducking to get out of the car when the first shot struck him in the back of the head. As he slumped, the killer took a step forward and shot Winchester again in the right temple.
Nelipa wasn’t overly concerned at the large number of people who may have touched Winchester’s body, because it was unlikely the killer had either. However, he wrote in his occurrence sheet, such was the level of trampling on the grass and concrete where the shooter would’ve stood, it “underwent substantial alteration to such an extent that it may never be known if other evidence was available”.
The prosecutor at the retrial, Murugan Thangaraj SC, outlines the Crown case. With this murder, he says, “Mr Eastman wanted to make a very loud statement.” Gripping the lectern with both hands, Thangaraj, a nonchalant man with curly black hair and a neat grey beard, charts the alleged transformation of a man who felt a general frustration at his continual unemployment into one who harboured a specific hatred towards the personification of a perceived systemic vendetta against him and his goal of returning to work: Assistant Commissioner Colin Winchester.
In 1988, things had been looking up for Eastman. He was deemed fit to work by the commissioner for superannuation, making him eligible to re-join the public service on two conditions: he have “minimal contact with others” and work on “self-paced projects”.
But there was a hurdle. The previous December he had been involved in a scuffle with a neighbour over the use of a car park at the flats where they both lived. The neighbour later told the court he had no intention of reporting the matter. It was Eastman, a frequent complainant at Canberra City Police Station, who did. (“Not you again!” an officer allegedly said upon seeing him.) After a brief investigation, police instead charged Eastman with assault.
From then on, Thangaraj argues, the defendant became convinced he was the victim of a “corrupt” police force that had it in for him. (“I want to kill him,” Eastman wrote to a penfriend of the neighbour, “and get the bastard police as well.”)
Citing Telecom records from early 1988 (another example of Eastman being his own worst enemy: he was embroiled in a payment dispute with the telco and requested his calls be monitored), Thangaraj asserts Eastman called 10 people advertising guns for sale, buying his first that February under a false name (Thangaraj says Eastman immediately returned it because it jammed, while keeping its telescopic sight, which the prosecution says he would later attach to the murder weapon) and, three days later, his second (which was found that May by a passer-by, either dumped or cached in a culvert).
With the committal hearing for the assault charge fast approaching, Eastman, accompanied by federal shadow attorney-general Neil Brown (“If I go alone I am sure I will be treated like dirt, as has happened on previous occasions”), met Winchester on December 16, 1988. This, says Thangaraj, was Eastman’s last shot at getting the police to drop the assault charge: to return to work for the government, the threat of a criminal record “needed to go away”.
Winchester refused to overturn the charge, explaining it was now in the hands of the Department of Public Prosecutions, and that if Eastman alleged police impropriety, he should contact the Commonwealth Ombudsman. The meeting ended with Eastman refusing Winchester’s hand.
Shortly afterwards, the prosecution argues, Eastman, while speaking to his doctor, made a threat against the police, having earlier done so in the presence of his neighbour, and on Winchester’s life specifically to his lawyer. On New Year’s Day 1989 Eastman withdrew $200 from an ATM and, the prosecution asserts, used it to buy the Ruger 10/22 semiautomatic rifle he’d inspected the day before; the recordings made in Eastman’s flat, continues Thangaraj, amount to a murder confession.
Eastman’s counsel is George Georgiou SC, a disarmingly avuncular man who contends that Eastman was angry at being charged with assaulting a man he believed had assaulted him. But given his client had been medically cleared by the public service, and given the assault charge hadn’t yet gone to court, he had not yet lost hope of returning to work. And anyway, Georgiou asks the jury, “How would it be that the killing of Mr Winchester would make the charges go away?”
Instead, Georgiou claims, evidence points to a “reasonable possibility that Mr Winchester was killed by someone involved with, associated with, or recruited by the mafia”.
Thangaraj had been breezily dismissive of this claim in his opening argument: “The mafia would not buy a gun from Queanbeyan that was advertised in The Canberra Times, then walk with it slung over their shoulder down the street.”
The prosecution also says a policy wonk with scant firearms experience and an explosive temperament calmly pulled off an execution-style killing without anyone seeing.
New trial, same old dilemma: he can’t have done it, but he must have.
The prosecution calls 127 witnesses. They come from across Australia and around the world: in person, via court-to-court video link, on Skype – even from a cruise ship.
It’s the same story from 1995, but those telling it are now greyer, deafer, vaguer. (“And no doubt you’d agree your memory was better back then than it is now,” Georgiou gleefully says to each one.) Forty-one statements are read from the dead or incapacitated.
In this courtroom drama, some actors have had an inquest, a trial and an inquiry to rehearse their lines. There’s something satisfying about underlining juicy bits of a court transcript and then hearing them repeated aloud: the public servant who says Eastman threatened to “come around with a baseball bat” and “knock [his] fucking head in”; Neil Brown recalling Eastman tell Winchester, “If your hoons think they can treat me like that then they have another thing coming”; the words of the long-dead Queanbeyan pensioner who told police he sold the murder weapon for $250 – with its silencer but not its telescopic sight – to a “nice dressed” “gentleman”. (At the time, the pensioner didn’t recognise Eastman on a police photo-board. But nor did he recognise two other men who testified that he also sold them guns. The pensioner’s wife, now deceased, later told police he admitted selling to Eastman but kept quiet out of loyalty to his customer and fear of retribution.)
There’s the tradie who saw a man – “scruffy, not tidy like a public servant” – walking through the seller’s neighbourhood that weekend with a gun slung over his shoulder; the woman who saw a “new” blue car similar to Eastman’s parked down the road from the seller’s house; the Telecom technician who nearly ran into a man leaving the seller’s house as he arrived on New Year’s Eve. The encounter left an impression: the technician says he recognised the face, months later on his TV, as the chief suspect in the murder of his mate Ken Winchester’s brother Colin.
The only person not sticking to the script is David Eastman. There’s no ranting or swearing; each day he sits in silence, hands clasped on the desk before him, an Aldi shopping bag by his side.
Denis Reid does his best to change that. The former Queanbeyan sports store owner had earlier told police that, a few days before the murder, a “Pitt Street farmer” who “wasn’t a rugby league type” but one of those “plastic people” you find over the border in Canberra tried to sell him a Ruger rifle. Reid gave the gun the once over on the shop floor but noticed it had been roughly threaded for a silencer. “You’ve rooted the barrel,” he said. The man grew cagey and Reid figured the rifle was “hot”; he waited until the seller had left, then sent his son outside to get the numberplate. His son didn’t catch the car’s rego but he heard its exhaust; the man’s muffler, like his barrel, was rooted.
Reid hasn’t lost his taste for idiom. A short man with a cowlick of thinning grey hair and a face like a walnut shell, he swears on the Bible, then swears you could put him in his “wooden suit” and he’d still remember the gun had a telescopic sight and a threaded barrel.
Georgiou reads from Reid’s second police interview: No, Reid had said, “I never looked to see if it was threaded. I had no reason to look at the barrel.”
Now Reid is breathing heavily into the mic: “Biggest mistake of me life.”
“Well,” posits Georgiou, “it may not have been a mistake.”
Reid had earlier told the court the seller wore glasses and “a large Akubra, big brim”. In that case, Georgiou asks, why did he tell neither of these details to Detective Tony Marmont in January 1989? And why did he tell Marmont the man had come in five weeks before the murder? Reid can’t remember.
What Reid can remember is that Marmont showed him a photo-board of men and asked him if he could recognise anyone “100 per cent”. Reid couldn’t. Marmont told him one of the men was David Eastman. Reid admits to Georgiou that he was a friend of both Tony Marmont and Ken Winchester.
In 1990 the AFP showed Reid a second photo-board, again featuring a picture of Eastman. Still Reid didn’t say the seller wore glasses, but this time he had no choice: all of the men on the AFP photo-board, including Eastman, did. Reid was now 80 per cent sure it was Eastman he’d met. It reeks of old-school policing: the more information the police provide, the less doubtful the witness becomes.
Georgiou reads from the transcript of that police interview. As Reid considered the photo of Eastman, he told the AFP “… now I can see this one here – I can see that it relates – I don’t know what it is but it just relates to that, bit of that, it just reminds me of possibly that, it could have been the bloke that was getting in the car …”
Given Reid didn’t see the man’s car the day he came into the shop, Georgiou asks if he was referring to a widely distributed TV clip of Eastman getting into his car. (Despite today denying it, back then Reid admitted looking for Eastman in the media between the two police interviews “so I could see if it was the fella who come into the shop”.)
What Georgiou is getting at is the phenomenon known as the displacement effect. Witnesses think they’ve seen someone, without realising it was in a different context. Because after the suppression order on his identity was lifted in September 1989, David Eastman “couldn’t scratch himself without being on TV”, as the AFP’s then media liaison told the court.
Georgiou asks if Reid ever saw a photo or footage of Eastman wearing an Akubra.
Reid says though the hat on TV was different, its wide brim jogged his memory, “and I said to meself, ‘That’s him.’”
When Reid leaves the witness stand, he walks to the dock, stops and stands over the accused. He then takes a few steps past Eastman – who has remained seated and passive – only to turn around for another look. A sheriff places an arm across Reid’s chest before he can reach the dock again and escorts him out the door, Reid yelling into the courtroom: “WHAT, SO HE’S ALLOWED TO EYEBALL ME BUT I’M NOT ALLOWED TO EYEBALL HIM? IS THAT THE GO ’ERE?!”
During the adjournment that follows I overhear Eastman ask a sheriff if the witness has left the building: “I don’t want to run into him in the gents.”
June becomes July, August, September, then October. The country gets a new prime minister and the case gets a new courtroom. David Eastman turns 73 and starts to stir: one day the journalist next to me is told by an embarrassed solicitor that “David has requested you either blow your nose or stop sniffing”; another day a man in the public gallery is told by a sheriff that the accused wants him to sit further away.
The court hears of Eastman requesting to view the supplementary electoral roll on several occasions in 1987 and 1988 (Winchester’s address wasn’t in the phone book, but it was on the roll); of Eastman telling a policeman outside Winchester’s station a few days before the murder that “the executive in this building is corrupt”; of Eastman buying a new muffler in April 1989. A Deakin resident says she saw a “faded” “aqua-turquoise” “Mazda or Datsun” parked near Winchester’s house two nights before his murder, and when she walked past it the driver tried to conceal himself. When the murder reminded her, “the number that came out of my head was YPQ 038”. She couldn’t later identify Eastman’s 1979 cobalt Mazda 626 on a police photo-board but, discounting the fact most registration numbers in the ACT begin with Y, its rego was YMP 028. What are the chances of fluking such a likeness?
But another “light aqua blue” car (“similar to a Capri”) was seen that night in the same spot by a different witness, driven by a man far too young to be Eastman. Under cross-examination, the woman who noted the numberplate now admits “all I can say is that it was definitely an ACT numberplate” and that after speaking to her husband – and after speaking to police – “we came to the conclusion that it was a medium-sized Japanese car”. How very helpful of them.
The audio recordings of Eastman whispering to himself are played on headphones to the jury but not to the media. Under cross-examination, the prosecution’s phonetics expert politely doubts the alleged line “he was the first man I ever killed” could be heard as “he was the first man I ever kissed”.
Weeks are spent establishing – through comparisons between cartridge cases it had previously fired with those from the crime scene – that the murder weapon was the never-found Ruger. But evidence that Eastman fired it fails to move beyond the circumstantial: a blue car was seen near the seller’s house on New Year’s Eve 1988; Eastman withdrew $200 from an ATM the next day; the seller’s wife said her husband lied about selling it to Eastman; one friend of Ken Winchester thinks he saw Eastman leaving the seller’s house on New Year’s Eve, and another person thinks Eastman tried to sell him a Ruger in the new year.
Then, on September 4, some agreed facts between the parties are read to the court:
On January 18, 1989, 25 particles of gunshot residue were vacuumed from Eastman’s car boot
As of January 1989, 36 types of ammunition sold in Australia left greenish, translucent balls of gunshot residue
Gunshot residue can be transferred from one surface to another
It is not possible to age gunshot residue
The 25 particles found in Eastman’s boot could have been produced by any of the 36 types
The closest thing this case had to a smoking gun, up in smoke.
In 2010, a retired schoolteacher made a statement to police. In 1985 or ’86, he said, he borrowed his friend David Eastman’s car and, without telling him (“He did not like killing at all”), took it rabbit shooting.
That his story was discredited in court (where had he been all these years? “That’s a good question”) didn’t matter: by then the spectre of game-changing new evidence had helped trigger a judicial inquiry. There were 19 stated grounds for doubting the soundness of Eastman’s conviction, from his fitness to plead to the judge’s objectivity.
But it wasn’t the provenance of the gunshot residue that ultimately caused the retrial; it was its analysis. The forensic scientist who worked on the case, his name now subject to a gag order, was disgraced: witnesses testified to his aversion to peer review, his disciplinary and procedural breaches, his history of “going too far” in conclusions – even “overselling” his expertise.
When the forensic scientist compared the residue found in Eastman’s boot against an ammunition database, he found it exclusively matched – in shape, size, colour, burn characteristics and chemistry – the .22 PMC-brand ammunition used to kill Winchester. At trial, the evidence went unchallenged.
But the judicial inquiry heard that the AFP had been warned of this forensic scientist as early as August 1989. He failed to comply with accepted practice, and in the years leading up to the Eastman trial was disciplined for using work facilities to conduct paid private work. When he finally relented to being peer reviewed, colleagues were presented with inadequate and inconsistent findings. Concern was raised that the forensic scientist had done all the work himself, but the tests could not be repeated: most of the particles were now destroyed.
Perhaps most alarming was the forensic scientist’s subjectivity. “Why aren’t they arresting Eastman on the basis of the evidence?!” he told Detective Sergeant Peter Nelipa in 1991; in 1994, facing peer criticism, he told another member of the AFP he was “not going to see the brief suffer”, wanted to “put a brake on these turkeys” and suggested the critics be censored: “[w]e don’t want these bastards putting that sort of stuff in writing.”
We forget how recent the advent of forensic science is. In 1989, DNA’s use was very limited in Australia, and the way in which the forensic scientist compared the gunshot residue was – unbeknownst to the jury – a novel one. Inexperience led to mistakes: in Australia, junk forensics led to the murder convictions of Edward Splatt (in 1978) and Lindy Chamberlain (in 1982). In both cases it wasn’t technical flaws but a lack of professional detachment that skewed the results. Scientific objectivity is meant to reduce doubt; its subjective application only increases it.
Acting Justice Martin found no scientific basis to say the material in Eastman’s boot was PMC brand, and that “at best the reliable evidence established that green flattened ball particles were found in the Mazda boot which were consistent with PMC and numerous other types of ammunition, including ammunition the applicant said he fired in rifles which he placed in the boot many months before the murder”.
If the court had known of the flaws in the forensic evidence, continued Martin, increased reliance would have been placed on weaker, circumstantial evidence. It was not known how this would impact the alternative theory for who killed Winchester – that had not yet been tested before a jury.
The defence calls only two witnesses. One is a speech-perception expert who says the poor quality of the police buggings resulted in an unreliable transcript for assisting a jury; the other thanks me in a thick Italian accent as I hold the door open for him, his hands full of fedora.
The trial takes a strange turn. The AFP version is this: in 1980, a member of Canberra’s Calabrian community approached Detective Sergeant Brian Lockwood with a proposition. With police sanction, the man and his unsuspecting associates would grow a marijuana crop on his farm at Bungendore, over the New South Wales border outside Canberra. Requesting only his expenses be paid and using the cover story of corrupt police protection, he would infiltrate and provide intelligence on the cannabis trade. He’d even chosen a code-name: “YKW” – You Know Who.
Lockwood’s boss, then Detective Superintendent Colin Winchester, couldn’t believe his luck. Sounding like a wide-eyed skip who’d just tasted his first slice of pizza, Winchester rang a NSW Police colleague and pitched what would need to be a cross-jurisdictional operation: “The Italians who have approached the informant are members of ‘L’Onorata’ – commonly known as the Italian mafia!”
L’Onorata Società – the Honoured Society – is the Australian arm of ’Ndràngheta, the Calabrian Mob. Emerging in Australia in the 1920s, it became active in Melbourne, Adelaide, the citrus groves of Mildura and Griffith, and the cane fields of Queensland. Of the 3000 Calabrian Australians living in the Canberra region in 1980, perhaps 70 were members.
From the 1970s, L’Onorata quietly began shifting its focus to the cultivation and trafficking of cannabis. Then in 1977 it was thrust into the spotlight: the disappearance of Griffith anti-drugs campaigner Donald Mackay prompted the state Woodward Royal Commission into the trade. It found L’Onorata contracted Mackay’s murder. In this climate, the NSW Police considered Winchester’s plan a “golden opportunity” for infiltration.
The next summer, up to 5000 plants were grown in what became known as Bungendore 1. Winchester wanted the operation to continue “even to the harvesting and sale stage”, and in March 1982 a delivery of 97 kilograms was to be driven to Sydney. But at the last moment a partner of YKW transferred the stock to another car and drove it to Melbourne instead. Tipped off by their NSW colleagues, Victoria Police arrested three men; they escaped conviction after one revealed Donald Mackay had been murdered by the hitman James Bazley (the other two were released to disguise the informant).
Undeterred, YKW volunteered to continue informing the next summer. This time, up to 15,000 plants were grown in state forest south of Bungendore – a crop worth a police-estimated $7.5 million. Again, it was a joint AFP–NSW Police operation; again, Winchester approved. But then, the AFP says, he played no further role, transferring supervision of YKW to a subordinate.
After $2 million worth of plants was stolen from Bungendore 2, YKW was ordered to pull out the labourers and the rest of the crop was destroyed by police. In 1988 – after himself being arrested for growing a different, unsanctioned marijuana crop – YKW’s cooperation with the National Crime Authority led to charges being laid against 11 men.
Less than a month before the “Bungendore Eleven” were due to face court, Colin Winchester was murdered. The case against the Bungendore Eleven collapsed: although the defence planned on calling Winchester as a witness (to allege entrapment), YKW refused to testify, fearing for his life and, in spite of federal and state immunities, fearing incrimination.
He’s no more inclined to talk today at Eastman’s retrial. At 81, YKW wears a grey pinstripe suit and a white goatee; he looks like a fairground huckster and boasts the tricks to match: first he squabbles with the judge over incriminating himself; next he refuses to pay his legal fees; decides he can’t speak English; is deaf; old; sick (“Your Honour, I have decided I cannot understand, because of my health”); can’t hear the phoneline to the Italian interpreter; has had his signature forged on statements relating to acting as a police informant …
Georgiou asks if he’s ever heard of L’Onorata.
“I hear rumours, like everybody else.”
“People talk and mention ’Ndràngheta, as an organisation.”
One involved with the cultivation and trafficking of marijuana?
“Could have been. You read a lot of garbage in the papers and you dunno what they really mean.”
The defence asserts YKW succeeded in convincing L’Onorata that Winchester was crooked. (When he had testified for the prosecution, Brian Lockwood recalled envelopes of cash and fertiliser bags of marijuana being given as bribes, declared and destroyed respectively.) But officially, Winchester ceased involvement in 1982. The key unanswered question: Was Winchester murdered for double-crossing the Mob?
YKW eventually says the plan at Bungendore 1 was for him to “infiltrate people cultivating and trafficking marijuana”. Money was “no limit”, he was to involve himself “as deep as possible” (“I would have a gun but I’m not allowed to kill anybody”) and “all the important dealings were done with Colin Winchester”. Did these growers, asks Georgiou, include members of the Italian community? “Could have been.” L’Onorata? “I may have spoken to people in the police force about this organisation, but I don’t have a clue about the operation of this organisation.” Was YKW a member? “You don’t know what you’re talking about!”
Georgiou reads from an interview between YKW and police in 1980: “I said [to one of the growers], ‘we’ll pay 10 per cent to the police for protection, the rest will be divided into equal portions. One for each person, and I’ll provide my farm to grow it on.”
YKW shrugs and tells Georgiou: “I told them heaps of lies, because I needed them to be involved in my project.”
“Did you ever tell anyone you had the protection of Colin Winchester?”
“I have never in my life mentioned the name Colin Winchester to any person involved in illegal activities.”
Georgiou flicks his wig’s tail at this sudden specificity. “So you can remember that, can you?”
He reads from a 1989 transcript of an interview with NSW Police, in which YKW admits to being “told to use the cover of corrupt police protection by Sergeant Lockwood and Inspector Winchester”.
YKW tells Georgiou that’s not his signature at the bottom of the document.
“You’re not seriously suggesting the police traced your signature on every page?”
In February 1989, the AFP asked YKW who killed Colin Winchester: “Well, let me put it this way. The people that wanted the crop in [Bungendore 2], the people that wanted the crop, I served them very well by covering them up, by saying that it was Winchester’s project … These are the people you have to look at.”
This seems consistent with previous threats the growers had made when their supposed cover had been exposed. In May 1982, two months after he had arrested the three drug couriers, Detective Weel of Victoria Police met YKW at a Lygon Street cafe, where the informant pleaded for the charges to be dropped, claiming he was under “political pressure” as a result of the arrests, and, according to Weel: “He stated that he and I would get a bullet if he could not satisfy those involved.”
Later that month one of the men he had arrested spoke to Weel directly: “He said he didn’t want me to do the wrong thing by him, nor did he want to do the wrong thing by me.”
But in that same AFP interview, YKW says maybe the police killed Winchester.
It’s hopeless. How could you trust such a contradictory witness, who today says he started informing because he “wanted to hurt these people as much as possible”? YKW may know everything – or nothing. And if Winchester was murdered for treachery, why did YKW – the obvious turncoat – escape unharmed? Because he’s untouchable? Or not worth touching? He’s still acting as an agent provocateur: this time peddling doubt instead of intel.
Unsurprisingly, YKW guffaws when asked under cross-examination if he knows who killed Winchester. “Definitely not!”
“There are too many coincidences in this case for someone other than Mr Eastman to have killed Mr Winchester,” says Murugan Thangaraj in his closing address.
In the 30 years since, all Eastman has said of his whereabouts between 8 and 10pm on 10 January 1989 – the murder window – is that he was out, and that his usual night-time routine was to go out for takeaway, driving around to relax. How are we to understand this?
Would someone of his intelligence neglect to come up with a watertight alibi even while planning to pull off a murder?
Although he denies buying the Queanbeyan Ruger, what are we to make of the fact that he doesn’t deny buying two other rifles – one under a false name and the other, a Ruger – a year before the murder? Or that he allegedly inspected, but didn’t buy, three other Rugers later in 1988, but not after the murder – two of which the buyer specified to the sellers he didn’t need the accompanying telescopic sight?
He bought them soon after the assault charge; he told police he was scared of being “blown away” by his neighbour, who owned a pump-action shotgun. And he says he continued to feel threatened in 1988 even after his neighbour had moved out, because he thought one day he saw him following his car. (And even if it was Eastman shopping for weapons, two of those sellers say he handled theirs like an amateur.) But who knows what Eastman perceived as threatening? This is a man who once rang police and accused another neighbour of flushing her toilet too loudly, who once complained to a bus company that its drivers pulled into the kerb in an intimidatory manner.
And how about the fact that a letter from AFP commissioner Peter McAulay confirming the assault charge would be prosecuted was delivered to Eastman the same day as the murder?
A letter was sent by Eastman’s counsel to the DPP in April 1989 requesting the charge be dropped: this suggests he hadn’t given up, and knew Winchester’s death wouldn’t make the charge go away.
The buggings? The sightings? The threats? The ATM withdrawal?
But without forensic evidence, this case is circumstantial.
For five months now I’ve been reminded of something I read while trawling through old newspaper articles written by journalist Margo Kingston in 1989, the year Eastman was under 24-hour AFP surveillance: “Start with an assumption of innocence and coincidences quickly become just that. Start with an assumption of guilt, and even the most innocuous scraps of information become pieces in a jigsaw, and off-hand comments soaked with significance.”
Flip the assumption of guilt, and work from the hypothesis that L’Onorata killed Winchester. The deceased was the victim of a “double-tap” shooting, less commonly associated with economists than professional assassins used by criminal organisations like the ’Ndrangheta – 11 suspected members of which the victim had been instrumental in bringing to custody, their prosecution imminent.
Coincidentally, the nephew of two members of the Bungendore Eleven (and the godson of another) was stopped at a roadblock leaving Canberra the morning after the Winchester murder; his other car, a V8, was in a garage being repainted. It was never inspected by police.
In 1990, a former L’Onorata leader from Canberra – who had two brothers in the Bungendore Eleven – had been rumoured to be promising to tell the National Crime Authority who killed Winchester if they provided him with protection; he was the father of the man with the V8. In another remarkable coincidence, he was murdered before he could cooperate with authorities.
The theory that Winchester was killed by the mafia, says Thangaraj, is “laughable”, requiring too much speculation. But the prosecution’s case also requires its fair share: that Eastman tried to sell the murder weapon to Denis Reid before the murder because he must’ve test-fired it and noticed it didn’t shoot quite straight; that the disparities in facial and clothing identification were because Eastman was disguising himself leading up to the murder; that the tradie in Queanbeyan described Eastman as built like a “thoroughbred” and not “25 per cent overweight”, as had his GP that very month; that the witnesses who supposedly saw Eastman’s car variously described it as “new”, “faded, “blue” and “aqua-turquoise” because of the time of day they saw it.
It requires the speculation that the Deakin resident who heard someone speaking outside her house the night of the murder heard Eastman speaking to himself; that the witness who heard a V8 – corroborated by two other witnesses – actually heard Eastman’s broken muffler, or a neighbour’s 6-cylinder Wolseley, or an unrelated V8; that it is the hearsay evidence of the seller’s wife – and not the evidence of the seller – that is most reliable when assessing whether he sold the gun to Eastman.
In delivering his open finding in 1991, Coroner Ron Cahill said the “fatal flaw” in the Eastman-as-murderer hypothesis was a lack of evidence linking him to the murder weapon. It was the Telecom technician’s revelation that he had seen Eastman leaving the gun seller’s house that reopened the inquest. Under cross-examination by Georgiou, the technician admitted he lied under oath at the coronial inquest when asked if he saw anyone else at the gun sale; he says he feared for his life, and feared the sack for wagging work to buy a gun. When he told police nearly four years later that he had seen Eastman there, it was during a camping trip of the AFP Fishing Club. He wasn’t a cop but moved in police circles: coincidence?
Thirty summers on, we are no closer to knowing who killed Colin Winchester – the senior-most assassination in Australian history. The prosecution of David Eastman has now cost around $30 million.
What do we do with doubt? The word derives from Old French: in a now-obsolete sense, doter means to dread, to fear, to be afraid. And that’s how it still works: doubt threatens our sense of peace; it plays on our fears; it nags. As Georgiou helpfully reminds the jury in his closing address, “We do not find people guilty of crimes in this country that we think they probably committed.”
But, whatever the verdict, why has it taken 30 years? Undoubtedly, Eastman’s behaviour during the first trial didn’t help. But for such a murky crime, it seems to me there’s been a remarkable absence of doubt displayed by almost everyone involved.
In declaring the first trial a miscarriage of justice, Acting Justice Martin found no conspiracy to frame Eastman. He saw no reason to doubt the AFP had adequately investigated alternative suspects; that the police ignored the forensic scientist’s flawed reputation, practice and findings (and that the prosecution failed to disclose that information) was sloppy, not nefarious.
The AFP’s pursuit of justice for its slain assistant commissioner is understandable, as is the emotion that (at best) clouded and (at worst) botched their actions in its aftermath, when 81 people contaminated the crime scene, perhaps ending hopes of finding the murderer.
But what if the justice system failed Eastman for a more troubling reason: because we let it? At sentencing in 1995, Eastman shouted that this was the greatest miscarriage of justice since the Chamberlain case. Perhaps, but Lindy Chamberlain divided the nation: for all her haters, she had tireless campaigners. Save for the odd conspiracy theorist, Eastman has never mustered fans. Throughout the retrial, there was only one supporter who attended regularly, a retired high school teacher who has never met him but told me he had “a thing” for underdogs.
Could it be that Eastman, who spent so much time making a public menace of himself, forfeited his civic rights to a fair trial, to the presumption of innocence, to liberty as a result? Police commander Ric Ninness told the coroner he believed Eastman’s “type” didn’t deserve the right to silence afforded to every citizen.
His type? At the time of his murder conviction, David Eastman had accrued 128 charges of making threatening phone calls; as part of his bail conditions for this retrial, he hasn’t been allowed to approach 200 individuals. Fear and doubt are old bedfellows, but what about prejudice and certainty? Because while 100 jurors are usually empanelled for cases in the ACT Supreme Court, for this one they drew on 500. When asked to raise their hand if they had heard of Eastman, the vast majority were disqualified. The 16 chosen, of which 12 make the verdict, were either living under a rock in 1995, living elsewhere or not yet living. It may prove decisive.
One early spring day, Jack Waterford, the former editor of The Canberra Times, attended the retrial. Waterford estimates he’s written one million words on this saga, penning his first the night of the murder.
Waterford is unique, to my knowledge, as someone Eastman threatened to kill – and who doubts Eastman to be a killer. “This is a man who has displayed an expert ability to navigate bureaucracy,” he tells me, somewhat generously; “why would he bother stopping at the roadblock of a mere assistant commissioner?”
Waterford, on the steps of the courthouse, told me of a friend, a retired senior public servant, who was a victim of Eastman’s harassment. When Waterford put to him that an innocent man may have served 19 years, the friend was unmoved. Couldn’t have happened, he replied, to a nicer bloke.
At 10.15am on November 22, 2018, on the seventh day of deliberations, the jury returned a verdict of not guilty. David Eastman bowed to them and mouthed, “Thank you.” The judge said he was free to go, and he thanked the judge. Eastman has lodged a case for compensation.
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