December 2019 – January 2020

The Nation Reviewed

Cap in hand

By Sam Vincent
An unprecedented twist in the Walkley Award–winning story of the David Eastman murder case

There’s a reunion of sorts underway in Courtroom Seven when I open the door and bow to His Honour. Here’s the same gang of reporters I haven’t seen since judgement day nearly a year ago; there’s the same true-crime tragic, waving from her old seat in the public gallery. The 74-year-old defendant is even wearing his familiar blue flannie – only this time he’s the plaintiff.

On November 22, 2018 – 23 years to the month since he was convicted of the same charge – David Eastman stood in this room, lowered his gaze, and heard a jury of the Supreme Court of the Australian Capital Territory acquit him of murder. He had been sentenced to life imprisonment in 1995 for the 1989 assassination of Australian Federal Police assistant commissioner Colin Winchester, but was released in 2014 after a judicial inquiry found the forensic evidence crucial to his conviction – a “match” between gunshot residue found at the crime scene with particles vacuumed from Eastman’s car – was unreliable. His conviction was quashed, and a retrial called.

I spent five months in court reporting the retrial and won’t forget the moment the verdict came: gasps in the packed public gallery, Eastman mouthing “Thank you” inaudibly, a cop behind me punching a seat.

Now, on another spring morning, the one-time Treasury official, who has always maintained his innocence, takes the stand and recalls the relief at learning he was free to get on with what remains of his life: “It was a wonderful moment. The end of a very long battle.”

But not of the war. Under the ACT’s Human Rights Act 2004, a convicted Territorian who “suffers punishment” has the right to compensation should they be subsequently pardoned or in the event their conviction be reversed “on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice”. Eastman is the first person to seek this recourse.

He didn’t testify at the retrial, and it’s disorienting to now put a voice to this harried little man, who for much of 2018 sat in silence behind his counsel, with a stevedore’s beanie (June to September) or legionnaire’s hat (September to November; two styles) stuffed in a plastic bag at his feet. He tells the court of the physical and mental toll of incarceration: the bashings, taunts and humiliation; the frustration, despair and sadness. “Jail’s a dangerous place,” he deadpans. “You have to be on the watch all the time.” He is a laconic, serious speaker; a man who seems broken more than liberated. I didn’t see him smile once during the five months of the retrial, though there’s a quick grin on one occasion during this four-day hearing, when he tosses his coffee cup at the bin and narrowly misses.

He answers the questions of his barrister, Lisa De Ferrari SC, without emotion, and his accompanying written statement is similarly inexpressive:

In December 2000, I attempted suicide …

When I was in Goulburn [supermax], I witnessed a murder …

During the whole time of my imprisonment, I only ever really had regular visits from lawyers …

I was classified as a “non-association” prisoner for about eight of those years. That meant eight years of virtual solitary confinement …

Then there’s all he missed out on. Eastman’s mother and two younger sisters died during his sentence. Prison, he says, also stole his “dreams” of fatherhood, marriage and a career.

Whether he would have realised these dreams is another matter. Long before Colin Winchester’s murder, David Eastman was notorious in Canberra as a public nuisance with paranoid personality disorder. This had most notably manifested itself in a decade-long quest to return to the public service he had quit in 1977, during which time he abused, threatened and occasionally harmed bureaucrats, journalists, lawyers and politicians he believed were conspiring to keep him from returning to work.

It was one such exchange that led the police to suspect him of murder. Four weeks before Winchester was shot in what many believe was a professional hit, the ACT’s top cop met with Eastman and refused to overturn a pending minor assault charge that could have had an impact on his re-employment prospects. The meeting ended with Eastman refusing Winchester’s hand and was followed by the former allegedly making a threat on the latter’s life.

By then Eastman had already fallen from a privileged upbringing to unemployment, public housing, family estrangement and social isolation. Incarceration may have thwarted his dreams, but his reality was alienation.

His personality isn’t on trial today. “We accept it’s a novel issue,” says De Ferrari of the landmark case, “but we also say it’s relatively simple.” Much of the work, she argues, has already been done by this court.

The 2013–14 judicial inquiry into Eastman’s conviction unearthed bias and malpractice by the forensic scientist who conducted the gunshot residue analysis. In his report, quoted by De Ferrari, Acting Justice Brian Martin found “the issue of guilt was determined on the basis of deeply flawed forensic evidence in circumstances where the applicant was denied procedural fairness”.

Instead of claiming damages (lost earnings, medical expenses), Eastman asks for compensation of an “all­encompassing nature”, calculated at a yearly rate and totalling upwards of $14 million.

The defence case is one of interpretation. Territory Solicitor-General Peter Garrisson SC claims a $3.8 million “act of grace” payment offered to and refused by Eastman in July 2019 was not an admission of liability on the Territory’s part but a “moral obligation”. And even if the court accepts Eastman’s argument, Garrisson says, the ACT’s charter wasn’t enacted until 2004. “The plaintiff has not demonstrated in any way how the Human Rights Act applies in retrospect.”

He concedes Eastman was wrongfully convicted, but argues he isn’t eligible for compensation because his conviction was “quashed” and not “reversed” as the Human Rights Act stipulates. Nor, he says, has a miscarriage of justice been “conclusively” shown because no new evidence has emerged and because the 2018 retrial, though lacking the forensic element of the 1995 trial, could have returned a verdict of guilty. (The jury deliberated for six days, and earlier informed the judge they were unable to reach a unanimous decision.) Then there’s what Garrisson calls the “elephant in the room”: that the Human Rights Act doesn’t grant the power to the Supreme Court to award compensation.

Are they saying the subsequent not guilty verdict doesn’t make him innocent? Are they saying he got away with murder?

Eastman isn’t in court when it’s announced he’s been awarded $7.02 million. The crux of Justice Michael Elkaim’s decision is that the presumption of innocence afforded to Eastman when his conviction was overturned renders implausible the Territory’s distinction between the guilty verdict being “quashed” and “reversed”. Elkaim finds that: “The plaintiff started off as an innocent person. He then became a convicted person. On 22 August 2014 he returned to being an innocent person. His conviction was unequivocally reversed.”

That a miscarriage of justice has occurred, Elkaim continues, was shown “conclusively” by the judicial inquiry (and “conclusively endorsed” by the result of the retrial). Moreover, he finds, because these flaws “were unknown to everyone involved in the investigation and trial”, it didn’t matter that in the years since, no new DNA, confession or alibi has emerged exonerating Eastman. It is “the subsequent discovery of the inadequacies and flaws that is a new or newly discovered fact”. That the second trial “could have” led to Eastman returning to jail, Elkaim finds, is “beside the point”.

In calculating compensation, Elkaim considered other payments made in instances of wrongful imprisonment, including to Lindy Chamberlain in 1992 ($1.3 million for four years) and Andrew Mallard in 2009 ($3.25 million for 12). But these were “limited” in their usefulness, as they were not compensation for breaching human rights but ex gratia payments made to express regret and ease community reintegration. Elkaim finds $5 million, plus interest calculated at $2.02 million, is an appropriate figure.

The Territory doesn’t appeal the decision. There’s no official apology, only rumblings that the Human Rights Act may need amending to prevent such payouts in future. It’s the same institutional arrogance that has marred this saga since 1989, including: the AFP’s decision to home in on Eastman before exhausting other credible threads; its accommodation of a problematic forensic scientist; the decision of the ACT Department of Public Prosecutions to ignore the judicial inquiry’s recommendation of a pardon; and the AFP’s refusal to reopen the murder investigation after Eastman was found not guilty in 2018.

What now for Eastman? His written statement outlined a desire to travel, and to find a partner and a job. Outside court, his solicitor won’t say whether his client’s newfound wealth negated an apparent hunger for employment “to make up for all those wasted years”. It might be instructive to note that in 1989 an unnamed politician with personal experience of Eastman’s obsessive crusade to return to work told journalist Margo Kingston: “He’s the sort of bloke who if he won a million dollars today would spend it all to get back in the public service.”

Sam Vincent

Sam Vincent is a writer, farmer and the author of Blood and Guts: Dispatches from the Whale Wars.

@samcvincent

December 2019 – January 2020 edition cover

December 2019 – January 2020

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