PASSAGE OF THE DAY: "There were many reasons not to hold a retrial after the first miscarried, damaged irreparably by deeply flawed forensic evidence. There was the exorbitant cost to the taxpayer, Eastman’s age (he turned 73 during the trial) and the time since Winchester's murder, to name a few. Acting Justice Martin, the head of a judicial inquiry that found Eastman’s 1995 conviction should be quashed, considered a retrial would be both unfeasible and unfair. Who would convict him? Would a judge jail him again if so? Ageing witnesses or those dead or unable to attend court became a feature of Eastman’s fresh trial. There were 127 live witnesses for the prosecution and a further 41 pieces of evidence from those unable to take the stand. For those unable to attend, their police statements, or transcripts of their evidence at the first trial or the inquest were read out by two prosecutors in a deadpan role play, neither daring to put their own inflections on the evidence. Some witnesses were more frail than the last time they gave evidence in the trial of Eastman. Some entered court with the help of a walking stick. Others grizzled on the way in and out, or apologised for the aches and pains that slowed their movements."
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STORY: "The inside story of David Eastman's murder trial," by reporter Alexandra Back, published by The Canberra Times on November 22, 2018.
SUB-HEADING: "The behind-the-scenes story of the retrial that led to David Eastman's acquittal - and the big changes compared with the first time he faced a jury."
GIST: "On
June 4, 2018, David Harold Eastman began a second chance at justice.
The scene where the man formerly convicted of the cold-blooded killing
of Canberra's most senior police officer would begin this once
unthinkable scenario was an unceremonious back entrance at the rear of
Yarralumla’s Albert Hall, among the garbage bins. The former public
servant was ushered inside by his lawyer while hundreds of potential
jurors queued at the front. The first trial in 1995 was a
shambles, marked in part by the chaos Eastman himself brought upon it.
As the trial judge remarked at the time, Eastman had committed forensic
suicide, dooming himself to conviction. A judicial inquiry nearly 20
years later found there had been a substantial miscarriage of justice.
Acting Justice Brian Martin declared a retrial would neither be
feasible, nor fair. He made that conclusion and another - that
while he was almost certain of Eastman's guilt, he retained a nagging
doubt. The 2018 jury also had a doubt, and on November 22, on their
seventh day of deliberations, they returned a unanimous verdict of not
guilty to the murder of Australian Federal Police Assistant Commissioner
Colin Winchester. The man: Eastman's
temper is infamous, perhaps one explanation for why tension grew around
his name as the trial crept closer. There is a long list of people he
has offended or physically assaulted, including a fellow student while
at university. He once assaulted a female journalist and punched the
deputy registrar of the Administrative Appeals Tribunal (he had an
assault conviction overturned on appeal on a technicality), and another
time crushed a secretary's hand in a door. In
September 1992, Eastman forced staff to wheel him from the court after
he refused to move in protest. During the first trial, Eastman routinely
attacked his lawyers, in one particularly vitriolic stream of abuse
describing one barrister as "this evil, twisted little dwarf". In
fairness to Eastman, it has been a long time since his poor behaviour,
or his rage and anger, made headlines. But the court’s memory is slow to
fade. During the retrial this year the question that was often on the
mind of those familiar with his in-court antics was how was the
notorious disrupter behaving now? In the event, the former
Treasury official was a model defendant, at least in public. An
unexplained turnaround from his former theatrics..
With newfound
discipline, he did not sack one lawyer, at odds with the carnage of a
case he left behind after sending his defence team packing 11 times
during his first. Instead of throwing a jug at a judicial officer, as he
did to one magistrate in 1992, he sipped water from a plastic cup.
Where he once abused the “corrupt shit” of a judge and swore at the
prosecutor, this time he was silent and restrained. He thanked the jury
and judge at the verdict. Eastman’s
intemperate actions at the first trial gave way to a studied if never
fully relaxed ability to sit back and let his lawyers do the talking
this time around. That meant trial number two was professional, smooth,
and mostly uneventful. The 73 year old, in his daily uniform of
black sneakers, neat cuffed jeans, pressed collared shirt, and navy
sweater, sat placid and alone at the back of the court, each day
unpacking a bottle of water and a notebook from a tattered plastic Aldi
bag, and jotting on the occasional Post-It note for his lawyers. Was this almost timid, elderly man the same one who spent 19 years in jail for the brutal murder of a respected police chief? The public will only ever know a portion of why this jury came to the conclusion it did. Eastman
- whom one witness described as suffering a persecution complex before
the defence objected to the opinion - still had grievances and sought to
communicate them, but now it was via a delicate word from a sheriff or
lawyer. A complaint about a sniffing journalist in the public gallery,
and another about a member of the public sitting too close behind him. Eastman
the accused was emotionally inscrutable but when it came to the
evidence his steely gaze did not waver, even when graphic images of
Colin Winchester’s slain body paused on the screen in front of him. One
witness had to be ushered from the room by the sheriffs while
complaining loudly about why Eastman was allowed to “eyeball” him but he
couldn’t return the favour. The question about Eastman's
behaviour at the first trial was whether he was deliberately acting out
to get a retrial on appeal, believing the bad press would mean a second
trial would never take place, or whether he was simply out of control, a
product of his mental health. Maybe
he was out of luck when the ACT director of public prosecutions in
office at the time made the unpopular and unlikely decision to prosecute
Eastman for a second time. The
unanswered question now is what tamed him? Was it age and weariness?
Treatment of his mental health? Or was it the base fear of being sent
back to jail? The jury: When this latest jury was
empanelled on June 4, Acting Justice Murray Kellam, a retired member of
the Victorian judiciary, told the 500-odd crowd that whoever did not
think they could perform their duties as a juror on this case could
leave. The tactic must have been effective because the 16 finally chosen
were dedicated to the enormous task before them. Their impassive faces
would break only to share the occasional joke with the judge or lawyers.
They sat patiently for months absorbing the mountains of material
before them. They
also became friends. Three months into the trial, the jurors asked
whether they could meet socially, outside of courtroom hours. There was
talk of a picnic in Tidbinbilla. A diplomatic Acting Justice Kellam let
them down gently, while thanking the members for their integrity and
honesty. The jury lost one of their number early on after a member
of the public dobbed her in. Despite all his warnings not to talk about
the case outside the jury room, a note to the judge from the anonymous
citizen suggested the juror had been boasting about her role in the
Eastman trial at a local massage joint and about how she had already
made up her mind - not guilty. The juror was dismissed, the remaining members left to guess why. Another juror later fell sick and was also excused. The
jurors to their credit remained attentive until the last moment. When
it came time for the ballot and for the jury to be whittled down from
the remaining 14 to 12, in a sad moment, one of the more studious jurors
was selected to leave. She shook her head in bitter disbelief. October
11 was the last day the trial was to sit in the old Supreme Court
building and a constant buzzing noise gave one juror a headache. It
could not be fixed and the other jury courtroom was just as bad. The old
building seemed to have given up so the judge abandoned the day’s work
and sent everyone home for an extra long weekend. On October 15,
the trial moved into the new court room. It was fitting that Eastman,
whose history is intertwined with the ACT Supreme and Magistrates Court,
should also appear as defendant in the new building. The trial: There
were many reasons not to hold a retrial after the first miscarried,
damaged irreparably by deeply flawed forensic evidence. There was the
exorbitant cost to the taxpayer, Eastman’s age (he turned 73 during the
trial) and the time since Winchester's murder, to name a few. Acting
Justice Martin, the head of a judicial inquiry that found Eastman’s
1995 conviction should be quashed, considered a retrial would be both
unfeasible and unfair. Who would convict him? Would a judge jail him again if so? Ageing
witnesses or those dead or unable to attend court became a feature of
Eastman’s fresh trial. There were 127 live witnesses for the prosecution
and a further 41 pieces of evidence from those unable to take the
stand. For those unable to attend, their police statements, or
transcripts of their evidence at the first trial or the inquest were
read out by two prosecutors in a deadpan role play, neither daring to
put their own inflections on the evidence. Some
witnesses were more frail than the last time they gave evidence in the
trial of Eastman. Some entered court with the help of a walking stick.
Others grizzled on the way in and out, or apologised for the aches and
pains that slowed their movements. Others seemed shocked to be here
again while many struggled to recall with precise detail unmemorable
everyday events from 30 years ago. The jury took in mountains of
evidence and submissions, more than 5000 pages worth of transcript. But
the public will only ever know a portion of why this jury came to the
conclusion it did. A veil of secrecy came down on the trial early on. Closed
sessions and various suppression orders knit into a poorly constructed
quilt of prohibited communication about various names and incidents
tendered during the trial, many detailing the suggestion it was the
Mafia behind the killing. The orders - countless, clouded - will
live on in perpetuity unless otherwise ordered, though so too will the
names and details of much of what has been suppressed, already on Google
or Trove, or books or documentaries. Or in one case, the witness whose
name and evidence was detailed - unsuppressed - in Acting Justice Martin's 2014 report. Before
the trial began, the judge partly agreed to an application by the
defence to suppress Eastman’s image and banned publication of photos of
Eastman from before January 2016. This was lifted following the trial. During
the trial, the judge went on to reject the media's request for access
to innocuous photographs tendered as exhibits, and another request for a
transcript of the barristers’ closing addresses. The media's
attempt to fact check during the trial with another request to see an
exhibit was reluctantly allowed, but only with the defence and Crown’s
support. On August 29, still early days, the public was excised
from hearing what the Crown said was evidence of Eastman admitting the
killing. The court turned silent disco as jury, judge, lawyers,
barristers and Eastman placed headphones over their ears to listen to
mutterings recorded by police bugs planted in Eastman’s flat. The rest -
including the media responsible for keeping the public informed - sat
in a silent open court. Requests to the judge for the media to
access the recordings were rejected. At the trial’s end, the media also
requested access to a number of exhibits, including the audio of
Eastman’s alleged confessions. That appears unlikely to happen. When
the trial shifted to the new courtroom, the judge allowed Eastman the
luxury of not sitting in the dock for accused people, segregated from
the court by a small barrier. He was allowed to sit with his lawyers
near the bar table, up until the verdict. We will likely never know the reasons the jury came to their decision. This
is the constraint of the criminal system. It is illegal for jurors to
disclose details of their deliberations. The question now turns to what
happens next. Will there be a fight over compensation? It seems likely.
Almost certainly, this will not be the last we hear of David Eastman."
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/
