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Justice denied: Eastman kept in jail

Justice denied: Eastman kept in jail

One month ago, a judicial inquiry ruled David Eastman was wrongfully convicted of murder in 1995. Why is he still languishing in a Canberra prison on 1 July 2014? 

Justice denied: Eastman kept in jail

An Op-Ed, unpublished by the local newspaper, by barrister Hugh Selby*

Just a few years ago there was a short debate in the USA about the origins of the word ‘picnic’.  Some people said that its origins were from  ‘pick a nigger’ for a lynching murder, while others pointed to it being a contraction of a French word associated with outdoor dining.  It suited some debaters to point out that black lynching murders were often public outdoor entertainments at which white folk ate and drank.

Eastman during his original trial: Canberra Times
Eastman during his original trial: Canberra Times

Now David Harold Eastman[1], though not black, has been much blackened.  The phrases ‘ a lawyers picnic’ and  ‘a media picnic’ are apt descriptions for what has happened to him.  It’s all too clear from the Martin report that he was wrongly convicted.  Seriously deficient evidence misled jurors at his trial.

Inconvenient though it may be to the ACT Government, the police, ACT housing, and all those who rightly or wrongly fear him, he ought to be at liberty, as freely able as the rest of us to pick up a newspaper, sit in the public foyer of the ACT Supreme Court, or talk to himself in his ACT public housing (that was taken away from him).

But now there are delays because of the law that the ACT Supreme Court is required to apply.  That law, a quite recent act of stupidity, is set out in the ACT Crimes Act.  The Court is instructed that ‘it must not hear submissions from anyone’ as it considers what to do with the Martin report and its recommendations.

Clever lawyers at a picnic quickly realise that the court could invite written submissions because, unless those are read aloud, there is no breach of the clear words of the law.  That has happened.

Even the not so clever lawyers, not invited to the picnic, realise that it’s undesirable to have the judges meet in a private place and, accountable to no one, then reach a decision.

Most judges abhor making decisions when they are not presented with competing viewpoints in public.  When a judge makes a decision with only one party present – for example, when a party seeks an injunction to stop an activity, or when a party gets an order that an absent defendant pay it money allegedly owed –  then there is always the ‘protection’ that the absent party will get their day in court to put the wrong right.

That is not so in this Eastman saga.  The same law says that the judges considering the (Judge) Martin report are not acting ‘judicially’. No public sitting is required.  It  also means that their decision cannot be appealed.  However, it may be ‘reviewed’ as an ‘administrative’ act.  There are some lawyers salivating at this prospect because the NSW Court of Appeal, looking at better drafted NSW law, decided just last August that the nature of this ‘review’ was an unanswered question.

There is a quick, blunt, cheap solution to this problem that I expect to be thwarted by political avoidance measures.  ‘The Executive’, ie those in the ACT Government Ministry, have the power – without any reference to the court – to release Mr Eastman or to release him with a pardon.  The effect of a pardon is that it puts an end to the matter. There will be nothing then for the court to do.  The (Judge) Martin report has given the Ministry the justification to release him, but the spin doctors are probably advising, ‘let the judges take the blame’.

Meantime, and it is a mean time for David Eastman, he sits and waits behind the wire that is our very own gaol in the ACT.  He is the reason for the picnic that others enjoy.

I’m aware that (Judge) Martin wrote that he thinks Eastman is guilty of the murder – and it’s a sentence in his report that Martin might better have left unwritten.  David Harold Eastman has fought with extraordinary determination for his vindication – if he’s innocent then anybody who expects this latest hold-up to be the last ‘hurrah’ will be disappointed.  If he’s innocent I expect him to continue his fight until his innocence is positively established.

This picnic has many courses yet to come.

– * Hugh Selby, barrister and legal educator, Lyneham ACT

ENDS Op-Ed

 

In private correspondence to Civil Liberties Australia, Mr Selby has explained the nuances of the legal situation in greater detail:

As David Eastman told the ACT Supreme Court late in June 2014, it’s a month since the Martin Inquiry reported that his conviction was wrongful, but he is still in gaol.

Many powerful people may not like it but he must be at liberty.

Not so long ago a Sydneysider, Gordon Wood, who was wrongly convicted of throwing his lover off the infamous Gap, won his appeal. The NSW Court of  Criminal Appeal, however, dallied far too long after the appeal hearing before quashing Wood’s conviction.  There was much muttering that the Court should have ordered his release at the close of that hearing and then provided the reasons at their leisure.

Eastman deserves no less.

There are now indefinite delays for Eastman as the ACT Full Court manages the mess that is the ACT legislation which governs the Court’s response to the Inquiry. In theory that Court could determine a Habeas Corpus application by David Eastman (ACT Supreme Court Act, section 34B) that he be released immediately.

However, if that application is refused – and the absence of any concern for his situation suggests that it would be – then Eastman must make a ‘special leave to appeal‘ application to the High Court (Judiciary Act, section 35AA), all of which will mean many more nights, weeks, or months in our gaol.

However, the ACT DPP says there’s a constitutional question raised by this affair.

If that is so, the question raised that gives David Eastman access to the original jurisdiction of the High Court because the Commonwealth is a party to the unedifying lawyers’ circus. (Constitution section 75 iii). He can raise the issue of his delayed release through a habeas corpus application.  He did that, unsuccessfully, in 1994 – but his grounds, and the jurisdiction of the High Court, are clearer this time around. It’s a short point: that his indefinite continued imprisonment is unlawful.

As Justice Bell of the Victorian Supreme Court wrote in 2010,

When a court determines a habeas corpus (‘produce the body’) application, both the body of the person and the body of the law are at stake, for nothing tears to shreds more completely the whole idea of the rule of law than unlawfully restraining the personal liberty of the individual.

(Antunovic v Dawson [2010] VSC 377)

[1] Eastman was convicted in 1995 of murdering Asst Comm of the Australian Federal Police, Colin Winchester, by two shots to the back of the head. He was sentenced to life without parole. In 2014 a judicial inquiry (the Judge Brian Ross Martin inquiry) recommended the sentence be quashed because he did not receive a fair trial, particularly on the forensic evidence presented, which was “deeply flawed”. Eastman is in his 20th year in jail whereas he should never have been convicted at trial, the Martin inquiry found.

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