Picking a judge for Eastman

Getting it right could involve a jury decision that Eastman is guilty. Or not guilty. Or a judge's decision that any idea of a further trial should be dispensed with because of the time that has passed, the sentence served, and the vagaries of time and death on such a case as could be mounted.

It's not only the result that is important. Equally important is that there be, and be seen to be, a fair trial: a proper reappraisal of all of the admissible evidence so that doubts widely held in the community can be resolved once and for all.

For once it would be nice to see that the ACT legal system works. No shortcuts and without the usual special pleading about the need for compromise given the inherent limitations of the system. As I have so often complained in these columns, the city state with the highest standard of living and education on earth, has a second-rate justice system. We deserve better. It's not for want of expense. And if we cannot get an exemplary trial in a high-profile case, what hope of getting it as a routine?

What passes behind the scenes is hard to know, not least in an environment where police and prosecutors do not answer questions and seem impossible to hold to account. But it appears that the ACT Director of Public Prosecutions, through outside counsel, has arranged a comprehensive reinvestigation of the matter, including a host of fresh forensic investigations.

It is not clear whether this involved the AFP, whose management of the original investigation has been strongly criticised. We do not know what has been done about compromised exhibits and discredited scientific witnesses. Last year the DPP was ordered to supply its complete brief to the Eastman team by January 31, but a great deal of evidence has yet to be produced.

Canberra's legal system is highly incestuous. Most players know each other well, often socially as much as professionally. Players are often in informal as well as formal contact, and there are few open and accountable systems for establishing if particular conduct has crossed any lines. Sometimes, the quite reasonable demand for respect for victims of crime has been allowed to suffocate the interests of other players.

The Attorney-General, Simon Corbell, is not a lawyer and not judicious by temperament. He often seems paralysed by doubt. He is not much admired by many of the players, including political colleagues, which probably accentuates caution and a respect for the virtues of doing nothing. (He has, for example, ignored for two weeks, concerns I have raised.)

In the ACT judiciary, many, some still with roles to fulfil, have previously sat on matters involving Eastman and have expressed views, one way of another, about the case. No doubt, not one of them is disqualified by actual bias. But the casual observer might well be forgiven for wondering about appearances.

Chief Justice Helen Murrell, for example, was neither a resident of the ACT nor a player in its legal system during the many years of the Winchester investigation, the impugned murder trial or the non-stop Eastman litigation by which he sought, usually unavailingly, to clear his name. It is not her fault that the judicial system, and a good many judges, failed Eastman.

But she sat last year on a number of Eastman cases. But then she discovered that her present husband had been an important scientific prosecution witness at Eastman's 1994 trial. She quite properly stood down from the matter before her and would, no doubt, do so in any future matter involving Eastman. This is consistent with the principle that the objective appearance of complete freedom from influence or bias is as important as subjective freedom from bias.

But Murrell, as chief justice, is also responsible for the administration of her court and of judges to do cases. Should she also abstain from deciding which judges hear Eastman cases? It would be more wise.

Most of the resident ACT judges cannot deal with matters involving Eastman, generally because they have acted for or against him in the past. Other judges, at various stages of Eastman litigation, have expressed firm views about guilt. A retrial of Eastman should involve judges with completely fresh minds. (Such people have to be appointed as judges, or acting judges, of the ACT court, but other courts, particularly the Federal Court, have been generous in loaning judges over the years.)

The difficulty is illustrated with an ACT Court of Appeal panel hearing an appeal by Eastman next Thursday. It contains a judge who has previously opined on whether Eastman should be retried (he thought yes). Then he expressed opinions about a matter now in legal contention – in the very zone that has caused Eastman's lawyers to ask the trial judge to disqualify himself.

In a large jurisdiction, with many judges, some might think that a concern for appearances would prevent that happening. But it would be very hard in Canberra to get together, at any one time, a three-judge court with no Eastman history.

I was surprised last year to hear on the ABC, and later to read in The Canberra Times, that Simon Corbell had appointed Anthony Whealy QC as an acting judge of the ACT Supreme Court so that he could be the judge to hear the Eastman case.

My surprise was three-fold. Attorneys may appoint judges, acting or otherwise. But they do not allocate judges to cases. That is done by chief justices, or other systems established within the judicial branch of government. But the reports suggested that Corbell was selecting the trial judge.

If it were true, it would involve about as clear a breach of the doctrine of the separation of powers as I have heard of. Corbell has until recently been an uncommonly pliant minister for police, but is not famous for listening to advice about judicial appointments, as the former Chief Justice, Terry Higgins, might comment.

This particular appointment matters to him personally and politically and, had he been more careful, he would have an extra respect for appearances, not less. He is responsible for the prosecution system. His own justice department, and his own judgment, have been strongly criticised over the years, over the Eastman case. In litigation before the courts, Corbell has expressed personal opinions about Eastman. His management of the whole inquiry process was, as well, inept, and probably cost ACT taxpayers $2 million more than it should.

Should an attorney "own" the decision to select a trial judge? When I asked, I was told that the appointment had been on the recommendation of the Chief Justice, not of his own initiative. But even were this true, it seemed to invite further questions involving Murrell's judgment as well as his own.

It is not uncommon, in other jurisdictions, for local judges to feel that the public interest would be better served by importing a judge from another jurisdiction to hear a matter. Thus when Dyson Heydon, then on the NSW Court of Appeal (he later went to the High Court) was sued over advice he had given as a barrister, the NSW Supreme Court made arrangements for the matter to be determined by judges from interstate, lest anyone suspect that mates would look after mates. The protocol involves asking the chief justice of the other jurisdiction to nominate a judge, not of inviting particular figures.

Anthony Whealy is a distinguished NSW judge, now in retirement and back at the bar looking for work. This post-judicial work from the evidence of his own website, has mostly involved work with executive government, especially on security legislation. It has involved extensive dealings with police, prosecutors and security experts.

He likes getting engaged in public forums, and is frequently to be read or heard on matters such as the desirability of reversing the onus of proof in terrorism matters, of indefinite detention for religious extremists who do not moderate their views, and the desirable jurisdiction of ICAC, of which he was once a commissioner. He presided over a number of high-profile NSW trials, including ones involving motor-cycle gangs, Muslim terrorists, Rene Rivkin and Tegan Lane.

The Fairfax data base shows that his name and opinions were in newspapers about 200 times in the past two years – a very large number for a retired judge.

Whealey's continuing public career puts him in a quite different position from that of the quietly retired judicial pensioner asked to return to public service. Judges operate without fear or favour, or hope or expectation of reward. A former judge giving the appearance of plying for hire and accepting consultancies on the law-enforcement side of government should not accept acting judgeships. An ideal Eastman judge would be more retiring by nature.

The Eastman team has expressed concern about his having sat, as a NSW Court of Appeal judge, alongside another judge, Michael Adams, who prosecuted Eastman. The conduct of the prosecution is an issue they want to ventilate in stay proceedings. While not alleging actual bias, the Eastman team has expressed concern about the appearances. Whealy has pronounced himself "satisfied that a fair-minded observer would have no reasonable apprehension that he would fail to bring an impartial mind to the resolution of those issues."

My own surprise had nothing to do with the NSW Court of Appeal. It was from my knowledge that Whealy and Eastman had both attended St Ignatius College Riverview during the late 1950s. Whealy was two years ahead of Eastman, but both were keen debaters – then, as now, a minority activity.

When I raised this with Corbell's office I was told that Whealy had mentioned this in discussions, but had not thought it a problem, because he had no memory of Eastman.

I am not in the least worried that Whealy, who was a brilliant student, has some conscious or unconscious prejudice for or against Eastman. The average punter, thinking of posh private schools might well fear bias in favour of a fellow old boy. I would be as concerned if he were trying Tony Abbott, another Riverview old boy, if of a completely different generation.

Most judges, even ones who love the limelight, would run from cases where they were seen to be sitting in judgment over fellow old boys or girls, particularly if they went to schools which make a great meal (inter alia for fundraising purposes) about the lasting bonds this creates.

If Murrell perceived herself, rightly in my opinion, as being disqualified from hearing Eastman matters, she should have recognised that exactly the same problem would arise if she were involved in the appointment of judges to try him, or the arrangement of judicial panels to hear his appeals.

In her defence it must be admitted that she has probably felt duty and necessity, given that she is far from alone in being embarrassed about dealing with the matter. That might well have been right in an ordinary case, familiar enough in Canberra, where adjustments have had to be made for nearly everyone knowing nearly everyone else.

But this is a case in which appearances matter at least as much as realities. And the appearances are already bad, and seeming to get worse. It bodes ill at a time when it is the ACT justice system, as much as Eastman, who is on trial.