NSW Supreme Court judge Michael Adams is suing Fairfax Media and one of its most senior journalists, Jack Waterford of The Canberra Times, for defamation. It relates to comments made by Mr Waterford in an article that Michael Adams withheld evidence when he was a prosecutor in the 1995 trial of David Eastman who was found guilty of murdering Australian Federal Police Deputy Commissioner Colin Winchester in 1989.
It is not just a standalone defamation proceeding in relation to the claims. There is a judicial inquiry that will start in November headed by Acting Justice Kevin Duggan into the David Eastman murder conviction which will cover at least in part the same issues in the Michael Adams v Fairfax matter. So I do not believe it would be appropriate for the defamation proceeding to go forward until the judicial inquiry has handed down it’s findings.
For some unknown reason the defamation proceedings was first reported in The Australian on Friday (7/6/13) and to my knowledge has not been reported by any Fairfax Media journalists. (Click here to read more)
Background – The Colin Winchester murder
Colin Winchester was an Assistant Commissioner in the Australian Federal Police and commanded the ACT Police which is the community policing component of the AFP responsible for the Australian Capital Territory (Canberra). He was murdered in 1989 outside his house while getting out of his car.
Initially it was thought that the mafia had killed him as he was due to give evidence against a number of them. It was also thought by some that it was corrupt NSW police who might have killed him as corruption in the NSW police was notorious at the time which ultimately led to the 1995 Royal Commission into the New South Wales Police Service.
Some four years later David Eastman who was a former public servant with a history of mental illness was charged and then convicted of Winchester’s murder in 1995. The case against Eastman was a circumstantial one with no direct evidence linking him to the murder and the murder weapon was never found. A lot of the evidence is laid out on the AFP website (click here to read) which of course they do to make out their case as they see it.
An inquiry into David Eastman’s murder conviction will start in November 2013 and will cover his “conviction on 19 grounds, including fitness to plead, forensic evidence, and the conduct of the prosecution and investigating police.” (Click here to read more)
This post is not about David Eastman’s guilt or innocence but there are a number of things that I find disturbing about David Eastman’s conviction which helps justify why the defamation proceeding should be stayed until the judicial report is handed down.
One is “senior officers and detectives failed to secure the crime scene and tramped all about it, this was an inadequate and seriously compromised case. That’s why so many entertain doubts about the safety of the conviction.” Securing the crime scene is policing 101 and the fact that it was not makes no sense. There would have been 10 or 20 police on the scene very quickly yet none of them thought to secure the crime scene? Unless of course they wanted to compromise any evidence at the scene then it makes sense.
One of the key pieces of evidence that helped convict Eastman was gunshot residue found in the boot of his car that matched that used in the murder. The expert who said this was “Robert Barnes, who had been in the Victorian Forensic Science unit. Barnes gave different evidence at different times, often without explaining how or why he had changed his mind. He changed his mind about the type of gun used, whether a silencer was used, whether the rifle barrel (if it was a rifle) was shortened, and about what the residue tended to prove. Like detectives he has always assumed, without evidence, that cartridges found, trampled in mud near Winchester’s car a day or two after the murder, were from the murder weapon.”
“At trial, the jury and defence were not told that Barnes had been recently sacked after Victorian judges and his own scientific colleagues had raised serious concerns about his methodology, his tendency to overstate conclusions, and the fact that, in several critical cases, his overconfident and dogmatic evidence had been shown to be wrong.” (Click here to read more) In a case like this you would expect the prosecution to use the most credible expert available, not someone like Barnes who had been sacked because judges and his own colleagues thought he had no credibility. Why did the police use an expert who had no credibility?
On the face of it the prosecution and the investigating police in the Colin Winchester murder have plenty of questions they need to answer and that is why a judicial inquiry was ordered last year by Justice Marshall. The inquiry was meant to start in March this year but has been held up because of the scandalous conduct of the ACT Director of Public Prosecutions, Jon White, who objected to three barristers that were meant to represent David Eastman. Jon White left it until a couple of weeks before the inquiries scheduled start date of the 4th March 2013 to make the objections even though he had plenty of time beforehand and it was clearly designed to disrupt the inquiry and it’s ability to get to the truth. (Click here to read more)
Justice Steven Rares
Justice Rares is hearing the defamation matter in the Federal Court of Australia and I do not believe it is an accident. He seems to be the go to man when a dodgy judgement is needed. I question why he is even hearing the matter given he is already involved in the David Eastman matter.
David Eastman was given a life sentence without parole but can “apply to the Attorney-General for release on licence after serving 10 years” which he has done three times. The latest being last year which was rejected and Eastman appealed which was heard by ACT Supreme Court Acting Justice Steven Rares. Rares ordered the ACT government to review its decision which they have dragged their feet. After getting a hurry up in court a few weeks ago the ACT government have said they will do this by the 30th June this year. (Click here to read more) Justice Rares has listed the matter again for the 4th July this year, so even he has doubts about what the ACT government will or won’t do.
With Rares already involved in the Eastman matter, will he bring a fair and open mind to the defamation proceedings? I doubt it. The irony is not lost on me that this site has written many times about the criminal conduct of Justice Rares and he is the one hearing a defamation case instituted by a judge.
Anyone and everyone could and should sue for defamation if they want to and have the capacity to including judges. In fact I believe judicial officers have an obligation to do so to protect their reputations as well as the courts reputations. Obviously if what people say about judges is true than the judges cannot sue for defamation and that is why I get away with writing what I do.
I make no judgement in the defamation matter, ACD39/2013 Michael Frederick Adams v Jack Waterford & Anor, but surely it has to be stayed until after the David Eastman / Colin Winchester inquiry has concluded. As it currently stands Justice Rares has ordered the respondents file and serve their defences on or before 3rd July 2013 and further directions are listed for the 12th July. Rares seems in a hurry to hear the case. It was only filed by Justice Adams on the 1st of May. Justice Rares should have stayed the matter on his own accord until after the inquiry has finished.
Something as simple as a defamation case has a lot more riding on it than someone’s reputation. The freedom of David Eastman could be influenced by any judgement of Justice Rares if he hears the case before Acting Justice Kevin Duggan hands down his inquiry findings.
We all know the quote “Not only must Justice be done; it must also be seen to be done” R v Sussex Justices, Ex parte McCarthy (. Maybe David Eastman is guilty but there is enough doubt to suggest that he is possibly not guilty and that it could be a huge travesty of justice that just keeps on going, being aided and abetted by the players involved who have a lot to lose. There is a lot more to come in this matter and I will keep a close eye on it.
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