Tuesday, July 23, 2013

Duggan drops his whip


David Eastman being arrested.

Kevin Duggan, recruited from retirement in South Australia to preside over an inquiry in the conviction of David Eastman, likes to do things his own way.

Eight days ago, he was reading a document known as MFI 130, created in January 1991 - two years after the murder of Assistant Commissioner Colin Winchester. The document, apart from the cover note, was an Australian Bureau of Criminal Intelligence report, which had been provided to him, in deepest confidence, by solicitors for the Australian Federal Police.

The AFP claims public interest immunity over the document, claiming that even now, 24 years after the assassination of Winchester, it is not in the public interest that it be revealed, least of all to parties to the inquiry.

Kevin Duggan

Kevin Duggan.

This is a little bit odd, given that copies of the document and another, known as MFI 23 have been floating fairly freely around the legal and journalistic establishment for nearly 20 years, having been provided by police to the Director of Public Prosecutions in the lead-up to Eastman's 1995 trial, and then supplied to the Eastman legal team.


It was only in arrears that someone panicked about the document's having been so provided - and somewhere along the way broadcast to journalists and others interested in the case. It had prompted inquiries from some of them why Commander Rick Ninness, of AFP major crime branch, who was leading the Eastman side of the investigation, had been so confidently focused on Eastman as a suspect. They then sought orders suppressing reference to the documents. If they made any efforts to retrieve any of the copies already in circulation, I am unaware.

Not to put too fine a point on it, the documents showed that the bureau believed firmly that Winchester had been killed by members of the Italian 'Ndrangheta, and they cited some of the material on which they based their conclusions. Some of it involved phone tapping, and some of it involved confidential (and named) informants in the Calabrian community. The documents expressed concern about what would happen to these informants were their identities to be disclosed, and other sections detailed at some length the sad fates of several other people, such as Domenico Perre, whose secret rollover had become known.

brian martin qc

Brian Martin.

The AFP believes, even now, that some of these informants would still be at risk. That this concern may have some basis is one reason, apart from court orders, why some people commenting on the case have referred only obliquely to its contents, even as they think that the contents are, and always were, highly relevant to the Eastman case. On the other hand, words from one of the terms of reference of the inquiry are actually taken from the report.

None of the materials went before the Eastman jury. For most of the trial, Eastman was simply not participating, let alone acting in his own interests.

Eastman did not need to prove that Winchester was killed by the Mafia. Indeed, the documents do not ''prove'' he was. But they adduce a host of highly suspicious circumstances, conversations between individuals, and movements of people, including between Italy and Australia and Adelaide and Canberra, which seem to point to a lot of unexplained guilty knowledge. Some of the report is inference, or deduction from some known facts, including the fact that Winchester had been posing as a corrupt policeman in an extensive sting on leading members of a particular crime family, involving marijuana crops at Bungendore. That family had only recently been rounded up and become aware of how they had been played by Winchester and a Calabrian informant - and the consequent trial at Queanbeyan (aborted after Winchester's death) had been due to start within a month of the assassination.

What Eastman had to do was to show that there were alternative credible theories of the killing which meant that jurors could not, in good conscience, accept that the circumstantial case against him had been established beyond reasonable doubt.

Commander Ninness read the

reports, and told the Coroner, Ron Cahill, that he was ''satisfied that no further investigations are required that would assist you [in the inquest]. I believe there are a number of discrepancies in the report … I believe information currently held by yourself is far more comprehensive than that depicted in the intelligence assessment report.

''Unless you have any directions regarding this intelligence assessment report, no further inquiries will be conducted.'' Nor were they. Ninness had been convinced within a week of the murder that Eastman was the culprit.

It is a part of the argument of lawyers for Eastman in the current inquiry that this early belief - no doubt honestly held - led to tunnel vision, by which all evidence was viewed from the point of view of whether it tended to suggest Eastman's involvement. Honest witnesses affected by tunnel vision can overstate the significance of inconsequential evidence; and have a natural tendency to dismiss or ignore anything that does not bolster their theory of the case.

Duggan and the inquiry have been having considerable difficulties in extracting documents from the AFP, one of the reasons why the case has spent more than $1 million and gone on for nearly a year without yet hearing a word of evidence. The police legal team is being assisted by 3½ police officers, and 2½ legal officers, as well as the assistance, guidance and advice, wanted and unwanted, of any number of former AFP investigators who are now retired. But they have persistently failed to meet deadlines, and claims of privilege are among the reasons why.

Duggan thought he should ask to privately inspect some of the documents at issue. He was flabbergasted to find in Appendix A of MFI 130 (titled ''Linkchart by Giuseppe Verduci'' and other appendices, dealing with 'Ndrangheta families) references to an old client, for whom he had acted on three occasions, while at the bar during the 1980s.

Duggan had previously been tireless in hunting down potential conflicts of interest by lawyers on the Eastman team. Three lawyers, including one who has worked on the case for nearly 24 years and responsible for getting the inquiry into motion - have been forced out. It seems amazing that it never did occur to him that he might be in a conflict. It was no secret that there were theories of a connection between the murder and Italian organised crime. How could it not occur to him he might be embarrassed if he had acted for players?

Attorney-General Simon Corbell has picked a former Chief Justice of the Northern Territory, Brian Ross Martin, to replace Duggan. (He is not the same NT Chief Justice Brian Frank Martin, his predecessor, who was closely involved as NT Crown Solicitor, in the prosecution of Lindy Chamberlain, but the second one spent a good time trying to help the territory live down some of the reputation as a cowboy court this case produced.)

Brian Martin is, however, on the sceptical side about police zeal. In last year's trial of a Perth lawyer, Lloyd Rayney, for murder, he talked of investigator conduct ranging ''from the inappropriate to the reprehensible.'' This included intimidation of witnesses, efforts to get experts to adjust their statements, and strategic and damaging leaks to the press.

He asked whether ''the police were 'locked in' to endeavouring to prove that the accused committed the crime. There can be no doubt that the primary focus of the investigation was aimed at gathering evidence which might implicate the accused and there were aspects of the police conduct which, to say the least, were inappropriate and unacceptable.''

After Justice Martin puts his own order on the inquiry, this may prove to be his chief focus here.

Jack Waterford is editor-at-large of The Canberra Times.


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