DAVID Eastman’s quest for compensation will highlight major deficiencies in other Australian jurisdictions’ law and some lesser difficulties in ACT law.
Eastman served 19 years’ jail after being convicted of murdering Federal Police Assistant Commissioner Colin Winchester.
The conviction was quashed in August last year. The prosecution intends to try Eastman again. Eastman is on bail and has launched an action to stay the prosecution on the ground he cannot get a fair trial after such a long time.
The common law tort of malicious prosecution is available in all jurisdictions, but it is a very hard one to prove.
The High Court held in 2013 that a plaintiff would have to prove the prosecutor acted with malice and without reasonable cause.
This would be a reason for someone in the ACT to sue under the ACT Human Rights Act, which provides less onerous conditions.
It would not require that Eastman prove that the prosecutor acted with malice and without reasonable grounds.
It requires only that the conviction was quashed or set aside “on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice”.
On the face of it, that applies in Eastman’s case. The newly discovered facts were the serious questions about the conduct of the weapons expert which were not disclosed to the defence.
That would probably not be enough to satisfy the test for malicious prosecution because the prosecutor could argue that he thought that a conviction might be obtained even without the weapons evidence.
So the Human Rights Act path is a better way for Eastman to go.
Other jurisdictions do not have equivalent law and the wrongfully convicted essentially have to rely on ex-gratia payments from the state because proving a malicious prosecution is so difficult.
Other jurisdictions should follow the ACT because compensation for wrongful conviction should be a human right. It is recognised as one by the International Covenant on Civil and Political Rights.
Indeed, the ACT law is pretty much a cut and paste from the covenant.
And therein lies a difficulty. The ACT’s Human Rights Act restates the ICCPR which in turn has one similar requirement as the common-law tort of malicious prosecution.
In the common law it has been expressed by the 2013 High Court decision as that “the prosecution terminated favourably to the plaintiff”.
The Human Rights Act requires (among other things) that the person has been “convicted by a final decision of a criminal offence”
Given the murder charge has not been withdrawn, it is fairly clear that Eastman could not show that the “prosecution terminated”. It may also be the case that he cannot show he has been “convicted by a final decision of a criminal offence”.
It may mean that Eastman will have to wait until the prosecution drops the charges or is acquitted before the Human Rights action can begin.
Even if the charges are dropped or there is an acquittal, the Human Rights Act is fairly vague about how compensation is to be calculated. It says “according to law”. Presumably that would mean applying the common-law principle of trying as far as possible to put the plaintiff in the same position as if the wrong had not been committed.
The Act also does not say who assesses the damages (presumably the Supreme Court), whether reasons have to be given, or whether the decision can be appealed.
All in all, it is quite an unsatisfactory situation, especially outside the ACT.
Further, there is the question of whether the Human Rights Act provisions would apply to people who are extradited from the ACT. If so, it would be another reason so get some Australia-wide legislative reform on wrongful prosecution.
Former barrister Malcolm Turnbull almost invariably constructs a plausible argument, and very often constructs a convincing one.
It didn’t take much to make a convincing argument to justify his move against Tony Abbott – the lack of a solid economic narrative.
Guilty as charged. The failure stems from Abbott’s character as a fundamentally ideological being. He has never been hugely interested in economics and finance. For him, economics, budgets, tax and industry policy are merely tools with which to pursue ideological objectives — not the practical tools to give people more prosperous lives.
Maybe it is because Abbott is not especially concerned about material well-being. His austere accommodation in Canberra; his roughing it in northern Australia; and his punishing physical exercise regimes illustrate this.
Turnbull, on the other hand, is more a man of the world who likes material comforts. Look at his house. He has done well in business and sees the need to get economic fundamentals right and to get finance and tax right.
The Abbott Government’s policies so often did not add up economically. The GP co-payment – an ideological punishment for the poor – would have cost the health budget more than it saved in the long run.
The withdrawal of car-industry subsidies was an ideological bash at government intervention which could cost more than it saves.
The pre- and post-election ideological opposition to the government-owned NBN will put Australia behind the rest of the developed world in communications. I suspect Turnbull would have preferred just to tighten its business practices rather than rework the whole model.
Abbott’s determination to kill the mining and carbon taxes (moves which he could have let the Senate block with little effort) have hurt long-term government finances.
Abbott’s opposition to effective measures tackle climate change will inevitably result in trade sanctions by countries which are pulling their weight. His ideological winding back of assistance to renewable energy has cruelled a valuable nascent Australian industry.
In short, time and time again, Abbott’s ideological decision-making resulted in dumb economics.
With any luck, a Turnbull government will be more pragmatic and effective.
Abbott might have been forgiven if his policies on the non-economic side resonated with the Australian people. But, no. His fuddy-duddy social policies and captain’s picks highlighted how out-of-touch he was. Knighthoods, opposition to gay marriage, holding out for Bronwyn Bishop, and so on.
In a way these are just misdemeanours — the icing on the cake of the fundamental felony – allowing ideology to defeat sound economics.
The head-kicking, Opposition Leader won government, but having won it didn’t know how to govern.
And Turnbull? The consultative, compromising, constructive Turnbull in Opposition never looked like taking government in an election. But now he has got it, his style is likely to be such that no-one will ever look back on the Abbott prime ministership as “the good old days”.
This article first appeared in The Canberra Times and other Fairfax Media on 19 September 2015.