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Australian Federal Police - Platypus Journal/Magazine |
Murder of Assistant Commissioner Winchester
The tragic end of an era
By Janice Jarrett
A defining stage in the AFP's history was the Winchester tragedy. The highest ranking police officer in Australia to be murdered, Assistant Commissioner Colin Winchester was shot twice in the head at point blank range as he was stepping from his car outside his Deakin home in the ACT at about 9.15pm on January 10, 1989.
The Chief of Police in ACT Region had served in law enforcement for 27 years, firstly with the Australian Capital Territory Police Force and then in both national and community policing roles after the AFP's formation in 1979.
While the AFP and police services around Australia mourned the senseless and brutal death of their colleague, the distress of the event and the ensuing investigation left an indelible imprint and reminded those in the job of the inherent risks which will always be part of the policing profession.
Life had been so swiftly stolen from a man who was described by Canberra solicitor and friend, Peter Crowley, as being of great strength, great courage, integrity and love, a man whom every decent person delighted to call friend, a tough, hard-working, honest yet compassionate policeman, a dedicated enemy of crime.
The AFP's former Director of National Operations, Alan Mills, said in March 1989: "Assistant Commissioner Colin Winchester's death is the end of the age of innocence for Australia".
The investigation which followed ran for more than five years and led to David Harold Eastman, a Commonwealth public servant on long-term sick leave, being charged with the murder, his trial beginning in the ACT Supreme Court on May 2, 1995.
David Eastman was found guilty by unanimous jury verdict on November 3 the same year and was sentenced to life imprisonment by Justice Kenneth Carruthers, a retired judge of the NSW Court of Criminal Appeal who had been appointed by the ACT executive on a temporary basis as an Acting Judge of the ACT Supreme Court.
After the trial, AFP Commissioner Mick Palmer said the investigation had been one of the most complex criminal prosecutions ever launched in this country.
"The Winchester investigation was clearly a test of the AFP's professionalism," Commissioner Palmer said, praising not only that professionalism but also the dedication of investigators, surveillance personnel, forensic experts and others involved in the case.
"It is always a difficult task to build a case based largely on circumstantial evidence. To successfully prosecute a circumstantial case against the width of public allegations and innuendo which related to the Winchester killing was, I believe, quite exceptional."
During the trial Justice Kenneth Carruthers described the scientific aspect of the investigation as "one of the most skilled, sophisticated and determined forensic investigations in the history of criminal investigation in Australia".
On Friday, November 11, 1995, Justice Carruthers sentenced Mr Eastman to life imprisonment saying a life sentence might be "more merciful" than a long fixed term. In the ACT Mr Eastman can only be released by approval of the Governor-General on advice from the Federal Government and the Chief Minister.
He is presently serving his sentence in the NSW prison system and has made various appeals to the High Court against his conviction. The grounds of a recent appeal included that the trial judge had been invalidly appointed as a temporary justice in the ACT. The High Court rejected that application 6-1 on September 2, however, the Court has reserved its decision on an argument that the Federal Court erred in rejecting a previous appeal by Eastman that his trial had miscarried because he was mentally unfit to plead. Other appeal matters have yet to be heard by the Court.
Following is a reprinted article from Platypus No. 49, December 1995, on the key evidence presented in the case.
On November 3, 1995 David Harold Eastman was found guilty of the 1989 murder of AFP Assistant Commissioner Colin Winchester. The following day, The Canberra Times published this article by who had been reporting on the case from the time of the murder.
The prosecution case can be compartmentalised conveniently under the headings: motive, Eastman and firearms, the scientific evidence, the threats, sightings, and the tapes.
The prosecutor, Michael Adams QC, sought to draw much of the material together in what he described as the "coincidental approach" to assessing evidence. His remarks on this point follow the relatively brief summation of the key evidence which follows.
Although motive is not a necessary element of the crime of murder, the prosecution sought to demonstrate that Eastman's motive for killing Winchester had its roots in his hatred for those in the Public Service and the police whom he thought responsible for the injustices he had suffered.
By late 1987, Eastman had been campaigning on several fronts for a decade against the Public Service. He had had one or two successes but had yet to achieve his ultimate goal of reinstatement in the Public Service.
Then, on December 17, 1987, he got involved in a fracas with a neighbour, Andrew Russo, over the inconsequential issue of parking. Blows were exchanged and both men were injured. Russo took himself off to hospital, while Eastman went to the police. A short while later, Eastman was charged. He was outraged, and became convinced that a police officer he had encountered in years gone by, Trevor Coutts, had improperly influenced the investigation.
A week later Eastman wrote to his German penfriend, Irene Finke, that he wanted to kill Russo, Russo's witnesses and "the bastard police". In the same letter he wrote, "I sympathise with men who kill hundreds, thousands, millions", a remark the prosecution said demonstrated the depth of his hatred.
Throughout 1988, Eastman continued his fight to gain a medical clearance to rejoin the Public Service. He also embarked on a determined campaign to convince police that he had been wrongly charged and that it was Russo, who had been the instigator of the fracas. The prosecution argued that Eastman was fearful that an assault conviction would seriously harm his employment prospects. Eastman denied this. He said he never thought a minor assault charge would pose much of a problem.
The Crown case was that the two threads — the hoped-for Public Service job and the Russo assault charge merged in December 1988. On December 16, a decision was made that Eastman was fit to re-enter the Service. On the same day, Eastman and shadow attorney-general Neil Brown met Winchester to further pursue the Russo matter. On December 21, Eastman learned the outcome of both matters, one favourable, one not. The Public Service had theoretically accepted him; Winchester had turned him down.
Further representations were made by Brown to the then AFP Commissioner Peter McAulay.
Eastman was due to appear in court on the assault charge on January 12, 1989.
The Crown asserted that Commissioner McAulay's advice that he would not intervene in the assault matter was received by Eastman on January 10, the day of the murder.
Eastman disputed the suggestion that the outcome of the Winchester representations were crucial to him. He knew police could not drop the charge, and that only the Director of Public Prosecutions had the power.
About a week before the murder, Eastman allegedly told Superintendent Mick Craft that the police "executive" was corrupt and had a lot to answer for. As he said this, he allegedly gestured towards Winchester's office.
Eastman and a friend, Bob Briton, asserted that the conversation with Craft took place in 1988, not early 1989. Both denied any gesturing or reference to police corruption.
The Crown alleged that Winchester was shot with PMC-brand ammunition which was fired from a .22 calibre Ruger, 10/22 semi-automatic rifle fitted with a silencer.
It was alleged that the murder weapon was sold by the late Louis Klarenbeek, of Queanbeyan, on or about December 31, 1988 to a man who had not wanted to buy a telescopic sight. The rifle had been threaded for a silencer and Klarenbeek had a number of these for sale at that time.
Eastman bought a Stirling rifle fitted with a telescopic sight from Geoffrey Bradshaw on February 10, 1988. He returned the gun, but not the sight, later in the day. He said he smashed the sight and threw it in a bin. At the time of the purchase, he had parked his car out of sight and gave Bradshaw a false name and address.
Three days later, he bought a Ruger rifle from James Lenaghan. He asked if he could buy it without a licence and again parked out of sight. Some time later — Eastman said it was one or two months later — he placed the Ruger and 46 rounds of Stinger ammunition, both in a gunbag, in a drain under the Old Federal Highway. These were found by a member of the public on May 1 and handed to police.
In June, Eastman negotiated to buy another Ruger. He later asked the owner, Scott Thompson, to sell him the gun in Queanbeyan. In November, he made further inquiries about the same gun but did not buy it.
Eastman asserted that he had only bought guns in early 1988 because he had been in fear of the neighbour Russo. He went to great lengths to portray Russo as a "maniac". Russo owned a shotgun and a truncheon and may have acquired a pistol, he said. Once Russo had moved out of Jerilderie Court his fears subsided and he disposed of his gun. He dumped it in a drain so it would rust and become unserviceable.
However, other incidents involving Russo later in the year rekindled his concerns and he made further inquiries about buying a weapon. But he did not actually purchase one.
The prosecution said this explanation was a lie. It said Eastman had never been in fear of Russo, and had not voiced his concerns to anyone. With one exception, he had been unable to recall the later incidents which had ostensibly caused him to renew his hunt for a weapon. He had no legitimate purpose for owning a gun other than to kill someone.
On the morning of December 31, 1988 Ray Webb went to the Klarenbeek residence to inspect rifles. As he was leaving, he passed a man he later identified as Eastman in the yard. He did not see Eastman's car. A blue Japanese vehicle, similar in some respects to Eastman's, was seen in a nearby street that afternoon. A few days later, Klarenbeek apparently told Webb that the purchaser of the Ruger had not wanted the telescopic sight.
Webb took until October 1992 to come forward with his evidence that it was Eastman he had seen. His credibility came under strong attack from Eastman's counsel, both because of the delay in coming forward and because of his friendships with police and the deceased's brother.
Eastman denied ever going to Klarenbeek's or buying his gun. There was no direct evidence of Eastman actually purchasing the Klarenbeek weapon. Before he died, Klarenbeek was shown photos of 12 men, including Eastman, but was unable to recognise any of them.
On January 1, 1989, Eastman withdrew $200 from an ATM in Canberra. This was the same amount he had offered for the Thompson Ruger. Because Klarenbeek had died, no evidence was presented of the day on which he actually sold his Ruger and there was nothing to tie the ATM withdrawal to the gun sale.
On January 4 or 5, Eastman allegedly tried to sell a Ruger threaded for a silencer to a Queanbeyan sports store proprietor, Dennis Reid. He declined to give Reid his phone number. Reid's son saw a blue car leaving the car park behind the store, Eastman denied this incident.
On the night of Sunday, January 8 Anne Newcombe saw a car parked near the Winchester home. The occupant, a male, apparently attempted to conceal his face as she passed. She later recalled the number plate as YPQ 038. The car with that plate was not in Lawley Street that night. The registration of Eastman's car was YMP 028.
The experts were agreed that the Klarenbeek gun was the murder weapon. Impressions left on the cartridge cases found at the scene, recovered by Klarenbeek from a quarry, and recovered from a reserve in Victoria where a previous owner had fired the same gun, all matched.
Propellant residue from PMC ammunition was found in the boot of Eastman's car. Ammunition residues found in his car were said to be indistinguishable from those at the murder scene.
The prosecution said Klarenbeek had previously fired CCI and Stirling ammunition through his Ruger. Propellant residue consistent with CCI and Stirling were found on Winchester's body, in his car and in Eastman's Mazda 626 sedan. Distinctive particles found at the scene and in the Mazda were said to be the result of the use of a silencer.
During the trial, Eastman said that if this material was in fact found in his car, he did not know where it came from.
However, the inference to be drawn from the defence case was that it probably came from the Bradshaw or Lenaghan rifles which Eastman said had been placed unprotected in the boot of his car after firing, or from a hitchhiker who had been on a shooting trip. The Crown did not quarrel with the suggestion that primer residue found in Eastman's car, which was consistent with PMC, may have come from the Bradshaw or Lenaghan rifles. What the Crown did rely on was the presence in the car, and at the murder scene, of PMC propellant material and the charred, chopped-disc particle which, it was said, could only have come from the use of a silencer.
The prosecution produced evidence that in early 1988 Eastman told a member of the staff of then Australian Democrats leader Senator Janine Haines that he would have to kill someone so people would see the injustice which had been done to him. A former neighbour, Donna Heritage, said that Eastman had spoken to her in mid 1988 about the pending Russo assault case. He had been unhappy that police had charged him and had said it had been Russo's fault, that the police were corrupt and that if it was the last thing he did "he'd get back at them" and clear his name. She said remarks to this effect had also been made after Winchester's murder.
A former Eastman lawyer, Dennis Barbara, said that in late 1988 Eastman had told him, "I'll kill Winchester and I'll get the Ombudsman, too." Eastman denied saying this. He said Barbara's evidence showed that the name Winchester had meant nothing to him at the time and he had only recalled the incident one or two months after the event.
A week after a consultation on January 6, 1989, Eastman's doctor, Dennis Roantree, recorded his patient as saying, "I should shoot the bastard."
This was in the context of a conversation in which Eastman had, according to Dr Roantree, referred to his interview the previous month with the "Commissioner", that he had been virtually thrown out of his office, and that he had felt like pushing the Commissioner off his chair. The references to the Commissioner were assumed to mean Winchester, the Assistant Commissioner.
Eastman disputed this evidence, pointing out that Dr Roantree had crossed the words out after writing them because of his uncertainty. Neither Barbara nor Roantree were cross-examined about their evidence.
The prosecution asserted that, while being taped by police, Eastman had used language which amounted to an assertion that he had killed Winchester. Eastman had said he knew he was being taped and said certain things to make a fool of police. The prosecution suggested that Eastman had been so distressed by what he had done that he had needed to repeat the allegations made against him and "adopt" them.
Eastman was legally bugged between September 1989 and January 1993. Everything he said or did was recorded. Of the many thousands and thousands of hours of tape recordings, a mere five hours were used by the Crown to support its case.
Before the trial was over, the jury had heard, or heard about, six different versions: those of the police, prosecution expert Dr Peter French, the three defence experts, Christopher Mills, Professor Butcher and Dr Elizabeth McClelland, and, finally, Eastman's own interpretation. The only version that really mattered was that heard through headphones by the jurors themselves.
One of the most crucial passages contained, according to police, the words, "I killed Winchester". Dr French initially accepted this but later changed his opinion and thought the words had probably been, "I kept watching her".
But two passages were largely agreed upon by most of the experts. One contained the words along the lines of, "He was the first man, the first man I ever killed. It was a beautiful feeling, one of the most beautiful feelings you have ever know."
However, the word "killed" was not accepted as definite by Dr French. Without "killed", the passage lost its significance. The explanation put forward by Eastman was that the passage — with no reference to killing — had sexual connotations.
The prosecution concentrated much more on a longer passage which read, "You drove more slow. I cannot miss him. You drove more slowly to give me a better chance. In fact, the situation is I ran out of sight. It's pathetic".
"And even when he called the first night and he missed you. That was a very frustrating night. And I had to go back again the next night to kill him, poor bugger. Then all of a sudden you're dead.
"And you go back the next night, same car, same registration, same driver, and your film crew is the same, and try to set it up again.
"Finally, on the second night, you succeed. Honestly, it's like trying to shoot miracles . . . It required about 50 takes before you get what you want. I mean, about the only thing you didn't do, you didn't provide me with a bag full of stones."
Justice Carruthers explained to the jury that the material contained in the tapes — and not this passage specifically — was very important because, if the jury accepted that it contained an admission that Eastman had killed Winchester, this was direct evidence pointing to his guilt.
Eastman's explanation for the "bag full of stones" passage was that it related to an incident where surveillance police, armed with a video camera, had driven repeatedly and increasingly more slowly, round the block. He had thrown pebbles at them but missed. The incident had been repeated the following night, with the same car and occupants, and finally he had hit the car. The reference to running "out of sight" was, in fact a reference to running "out of stones".
The prosecution had a starkly different explanation. Mr Adams put it that Eastman saw himself as the biblical David, and Winchester as Goliath. The passage, he said, was a reference to the Winchester murder.
The relevant verses in the Book of Samuel contained references to "five smooth pebbles", a slingshot and a bag of stones. Eastman had referred to these objects in his evidence. The rest was a description of the murder, and Eastman's stalking of his victim.
Two police officers spoke to Eastman the day after the murder. In the presence of his lawyer, he said he had been out driving on the evening of January 10, as he regularly did, but could not remember where he had gone. He agreed that it was an important issue and thought he might have gone out at about 8pm for a take-away meal and returned to his flat in Reid at 10pm.
The following day he told two other officers that the murder had been "a terrible thing" and that he would like to assist police but could not. He had already told police all he knew.
During his trial, Eastman maintained the line that he could not remember where he had driven on the night of the murder. He did, however, remember that he visited a brothel in Fyshwick and had sex with a prostitute. Her evidence suggested that the visit took place some time between 11pm and 2am. This did not provide Eastman with an alibi.
Eastman did not tell the police on January 11 about his visit to the brothel. His explanation at the trial was that he had thought the prostitute, Felicity, to be an impressive sort of person, quite possibly a university student.
Concerned for her position, he did not want police to turn up on her doorstep to verify his visit, and "spill the beans" about Felicity's employment to an unsuspecting parent, boyfriend, husband or child. Eastman rejected the notion that he had been embarrassed on his own account.
The prosecution, on the other hand, suggested that Eastman had not mentioned Felicity because he knew she could not provide him with an alibi. The only reason he could not recall his movements on January 10 was that he was "a guilty man who needed a convenient memory loss".
During his final address, Mr Adams put it to the jury that if the theory were propounded that Eastman was innocent, there were a remarkable number of coincidences to contend with. He sought to illustrate the point by discussing a hypothetical murder and a hypothetical suspect.
In the hypothetical murder, the first person police would look at was someone who had threatened to kill the victim. Their suspect had done this twice, once a few months before the murder and then a few days beforehand. He had threatened to use the method actually adopted by the killer, namely, shooting.
Coincidentally, a description of a suspicious car near the victim's home two days before the murder was similar to that of the suspect's. Even the registration number was similar.
In a striking coincidence, leaving aside the Y on the ACT registration plate, three of the remaining five numbers or letters matched, and in a similar order.
The victim's name was not in the ordinary electoral roll, having recently been living away from Canberra for some time. It was, however, on the "additional roll" of newly enrolled voters. Coincidentally, some time before the murder, the suspect had visited the electoral office and inspected that roll.
When questioned by police the day after the murder, the suspect could not recall his movements the previous evening. Assuming his failure of recollection was genuine, one might expect it to be only temporary and that as soon as police had gone, he would rack his brains and reconstruct his movements.
One might expect that he would discuss the matter with his solicitor — who had been present when police had called — because, quite unjustifiably, he might be a suspect. But the following day, he again told police he could not recall his movements.
Then it emerged that the suspect had been trying to buy a rifle without a licence and in circumstances where he had tried to hide his identity. He had started the search shortly after expressing a desire to "kill the bastard police".
A further, most unfortunate coincidence, was that of all the brands of weapons he might buy, he ended up with the type used in the murder.
The suspect had sought to explain his interest in weapons on the basis that he had needed one to defend himself against a neighbour with a shotgun who had assaulted him and was a maniac. He said he had expressed his fears to officialdom but could produce no evidence of this.
The suspect said he had thrown the gun he bought away after the neighbour moved out but later events had caused him to make further inquiries about firearms.
Unfortunately, his poor memory led him to forget all but one of the incidents.
Police had then searched the suspect's car. To his misfortune, it was found to contain a substantial amount of PMC-brand propellant, the very type used in the murder. Worse still, there were a few particles of non-PMC residue found in his car. By a singular coincidence, the same residue had been found at the murder scene.
The evidence suggested that a silencer had been used in the murder.
In another unfortunate coincidence, residues which could only be explained by the use of a silencer were found in the suspect's car.
In a remarkable coincidence, when the murder weapon had been sold, the buyer had not wanted the telescopic sight, either because he already had one or had not needed one, because the gun was to be fired at close range.
The suspect had purchased a rifle and a sight some months earlier, but had not returned the sight when he took the malfunctioning rifle back for a refund.
In an unfortunate coincidence, a car similar to the suspect's had been seen parked in a nearby street, out of sight of the home of the man who sold the murder weapon, and on the day he had advertised the weapon. It was the suspect's dreadful misfortune that another person who had gone to the house had wrongly identified him as being there too.
Shortly before the murder, a man who looked very much like the suspect, and who had been wearing an Akubra hat like his, had tried to sell the same type of weapon as used in the murder.
Coincidentally, a blue car had been seen leaving the area shortly afterwards. The suspect had a blue car. And this man had not wanted to leave a phone number to identify him, just as the suspect had done on earlier occasions.
To make matters look even worse, the suspect had been to see the victim to get a criminal charge dropped but had been refused any assistance. He had appealed to the victim's superior but had been told on the day of the murder that his representations had failed.
And finally, the suspect had been taped describing the murder and himself as a murderer.
Could this accumulation of facts merely be "an unhappy coincidence?" Mr Adams asked. There could only be one answer — and that was in the negative.
"This, of course, is the case against the accused," he said.
—The Canberra Times, November 4, 1995.
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URL: http://www.austlii.edu.au/au/journals/AUFPPlatypus/1999/22.html