News & Current Affairs Civil Law

By Caitlin Holloway


Eastman compensation case: a precis.

 Unless you have been living under a rock, you would have heard that David Eastman, who was acquitted of the murder of Australian Federal Police assistant commissioner Colin Winchester after his retrial last year, has been awarded over $7 million in compensation in a landmark decision under the Human Rights Act 2004 (ACT).


Eastman was convicted of the murder of Colin Winchester on 10 November 1995 and was sentenced to life imprisonment without parole. During his time in prison, Eastman continued to protest his innocence and engaged in a number of legal battles, including to the High Court,[1] but was ultimately unsuccessful.


The emergence of fresh evidence and continued scrutiny of the fairness of the disclosure process let to, on 3 September 2012, the ACT Supreme Court ordered that there be an inquiry into Eastman’s conviction under section 424(1) of the Crimes Act 1900 (ACT). Acting Justice Martin presided over the inquiry and released a report (“the Martin Report”), recommending that Eastman’s conviction be quashed. [2]


On 22 August 2014, the Full Court of the ACT Supreme Court quashed Eastman’s conviction and ordered a new trial. Eastman was released after having spent 19 years behind bars. Subsequent attempts to stay his retrial failed and Eastman faced trial again in mid-2018, before on 22 November 2018, he was acquitted.


After his conviction was quashed, Eastman commenced proceedings against The Australian Capital Territory on 11 September 2015, relying on sections 18(7) and 23 of the Human Rights Act. Those sections state:


18(7)                Right to liberty and security of person

Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.


23                    Compensation for wrongful conviction

                        (1) This section applies if –

(a) anyone is convicted by a final decision of a criminal offence; and

(b) the person suffers punishment because of the conviction; and

(c) the conviction is reversed, or he or she is pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice.

(2) If this section applies, the person has the right to be compensated according to law.


The Territory asserted Eastman was not entitled to compensation under the Human Rights Act because his conviction was not “reversed” and there had been no miscarriage of justice. The Territory argued that the conviction was not reversed by the Full Court in 2014 because the Court ordered a re-trial. [3]


His Honour Elkaim J rejected the Territory’s submission, noting that when the Full Court quashed Eastman’s conviction, he went from being a convicted person back to an innocent person. [4]


The Territory further submitted that the quashing of Eastman’s conviction did not show “conclusively” that a miscarriage of justice had occurred. His Honour rejected that submission, noting that if that argument was accepted, it would have the effect of limiting the scope of section 23 of the Human Rights Act to cases where there was subsequent new evidence which showed the crime had been committed by someone other than the convicted person, rather then cases where subsequent discoveries established a trial had been improperly conducted, leading to a miscarriage of justice. [5] His Honour rejected that section 23 of the Human Rights Act was so limited and further noted that the Martin Report left no doubt as to the extent of the miscarriage of justice. [6]


His Honour took a broad approach to assessing the compensation payable to Eastman, taking into account, among other things, Eastman’s loss of his working life, economic capacity, the insult to his reputation and his experiences in prison. His Honour ordered the Territory to pay Eastman the sum of $7,020,000.00, plus legal costs.


The decision is the first of its kind in the ACT, being the first decision to award compensation under the Human Rights Act. Attorney-General Gordon Ramsey released a statement that the Territory would not be appealing the decision.

[1] Eastman v R [2000] HCA 29; Eastman v Director of Public Prosecutions (ACT) [2008] HCA 28.

[2] Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester, Martin J (Acting) (29 May 2014).

[3] Eastman v The Australian Capital Territory [2019] ACTSC 280 at [21].

[4] Ibid at [23]-[24].

[5] Above n 3 at [35].

[6] Above n 3 at [44].