Karmic wars

You wouldn’t think the murder of a Melbourne gangster and notorious hitman would have anything to do with constitutional law, would you? Actually, you’d be right. But there is a connection of sorts, however indirect.

Jason Moran was gunned down the other day while watching his kid play footie. He left an estate of around $5 million, they say, from drug dealing and standover rackets.

Moran was named in the Melbourne Coroner’s Court last year as the prime suspect in the 1998 murder of another Mafia hitman Alphonse Gangitano. Gangitano in turn is regarded by many as the real culprit in the 1989 murder of Assistant Federal Police Commissioner Colin Winchester.

However, another man named David Harold Eastman, a disgruntled, mentally disturbed ex-Commonwealth public servant, was convicted of Winchester’s murder. Gangitano is said to have confessed to it while in prison, and many believe the murder was really tied up with murky police drug deals (see, for example, the ABC TV docu-drama Police Crop). On the face of it the evidence against Eastman, though circumstantial, looks pretty strong: weapon, ballistic evidence, motive and opportunity. However, some of it could have been planted if indeed it really was an inside job.

This is where the constitutional law angle comes in.

Eastman’s battle against his conviction has generated several important High Court public law decisions. One of them is a leading case on the relationship between the territories power in the Australian Constitution (section 122) and other parts of the Constitution, notably Chapter III dealing with federal judicial power. Eastman argued that the ACT Supreme Court was constitutionally a federal court, and that his conviction was invalid because the judge didn’t enjoy tenure to the age of 70 as required by the Constitution. Fortunately he lost, otherwise every criminal conviction ever recorded in the ACT or NT would have been invalid (Justice Kirby was the only one to accept Eastman’s argument).

Another Eastman decision is the definitive word on the nature of the High Court’s appellate jurisdiction. Eastman argued that the Court should agree to permit him to introduce new evidence on appeal before the High Court, to the effect that he was insane and unfit to plead or instruct counsel during his criminal trial. He had refused to permit his counsel to make any such submissions during the trial itself, and had actually sacked his barrister on more than one occasion when he didn’t do precisely what Eastman wanted. Nevertheless, so Eastman’s appeal lawyers argued, the trial judge and DPP should have seen for themselves that he was completely loopy and vacated the trial despite the absence of any application to that effect. The High Court decided that the appellate juridiction conferred on it by the Constitution was truly appellate in the strict sense, and didn’t permit it to allow Eastman to introduce new evidence even if it had wanted to do so. The reasoning isn’t especially convincing; in fact it provides one of the clearest indications of the unsatisfactory nature of the originalist theory of constitutional interpretation. Nevertheless, you can understand why the Justices (again excepting Kirby) didn’t want Eastman turning the High Court into a three ring circus.

The most recent Eastman decision (handed down on 28 May) is rather more prosaic in public law terms. The ACT Chief Justice had decided to convene a judicial enquiry under section 475 of the Crimes Act (ACT) (now repealed) into the question of whether Eastman was fit to plead or instruct counsel at his original trial. The question for the High Court was whether this could amount to a “doubt” about his “guilt” (since that was the basis for the Supreme Court’s s475 enquiry jurisdiction). Not surprisingly, the High Court held that it could. In fact, the only surprising thing is that the ACT DPP bothered to contest the issue at all.

So much for the public law angles. The really interesting practical issue is whether Eastman was actually guilty at all, quite apart from his mental state. Gangitano, the man many believe was the real murderer, allegedly had a contract let on his life by celebrity gangster Chopper Read shortly after the Winchester murder. Gangitano was so frightened of Chopper that he fled Australia in fear of his life when Read was briefly released from prison in the early 1990s, returning only when he was back safely behind bars. No-one has ever actually suggested that Chopper pulled the trigger in the Gangitano murder: Jason Moran seems to be the generally accepted cuplrit. Indeed, even if anyone did suspect Chopper, they’d be wise not to say so. He claims to have “retired”, but how can you be sure? Federal Education Minister Brendan Nelson, for one, seems to be wisely wary of Chopper:

Read was on the end of a verbal assault in Parliament, during which Dr Nelson attacked a decision in Queensland to recommend Read’s latest book, “Hooky the cripple”, for Queensland schools.

Read told the Herald Sun he was not a convicted murderer.

“I was acquitted of the only murder charge I was arrested on.” The six year sentence he served prior to his 1998 release was for malicious wounding. The victim lived.

Of Dr Nelson’s description of him as a “self-confessed murderer, criminal, assailant, arsonist, torturer”, Read said: “Well, he’s got that right. It does not mean its the truth. It just means I’ve said I’ve done these things.”

Dr Nelson’s spokesman said the minister was “sorry for misrepresenting the crimes of Read”.

I was interested to see that Chopper was one of the first to be interviewed by the media about last week’s murder of Jason Moran, commenting that he was only “mildly surprised”. I’m certainly not suggesting that Chopper had any immediate involvement in Moran’s death. In fact, he’s currently touring Australia in a “fractured fairytales” stage show with former AFL legend in his own lunchtime Mark “Jacko” Jackson. They were in Darwin only a few weeks ago. A cast-iron alibi if ever there was one.

The last word on Jason Moran’s demise should go to Victoria Police assistant commissioner Bob Falconer, who said the following about the death of another of Moran’s alleged victims Victor Peirce:

“If you live by the sword, you die by the sword. There are those like me who believe in karma, there are others who believe in heavenly justice. I suspect some of them will think that heavenly justice has prevailed.”

The Lord is yet to catch up with Chopper. I’ll bet Alan Jones is one person who isn’t praying for divine mercy for him, though.