AFP won't look in the mirror over a murder of one of their own

It is nearly 30 years since a Canberra public servant was convicted of the murder after a farcical trial and was sentenced to life imprisonment. He vehemently protested his innocence but committed forensic suicide by the way he ran his defence, including frequent sackings of legal advisers and outbursts at the trial judge and others.

Nineteen years later, an inquiry, the third, concluded that the man had been denied a fair trial. Scientific evidence said to establish his guilt was shown to be seriously flawed and incapable of proving what virtually uncontradicted "experts" had said it did. Some of it had been fabricated. Investigating detectives had spent several years trying to make the evidence fit their theory of what happened.

These detectives had dismissed significant evidence pointing to the crime as a mafia assassination, brought on by Winchester's association with a marijuana crop near Bungendore. The mafia thought they had corrupted Winchester to turn a blind eye. In fact, it was a sophisticated, if badly run, police intelligence sting which saw 13 men charged with conspiracy. Their trial had been set down to start in a month. But the critical witness, an informer, who had clearly been deceiving both sides, used Winchester's murder to refuse to give any evidence, contrary to his indemnity deal.

The detectives investigating the Winchester murder laboured under a common investigative sin, often called tunnel vision or confirmation bias. It was aggravated by internal AFP politics. The AFP involved an amalgamation of a once-separate ACT force and the Commonwealth Police force. The old ACT men maligned the training and experience of Commonwealth cops, calling them plastics. They had not done old-fashioned beat policing or investigations into ordinary crime, such as murder or robbery. The old Commonwealth Police derided the competence and what they regarded as neanderthal instincts of old ACT police. The Winchester murder saw the Montague versus Capulet factions at their worst, with ACT detectives professionally disposed to underrate information coming from the national side of the AFP, which was doing significant intelligence gathering on organised crime.

The Winchester murder saw vast amounts of court, inquiry and inquest transcripts produced, thousands of witness statements, trips to forensic laboratories in more than 10 countries, and, of course, a lawyers' picnic. All up, the case cost taxpayers perhaps $30 million, and for no result at all.

The failure to solve the case has never been the subject of AFP internal or external review. Over the past 30 years, even after the acquittal, they have never re-examined the case they put forward. They have not looked at fresh evidence or submitted old evidence to modern, much more sophisticated forensic examination. No expert not already pre-committed to the original has looked to see if the case still stacks up.

No fresh witnesses have been interviewed. The hardest work done has involved searches through the files, often by cops who were not alive when Winchester was killed. Police still use every effort to resist external scrutiny of their holdings. They jealously guard the reputation of Col Winchester and senior detectives involved in the case. But a whole new generation of cops has long since realised that there was never a convincing case against the public servant. Official AFP propaganda still labels the original investigation, now discredited, as a great triumph of patiently building a case until the chain of circumstances made it overwhelming. But many links in the "overwhelming" circumstantial change were not independent "facts" but false assumptions and distorted reasoning, prejudices masquerading as facts, improper police behaviour and, more often than one should have expected, fabrication, perjury and corner cutting.

A thorough and independent re-examination would have to start as a genuine cold case, not a prisoner of prior assumptions. The investigation and original trial were fundamentally flawed, most particularly by the dogmatic belief of some judges, prosecution lawyers and cops that the man was guilty, with the task being to penetrate his denials.

Colin Winchester deserves justice. His murderer may still be alive and delighting at his escape. The public should know how and why the best-resourced criminal investigation in Australian history fell on its face. Behind the case is AFP history and internal politics. Though all men and women in the very first AFP have long retired, they came from one or another culture still influencing the mindset of AFP cops. One such systemic flaw was that those doing most of the work were mates, colleagues and ultimately underlings of Winchester. Their grief seriously and repeatedly affected their independence and judgement.

One might have expected that the sensational death of a very senior cop would produce an exemplary investigation, and by its best minds. That their brief would show the force's philosophy, professionalism, sense of fairness and training at its best. It is by no means the only important case in which AFP has failed. If there are significant systemic shortcomings in major investigations, what confidence should we have in the thousands of routine investigations? The case also involves questions about the development of the AFP attitude to media management, including efforts to "control the narrative".

Some of the errors of investigative judgement may mean the shortcomings of the Winchester investigation are now ingrained in the AFP's DNA. The investigators are long retired, but their legacy lives on. Long before mafia defence lawyer Nicola Gobbo became an informant for the Victoria Police, the Winchester investigation had pioneered the same impropriety when it recruited a defence lawyer for secret chats.

Also eyebrow raising was the reliance on information volunteered by the defendant's doctor, and active police attempts to brief lawyers (or poison the well) about the danger said to be posed by the suspect. One lawyer responded cynically that she would be safe because she knew the man was under 24-hour-a-day police surveillance.

Police harassment of the suspect was deliberate, designed to provoke him. Cops interpreted psychiatric advice to mean that if cops were always in the suspect's face, it might "make him break." The psychiatrist never met or interviewed the defendant or any civilians who knew him, and was told to work on the assumption that the suspect was guilty. As in most cases of confirmation bias, the psychiatrist became increasingly certain of his working assumptions and of the danger the man posed.

A proper review of the cold case could do no better than to get a copy of a newly published book by Terry O'Donnell. At the time of the murder, O'Donnell was the ACT public defender. He acted off and on for the public servant, during the inquest and at times during the first trial. Like others, he was sometimes sacked for failing to follow the public servant's instructions to focus on the harassment rather than the case against him.

O'Donnell prepared the arguments that led to the third, successful Martin inquiry - the first to take a close and critical look at the calibre of the evidence. Over the period, he was across the evidence presented at the inquests, the first trial, and material which emerged in discovery. He details records of internal police discussions, discussions with outside experts, confidential intelligence material from organised crime specialists, and indications of mafia involvement in the Winchester murder, as well as a number of other murders.

Anatomy of a Cold Case: the mafia murder of Colin Winchester is being marketed through Amazon from this week.

The book is more than an examination of flaws in the case police presented. It assembles the evidence of mafia involvement that was ignored or dismissed. One can see why Winchester was a mafia target, and evidence of a plot to murder him. It has tantalising hints of who did it. It incidentally suggests that the murder weapon was a pistol, not a rifle.

The incompetence at the crime scene set a standard of investigative inexperience, arrogance and unprofessional behaviour. Upwards of one hundred cops, mostly ACT detectives, trod on the ground, opened the car, moved Winchester's body, and handled critical evidence. Opportunities to get fingerprints, for example, on bullet cartridges, were missed. One senior detective collected keys from Winchester's car and went by himself to Winchester's office, for reasons and results never explained. Even the coroner, Ron Cahill, made his contribution to tromping into and compromising the crime scene.

The initial assumption was that it was a "mob hit" and a highly professional one at that. It involved what is known in the assassination trade as a "double tap". While senior national cops made much of this as a sign of a "hit" as they vowed vengeance, the very evidence of two quick shots was used later by ACT detectives to suggest it was the work of an amateur.

O'Donnell assembles and divides the material as if it were a brief for detectives doing a proper cold case review of the original investigation. He details the evidence available. He discusses what, in the light of what we now know, it shows or suggests. He outlines independent criticism of conclusions reached by the investigation. His command of the detail, because of his close involvement during the 37 years, goes well beyond what any modern layman could work out from the public record.

Scientific detectives believed they had established the type of gun which had been used - soon indeed, they believed, its serial number. They found other bullets fired by it and matched them with spent cartridges found on the ground near the car. This rifle was never found. The cartridges could have been a plant, not the source of bullet fragments in Winchester's brain.

They then looked for evidence connecting the rifle to their suspect. Their evidence bypassed the denial of the gun dealer that he had sold the rifle to the suspect. A witness, no doubt coincidentally a friend of Winchester's brother and a civilian member of the police fishing club, recanted his previously sworn testimony that he had not seen the suspect at the gun dealer's house.

The Victorian scientific investigator, whose claimed expertise appeared to know no bounds, asserted that the rifle had a silencer, despite the evidence strongly suggesting otherwise. He overstated his qualifications. (He was called "doctor" by many, including the coroner, though he did not even have a science degree). He made it clear to investigating police that he was neither independent nor detached but committed to a guilty verdict, a part of the team. Police knew but did not tell the first trial he had been sacked by his forensic lab for scientific misconduct.

The Calabrian mafia, or 'Ndrangheta, involves a minority, at best 5 per cent, of the population of Calabria and its diaspora in communities such as southern Italy, France, Spain, the US, Canada and Australia. In Australia, they have been associated with market rackets, marijuana farming and distribution, and other drugs. Like other such bodies, they also prey on and intimidate their compatriots.

At the retrial, jurors were told of the evidence suggesting mafia involvement. The suspect did not have to prove it, but it raised doubt about the strength of the case against him. But what emerged, including evidence of clues not followed up and tips put in the bottom of the drawer because they did not assist the prosecution case, demanded a follow-up it did not get. Because it involved informants still working for crime intelligence agencies, and real danger to informants, the evidence was given in secret and is still subject to orders, some ridiculous, that have not been reviewed by the courts.

That no one in the relevant prosecution teams remarked even in private on evidence of the tunnel vision at work says much about their own competence, and perhaps about the determination of some of them to get a verdict at any cost. The prosecution team was found by the inquiry to have effectively withheld evidence from the accused which could have helped him at trial.

A retrial proceeded. The jury acquitted the accused. Later, he was awarded more than $7 million in damages as compensation for serving a particularly vile durance for more than 19 years. In the six years since, he has lived in quiet retirement, failing to live up to police predictions he was a serious threat to the peace.

I have chosen not to name him because I believe him to be, in fact, as well as law, innocent and to have suffered enough. He was a patsy for a murder committed by others. He had mental health problems and was seriously affected by the harassment campaign, even if he did not "break". Judges and prosecutors, and even the public, were aware of the harassment but gave the impression they condoned it or did not care. The inquiry recognised that the harassment involved clear misconduct, but it was never dealt with. It distracted an obsessive defendant from preparing and conducting a proper defence. Both the judge and the prosecutor appeared to believe that he was feigning his mental problems in an effort to have the trial aborted, and neither gave him any quarter.

It is scandalous that the assassination of the most senior police officer ever to be killed in Australia remains unresolved.

The AFP sees the case as over, and now ancient history. It disagrees with the last jury verdict and does not believe that another person or persons did the murder. That follows no considered review. It is simply the opinion of the man who charged him and other police and lawyers who followed into the tunnel. For the AFP it is a matter of loyalty, to its men rather than to justice.

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It was not AFP diligence that unveiled the gaping holes in the case. The AFP gave only very unenthusiastic assistance to the various inquiries, and, like the DPP, sought to have the inquiry aborted. Neither brought a fresh and independent eye to the material in the brief or looked at the safety of the verdict after the flaws were discovered. Rather, each agency doggedly defended everything it had done. They "knew" the man was guilty. They had always "known" - or at least since the principal investigator had "prophesised" to colleagues that his victim was the murderer about two days after the murder.

Soon after, he had closed off almost every other line of inquiry. Evidence of mafia involvement, strongly pushed by another police team, was rejected as not leading anywhere. This was true, more or less, because it was not adequately followed up. All evidence was examined through the lens of whether it tended to support the case against the public servant. Evidence that didn't was rejected.

Neither the ACT part of the AFP nor its national operations has had a searching external review since the force was established nearly 50 years ago. In recent decades it has been led by the homegrown products of a self-reproducing culture which rewards loyalty. Its capabilities are not admired by state police forces. Its leaders are known for defensiveness, instinctive loyalty to the government of the day, a sense of siege, irritation at any criticism and a simple delight in being exhibited at PR events organised by their PR and marketing folks. The delivery of justice, or the search for the truth, is at best a happy accident. Politicians don't seem to care much.