David Eastman has launched a bid to remove the judge who will decide whether his second murder trial goes ahead, arguing his links to the original prosecutor may create a perception of bias.
Subscribe now for unlimited access.
$0/
(min cost $0)
or signup to continue reading
Eastman is facing trial for the second time over allegations he shot dead the ACT's police chief Colin Stanley Winchester in 1989, but is preparing for a stay application to stop the prosecution in its tracks.
That stay application, due to be heard in July, will argue the trial cannot possibly be conducted fairly.
Acting Justice Anthony Whealy, brought in specially to sit on Eastman proceedings, is to hear the stay application and decide whether the second trial can go ahead.
But Eastman has now asked the judge to recuse himself from the stay application - but not the second trial - because of his links to the man who led the original prosecution of Eastman for the Winchester murder in 1995.
Justice Whealy worked with the prosecutor Michael Adams, QC, who went on to become a NSW Supreme Court judge, for roughly a decade, the court heard.
Eastman's barrister Christopher Boyce, SC, said there was no suggestion whatsoever that Justice Whealy would be biased or act impartially.
But he said part of hearing Eastman's stay application would require the judge to make a decision on the conduct of his former colleague, and particularly how he dealt with flawed forensic evidence in the 1995 trial.
Mr Boyce said that could create an apprehension of bias, despite making it clear that Eastman's defence believed no actual bias would exist.
Where such apprehensions of bias exist, judges can recuse themselves from the case.
But the DPP's counsel Murugan Thangaraj, SC, opposed Eastman's push for a recusal, and said it was difficult to see how any fair-minded person would perceive potential bias on the behalf of Justice Whealy.
He said authorities made it clear that courts shouldn't readily accede to such requests, because it allowed defendants to "judge shop".
Mr Thangaraj said Mr Adams conduct was found to have been proper, both by the inquiry into Eastman's conviction and by the full bench of the ACT Supreme Court.
He said Mr Adams' conduct would only play a very minor role in Eastman's stay application anyway.
Mr Thangaraj said judges sit in judgement of their colleagues all the time in courts across Australia without any problem.
Justice Whealy reserved his decision and will hand it down in the ACT Supreme Court at a later date.
