David Eastman may make more serious allegations against the man who originally prosecuted him over failures to disclose doubts about the now-discredited forensic analysis linking him to the crime scene.
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The ACT Supreme Court heard on Thursday that Eastman is "likely" to raise graver issues of misconduct with the prosecutor, Michael Adams, now a NSW Supreme Court judge, and will attempt to bring him to the territory's courts to face further cross-examination in July.
On Thursday, he appealed against
The pair served together on the NSW Supreme Court bench for 10 years, and Eastman argues Acting Justice Whealy may now be forced to make findings on the propriety his former colleague.
That, Eastman argues, may mean reasonably-minded members of the public may perceive Acting Justice Whealy to be biased, despite there being no actual bias.
Mr Adams has previously been found to have unintentionally failed to disclose to Eastman's defence evidence casting doubt on the work of forensic expert Robert Collins Barnes, whose analysis of gunshot residue and propellant proved a crucial link between Eastman and the crime scene.
Before Eastman's original trial, overseas experts such as Israeli-based Dr Shmuel Zitrin were warning they did not agree with some of Mr Barnes' conclusions, and expressed doubt about his findings.
Some evidence of Dr Zitrin's doubts was not given to Eastman's defence, potentially denying them an important avenue to attack Mr Barnes' reliability.
The inquiry into Eastman's conviction cleared Mr Adams of any wrongdoing, finding that the prosecution's failure to disclose the doubts about Mr Barnes' evidence was inadvertent. It also found he acted in accordance with the "highest ethical standards" while prosecuting Eastman.
But on Thursday, Eastman's barrister Christopher Boyce, SC, said he wanted to explore the issue further when his client makes an application to stay his second trial.
He said he "could" argue the lack of disclosure to the defence was intended, and, when pressed, said it was "likely" that such an argument would take place.
Mr Boyce made the argument in front of a full bench of the ACT Court of Appeal to try to convince a full bench to remove Acting Justice Whealy from hearing the stay application.
He argued the "graver" the allegation against Mr Adams, the more necessary it was for Acting Justice Whealy to recuse himself from sitting in judgment of his former colleague.
But counsel for the Director of Public Prosecutions, Murugan Thangaraj, SC, argued that issues about Mr Adams had already been considered, first by the Eastman inquiry, and again by a full bench of the ACT Supreme Court last year.
Mr Thangaraj said Mr Adams had been cleared of intentionally failing to disclose the information on both occasions.
Mr Thangaraj said the Crown would not be making Mr Adams available for cross-examination, and that there would be no new details on the issue.
He said Acting Justice Whealy knew he might have to consider such allegations of impropriety when he decided to keep himself on the case.
Mr Boyce will also argue that Acting Justice Whealy failed to apply the proper legal test when he decided not to remove himself from the case.
That is also disputed by Mr Thangaraj.
Acting Justices Stephen Walmsley and David Robinson, and Justice Michael Wigney reserved their decision on the appeal and will hand it down at a later date.
