David Eastman will fight a judge's decision not to remove himself from determining whether a second trial for the murder of ACT police chief Colin Stanley Winchester will go ahead.
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The latest twist in the legal wrangling ahead of a possible Eastman re-trial will see his lawyers again push to have Acting Justice Anthony Whealy removed from the stay application, this time arguing their case in front of the ACT Court of Appeal.
Prosecutors are pushing ahead with efforts to put Eastman back on trial for the 1989 murder of Assistant Federal Police Commissioner Winchester, who was shot dead in the driveway of his neighbour's home.
Eastman had his conviction was quashed in August and was set free after 19 years behind bars.
But a significant hurdle exists to any potential re-trial of Eastman.
He has launched a stay application to prevent the trial, saying it cannot be fairly conducted for a range of reasons, including the deaths of witnesses, the destruction of exhibits, the passage of time since the alleged offence, and the extensive and potentially prejudicial media coverage.
Acting Justice Whealy was brought in as an acting judge of the ACT Supreme Court to hear the stay application and the re-trial, should it proceed.
But Eastman last month tried to have Acting Justice Whealy remove himself from the stay application due to his links with the man who led the original prosecution in 1995, Michael Adams, QC.
The pair served together on the NSW Supreme Court bench - a large bench comprising roughly 48 judges at any one time - for roughly 10 years.
Eastman had argued Acting Justice Whealy may need to make findings on the conduct of Mr Adams and that, while there was no actual bias alleged, there may be a perception of bias from reasonably-minded members of the public.
Acting Justice Whealy found against Eastman in a judgment handed down two weeks ago, saying he'd been retired for years, had rarely sat on appeal benches with Mr Adams, and would be asked only to decide on his conduct as a prosecutor, not as a judge.
His Legal Aid lawyers will appear before three judges of the ACT's highest court next week.
If the appeal is allowed, it is expected it will be argued immediately.
