David Eastman has made a rare appearance in the ACT Supreme Court as his lawyers raised allegations of apprehended bias against the judge who threw out his attempt to permanently halt a retrial for the shooting death of Colin Winchester.
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Eastman's murder conviction was quashed and he walked free in 2014 after nearly 19 years behind bars for the alleged killing of Mr Winchester, who was ACT police chief, in Canberra in 1989.
Prosecutors later pushed for Eastman to face a retrial, prompting him to launch a bid to permanently stave off facing a second jury over the killing.
Acting Justice David Ashley in April threw out Eastman's application for a permanent stay of proceedings, but kept secret his reasons for doing so, saying he didn't want to jeopardise the fairness of the retrial.
Eastman's lawyers are now appealing the court's decision to dismiss that application in the ACT Court of Appeal.
Victorian Supreme Court judges Justice Robert Osborn, Justice Simon Whelan and Justice Phillip Priest travelled to Canberra for the start of the hearing, which has been set down for five days, on Monday.
Eastman's barrister Patrick Tehan, QC, argued comments made by Justice Ashley in his reasons for his decision amounted to apprehended bias.
That referred to the legal principle that a reasonable onlooker might conclude the judge may not have been impartial in making his decision, and his judgment could give the appearance of bias.
"As experienced as a judge may be, and Justice Ashley is a very experienced judge, even a judge of such experience, at the end of the day, may be found to have apprehended bias," Mr Tehan said.
But the Crown's counsel Murugan Thangaraj, SC, attributed comments and language used in Justice Ashley's decision to his personality and said he had simply been trying to "move the matter forward".
"That's a matter of personality, that's not a matter of bias," he said.
Justice Ashley's full reasons for his decision remained suppressed and the court was closed to members of the public for much of Monday afternoon's proceedings.
Eastman arrived at court early, his face obscured by a hat with a flap, and sat in the court's public gallery for parts of the hearing.
It's understood it was the first time he had appeared in court since his release from prison two years ago.
Eastman was sentenced to life behind bars when he was convicted of murder in 1995.
He was eventually freed in August 2014 following an inquiry that exposed significant flaws with the forensic evidence used to link him to the scene of the killing.
Meanwhile, preparations for a potential retrial have continued in the Supreme Court.
The case has been tentatively set down to start in May next year and is expected to last six months, with about 280 witnesses to be called.
A judge has yet to be appointed to oversee the trial, which is set to be heard by a jury.
That start date is dependent on both the outcome of Eastman's appeal on the stay and any pre-trial applications by counsel.
In a separate civil case before the courts, Eastman is attempting to sue the ACT government for wrongful imprisonment.
The stay application hearing continues on Tuesday.
