Queensland’s chief justice, Tim Carmody, may have to decide whether he should be disqualified from an appeal by the convicted child killer Brett Peter Cowan because of his relationship with a child protection advocate, Hetty Johnston.
Lawyers for Cowan, who is appealing against his life sentence for the 2003 murder of 13-year-old Daniel Morcombe, lodged an application on Wednesday to have Carmody “disqualified by reason of apprehended bias from further participating in the appeals”.
The decision will rest with the court of appeal, potentially meaning Carmody sitting alongside the appeal court president, Margaret McMurdo, and justice Hugh Fraser.
The trio heard Cowan’s appeal five months ago but have yet to hand down their written decisions.
Cowan’s legal team requested the order from a court made up of McMurdo and Fraser “or alternatively the court constituted by the chief justice, the president and Fraser JA”.
They are seeking an order that the appeal be adjourned for hearing by an entirely new trio of judges.
Guardian Australia revealed Cowan’s lawyers will cite a case involving the late Chilean dictator Augusto Pinochet to argue for Carmody’s removal.
A House of Lords ruling allowing the extradition of Pinochet from Britain to face torture charges was overturned in 1998 because of a judge’s links to Amnesty International.
In the supreme court on 24 April, Cowan’s barrister, Peter Davis, indicated he would argue that Carmody’s relationship with Johnston, chief executive of the child protection charity Bravehearts – who has publicly called for Cowan never to be released – gave rise to the perception Carmody was biased against his client.
Davis told Carmody that Johnston was his “ardent public supporter” and it was “obviously Johnston’s view that your appointment will change the focus of the criminal justice system from accuseds to victims”.
Carmody, whose private meeting with Johnston in his chambers on 15 April prompted McMurdo to write to him “expressing concerns”, said the Cowan matter was not discussed.
He said there was “no serious possibility that a fair-minded person might reasonably apprehend bias”.
