Lex Wotton, from the north Queensland island, earlier pleaded guilty to rioting with destruction but last week sought to withdraw that plea.
On Thursday, his lawyer asked Brisbane District Court Judge Milton Griffin to step down from hearing the withdrawal application.
Wotton pleaded guilty as the trial of four men charged with rioting with destruction over the Palm Island incident recently started before Judge Griffin.
But he sought to change his plea just hours before the four - John Major Clumpoint, William Neville Blackman, Lance Gabriel Poynter and Dwayne Daniel Blanket - were found not guilty last week.
The island's police station and courthouse were razed during the riot that erupted a week after the controversial Palm Island watch-house death of Mulrunji Doomadgee.
Defence barrister Peter King on Thursday argued Judge Griffin could not bring an "unprejudiced mind" to the upcoming hearing of the withdrawal application.
Mr King said the judge had dismissed his client's version of events contained in an affidavit submitted during a bail application on March 16.
"Your honour said it was a 'complete misrepresentation of what occurred," Mr King said.
He said a transcript tendered to the court revealed Judge Griffin had commented: "What occurred in my view to cause the people to move toward the police station were the words, among others, of your client".
At the time, Judge Griffin also allegedly said he found the affidavit misleading "because it is contrary to what is shown on the video".
The footage allegedly featured Wotton shouting "things are going to burn".
Mr King suggested Judge Griffin had "reached a conclusion Wotton was the ringleader".
"Your honour made observations which might be described as findings of fact, which were made in advance of an agreed statement of facts," he said.
Mr King said Judge Griffin had made those comments despite Wotton not being cross-examined nor giving evidence at the trial of the four other men.
He said the comments had been adverse to his client's "credit".
Mr King denied his client was the alleged ringleader and questioned the "integrity" of the video footage.
"Wotton was not the ringleader, not the person that led the crowd to the police station, he did not behave riotously," he said.
"In fact, the police asked him to intervene on their behalf to ask the crowd to go home."
He said the guilty plea should be scrapped because it was, among other reasons, "not attributable to a genuine consciousness of guilt".
Judge Griffin said his comments were based on Wotton's guilty plea and details submitted to the court alleging Wotton had "gone to the police station, smashed windows and so on".
"The man had pleaded guilty," Judge Griffin said.
However, Judge Griffin said another judge would hear the matter.
© 2007 AAP
been learning alot from watching and supporting Murri resistance against Gubbment oppression, ending the silence, stopping the genocide in Australia against Aboriginal peoples. heres another item of interest, that Steve(I kill Aborigines) Hurley, should be tried on Palm Island
Thursday, March 29, 2007. 12:15pm (AEST)
Lawyer wants Hurley trial held on Palm Island
Hurley is charged with manslaughter for the death of Palm Island man Mulrunji.
Mr Levitt was a member of the legal team that succeeded in shifting the trial of Lex Wotton, accused of rioting on Palm Island, from Townsville to Brisbane.
He said earlier this week, the police officer's trial should be moved to Brisbane because of the difficulty of finding non-racist jurors in Townsville.
Now Mr Levitt says ideally Mr Hurley's fate should be in the hands of an Indigenous jury.
"Very often they are subjected to trials where they are the lone black person being trialled by whites. So it's a situation where sauce for the goose is not sauce for the gander in Queensland," he said.
Mr Levitt says ideally the trial should be held in the town where the alleged crime was committed.
"Palm Island is geographically further from Townsville than the north of France is from the south of England, but culturally and in every respect it's a million miles away," he said.
http://www.abc.net.au/news/newsitems/200703/s1884542.htm
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