The State has conceded that a man convicted of murder nearly 29 years ago should have his appeal allowed after advances in medical science showed the ulcer that caused the victim's death was not caused by stress during a robbery.
Chris von Deutschburg last year won a bid to have his appeal heard against his 1983 conviction for murdering 86-year-old Stavros Kakulas after his petition for mercy was referred to the Court of Appeal by then Attorney-General Christian Porter.
Today, at the appeal hearing, the court was told the State conceded the appeal should be allowed, with new evidence suggesting the ulcer existed before the robbery and was not caused by stress.
Mr Kakulas had died from internal bleeding from an ulcer about a week after he was attacked during a robbery on his home on the night of June 1, 1983.
Mr von Deutschberg, who was then aged 19 and known as Christian Wilhelm Michael, had pleaded guilty to burglary but argued he did not mean to harm Mr Kakulas. He was convicted of murder and sentenced to life in jail, serving seven years before release.
Decades after the conviction, a petition was handed to Mr Porter with material from Nobel Prize winner Barry Marshall, who with fellow laureate Robin Warren had proved that bacteria, not stress, was the main cause of ulcers.
Today, the Court of Appeal heard that while the State's prosecution in 1983 had specifically argued stress in the robbery caused the ulcer that killed Mr Kakulas, current medical evidence suggested the duodenal ulcer existed prior to the robbery.
Justice Carmel McLure, president of the Court of Appeal, noted that a pathologist's view was also that there was no evidence to show that the robbery had affected the pre-existing ulcer.
This would be relevant, the judge noted, if the court was to consider whether Mr von Deutschburg could be guilty by a route other than causing the ulcer.
The Court of Appeal may quash a conviction but still refer a case for retrial where it sees fit.
Mr von Deutschburg's lawyer, Sam Vandongen today said his client was keen for the matter to be finally resolved.
"He is a man who is suffering from a considerable amount of stress from this whole matter," Mr Vandongen.
The court heard that Mr von Deutschburg had launched an earlier appeal in 1989 which he then withdrew.The appeal judges today reserved their decision.
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