Denied bail ... Keli Lane, pictured outside court in 2010. Photo: Nick Moir
So flawed was the case which led to the conviction of Sydney mother Keli Lane for the murder of her baby, Tegan, that a successful appeal resulting in her acquittal is "inevitable", her lawyers have told the Supreme Court.
But the state's most senior common law judge rejected that claim on Thursday, refusing a bail application that would have allowed Lane to return home in time for her 38th birthday.
It took Justice Cliffton Hoeben less than 45 minutes to dismiss Lane's application for bail, which was made ahead of her highly anticipated appeal to the NSW Court of Criminal Appeal later this year.
The former representative water polo player, who is serving a minimum of 13-and-a-half years in jail for the murder of two-day-old Tegan, dropped her head onto her folded arms in disappointment.
Lane's murder conviction in December 2010 caused considerable debate within the legal fraternity, and the community more broadly.
This was due, in part, to the fact that, having been taken from Auburn hospital by her mother, Tegan was never seen again, meaning that the cause of her death is shrouded in mystery.
Lane's legal team, lead by prominent Sydney silk, Winston Terracini, argued in the Supreme Court on Thursday that because of the doubt about how Tegan died, the jury should have been instructed that manslaughter and infanticide were alternate charges to murder.
"The Crown prosecutor must have known that it was equally possible that the death of the deceased could have been occasioned by ... an unlawful and dangerous act, eg accidental suffocation by concealment, dropping the child, shaking the child, smacking the child, slipping and falling on the child ...," Lane's written submissions state.
"In essence, the Crown prosecutor took away a possible verdict from the jury thus prejudicing in a significant way, the right of an accused person to have a trial according to law..."
This ground of appeal was described as "irresistible".
"...the failure to allow the jury to consider the alternative verdict of manslaughter is so fundamental as to make the result of the appeal inevitable..."
But the Crown countered that the possibility of a manslaughter verdict was never raised by Lane's trial barrister, Keith Chappell, SC.
The main issue at trial, the Crown argued, was whether Lane had killed the victim or whether there was a reasonable possibility that Tegan was still alive.
"...There simply was no evidence that would accommodate a viable case of manslaughter..." its submissions state.
Lane's legal team also argued that, in his closing address to the jury, Crown Prosecutor, Mark Tedeschi, QC, had reversed the onus of proof by posing a series of questions to the jury about Lane's actions in his closing address, which he said had not been answered.
They argued that by asking questions such as "why did the accused give eight different versions of what happened to Tegan?", the prosecution implied that it was up to the defence to prove Lane's innocence rather than vice versa.
However, the Crown pointed to the fact that Justice Whealy specifically reminded the jury as to where the burden of truth lay, saying "the Crown does not, by asking the question, alter or change the onus of proof which remains always on the Crown".
Justice Hoeben expressed reservations regarding the manslaughter argument, stating that there was "no evidence anywhere of a dangerous unlawful act other than the most serious, of course, which is the deliberate taking of life".
He appeared to conditionally accept the onus of proof argument, saying that "it's a well known truism that [prosecutions] posing questions instead of truths to the jury is problematic".
However, the judge said that both questions were more appropriately dealt with by the Court of Criminal Appeal rather than at a bail hearing, which was primarily concerned with whether the appeal had "very strong prospect of success".
Lane's appeal hearing is expected to take place in July.