Alan and Wendy Marshall of Napier are facing the "horrific" prospect of being taken back through the violent death of their son, Andy, after an appeal hearing in Perth cast doubt over the conviction of the man who was imprisoned for life for his murder.
Twenty-nine-year-old musician Andy Marshall diedafter being pushed out of a second-storey window at a Perth hotel on May 8, 2011.
A 26-year-old Perth man, Stefan Pahia Schmidt, was sentenced to a minimum of 14 years for murder after being found guilty in the Supreme Court of Western Australia last year.
But the conviction and sentencing of Schmidt are now likely to be reviewed after doubts were raised over aspects of the prosecution case.
Before three leading judges on the appeal panel barrister David Grace QC argued the conviction was flawed because the state had ultimately retreated from alleging Schmidt intended to push his victim through the window and, crucially, did not clearly specify what injury he meant to inflict. A legal technicality, it hinged on the intended nature of the injury.
"We always knew they were going to appeal," Mr Marshall said yesterday after getting off the long flight home from Western Australia where he attended the two-hour Court of Appeal session.
"We knew it was coming and a month ago we got the call."
Mr Marshall sat through the hearing while his wife watched it via a video link.
Mr Marshall said at one stage he felt sick as he began to relive the trauma of what he and his wife had gone through during last year's trial. "It is likely to go to retrial and then you just have to relive it all again."
He said watching as the judges nodded over what they were hearing told him there was almost certainly going to be a retrial.
While the appeal judges reserved their decision they did state they were "pretty clear" on what it would be.
Mrs Marshall said, "I just wasn't prepared for it. I just felt shocked. It pushes you right back into it all again."
Mr Marshall said his greatest fear was that through any downgrading of convictions and sentencing any message against violence would be downgraded.
"We want a strong message of zero tolerance for violence."
He believed a retrial would be steered toward accidental death or a reduced conviction of manslaughter which he feared would allow Schmidt back on the streets in three or four years.
There was no indication when the Court of Appeal decision would be announced, but Mr Marshall believed it would be a few weeks away.
In the meantime he and Mrs Marshall would push on with their lives, and part of that was anticipating the happy arrival of a baby in about 10 days to their daughter Katie.
If a retrial was called the couple would go to Perth for it.
