A South Coast man, accused of murdering his wife 17 years ago, made a "false confession" to police in relation to the crime and should be released on bail pending a trial, his lawyer has told the state's highest court.
Steven Fesus is accused of murdering his wife Jodie, 18, by strangling her or delivering a fatal blow to her head at their home at Mount Warrigal near Wollongong shortly after they returned from their honeymoon on August 8, 1997.
They were together for several years before getting married.
Mrs Fesus' body, clad only in a nightie, was found a month later, buried in a grave at Seven Mile Beach near Gerroa.
For nearly two decades, Fesus, 43, lived in the same suburb with the couple's children, maintaining that his wife had disappeared without explanation, and that he had nothing to do with her death.
But, in July this year, the security guard was arrested and charged with murder after allegedly confessing to the crime.
Fesus's solicitor, Dennis Moralis, told the NSW Court of Criminal Appeal yesterday the confession was "false" and given the "weak" nature of the Crown's circumstantial case, he should be released on bail.
"He formally and strongly withdrew his confession," Mr Moralis told the three-judge panel.
Having had an application for bail rejected in the NSW Supreme Court in October, Fesus is appealing against the decision.
Mr Moralis said his client's case met the criterion of "exceptional circumstances" required.
He said there was a serious lack of physical evidence against Fesus, including any signs of his DNA on his wife's body and particularly under her fingernails.
"For a fit young woman not to have attempted to fend off such an alleged attack is difficult to believe," Mr Moralis said.
He said the Crown case was further weakened by its inability to specify whether Mrs Fesus had been killed by strangulation or a blow to the head.
"It is highly unusual for such a charge to be brought without any physical evidence against the accused," he said.
As arguments in favour of granting bail, Mr Moralis also pointed to his client's spotless criminal record and the length of time before the case was likely to come to court.
But the court was also told that, in the months before Mrs Fesus's death, her husband told a work colleague he would kill Jodie one day.
There was also an allegation by the Crown that Fesus harassed and stalked a female Crown witness.
The court was told the witness had written a statement in which she claimed she "had been harassed since 2000".
The court has heard previously that, before police had formally identified Mrs Fesus' body, Fesus allegedly called the morgue, asking if he could see his wife's body.
He allegedly asked whether the deceased had been strangled and, if he accidentally rolled on top of his wife in bed, whether his fingerprints could be on her neck.
Crown Prosecutor Sally Dowling, SC, said the confession was reliable and that there was a "marriage" between it and the Crown's circumstantial case.
"It is the Crown's submission that the applicant has not established exceptional circumstances," Ms Dowling said.
The appeal panel will deliver its decision on the bail application in the coming weeks.