An actor accused of killing an aspiring rapper with a samurai sword in broad daylight earlier this year has been granted bail, with a judge labelling the argument that he poses a risk of committing another murder due to the charge against him "pathetic".
The judge also described the accused, 29-year-old Blake Davis, as a "cleanskin" who, prior to the alleged murder, had not racked up so much as a traffic offence.
Davis is accused of murdering Jett McKee, in the inner west Sydney suburb of Forest Lodge on August 10. The men did not know each other, the court heard.
Davis's girlfriend and co-accused Hannah Quinn, 24, is charged with murder and accessory after the fact.
It is alleged Davis killed 30-year-old McKee by striking him in the head with a samurai sword after McKee broke into the unit Davis and Quinn shared in Forest Lodge while wearing a balaclava, and armed with a replica pistol and a knuckleduster, and they chased him outside.
Davis and Quinn then went on the run before handing themselves into police on August 13.
Davis had collected swords since he was a teenager, the court heard.
Quinn was granted bail in the Local Court in August but Davis was not, and has remained in Long Bay prison while waiting for his bail appeal in the Supreme Court.
On Tuesday afternoon, Supreme Court justice Stephen Rothman ruled in Davis's favour, granting him bail with almost half a million dollars in surety and conditions including electronic monitoring, a curfew and daily reporting to police.
Davis, who appeared in court via video link, audibly whimpered and could be seen shaking throughout the hearing.
There are a number of "peculiar" aspects to the case, Rothman said, including the fact that this was not only the first serious offence Davis had been charged with, but the first offence ever.
"It doesn’t seem the applicant has even been convicted of any serious driving offence or traffic offence," he said. "We are speaking of a person who is, to use the vernacular, a cleanskin."
When prosecutor James Ly said the charge against Davis was the only evidence he might commit another murder or serious criminal offence while out on bail, Rothman said: "Frankly I find that pathetic."
According to Quinn's statement, Rothman said, McKee stole goods, including a black satchel bag of hers, and then ran out of the house, pursued by herself and Davis.
There was "no controversy" that Quinn then caught up with Davis on the street outside, a scuffle ensued, and then Davis delivered the fatal blow to McKee's head, Rothman said.
But, Rothman said, there was an "obvious inconsistency" in the Crown case regarding evidence that Quinn yelled out "Don't" just prior to the fatal blow.
According to Quinn's statement, during the seconds-long scuffle McKee punched at her, lost his balance, fell over, and then pointed the replica pistol at her, which she thought was real, before Davis struck him in the head.
This account is contradicted by three eyewitnesses who do not mention a gun in their statement, said Ly.
Rothman said that if Quinn was yelling "Don't" at Davis, she was effectively saying she didn't approve of the actions causing death. But because she's been charged with murder, the Crown has to accept that she was instead yelling "Don't" at McKee.
But if she was yelling it at McKee, it corroborates her version of events about the fake gun and makes it "difficult" for the Crown to disprove a claim from Davis that he was acting in self defence, or in defence of Quinn, or "at the very least" a partial defence that would downgrade the charge to manslaughter, Rothman said.
The Crown "can't have it both ways", Rothman said.
He also said there appeared to be "good grounds" for a defence of provocation.
Ly told the court there was a statement from Hannah Quinn's mother that she did not want Davis "anywhere near my house, myself, or my family members".
Ly also said the Crown accepted McKee entered the apartment unlawfully, but did not accept he was there to rob Quinn and Davis.
"The balaclava was for skiing, was it?" Rothman replied.
Rothman also declined to make an order preventing Davis and Quinn from contacting each other. He said Quinn was already giving evidence "exculpating" Davis and that he could see no motive for Davis wanting to interfere with her as a witness.
Davis is next in court on January 22.