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Scott White,right,has been sentenced for the 1988 murder of Scott Johnson.

At the time,White’s lawyers unsuccessfully applied to have the plea withdrawn,with Justice Helen Wilson observing he had been “clear and emphatic”,and despite suffering from anxiety and an intellectual disability was found to be fit to plead.

But on Tuesday,White’s barrister Tim Game,SC,told the Court of Criminal Appeal his client had made a “plea of convenience” without fully grasping what he was admitting to.

“This is not some kind of straightforward case where the accused could have understood what he was pleading to,” he said. “The Crown did not say our case is x,our case is y”,he said.

Game said White had maintained he did not kill Johnson intentionally or with reckless indifference,which must be established to prove murder.

“It’s the Crown that has to identify the legal case for liability and they haven’t done it,they haven’t even begun to do it.”

On the contrary,Game said,there was confession evidence that White said he had “tried to grab” Johnson as he fell – which would contradict the murder charge,he argued.

Appearing for the Crown was NSW Director of Public Prosecutions herself,Sally Dowling SC,who submitted that notes from White’s discussions with his legal counsel show it was “put to him that it’s not clear the elements are met” in the Crown case.

Despite that,he decided to declare his guilt to the court four times,telling his lawyers afterwards it was “not a split second decision”.

Dowling said that assertion was a “very,very significant aspect of the evidence”.

He then referred to the deceased’s brother being in court and said “I just want it to be put to rest for Scott”,in what Dowling submitted was “a completely understandable,and with respect,rational statement by the applicant”.

Johnson’s death,initially declared a suicide following a bungled police investigation,was long suspected of being an anti-gay hate crime,but Justice Wilson did not find his motivation proven beyond reasonable doubt when she sentenced White to a minimum jail term of eight years and three months in May.

White’s former wife,Helen,had told a sentence hearing he “often bragged about bashing poofters” and did not deny being responsible for Johnson’s death when she asked him if he did it.

But the court also heard that White was himself gay,and had told other witnesses he and Johnson met at a pub and went to North Head together,before Johnson undressed and an altercation ensued.

White became visibly distressed during the hearing on Tuesday,when he appeared before the court video link from Lithgow Correctional Centre. Following a 10-minute adjournment,he consented to the appeal continuing without him.

The hearing was adjourned to continue on Wednesday.

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