A rollover witness who claimed that Anthony "Rooster" Perish and Matthew Lawton had abducted, murdered and dismembered convicted drug dealer Terry Falconer confessed to the crime himself on his deathbed, an appeal court has heard.
Falconer, an inmate at Sydney's Silverwater jail, was abducted on January 16, 2001, and his body was chopped up, wrapped in plastic and thrown into the Hastings River in northern NSW.
The case inspired the TV series Underbelly: Badness with actor Jonathan LaPaglia playing Anthony Perish and footballer-turned-actor Matt Nable portraying his nemesis, Detective Inspector Gary Jubelin.
Following a jury trial in the NSW Supreme Court Anthony Perish and Lawton were found guilty of murder and sentenced to 24 years and 20 years jail respectively in April 2012.
Anthony's younger brother Andrew "Undies" Perish was found guilty of conspiracy to murder and sentenced to 12 years' imprisonment.
The three men are appealing their convictions in the NSW Court of Criminal Appeal on a number of grounds, including "fresh evidence" in the form of an affidavit signed by a man known for legal reasons as Witness E.
Witness E was one of three men who posed as police officers and kidnapped Falconer while he was on day release at an Ingleburn smash repairer. Witness E handed over Falconer to Anthony Perish at a North Turramurra house. He was also with Anthony Perish eight years later when they were arrested at a cafe at McMahons Point.
A university graduate and former army commando, Witness E was a violent criminal for many years. His offences include two shootings, two conspiracies to murder, and seven armed robberies. Following his arrest over Falconer's murder he pleaded guilty to kidnapping, became a rollover witness and was granted a reduction on his sentence for assisting investigators.
However, between a committal hearing and the trial Witness E was diagnosed with bowel cancer and was being treated with chemotherapy. While in the witness box he was vague and hostile and claimed to have suffered memory loss. The judge allowed a video of his interview with police following his arrest to be played to the jury.
Last week, during a hearing before the Chief Judge at Common Law, Cliff Hoeben, Justice Robert Allan Hulme and Justice Christine Adamson, lawyers for the convicted men said Witness E had recanted his original evidence and claimed he was responsible for Falconer's death.
The prosecution asked that an appeal hearing set down for this week be adjourned pending an investigation into how Witness E's affidavit came into existence.
That Witness E has since died and therefore cannot be cross-examined will be a controversial issue during the appeal.
The appeal will also raise the payment of a reward to another prosecution witness following the convictions. The defence will argue the payment was not disclosed before or during the trial.
On Sunday Lawton's solicitor Elias Matouk said: "These two grounds are important grounds of appeal but they are not the only grounds."
"I don't want to say anything further because the matter is before the courts."
On sentencing, Justice Derek Price found the Perish brothers were motivated by the murder of their grandparents, who were gunned down at their Leppington property in 1993.
The brothers believed Falconer was responsible for the double murder.
The appeal will return to court on November 6.
