Convicted baby shaker Jacquelyn Fubler could be freed and tried again if a defence appeal gets the blessing of Supreme Court judge Ian Kawaley.

Yesterday Dr. Kawaley heard from Elizabeth Christopher who argued it had not been proven an expert witness had the necessary expertise to speak about the injuries to ten-month-old Stephen Ebbin. At yesterday?s appeal Ms Christopher also argued Magistrate Tyrone Chin should have cross examined Dr. Alexander Barron on Fubler?s behalf who was unrepresented at that stage of the long-running legal case.

Former day care owner Fubler was found guilty of causing grievous bodily harm to Stephen Ebbin and sentenced in March by Puisne Judge Norma Wade Miller who handed down a one-year prison and probation sentence.

However Dr. Kawaley said there was plenty of evidence of other injuries caused to Stephen who had suffered injuries to his head, thigh, ears and head in the lead up to the incident.

Dr. Kawaley said the case, which has dragged through the courts since 2001, could not be dismissed on a technical basis.

He said: ?It has had a tortuous history. This is not a case where the conviction can simply be quashed. Isn?t the only proper course I can take is to order a retrial, it isn?t a case where you can say there is absolutely no evidence at all.?

He will make his decision at a later date. If the defence appeal fails the Crown are likely to push for a tougher sentence for Fubler who Stephen?s family say has expressed no remorse about her actions.