Romeo Phillion is likely the only accused killer ever to have his alibi both confirmed and then discredited by the same police investigators, an Ontario Court of Appeal judge noted yesterday.

Mr. Justice Michael Moldaver said that the bizarre anomaly - coupled with the fact that Mr. Phillion's defence may have been kept in the dark about the alibi reports prior to his 1972 trial - may entitle the 59-year-old man to have his conviction quashed.

"I can't say that I've ever heard of a case where police went out and verified an alibi and later discounted it," Judge Moldaver said to Crown counsel Lucy Cecchetto, during a special review of Mr. Phillion's case. "If you have got another case, please tell me."

Judge Moldaver said that the troubling alibi scenario was worsened by the disappearance of physical evidence, police notebooks and investigative reports in the case.

"You have to factor all these things into the mix and say: 'Under these particular circumstances - perhaps never to recur again - was there an obligation on the Crown to disclose?' " he said.

In concluding her closing argument yesterday, Ms. Cecchetto urged the court not to penalize the Crown for the fact that evidence has gone missing and that disclosure standards have evolved over the past three decades under the Charter of Rights.

"I'm saying that you don't apply the standards of today," she said.

"Twenty or 30 years from now, somebody is going to look at what we are doing and say: 'My God, how could they have practised that way?' "

But Judge Moldaver and Mr. Justice John Laskin pointed out that, even under common law, judges have made it clear as far back as the 1950s that basic trial fairness require the Crown to disclose significant evidence.

Judge Moldaver added that the serious questions dotting the case "put us in a terribly unenviable position" of having to deduce what the Crown did or did not tell Mr. Phillion's lawyer.

The murder victim, Ottawa firefighter Leopold Roy, was stabbed to death in an apartment stairwell in 1967. Four years later, Mr. Phillion - a feckless drifter - blurted out a spontaneous confession to the crime. Within hours, he began to recant it.

Mr. Phillion's lawyers have asked the Court of Appeal to admit testimony from a world expert in false confessions, who concluded that Mr. Phillion is just the sort of erratic, inadequate personality that fabricates a confession.

However, Crown counsel Howard Leibovich contended yesterday that trial judges are just as competent as purported experts to warn a jury about the spectre of false confessions.

Mr. Leibovich denigrated it is a pseudo-science that could potentially distract jurors from using their own native good sense to assess a defendant's behaviour.

"When you look at the inconsistencies in his report and his testimony... his loss of objectivity and his dubious studies, it is not sufficiently reliable," Mr. Leibovich said.