In George Kieran Daunt's second-degree murder trial, Crown prosecutors' closing arguments didn't match the evidence brought forward during the trial, three B.C./Yukon Court of Appeal judges were told Wednesday morning.

Daunt is appealing his 2005 conviction which has him serving a life sentence in prison for the 2003 shooting death of Robert Truswell in Dawson City's gold fields. The appeal court is sitting in Whitehorse this week.

On Wednesday morning, defence counsel Robert Fowler told the court the appeal is based on issues around the Crown's cross-examination and closing arguments and that the trial judge Yukon Supreme Court Justice Ron Veale erred in giving instructions to the jury.

There's also an application to admit new evidence after a gun was found on Truswell's property.

What has to be determined, Fowler said, is whether it would have had any impact on the jury's verdict.

While the presence of the gun alone wouldn't likely have an impact on the verdict, Fowler suggested that with the other two factors from the appeal, it could have impacted the jury's decision.

The gun, a .30-.30, and two tins of ammunition were found in a culvert on Truswell's property by the new owner of the site in 2006. He called the RCMP, who went out and retrieved it.

During his testimony at trial, Daunt said he knew of Truswell owning a .30-.30 among other weapons. The last time he had seen Truswell with a gun was about two years earlier.

In his submissions at the trial in 2005 in Whitehorse, Crown prosecutor David McWhinnie told jurors Daunt had no reason to believe Truswell had a weapon in the truck that day, Fowler said.

Although the gun that was later found wasn't in the truck, but on the property, it would have provided jurors with firm evidence in the case to back up the more circumstantial evidence of other witnesses who spoke of Truswell having weapons, Fowler argued.

Throughout his testimony at trial, in pleading self-defence, Daunt told the court he had feared Truswell in the days leading up to the shots being fired.

If self-defence is proved in a case, an accused can't be criminally convicted.

As Fowler pointed out during the trial, the jury heard that Truswell had made death threats against Daunt to others. After learning of the threats, Daunt slept in his car so he wouldn't be near Truswell's property, as both men's mining claims are near one another in the Dawson area.

When Daunt finally went back to his claim, because the mining season was coming to a close and he had no other source of income, he slept with a gun under his bed because of his fear.

Fowler pointed out that McWhinnie never directly questioned Daunt about whether he may be fabricating his fear of Truswell during cross-examination, yet during the closing submissions to the jury, he suggested just that.

What can be more unfair, Fowler questioned, than an accused being willing to testify, explain what happened, permit cross-examination, then hear closing arguments that he didn't have a chance to answer questions on?

'There can be nothing more unfair than that,' he said.

Crown prosecutor Mike Cozens spoke to the appeal yesterday. He noted that while the question of Daunt fabricating or exaggerating his fear wasn't put to him directly, the Crown did question him on his fear of Truswell.

Most likely, had Daunt been questioned on fabricating his fear of Truswell, he likely would have reiterated his earlier statements, Cozens said.

The Crown, he said, asked the jury to look at all the evidence at trial to reach a verdict.

Even if Daunt was fearing for his life, Cozens noted, the Crown's argument also pointed out there was nothing to indicate Truswell had threatened him when they encountered each other in their vehicles.

Cozens also pointed out the shooting range of two to four feet Daunt used in shooting Truswell.

While Daunt described the first of three shots as a warning shot, prosecutors took issue with that. The second shot was fatal.

'The Crown had a problem with Mr. Daunt's version of events,' Cozens said.

In addition to the Crown's closing submissions, Fowler also took issue with Veale's instructions to the jury on the definition of reckless.

In the Criminal Code, murder is defined as homicide where a person means to cause death or where a person causes bodily harm that he/she knows is likely to cause death and is reckless as to whether it does.

As he pointed out in an earlier case the court of appeal heard this week, the definition of reckless pertains to the moment when the death is occurring, in this case in the moment when the trigger on the gun was pulled.

That wasn't clearly set out by the judge, Fowler said.

Cozens noted the jury had no questions about what was meant by reckless. Nor were there any issues in what happened after the shooting that could lead jurors to question whether there was recklessness at that point.

B.C.-Yukon Court of Appeal Chief Justice Lance Finch, Justice Carol Huddart and Justice Richard Low reserved judgment on the case.