Wassim Tiriaki's murder conviction was quashed in March after Salim Tabbah said he was the one who shot Mathew Hedges in the chest through his Sydney lounge room window on New Year's Eve 2011.
Tiriaki was sentenced to 28 years after a jury found him guilty of murder in 2014, believing him to be the shooter.
Tabbah was found guilty of manslaughter, given 14 years with a non-parole period of 10, which would have expired in March 2022.
However, Tabbah had been telling a solicitor, prison chaplain and psychologist he pulled the trigger for years, before signing a sworn statement in 2021 and giving evidence in support of Tiriaki's appeal.
The NSW Court of Criminal Appeal unanimously quashed Tiriaki's convictions.
He faces a fresh murder trial, with no date set, and remains in custody.
Justice Sarah McNaughton, one of three who judged the appeal, rejected an application to release him on Wednesday.
Tiriaki's barrister Murugan Thangaraj SC was required to show cause why he should be released, relying on the confession of Tabbah, whose non-parole period has expired.
A jury had already acquitted a person of murder after finding they were present at the Hedges' Chester Hill home but did not pull the trigger, Mr Thangaraj said, and it was still unknown when his client would get a chance for another jury to do it again.
"It would be extremely unfair to detain him longer," Mr Thangaraj said.
"I don't know when this court is going to give him a trial date but it's already been two-and-a-half years too long."
Crown prosecutor Eric Balodis argued the only change is the addition of Tabbah's admission and Tiriaki could be tried for murder as part of a joint criminal enterprise to rob the Hedges' home.
There is also physical evidence, found in his brother's bin, including Tiriaki's DNA on the gun used and broken glass from the window found in a jumper, Mr Balodis said.
An issue at trial, for the jury to decide, is whether whoever did not fire the gun knew the shooter had it.
Mr Thangaraj questioned why Tiriaki would stand closer to the window if he knew the person behind him was armed.
"This was a robbery gone wrong," he said.
He picked apart a letter from a police officer who he said has been involved in the case for "a number of weeks" and "not across the brief", which expressed concern about "violent tendencies", citing instances Tiriaki was himself assaulted, found not guilty, or had no action taken against him.
The officer was concerned about guns being held at a different address to the one Tiriaki sought to be bailed to.
Namely, his brother, who had offered to give the guns up before Tiriaki could be released, and previously called police on his brother after finding a gun in his bin, Mr Thangaraj said.
It was not enough to satisfy the judge Tiriaki should be released while he awaits trial.
"There are a lot of evidentiary links to (Tiriaki) ... the Crown case is not a weak case," Justice McNaughton said, noting the trial and what evidence will be used in it remains "complex".
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