A soldier who fatally shot his close friend in Afghanistan in 2007 has applied to be released from prison pending his appeal before the Court Martial Appeal Court of Canada.

Matthew Wilcox was sentenced to four years in jail and dismissed from the military after he was found guilty of criminal negligence causing death and neglect of military duty on Sept. 30 in the shooting of Cpl. Kevin Megeney.

Megeney died on an operating table after Wilcox fired a bullet through his chest on March 6, 2007.

Wilcox's sentencing was the most serious punishment meted out by a court martial for incidents in Afghanistan.

Wilcox's lawyers filed an appeal of his conviction and sentence on Oct. 1, arguing that the makeup of the military jury was unfair and that it should have been permitted to view the scene of the shooting in Kandahar, Afghanistan.

Maj. Steve Turner, one of Wilcox's lawyers, filed a motion on Nov. 16 asking that Wilcox be released from prison until the appeal's conclusion, saying he can live with his mother and father in Glace Bay, N.S.

Turner argues in court documents that the "young, first-time offender" has clearly demonstrated he is not likely to attempt to leave Nova Scotia while awaiting the appeal.

"The applicant was an outstanding soldier, both before and after the incident which resulted in these convictions," said Turner.

"The behaviour in question was out of character for the applicant and unlikely to be repeated."

In addition, Turner says it could be some time before his appeal is heard, noting that the transcripts of the nine-week court martial in Sydney, N.S., won't be available until January next year.

Judge declined release

During sentencing, military judge Cmdr. Peter Lamont declined to release Wilcox, noting the seriousness of the convictions.

Lamont said the conduct of the offender was part of a pattern of negligence that began with Wilcox's failure to unload his firearm after he finished his shift.

He said Wilcox had "violated the trust" of his colleagues, and he referred to the shooting in the tent as being the result of "horseplay" with arms.

However, defence lawyers argue in the notice to appeal that there were numerous legal flaws in the court martial.

The document states that the military jury should have had five members, rather than the four who were chosen, and it should have included another non-commissioned officer.

"The military judge erred when dismissing a panel member," said the notice.

The defence lawyers are also arguing that the court martial should have been held in Afghanistan, so that the military jury could view the scene of the crime.

Lt.-Col. Troy Sweet, another of Wilcox's defence lawyers, said his client has been in the military prison in Edmonton since Oct. 1.

"He's dealing with the process," said Sweet.