08/03/2012 12:08 EDT | Updated 10/03/2012 05:12 EDT

Tori Stafford's family dismayed by killer Michael Rafferty's appeal notice

TORONTO - Family of a murdered eight-year-old girl reacted with dismay Friday to word her killer wants his first-degree murder conviction set aside and a new jury trial ordered.

A court filing by Michael Rafferty, who is serving a life sentence in Kingston Penitentiary for raping and murdering eight-year-old Tori Stafford, raises two grounds for a possible appeal.

"We were just starting to get our lives back in some semblance of order," Tori's grandmother, Doreen Graichen, said from Ingersoll, Ont.

"(But) I'll be damned if he's going to shake us again."

According to his inmate notice of appeal, which will first need a judge's permission to be heard, Rafferty wants to appear in person rather than have the case decided in writing.

"The jury failed to apprehend the evidentiary requirement to convict for first-degree murder," he argues in his handwritten application.

His second ground claims "the honourable judge failed to properly instruct the jury."

Because Rafferty, 31, was late filing his appeal notice, he will need permission to press his case, which will be heard automatically if a time extension is granted.

In his application — filed more than the 30 days normally allowed — Rafferty explains why he needs the extension.

"I have tried to initiate this appeal as quickly as possible," he wrote in his appeal notice dated June 26 but only sent to the court a month later.

"But my inability to use the telephone to contact legal counsel prevented me from doing so."

An Ontario Appeal Court official said it would "probably take a while" for a decision on the extension because a trial transcript and exhibits need to be gathered to send to the deciding judge.

Normally, the Crown consents to the extension and the judge grants it unless the delay is deemed unjustifiable. In that case, the Crown may object and a judge would decide after hearing submissions, usually in writing.

Because Rafferty is arguing legal errors, if he continues with a full appeal it will be automatically heard if the time extension is granted.

"He's just trying his last thread of hope," said Graichen, who only found out about the notice from reporters.

"God willing, they'll see through him and not let the appeal go through."

Toronto lawyer Stacey Nichols, of Neuberger Rose, said Friday that Rafferty had approached them about handling the appeal but the firm had not yet been retained and did not help with the notice.

Although he lists his conviction date as "May 9 or 10, 2012," Rafferty was found guilty May 11 of murder, sexual assault causing bodily harm and kidnapping in Tori's 2009 abduction from outside her school in Woodstock, Ont., and subsequent killing.

He was sentenced to life without parole eligibility for at least 25 years on May 15, although his notice puts the date at May 16.

At sentencing, Superior Court Justice Thomas Heeney — Rafferty lists him as Henni — called the killer a "monster."

Rafferty said he stood "firmly" behind his not guilty plea.

His former girlfriend and accomplice in the killing, Terri-Lynne McClintic, is also serving a life sentence after pleading guilty to first-degree murder.

Evidence was that McClintic lured the Grade 3 student to Rafferty's car. They then drove her to a secluded area where he raped her. One of them then smashed her head in with a hammer before burying her body under garbage bags and a pile of rocks.

To avoid prejudice to the accused, Heeney did not allow the jury to hear evidence seized from Rafferty's laptop, which included child pornography, torture videos and a movie about the abduction of a girl.