Summary of Opinion

Factual and Procedural Background

This appeal concerns the conviction of the Appellant for two counts of s.18 wounding with intent (Counts 5 and 8) following events in the early hours of 23 March 2025 at a nightclub in The City. The Appellant had pleaded guilty to possession of a prohibited firearm (Count 10). Counts 4 and 7 (attempted murder) were tried but the Appellant was acquitted of those counts. Sentencing was adjourned to 17 April 2026.

At trial a Co-defendant was also tried and convicted on lesser alternatives; he did not seek leave to appeal. The Appellant sought leave to appeal his conviction on Count 8 alone; leave was given.

Facts as found at trial (from CCTV and witness evidence): the Appellant and the Co-defendant were each armed with 9mm handguns. The Co-defendant left the premises and returned allegedly armed. Outside the premises both men raised and fired their weapons at each other within a very short period (several seconds), with five shots discharged within two seconds. The Appellant fired first; one of the Co-defendant's shots passed through the Appellant and struck a third person (the Victim), injuring him.

The Appellant was arrested on 1 April 2025 and provided a prepared statement claiming self-defence; he gave no further evidence at trial. The Co-defendant was arrested whilst in hospital and made no comment in interview. The Crown relied on CCTV, witness evidence (including the Victim), ballistic expert evidence and medical/scientific evidence. The jury rejected self-defence and convicted the Appellant of s.18 wounding with intent (Counts 5 and 8) and acquitted on attempted murder counts; the appeal challenges only Count 8.

Legal Issues Presented

1. Whether the judge erred in refusing to dismiss Count 8 at the start of the trial.
2. Whether the judge erred in refusing the submission of no case to answer on Count 8 at the close of the evidence.
3. Whether the judge was wrong to apply the principles from R v Gnango (as explained by later authorities) to sustain the case on Count 8.

Arguments of the Parties

Appellant's Arguments

• The events were a very short, spontaneous exchange of fire initiated by an ambush by the Co-defendant; there was insufficient time or evidence of any implied agreement to "shoot and be shot at."
• The case did not fall within the rare circumstances identified in R v Gnango; the judge had impermissibly widened Gnango so that any exchange of fire engaged that decision.
• Features relied on by the Crown (including the Appellant wearing gloves and possession of a weapon) were insufficient to infer an agreement; the Appellant was himself a victim of a shot by the Co-defendant which hit the Victim.

Respondent's (Prosecution) Arguments

• The judge applied the correct legal tests for the dismissal application and the submission of no case to answer.
• There was sufficient evidence (CCTV, expert analysis, background tensions, possession of weapons, conduct at the scene) from which a jury could properly infer an agreement to shoot and be shot at, with the requisite intention.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began from R v Gnango and the correction of joint enterprise law in Jogee. It reviewed the Supreme Court reasoning in Gnango (including differing analyses as to principal or secondary liability) and the causation discussion (noting Kennedy (No 2)). The court then considered this court's subsequent authorities (Morgan, Seed, ARU) which articulate that an agreement to shoot and be shot at may be inferred where each participant knows it is a virtual certainty others will be armed and will open or return fire and each intends to kill or cause really serious injury; reciprocity is required and such cases will be rare.

Applying those principles, the court assessed the trial judge's handling of (a) the pre-trial dismissal application, (b) the submission of no case to answer, and (c) the jury directions. The court identified the evidence relied on at trial (CCTV, the ballistic expert's timing analysis, the Appellant's possession of a loaded handgun and wearing gloves, witness evidence including the Victim's account) and concluded the judge had properly identified the available strands of evidence and given clear, appropriate directions in accordance with the authorities.

The court found there was sufficient evidence from which a reasonable jury could infer a "shoot out" and the necessary agreement/mental element: the jury were entitled to conclude two men came together both armed and ready for a gunfight, acted in ways from which the requisite inferences could be drawn, and rejected self-defence. The court accepted that the factual points advanced on behalf of the Appellant were matters for the jury but did not render the conviction unsafe.

Holding and Implications

DISMISSED

Holding: The Court dismissed the appeal and upheld the conviction on Count 8.

Implications: The direct effect is that the Appellant's conviction for s.18 wounding with intent (Count 8) stands. The court reaffirmed and applied the framework from Gnango as read with Jogee and this court's subsequent decisions (Morgan, Seed, ARU) for assessing when an agreement to shoot and be shot at can be inferred; no alteration to those legal principles was made and no new precedent was created beyond applying existing authorities to the facts.