(ii) that on the same date he did maliciously discharge a firearm with intent to do grievous bodily harm.
2 After a trial occupying fourteen days, on 17 June 2002 the jury found the prisoner not guilty of murder but guilty of manslaughter on the first count, and guilty as charged on the second count.
3 Evidence and submissions on sentence were received on 30 August 2002.
4 The evidence at the trial established that the deceased died in consequence of a gunshot wound. The shot fired penetrated muscles in front of the rib cage, went into the centre of the chest, through the heart wall, through the top part of the major blood vessels coming off the heart, into the back of the sac that encloses the heart, then damaging the upper part of the left lung and passing through the back left side of the chest wall before damaging part of the fifth rib on the left side and lodging beneath the skin surface.
5 The shooting took place shortly before 6.00 am on 6 January 2000 in Darlinghurst Road, Kings Cross.
6 The evidence established that earlier that morning the prisoner and a male companion had been drinking at the Hampton Court Hotel and so too had the deceased. The deceased was one of a group of four or five men described in the evidence as Fijians who were drinking in the same hotel. There was an altercation and the prisoner and his companion were asked to leave the hotel. They did so and were followed by the deceased and his companions.
7 The evidence further established that there was at that time a chicken shop at the corner of Bayswater Road and Darlinghurst Road and two witnesses at the trial were at the shop making a delivery. They saw a fight start at that location. These two witnesses saw only one person described as white-skinned involved in the skirmish and each of these witnesses thought that that person started the fight. However, according to Edward Sorchantte, one of those engaged in the delivery, the other men then caught the initial aggressor and punched him to the ground. He was then kicked and punched before being dragged towards the footpath.
8 There were a number of witnesses who were called to give evidence as to what subsequently occurred. The description of events from these various sources understandably differed. This was explicable not only by reason of differences of recollection but also because these eye-witnesses were not standing in a group together seeing what occurred from precisely the same perspective. From the time that the fighting began, those involved in it moved away from the intersection with Bayswater Road, progressing further along Darlinghurst Road.
9 Little purpose would be served by recording an exhaustive summary of the evidence given by these various eye-witnesses, but I do propose to record fairly shortly an outline of their evidence.
10 I deal firstly with the evidence of those men identified in the evidence as those who had been with the deceased at the Hampton Court Hotel.
11 Lorima Koroitamana was a friend of the deceased. He said that there were two "white guys" involved in what happened. I shall refer to descriptions by skin colours from time to time in my review of the evidence, not because the evidence suggests that what happened was because of any racial dispute, but simply because various witnesses described what they saw people do by reference to the colour of their skin. This witness said that those two men struck all of the members of his group at the chicken shop location. He said that the fight having started then, it progressed on the street and at one stage he saw a white guy holding a gun in his hand, and that man ran away and the deceased followed him, and that was when the deceased "got shot" (T 329).
12 Moses Ekevati was a cousin of the deceased and of another member of the deceased's group, named Pita Ekevati. He too described what occurred as starting at the chicken shop when each of the "white guys" landed blows. He said that happened in the chicken shop and then the men went out on to the footpath and events proceeded from there. He said that the deceased ran towards the man with the gun, heading towards the fountain. He said at the beginning he was running with the deceased in pursuit of the white man and then he saw the white man pulling a gun from his pants. The witness said that he stopped when the gun was pulled out but the deceased continued to chase the other man and caught him in the doorway past the supermarket. He said there was a shot, before which the "white guy" had his back to the wall. After the shooting the "white guy" ran away towards the fountain. He said that before the fatal shot the man with the gun said "I've got a gun", and a shot was then fired into the footpath. The witness thought this was a warning shot, and it was after that that the deceased gave chase and the man with the gun was seen by him to be running backwards. The deceased continued to go after him until the struggle occurred in front of the doorway. This witness first saw the gun when the man holding it drew it from his pants.
13 Pita Ekevati was another cousin of the deceased and he too gave evidence that the two white men, including the one that was later seen by him to be carrying a gun, were the first to strike blows. This witness said he was hit on the back of the head and so too was another Fijian. The assailants ran up the road and the Fijians gave chase, although this witness said that he only walked. He said that he saw the man with the gun pointing it at his cousins. He said that the gun was being held with the arm extended and he heard the man scream out that he had a gun. Then he said that this man started running down the road and he pulled the trigger. This witness said he did not see where the shot went, but that it did not hit anybody. When the shot was fired, the deceased was the only Fijian who did not stop. After the shot was fired the gunman turned and ran and the deceased chased him and caught him. He said they started to wrestle and the deceased pushed the man into an alleyway. He said in cross examination that this was where the fatal shot was fired. After the shooting the gunman ran off.
14 Salah Jawad was a taxi driver who was parked at the taxi rank in Darlinghurst Road when he saw a fight developing in front of him in the middle of the road. He saw three men punching and kicking another man who started to run away. A dark man went towards the man who had run away and pushed him into an alleyway where he heard a shot fired. The witness said he saw the gun in the hand of the man being pushed. At that time it was not facing the pursuer but was raised above the gunman's head. In cross examination he described the chase that preceded the shooting. He said that the man with the gun was on the ground being kicked and punched, that he then got free and ran away and was pursued. He said he was caught by the dark man two or three times and was punched and pushed, and it was his impression that the man with the gun "just wanted to get away from the area" (T 186).
15 Rachel Hampshire had been drinking with friends in a bar and was walking along Darlinghurst Road towards the city when she saw a group of five dark-skinned men proceeding towards her and they seemed to be surrounding someone. She said that the group passed her and she stopped and looked towards them. She saw a man holding a gun in both hands some three or four metres away. He was holding the gun with his arms extended. She subsequently heard the gun go off.
16 Veronica Baxter described seeing a man being pursued by a group of four Islanders and they caught him and beat him up. There was a second man who headed towards the fountain walking quickly. She said that this man turned and was walking backwards with an Islander in pursuit "yelling and screaming". The white man had a gun and showed it to the Islander and told him to "f… off or I'll shoot you". The Islander pursued the white man, and this witness said that the white man tripped over into a doorway and the Islander lunged on top of him and started throwing punches. The witness then heard a bang.
17 Helmet Cerncic observed the confrontation in Darlinghurst Road when he stepped out of a newsagency. He saw two Islanders and a Caucasian involved in this confrontation and then more Islanders arrived. He said that the Caucasian was pursued down the road and was surrounded, whereupon he fell and was kicked. He said the Caucasian got up and started running again and was caught and punched and kicked. He seemed close to a doorway but he did not see the man pushed into the doorway. He then heard two noises which were gunshots.
18 Kevin Brown saw a scuffle when he entered Darlinghurst Road after having arrived at Kings Cross by train. He said there were six men involved in it and it spread on to the road. He saw a Caucasian being pursued by five or six dark people who caught him and beat him up. He saw a second Caucasian not involved in the first scuffle and he saw this man take a pistol from his trousers. He covered it with his hands and stepped into a doorway with the gun covered by overlapping hands. A dark man earlier involved in the scuffle down the road ran towards the man with the gun and then there was the noise of shooting, and the dark man fell.
19 Christopher Allen was a demolition worker who saw the fight on the road and he saw that there were two white men involved in it and some dark men. A white man was pursued by a dark man towards where the witness was. The witness said that the black man rammed the white man into the doorway and the white man there shot him. He said that before the shooting the black man caught the white man who turned around and there were some punches exchanged before the black man had the white man on the ground. The white man got up, the black man grabbed him again and drove him into the doorway where he heard the loud bang and after that the white man got up, tucked the gun into the forward right pocket of his pants and walked away.
20 Dean Palasovski saw the fight develop at the chicken shop corner. He said there were five or six Islanders in it and two white males. He said that when the fight started it split up into two groups, one on one, and the remainder of the Islanders fighting the other white man. He said he saw one white man on the road waving a gun around, facing a black man. They were scuffling, with the white man proceeding backwards and the black man punching. He said the white man was moving away, just pointing the gun, and he heard the white man threaten "I'm going to shoot this". At that point the witness turned away but he then heard the gun go off. In cross examination he said that everything he heard led him to conclude that the first shot was a warning shot.
21 Grant Richardson was a waiter employed at a bar in the area and after finishing work on the morning of the shooting, this witness went with workmates for a drink. He then went out on to Darlinghurst Road where he saw a white man who he identified as the prisoner walking backwards across the road but with a black man walking towards him. Mr Richardson had recognised the prisoner as a regular customer at the bar where he worked. He saw the prisoner was holding a gun by his side. He said that the prisoner walked back, made a stop sign with his left hand and the gun came up in a "slightly brandishing fashion" with the gun held at waist level. He said that the prisoner continued to walk away until he was tackled, that he and his assailant fell to the ground and the gun went off. He only ever heard the one shot.
22 Jason Rosengren had his attention drawn to the fight in Darlinghurst Road. He saw two men fighting, one of Islander description and the other man of European description. He said that as they proceeded on the footpath the European was walking backwards and the Islander was following him. The European had his hands up with his palms extended and the Islander appeared to be becoming more and more upset. The witness observed the European to pull a gun and the Islander became more aggressive, moving more quickly, and then he wrestled the man with the gun into the doorway where the witness thought he heard three shots fired. He said before the shots were fired there was a struggle on the ground with the Islander on top of the other man. After the shooting the gunman walked away and, indeed, the witness gave chase. The circumstances of the chase do not call for review in this brief outline of events.
23 The events giving rise to the offence charged in the second count occurred first in point of time and not all the witnesses described what happened. Moses Ekevati, in the summary which I have already expressed, described seeing the gun pulled out and a shot being fired on to the footpath. Pita Ekevati described hearing the man scream out that he had a gun and thereafter that man pulled the trigger. Pita Ekevati did not see where the shot went but he said it did not hit anybody. Dean Palasovski gave evidence of hearing the gunman say "I'm going to shoot this" before he heard the gun go off, and he spoke of a subsequent gunshot.
24 There was another witness whose statement was read to the jury after arrangements for the witness to be flown from South Africa to give evidence at the trial proved to be unsuccessful. The Court was told that he missed a connecting flight. His statement was then admitted without objection. The name of the witness was Dick Arthur Andrews. He was a taxi driver who was parked on the rank in Darlinghurst Road. His statement reads in part (T 569/570):
"I was sitting in my cab (marked 1) when I noticed a fight coming around the corner from Bayswater road. Then around into Darlinghurst road. There was a white male running with Fijian male chasing after him, about six feet apart. The white male was heading along the footpath then turned and went across the road. The white male has tripped and fallen down onto road (mark 2). The Fijian male has run up to him and started to punch him on the ground with both hands in the face. I also saw the Fijian male kick the white man who was on the ground. The white man was trying to get up off the ground. There was another group that had come around the corner following the two fighting. There were two more Fijians and another white male. They were not fighting but I could tell they were with the two who were fighting. I was watching the fight and I saw a gun thrown from the group to the white male on the ground. The gun landed on the roadway and skidded and stopped just near the feet of the white male. The white male on the ground grabbed hold of the gun, got to his feet and ran off. The white male ran back in front of my cab, onto the footpath and run north on the eastern foot path. The Fijian male has continued to chase him along the footpath. The rest of the group have continued to follow the two fighting but not getting involved or fighting… The Fijian guy caught the white male…and started to punch him again. This was still on the footpath and both males were standing. I saw both persons throwing punches at each other. The white male was only punching with his left hand. He was still holding the gun in his right hand. The white male has then pointed the gun at the Fijian, straight into his face. The gun was very close to the Fijian's face. It was maybe twenty centimetres from his face. The gun was pointed right into the centre of his face. The white male is still trying to punch him with his left hand while he had the gun pointed at the Fijian. The Fijian was still trying to punch the white man. He was also hitting the gun. It looked like he was trying to knock it away. The Fijian was also yelling at the white male: 'Shoot, shoot, if you want to shoot, shoot.' The white male has then fired a shot at the Fijian. I saw the finger of the white man pull the trigger on the gun. The Fijian was still trying to knock the gun aside but he wasn't near the trigger. I heard a loud bang. I saw a flare from the barrel of the gun and some smoke. The shot missed the Fijian. I think it went past him on the Fijian's right side about head level. I did not hear the shot hit anything. After he fired the gun, the white male ran off north along the footpath again. The Fijian has continued to chase the white man and caught him again just north of the hotel…"
25 It was open to the jury to conclude, and it is obvious from the verdicts of the jury that the jury did conclude, that the man who the various witnesses described as having held the gun and as having fired the shots was the prisoner.
26 Whilst there were witnesses whose evidence conveyed that the prisoner had a companion, the evidence did not identify any such person.
27 With the above review of the evidence in mind, I turn to consider each of the two counts.