Murder conviction quashed in crossfire shooting appeal  

Gnango, R v [2010] EWCA Crim 1691; [2010] WLR (D) 201 (26 July 2010)

> judgment

On 14th December 2009, 5 Court of Appeal judges heard an appeal on behalf of Armel Gnango against his conviction for murder in May 2008. The judgement, to which all 5 contributed, was handed down by Thomas LJ on 15th July 2010.

At the appellant’s trial before Cooke J and a jury at the Central Criminal Court in 2008, he had been convicted of the murder of Magda Pniewska, a Polish nurse who had received a fatal gunshot wound whilst walking home from work through a residential housing estate in South East London. The appellant was found by the jury to have engaged in a ‘shoot-out’ with another man (known as “bandana man” because of his attempted disguise). The Appellant was convicted of the attempted murder of Bandana Man and this conviction was not appealed. The two shooters had exchanged gunfire across a large car park through which the victim was walking at the time. She was killed by a single shot, accepted by the prosecution to have been fired from the gun of “Bandana man” whilst he was trying to shoot the appellant. Bandana Man was clearly guilty of her murder according to the established principles of transferred malice. Both Bandana Man and the appellant were also guilty of attempting to murder the other (Crime A).

The trial judge had rejected submissions that the appellant could not be guilty of Ms. Pniewska’s murder. He had ruled that the appellant’s act of firing rendered him guilty of the offence of affray (Crime B) albeit not indicted. The fact that he committed Crime B whilst also harbouring an intention to kill meant that the appellant could be fixed with liability for the death, as participation in Crime B was sufficient to constitute a joint enterprise between the two shooters fixing both with liability for the foreseen consequences of Crime A.

The Court of Appeal disagreed. Liability cannot exist without a joint enterprise to commit crime A (i.e. the attempted murder of the other). The appellant could not be party to a joint enterprise to attempt to kill himself and could not, therefore, be held liable for the foreseen act of bandana man.

Nina Grahame of GCN, led by Sallie Bennett-Jenkins QC, appeared for the appellant, originally instructed by Mackesys Solicitors , London.

Quick links

> 13/8/10 - Joint Enterprise - Foresight of Risk of Harm to Another Insufficient for Murder ( Mark George QC of GCN was interviewed about the questions this case raises for an article published on LexisNexis Current Awareness)