A Berkeley man has been found not guilty of helping a mate try to murder Darko Janceski in January 2012, just months before the known Illawarra underworld figure was killed in an unrelated incident.
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Jason Lee Wellins walked free from a Sydney courtroom on Friday after being cleared of three charges stemming from the January 29 incident, in which Mr Janceski was shot in the upper thigh in the driveway of his home.
Prosecutors had alleged Wellins and co-accused, Glen Wilson, made plans to go to Mr Janceski's house to threaten and intimidate him with Wilson's loaded shotgun.
The Crown claimed when the pair arrived at the house, Wellins stayed inside the car while Wilson got out and confronted Mr Janceski in the driveway.
Witnesses reporting hearing Mr Janceski yelling "don't do it, don't do it" just moments before a gunshot rang out.
One witness told the court he looked out of his house to see Mr Janceski rolling around on the ground clutching at his inner thigh.
The witness said he then saw the shooter, who police allege was Wilson, point the gun at Mr Janceski's head for a few seconds before getting back into the car and driving off with Wellins.
Wellins and Wilson were later arrested and charged with discharging a firearm with intent to murder, discharging a firearm with intent to inflict grievous bodily harm, and using unlawful violence.
Despite never being accused of firing the gun, Wellins was charged with the offences under the legal principle of a "joint criminal enterprise" - where two or more people reach an agreement or understanding between them to commit a crime.
Under the law, each person in the criminal enterprise is legally responsible for what other members of the group do in carrying out the crime.
In Wellins' case, prosecutors claimed that he knew Wilson had the gun when he agreed to go to Mr Janceski's house, and knew the gun would be used to frighten him or seriously hurt him.
However, defence lawyers argued during the hearing that Wellins was not in the car at the time of the shooting, attributing DNA found on the front seat of the vehicle to a time when he had been in the car earlier that day.
In dismissing the charges, presiding judge Leonie Flannery said she was satisfied that Wellins had in fact been the passenger in Wilson's car that day, but could not find beyond reasonable doubt that he was there as part of an established agreement with Wilson to murder or seriously harm Mr Janceski.
She said she was not satisfied that Wellins knew Wilson had the gun until it was produced at the scene, nor was there evidence pointing to a joint plan to hurt Mr Janceski.
Wilson's case is still before the court.
