Vic man acquitted of shooting on appeal

A man jailed over a fatal shoot-out at a Melbourne panelbeaters has been acquitted on appeal.

Khaled Moustafa, 23, of Coburg, and Ali Kassab, 28, of Jacana, were jailed for eight years and six months in July last year, after a jury convicted them of the defensive homicide of Omar Taha, who was shot dead at his Brunswick shop in August 2011.

The pair, acquitted by a jury over the shooting death of another man at the shop, received a five-and-a-half year minimum.

But the Victorian Court of Appeal has quashed Moustafa's conviction and ordered he be acquitted, after finding the jury's verdict was unsafe and unsatisfactory.

Their trial heard that Kassab and Mr Taha had been feuding over money and perceived debts before Moustafa and Kassab arrived at the panelbeaters to confront their victim.

Their trial heard that both Kassab and Mr Taha grabbed guns and shot each other during a struggle.

The Court of Appeal said Moustafa was convicted on the basis he aided and abetted Kassab.

But in their joint decision, the three appeal judges, Justices Robert Redlich, Mark Weinberg and Phillip Priest, said it was impossible to aid and abet someone in a case of defensive homicide.

"As the cases show, there are some substantive offences which, by their nature, are inherently incapable of commission by way of complicity," they said.

"Defensive homicide is such an offence."

The court said defensive homicide was established when a person has killed another in the wrong belief self defence was justified.

But the court said that if Moustafa was to be found to have aided and abetted, he would have to know what Kassab's state of mind was at the time.

The judges said that even if that was possible, a guilty verdict on defensive homicide was not supported by the evidence.

Kassab's appeal against his conviction was dismissed.