A trial judge's duty to leave a lesser alternative verdict to the jury under s 575 of the Criminal Code (Qld) is not displaced by the tactical agreement of both counsel to an 'all or nothing' approach. Where the evidence is equivocal on a circumstance of aggravation (here, intent to do grievous bodily harm), the alternative verdict must be left to the jury regardless of counsel's agreement. Where the failure to leave the alternative is the only error, the Court of Appeal may substitute a verdict of guilty of the lesser offence under s 668F(2) rather than ordering a retrial.
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