A trial judge is not obliged to leave a lesser alternative verdict under s 24(3) of the Drug Misuse and Trafficking Act 1985 (NSW) to the jury where the jury's verdict on the greater offence necessarily entails rejection of the factual basis for the lesser offence. The Crown is entitled to present its case on an 'all or nothing' basis as to quantity. The NSWCCA has expressed reservations about the Queensland approach in Rehavi requiring all alternative lesser offences to be left to the jury, and the question whether the Pemble principle extends beyond murder/manslaughter to require this in all cases was left open.
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