A jury may rationally convict under s 35 of the Crimes Act 1900 (malicious infliction of grievous bodily harm) while acquitting under s 33 (with intent), because 'maliciously' under s 5 encompasses states of mind falling short of specific intent, including recklessness, wantonness, or indifference to human suffering. Parity principles do not apply where the co-offender's conviction has been set aside on appeal. When granting leave under s 38 of the Evidence Act 1995, a trial judge must consider all matters in s 192(2), but failure to do so will not result in a miscarriage of justice where the impugned evidence did not go to the charges on which the appellant was convicted.
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