On an indictment for wilful murder under the Criminal Code (WA), the majority held that s 599D permits conviction as an accessory after the fact to any alternative verdict open on the indictment (including murder and manslaughter), not only the offence as charged. However, where the jury convicted of murder having been given the option of accessory after the fact to wilful murder, the proviso applies because the verdict would necessarily have been the same. A Jones v Dunkel direction against the Crown for failure to call a witness will virtually never be appropriate in a criminal trial, and the rare exception requires a demonstrated breach of the prosecution's duty to call all material witnesses.
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