A trial judge in a murder trial must leave manslaughter as an alternative verdict to the jury wherever there is a viable case of manslaughter on the evidence, even if neither party raises it and even if both parties object. The earlier NSWCCA decisions in Park and Elfar, and the Victorian decision in Evans & Lewis, which held otherwise, should no longer be followed. When applying the proviso to such an error, it is impermissible to reason that the jury's verdict of guilty of murder at the first trial excludes consideration of manslaughter at a new trial. Directions on post-offence conduct relied upon as consciousness of guilt ordinarily require the intermediate reasoning steps identified in Edwards v The Queen. Alibi directions must make clear that the Crown must remove or eliminate the reasonable possibility that the accused was not at the scene.
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