In certain circumstances in non-murder cases, a trial judge may be required to leave an alternative lesser charge to the jury where the course of the trial is such that it would be unfair to one or both parties not to do so. The withdrawal of an alternative count that was included on the presentment and explained to the jury, combined with an erroneous explanation that the principal charge is 'all or nothing', may constitute a substantial miscarriage of justice by creating a real risk that the jury misconceives its task on the intent element of the more serious charge.
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