A trial judge must leave an alternative basic offence to the jury where the alternative is reasonably open, viable, and a rational result on the evidence, regardless of whether counsel raise or object to the alternative. This duty applies to aggravated offences under s 5AA of the Criminal Law Consolidation Act 1935 (SA) where the evidence raises a real question about the aggravating circumstance. The question whether an offensive weapon was used or threatened to be used is a factual matter for the jury, and where the evidence supports a reasonable possibility that the defendant committed the basic offence without the aggravating element, the alternative must be left.
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