An indictment for an offence under s.61J(1) Crimes Act 1900 that incompletely states the circumstances of aggravation under s.61J(2)(b) by omitting 'by means of an offensive weapon or instrument' is an imperfect formulation of a known offence, not a nullity, and does not deprive the court of jurisdiction. However, the failure to direct the jury on the omitted element constitutes a misdirection requiring the convictions to be quashed, and the proviso cannot be applied in such circumstances. Where the jury's verdicts demonstrate affirmative satisfaction of the elements of the lesser included offence under s.61I, substitute verdicts may be entered under s.7(2) Criminal Appeal Act 1912.
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