The power of the South Australian Court of Criminal Appeal under s 354(2) of the Criminal Law Consolidation Act 1935 to substitute a conviction for a lesser offence applies to appeals from trials by judge alone, notwithstanding that the provision refers only to 'jury'. The word 'jury' in s 354(2) is ambulatory and refers to the trier of fact by virtue of s 7(4) of the Juries Act 1927. Where an offence takes materially different forms during a particularised period due to legislative amendments and it is not possible to identify which form was committed, the conviction cannot be maintained.
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