In non-murder cases in Victoria, where a lesser alternative verdict is realistically open on the evidence, the trial judge is required to leave it to the jury regardless of defence counsel's forensic decision not to request it, subject to two qualifications: (1) where the only issue is identity; and (2) where the alternative is trivial and remote from the real issues. Under s 276 of the Criminal Procedure Act 2009 (Vic), as interpreted in Baini, a 'substantial miscarriage of justice' encompasses departures from process as well as inaccuracy of result, and conviction must be shown to have been inevitable (not merely open) for the Court to conclude there was no substantial miscarriage. Lies relied upon as consciousness of guilt evidence must not involve circular reasoning where the finding that the accused lied depends on the same evidence that the lies are said to corroborate.
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