Where a trial judge has already left an alternative verdict that adequately addresses the risk of overconviction on a charge of rape (such as indecent dealing), it is not necessary to also leave the alternative of attempted rape, particularly where the evidence does not raise a real possibility that the accused intended penetration but failed to achieve it. The test from James v The Queen requires consideration of whether the alternative is necessary to secure a fair trial in the circumstances of the particular case.
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