Where the Crown relies on two or more discrete voluntary acts as constituting the actus reus of murder or manslaughter, the trial judge must direct the jury that they must be unanimous as to which act or acts they find proved. Failure to give such a direction is a fundamental error going to the function of the jury, to which the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) will not be applied even if the appellate court is satisfied of the appellant's guilt. The distinction between alternative factual bases of liability (requiring unanimity direction) and alternative legal formulations of liability based on the same facts (not requiring unanimity direction) is confirmed.
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