A Court of Appeal has power to reinstate an abandoned ground of appeal prior to judgment, but only where the appellant demonstrates the ground would have been upheld — it is insufficient merely to assert counsel lacked instructions to abandon it. Where alternative pathways to guilt under ss 7(a), 7(c) and 8 of the Criminal Code (WA) substantially overlap on their factual bases, no unanimity direction as to pathway is required. The potential for prejudice in joint trials from co-accused out-of-court statements can ordinarily be guarded against by appropriate judicial directions.
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