Where an accused is charged with murder and manslaughter is available as an alternative verdict, the trial judge must direct the jury that evidence of lies may be used as consciousness of guilt of murder only if the jury is first satisfied the lies were not told out of consciousness of guilt of manslaughter. The preferable course is for the trial judge to ascertain from the prosecution precisely which lies or conduct are said to evidence guilt of murder rather than merely manslaughter, before directing the jury. The proviso will not apply where the evidence on intent, though strong, is not overwhelming and the misdirection relates to the very evidence bearing on the distinction between murder and manslaughter.
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