Common assault cannot be left to a jury as an alternative verdict to intentionally causing injury under s 239 of the Criminal Procedure Act 2009 (Vic), because injury may be caused by means other than assault and the charge fails the 'red pencil test'. If the prosecution wishes to secure a conviction for common assault, it must be charged on the indictment. The decision also reinforces that a trial judge's comments on facts in a criminal jury trial must be exercised with judicial circumspection following McKell, and that comments inviting consciousness of guilt reasoning where the prosecution has not relied on incriminating conduct may occasion a substantial miscarriage of justice even where the jury is given a standard direction that they are not bound by the judge's comments.
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