Where the Crown case at a murder trial includes extended joint criminal enterprise, the trial judge must leave manslaughter by unlawful and dangerous act as an alternative verdict if it is viable on the evidence that the accused foresaw the co-offender might assault the deceased without intending grievous bodily harm — regardless of whether counsel raises the issue or objects to it being left. Section 84 of the Evidence Act 1995 (NSW) applies to admissions influenced by violence from any person, not only investigating officials, but the issue must be raised at trial under s 84(2) and failure to object may preclude reliance on appeal.
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