On a trial for a Commonwealth offence in a State court exercising federal jurisdiction, s 239 of the Criminal Procedure Act 2009 (Vic) does not permit a State offence to be left to the jury as an alternative verdict. Section 79(1) of the Judiciary Act 1903 (Cth) picks up s 239 as a procedural law but cannot pick up the substantive State offences themselves. The Salisbury test — requiring that the elements of the lesser offence be necessarily included in the elements of the charged offence — continues to govern the availability of alternative verdicts in Victoria, and the broader approach in Wilson [1984] AC 242 does not represent the law in this State.
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