Where the Crown prosecutes murder solely on the basis of joint criminal enterprise and the evidence leaves a reasonable doubt as to the mental element of the enterprise (agreement to inflict or contemplation of intentional infliction of grievous bodily harm), the murder verdict will be unreasonable even where the evidence supports manslaughter. A verdict of manslaughter cannot be substituted under s 7(2) of the Criminal Appeal Act 1912 (NSW) unless the jury must have been satisfied of all elements of manslaughter, which may not be the case where the jury was not required to analyse the assault in the manner required for manslaughter. Consciousness of guilt directions are not required where the Crown relies on post-offence conduct solely to rebut a claim of self-defence rather than to establish guilt of a particular offence.
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