In historical child sexual abuse prosecutions under the pre-1995 ACT legislation, where the offence requires proof that the complainant was under 10, equivocal evidence as to whether the complainant had turned 10 at the time of the offence is insufficient to sustain a conviction, and the alternative verdict provision in s 92S(5) does not apply to conduct predating the 1995 amendments. The court declined to resolve the conflict between NSW and Victorian authority on whether a judge assessing the probative value of tendency evidence may consider the possibility of concoction. Where a jury's error on one set of counts relates to a discrete issue (here, the complainant's age) that was not contentious on other counts, the remaining convictions are not rendered unsafe.
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