A guilty plea entered under a shared misapprehension as to an essential ingredient of the offence — here, the age threshold defining 'child' under s 91FA of the Crimes Act 1900 (NSW) (under 16) versus the Commonwealth threshold (under 18) — is not attributable to a genuine consciousness of guilt and must be set aside. Where the primary evidence has been lost following such an error, a verdict of acquittal rather than remittal is appropriate.
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