Evidence of a complainant's prior sexual activity with a third party approximately 34 hours before an alleged sexual assault lacks probative value on the issue of vaginal tenderness where medical evidence is that it would be 'extremely unlikely' to have caused the tenderness, and the tailpiece to s 105(4) of the Criminal Procedure Act 1986 (NSW) is not satisfied in such circumstances. The Court left open the correct construction of s 105(4)(c)(i) — whether 'concede the sexual intercourse so alleged' permits a distinction between intercourse per se and non-consensual intercourse — but expressed doubt about the appellant's broad construction.
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