When assessing the probative value of evidence of a complainant's prior sexual experience under s 105(4) (now s 293) of the Criminal Procedure Act 1986 (NSW), the trial judge must assess probative value on the assumption that the evidence will be accepted by the jury, and must not take into account the judge's own assessment of the credibility of the witness. Section 105(6)(a) can be satisfied where an implication of lack of sexual experience is objectively conveyed by the complainant's evidence, regardless of the Crown's subjective intention. The question whether probative value under the Evidence Act 1995 (NSW) requires the same assumption remains unsettled, with Hulme J expressing a contrary view.
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