Section 293(4)(c) of the Criminal Procedure Act 1986 (NSW) is not engaged where the accused concedes the physical act of sexual intercourse but disputes consent; the phrase 'sexual intercourse so alleged' refers to the physical act as defined in s 61H(1) of the Crimes Act 1900 (NSW), not to the offence including its consent element. Material served by the prosecution in discharge of disclosure obligations but expressly not relied upon does not constitute disclosure 'in the case for the prosecution' for the purposes of s 293(6). Where an accused seeks to rely on a specific exception to s 293 on appeal that was not raised (and was expressly disclaimed) at trial, Rule 4 applies and the accused must demonstrate a miscarriage of justice.
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