The starting point for any application of s 294CB(4)(a)(i) is a clear identification of the evidence that purportedly discloses or implies the complainant’s “sexual experience” or “sexual activity” (or lack thereof) and which is said to fall within the exception. There is an important difference between whether the evidence is relied upon as evidence of sexual experience or as evidence of sexual activity: Cook (a pseudonym) v The King [2024] HCA 26 at [38]. Sexual experience is a characterisation that can persist separately from a particular sexual act and involves a continuing “experience” or lack of experience. Common examples are characterisations of “virgin”, “sex worker”, or the continuing experience of a survivor of sexual assault: Cook (a pseudonym) v The King at [39]; GEH v R [2012] NSWCCA 150 at [63]–[65].

The preposition, “of”, requires a link between the characterisation of the sexual experience (or lack thereof) and the evidence upon which the person relies to establish that sexual experience (or lack thereof). Provided the characterisation continues at the time of the alleged sexual offence, the evidence will also usually be evidence of sexual experience “at or about the time of the commission of the alleged prescribed sexual offence”: Cook (a pseudonym) v The King at [40].

In Elsworth v R [2022] NSWCCA 276 at [119] it was held that the terms “sexual experience” and “sexual activity” did not encompass a complainant’s memory of some past experience or activity simply because the memory is held at or about the time of the charged act or is said to be connected to the charged act because past experience informed present conduct. See also GEH v R at [63]–[65] for the distinction between the two terms “experience” and “activity” and Cook (a pseudonym) v The King at [38].

Connected events are not sufficient. Section 294CB(4)(a)(ii) contains an additional requirement that the events must “form part of” the connected set of circumstances “in which” the alleged sexual offence was committed. The effect of this additional requirement in s 294CB(4)(a)(ii) is to narrow the operation of para (a) to near-contemporaneous events that were sufficiently integrated with the alleged offending so that it can be said that the events are part of the circumstances of the alleged occurrence of the sexual offence itself: Cook (a pseudonym) v The King at [44]; Behi v R [2024] NSWCCA 89 at [281]; Jackmain (a pseudonym) v R [2020] NSWCCA 150 at [189]–[195].

In Elsworth v R at [118] the court held evidence of a sexual experience from five years prior was not considered to be part of the complainant’s continuing sexual experience at the time of the charged act. See also R v Morgan (1993) 30 NSWLR 543 (decided under s 409B, the then predecessor provision); R v Edwards [2015] NSWCCA 24 at [25]–[30]; GEH v R at [11]–[13]; [35]; and Chia v R [2021] NSWCCA 51 at [59]–[60] (Leeming JA, Walton J agreeing), but cf Adamson J at [88]–[91].

False complaint evidence may have the capacity to fall within the exceptions in s 294CB(4): Adams v R [2018] NSWCCA 303 at [163]–[177]. However, where there is false complaint evidence years remote from the alleged offending, the temporal requirement in s 294CB(4)(a) cannot be satisfied: Jackmain v R at [25]; [190]; [235]; [238]; [240].

In Behi v R, the applicant was convicted of sexual offences against his chiropractic patient during treatment. The applicant sought to impugn the complainant’s credibility on the basis her employment as a sex worker at a brothel meant she knew how to object if she perceived inappropriate behaviour, but she failed to do so as a patient. The Court held the trial judge correctly excluded evidence of this employment as it was not part of a connected set of circumstances in which the offending occurred and not sufficiently integrated with the offending: [279]–[286].

The evidence that relates to a relationship cannot be identified without first identifying the nature and scope of the relationship. The relationship referred to in the subsection encompasses a wide range of possibilities. It could be one of abuse, or one of trust and confidence, or mutual emotional connection between the complainant and an accused. It is a question of degree, dependent upon the facts of a particular case, whether interactions between two persons are sufficient for it to be said that they have formed a relationship, but it must be more than a casual acquaintance: Cook (a pseudonym) v The King at [49]–[51].

The term “disease or injury” in s 294CB(4)(c) has been held to encompass a psychological condition of diagnosed depression and suicidal ideation: JAD v R [2012] NSWCCA 73 at [83]. However, although recognised psychological conditions may fall within the definition, general emotions of fear and anxiety — without more — will be not be sufficient for the purposes of the provision: GP v R [2016] NSWCCA 150 at [34], [44].

The phrase “sexual intercourse so alleged” in s 294CB(4)(c)(i) includes only the physical act and excludes issues of consent: Taleb v R [2015] NSWCCA 105 at [93].

In WS v R [2022] NSWCCA 77, a miscarriage of justice occurred because evidence the complainant was raped by another person at a similar time to the relevant offences was excluded, but evidence she had undergone a pregnancy test around that time was admitted. In the circumstances of that case, the court concluded both limbs of s 294CB(4)(c) were satisfied: WS v R at [78]–[80] (Macfarlan JA; Walton J agreeing); cf Rothman J at [108]–[111].

In Chia v R [2021] NSWCCA 51, Leeming JA (Walton J agreeing; Adamson J dissenting) observed, at [64], that when weighing the probative value of the evidence, “the distress, humiliation or embarrassment” to the complainant that is relevant is that which is over and above that which will inevitably occur by giving evidence even without reference to the matters caught by s 294CB. WS v R is an example of a case where the probative value of the evidence was found to outweigh the distress, humiliation and embarrassment the complainant might suffer: at [62]–[66], [84].