Evidence of mutual genital touching between very young children (aged 3-7) who are relatives living in the same household is not necessarily evidence of 'sexual activity' or 'sexual experience' within s 293(3) of the Criminal Procedure Act 1986 (NSW), particularly where there is no suggestion the touching derived from or related to any purpose of sexual gratification. The exclusionary rules in s 293(2) and (3) do not apply to the adducing of evidence on a voir dire held for the purpose of determining admissibility under s 293(7) and (8). Evidence of observed behavioural changes in a child complainant (such as genital exploration or reluctance to attend a location) cannot be equated with verbal complaint evidence and requires careful directions as to the inferential reasoning necessary before it can support the Crown case.
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