Before a child witness gives unsworn evidence in NSW, the trial judge must make a positive finding under s 13(1) of the Evidence Act that the witness is incapable of understanding the obligation to give truthful evidence. A mere assumption based on the child's age, without relevant inquiry, is insufficient. Evidence given without oath, affirmation, or compliance with s 13 is not admissible evidence, and the resulting trial is not conducted according to law. The deficiency is so fundamental that the proviso to s 6 of the Criminal Appeal Act cannot cure it. Counsel's silence at trial does not constitute consent or waiver of these requirements.
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