A witness who lacks memory of events but retains the capacity to understand questions and communicate answers is competent under s 13 of the Evidence Act 1995 and therefore 'available' to give evidence, precluding reliance on s 65 for admission of that witness's prior hearsay statements. Sections 65(2)(b) and (c) require positive findings as to the existence of the specified circumstances, not merely the absence of contrary evidence. The s 165(2) warning requirements are peremptory and must expressly warn the jury that hearsay evidence 'may be unreliable' and of the need for caution in 'determining whether to accept the evidence and the weight to be given to it'; failure to do so in respect of critical evidence will constitute a miscarriage of justice.
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