Under s 13 of the Evidence Act 1995 (NSW), neither the defence nor the prosecution bears an onus of proving lack of competence; rather, the court must satisfy itself on the balance of probabilities whether the presumption of competence has been displaced. The question of competence is determined by the court informing itself as it thinks fit, and must be resolved by reference to the Evidence Act provisions rather than the common law. The Court left open but tentatively favoured the view that competence need only be assessed at the time the witness is called to give evidence, not at the time a prior recorded interview was given.
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