Before a child witness may give unsworn evidence under s 13 of the Evidence Act 1995 (as amended in 2009), the trial judge must first make a positive determination that the child is not competent to give sworn evidence under s 13(3) — that is, that the child does not have the capacity to understand the obligation to give truthful evidence. Only after that threshold determination may the judge proceed to inform the child of the matters in s 13(5). Failure to make this threshold determination renders the unsworn evidence inadmissible and constitutes a fundamental defect going to the root of the trial, following R v Brooks. The question whether leave under Rule 4 is required to appeal such a defect remains open.
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