Non-compliance with s 23(1D) of the Evidence Act 1958 (Vic) regarding directions to child witnesses is a failure to comply with a condition of admissibility, not competence, and accordingly the proviso may be applied where the non-compliance did not affect the verdict. A trial judge who fails to adequately respond to a jury question equating plausibility with proof beyond reasonable doubt commits a fundamental error to which the proviso cannot be applied.
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