Failure to give the full directions required by s 13(5) of the Evidence Act 1995 (NSW) — including telling the witness that he or she should feel no pressure to agree with statements believed to be untrue — renders the witness incompetent to give unsworn evidence and vitiates the trial. The directions must be given by the court, not by counsel, and compliance by counsel during voir dire questioning cannot cure a deficiency in the judge's directions. Under the amended s 13, there is no residual judicial discretion to refuse unsworn evidence once the court is satisfied the witness has capacity under s 13(1) and the s 13(5) directions have been given.
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