Before permitting a child witness to give unsworn evidence, the trial judge must positively determine that the child does not meet the conditions for sworn evidence in s 9B(2) of the Evidence Act 1977 (Qld). The presumption of competence to give sworn evidence in s 9(1)(b) cannot be rebutted by a failure to consider the s 9B(2) matters. Failure to comply with s 9B is a fundamental error that cannot be cured by the proviso.
The full text is available to signed-in members, including the 1 later case that cites this judgment.
1 of the 1 citing case carries a classified treatment. How each court treated it is available to signed-in members.