A trial judge must make a formal determination under s 9(1) of the Evidence Act 1929 (SA) that a witness does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence before permitting unsworn evidence under s 9(2); the prosecutor's concession that the witness will not be sworn does not discharge this obligation. The s 9(4)(a) explanation to the jury must convey the specific statutory reason — that the witness lacked sufficient understanding of the obligation to be truthful in sworn evidence — and not merely state that the witness is 'not required' to take the oath. A warning under s 9(4)(b) must go beyond merely reading the statutory words and must not be whittled down by comments suggesting the warning is a mere formality.
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