When a trial judge asks a child witness questions concerning the matters in s 9B(2) of the Evidence Act 1977 (Qld), the section is engaged and the judge must form and state an opinion as to the witness's competency to give sworn evidence. Failure to do so, resulting in the witness giving unsworn evidence without proper assessment, constitutes a fundamental irregularity to which the proviso in s 668E(1) of the Criminal Code cannot apply, necessitating a retrial. The opinion formed must be stated and recorded.
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