Before receiving unsworn evidence from a child witness under s 13 of the Evidence Act 2011 (ACT), the presiding judge must strictly follow the sequential statutory process: first positively finding that the witness is incompetent to give sworn evidence under s 13(3), before proceeding to consider unsworn evidence under s 13(4) and (5). Where a key prosecution witness gives unsworn evidence, the trial judge must direct the jury about the difference between sworn and unsworn evidence and the need to take that difference into account when assessing reliability. The bare fact that allegations of child sexual abuse are made in the context of a custody dispute does not engage s 165(1). Whether unsworn evidence itself falls within s 165(1) as 'evidence of a kind that may be unreliable' was left open.
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