A finding that a child witness is not competent to give evidence under s 9A of the Evidence Act 1977 (Qld) precludes admission of the child's earlier out-of-court statements under s 93A (which requires the maker to be 'available to give evidence') but does not preclude admission under s 93B (which requires the maker to be 'unavailable' because dead or mentally or physically incapable of giving evidence). Section 93B applies only in prescribed criminal proceedings (offences in chapters 28-32 of the Criminal Code). A finding of incompetence may nonetheless be relevant to the exercise of discretion to exclude evidence under s 98 or s 130 or at common law.
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