Where a complainant has a cognitive impairment, was of young age at the time of alleged offending, and is recounting events after a very long delay, the combination of those three factors renders the evidence 'of a kind that may be unreliable' under s 165 of the Evidence Act 2008, and a trial judge is required to give an unreliable witness warning. A trial judge's failure to determine whether the occurrence of the asserted fact was 'fresh in the memory' of the maker at the time of each previous representation under s 66 is a fundamental error that will result in the evidence being inadmissible.
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