In a judge-alone trial, s 133(3) of the Criminal Procedure Act 1986 (NSW) is best read as requiring the judge to take into account the subject matter of any required warning — that is, the potential unreliability of the evidence and the particular reasons why it may be unreliable — rather than requiring the judge to formally give herself the warning she would give to a jury. Where the judge's reasoning reveals she undertook the assessment that would have been required of a jury, there is no miscarriage of justice. The scope of s 165(6) and s 165A regarding when a warning about a child's evidence falls within the prohibition on age-based warnings remains uncertain. On sentencing, strong language of denunciation does not necessarily constitute error if the quantum of punishment properly reflects the offender's reduced moral culpability.
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