The capacity to understand an 'obligation to give truthful evidence' under s 13(3) of the Evidence Act 2008 (Vic) requires more than understanding the importance of truth-telling — it requires understanding a binding duty, including awareness of consequences for breach. However, the statutory presumption of competence under s 13(6) means the correct question is whether incompetence has been proved on the balance of probabilities, not whether competence has been affirmatively established. A child's responses at the conclusion of VARE interviews demonstrating understanding of consequences for lying may be sufficient to support a finding of competence, even where responses to abstract questions at the commencement of those interviews were confused. On appeal, the witness's subsequent conduct under oath may inform the competence assessment.
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