Published by Geoff Harrison | 22 December 2024
At common law, an accused can accept or adopt the truth of an accusatory statement made in his or her presence, by words or conduct, where the accusatory statement is made by a person who is not an “investigatory official”: cf s 89 Evidence Act 1995.
The Criminal Trials Court Bench Book notes at 2-000:
As to the admissibility of such evidence at common law: see R v Christie [1914] AC 545 at 554; applied in Woon v The Queen (1964) 109 CLR 529 and R v Freeman (unrep, 18/12/86, NSWCCA) at 4–5 where it was noted:
It is of course well established that, where an accusatory statement is made in the presence of an accused person, it is not evidence against him of the facts stated except insofar as he accepts it. Acceptance may be by way of word, conduct, action or demeanour. Whether there is acceptance is a matter for the jury. A mere denial by an accused does not render the statement inadmissible but its evidential value when he denies it is limited and the judge may well think it proper to exclude such evidence. Where failure to deny is relied on, it is necessary to ensure that, before any such evidence is admitted, the circumstances are such as to leave it fairly open to conclude that silence is such as to convey a tacit admission of the truth of what is being asserted. This will, of course require consideration of whether the circumstances were such that some denial or explanation might reasonably be expected.
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