Accusatory statements in the presence of the accused

[2-000] Introduction

This section contains a suggested direction to be given where the Crown relies upon the adoption, by words or conduct, of an accused, of the truth of an accusatory statement made in his or her presence by a person who is not an “investigatory official”: cf s 89 Evidence Act 1995. 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 . [Emphasis added.]

As to silence amounting to an admission: see generally R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455 at [260]ff.

Evidence of the accused’s response to an accusatory statement is receivable as an admission subject to Pt 3.4 Evidence Act including whether the reception of the admission would be unfair within the meaning of s 90, as to which: see Em v The Queen (2007) 232 CLR 67 at [109], [112], [179], [196]. Section 90 permits the exclusion of evidence of admissions to prove a fact if the prosecution seeks to adduce it and it would be unfair to a defendant to use the evidence. In DPP (NSW) v Sullivan [2022] NSWCCA 183, the accused’s admissions in a police interview were found to be unreliable as the accused did not have an actual recollection of events and was instead speculating or hypothesising about them. It was unfair to permit the prosecution to use these admissions for their truth: [53]–[54].

As an admission or as hearsay evidence, in such a case, a warning may be required under s 165 of the Act.

It is desirable to give the jury a direction or explanation, along the lines suggested at [2-010], at the time when the evidence is given, as well as in the summing-up.

As to admissions generally: see Admissions to police at [2-100].

[2-010] Suggested direction — accusatory statements in the presence of the accused

You have heard evidence from [name of witness] that [he/she] said to [the accused], [accusatory statement]. The accused is said to have made no reply to that statement [the accused is alleged to have replied to that statement with the words, [quote evidence]].

What one person says to another is not normally relevant evidence. Here the evidence is being led before you because the Crown asserts that the lack of response [response] by the accused to the statement made to [him/her] or in [his/her] presence is an admission by the accused that what was contained in the statement was true. It would be different had the accused denied the allegation made or had given some innocent explanation to rebut the allegation. The evidence is only relevant if you find that the accused’s lack of response [response] when confronted with the allegation amounted to an admission that it was true.

Let us take an example away from the facts of the present case. Assume that a man has been the driver of a motor vehicle which has struck a child, causing serious injuries. Assume that the mother of the injured child immediately after the accident approaches the driver and says to his face, “This is your fault you are always driving too fast around this street ignoring the children playing on the road”. If the driver says nothing to that allegation, a jury could find that the failure to respond amounted to a silent acceptance of the truth of what was said because the driver had nothing to say in defence to the allegation made to him.

In that case, the statement made by the mother would not, of itself, be relied upon by the Crown as evidence that what she asserted was true. Before any part of that statement made in the presence of the driver could be used as evidence against him, a jury would have to be satisfied that the statement was made; that the driver heard it; and that he had the opportunity to respond to it but did not respond because he accepted the truth of what was said. There may be an alternative explanation for the driver not responding. It may be that he did not hear what the mother said, or that he heard it but was too upset to respond. Or it could be the case that he treated the allegation of the mother as unworthy of a response.

In the present case, you need to first decide whether you accept that [name of witness] made the statement to the accused; whether the accused heard it; and whether [he/she] had an opportunity to respond. You also need to decide whether you accept that the accused did not respond [or, did respond by saying [quote evidence]]. If you do accept the evidence about each of those things, you then need to consider whether you accept that by [his/her] lack of response [or response] the accused had acknowledged that what [name of witness] had said was, either in whole or in part, true.

It is really a matter for you to apply your common sense and your experience of life and what you might expect a person in the position of the accused to do or say when faced with such an allegation, although you should also consider that people do not always act predictably in certain situations. Here you are considering the conduct of the accused, and not the conduct of some hypothetical person in [his/her] position. You must also consider whether there is an alternative explanation for the accused’s lack of response [or response], other than that [he/she] accepted the truth of what [name of witness] said. In this case it has been put that [refer to defence response].

If you accept this alternative explanation then this part of the evidence would not advance the Crown case at all and may be put completely to one side. However, if after considering all of the circumstances I have mentioned, you are satisfied that the accused did acknowledge, either in whole or in part, the truth of what [name of witness] said, then this is something you can take into account along with all of the other evidence in the case in your assessment of whether the Crown has proved the guilt of the accused beyond reasonable doubt.