Out-of-court statements by a co-offender to the accused during the commission of an offence are admissible as non-hearsay evidence of the accused's knowledge where tendered to prove the accused's state of mind rather than the truth of the facts asserted. Even if characterised as hearsay, such statements may be admissible under s 60 of the Evidence Act 1995 and as part of the res gestae. The Evidence Act 1995 does not constitute a code that excludes evidence admissible at common law as non-hearsay, by virtue of s 9 of the Act.
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