Baker v The Queen [2012] HCA 27

HIGH COURT OF AUSTRALIA

FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

KHALID BAKER APPELLANT

AND

THE QUEEN RESPONDENT

Baker v The Queen [2012] HCA 27 15 August 2012 M154/2011

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

Representation

M J Croucher SC with L C Carter for the appellant (instructed by Doogue & O'Brien)

G J C Silbert SC with B L Sonnet for the respondent (instructed by Solicitor for Public Prosecutions (Vic))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Baker v The Queen

Criminal law – Evidence – Common law – Hearsay – Admissions – Appellant and co‑accused jointly tried for murder – Appellant convicted; co-accused acquitted – Co‑accused made certain admissions in police interview and to witnesses ("out-of-court confessional statements") – Consideration of Bannon v The Queen (1995) 185 CLR 1 – Whether out-of-court confessional statements were admissible in exculpation of appellant as exception to hearsay rule.

Words and phrases – "admissions", "against penal interest", "hearsay rule", "out‑of-court confessional statements".

FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ. On 26 March 2008, the appellant and a juvenile, LM, were arraigned in the Supreme Court of Victoria (Whelan J) on a presentment charging them jointly with the murder of a young man named Albert Snowball. On Sunday 27 November 2005, the deceased was at a party on the first floor of a converted warehouse in Brunswick. At around 3am, an altercation took place on the landing of the stairwell just outside the party. In the course of the altercation, the deceased crashed through a window and fell 5.4 metres to the ground. He died two days later as the result of the injuries he sustained in the fall. It was the Crown case that at the time of his fall the deceased was being attacked by the appellant and LM. The precise circumstances of the fall were not known. A push or punch might have projected him through the window, or the window may have shattered as he backed away from the fury of the attack. On either view, the act or acts of the appellant and LM in attacking the deceased were capable of being the legal cause of his death. It was not alleged that the appellant or LM intended that the deceased should go through the window. On the Crown case, each was liable for his murder because they were acting in concert with the intention of inflicting really serious injury or because one was aiding and abetting the other knowing the other was assaulting the deceased with that intention. A number of witnesses described the events on the landing leading up to the deceased's fall. There were two inconsistent versions. On the first version, the appellant was the principal assailant. On the second version, the appellant was restrained throughout the fight by a bystander and LM was the sole assailant. The appellant made no admissions as to any involvement in the incident. Neither he nor LM gave or called evidence at the trial. LM participated in an interview with the police in which he made admissions which included that he had pushed the deceased. LM also made statements to witnesses in the immediate aftermath of the incident which were capable of being viewed as an admission of responsibility for the deceased's fall. The course of the trial and the procedural history At the date of the trial, the common law governed the admissibility of LM's statements in the appellant's case. Subject to recognised exceptions, the rule against hearsay precludes the admission of out-of-court statements as evidence of the fact asserted in the statement. In Bannon v The Queen, it was acknowledged that the common law of Australia has not to date recognised an exception for the out-of-court confessional statements of a co-accused or a third party from the operation of the rule. At the conclusion of the evidence, the trial judge raised with counsel the content of the directions to be given to the jury in the trial of the appellant with respect to LM's statements. His Honour observed that the circumstances of the joint trial were "very closely analogous" to those considered in Bannon. Counsel for the appellant submitted that there was a clear distinction between the two cases and that fairness required that the jury be permitted to take into account LM's admissions in considering whether the Crown had established his client's guilt. Whelan J ruled that LM's out-of-court statements were not admissible in the appellant's trial, observing that "there is at present no exception to the hearsay rule which would render [LM's] admissions admissible in [the appellant's] trial." Notwithstanding the ruling, and it would seem without objection, the appellant's counsel told the jury that he was precluded from addressing them on LM's admission to the police that "I pushed him". Whelan J directed the jury in conventional terms that: "The evidence concerning admissions by [LM] is only evidence in his case, it is not evidence in [the appellant's] case. So when you separately consider [the appellant's] case, you ignore the admissions allegedly made by [LM], they are not evidence in [the appellant's] case." The jury returned verdicts acquitting LM outright and convicting the appellant of the murder of the deceased. The appellant applied for leave to appeal against his conviction to the Court of Appeal of the Supreme Court of Victoria (Maxwell P, Buchanan and Bongiorno JJA). The grounds of appeal included a contention that LM's out-of-court statements had been wrongly excluded. On the hearing of the application in the Court of Appeal, that ground was not pressed. The application was argued on the sole ground that the verdict was unreasonable and could not be supported having regard to the evidence. The Court of Appeal considered there was no substance to this ground and the application for leave to appeal was refused. The appellant applied for special leave to appeal on the ground not pressed in the Court of Appeal: that LM's out-of-court statements had been wrongly excluded. The appellant submitted that his failure to preserve the point below should not preclude the grant of special leave in circumstances in which the Court of Appeal was bound to uphold Whelan J's ruling. He submitted that LM's admissions met the requirements of reliability and prejudice that the joint reasons in Bannon suggest are a prerequisite to the consideration of any extension of the exceptions to the hearsay rule. In the circumstances, special leave to appeal was granted. Nonetheless, the proper course was for the appellant to have maintained his ground of challenge in the Court of Appeal. This Court would have had the benefit of that Court's analysis of the issues that are said to be presented. Contrary to the appellant's submissions, LM's statements when assessed in the context of the Crown case do not present issues materially different from those considered in Bannon. The exclusion of LM's out-of-court statements in the appellant's trial did not occasion a miscarriage of justice. For the reasons to be given, the appeal should be dismissed. It is convenient at this juncture to refer to the evidence given at the joint trial and the contents of LM's statements in some detail. The evidence On the evening of Saturday 26 November 2005, around 100 to 200 people attended the warehouse party. A band was to perform at the party. LM attended the party with a view to "free-styling" with the band. LM travelled to the party in a car with several other persons. The group included the appellant, Ali Faulkner and Lado Morgan. The atmosphere at the party was described as being good until around 3am. At that time, two persons, who it was open to find were the appellant and Faulkner, commenced an apparently random and unprovoked assault on the party-goers. On the Crown case, LM joined in the violence. Neither the appellant nor LM put in issue his presence at the party at the time the violence commenced or on the landing in the period before the deceased's fall. There were a number of people on the landing at that time. Common to the accounts of all of the witnesses was that a fight was taking place on the landing at the time the window shattered. As may be expected, the accounts of the witnesses of this violent and fast-moving incident varied considerably. The appellant, LM and Morgan are all of African origin. The deceased was Caucasian. A number of witnesses described the appellant by reference to his wide, or big, eyes, muscly body, and headband described as a "do-rag". Several said he was bare chested at the time of the fight on the landing. Morgan is tall. His hair was styled in "corn rows". Faulkner does not appear to be of African origin. He was described as being of Arabic or Lebanese appearance. The following account of the evidence is taken from the judgment of the Court of Appeal supplemented by reference to the summary of evidence, which forms part of the appeal papers. The appellant, Faulkner and, on the Crown case, LM exhibited a high degree of aggression over several minutes inside the room in which the party was held. Party-goers, including women, were punched and struck with bottles. The appellant, Faulkner and LM then left the party through a doorway which opened onto a landing on the stairwell. On the first version of events, given by Asher Doig, Peter Arcaro, Earl Stuart and Patricia Brady, it was open to find that the appellant was the principal assailant. On the second version, given by Nassir Asfer, Eric Masonga and, to some extent, Morgan, it was open to find that LM was the sole assailant. Doig was on the landing. He saw five or six black men come out onto it from the party. They were behaving "very aggressively". They started pushing the deceased. At least two instigated the assault on him. The appellant was the main instigator. The other assailant was tall and had corn rows. At one point, the deceased was pushed against a railing and the appellant ran up and kneed him in the chest or ribs. The group then walked down to the lower landing. As they did, the deceased said something like "you bastards". The appellant ran back up the stairs and began punching the deceased and behaving "in a very psychotic manner". Another black man was also punching the deceased. This was not the man whose hair was styled in corn rows. The appellant picked up a chair to hit the deceased, but Doig and another man each took hold of the chair's legs and pulled it down. The fight was "fairly brutal"; like a form of kick boxing. Towards the end, the appellant threw the deceased against the wall and "king-hit" him. He then went to hit him again, but the blow missed. A further punch connected. After this, either as the result of a punch or a push, Doig saw the deceased "literally flying through the window". Arcaro was also on the landing. He saw a group of three or four men walking down the stairs, a few of them were dark skinned. The appellant looked at the deceased and ran back up the stairs to fight with him. It was a one-on-one fight. The appellant was punching and pushing the deceased, who was not really fighting back. A few people, including Doig, tried to restrain the appellant. The appellant was "incredibly aggressive … every movement … was kind of aggressive and wild". At one stage, the appellant picked up a chair but it was taken from him. During the fight, the appellant and the deceased "worked their way" to the left of the window. The appellant either punched or pushed the deceased through the window. Stuart said that the appellant and two other African men had been ushered out onto the landing by a number of people. The appellant was "very angry, very animated" and he was "passionately … resisting". The three African men were ushered down the stairs and then they came back up in a "fighting manner". The appellant was fighting and one of the others was trying to stop the fight. The deceased was struck by more than one person and he was "bumped back" by "the velocity of the activity". The appellant was involved in a "quite severe fight" and his actions were "scary". There had been "a frenzy of blows … with hands and feet" but, according to Stuart, the deceased was not the target of the attack. The deceased went through the window as the result of being pushed back "by the force of what was occurring". Stuart's evidence departed from an earlier statement that he had made to the police and the Crown Prosecutor was given leave to put leading questions to him. Stuart then confirmed that the appellant was yelling in an aggressive and threatening manner and that his eyes were fixed on the deceased when he came onto the landing. He was kicking him. The appellant carried out a sustained attack on the deceased. Another African man was also punching the deceased, but not at the same rate as the appellant. The ferocity of the attack caused the deceased to be "kicked or pushed" through the window. Under cross‑examination by the appellant's counsel, Stuart said that the white male being attacked by the appellant was not the person who went out the window. This was a direct contradiction of the evidence that Stuart had given in response to the Crown Prosecutor's leading questions. Brady was on the landing when the door opened and a group of mostly black persons came out. They were fighting: "just a huge ball of fight literally coming out and moving down the stairs." One of them came charging back up the stairs. He was looking at someone behind Brady. He "whacked" this person. Brady's description of the aggressor was consistent with him being the appellant. This man picked up a chair as if to throw it, but someone grabbed it off him. He was throwing lots of punches at the white man. She could not recall if the white man fought back. The fight continued for a minute or two and then she heard the window smash, she turned around and the white man was gone. Two witnesses, Benjamin Dudding and John Corrin, appear to have seen the incident on the landing through a frosted glass door. Dudding saw a fight between a dark skinned man and a Caucasian. He said there may have been more than two involved in the fight. Corrin saw two black skinned individuals attacking one person. He could see that punches were being thrown. An alternative version of events was given by Asfer and Masonga, who were both on the landing with Morgan. Asfer had travelled to the party with the appellant, LM, Faulkner and Morgan. He did not see any fighting inside the party. He said that the appellant and Faulkner had come outside looking upset and walked downstairs. They said that they had been involved in a fight inside. The deceased came from the party onto the landing and asked the appellant and Faulkner, "Why did you hit me?" The appellant and Faulkner ran back up the stairs, at which time LM came out onto the landing. Morgan grabbed Faulkner and restrained him and Asfer restrained the appellant. LM began fighting with the deceased. The appellant was not fighting with anyone. He could not have made contact with anyone in the fight because Asfer had hold of him. At some point, the appellant picked up a chair and was holding it over his head but was forced to drop it because Asfer was still holding him. LM continued to fight with the deceased. The two were punching each other. LM was facing the window and the deceased was facing the stairs. Asfer heard the window break. He did not see it break because he was struggling with the appellant. Asfer was in the car with the appellant, LM, Faulkner and Morgan after the incident. He said that LM had challenged Faulkner, saying "look what you made me do". Masonga saw the appellant, LM and Faulkner come out of the party and go down the stairs to the middle landing. After a pause, the appellant and LM came back up the stairs. The appellant approached a white male on the landing near the railing and a fight broke out between them. LM approached the deceased and they started fighting. The appellant did not fight with the deceased. In evidence in chief, Masonga said that he had not seen anyone go through the window. In cross-examination, he said that the deceased had lost his balance in fighting LM, stepped backwards to recover his footing and fallen through the window. Masonga was clear that LM was the last person to have physical contact with the deceased before the deceased fell. In his initial account to the police, Masonga said that he had not seen any fighting on the landing. He acknowledged under cross-examination that his first statement contained a number of "inventions". He had signed the false statement because he had not wanted to get involved. Morgan was on the landing when the appellant and Faulkner came out. He thought they had rushed down the stairs. A person came out of the party and the appellant focussed on that person. The appellant came back up the stairs. Faulkner ran after him. Morgan stopped Faulkner because Faulkner had been behaving aggressively all night. At this point, LM came onto the landing. There was a fight, but Morgan was focussed on Faulkner and did not really know what was going on. He recalled that LM was hit in the face and that he hit someone back. He did not know who LM hit or who hit first. He thought that the appellant may have been physically involved but he was not sure. He thought he saw the appellant pick up a chair and put it down again. The appellant was fighting. This went on for less than five minutes. There was yelling and people came out onto the landing and the situation got out of control. He heard the sound of smashing glass and looked up. He heard that someone had fallen out of a window. After this, everyone on the landing went down the stairs and Morgan saw the man on the ground. The appellant, LM, Morgan, Faulkner and Asfer ran off. They all got in a car. The appellant was driving. LM was angry with Faulkner and they exchanged words. Morgan remembered LM saying "see what you've done" and "see what you put us through". In cross-examination, Morgan agreed that in his statement to the police he had said that LM said, "see what you've done, look what you've made me do". LM's out-of-court statements LM's interview with the police took place on the evening of the incident. LM spoke with a solicitor prior to its commencement. His father was present throughout the interview. At the beginning of the interview, LM was cautioned and advised that the investigation related to serious assaults in which a male had received life threatening injuries. LM was reluctant to name his associates or to identify the person who had invited him to attend the function. He had been "pretty drunk". LM's initial narrative description of events on the landing is set out below: "There was a dispute with my – one of my friends against some people there which we never met before. And then they sort of went out to the stairs – the stairway and al–, I was just tryin' to break it up 'cos that was my night that I performed there. So I didn't want a bad name for my first career name. So, I was breaking – I was breakin' – bas–, basically, breakin' the fights that they were fightin'. I said, 'I'm performin', what are youse doin', boys?' In the end, they sort of went outside to the stairs and were pushing my mates down the stairs and this guy came out, just through the door, started yelling at my friend. And my friend just went to hit him. And I – like, I – I – I was pushing – I broke it up and said, 'Keep walkin', mate,' to my friend. And the other guy from the side hit me here. I go, 'What are you doin'?' an' I pushed him away. I turned away and ke–, went down the stairs. And then, when I got downstairs, the guy was outside on the pavement. And was shocked, so … disappear." The essentials of this account were repeated on a number of occasions in the course of the interview: "Q. 180 Okay. Did your friend that was with you walking down punch the other white guy near the landing? A. No. Th–, the – they couldn't 'cos I was in the middle. Q. 181 You were in the middle between the white guy – – – ? A. Mm. Yeah. Q. 182 And your friend? A. Yep. Q. 183 And you've pushed him downstairs? A. My friend. Q. 184 Yep. A. Keep walkin', pushed him down the stairs. He – and then he – he – he was swearing at him but he kept walkin'. And as I was walkin' down, the guy hit me from the back. Q. 185 The guy who was following you? A. Yeah. Q. 186 How – what fist did he use to punch you? A. I don't know 'cos – but, that's what I mean. Like, I was – I was pushing my friend. That's what I mean, so by the time I turned around, I copped a punch here. I don't know if it was a left or a right. … Q. 190 And where were you? Were you at the top of the landing or halfway down the stairs? A. On the top. … A. And the guy was standing here. And my friend was here. I was in the middle. You know, so I – I – I'm – I'm – I'm tryin' sort them 2 to stop fighting. Pushing my friend down the stairs, the guy from the side hits me. ... A. Then I turn around and I push him. I go, 'Piss off, mate,' and kept walkin'. And then when I went downstairs, the guy is on the – on the pavement. Q. 200 Did you see him go out the window? A. No. … A. I pushed him and I turned and walked out. Q. 204 Did you hear anything? A. No. W–, when I went downstairs, when I seen the guy, I'm like, 'Oh my God.' I – I took off. I was – I was – I was shocked. ... Q. 209 And none of your other friends were involved? A. They're li–, when we went downstairs, like, we were lookin' at this guy and – and then all my friends came down. You know what I mean? I see 'em, I go, 'Let's get out of here. I don't know what – let's get out of here, done somethin' bad.' We t–, we left. Q. 210 You said, 'Let's get out of here, we've done something bad?' A. Yeah. Q. 211 Why do you say you've done something bad? A. 'Cos, like, this guy fell from the stairs – the window. I–, like I – I thought, like, well, I dunno if it was me still but that was the guy that I pushed, so he was – he was facin' on the ground and looked like unconscious. That was not – like, I was – I can't explain it. Q. 212 But you said you've done somethin' bad, but if you've only pushed him when he was punching you, do you think that's bad? A. Yeah, I – that's what I mean, like, either I did it or someone. But I know it was the guy that I pushed, 'cos I seen his face. Because they were – my friends, they were to still fight. I seen his face. I know what he looked like and – – –". LM was asked why he did not remain at the scene to tell police what had happened. He responded: "A. 'Cos it was somethin' terrible I did. Q. 275 Okay. We–, once again, I – I'm just a bit confused by this. You tell me you've done something terrible but then you say all you did was push a guy away who punched you. A. Well, I'm assuming that I did something terrible because at – at – as – I was the only person to have any contact with him at last, from – from – from what I've seen, so I'm only assuming that this guy is badly injured from me pushing him. And from what you – the information I've been told by you." LM estimated that the man was about a metre and a half in front of the window when he pushed him. He had not thought the man would go through the window. LM's references to his friend in his account of events on the landing and in the stairwell were not references to the appellant. On LM's account, he did not see the appellant on the landing or in the stairwell. Before turning to the appellant's submissions, there should be some reference to this Court's decision in Bannon v The Queen. Bannon v The Queen Bannon and his co-accused, Calder, were jointly charged with the stabbing murders of a man and his de facto wife. Shortly after the killing, Calder made statements to associates that were capable of being understood as admissions that she had stabbed the victims. Bannon sought to rely on those statements in support of his case that Calder had acted alone. He was granted special leave to appeal on the ground that the trial judge erred by refusing to allow the jury to take Calder's statements into account in exculpation of him. Bannon argued that the exception to the hearsay rule respecting statements against pecuniary or proprietary interest should be extended to include, at the instance of the accused, third party statements against penal interest made by a person who is unavailable to give evidence. Alternatively, he argued that the hearsay rule should be relaxed in the case of confessional statements adjudged as meeting a test of reliability. Calder's statements would not have been admissible on either basis. The assertion on which Bannon sought to rely, that Calder acted alone, was not an asserted fact against Calder's penal interest. The admissions went no further than the implied assertion that she had wielded the knife, an assertion that was not inconsistent with the Crown case that the two had acted in concert. The further implication, that she acted alone, was a "dubious inference" lacking the degree of reliability on which Bannon's submission depended. Deane J was in general agreement with the joint reasons for dismissing Bannon's appeal. His Honour considered that there were no grounds for apprehending that Bannon's trial had miscarried as the result of the exclusion of Calder's statements. Her statements did not provide unambiguous support for his case. His Honour considered circumstances in which the exclusion of the confession of one accused at a joint trial may be productive of unfairness. He gave two examples of circumstances of this kind. The first was the joint trial of A and B for murder at which each asserts the other to be solely responsible and in which the prosecution tenders against B an unambiguous confession that he alone killed the deceased. The second, a variant of the first, posited the prosecution's acceptance that only one of the two committed the offence. In the context of these examples his Honour said: "[I]t appears to me to be strongly arguable that the basic requirement of fairness dictates that, in circumstances where the Crown has seen fit to bring a person (the first accused) to a joint trial with another accused and to place before the jury material which is tendered only against that other accused but which is supportive of the innocence of the first accused, the trial judge have a discretion to direct that that material, even though otherwise inadmissible in the trial of the first accused, be evidence in that trial at the instance of the first accused if, in all the circumstances of the case, the trial judge considers that fairness to the first accused and the interests of the administration of justice support the conclusion that such a direction be given." As will appear, the appellant's principal argument is constructed on this passage in his Honour's reasons. The grounds of challenge The appellant's first ground of appeal asserts error in the trial judge's failure to direct the jury that LM's admissions could be used in exculpation of the appellant. The second ground is dependent upon success on the first. It asserts that it was an error for the Court of Appeal to hold that the evidence was capable of supporting the verdict without taking LM's admissions into account. The determination of the first ground makes it unnecessary to say more about the second. The appellant's argument acknowledged that under the present state of the law Whelan J's ruling was correct. Success on the appeal is dependent upon making good one of two contentions respecting the modification of the law of evidence governing hearsay. The appellant's principal contention was that a limited exception to the rule against hearsay confined to the conduct of joint trials should be allowed. A further, broad contention was that an exception for third party confessions should be allowed in order to bring the common law into line with the uniform Evidence Act provisions governing the reception of first hand hearsay when a witness is unavailable. The principal contention The appellant framed his principal contention this way: at a joint trial in which the prosecution relies on admissions by an accused, A, in proof of A's guilt, and those admissions also tend to exculpate the co-accused, B, the trial judge should be required (or have the discretion) to direct that A's admissions are evidence in B's trial to be considered in exculpation of B. It was submitted that an exception to the hearsay rule of the limited kind proposed would not be attended by the dangers of third party confessions generally. Unlike the potential mischief of gaol-house confessions, a confession tendered by the Crown against the maker at a joint trial is assumed to pass a threshold of reliability. The rationale for the exception to the rule respecting admissions (what a party himself admits to be true may reasonably be presumed to be so) was suggested to apply with equal force to "LM's admission that he pushed the deceased and caused him to fall". It is to be observed that LM did not assert that his push caused the deceased's fall. His admission was to pushing the deceased when he was about one metre and a half from the window. In the context of the issues at the trial, the appellant's intended reliance on the assertions made by LM in his interview was not on the admission of the push but on the inference that the push was the cause of the fall because LM was the only person engaged in hostile physical contact with the deceased at the time of his fall. The appellant's submissions were apt to treat the assertions contained in LM's interview as an undifferentiated whole, possessed of reliability because they were made against LM's penal interest. Whether a previous representation is against the penal interest of the maker requires consideration of the fact that the maker intended to assert. LM's statement "I pushed him" was an admission against penal interest. It was an assertion that was consistent with both versions of events: that the appellant was the principal aggressor or that LM was the sole aggressor. Other assertions, including those which directly or indirectly conveyed that the appellant was not involved in any assault on the deceased before his fall, were not evidently against LM's penal interest. As explained in Bannon, the question to be asked is whether LM apprehended that it was to his prejudice to have made admissions implicating himself alone as opposed to having acted in concert with or having been assisted by the appellant. There is no reason to suppose that he did. The appellant submitted that LM's acquittal was eloquent of the rejection of the prosecution case that he and LM were acting in concert. On this analysis, the issue was whether the appellant or LM was the aggressor. While the jury were not satisfied of LM's guilt, it was submitted that his admissions supported acceptance of the accounts given by Masonga, Asfer and Stuart and to this extent might have raised a doubt in the appellant's favour. The submission wrongly reasoned backwards from the verdicts. The Crown case was that the appellant and LM were acting in concert (or one was aiding and abetting the other) in assaulting the deceased. LM's admission to pushing the deceased was consistent with the Crown case and, if received in the appellant's trial, amounted to proof of an element in the case against him. One very important reason for the hearsay rule is the unfairness of depriving the party against whom the hearsay is tendered of the opportunity of cross-examining the maker. In Bannon, Deane J contemplated circumstances in which the failure to admit the untested assertions of B at the instance of A might operate unfairly in the trial of A. The examples that his Honour gave each concerned an unambiguous confession of sole guilt. The unfairness that his Honour identified was the conduct of A's trial "without regard to material which was, if reliable, inconsistent with ... guilt". The risk of unfairness of this description may be thought more evident in the second of the two examples, in which not only has B made an unambiguous confession of sole guilt, but it is apparent that only one of A and B committed the offence. Perhaps it should also be hypothesised that B's confession contains esoteric knowledge of the offence? Whether such a case could not be dealt with satisfactorily by an order for separate trials is not a question that need be addressed in this appeal. The concept of unfairness is concerned with A's right to a fair trial. While the discretion to exclude admissible evidence if its reception would operate unfairly to the accused may be engaged for reasons other than unreliability, the suggested discretion to admit otherwise inadmissible material is posited on the basis of the reliability of the confession of sole guilt. The tender of a confession of sole guilt against the maker as probative of his or her guilt does not vouch for the reliability of all the assertions made in it. Among other considerations, B may have reasons for choosing not to implicate his confederate in his confession of guilt. In a case in which the Crown is in possession of credible evidence tending to establish the complicity of A in the commission of the offence for which B has admitted sole guilt there will ordinarily be no unfairness in the prosecution of A and B at a joint trial, nor in the tender of B's confession against B alone. The Crown did not rely upon the contents of LM's interview as reliable in its case against LM, save as to show that LM "had a hand in [the deceased] going through the window." The assertions in LM's interview did not provide unambiguous support for the appellant's case. There was no unfairness in the exclusion of those statements in the appellant's trial. The broad contention The appellant's broad contention was that developments since the decision in Bannon make it appropriate to now recognise an exception to the hearsay rule in the case of third party confessions. Three developments were relied upon. First, Tasmania and Victoria have now enacted legislation modelled on the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). The appellant submitted that LM's statements would be admissible under s 65(2)(b), (c) or (d) and s 65(8) of the Evidence Act 2008 (Vic). Secondly, third party confessions in homicide cases are admitted in Queensland following the decision of the Court of Appeal of Queensland in R v Zullo. On this analysis, there is now a clear majority of Australian jurisdictions in which third party confessions are admissible at the instance of the defence. Thirdly, in England, following the decision of the House of Lords in R v Myers, legislative provision has been made for the admission of the confessional statements of co-accused. In Bannon, McHugh J commented on the enactment of the Evidence Act 1995 (Cth) and comparable legislation in New South Wales, then the only jurisdictions to have adopted uniform Evidence Acts. In circumstances in which other States might adopt some or all of the provisions of the Commonwealth Act, his Honour proposed that this Court adopt a cautious approach to the development of new exceptions to the hearsay rule. While the uniform Evidence Acts preserve the rule against hearsay, the treatment of the rule and the exceptions to it differs in material respects from the common law. Whether LM's previous representations would meet the conditions of s 65(2)(b), (c) or (d) of the Evidence Act 2008 (Vic) need not be addressed. Section 65(8) provides a broad exception to the hearsay rule with respect to first hand hearsay adduced by a defendant in criminal proceedings. The only condition for the admission of evidence of a previous representation given by a person who saw, heard or otherwise perceived it being made when adduced by an accused is for the provision of reasonable notice. If the appellant's broad contention were upheld, it would have no consequence for any new trial at which the admission of LM's statements (if he were unavailable to give evidence) would be governed by the Evidence Act 2008 (Vic). The consequence of upholding the broad contention would be to effect a significant alteration to the common law of evidence in those States which to date have chosen not to adopt the uniform Evidence Act or to modify the hearsay rule along the lines of the English legislation or otherwise. In circumstances in which the application of the hearsay rule in the appellant's trial did not occasion a miscarriage of justice, the invitation to effect that change should be rejected. Something should be said about the appellant's submissions respecting the Queensland line of authority. Zullo was decided before Bannon. At Zullo's trial for murder, evidence was admitted of a confession to the killing made by a man named Beard. The evidence of the confession was given by a police officer. Beard was not charged with any offence arising out of his confession. He gave evidence at the trial and, when questioned about the confession, claimed privilege on the ground of self-incrimination. Zullo appealed against his conviction for manslaughter to the Court of Appeal of Queensland on grounds including a suggested error in the trial judge's directions concerning the use that might be made of the confession. In dealing with this ground, the Court commented that there was "authority of some strength" in favour of the view that the evidence of Beard's confession was not admissible. Nonetheless, the Court said that the confession was to be considered by the jury "for what they thought it was worth". Although not necessary for the decision, there was discussion of Zullo in K; Ex parte Attorney-General (Qld). McPherson JA, who gave the leading judgment of the Queensland Court of Appeal in the latter, commented that Zullo was contrary to decisions in overseas jurisdictions and that the New South Wales Court of Criminal Appeal had declined to follow it. However, his Honour observed that Zullo was binding in Queensland until overruled. In R v Martin, the Court of Appeal of Queensland considered Zullo in the context of a submission that an accused's confession to a killing should be received in the trial of a co-accused. McPherson JA noted that Bannon had not been drawn to the Court's attention in K; Ex parte Attorney-General (Qld). However, for reasons that were not explained, his Honour said that he was not persuaded that statements in Bannon were necessarily inconsistent with the line of authority in Queensland relating to the admission of hearsay confessions to a killing. The success of the appeal of the accused Klinge in Martin did not turn on the admissibility of the confessional statements of the co-accused. There was no discussion of how the statements in Zullo might be reconciled with the law as it was subsequently stated in Bannon. The common law of evidence governs the admission of hearsay confessions in Queensland. To the extent that the appellant's submissions identified Queensland as an Australian jurisdiction in which hearsay confessions are admissible, the submission was misconceived. For these reasons, the appeal should be dismissed.