Where a prior inconsistent statement containing a second-level hearsay confession is wrongly admitted as evidence of the truth of the confession (contrary to Lee v The Queen), the proviso may still be applied if the remaining admissible evidence — including post-offence conduct demonstrating consciousness of guilt and a suicide note constituting an unequivocal admission — proves guilt beyond reasonable doubt. The second version of the statement given in evidence ('How could they love me if I've killed their mother') was itself capable of constituting an admission. The first representation may also have been admissible for a non-hearsay purpose (testing the appellant's claimed loss of memory), though this was not argued.
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