KN, R v

Under Criminal Justice Act 2003 section 115, an out-of-court representation is hearsay only if its maker had a purpose of causing another person to believe or act upon the matter represented. A diary entry intended solely for private use has no such purpose. It is therefore outside the hearsay rule and, if relevant, is admissible as real or direct evidence.

The jury may draw, but is not bound to draw, an inference from that private act. Conversely, a previous inconsistent diary statement intended to be read by another may be admitted for its truth under section 119.

The appellant was convicted at Reading Crown Court of indecent assault contrary to section 6 of the Sexual Offences Act 1956 and sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003. He received concurrent sentences of 18 months’ imprisonment.

The prosecution relied on a diary entry made by the complainant, the appellant’s niece, before she disclosed the allegations. The defence used the entry in cross-examination as inconsistent with her account of forcible rape. Shortly before the jury retired, the judge directed that it could also be treated as evidence of the truth of its contents.

On appeal, the appellant contended that a private diary could not satisfy section 115(3) of the Criminal Justice Act 2003 and was therefore inadmissible under section 119. He also sought leave to argue that there was no case to answer.

1. The appeal was dismissed. The application for leave to appeal on the additional no-case-to-answer ground was refused.
2. Section 115(3) of the Criminal Justice Act 2003 confines hearsay to representations made for the purpose, including one of several purposes, of causing another person to believe a matter or act upon it. The hearsay rule remains exclusionary: it excludes evidence which would otherwise be relevant and admissible. Its relaxation by the 2003 Act did not convert all relevant out-of-court conduct into hearsay.
3. The court adopted the analysis reflected in the statutory definition. Conduct not intended to induce belief or action is not an assertion merely because a fact-finder may infer something from it. The telephone calls considered in Kearley and the hypothetical conduct discussed in Wright v Doe d Tatham illustrated that distinction.
4. If the complainant intended nobody else to read her diary, its entry was not hearsay. It was a relevant fact from which the jury could, but need not, infer that she had intercourse with the appellant. It was consequently admissible as real or direct evidence. If instead she intended another person to read it, it fell within section 115 and, as a previous inconsistent statement, was admissible under section 119 as evidence of its truth. On either basis, the trial judge was entitled to admit it and give the direction challenged.
5. There was also ample evidence for the jury. The complainant gave direct evidence of intercourse; the diary entry was admissible; and the telephone conversation was capable of supporting the prosecution case. The judge was therefore right to leave the case to the jury.

• Court of Appeal (Criminal Division): In [2006] EWCA Crim 3309, dismissed the conviction appeal and refused leave to appeal on the additional ground.
• Crown Court at Reading: On 11 August 2006, convicted the appellant of indecent assault and sexual activity with a child; on 13 October 2006, imposed concurrent sentences of 18 months’ imprisonment.