Knight, R v

A diary written without any purpose of causing another person to believe or act on its contents is not hearsay within section 115 of the Criminal Justice Act 2003. If relevant, it is direct evidence and may be proved by a person who read it.

The loss or destruction of the diary does not, without more, require exclusion under section 78 of the Police and Criminal Evidence Act 1978. Where its general import can be tested in cross-examination, the jury can assess the witnesses’ accuracy and truthfulness.

The appellant was convicted at Gloucester Crown Court of three counts of gross indecency with a child and three counts of rape of a female under 16. He appealed with leave of the Single Judge. The prosecution relied in part on the appellant’s aunt’s recollection of a diary written by the complainant while she was under 16 and later destroyed.

The appeal challenged the admission of that recollection as hearsay, sought exclusion under section 78 of the Police and Criminal Evidence Act 1978, and alleged an inadequate summing-up. The central issue was whether a private diary, not written for others to read, and an observer’s account of its contents were hearsay evidence.

1. Appeal dismissed. The diary was properly admitted. On the unchallenged evidence, the complainant wrote it intending that it remain secret. It was therefore not a statement made for the purpose specified in section 115(3) of the Criminal Justice Act 2003.

2. Applying N [2006] EWCA Crim 3309, a diary not intended to be read by another is outside the hearsay rule. Its relevance made it admissible as real or direct evidence. The court rejected the suggestion that its later destruction changed that character.

3. The aunt’s recollection of what she had read was also neither single nor double hearsay. She gave an account of direct evidence which she had observed. It was analogous to an observer describing another person’s conduct or reaction. Had she instead repeated what the complainant had told her, that would have been hearsay.

4. There was no basis to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1978. Although the recollection was imprecise and the original text unavailable, its effect was general rather than detailed. Both the aunt and the complainant could be cross-examined about its general import, and the jury could assess their reliability.

5. The summing-up gave an adequate warning about the aunt’s need to recall material read some time before making her statement and about the lapse of time before trial.

• Court of Appeal (Criminal Division): The appellant’s conviction appeal was dismissed in [2007] EWCA Crim 3027.

• Crown Court at Gloucester: On 6 March 2007, the appellant was convicted of three counts of gross indecency with a child and three counts of rape of a female under 16. On 26 March 2007, concurrent sentences were imposed, including ten years’ imprisonment for the rape counts.