KN, R v [2006] EWCA Crim 3309

Case No 2006/04835/D1[2006] EWCA Crim 3309
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 14 December 2006
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE HUGHES
MRS JUSTICE RAFFERTY DBE
and
MR JUSTICE McCOMBE
Between
R E G I N ACrown- v -
Between
K N
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
MR D HAROUNOFF appeared for APPELLANTMR J PRICE appeared for CROWN
J U D G M E N TThursday 14 December 2006
[1]On 11 August 2006, in the Crown Court at Reading, before His Honour Judge King and a jury, the appellant was convicted of one offence of indecent assault, contrary to section 6 of the Sexual Offences Act 1956, and one offence of sexual activity with a child, contrary to section 9 of the Sexual Offences Act 2003. Those offences were alternatives to two charges of rape. The first offence of which the appellant was convicted was under the 1956 Act and the second was under the 2003 Act because, on the evidence, the Crown's case, which must have been accepted by the jury in this respect, was that the incidents concerned had occurred (respectively) before and after the coming into force of the Sexual Offences Act 2003 on 4 May 2004. In each case the activity that was alleged was sexual intercourse with a complainant who was under 16 years of age at the relevant time.[2]On 13 October 2006,the appellant was sentenced to concurrent terms of imprisonment of 18 months on each count, giving rise to a total sentence of 18 months in all. He now appeals against conviction by leave of the single judge. The single ground upon which such leave was granted relates to the admissibility in evidence of an entry in the complainant's diary in which she writes of sexual activity with her uncle (the appellant). An application for leave to appeal on another ground has been referred to the full court by the single judge. That ground is that the trial judge should have acceded to a defence submission at the end of the prosecution case that there was no sufficient case to be left to the jury.[3]The complainant in each case was the appellant's niece whom we shall call "L". She was aged 13 at the date of the alleged offences. She was just 16 when she gave evidence in the Crown Court. In summary the evidence given was as follows. L was 13 years of age in September 2003. She said that her mother had separated from her father and that she lived with her mother in Slough. A time came when her mother agreed to return to live with her father and her mother did so by joining him in Blackpool towards the end of May of that year. L wanted to remain in Slough. She was granted her wish by moving to live with her mother's brother (the appellant) and his wife in that town.[4]In March 2004 L and the appellant's family moved to a new home in Langley. Her aunt worked night shifts and L therefore spent a lot of time alone at home with the appellant. The appellant, she said, came home on many occasions in a drunken state. On one occasion she was in her nightdress and the appellant asked her if she wanted to do him a favour. He then sat on her bed and started to touch her arm. He proceeded to pin her down onto the bed and touched her face, her neck and her breasts. She struggled to get away and she was able to free herself. She told him to go away. She went downstairs. After a period of time she went upstairs to the bedroom which the appellant shared with his wife to get something for her own use. Whilst inside, the appellant came into the room and shut the door. He then pushed her onto the bed and started to touch her thighs. He touched her between her legs and then pulled down his boxer shorts. He was wearing a "protective". She said, "I don't want to do this", but he did not listen and raped her. That was the evidence on count 1. In addition she said that she thought that she was in the wrong because she had not tried to get away from him, but she could not because he was too heavy.[5]The complainant said that on other occasions the appellant had approached her and offered her gifts and inducements, but she had avoided him. There were also occasions on which he had grabbed her and said that he loved her. She said that about two weeks after that first incident the appellant had come into her room again wearing boxer shorts and told her to get onto the bed. This time he was in an angry state and she allowed intercourse to take place. She said that she had tried to hit him with a pillow, but it had missed. She put this incident as occurring about a fortnight before she eventually left the house to go to Blackpool to rejoin her mother on 26 May 2004. On one occasion an argument occurred between L and her aunt about where L had been one night when she had been out late. L rang her mother and had returned to Blackpool.[6]She did not tell anyone about either of the incidents. They only came to light when her mother read an entry that the complainant had made in a private diary. In the diary there were four entries relating to the appellant. The only entry concerning the allegations was one dated 11 November. L conceded that when she was asked about the whereabouts of the diary by the police she had told them that it had been lost or thrown away. She accepted that the diary contained a total of 188 pages of tightly handwritten prose, which contained only four references to the appellant.[7]L's mother gave evidence. She said that she had become worried about her daughter. She had noticed a change in her daughter's personality after she had returned to live with her. She looked at the diary and saw that the entry for 11 November said this:
"I have lost mates and am not even close with my family and you know why, because I've slept with my uncle. Yes, I did. I didn't want to, but he offered me money and I had to do it with that fat bastard."
The mother said that, following a television programme about child abuse, she approached L and asked her whether she would tell her if anything had happened of that nature to her. L had said she would. The mother than asked if she would tell her if it involved her uncle. L then broke down and told her that the appellant had raped her. The police became involved and the proceedings then ensued. The mother asked L to send a text message to the appellant saying that it was about time he told her mother what he (the appellant) had been doing. There was no reply to that text. L then telephoned the appellant with her mobile telephone, using the speaker facility. The appellant said, "Please don't tell your mother". Those words did not appear in her police statement, but she insisted in evidence that the words had been spoken. Accordingly to the police statement the appellant had in fact said, "Can we put all this behind us? I'm coming to Blackpool next month. I'll do anything. I'll give you anything. Let's forgive and forget." The appellant then called the landline and the mother informed him that she had heard everything. The appellant, without comment, put the phone down.[8]In police interviews, following arrest, the appellant denied the allegations absolutely.[9]He gave evidence before the jury. He told them that he had been married for five years and that his wife would have been in the late stages of pregnancy when these offences are alleged to have occurred. They had a child who was born in June 2004. After L had come to stay with them they started to have problems. L tended to stay out late to be with boys who were a lot older than herself and the appellant felt that it was his responsibility to discipline L in appropriate circumstances. At the time he had been working long hours from 7am to 7pm. He was a committed Christian and had not drunk alcohol since 1996. He denied giving L gifts of chocolates or anything to influence or persuade her to bestow sexual favours upon him. The only sum of money that he had given her was £20 towards some clothes as she always complained about not having sufficient of them. He said that he did receive the text message to which we have referred, but did not actually look at it until after the telephone call. He was then asked, "Do you think you are going to live the good life with T [his wife] and a baby whilst I am living here? I am going to tell my mother you used to sleep with me and gave me money". He immediately put the telephone down, he said, or the call was otherwise ended. He rang L's mother and she just said that she did not want to talk to him and put the telephone down. He agreed that the following day L, her mother and father had visited him in Slough. He agreed to repay L's father some money that had been lent. He did not know why he wanted the money back early. He said that there was no truth in the allegations. The only reason he could give was that L must have taken against him because he had had to discipline her on the occasions that we have mentioned.[10]The appellant's evidence was supported by his wife who confirmed her husband's Christian beliefs and his abstinence from alcohol. She said that she had never seen tension between L and her husband. She referred to some problems that they had had with L at their home and her lack of truthfulness.[11]The diary entries to which we have referred initially came before the jury because defence counsel cross-examined L upon certain passages in them. He wished, understandably, to establish two things: first, that L was a fantasist and that the diary entries illustrated that; and secondly, because the diary made four references to the appellant, including the passage to which we have referred and quoted. The defence applied to the judge to have the whole of the diary entries exhibited. The Crown objected to that course because of the quantity of material and because of the danger that the jury might trawl through a volume of entries of no materiality, to which they might attach importance and which had not been the subject of evidence. There was also a concern that some of the material in the diary might amount to unacceptable references to L's previous sexual conduct. In the end the matter was left at that stage that the four references to the appellant would be exhibited, together with the passages upon the complainant had specifically been cross-examined. The defence relied upon the specific reference that we have quoted to show that the account that had there been given made no reference at all to the alleged force used by the appellant or to any struggle or resistance on L's part, ie to demonstrate the thorough inconsistency of the entry with the complainant's allegations.[12]The trial

judge summed up the diary entries initially in the following terms:

"It was also put to her that there were a number of occasions in the course of her interview with the police, which lasted 62 minutes, she was making a coherent but nevertheless totally untruthful account, and one particular matter that was specifically dealt with was what is in the page marked 'page 35' and you will want to look at that page, and I invite you to take it and look at it now. It is the third from end page in this bundle. You can see the date of it at the top, 11 November, and it has been read to you on a number of occasions." 13. "
The defence raised with a witness what you may think is a very important point. Her account, persisted in in the course of interview, was that this was a forcible rape with struggling and resisting, but her account in her diary is that it occurred in circumstances where she had been offered and accepted money. There is no reference to force or duress of that kind at all, and she was asked to account for the difference. 14. Mr Price [Crown counsel] raised for your consideration that the way she appeared to be understanding it, she was taking considerable umbrage that she had had sexual intercourse with someone for money. Mr Harounoff [defence counsel] submits to you that her problem was that she was totally unable to reconcile the two accounts, and it blows a great hole in the truthfulness or reliability of her account. 15. You will make your judgment in this matter." In other words, there was no dispute at that stage that the diary entries had been written by L and that it was a private diary that was meant for her own purposes.[13]Just before the jury was about to retire to consider their verdicts, Mr Price (prosecution counsel) raised a matter of law with the judge, repeating something that had arisen on an earlier occasion on the previous afternoon, of which we have no transcript. The point that counsel wished to raise was that this statement in the diary was admissible pursuant to the hearsay provisions of the Criminal Justice Act 2003. Mr Price said:
".... your Honour will recall yesterday afternoon that I referred to section 119 of the Criminal Justice Act, which permits the diary to be evidence of the truth of its contents, and this is the reason why I asked for the jury to retire before mentioning it. I simply raise the question as to whether your Honour would feel it appropriate to tell the jury that they may so treat the relevant diary entry." 17. "
In relation to the [diary] entry at your page 35, the third from the end, which is 11 November, which is the only entry in relation to alleged sexual conduct made by the complainant before it came to light with her mother, you are entitled to consider that entry and to treat what she said there, if you accept it, as being the truth of what occurred, as well as merely the question as to whether she has or has not been consistent in what she has said. You are entitled to treat it as evidence of the truth that it occurred. Whether you do so find will be a matter for you to determine. The defence submission is that that entry together with a lot of other entries quite plainly are not the truth of what occurred. Those will be matters for you to decide on the evidence."[14]It is out of that final direction that the ground of appeal for which leave has been given arises. It is argued that the diary entry did not come within the terms of section 119 of the 2003 Act because of the provisions of section 115 of the Act. Section 119 is in the following terms:
"(1) If in criminal proceedings a person gives oral evidence and -- (a) he admits making a previous inconsistent statement, or (b) a previous inconsistent statement made by him is proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865, the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible." "(1). In this Chapter references to a statement or to a matter stated are to be read as follows. (2). A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form. (3). A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been -- (a) to cause another person to believe the matter, or (b) to cause another person to act or a machine to operate on the basis that the matter is as stated."
[15]The argument adduced by the appellant is straightforward. It is this. The diary was compiled on the basis that no one but L would see it. Therefore, the purpose of the statements were not "to cause another person to believe the matter" contained in it within the meaning of section 115(3)(a) of the Act. On the contrary, its purpose was L's use alone.[16]To our mind it would be a very strange state of the law if a defendant could introduce a diary such as this on the basis that it is an inconsistent statement, but yet it remained outside the provisions made by Chapter 2 of the Act for the regulation of the admission of statements other than those made in court. Nevertheless, if that is the conclusion which the statute compels, we must give effect to it. In our judgement the fallacy in this argument is the underlying assumption that if the diary is not admissible hearsay, it cannot be admissible at all. The rule against hearsay is, was and always has been an exclusionary rule. That is to say, it operates to render inadmissible what would otherwise be relevant and thus admissible. The rationale has always been that assertions out of court may be false either because they are untruthful or because innocently inaccurate, and, unlike sworn testimony, those possibilities cannot be rectified by being tested in examination and cross-examination.[17]Although under the 2003 Act the rule against hearsay is much relaxed in criminal proceedings, and the scope for admitting hearsay evidence is extended, the rule remains in our judgment an exclusionary one. That is the reason, for example, why the tests for admission in section 114 of the same Act are geared to the assessment of reliability.[18]Chapter 2 of the 2003 Act in which these provisions are contained is the product of the Law Commission's report on hearsay evidence in criminal proceedings (Law Commission Paper 245 of 1997). Sections 114 to 126 are closely modelled upon the draft Bill attached to that report, with only marginal alteration or reorganisation. In particular, section 115 is an exact reproduction of clause 2 of the draft Bill and section 119 a reproduction of clause 7.[19]The occasion for the new definition of hearsay contained in section 115 was the debate about the misleadingly labelled concept of "implied assertion". The debate was largely triggered by the decision of the House of Lords in Kearley [1992] 2 AC 228, in which the question was whether a series of telephone calls to a house, made by unidentified callers seeking to buy drugs, was or was not to be excluded as hearsay on the grounds that it amounted to assertions by the callers that the occupants of the house were suppliers of drugs. Although that was the modern trigger for the debate, the issue went back at least as far as Wright v Doe d Tatham (1837) 7 Ad & E 313, 112 ER 488, in which Park B expressed the opinion that it was not, for example, permissible to adduce evidence that a sea captain had boarded a particular steam ship to set sail upon her, as evidence that the vessel was seaworthy, because it amounted to hearsay.[20]We adopt the analysis of the Law Commission, as set out in chapter 7 of its report. In short, we summarise it in these terms:(a) The making of telephone calls to the house in Kearley and the hypothetical boarding of the ship mentioned by Park B in the 1837 case are not assertions at all, unless they were acts done with the purpose of making someone else believe that the occupants of the house were dealers or, respectively, the ship seaworthy; otherwise, they were simply facts from which other facts could properly be inferred, although not conclusively.(b) In the absence of a purpose to induce belief or action in someone else, the particular dangers against which the hearsay rule is designed to guard do not exist. Of course, the inference of fact B from fact A may or may not be justified, but that is true of every instance in which a tribunal of fact is invited to draw a conclusion from indirect evidence.(c) Therefore the exclusionary hearsay rule should be confined to assertions, properly so-called; other facts, however, from which inferences may, where justified, be drawn, are direct evidence and admissible as such when relevant, not subject to the limitations imposed upon the admissibility of hearsay.[21]With those summarised expressions of opinion we agree. If, as the appellant contends, the diary was never intended to be read by anyone, it was not hearsay because it did not fall within section 115. But that does not mean it is not admissible. On the contrary, if relevant it is admissible. It is real or direct evidence outside the hearsay rule. The statutory restrictions upon the admissibility of hearsay have no occasion to apply to an action by the complainant which never had as its purpose, principal or supplementary, that any other person should believe or act upon it. It is simply a fact from which the jury is entitled, but not bound, to infer that L's uncle had had intercourse with her. It is a fact from which that may, but not necessarily will, be inferred, in exactly the same way as if she had been observed by other people kissing him, for example, passionately or making a booking of a hotel room for an afternoon in his name.[22]Thus, if the diary was intended to be read by anyone else, it fell within section 115 and was admissible under section 119 as evidence of the truth of its contents. If it was not, it was outside the hearsay rule and was admissible providing it was relevant. In our view it clearly was relevant.[23]For those reasons we would reject the primary ground upon which this appeal is brought and for which leave was granted.[24]We turn shortly to the alternative ground for which leave to appeal is sought, that is that there was insufficient evidence to go before the jury. In our view, notwithstanding the obvious progress that defence counsel made with the complainant in cross-examination, there was ample material to allow this case to go to the jury. The complainant had given evidence of sexual intercourse; the diary entry was available. Further, there was also the evidence of the telephone conversation which was capable of acting as supporting evidence for the case that was put on the alternative basis. In our view, therefore, there was ample material for the case to go to the jury and upon which the jury was entitled to act.[25]For those reasons, therefore, we dismiss the appeal on the grounds for which leave was granted and refuse the application for leave to appeal on the additional ground.

Cited in 1 later judgment