068-NLR-NLR-V-43-ROBINS-v.-GROGAN.pdf
269
Robins v. Grogan.
1942Present: Howard C.J.
ROBINS v. GROGAN.
90—M. C. Matale, 9,379.Document—Letter written in breach of Defence Regulations—Proof of hand-writing—Re-trial—Evidence Ordinance, s. 67.
A document cannot be used in evidence unless its genuineness has beeneither admitted or established by proof, which should be given beforethe document is accepted by Court.
A new trial should not be ordered to enable the prosecution to fill upgaps in the evidence or when the prosecution by its own negligence failedto produce evidence, which it was bound to do.
^^PPEAL from a conviction by the Magistrate of Matale;
R. L. Pereira, K.C. (with him R. G. C. Pereira); for the accused,appellant.
H. W. R. Weerasoorxya, C.C., for the complainant, respondent.
Cur. adv. tmlt.
270HOWARD C.J:—Robins v.. Grogan.
March 25, 1942. Howard C.J.—
The appellant was convicted by the Magistrate, Matale, for recordingand communicating by letter to another person information, being otpurporting to be' information with respect, to the number, description,disposition and movement of Forces in breach of section 14 (2) of theDefence (Miscellaneous) Regulations published in Government GazetteNo. 8,533 of October 2Q, 1939, and thereby committing an offencepunishable under section 52 (3) of the said Regulations. For this offencethe appellant was fined a sum of Rs. 750. She appeals against herconviction and .sentence. The only evidence called by the prosecutionwas that of Mr. Robins, the Assistant Superintendent of Police, Kandy,who produced a letter dated December 28, 1941, which had been inter-cepted in Censorship on December 31, 1941, and examined by anauthorised Examiner. This letter communicated information withregard to the movements and disposition of troops in Ceylon. Theaddress at the top of the letter was Opalgalla Group, Rattota, and itwas signed “ Phyllis ”. The letter was contained in an envelopeaddressed to Mrs. H. M. C. Barlow, Corrie, Charters road, Sunningdale,Berks, England. In accordance with Censorship requirements thename and address of the sender was written on the envelope as follows : —
“ From Mrs. J. R. Grogan, Opalgalla Group, Rattota, Ceylon”.
Mr. Robins also testified to the fact that the Christian name of Mrs.Grogan was Phyllis, as at the foot of the letter. No evidence was calledby the appellant. Her Counsel contended that the prosecution had notproved that the signature or the handwriting of so much of the letterand envelope as is alleged to be in the handwriting of the appellant wasin her handwriting. In this connection he cited section 67 of theEvidence Ordinance. In convicting the appellant the Magistrate heldthat the prosecution had led sufficient evidence to prove that the appellantwrote the letter and the envelope. He also stated that there was enoughevidence against the appellant to throw the burden on her to show thatshe did not write these documents. As she had not chosen to get into thewitness-box and deny that the letter and envelope were in her hand-writing the evidence for the prosecution was uncontradicted.
In my opinion it is impossible to support the finding of the Magistrate.Section 67 of the Evidence Ordinance is worded as follows : —
“If a document is alleged to be signed or to have been writtenwholly or in part by any person, the signature or the handwriting ofso much of the document as is alleged to be in that person’s hand-writing must be proved to be in his handwriting. ”
A document cannot, therefore, be used in evidence until its genuinenesshas been either admitted or established by proof which should be givenbefore the document is accepted by the Court. Where there has been noadmission as to the execution of a document which has been produced,it becomes necessary to prove the handwriting. No such proof wasadduced in this case by the prosecution. In fact the Magistrate heldthe onus of proving one of the ingredients of the offence was shifted, orput in other words the accused had to establish her innocence.
HOWARD C.J-—Robins v. Grogan.
271
I have come to this conclusion with great regret and in this connectionhave considered whether I am empowered under section 347~ (b) of theCriminal Procedure Code to order a new trial. One can hardly conceiveof a person in the position of Mrs. Grogan not going into the witness-boxand denying the authorship of the letter, if in fact she had not writtenit. There is therefore every reason to suppose that the appellantcommitted this very serious offence. If this is so, she has only escapedpunishment by a flaw in the evidence. On a new trial, legal proof thatthe appellant wrote the letter would no doubt be forthcoming and thetechnical flaw in the evidence would be rectified. At first glance,therefore, it seems to be eminently a case in which I should order a newtrial. Unfortunately it has been laid down that a new trial should notbe ordered to enable the prosecution to fill up gaps in the evidence orwhen the prosecution by-its own negligence failed to produce evidencewhich it was bound to. Thus in Hamdu Meah v. King EmperorMooreJ. stated as follows: —
“ The petition of appeal sets out various contradictions in theevidence and draws attention to the lack of corroboration of the informerin material points. The retrial is apparently ordered for the soleobject of enabling the prosecution to reconcile these discrepancies andto fill up the deficiencies in the evidence pointed out by the appellant.I think it would be unfair to the appellant to order a new trial undersuch circumstances. ”
The same principle was also formulated in Jeremiah v. Vas Thereis no doubt that the principle laid down in the two Indian cases I havecited apply with equal force to the facts of the present case. In thecircumstances, I have no power to order a new trial and the convictionmust be set aside and the appellant discharged. In the result, an offence,the seriousness of which I find it impossible to exaggerate, goes un-punished through the failure on the part of those responsible for theprosecution to ensure that legal proof to establish the offence was beforethe Court. It is difficult to understand the mentality of persons who incontravention of regulations framed for the safety of the country dis-seminate in correspondence information of a military character. It notonly indicates a deplorable attitude of irresponsibilty, but also a totaldisregard of the well being of the country and the Empire of which itforms part. The enormity of the offence in this case is increased byreference made by the writer of the letter to other matters not of amilitary character, but which could not but fail to spread alarm anddespondency amongst those by whom the letter was read. I can onlycharacterise this letter as a document of a most reprehensible character.The communication of its contents did not constitute a mere technicaloffence. In fact the sentence passed by the Magistrate erred if anythingon the side of leniency.
Set aside. 1
1 11 Cr. Law Journal Reports, CSS.
* (1911) 36 Mad. 4S7.