1942 Present: Howard C.J,

ROBINS v. GROGAN.

90-M. C. Matale, 9,179.

Document-Letter written in bleach of Defence Regulations-Proof of handwriting-Re-trial-Evidence Ordinance, s. 67.

A document cannot be used in evidence, unless its genuineness has been either admitted or established by proof, which should be given before the document is accepted by Court.

A new trial should not be ordered to enable the prosecution to fill up gaps in the evidence or when the prosecution by its own negligence failed to produce evidence, which it was bound to do.

APPEAL 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. Weerasooriya, C.C., for the complainant, respondent.

Cur. adv. vult.

March 25, 1942 HOWARD C.J.

The appellant was convicted by the Magistrate, Matale, for recording and communicating by letter to another person information, being or purporting to be information with respect to the number, description disposition and movement of Forces in breach of section 14 (2) of the Defence (Miscellaneous) Regulations published in Government Gazette No. 8,533 of October 20, 1939, and thereby committing an offence punishable under section 52 (3) of the said Regulations. For this offence the appellant was fined a sum of Rs. 750. She appeals against her conviction and sentence. The only evidence called by the prosecution was that of Mr. Robins, the Assistant Superintendent of Police, Kandy, who produced a letter dated December 28, 1941, which had been intercepted in Censorship on December 31, 1941, and examined by an authorised Examiner. This letter communicated information with regard to the movements and disposition of troops in Ceylon. The address at the top of the letter was Opalgalla Group, Rattota, and it was signed" Phyllis". The letter was contained in an envelope addressed to Mrs. H. !VI. C. Barlow, Corrie, Charters road, Sunningdale, Berks, England. In accordance with Censorship requirements the name 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 called by the appellant. Her Counsel contended that the prosecution had not proved that the signature or the handwriting of so much of the letter and envelope as is alleged to be in the handwriting of the appellant was in her handwriting. In this connection he cited section 67 of the Evidence Ordinance. In convicting the appellant the' Magistrate held that the prosecution had led sufficient evidence to prove that the appellant wrote the letter and the envelope. He also stated that there was enough evidence against the appellant to throw the burden on her to show that she did not write these documents. As she had not chosen to get into the witness-box and deny that the letter and envelope were in her handwriting 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 written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. "

A document cannot, therefore, be used in evidence until its genuineness has been either admitted or established by proof which should be given before the document is accepted by the Court. Where there has been no admission as to the execution of a document which has been produced. it becomes necessary to prove the handwriting. No such proof was adduced in this case by the prosecution. In fact the Magistrate held the onus of proving one of the ingredients of the offence was shifted,