R v Hardie-Henry

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Henry, J.A.
• Judgment Date: 02 December 1977
• Neutral Citation: JM 1977 CA 46
• Docket Number: Criminal Appeal No. 132 of 1977
• Date: 02 December 1977

Court of Appeal

Henry, J.A.; Robotham, J.A.; Rowe, J.A.; (Ag)

Criminal Appeal No. 132 of 1977

R.

and

Hardie-Henry

Appearances:

David Muirhead Q.C. & Dr. L.G. Barnett for appellant

Ian Forte, Director of Public Prosecutions and Henderson Dormer for crown

Criminal Law - Appeal vs conviction (Contravention of Official Secrets Act)

Henry, J.A.

1 On November 18, 1976 the appellant was convicted by Miss M. Morgan a Resident Magistrate for St. Andrew for conspiracy to contravene section 2 (1) (a) of the Official Secrets Act 1911. The particulars of the offense were:–

“Allan Issacs and Horace Hardie-Henry, on divers days between the 24th day of November, 1975, and the 10th day of December, 1975, in the parish of Saint Andrew, conspired together and with certain persons unknown to communicate to other persons not being persons to whom it was in the interest of the state their duty to communicate it, the information contained in the Confidential Cabinet Submission 544/MF-54 BUDGET REVIEW 1975/1976 and Financial Profile 1976/77 which the said Allan Isaacs and Horace Hardie-Henry had obtained by virtue of their office under Her Majesty, namely, Minister of Minning and Natural Resources and Permanent Secretary in the said Ministry.”

2 The appellant who at the time of the alleged offence was the Permanent Secretary in the Ministry of Mining and Natural Resources was jointly charged with Allan Isaacs who was at that time the Minister but the trial ended with the acquittal of Isaacs.

3 In support of the charge the prosecution led evidence indicating the following sequence of events:–

1

On November 24, 1975 Cabinet Submission M.F.-54 was prepared and of the 34 copies duplicated from a stencil 25 were delivered to the Cabinet Office for circulation to members of Cabinet. 2. The submission was intended for cabinet consideration that sane day and copies were therefore laid on the cabinet table for members attending the meeting. 3. Among the members attending was the Minister of Mining and Natural Resources who at the end of the meeting took with him his copy of the submission. 4. The following morning that copy of the submission (Ex. 3A C.G.) was handed to the appellant who retained possession of it. 5. On Wednesday December 10, 1975 there appeared in the Daily Gleaner a transcript of what was described as “the Ministry (of Finance) Paper which was referred to by the Leader of the Opposition Mr. Edward Seaga in his broadcast on R.J.R. on Monday last.” 6. That same day the document from which that transcript was made (Ex. 1) was recovered from the Gleaner Company. It was what the expert witnesses for the crown opined to be a direct photo-copy of Ex. 3A C.G. made on a copying machine in the office of consulting Services Ltd., a company whose sole director was Mr. Edward Seaga. 7. On that same day also the Cabinet Secretary on the instructions of the Financial Secretary recalled Cabinet Submission M.F-54, and the request for that recall was communicated to the appellant. 8. The appellant, while admitting that the document was in his possession did not for various reasons which will later be recounted immediately return it and eventually it was returned on the following Monday, December 15, 1975.

4 The learned Resident Magistrate had before her the documents in question and from her judgment it appears that she quite properly conducted a thorough personal examination of them with a view to deciding whether the opinion of the two expert prosecution witnesses, Superintendent Bloomfield and Mr. Ellen ought to be accepted. These experts conducted independent examinations of all 34 stenciled copies of the submission and of Ex. 1, discovered identifying points of similarity between Ex. 1 and Ex. 3A C.G. which did not appear on the other 33 copies of the Cabinet Submission and concluded that Ex. 1 was a direct photo-copy of Ex. 3A C.G. The learned Resident Magistrate did not accept all the points of similarity described by Superintendent Bloomfield, but although at least one of these appears to be a point also recognised by Mr. Ellen (the ether export) the learned Resident Magistrate nevertheless found that her own visual examination revealed his conclusions on Ex. 19 (including the rejected point of similarity) were correct. This is on the face of it an inconsistent finding.

5 The prosecution sought to shown by the evidence of Mr. Ellen and Superintendent Bloomfield that Ex. 1 (the Gleaner document) was a photo-copy of a stenciled document. This evidence was not challenged and must have been accepted by the Resident Magistrate. Next the prosecution sought to show that Ex. 1 was a direct photo-copy of a stenciled original in contradistinction to being a copy of a photo-copy. Mr. Ellen gave two reasons for his opinion that Ex. 1 was a direct copy of a stenciled original. Firstly, he said the 813 Xerox machine reduced the copy by some 6% and by measurement Ex. 1 was reduced once only. With this reduction Mr. McDonald, the Xerox expert was in agreement. Secondly, Mr. Ellen said that when a photo-copy is itself photo-copied extraneous marks, e.g. dots and lines which appear on the first photo-copy are doubled in the second photo-copy. Mr. Ellen saw no such doubling of marks and dots on Ex. 1 and so concluded that it was indeed a direct copy of a stenciled original. This evidence of Mr. Ellen was not challenged. Consequently there was evidence on which the Resident Magistrate could find that Ex. 1 was not made from a copy of a photo-copy, if the latter had been made on an 813 Xerox machine.

6 On examination it is patent that the layout and content of Ex. 1 is identical with that of the 34 stenciled copies of the Cabinet Submission. It would be fanciful to suppose that someone getting hold of a “faired copy” could produce a stencil in every respect identical to one prepared earlier from a draft with multiple corrections. It would be equally fanciful to expect that someone coming into possession of the Cabinet Submission would then have it re-typed so as to exclude the critical words “Cabinet Submission” and then go on to roll off stencil copies and still further to photo-copy one of those stenciled copies for despatch to the Gleaner. It seems that there was evidence from which an inference was capable of being drawn by the Resident Magistrate that Ex. 1 was reproduced from a stenciled copy prepared from the stencil skin Ex. 2. That being so it was essential for the prosecution to go further and show from which (if any) of the 34 stenciled copies in evidence as Ex. 3 the photo-copy Ex. 1 was made. The evidence of Mr. Ellen and Mr. McDonald was to the effect that Ex. 1 was made from an 813 Xerox machine. Mr. Wynter's evidence was to the effect that having seen Ex. 1 on his desk at the Gleaner Company he spoke to Mr. Seaga and confirmed the authenticity of Ex. 1. There is in the office of Consulting Services Ltd. an 813 Xerox machine. Mr. Seaga is the sole director of that company. Tests carried out by Mr. Ellen and comparisons made by him of photo-copies made from four 813 Xerox machines in the possession of Government departments, led him to the opinion that Ex. 1 was made on the 813 Xerox machine in the office of Consulting Services Ltd. I am of the view that a finding of the Resident Magistrate to this effect is based on credible evidence and is a reasonable one, notwithstanding the submission made on behalf of the appellant that the extraneous marks relied upon by Mr. Ellen for his opinion identify the screen used in conjunction with the machine rather than the machine itself.

7 The area of greatest importance and in this case of greatest difficulty is the finding of the Resident Magistrate that “there is more than ample evidence that Ex. 1 was photo-copied for Ex. 3A C.G. and I so find as a fact.” Although several grounds of appeal were argued before us, to my mind the entire appeal hinges on this one vital issue and on whether the finding of the learned Resident Magistrate on it can be said to be unreasonable. For her conclusions she relied heavily upon the evidence of Mr. Ellen which she accepted in its totality. Mr. Ellen arrived at his conclusions by a process of visual comparison using magnification where required and as far as comparison was concerned using a comparison microscope. In his process of examination and comparison, Mr. Ellen came upon what he described as certain “accidental marks” produced in the process of duplicating from the stencil skin used to make Ex. 3A C.G. Ex. 1 reflected these accidental marks and none of the other documents examined by Mr. Ellen contained similar accidental marks. As a result Mr. Ellen said, “I can see no practical possibility of the marks which I have pointed out and demonstrated on the chart occurring on another of the duplicating bundle.” He went on to say, “If further bundles were made the chances of finding these marks on one of those is so remote that I consider it negligible, that is taking all the marks together.”

8 That is a very powerful opinion and in the absence of any evidence in contradictions if his evidence was believed and his opinion accepted by the Resident Magistrate as well founded, it was a reasonable basis for her conclusion that Ex, 1 was photo-copied from Ex. 3A C.G. There was however, a most formidable hurdle in the path of the prosecution as when Ex. 1 is inspected it immediately appears that certain words, figures and lines which are on Ex. 3A C.G. do not appear on Ex. 1 is dissimilar to 3A C.G. in that whereas the following appear on 3A C.G. they do not appear on Ex. 1:–

• (a) the words “M.F-54 Cabinet Submission” at the top of page 1.

• (b) the word “Confidential” stamped at top and bottom of page 1.

• (c) the agenda item “3 (2)” written in pencil at top right hand corner of page 1.

• (d) a number of vertical lines in the left hand margin some of which touch...