Re Harris
| Jurisdiction | Jamaica |
| Judge | (Robinson, P., Henry and Melville, JJ.A.) |
| Judgment Date | 01 January 1952 |
| Court | Court of Appeal (Jamaica) |
| Date | 01 January 1952 |
(Robinson, P., Henry and Melville, JJ.A.)
R.N.A. Henriques and J. Harding for the appellant;
N.W. Hill, Q.C. and Miss V. Snook for the Crown.
(1) R. v. Aspinall(1876), 13 Cox, C.C. 563, dicta of Amphlett J. applied.
(2) R. v. De BerengerENR(1814), 3 M. & S. 67; 105 E.R. 536; [1814–23] All E.R. Rep. 513.
(3) R. v. Doot, [1973] A.C. 807; [1973] 1 All E.R. 940; (1973), 57 Cr. App. R. 600.
(4) R. v. Governor of Pentonville Prison, ex p. Kirby, [1979] 1 W.L.R. 541; [1979] 2 All E.R. 1094.
(5) R, v. Governor of Pentonville Prison, ex p. TarlingUNK(1978), 70 Cr. App. R. 77.
(6) R. v.Jones, [1898] 1 Q.B. 119.
Criminal Procedure Code (Law 13 of 1975), s.147:
‘The proper time for making objections at a trial on the grounds of improper admission or rejection of evidence, or any irregularity or informality in the proceedings (other than defects in the indictment) shall be as follows
(a) if the objection is to admission or rejection of evidence, at the time of such admission or rejection . . . .’
Penal Code (Law 12 of 1975), s.293(g):
‘Whoever conspires with another or others to effect any of the following purposes, that is to say-
. . .
(g) to effect any lawful purpose by any unlawful means, is guilty of an offence.’
Fugitive Offenders Act 1967 (c.68) (as extended with modifications to the Cayman Islands by the Fugitive Offenders (Cayman Islands) Order 1968 (S.I. 112/1968), s.3 and Schedule), s.3(1): The relevant terms of this sub-section are set out at page 281, line 33 – page 282, line 8.
s.7(4): ‘Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person, that the offence to
which the authority relates is a relevant offence and is further satisfied-
(a) where that person is accused of that offence, that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the court;
(b) where that person is alleged to be unlawfully at large after conviction of the offence, that he has been so convicted and appears to be so at large,
the court shall, unless his committal is prohibited by any other provision of this Act, commit him to custody to await his return thereunder; but if the court is not so satisfied or if the committal of that person is so prohibited, the court shall discharge him from custody.’
s.11: The relevant terms of this section are set out at page 286, line 5 – page 287, line 4.
Prevention of Fraud (Investments) Act 1958 (6 & 7 Eliz. II, c.45), s.13:
‘(1) Any person who, by any statement, promise or forecast which he knows to be misleading, false or deceptive, or by any dishonest concealment of material facts, or by the reckless making of any statement, promise or forecast which is misleading, false or deceptive, induces or attempts to induce another person-
(a) to enter into or offer to enter into-
(i) any agreement for, or with a view to, acquiring, disposing of, subscribing for or underwriting securities or lending or depositing money to or with any industrial and provident society or building society, or
(ii) any agreement the purpose or pretended purpose of which is to secure a profit to any of the parties from the yield of securities or by reference to fluctuations in the value of securities, or
(b) to acquire or offer to acquire any right or interest under any arrangements the purpose or effect, or pretended purpose or effect, of which is to provide facilities for the participation by persons in profits or income alleged to arise or to be likely to arise from the acquisition, holding, management or disposal of any property other than securities, or
(c) to enter into or offer to enter into an agreement the purpose or pretended purpose of which is to secure a profit to any of the parties by reference to fluctuations in the value of any property other than securities,
shall be guilty of an offence, and liable to imprisonment for a term not exceeding seven years.
(2) Any person guilty of conspiracy to commit an offence under the preceding subsection shall be punishable as if he had committed such an offence,’
Extradition and Fugitive Offenders-committal proceedings-documents from requesting country-‘copies of documents’ only admissible under Fugitive Offenders Act 1967, s.11(1)(b), even if duly authenticated, if evidence explaining failure to produce original
Extradition and Fugitive Offenders-extraditable offences-offence in Cayman Islands-unnecessary for foreign statute to have statutory equivalent in Islands-equivalent common law offence may be ‘relevant offence’ under Fugitive Offenders Act 1967, s.3(1)
The appellant was committed to custody to await his return to England for trial on charges of conspiracy.
A warrant was issued in England against the appellant charging him with conspiring with others contrary to common law and s.13(2) of the Prevention of Fraud (Investments) Act 1958 (a) to induce persons to enter into agreements to acquire shares in a company, by falsely stating that certain quotations for the price of shares in that company were quotations in respect of genuine dealings in such shares, which he knew to be misleading, False or deceptive; and (b) fraudulently to induce persons to enter into agreements to invest moneys for the purpose of acquiring shares in a company, by misrepresenting that the management, financial affairs and prospects of that company were accurately described in a brochure which he knew to be misleading, false or deceptive.
A request was made to the Government of the Cayman Islands on behalf of the Government of the United Kingdom for the appellant”s return to that country from the Cayman Islands and the Cayman magistrate was duly authorized to proceed with the case in accordance with the provisions of the Fugitive Offenders (Cayman Islands) Order 1968. The appellant was consequently committed to custody to await return to the United Kingdom.
He applied to the Grand Court for a writ of habeas corpus. Documentary exhibits tendered at the hearing in support of the case against the appellant included two written statements allegedly made by him (which were not the original statements but unsigned typewritten documents) and photocopies of various documents allegedly collected from his office and elsewhere. The originals of these documents had been properly admitted in the English court but no explanation was given for not tendering them in the Cayman court.
Although it had originally escaped the notice of counsel that these documentary exhibits were not originals, when the true position was ascertained counsel did not object to their admissibility and only did so after the case for the requesting Government was closed. The Grand Court found that the documents were admissible for the purpose of determining whether a prima facie case existed against the appellant and, on the basis of the evidence overall, concluded that it was sufficient to support two of the charges against him and confirmed the order for his committal.
On appeal, the appellant submitted, inter alia, that (a) the charges set out in the warrant did not refer to ‘relevant offences’ within the meaning of s.3(1) of the Fugitive Offenders Act 1967, as extended to the Cayman Islands; (b) the alleged acts did not amount to conspiracy to effect a lawful purpose by unlawful means and did not therefore constitute an offence under s.239(g) of the Penal Code; (c) the documentary exhibits were inadmissible since they failed to meet all the admissibility requirements of s.11 of the Fugitive Offenders Act; and (d) there was insufficient evidence of the conspiracies charged to Justify his trial thereon.
The respondent submitted in reply that the documents tendered in evidence, although they were not originals, were nevertheless admissible by virtue of s.11(1)(b) of the Fugitive Offenders Act.
Held, ordering that a writ of habeas corpus issue for the release of the appellant:
(1) The offences with which the appellant had been charged were ‘relevant offences’ within the meaning of the Fugitive Offenders Act 1967, s.3(1). Although it was true that there was no statutory Cayman equivalent of s.13 of the Prevention of Fraud (Investments) Act 1958, the conspiracies alleged would (per Henry, J.A. at page 282, line 37 – page 283, line 39) have been indictable at common law in the Cayman Islands, since they were clearly designed to achieve unlawful (though not necessarily criminal) purposes by deceiving and causing loss to investors in inducing them to pay more for shares than they would otherwise have done. Alternatively (per Melville, J.A. at page 288, lines 31–41), they would have constituted offences in the Islands under s.293(g) of the Penal Code (conspiracy to effect a lawful purpose by unlawful means)-and in either case the requirements of s.3(1)(c) of the Fugitive Offenders Act were therefore satisfied.
(2) Nevertheless, the documentary exhibits submitted in support of the request for the appellant”s return to the United Kingdom were inadmissible in the Cayman Islands. It was conceded that the documents were not the originals tendered to the UK court. Interpreting s.11(1)(b) of the Fugitive Offenders Act strictly (as the Act was penal in nature and effectively changed the common law rules of evidence), it followed that the provision could not be read as changing the local rules relating to admissibility. ‘Copies of documents’ which might be admitted in
evidence under the section could therefore only be so admitted if they were otherwise admissible under Cayman law. Although the present documents were authenticated as true copes of the originals (as required by the Act), no evidence had been led explaining the...
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