THE SECRECY OF TELEGRAMS.

New Zealand Mail, Issue 1675, 6 April 1904, Page 60

THE SECRECY OF TELEGRAMS.

IMPORTANT DECISION.

An important point affecting- the secrecy of telegrams was* decided by tilie Full Court of Appeal last week in two Crpwn cases reserved by Air Justice 'Cooper from the criminal sessions held at "Wanganui on the Ist inst. The charges were similar in character and against the same person. In the first case Reuben ITussall, bookmaker, was indicted on. four counts under tho Criminal Code and the Electric Lines Act, 1884, for (1). forging a telegram signed “Fay.ey,” (2) for uttering tho telegram knowing it to have been forged, (3) for wrongfully signing -the telegram without the authority of the person by whom it purported to have ■been issued, (4) for wilfully delivering it without the authority of the person by whom it purported to have been signed. It was proved that the accused was seen in or about the telegraph office at the Wanganui October meeting at or about the time the message was presented, and that it was not signed or sent by the person whose name was attached. On November 2nd Detective Bishop obtained, by the authority of the Electric Telegraph Department, it- was 'stated, from the telegraph office at Wanganui, possession of two other telegrams endorsed •with the name “R. Hassall.” According to the detective’s evidence', the accused admitted that the telegrams were in his handwriting, but denied the authorship, of the “FUyey” message. The question arose as to whether the telegrams procured by Detective Bishop from the telegraph office were admissible as evidence for the purpose of comparing the. handwriting of the accused ■with that in the

ware which formed the subject of the charge, it being admitted that they were written by the accused. Consent to the

production of one had been obtained From tine, recipient but not of the other. Jt was contended by counsel for the defence that the telegrams were inadmissible under section 23 of the Electric Lines Act, 1884, which provides—“No officer or other person employed in or about the working of any telegraph is competent or compellable to give evidence of the contents of any telegram transmitted or presented for transmission, nor to produce the original of any

telegram signed by or on behalf of the sender;*;’ and that the exceptions mentioned in section 24 of the same Act did not apply, inasmuch as (1) the consent of the senders or the recipients of suoh telegrams had not been proved, and (2) the consent of the Commissioner of Electric Telegraphs was not effective, as the offence in respect to which the prisoner was indicted was not in the nature of a felony, or an offence within the class set forth in sub-section 2of section 24. The Crown Prosecutor argued that the documents were admissible as being admit-

todly in the handwriting of the prisoner, and as being covered by the consent of the Commissioner. Mr Justice Cooper wau of opinion that tthe consent of the Commissioner only applied to a case in which an “officer or person employed in or about the working of any telegraph” was called upon to produce any telegram, and that if such an officer had been called, the consent would have been inoperative, as the offence was nob in the nature of a felony. He also held that tha telegrams, having passed out of the custody of the Telegraph Department, and having been shown to the prisoner •by the detective, and admitted to be in the prisoner’s handwriting, could be pros dueod for the purpose of comparison. The evidence was accordingly allowed and the point reserved. The jury found that the prisoner had wrongfully sent the telegram without the authority of the person with whose name it purported to be signed, and that he had without the authority of such person delivered it to a telegraph officer for transmission; but that he had <|one so without fraudulent intent. The prisoner was accordingly convicted on the third and fourth counts and aoquitted on the first and second ootunts. His Honor postponed sentence, and admit the prisoner to hail until the question as to the admissibility of tho telegrams as evidence had been decided by the Court of Appeal. If they were not admissible, he agreed that there was no case to oro to the jury, and' that the accused ought to have been discharged. In the second case reserved,the Grown abandoned the first two counts of the indiotment aganst Hassall. and he was convicted on the third and fourth. The n,ame of “D. Sullivan” was signed to the telegram in this case. Mr Treadwell argued against the validity of the conviction,,and Mr Myers supported the Grown case, Aftr a short consultation, the Court gave judgment.' - The-Chief Justice said it oould not be held that the detective was an officer of the Telegraph Department, consequently lie was not a person prohibited from producing the telegram's mentionV; qd under section 23 of the Electric Lines Act. In his opinion the convictions ought to be affirmed in both cases. Mr Justice Williams concurred. To have evidence excluded there should be some statutory provision expressly excluding it. - Justice Denniston was of the same opinion.

Mr Justice Edwards agreed that there appeared to bo no prrvluKHi.-.r,

the production of any telegram as evidence in an inquiry in a Court cf Justice, except by an “officer or person employed in or . aboiut the working of a telegraph.” The circumstances under which these telegrams were produced did not come under that prohibition. Section 23 was devised, no doubt, to give the public confidence in the secrecy of telegrams. Probably that confidence might be shaken by the result- of the present proceedings, but that was a matter for the Legislature. Mr Justice Cooper reiterated his opinion given in the Lower Coiurt. .

M*r Justice Chapman, in concurring with the other members of the Court, held that it was clear section 23 did not apply to the case. Whether it was right to deliver over telegrams, as in this case, to officers of the police engaged in investigating crime was another matter. It was accordingly directed that certificates should issue in both cases that the convictions would be affirmed, and the accused to come up fer sentence.