11
could have been deposited on those articles by secondary contamination through contact with the clothing of the deceased and that they need
not therefore have been deposited at the time of the killing. It
was counsel's point that since such a secondary contamination was
shown to be a reasonable possibility this fortified the contention
that it had not been conclusively proved that the fibres found upon
the girl's clothing, even if they came from the sweater, P.25, must
have been deposited there by a person wearing the sweater at the time
of the murder. Certainly the Crown sought to draw from Mr. Edgley's
evidence the inference that the fibres upon the sweater exh. P.25
were deposited at the time of the killing while that sweater was being
worn by the killer. But the important possibility, from the defence point of view, was put in clear terms to the jury in the summing-up
viz : that the contact which caused the transfer of the fibres from
P.25 to the girl's clothing could have taken place by some contact
with the wearer of that sweater and the girl at some time and upon
some other occasion prior to the killing. That was an evident
possibility even apart from the passage n Mr. Edgley's evidence upon
which counsel for the defence sought to rely. Indeed it is difficult
to see how Mr. Edgley ́s evidence concerning the possibility of cross-
transfer between the cord, the slippers and the T-shirt could have done much either to illuminate or to eliminate the possibility that the
contact which caused the transfer of the libres from exh. P.25 to the girl's clothing had nothing to do with the killing.
Then it was said that the learned Chief Justice exceeded the
bounds of permissible comment in dealing with the appellant's failure to give evidence at the trial. A useful example of a comment of this sort of comment which was held by the Court of Appeal (Criminal Division) in England to have exceeded judicial propriety is to be found in the recent case of R. v. Sparrow It is unnecessary to enter into the facts, the arguments or the principles get out in the report of that case beyond noting that it endorses the opinion of Lord Parker .J.
(4)
(3)
in Reg. v. Bathurst to the effect that, juries must not be told that the mere fact that an accused person has failed to give evidence on his own behalf is to be equated with guilt of the offence charged. In Reg. v. Sparrow the trial judge had several times commented in extremely strong terms on the fact that the prisoner had failed to give evidence and these comments might be said to have drawn to a
(3) 3 Weekly Law Reports 1973 488. (4) (1968) 2 Q.B. 99.