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for here. In our view the matter was left fairly to the jury in the present case. What is open to criticism, however, is the statement in the summing-up that the defence were in effect alleging a conspiracy by the police officers concerned "to frame the accused for a murder they did not commit". Mr. Bernacchi assures us that he never suggested there had been a conspiracy to do that his case was that the police were conspiring to give false evidence against the Accused because they believed them to be guilty. It may be that the learned judge had a different understanding of what was being suggested but we need not concern ourselves further with the matter for, if error there was, we do not think it can have resulted in any substantial miscarriage of justice.
That part of the appeal which occupied most time was a consideration of the allegation that the learned judge entered into the arena in the course of the trial to such an extent that the Applicants were denied a fair trial. It was a very long and unnecessarily protracted trial and the transcript runs into a total of 4,055 pages. Counsel has drawn our attention to 213 pages on which appear what he submits are the most serious of the interventions by the judge. We have particularly considered these and have noted other examples during the course of the hearing of the appeal. Each of us tabulated in his own way his opinion on the interventions found on each of the pages to which we were specifically referred and we regret to say that we all found ample ground for complaint about the conduct of the trial and concluded that many more of the interventions by the judge than the ten instances conceded by counsel for the Crown could not be justified. These included instances where -
(a) the judge took over the examination or cross-examination of a witness when there was no excuse for so doing, in particular to question him about inconsistencies between what he had just said and his earlier evidence;
(b) the judge interfered during the case for the defence to ask
whether a matter had been put in cross-examination of the prosecution witnesses;
(c) the judge asked questions which were proper and timely but protracted his interrogation to such an extent that it unreasonably interfered with counsel's conduct of the case.