October 25, 1934
15.1
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Press
CHINA OVERLAND TRADE REPORT
1017
NULLAH APPEAL FAILS
Court Deals With Points
Raised
The Criminal Court of Appeal, with Mr. Justice P. Jacks and Mr. Justice J.J. Hayden on the Beach on Wednes- day dismissed the appeal of Ng Loi Yuen, who was re- cently sentenced to death for the murder of Michael Pine.
In doing so, however, they added that they had con- fined themselves to the points at issue, and did not desire that their decision should in any way affect the strong re- commendation for mercy made by the jury at the conclu- sion of the original trial.
Mr. R. C. H. Lim, instructed by Mr. T, P. K. Kemble was for the appellant and Mr. J. A. Fraser, instructed by Mr. W. J. Lockhart Smith was for the defence.
In delivering the decision of the Court, Mr. Justice Jacks dealing with the admissibility of the evidence of Mrs. Fairburn, said that Counsel for the appellant had submitted that the evidence was inadmissible and should not have been put to the jury in the absence of the evidence of Mary Pine. The Court, however, felt no hesitation in coming to the con- clusion that her evidence formed part of the res gestae and was therefore admissible.
"With regard to the refusal of the learned Trial Judge to with- draw the case from the jury at the close of the case for the Crown," added Mr. Justice Jacks, "we are satisfied that the cumula- tive effect of the evidence for the prosecution was such as to call for an explanation on the part of the appellant. We therefore consider that the learned Trial Judge was correct in refusing to withdraw the case from the jury.
Discretion Of Trial Judge
"The point that the Trial Judge refused to withdraw the case from the jury on the failure of the Crown to produce Mary Pine as a witness was a matter for the dis- cretion of the Trial Judge with which we have no power to inter- fere. In this case, we consider that the discretion was properly exercised."
Referring to the next ground of appeal--that the verdict was against the weight of the evidence -Mr. Justice Jacks said that in order to succeed, it was for the appellant to show that the verdict was unreasonable and could not be supported having regard to the evidence. In the opinion of the
Court, the evidence showed that the appellant had both the op- portunity and the motive for committing the crime and the fact that he was seen to throw two of the children from the bridge into the nullah and was observed being carried by the current down the nullah at the same time as Nor- man Stone and Michael and Mary Pine were being carried along it, led one irresistably to the conclu- sion that all five children and the appellant entered the nullah at approximately the same time.
Too Great A Co-incidence
The defence had admitted that the appellant threw or dropped Tony Flood and Fay Bromley into the nullah but suggested that the other children either accidentally fell from the bridge into the nullah or that they climbed into the nullah and then accidentally siipped into the water. "We think it to be too great a coincidence that the other three children should have accidentally fallen into the nullah at the same time as the appellant threw Tony Flood and Fay Bromley into the water." Mr. Justice Jacks continued. "We therefore consider the verdict not to have been against the weight of the evidence.”
Coming to the question of fact, it had been submitted that there was a miscarriage of justice in that the statement in the Crown opening relating to Mary Pine's evidence seriously prejudiced the defence. Learned Counsel for the appellant submitted that the words used by Counsel for the Crown had such a material bearing on the issue and were of such serious import that the jury could not,
notwithstanding any caution by the Judge, put the matter entirely from their minds.
Counsel's Statement
The Court could not agree with that contention for the statements referred to were not supported by any evidence, and the Trial Judge had taken special care not only to warn the jury to pay no atten- tion to those remarks, but throughout his summing-up, he impressed upon the jury that there was no direct evidence to show that the appellant had thrown Michael Pine into the nullah, and on at
least two occasions he directed them that if they had any reasonable doubt that the appellant caused Michael Pine's death, they should give him the benefit of that doubt. Bearing this in mind, the Court could not believe that the statements in question made by Counsel for the Crown at the opening of the case actuated the minds of the jury when considering their verdict.
"We are of the opinion that, apart from any evidence which Mary Pine might have given, the evidence adduced at the trial was sufficient to enable the jury to arrive at their verdict. We con- sider that it was the only rational conclusion they could have reach- ed, and that there was therefore no miscarriage of justice," con- tinued Mr. Justice Jacks.
No Misdirection Regarding the allegation of mis- direction by the Trial Judge, the Court considered that the Trial Judge had dealt sufficiently fully with the defence as to leave no doubt in the minds of the jury what the actual defence was and there was no misdirection on this point. It was not necessary to deal in detail with all the points of alleged misdirection, but the Court was satisfied that they were devoid of substance.
Appeal Dismissed
"In a lengthy summing-up, it is easy to pick out a word here or a phrase there for criticism, but we have felt no difficulty in com- ing to a conclusion that there was no misdirection on any of these points, and we are satisfied that the manner in which the case was left to the jury was eminently fair in every respect. The appeal must therefore be dismissed," said Mr. Justice Jacks.
"We have confined our attention to the points at issue put before us and do not desire that our decision should in any way affect the strong recommendation for mercy made by the jury at the conclusion of the trial," the Court concluded.