17
18
Br. Hayden that mutat.
Mr. Lám * No.
what part of your notice of mp, cal refers to this
ap notice of the amended appeal
Er Haydens You have to be confined strictly to the grounds mentioned in your app cal. Mr. Lim The first point is this- 'That the Learned Trial Judge did not with sufficient clearness state to the Jury what the main defence was, namely that one or more of the three children other than those seen by rs. Fairburn were either playing in the nullah, or acciden thɣly fell over into the nullah while throwing stones.' The point is this- although the learned Trial Judge warned the jury to disregard what had been said of Mary Pine's evidence, he made certain mention in his summing up which has directly or indirectly some reference to that part of Mary Pine's evidence which was mentioned in the opening.
Är. Haydon * mumming up have said
Is this what you mean to say " The Chief Justice' a as influenced by the evidence of what Mary Pine would
Le hat I am much obliged ́y Lord.
Jackes What are the evidences of that influence ?
Mr. Limi First of all on page 6. My submission is that the learned Trial Judge had no ground to aamume that the Appellant was on the bridge there in fact the evidence was to the contrary.
Br. Jacks He was soon there throwing the children in. He must have been there.
Limi- But not before he was seen by Mrs. FairburY.
AT. Haydeni - This is as much a part of the case for the Defence as for the Crown.
The other reference is on page 14. About the two bruises. beginning from the 4th paragraph. lle says 'considerable importance That is very misleading because in the absence of Mary's evidence the two bruises which were described by Mary Pine could have been no more than this - the two bruises might have been caused by any one of the other people in the nullah who tried to save kary Dine. 1 suggest that the learned trial Judge should have directed the Jury that those two bruises could have been no more than that they could have been caused by one of the many men who jumped down into the nullah to rescue her. It can be mo more than tist in the absence of inry's evidence. There is the evidence of the N.A.^.E.I. boy on page 18. He got hold of her. That at least is evidence of one of the Crown witnesses who got hold of her and he was twice washed away by the force of the current and had lost hold of Mary.
(Mr. Haydan says it would have been difficulty KÊxxx for anyone effecting a rescue to have made those bruises on Mary's neck considerin their position.)
Mr. Lim The next paragraph S. page 14.
Kr. Hayden Your point is - these observations made by the learned Trial Judge can have no point unless they are intended to indicate that the bruises were caused by accusedb
Mr. Lim- Xo, in the absence of Mary's evidence it is misleading to the Jury to say that it is important in order to fit in with this $ig saw of pieces'. Although the jury were warned to disregard what was said by the Crown in its opening, it may have had a contrary effect. They may unconsciously have said "These two marks must have been made by the accused when he seized hold of bary and threw her in."
(Further reiteration by r. Lis that remark re bruises was misleading to the Jury).