18
it should he
MY LAMI Next point refers to Mary's identification of appealantţ at p.13 of the humming Up. About the middle of the page. "Mary was then brought in etc. "
Mr. Hayden'- Have you referred to this in your grounds?
Limi
*
This is taken generally on the first ground of appeal. "It may be no more than that* I submit that sentence is misleading. I submit "It can be no more than that," The jury might think that it might mean she identified the appellant as the man who threw her in. In the absence of Mary's evidence the defence would be prejudiced.
Mr. Hayden- It is a nice refinement of language. (Discussion and Mr. Lim said if nothing had been mentioned of what Mary Fine would say then this summing up would be free from any criticism.) (Further discussion as to how Mary's Fine identification mentioned in the opening of Crown's case would imply appellant as man who threw her in. Er. Fraser said that as far as he remembered was that accused would beidentified by Frs. Jairbum and Mary Pine,
Mr. Limi Roscoe on Or. Evidence page 121 - 2nd para. 15th edition. under the headings "Inadmissible evidence."
Er. Hayden'- That is a misrepresentation of evidence this is not in this case.
Mr. Lâm quotes Dibble's case.
One Criminal Appeal p.155. Then Judgment of the case on p. 157 Mr. Haydeni- That goes to show that each case depends on its own circumstances.
My Limi- Yes, but the main point is this. That however strongly the learned trial judge might have cautioned the Jury, once evidence which should not have been before the jury, had been before the jury, that mischief is done and cannot be undone, unless the Crown Can say that the jury were not in any way influenced by the opening in reference to Mary Pine's evidence.
(Discussion as to how jury must have been affected by the mention of Mary's ines in the Crown's opening).
Mr. Lim The Crown say this. There were these children on the bridge. One of them left at a certain time and was going home. It was at that time that the appellant threw these three other children into the nullah. #hatever happened must have happened during the time that ric avis left the other five children, to go home and have a drink, and the time that his attention was attracted by a sorean, The Crown gave evidence that during that short space of time at least two children were seen to be thrown by appellant. During the time that Bric Davies left them and the time when the appellant threw the first of the two children into the nullah, no one knew what happened they were asked to guess. Now, the Crown say, you have to infer from that that the accused must have thrown or pushed the other three children into the nullah. The defende say this: "During that short space of time that same short space of time it was equally possible that the children who were playing, throwing stones in the hullah, may have fallen over. Then the cause of death would be equally consistent with the opinion of Dr. Valentine. The Crown ask thê Jury to infer one thing that the children wer: pushed or thrown into the nullah.
G
Mr. Hayden- The question for the Jury was which was the more likely to happen.
Mr. Lim 1- If both the theory put forward by the Crown and put forward by the Defence are equally consistent then ...
Mr. Hayden Is it equally consistent ? that is the point.
Kr. Jacks:- That is a matter for the Jury.
Mr. Lima- I submit that the sum total as a whole or separately was
not wholly inconsistent with the appellant's innocence.
Mr. Hayden - The appellant was seen to throw in two of the five
children. You want the jury to believe that the other fell into the nullah accidentally
Mr. Limiỏ Is that not equally consistent ?