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current in the nullah. The defence did not for one moment contradict the evidence of Mrs. Fairburn s to whether she saw the boy anu girl thrown in or not.
Page 13 of Judge's notes. Cross examination on page 15.
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The statement in the summung up that Mrs. Fairburn remained unshaken in cross examing tion showed to the jury that although we attempted to show that the Appellant did not throw the two children into the nullah, failed to prove that Mrs. Fairburn was not telling the truth, whereas the defence was we accepted that the Appellant was seen by one of the Crown witensses to have thrown two children. We accepted that
but as to the other three children we do not agree with the Crown. That was our case and to say that Mrs. Fairburn was "unshaken" must have conveyed a different idea to the Jury, especially if you read on the same page "She has told you she saw a Chinese man...etc." I suggest there was no question in my cross examination which was directed to contradict Mrs. Fairburn's submission that she saw the boy and the girl thrown into the nullah.
Mr. Fraser:- depositions
Mr. Jacks:-
Mr. Fraser:
MI. Lim:
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Will your Lordships look at the cross-examination in the page 14. The depositions were put in.
What is your point here Mr. Lim?
On page 14 of the depositions (Discussion regarding Mrs. Fairburn's depositions.)
The next point is page 6 of the summing up. The other statement is that the other children may have fallen through the rail. The whole of the first paragraph -
Mr. Hayden:
Refers to Rex v. Beecham 1921 3 King's Bench page 464 Court of Cr. Appeal.
(Discussion on case).
Mr. Eim continues that in some parts of the summming up the reference was not quite correct and that might have confused the jury with what the defence put forward. (What Mrs. Fairburn said discussed).
Mr. Hayden lt seems to me that the frial Judge's summing up wasvery fair.
Mr. Lim: As Your Lordship pleases. The next point is on page 15. 3rd paragraph of the summing up. "The alternative is not to accept at the moment Eric Davis' evidence". To say this is to suggest that the theory put up by the defence is an absurd one. That being so I submit that the main defence was not put up to the jury with sufficient clearness to show what the defence was. The jury had been confused particularly in reference to the summing up on page 15. The defence say whatever happened must have happened between that period of time when the Crown said one thing and the defence another.
3 Cr. Appeal p. 77. King v. Dinnick Heru Note then Judgment page 79. Mr. Hayden:- That case was decided in 1909. The case which I referred to was decided in 1921 be ring on the same point.
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Mr. Lim: But this case was not overruled by that case. I might find tht the facts do not all agree but this principle of law still stands. "However weak the defence is it should be fairly ut before the jury. and when it was said that the defence would be to contradict Eric Davis' evidence, I submit that the defence was not properly put to the jury. This case is confirmed in R. v. Imer. 3. Cr. Appeal p. 22. p. 24. 2nd para. of the judgment. (Mr. Fraser requests Mr. Lim to read on: where- upon Mr. Lim states it is for Mr. Fraser to read out anything if he finds it wrong). (Discussion).
I take the view that taking the summing up as n whole the defence was not fairly put to the jury. The defence put up is consistent with the rest of the evidence.
King v. Sovosky. 1 Cr. Appeal page 99 - Judgment.
Mr. Hayden:- How is that in point?
Mr. Lim:- This is in reference to that statement in the summing up on page 15. that the alternative is not to accept Eric Davis' evidence. Mr. Hay en:- That would be straining the language very much.
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