23
dis
Lo Alis 20 Jay it please Your Lordships. fter the adjournment I read through the case which Your Lordship referred to in iing v. Joecham in reference to the second ground of app anl namely xxxk EXKXKAŽEIKE - 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 ther than those seen by kis, Fairburn were either playing in the nulla, or accidentally fell over into the nullah while throwing stones."
"
After reading that case I discovered that in that in case the misdirection was in the form of omission. (Ascuss on on the case in comparison with case for the defence).
Chat being the position I submit the authorities which I had quoted to your Lordships xxxxts yesterday in support of my submission still ø tand that it is a paramount rule of law that the trial judge should have put the defence fairly to the jury and taking these three points which I mentioned, I submit that the misdirection on tunt point was so material that the ixx appeal must be allowed on that ground.
"hen we left yesterday I reserved my right to place before Your Lorsahips the act authorities in support of the 3rd of main ground of appeal on the question of fact-namely misdirection. King & Hall, 11 Ur. Appes) page 227, - at page 225. Judgment. King 71som - l. 7 page 4
King y. Mam -
ale 7 Zago 135.
beginning at page 138,
In this case before Your Lordships there was, I submit, no evidence on which the Jury could convict to have returned the verdict of guilty. As I have said before, the defence put up the two theories which were equally consistent with all the evidence a dduced before the jury, and at the most, putting the Crown's case at its very highest, I say the Crown has only proved suspicion and in deliberating over the verdict the Jury must have been influenced by those three material misdirections which I dealt with yesterday.
There is one other point. As to the bruises on Hary Pine'; neck. If it had not been mentioned that she was caught by the appellant by the neck and thrown into the nullah that piece of evidence would be of no importance at all, but that fact having been disclosed to the jury....
Mr. Haydeni- Do you admit you made mention of that Kr. raser?
Lius That is in the summing up, Zy Lord.
a
Taser 1 I think I already said in this trial that did suggest either in my opening or in my summing up that these bruises my have been caused by the accused by the appellant in this case, in *x*x* lifttárt Jary to throw her over the rails. That was suggestion which it was open to me to make. I never said that any witness would give evidence on that point because no witnes could have given evidence on that point,
It was my
Mr. Hayden- That is quite a different matter then. Broger- No witness could have given evidence on that. suggestion and it was part of the Crown case and I submit, it WA B quite a proper suggestion to make in the circumstan0GS It wasone of several conclusions which might be drawn. I sught I was quite right in putting that suggestion to the Jury.
Mr. Limi- Ab 1 understand that Mr. àraser admits that he did mention that the child was picked up and thrown into the nullah ↑
#r. Hayden Ar. Fraser simply suggested that the marks on her neck may have been caused -
Mr. Lims
raser admits then that the two marks on Mary's neck may have been caused by the appellant lifint her up and throwing her into the nullah.
Mr. *1080Ti That is part of the Crown case.