-13
25
Mr. Limt I refer to the onse of R. v. Rufino V 7 page 48. Judgment. (discussion of case). Mr. Lim states that there was a gap and that gap cannot be bridged by an explanation of Counsel for the Prosecution nor by the Judge.
Mr. Jacksi- In what way was it bridged here ?
Mr. Lim i- In this way - There was the appellant and there was the crime. There was nothing to link the two. Here comes the Crown and says the appellant and the crime £xxxkik which which he is charged should be linked this way and in this short period of time he must thrown the three children including the deceased child into the nul lah. Ar. Hayden- Is the Crown case not more probable and more likely than the three had been throwing stones and fell in accidentally. Was that not really the point That was the summing up.
(The Judge states that all the facts were put to the Jury for them to accept or not. (Discussion on Circumstantial #vidence).
Mr. Hayden! You are not sain saying that there is no evidence to go before the Jury ↑
- Kokim a Yes My Lord. There is no case to go before the Jury, and it fails naturally. The verdict which the jury returned which w as one of' guilty' must be against the weight of evidence.
evidence.
The next ground is - the verdict was against the weight of the q King v Turkington. Vola, 22 p. Xl
I submit in this case the alternative theory which was put forward by the defence was possible and was equally consistent with the defence and therefore the appellant was entitled to be acquitted therefore the appeal must be allowed and the conviction quashed,
King and Book-binder, Vol. 23 n. 60. on page 59. Eing v. Guerin, V.1. 23 page 39. Page 41.
The Jury had been asked in this case to guess which is the more probably theory - the theory put forward by the Crown or by the def en ce
Mr. Fraser reads further on the case).
King v. Brown Vol. 22 a.140 page 139.
Mr. Limi On the second ground of appeal that the learned trial judge should on the rown's failure to produce the witness, Mary Pine, have discharged the Jury and ordered a new trial. *
The same argument the the defence was seriously prejudiced by the absence of Mary's evidence.
Mr. Hayden *- There is a decided case of K, T. Lewis. That is the discretion of the trial judge.
There is a discretion I agree. The fact that the Jury has heard what Kary would say and that "ary's evidence was really the bridge that filled up the gap, the general link between the crime and the accused it was impossible for the jury to get rid of time that. irrespective of the warning the trial judge might have given for them to disregard what had been heard in the Crown's openinge
Ks for the case of R. v. Lewis. I admit that the trial judge had a discretion but I submit in this case discretion should have been exercised in discharging the jury and ordering a new trial.
Might I mention one very important point which I should have mentioned right at the very beginning. That is the question particularly to this grant of appeal is not whether the appellant is guilty or not guilty the question is whether he had a fair trial and whether the Jury might have given a different verdict if they had not heard what had been disclosed to them in the Crown's opening.
in R. v. Lewis- the judgment was the judge should not discharge the jury in order that the Crown could bring a stronger case before another jury. I do not say here that the judge should discharge the