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34
R. v. Immer and Davis 13 Cr. Appeal Reports p.25
That reviews the authorities and is an important case in this connection. page 25. "Applying the principles which I have read etc".
Rex.
v. Frederick George Scott 13 Criminal Appeal Reports p.53 Head Note, second line from bottom.
R. v. McClean 17th Criminal Appeal Reports p.79.Head Note.
This is important in this respect. In reference to this case today Councel for the defence nad fully commented upon that evidence and it was said in the summing up that the evidence was not relevant and even so, although the summing up went directly against the accused and misquoted the defence entirely, the court dismissed the application. The words I want to bring to Your Lordships' attention are on p.80. Judgment. I submit this case is on all fours with the case we are dealing with today.
Before dealing in detail with the points raised by my friend I will quote you three cases which may actually fall under the heading of either misdirection or 2 (b) of the original notice regarding the two bruises.
R. v. William Syers 4 Cr. Appeal Reports p.42 Headno te p.43 bottom of page. Judgment.
R. v. Hepworth
and 130. Surming up.
4 Cr. Appeal Reports p.128 Headnote p.129
R. v. Monk 7 Cr. ppeal Reports p.119. p.124 Headnote.Middle.
Now I would ask Your Lordships to look at the summing up. page 6. The defence was mentioned all through the judgment. "They may have fallen over or being the three eldest they might have climbed down the steps to the nullah leaving the two etc".
Mr.Lim will correct me if I am wrong. Was that original way of putting the defence the fault of the trial judge or my friend Mr.Lim ? It is quite oovious that that point Mr.Lim was invited to correct the learned trial judge if it was wrong, and he did not do so at this stage. It was with the consent of the Counsel for the defence that that passage was allowed to go to the jury. page 14, concluding paragraph.
Iɛ that paragraph properly put ? It clearly shows the possibility of accident. It clearly shows the difficulty of throwing in five children. It cannot under any circumstances be said to be favourable to the prosecution it is very strongly for the defence.
page 14.Near the top. "Only two children were seen to be thrown in the rest depends on circumstantial evidence" That is in favour of the defence.
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