6.
The first of which is that there was a miscarriage of
justice in that the statement in the Crown opening relating
to Mary Pine's evidence seriously prejudiced the defence.
It would appear that in his opening learned Counsel
for the Crown stated that Mary Pine would say:-
(a) That some of the children were standing on
the second rail of the bridge.
(b) That the children including Michael Pine were
thrown in by the Appellant.
(c) That the bruises or marks on gry Pine's neck
were caused when she was seized by the Appellant and thrown
into the nullah.
Learned Counsel for the Appellant submitted that the
words used by Counsel for the Crown had such a material
bearing on the issue and were of such serious import that
the Jury could not, notwithstanding any caution by the Judge,
put the matter entirely from their minds,
We cannot agree with this contention for the statements
referred to were not supported by any evidence and the Trial Judge took special care not only to warn the Jury to pay no
attention to these remarks, but throughout his Summing Up he
impressed upon the Jury that there was no direct evidence to
show that the Appellant had thrown Michael Pine into the
nullah, and on at least two occasions he directed them that
if they had any reasonable doubt that the Appellant caused
Michael Pine's death they should give him the benefit of
that doubt, bearing this in mind we cannot believe that the
statements in question made by Counsel for the Crown at the
Opening of the case actuated the minds of the Jury when
considering their verdict.
We are of opinion that, apart from any evidence which
Mary Pine might have given, the evidence adduced at the Trial
was sufficient to enable the Jury to arrive at their verdict,
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