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19
( Discussion on the two theories being equally consistent.)
(Accusations and denials as to what Er. Fraser said to the fury) Mr. Lint- Mr. Fraser must have said, he can con tradict me if he likes, that Ary Fine said all the children were thrown in by the appellant, but exactly how he was not clear.
Mr. Hayden- And Mr. Fraser denies that. further discussion) Krint. Reference made to Bumming Up last seven lines of page 1. (Mr. Wim says that Jury would be influenced by what was said in the opening there was a gap between the orime and the accused. xxxxticexkim deiteration that Jury must be influenced that accused three the other three children into the nullah as well in spite of trial judge's warning in summing up.)
Dibble's quoted again and argued.
Judgment.
R. 7. Hodge - 2 Livin's Crown Casesp.228 - Vol. II.
BI #ZA80% kacos 874 under heading "dircumstantial viden ce
Adjourned to 230 v.ma
2.30 o. B.10.34.
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When we adjourned I think I was still on the first ground of appeal question of fact. I will now refer you to the authority of King v. Stoddart 8 Or. woveel en o.844 – last paragraph, Judgment The point I would like to submit there is al though there was stron evidence against appellant to support the view taken by the Jury yet the Court could not see that the facts established are inconsistent with innocence. In other words if they could have said that they could probably have said that the proviso under section 4 could have spplieda (Discussion on one)
22äxx Maxxxxxxm May I now refer Your Lordships to two or three other cases in which although the trial judge warned the jury to disregard certain pieces of evidence which was admitted to be inadmissible, the conviction was quashed.
King ▼ Barzon = 9 Or. Auvent "eport ». 238.
Ang v lemmingway ➡ Vol. 8 at page 49.
Judgment.
(Mr. Lim states inadmissible evidence was put to the Jury and
Fraser states that to his knowḥedge no e« inadmissible evidence was ever put before the Jury). Mr. Lim reiterates that evidence re Mary's Fines evidence which was not forthcoming, was inadmissible If the Jury had not heard the tax reference to Mary Fine's evidence in the Crown's opening, they would not have returned the sane verdiet.
Mr. Hayden- That is really the point. would no te
101 **
Your submission is that they
There is one other point.
Dr. Lin Yes, I submit they would not. Ky v. Borrissey, 23 Or. Reports p.189. That is the conclusion of my case on the first point. - The defence Was seriously prejudiced.
The next point is on misdirection as appearing on the notice of appeal that the Learned Trial Judge has not with sufficient olearness stated to the Juzy what the main defence WAS. Namely, that one or more of the three children other then those seen by Mrs. Fairburn were either playing in the nullah or accidently fell into the nullah while throwing stones. I refer to the evidence wh oh was aduuced before the trial judge and the jury.
The Crown put up the theory that during the time ricevis left the children and durin, the ting
【 Zairburn saw the man throw the two children into tan nullah
tae nullah, the appellant must have thrown the other children into bio nullam. Die defence is that the three other children might have fallen in while they werethrowing stones,
or the theme other cialdron si jit have gone down into the nullah to play and were accidentally waned away by the strong
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