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9. THAT the following grounds of appeal, both on questions of law and on questions of facts,
set out under this paragraph hereof were raised by your Petitioner before the Full Court
b.
Questions of law.
(1) That the learned Trial Judge His Honour the Chief Justice wrongfully refused to
withdraw the case from the Jury at the close of the case for the Crown on submission
being made to him that there was no evidence to be left to them.
(11) That the learned Trial Judge should on the Crown's failure to produce the witness-
Lary Pine have discharged the Jury and ordered a new trial.
-
(111) That the verdict was against the weight of the evidence.
(IV) That in the absence of the Crown's Witness
Mary Pine
-
the evidence of Mrs.
Fairburn was wrongfully admitted and put to the Jury.
Questions of facts for which leave to appeal, was granted by the Full Court at the
hearing of the Appeal.
1. That there was a miscarriage of justice in that the statement as to Mary Pine's
evidence in the Crown's opening seriously prejudiced the defence.
11.
Misdirection.
(a) That the learned Trial Judge did not with sufficient clearness state to the Jury
what the main defence was,
name ly that one or more of the three children other than
those seen by Mrs. Fairburn were either playing in the nullah or accidentally fell over
into the nullah while throwing stones.
(b) That the learne Trial Judge misdirected the Jury in his Summing Up with reference
to "the two bruises on Mary Fine's neck (p.14 of the Summing Up)
He also alleged misdirection on other points viz:-
11.
(a) The identification by Mary Pine when he said "It may be no more than that" (p.13
of the Summing Up)
(b) "The alternative is not to accept at the moment Eric Davie's evidence" (p.15 of
the Summing Up)
(c)
-
Gentleman that the girl and the boy whom
The statement "It was suggested to you
Mrs. Fairburn saw thrown/were Fay Bromley and Tony Flood" (p.8 of the Summing Up).
over
THAT your Petitioner's appeal was heard by the two Acting Puisne Judges, Mr. Phillip Jacks and
James Joseph Hayden on the 8th and 9th days of October 1934 and that on the 17th day of October
1934 such appeal was dismissed.
12.
2.
YOUR Petitioner humbly submits :
That a substantial miscarriage of Justice occurred in that it was impossible for the Jury to
disregard the statements in the Crown's opening with regard to the evidence that Mary Pine would
give, in spite of a warning to that effect given by the Learned Trial Judge.
that
b. That the evidence given by the said Doris Pine with regard to the two marks on Mary Pine's
neck was of no importance whatever unless the Jury had in mind the Crown's opening, namely,
Mary Pine was seised by the neck by your Petitioner and that therefore the Learned Trial Judge
misdirected the Jury on this point when he said on page 14 of his summing-up: -
"There is one piece of direct evidence which from the point of view of circumstantial
3.
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