CO129-550-7 Rex v. Ng Loi Yuen- appeal to Privy Council 1-1-1934 - 31-12-1934 — Page 27

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There are other statements that may have been maue, I took no detailed note, but I would call your Lordships attention to other statements that could have been måde and may have been made by me in my opening address.

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If Your Lordhips will look at Mary Pine's deposition line No. 3 page 17. I may have said "A man threw Mery in." "He threw the others in two." or "The defendant threw the others in too - that of course includes Michael - that is the second uncontradicted statement in my opening. After that "Defendant was the man" that arises out of the identification. These are the only three statements of Mary which are not mentioned in other evidence.

If your Lordships will look at the notice of additional evidence, there that has got "Defendant was already on the bridge. About the 12th line down. That is another thing that mỹa have been said.

Then after that Your Lordships will have read the notice of additional evidence - this is the gist of it "Mary turned round and saw the man push Michael Pine and the two other boys from the bridge into the nullah....etc."

I am going to show how much or how little of that could have affected the Jury had there been no warning at all.

That is all that I can find either in the depositions or in the notice of additional evidence that could have been said depending on the evidence of Mary alone. Ky friend has not put it to you but I am putting it to you. (Additional evidence not given to Judges).

Let me call your attention to these statements. The statement Mary Pine will say some of the children were standing on the second rail. That is contradicted by the evidence of Eric Davis. The evidence Eric Davis gave before the Court of trial was that all the children were standing on one side of the bridge on the concrete.

As to the statement that the defendant was already on the bridge. Eric Davis did not see him. There was evidence given about that. That was contradicted in the Crown Case. There was eviuence given about that.

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As to the rest of it "that Mary went round and saw the man etc."

That is flatly contradicted by Mrs. Fairburn who says that the two children appeared to be standing looking over. There is evidence on all these points in airect contradiction to what any Counsel would have been justified in opening - so if I did say those words I brought evidence to contradict or corroborate everyone of them, except these two.

(1) The man threw Mary in. (2) The man threw the others in the others meaning the firt three children. These two statements are the only two statements which depend entirely on the evidence of Mary Pine. I don't say they were made they may have been made. (Mr. Fraser explains at length).

Now on the points of law that the case should have been withdrawn from the Jury on the application of the defence and that the verdict is against the weight of the evidence. I will deal with that together.

Then that the judge should have discharged the Jury when Mary Pine was not produced. I will deal with that as a separate point.

Then with the new point of law that Mrs. Fairburn's evidence is inadmissible in the absence of Mary Pine's. I shall deal with the law under those three herds in that order. I shall ucal with the questions of fact under two heads - the first head as to the miscarriage of justice and the mentioning of Mary Pine prejudicing the defence, and then of the points on misdirection under a separate head.