CO129-550-7 Rex v. Ng Loi Yuen- appeal to Privy Council 1-1-1934 - 31-12-1934 — Page 28

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Now as to the two points that the case should be withdrawn from the jury or that the verdict was against the weight of of the evidence.

The law on circumstantial evidence I need not quote but will refer you to Wills on Circumstantial Evidence 5th edition at page 276 to 278. Page 291 of the 6th Edition.

Now as to whether the verdict is against the weight of evidence. 9 Halsbury p.274. Hailsham. This is dealing with my friend's third point of law. The points together that the case should be withdrawn from the jury and that the verdict is against the weight of the evidence. I understand that argument is much the same on the two points para.401.

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Rotherwill's Case 16 Cr. Appeal Reports p.104. Court of Criminal

peal will not retry issue of fact. Hals bury

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Chadwick Matthews and Johnson 12 Criminal Appeal Reports p.247 p.250.

Rice's Case 20 Cr.Appeal Reports p.21. Judgment on p.23. I quote the case to show the kind of case in which Your Lordships will be justified in exercising jurisdiction. To show the cases in which the Court exercises that jurisdiction differs greatly from the case now under consideration.

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Robertson's Case 9 Cr. Appeal Reports p.191 and last paragraphs. I bring in these two cases in order to show the very great contrast between the two.

(Mr.Lim:- We don't dispute the statement of law but the factɛ might be different.

Mr.Fraser:

My friend referred to the Wallace Case Vol.23 Cr. Appeal Reports p.32. That case was read to you this morning and I don't propose to read it again.

That was

a very recent case and Your Lordships are no doubt acquianted with the facts of the case. (discusses case).

The trial of William Herbert Wallace edited by Wm. Edward Brown. That case is important as I believe it to be the only case the Court of Criminal Appeal has quashed the verdict on these grounds, that the verdict was unreasonable and could not be supported on the evidence. That is on these grounds and not coupled with misdirection.

Now as to whether there was evidence to go to the jury. The Crown proved that the accused was there. When I say there I refer to his being at some time on the bridge. That was definite- ly proved. He was not there on the bridge we know from Eric Davies, but he was there on the bridge, we know from Mrs.Fairburn. Mr.Lim: From the evidence it was quite clear there was no evidence the appellant was on the bridge until he was seen by Mrs.Fairburn.

Mr.Fraser: The first person who saw him on the bridge was Mrs. Fairburn he must have come to the bridge between the time Eric Davies left and the time Mrs. Fairburn came.(Mr.Fraser then enlarges upon the appellant's intention to commit suicide and Dr.Valentine's evidence).

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(Short time elapsed between Eric Davies' departure and Mrs. Fai ruurn's arrival discussed - and Mr. Fraser explains how improvable it was for the children to have gone down the nullah steps etc.Steps were photographed and commented upon.) Ex.12 Position of children in the nullah, and story of evidence of some of the rescuers. Eric Fellars deposition p.25. Also of Mc Carthy. Position of appellant in nullah described. cene of case under observation all the time except for a short distance. Evidence of various rescuers. Evidence to show that appellant was the only one in the nullah besides the children and the rescuers who were all accounted for. Appellant's attitude in the nullah when he was seen by Private Sellars etc. No importance attached to his attempt to escape from Hospital. Evidence of three letters and the fact he threw two children in.