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Thursday
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11.10.34
11 a.m.
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Mr.Fraser: My Lords; With regard to the last point of law that with the absence of the Crown's witness, Mary Pine, the evidence of Mrs.Fairburn was wrongfully admitted and put to the jury. This point was not raised at the trial and my case is that it is not competent for this Court now to deal with that point. I shall deal with that later. The evidence of Mrs. Fairburn, I contend is admissable from several angles, admissable as part of the res gestae, it is admissable to explain how the accused got into the nullah; and it is admissable to rebut the defence of accident.
The part I am dealing with of course is the part of rs.Fairburn's evidence which says that she saw the accused throw two children into the nullah and also that the accused Jumped into the nullah.
Where are you going to stop if you are going to exclude the evidence from part of the res gestae. Are you going to exclude the fact that she saw two of the children thrown over or are you going to exclude the fact that he jumped over ? The evidence that he jumped over apparently has nothing whatever to do with the pushing or throwing or dropping of Michael Pine into the nullah. The law of res gestae - Halsbury Hailsham edition Vol.13 pages 528 to 529. also at page 551. The words "Any fact forming part of the transaction being enquired into is sufficiently connected therewith to be provable although it may not in itself be issuable".
important. Page 551 "Facts in issue". It was distinctly stated in the Judgment that what the jury were deciding was not what the prisoner did to the other children it was stated over and over again that that was not the point the fact they were determining was whether the accused threw Michael Pine in or not.
Phipson 6th Edition pages 57 and 70. Under the heading "Ac comp- anying Facts". That is what happened in this case they accompanied and tended to explain the main fact. Consider the transaction this may have taken a very short time. Obviously is did from the evidence given. The only possible explanation of its taking place in such a peculiarly short time, the Crown will say, is that these children. were in a position which rendered them peculiarly liable to be thrown over or pushed over; there was no time for the other two, those who were lifted over, to esca e, and that the whole thing formed part of
one transaction.
My friend has enlarged somewhat on the difficulty of lifting 5 children one after the other without any of them running away or escaping. Your Lordsuips pointed out that they may have been paralysed by fear. There is another more reasonable explanation perhaps it would require no more than one push to send three over if these children were all bunched together over the bridge.
Mr.Lim: There is no evidence oi that. This is merely surmise.
Mr.Fraser: The Crown says that it is the only reasonable explanation for this. That one or two pushes must have been administered to push these three children in in that short space of time. The matter of res gestae is thus clearly established.
Phipson page 70. 6th Edition (7th Edition page 68).
These are exactly the circumstances where the Crown says the present evidence of Mrs. Fairburn should be admitted. Mr.Hayden: Was there a prima facie case established against her before she gave her evidence ?
(Discussion as to there being a prima facie case).
Mr. Hayden In the case of Smith it would appear that they held her evidence of the subsequent incidents or deaths to have been admissable only after a prima facie case had been established. In that
case
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