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

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case we were dealing with contemporaneous acts.

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Mr. Fraser: Surely that cannot be the construction. There must be a prima facie case without Mrs.Fairburn's evidence. If a prima facie case was not established then the whole thing would have to go.

•

Mr. Hayden: Cr.

Refer to for the Crown

Mr. Fraser: R.

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Appeal Reports Vol.11 at p.229.

the judgment of Lord Reading and also to the Counsel

Mr.Bodkin.

v. Armstrong 16 Cr.Appeal Reports p.149.

I would refer Your Lordships back to the case of Smith page 237. "It is sufficient to say that it is not disputed and could be disputed that if as a matter of law there etc...

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Mr. Hayden: I put it to you like this. Apart from the evidence of Mrs.Fairburn, apart from her evidence, there is a prima facie case made out ?

Mr. Fraker: Certainly. The evidence apart from Mrs. Fairburn's was this: The defendant was depressed beforehand and was excited with drink. He previously considered committing suicide and murder. The child Michael was perfectly alright a short time before. The defendant was seen just below the bridge. The accused got into the water at least within 50 yards or so of the bridge. That is where he got into the water. He was there about the time. The accused and three children were washed down together so that all the children must have got into the water together. There is the evidence of his subsequent conduct in the nullah which the Crown say tends to prove guilty knowledge. That is to say his getting out of the water in the tunnel and there, it is suggested, concealing himself.

Smith's was decided on a different point. I am contending Mrs. Firburn's evidence is evidence of the actual transaction which took place. Mrs. Fairburn's evidence is part of the evidence which must go in and to show that she saw the accused on the bridge. I have actually proved he was on the bridge. You cannot exclude that. If you exclude these two acts of throwing the other two children over, the case is just the same as before. The man was the re he was the only man who had the opportunity of throwing these children in to throw Michael Pine in. There is evidence that he attempted to commit suicide because he jumped over the bridge himself. That is not suggested should be excluded ? The only evidence that my friend says should we excluded is that af Mrs. Fairburn saw the accused throw the other two children over.

W

Mr. Lim: At least that ·

Mr. Fraser: If you are going to exclude that then where are you going to stop 2 Your Lordships pointed out to my friend yesterday in the course of his argument that these acts were contemporaneous with the act charged and not after the lapse of some considerable time.

The Smith case does not arise as to whether this particular point should be considered under the heading of "Similar Acts" and I am contending it is not. After a lapse of 15 minutes it was held to be a case of res gestae. I am not trying to show that this man had a system. It was not part of a system that he threw the children in. It is all part of one act. (Reads case again).

(Mr.Fraser again asserts prima facie case was established, and that Mrs. Fairburn's evidence was admissable).

(Compare e how case is applicable with R. v. Armstrong). Halsbury Vol.13 p.566

Phips on 6th Edition page 172 to 185. Rus sell on Crimeɛ Vol.2 8th Edition Page 2 of Summing Up.

Similar Facts p.167,180,174. at page 1945. Head Note.