CO129-550-7 Rex v. Ng Loi Yuen- appeal to Privy Council 1-1-1934 - 31-12-1934 — Page 35

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say that the alternative was not to accept the evidence of Eric Davies is not correct at all.

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Mr.Jacks: He was still in sight of the bridge when he heard the scream and ran back.

Mr.Fraser: There were screams. Mrs. Fairburn was attracted to the bridge. The accused got on the bridge and then got down as far as Mr.Bowles within two minutes. Mr. Andrews got off that Peak Tram at 18 minutes past. He was attracted by screams. Mr. Bowles Watch stopped at 20 minutes past. The distance between the bridge and the married quarters where Eric Davies says he lives is shown on the plan. He was still in sight of the bridge. You must be out of the sight of the bridge when you come past the school.

That is a very short distance. We went and tested it. The distance is not 200 yards.

Mr.Jacks: It was impossible to get the amount of time very accurately but it was a short time.

Mr. Fraser: The only submission is that it was very short and that admission so far was unattacked and I have not heard anything else suggested until now. The learned trial judge has tried to help the defence in saying "Now don't believe Eric Davies

if you

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don't believe him you can see how easy it is for the defence to be right. That, I submit, is the proper construction to put on the words, and it dows not gay because Eric Davies has said such a thing the defence must be wrong.

pages 19 and 20. "Three of the children slipped into the nullah and two little ones who were left on top fell in".

Mr.Lim: My suggestion is that the two on top called out to someone for help,

Mr.Fraser: And the learned trial judge said "That is ɛo.

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that roughly is the case". I don't believe that my friend quarrels with that statement ? I have never heard that statement contradicted by my friend.

Mr.Jacks: I think we will adjourn at this point to 2.30 p.m.

Thursday, 11.10.34

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2.30 p.m.

kr.Fraser: This morning I indicated to the Court (expounds on case being res gestae as against res inter alios acta as maintained. ' by Mr. Lim).

Byrne's definition read out.

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Taylor on the same point Vol.1 Chapter 7 11th Edition last para. p.582. Under the heading of "he arsay " - and distinguishes res gestae from "he areay" pages 401 and 402. paragraph 591. There was a prima facie case as soon as Mrs.Fairburn said she saw the accused on the bridge that was sufficient for me.

R. v. James Greenley 10 Cr. Appeal Reports p.273. Judgment p.275

I submit the whole of Mrs. Fairburn's evidence, particularly the throwing in of the two children is res gestae. It is admissable also to disprove acts which is the defence in this case. Even if it were said, which I do not admit, that the evidence should have been postponed, until the other evidence had been given, even if that were so, it still would be admissable, because there was a prima facie case on the evidence without it. Mr.Lim: That is not quite the fact. We object to the whole of the evidence of Mrs. Fairburn, and particularly to that part of the evidence where the accused was seen to throw the two children over. Ar Fraser Then that strengthen my case. You cannot exclude the evidence of Mrs.Fairburn that she saw the accused on the bridge. R. v. Lwith. Women found in baths. Evidence as to how they got into the bath was irrelevant, was the submission. In that case there is a lapse of time between the killing of each wife. In this case it was a continuous act. Even in Smith's case the evidence was admitted.

Summing Up Part of the defence was suicide. That was dealt with on p.10 bottom of page 10. The defence apparently was that he did commit suicide from the bridge but he only made up his mind to