CO129-550-7 Rex v. Ng Loi Yuen- appeal to Privy Council 1-1-1934 - 31-12-1934 — Page 40

-28-

40

Mr. Fraser: I will briefly retrace my steps.

With regard to the points of law.

The point that the case should have been withdrawn from the jury. My contention against that is this. These children were in a position whence they might easily be pushed into the nullah even two at a time.

Secondly, the accused was the only man who had the opportunity, ability and the motive to throw them in.

Thirdly it was not accident. The defendant meant to throw them in that is shown by the evidence of Kre. Fairburn as to thos other children.

That briefly is the case for the Crown.

That deals with the first point raised by my friend. Then the third point of law. That the verdict is against the weight of evidence. I have given Your Lordships reference to Jalsbury on that point. There is only one case

Wallace's case,

-

<

1931.

25 CI. Appeal Reports p.32. That is the only case which the Court quashed. There was in that case a very much stronger case for the defence. The man gave evidence. The case for the prosecution was very weak.

I have already called your attention to the Robertson case 9 Criminal Appeal Reports o.191 With regard to the contention that the learned judge should discharge the jury. The Court has no jurisdiction to interfere with that discretion if it is Properly exercised.

Then with regard to the new ground of appeal. The case of Greenlay 10 Cr. Appeal Leports p.274 and 275.

G

the mentioning of Mary Pine.

case which goes most in my favour. 20 Cr. Appeal

case it was said to be absurd after a statement of counsel could have influenced

With regard to fact Driscoll's case is a Reports p.162 In that three day's trial, a the jury.

Then as to the contention that the case for the defence was not entirely stated. On the contrary- there is the clearest possible statement of the defence, especially in the last statement in the summing up. If the judge mislead the jury at all it was the fault of Counsel for the defence who should have interrupted him at first when he was invited to do so. When it was pointed out ultimately at the close of the summingup, the learned trial judge stated the defence in the clearest possible terms.

In addition to that Counsel for the defence cross-examined the witnesses and addressed the jury at some length. Can your Lordships agree from the earnest manner which you have witnessed my friend argue today, that he failed to put that defence clearl; to the jury can you come to that conclusion ? The cases in point are Iamer and Davies 13 Cr.ppeal Reports p.135 in which reference is made to Abrath v. N.E. Riy. Co. and there the learned judge said "it is not misdirection not to tell the jury everything which might have been told".

G

On the point of misdirection. Hepworth 4 Cr. Appeal Reports p.130. Contrast the expression used by the learned judge in his summing up in that case with the careful and moderate expressions used by the learned trial judge in the Michael Pine case and yet the Court of Criminal Appeal refused to quash that conviction.

Another case in point is Wolff 10 Cr.ppeal Reports p.109. That is good authority for saying that a mere isolated passage in the summing up is not sufficient misdirection to justify the Court of Criminal Appeal to quash the conviction.

Page 40Page 41