1934-10-08 — Page 17

THE HONGKONG TELEGRAPH.

MONDAY, OCTOBER 8, 1934.

NULLAH MURDER APPEAL OPENS

MISDIRECTION

OF JURY

ALLEGED

NUMEROUS POINTS RAISED

NO DIRECT EVIDENCE

did he go there; why not go and, Their Lordships granted the finish his passage to the sun?**. leave to appent, and actifition of (e) The statement, "It is grounds and Mr. Fraser intimated possible that some of them may when questioned that he would have been on the rails... possibly not require an adjournment to some of them standing on the consider the additional.grounds, rails and looking over, and:...m!} of them over.

NO DIRECT EVIDENCE.

Dealing with the question of miscarriage of justice in regard to reference to Mary Pine's evidence Application was also made to in the Crown's opening Mr. Lim add the following point of law dealt with the evidence given to that in the absence of the Crown the Court by Eric Davis drawing witness, Mary Pine, the evidence attention to the passages where of Mrs. Fairborn was wrongly ad- he stated "There was no-one on mitted and put to the jury. the bridge" and "We were on the Mr. Lim: This is an appeal floor of the bridge," That was a against conviction both on the point of considerable importance, question of law and the question he said. The appeal against the sentence of fact. Appellant was tried and in the Nullah Murder Trial, inconvleted at the August Criminal which Ng Loi-yuen was sentenced Sessions and sentenced to death by to death at the Criminal Session the Chief Justice on September on September 9 for the murder of for the murder of a European boy evidence of Mrs. Fairburn, Mr. Michael Pine, was commenced named Michael Fine. I under-m stressed her statement to the before the Court of Criminal Apstand from the learned Itegistrar effect that her impression was that peal, comprising Mr. Justice that in order to prevent repetition the little boy and little girl taken Jacks and Mr. J. J. Hayden, this in this application in reference to from the mullah were the morning."

appeal on the question of fact this children she had seen thrown in

final appent.y the appellant. Mr. R. C. H. Lin, instructed by would he treated as Mr. T. P. K. Kemble, appeared for If your Lordships accept one or the appellant, while Mr. J. Aure of my points or my grounds 3. the question of fact, leave to Fraser, Instructed by Mr. W. Lockhart Smith, appeared for the appeal would be presumed to have

been granted. Crown.

GROUNDS FOR APPLICATION.

on

ap-

Mr. Fraser: I have no objection, Mr. Justice Jacks: We grant that. Did the Trial Judge give any cerilfcate?

NOTICE TO AMEND,

Referring their Lordships to the

Joe E. Brown a Two-Gun-Jones, the funniest cowboy ever to run wild. This scene la from his latest First National picture, "The Tenderfoot,"

day. coming to the Alhambra on Wednes

"There is no direct evidence im. plicating appellant," said Mr. Lim. There is no evidence at all to three children. The evidence is show what he did to the other merely circumstantial. I there fore submit that mention by the

most mis- prosecutor at the opening of Maryportance." "That is Pine's evidence must have pre-feading, I submit," said Mr. Lim. Mr. Lim first applied for leave

Judiced the jury, to a great extent "I suggest that the rection in to appeal and stated that the

through no fault of his own. The this respect should have been no which th: grounds

bruises Crown, in their opening only men more that that the two pent- ·wan ··· haseel -were 4

Mr Lim: We would-get-a-cerli- tioned those parts of Mary-Pine's might have been caused by any follows:-()) that there was a mis-feate from the Trial Judge or evidence which were in support of other person in the, nullah who carriage of justice tes to Mary from this Court. There is a fur-

the Crown's care and not the part tried to save Mary Pine. "To tell Pine's evidence in the Crown open-

ther point. Sometime last week that helped the defence.

the jury that is of considerable. prejudiced!

#ed notice of additional ing, which seriously

"At the original trial Mary Pine importance is misleading." that there the defence, and (2)

In rounds for appeal. I am well!

of this Mr. support was misdirection to the jury that the trial judge did and with ware there are na provisions for stated that they had been down in

notice to amend in criminal appeal the nullah on previous secasions pointed but that one of the wit- when there was no water there nesses for the Crown in evidence sufficient clearness state ta jury what the main defence was, this Court. There are, how and that was not mentioned to the had said that he got hold of Mary jury. If I had had the opportunity Pine on two occasions and that she namely, that one or more childrenver everal cases where leave to

amend notices of appeal have been or cross-examining Mary Pine. was washed out of his hands and other than those by Mrs. granted. In one instance where the think she would have said the man suggested that the two bruises Fairburn, were either thrown into Crown did not oppose. In this

might have been caused by that or accidentally fell into the nullah

man grabbing her as she wB3 whilst throwing stones; and that case the Crown was served with was on the bridge.

the patice to amend four or Dvel

being washed down. the the trial judge misdirected

days before the hearing so 1 exoj Jury in his summing up with re- An no grounds for the frown ference to the two bruises on Mary Pine's neck, when he said, "They opposing.

The neck."

Несл

in

the

H

Mr.

TWO BRUISES,

Lin

Mr. Lim then quoted authorities in support of his coulention that

Trial Judge hand although the warned the jury to disregard Mary pening, the mischief had been done and could not be cured.

"In the course of his opening, the Prosecutor made mention of and qualified it Mr. Fraser: I received a copy the two bruines were necessarily inleted withough unofficial channels, but i that they might have been caused the accused seized Mary Pine by was never served with the notice by accused seizing Mary Pine by { Pinc's evidence as mentioned in thei

the additional grounds of appeal. the neck. which

Fraser: If I remember Should your Lordships And it com-

words were "These petent for the defence to add addi- correctly my

have been caused by Honal grounds later in their notice marks may

In throwing Mary Pine Into the nullah." of appeal then at this stage I have accused

Mr. Lin:

1 with I accept that: objection to that course, Registrar refused to accept faemitted just now that the evidence circunstantine! that the ther grounds of appen) because WS there are no provisions in regards total of the evidence

011

based

were

the

trial

Other grounds

were -appeal

follows:

(1) That

judge wrongly refused to withdraw the se from the jury at the loss of the case for the Crown on the

Mr. Lim: 1 understand

the

was

Summing up his argumenta on the first point, Counsel said: Where the evidence is not consistent with the apparent guilt, then the verdict of the jury in this case is against

evidence. the weight of the

The hearing is proceeding.

submission that there was evidruce to be left to them:

(2) That the trial judge should, on the Crown's failure to produe, in criminal appeals in this Colony, I consistent not only with appell is the subject of a talk to be given by

Mary Pine, have discharged the jury und ordered a new trind:

(3) That the verdict was against the weight of the evidence,

ADDITIONAL GROUNDS.

NOT SERVED.

Mr. Frasee: 1 am informed that notice was never served,

to

his (ant's guilt but also with

innocence. This mention of Mary Pine's, evidence in the opening bas seriously prejudiced the jury, admit lint the learned Telat Judge Me, Lim; after consultation with (warned the jury to disregard whit Mr. Kemble: Mr. Kemble informs was said the opening an

that there was a discussion Mary Pine's evidener, but I would whether notice should be served submit that in spite of that the and it was decided that as there mischief has been done, were no provisions in the rules no That the Trial Judge misdirect-nute should be filed. ed the jury in his summing-up with reference to

Mr. Lim then made application to add the following grounds of appeal:

Then again in his summing up the Trial Judge said "There was Mr. Fragor: It was open to my no sign of the accused but I think friend to obtain direction from the

that point. No such an assume that accused was on the bridge,' (a) The identification by Mary Judge on

No one could assume that acensed WILM on the bridge. Pine, when he stated "it may be no direction was asked.

Mr. Hayden Was it known at the | The evidence was to the contrary, more than that;"

(b) The statement "the alter-time. Mrs. Pairburn gave evidence in fact. native la not to accept at the mo- that Mary Pine would not appear? inent Eric Davies' evidence;"

(c) The statement "it was put

Mr. Lim: It was not known then. Mr. Fraser: No-one knew up to

"MOST MISLEADING." Referring to the Trial Judge's

to you, gentlemen. trit the girl the morning of the closing day of direction with regard to the two and the boy whom Mrs. Fairburn the trial that Mary Pine could not bruises Mr. Lim staled that his saw thrown over were Fag Brom- come to give evidence. The trial Lordship had said. "There is one ley and Tony Flood;"

was carried on up to that stage pibee of direct evidence which from

(d) The statement. "If he was on the assumption that she would the point of view of circumstantial evidence is of considerable In- determined to commit suicide, why be giving evidence.

WHEELER WOLSEY

"Why has Disarmament Failed?"

Mr. Geo. Shea at to-morrow's meet-

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