GRAYSON V. GRAYSON. McCawley C.J. the will of Allen Grayson free from the restrictions and conditions of any alienation purporting to be imposed by the will. The condition in partial restraint of marriage is valid. The authorities are clear on this point. Judgment accordingly: costs out of the estate. Solicitors for plaintiff : Curnow, Fleming & Caine. Solicitor for the trustees : W. A. Douglas, for E. A. Flower, Warwick. [COURT OF CRIMINAL APPEAL,] R. v. TEMPLETON AND OTHERS. Criminal law-Practice-Appeal-Particulars of misdirection-- The practice stated in R. v. Wyman (1) must be observed, and when, in a criminal Four persons were jointly charged with an offence and convicted, and the Court of Criminal Appeal was of opinion that there had been a failure on the part of the Judge at the trial to adequately state to the jury the facts which rendered the case against one of the accused less strong than the case against the others. The Court being unable to come to the conclusion that the jury, if adequately directed, would have concluded that the facts proved were inconsistent with his innocence, directed a new trial in the case of that accused person. The Court of Criminal Appeal, in considering objections to the summing up, will regard the whole of the summing up in the light of the conduct of the trial, the questions raised by the prosecution, and the defences set up. Observations on the right of a Judge to comment on the failure of an accused person to give evidence. CRIMINAL APPEAL. Four persons, charged with the crime of murder, united their defences, and were tried together, and all convicted. The facts proved at the trial, so far as they are material, are set out in the judgment of McCawley C.J. Each prisoner appealed. Larcombe and Stanley, for the appellants: The convictions were not supported by the evidence, especially in the case of Waters. The statements by the Chinaman at the hospital were not evidence against Waters. (1) 1918, 13 Cr. App. R. 163. 1922. April 3, 9. McCawley C.J. O'Sullivan J. C.C.A. AND OTHERS, [MACNAUGHTON J. Did not the Judge only leave the R.. TEMPLETON Chinaman's statements to the jury solely in connection with the demeanour of the prisoner--in accordance with Christie's Case (1)?] At any rate, no inference against Waters can be drawn from that evidence, as ne was not called upon to reply to the statements. No evidence of any sort suggested that he participated in any assault on the Chinaman. The Judge misdirected the jury in the following respects:-(a) It was an unfair summing up, as it did not put separately to the jury the case of each prisoner. R. v. Matthews (2). [MCCAWLEY C.J. Did you ask the Judge to do so?] No. (b) It was not made sufficiently clear to the jury that they could find otherwise than that all the prisoners were either guilty or not guilty of murder. (c) The Judge did not adequately deal with the question of reasonable doubt. (d) The Judge made various misstatements of fact. (e) The Judge told the jury near the end of the summing up, If they are . by their silence Counsel referred to Kenny's Outline of Criminal Law, 9th Ed., p. 326; R. v. Kenniff (3), Roscoe's Criminal Evidence, 13th Ed., p. 612; R. v. Duffey (4), R. v. Christie (5), R. v. Ahlers (6), Hicks v. The King (7), R. v. McCallum (8), R. v. Dinnick (9), R. v. Caroubi (10), Kops v. The Queen (11), Wills on Circumstantial Evidence, 6th Ed., p. 314. Webb S.G. and J. S. Hutcheon, for the Crown: There was ample evidence to justify the jury in finding each prisoner guilty. The evidence showed that the four prisoners were in the carriage when the Chinaman was forcibly ejected, and that some of the four had made up their minds to assault and rob him. Further, the subsequent happenings strengthened the inference against them. Each one denied any knowledge of the Chinaman; each one stood silent when accused by him. R. v. Christie (12), R. v. Bromhead (13), R. v. Warton (14). As to misdirection, (1) [1914] A.C. 545. (2) 1919, 14 Cr. App. R. 23. (3) 1903, St. R. Qd. 17 at pp. 38, 43. (6) [1915] K.B. 616 at p. 625. (7) 1920, 28 C.L.R. 36, at p. 44. (9) 1909, 3 Cr. App. R. 77. (10) 1912, 7 Cr. App. R. 149, at p. 153. (11) [1894] A.C. 650 at p. 653, (12) [1914] A.C. 545. (13) 1906, 71 J.P. 103. (14) 1905, St. R. Qd. 167 at p. 174. the summing up must be looked at as a whole. R. v. Stoddart (1). Viewed from that standpoint, it could not be said to have misled the jury. Although the case against Waters was appreciably weaker than against the other three, there was evidence to justify the jury's finding against him. As to the alleged misdirection, the only substantial item was that involving the suggestion that prisoners must take the consequences of their silence if they were not guilty. This, however, was to be read with the references by the Judge to the judgment of O'Connor J. in Peacock v. The King (2), which emphasised that no one is to be required to explain until enough has been proved to warrant a just conclusion against him. Lacombe, in reply. The judgment of the Court was read by C.A.V. MCCAWLEY C.J.: The four appellants in this case were tried before Lukin J. at Mackay on the 20th and 21st March last, and were convicted of the crime of murder. The facts proved by the Crown, so far as it is necessary to state them for the purposes of our decision, are as follow:Ah Sam, a Chinese gardener, living near Finch Hatton, came to Mackay on 24th October, and stayed that night there with another Chinaman, Ah Bow. Between 10 a.m. and 11 a.m. on the following morning, he was seen with a roll of notes in his possession. At 3.30 p.m. he left Ah Bow's place for the train. He was sober. He boarded the train at about 4.5 p.m. on his return journey. Ah Sam entered the carriage nearest the engine. That carriage consisted of two compartments, each divided into three sub-compartments. The compartments were separated by a partition reaching to the roof; but the sub-compartments were separated by partitions reaching only to the shoulders of a sitting passenger, there being two cross-seats facing each other in each sub-compartment. Ah Sam took his seat in the sub-compartment nearest the engine. The four accused were passengers from Mackay on the same train. Templeton, at Mackay, got into the same carriage as the Chinaman. At Walkerston (which the train is timed to reach at 4.40 p.m.), Sinclair and Perry were seen on the verandah of the second carriage. At Newbury Junction (5.17 p.m.), Templeton, (1) 1909, 2 Cr. App. R. 217. (2) 1911, 13 C.L.R. 619. C.C.A. R. v. TEMPLETON McCawley C.J, C.C.A. Sinclair, and Perry went into the tearoom for refreshments. R. v. TEMPLETON All three went back into the same compartment as Ah Sam. At AND OTHERS. McCawley C.J. Marian (5.30 p.m.), Sinclair was sitting in the first sub-compartment with Ah Sam; his arm was round the Chinaman under his coat : Templeton and Perry were in the sub-compartment third from the engine. Sinclair paid the night officer at Marian his excess fare with his left hand, and kept his right arm round the Chinaman's waist. The station master also saw Sinclair with his arm round Ah Sam, and formed the impression that Ah Sam was either stupid or under the influence ot liquor. He noticed that a door in the sub-compartment next to Sinclair and the Chinaman and on the side away from the platform was open. He addressed Sinclair, and said, "Do you know who opened this door?" He got no reply, and he then addressed the Chinaman, who replied, "Me go Hatton." He closed the door. It is important to note that at Marian, the first is seen by any witness of a fourth man who was not identified. Just before the train moved off, this fourth man entered the front compartment with some bottles of beer. At Mirani (about 6.15 p.m.), four schoolboys got into the second sab-compartment of the first compartment. The boys noticed the Chinaman in the first sub-compartment and three men in the third sub-compartment. Sinclair ordered the boys out. They went into the second compartment, and began looking round the partition. Templeton swore at them, and threatened to assault them with a beer bottle. At Benholm (about 6.25 p.m.), the boys noticed that all the shutters of the front compartment were up. Just after the train started from Dunwold (about 6.33 p.m.), and when it was going about five miles an hour, the guard saw that the door of the sub-compartment in which the Chinaman was sitting was open-not the door near which he had been sitting, but the opposite door--and about a minute and a-half afterwards a man came out "all of a heap," and fell. The guard stopped the train. The man was found to be Ah Sam. He was bleeding profusely. The guard then noticed that the door had been closed. No money was found on the Chinaman. At Gargett (about 6.50 p.m.), the railway night officer there saw the four men (including Waters, who was then for the first time identified) outside the first compartment, and collected their tickets. The following morning, on going over the tickets, he noticed a bloodstain on that issued to Templeton. |