APPEAL DISMISSED

Evening Post, Volume CXVIII, Issue 114, 10 November 1934, Page 9

APPEAL DISMISSED

CASE OF KAYE DOS

TRIAL" RUN FATALITY,

(From "The Post's" Representative.) * ' ', LONDON, October 5.' Mr. Kayo ■ Don's appeal against his conviction, last July' for the manslaughter o£ his mechanic, Frank Tayler, was' dismissed at the hearing at Douglas, Isle of- Man. Two Judges, Mr. Harold Derbyshire, K.C.," and Mr. K. K. Chappell, K.C., hoard the appeal. Mr. Don was sentenced to four months' imprisonment, and has since been on bail 'pending the appeal. His prosecution followed a motor crash near Douglas on May 28, when he was testing a raising caT out of practising hours in readiness for the Mannin Mor and Mannin Beg races. He was himself badly hurt, and Tayler received injmies which shortly afterwards proved fatal. ' Sixteen grounds of appeal were lodged, including a plea of misdirection of tho jury and that the verdict was against the weig"ht of the evidence. Mr.- Chappell said that on behalf of the appellant'it was alleged that questions put in had tended to sho\7 that Tayler had made a death-bed , statement i blaming Don, and, therefore, -prejudicial to him. "In my view.the jury must have come jto the view that such a statement was imado, and that to< some extent the credibility of Don could not be relied upon. The jury must also haye come to the conclusion'that Don was thoroughly careless of the rights of the public. ' "All this must hare been prejudicial to Don, but that does not necessarily mt&e it unjustifiable." However, he aid not consider the reasons put forward by* the prosecution sufficient to excuse, this breach of the main rules of evidence. "But further than that," continued Mr. Chappell, "we have to consider' a proviso of the Island's Criminal Code Amendment Act, that an appeal may be dismissed notwithstanding such matters if the Court considers no substantial miscarriage of justice has occurred." SUMMING-UP ADEQUATE. Mr. Chappell Went on to say he considered that the summing-up was adequate. Oa the question of speed, even taking the lowest estimate of 44 miles an hour, he considered any jury would say, in all the, circumstances of the case, that that speed was grossly excessive, even taking into account the renowned.skill and nerve of Don and his ability to cope with sudden emergencies^ In regard to the,defence that the collision was due to something going wrong with Don's car just before, Mr. Chappell said he thought any jury would dismiss it as fantastic and a theory of despair. * "I consider," he concluded, "that any reasonable jury would have come to the same conclusion that this jury did arrive at. I consider, therefore, that there has been no substantial miscarriage of justice,'and that the con.vietion must stand." Mr. Derbyshire: I agree. Mr. Kneen (for Mr. Kaye Don) then asked the Court to reduce tho sentence to the imposition of a fine. Tho case, he said, was not one of those of a man driving recklessly and killing an ordinary member of the public passing along tho road. Kaye Don had al- , ready suffered severe punishment, for the dead man was one for whom he had great regard. He had suffered im> measurable remorse, serious injury, suspense, and considerable expense. The verdict of manslaughter affected Don's living and career. An alteration was made in the date from.,,which .the,,sentence would .begin. In the ordinary way the sentence would begin as from the day the appeal was disallowed, but in the circumstances the Judges felt that it should jun from the start of the appeal. As soon as this announcement was made, Don rose "in his seat, and, accompanied by a police officer, walked out through a door, at the, side of the court. Douglas JPrison, in which -Don will serve his sentence, is a red brick building, surrounded by a high stone wall, standing on tho hills above Douglas, overlooking the bay.

/.;■: There is 'no second division in the Isle .of Man,*: but there is a distinction between •/prisoners sentenced to imprisonment, as Don has been, and those who receive {'imprisonment with hard labour. The distinction lies mainly in the; work which they are called upon to doy and in diet. ■'.'■/.lt is possible, of-course, in view of the state of his health, that Don for a time/will be an inmate of the prison hospital.;.