THE TRIAL OF EDWARD KELLY
An application was made to Mr. Justice Barry in chambers on Saturday by Mr. C. A. Smyth, Crown prosecutor, for an order to transfer the trial of Edward Kelly from the Beechworth Circuit Court to the Central Criminal Court. The application was made under section 33 of the Judicature Act. No. 502, which provides that wherever any person shall have been committed for any felony or misdemeanour committed or supposed to have been committed, at any place out of the jurisdiction of the Central Criminal Court, and it shall appear to the Supreme Court in term time or to any judge thereof in vacation that it shall be expedient to the ends of justice that such person should be tried for such offence at the Central Criminal Court, it shall be lawful for the Court or judge to order that such person shall be tried for such offences at the Central Criminal Court, and the trial shall be held there accordingly.
Mr. SMYTH, having referred to the section of the act, said that an affidavit was made by Mr. Gurner, the Crown solicitor, in support of the application, which showed that it was advisable that the trial should be held in the Central Criminal Court and not at Beechworth. He read the affidavit, which was as follows:―”That the above named Edward Kelly was, at a court of petty sessions holden at Beechworth on the 10th and 11th days of August, 1880, committed for trial to Assize Court to be holden at Beechworth, in the northern bailiwick, on the 14th October next, upon the respective charges of the murder of Constable Thomas Lonigan and Constable Michael Scanlan.
“2. That the said offences for which the said Edward Kelly was so committed for trial were perpetrated at Stringy-bark Creek, Wombat Ranges, in the said northern bailiwick, on the 26th October, 1878.
“3. That on the 4th day of November, 1878, the said Edward Kelly, charged with the said offences, was by an order under the provisions of the Felons Apprehension Act 1878 no. 612, made by his honour Sir Wm. Foster Stawell, Chief Justice of the Supreme Court of the colony of Victoria, adjudged and declared to be an outlaw by a declaration to that effect under the hand of the said Sir W. F. Stawell, Chief Justice, and filed of record in the aforesaid Supreme Court.
“4. That on the said 4th November, 1878, Daniel Kelly (a brother of the said Edward Kelly), Joseph Byrne, and Stephen Hart were also by an order of the said Sir William Foster Stawell, made under the provisions of the said statute, adjudged and declared outlaws for the same offences as the said Edward Kelly.
“5. That since the aforesaid declarations of outlawry I am informed and believe the said Edward Kelly was at large until the 28th day of June, 1880, when he was apprehended at Glenrowan, in the said northern bailiwick.
“6. That I am informed, and verily believe, that since the said outlawry, and up to the arrest of the said Edward Kelly, the said Edward Kelly, Daniel Kelly, Joseph Byrne, and Stephen Hart formed an organised gang of armed highway robbers, under the leadership of the said Edward Kelly, and during the said period were the cause of much terror to the law-abiding and peaceable inhabitants of the said northern bailiwick.
“7. That I am informed and believe that in the said bailiwick, and more especially in the neighbourhood of Beechworth aforesaid, the said Edward Kelly has numerous relations, friends, and sympathisers, amongst whom strong feelings exist in favour of the said Edward Kelly.
“8. That from the lawless conduct and threatening demeanour of some of the relations, friends, and sympathisers of the said Edward Kelly. I believe efforts would be made to intimidate certain of the jurors on the jury panel of the said Assize Court, and that some of the said jurors might probably be thereby deterred and intimidated from finding a verdict in accordance with the evidence.
“9. That should a jury find a verdict of guilty against the said Edward Kelly, I verily believe that those members of the said jury who live in the country districts of the said bailiwick would be liable to serious injuries in their persons, families, and property at the hands of the said relations, friends, and other sympathisers of the said Edward Kelly.
“10. That for the foregoing reasons I verily believe a fair trial cannot be held at the said Assize Court to be holden at Beechworth aforesaid.
“11. That I am advised and believe it is expedient and essential to the ends of justice that the said Edward Kelly should be tried at the Central Criminal Court, Melbourne, within the central bailiwick, or any presentments that may be prepared against him upon the charges aforesaid.”
Mr. SMYTH said that he relied more particularly upon the 8th and 9th paragraphs in the affidavit, stating that the jury would be liable to intimidation.
Mr. Gaunson, who appeared for the prisoner, said he had to oppose the application, and asked for an adjournment. There were certain statements in Mr. Gurner’s affidavit which required to be answered, and he had had no opportunity of communicating with Kelly. He was allowed by the gaol regulations to see him only on Mondays and Thursdays, and it was after he had seen him last Thursday that he received notice of this application. Besides the authorities would not allow any of his friends and relations to see him. With regard to the paragraph in the affidavit in relation to the friends and sympathisers of the prisoner, he mentioned that the Crown had caused to be arrested in 1879 about 20 persons said to be sympathisers, and after detaining them in gaol for a long time without preferring any charge against them, let them go.
Mr. Justice BARRY said he could not go into that question.
Mr. GAUNSON said he only alluded to it for the purpose of showing that these men had been at large ever since, and had committed no acts of lawlessness or violence. He also pointed out that he had had no time to instruct counsel, and that, though reference was made to there being four outlaws, it was not stated that three of them were dead.
Mr. Justice BARRY asked what adjournment was wanted.
Mr. GAUNSON said till the 30th September.
Mr. SMYTH objected to so long an adjournment, though he would have no objection to a reasonable adjournment. There were a great number of witnesses to be examined, and it was coming close to the time when the Assize Court would be held.
After some further discussion, it was agreed that the application should be adjourned till Wednesday next.