THE TRIAL OF EDWARD KELLY
The trial of Edward Kelly for the murder of Constable Lonigan on the 28th October, 1878, at Stringybark-Creek, was commenced yesterday before his honour Mr. Justice Redmond Barry, at the Central Criminal Court. The court was filled with jurors and others before the opening hour. Mr. C. A. Smyth and Mr. Chomley appeared for the prosecution, and Mr. Bindon for the defence. Mr. Bindon applied for a further postponement on the ground that he had only taken the case in hand on Monday night, and required time to study the evidence. His honour replied that the prisoner had received two months’ notice of his trial, and had ample time to make preparations. Further time could not be wasted, and he therefore refused the application. The trial then proceeded, and eight witnesses were examined on behalf of the prosecution. Shortly after 6 o’clock his Honour said that the trial could not be concluded that night, and therefore he would adjourn the case till next morning. He suggested that the Court should sit at 9 o’clock in the morning. Mr. Bindon said it would be extremely inconvenient to him to attend the Court at that hour, but on the jury expressing a desire to meet at 9 o’clock, he abandoned his objection. The jurors were not allowed to separate, but were furnished with quarters at the Supreme Court Hotel.
At a special sitting of the Central criminal Court yesterday, before his Honour Mr. Justice Barry, Edward Kelly was brought up for trial on a charge of having at Stringy Bark Creek, in the Wombat Ranges, on the 28th October, 1878, wilfully and maliciously murdered Thomas Lonigan, a police constable.
Mr. C. A. Smyth and Mr. Chomley appeared for the prosecution, and Mr. Bindon for the prisoner.
Mr. BINDON applied for a further postponement of the trial until next sessions, on the ground that the defence of the prisoner had only been placed in his hands on Monday night, and that he had consequently been unable to make himself thoroughly acquainted with the voluminous depositions taken in the case.
His HONOUR said he would not be justified in postponing the case any further. The prisoner received notice of his trial two months ago, and how the procrastination had occurred he (his Honour) could not tell. The case would now proceed.
A jury having been sworn in,
Mr. C. A. SMYTH opened the case by narrating the circumstances of the police murders and explaining the nature of the evidence he would submit. He called the following witnesses:―
Michael Edward Ward said he was a detective stationed in Melbourne. A document produced was a warrant for the apprehension of Edward Kelly, of Beechworth, for horse stealing. It was dated 15th March, 1878. The person accused therein was the prisoner in the dock. He also proved the warrant which was issued for the arrest of Daniel Kelly on a similar charge. He had been in pursuit of the Kelly gang since the 9th September, 1878, until they were captured on the 29th June.
Patrick Day, police constable, stationed at Benalla, proved the issue of warrants for the arrest of the prisoner and his brother Daniel Kelly for attempting to murder Constable Fitzpatrick.
Thomas McIntyre deposed,―I am a police constable, at present stationed in Melbourne. In October, 1878, I was stationed at Mansfield, and on Friday, the 25th of the month, left with Sergeant Kennedy and Constables Lonigan and Scanlan to search for the prisoner and his brother Dan, on a charge of attempting to murder Constable Fitzpatrick. Knew that there were warrants issued. They were notified in the Police Gazette. The party were in plain clothes, and Sergeant Kennedy was in charge. We started at about 5 o’clock in the morning, and camped in the Wombat Ranges, 20 miles from Mansfield, pitching our camp in a small cleared space. There were the remains of a hut there, and some dead logs lying on the ground. On the following morning, 26th, Sergeant Kennedy and Scanlan left the camp to patrol no horseback, leaving me and Lonigan in charge of the camp. Sergeant Kennedy had a Spencer rifle and a revolver, Scanlan a revolver. Lonigan had a revolver, and I a revolver and fowlingpiece. During the day, in consequence of a noise having been heard down the creek, I searched the place but found no one, and on returning to the camp fired two shots at parrots. I and Lonigan, at about 5 o’clock, lit a fire in the angle formed by two large logs which crossed each other, and proceeded to prepare out tea. We were standing at the fire with one of the logs between us. Lonigan alone was armed, and he only had a revolver in his belt. My revolver and fowlingpiece were in the tent. There was a quantity of speargrass 5ft. high about 35 yards from the fire, and on the south side of the clearing. I was standing with my face to the fire and my back to the speargrass, when suddenly a number of voices from the speargrass sang out, “Bail up, hold up your hands.” Turning quickly round, I saw four men, each armed with a gun, and pointing these weapons at Lonigan and me. The prisoner, who was one of the men, had the right-hand position, and he had his gun pointed at my chest. I, being unarmed, at once threw up my arms out horizontally. Lonigan was in my rear and to my left. Saw the prisoner move his rifle, bringing it in a line with Lonigan, and fire. By glancing round I saw that the shot had taken effect on Lonigan, for he fell. A few seconds afterwards he exclaimed, “Oh, Christ, I’m shot.” The four men then advanced on me, running, three of them with their guns lowered, the prisoner drawing a revolver, and all calling out, “Keep up your hands.” At a distance of three yards they all covered me with their weapons. On ascertaining that his firearms were at the tent, the prisoner took the revolver from Lonigan, who in the meantime expired, and also secured the firearms in the tent. The four men then went into the tent, leaving me outside. Dan Kelly returned to me with a pair of handcuffs found in the tent, and said he was going to handcuff me. Prisoner, who followed him, said that was unnecessary, as his rifle was better than handcuffs, threatening at the same time to track me, even to the police station, if I tried to escape. In the conversations that followed prisoner called my attention to the gun with which he had shot Lonigan. He said, “That’s a curious old gun to carry about the country.” It was an old weapon with stock and barrel tied or spliced together with a waxed string. The prisoner then took up my fowling-piece, drew the charges, abstracted the shot and substituted them with bullets, reloading the gun with the same. He gave the fowling-piece to Byrne, whose body I identified at Glenrowan. I recognised prisoner and his brother from their likeness to their mother and sisters. Did not know Hart, the other member of the gang. Prisoner, jerking his head towards Lonigan’s body, asked, “Who is that?” Witness replied, “Lonigan.” Prisoner at first said, “No; I know Lonigan well;” but afterwards, “Oh yes, it is. I am glad of that, for the ― once gave me a hiding at Benalla.” Prisoner had now two guns, the one he received from Byrne in exchange for the fowling-piece and his own weapon. He remarked that one was for me if I attempted to escape. The prisoner then arranged his men, placing two in the speargrass (Dan and Byrne), and one (Hart) in the tent. The prisoner himself lay down behind a log at the fire, and called me to the log. We had some conversation, in which the prisoner expressed a belief that the police had come out to shoot him. The prisoner and his mates were now waiting for the return of Kennedy and Scanlan, and with regard to their absence and probable time of return he closely questioned me. He asked me to request them to surrender, and promised not to shoot them if they did. He stated, however, that there were four men in the police force he intended to roast―viz., Flood, Fitzpatrick, Steel, and Strong. He said, “What gun is it? Is it a breechloader?” I said, “Yes, it is.” He said, “That looks very like as if you came out to shoot me.” I said, “You can’t blame the men, they have got their duty to do, and they must come out as they are ordered.” He said, “They are not ordered to go about the country shooting people.” He then said, “What became of the Sydney man?”―he referred to a man who murdered Sergeant Wallins in New South Wales. I said, “He was shot by the police.” He said, “If the police shot him they shot the wrong man. I suppose if you could you would shoot me some day, but before you do it I will make some of you suffer for it. That fellow Fitzpatrick is the cause of all this. Those people lagged at Beechworth the other day no more had revolvers than you have at present―in fact, it was not them who were there at all.” I said, “You can’t blame us for what Fitzpatrick did to you.” He said, “I have almost sworn to do for Fitzpatrick, and if I let you go now you will have to leave the police force.” I said, “I would, that my health was rather bad, and I intended to go home.” I asked him what he would do to the men if I got them to surrender. He said, “You had better get them to surrender, because if they get away we will shoot them, and if they don’t surrender we will shoot you. We don’t want their lives, only their firearms. We will handcuff them all night, and let them go in the morning.” I thought I could possibly get a gun by a sudden spring, and I made a short step towards them. Hart cried out from the tent, “Ned, look out, or that fellow will be on top of you.” Prisoner said, “Don’t do that, mate; if you do you will soon find your match, for you know there are not three men in the police force who are a match for me.” About this time (half-past 5 or 6 o’clock) Kennedy and Scanlan came up. Prisoner cried out, “Listen, lads, here they come.” (This evidence was objected to as relating to another offence, but the objection was overruled on the ground that the evidence was admissible to show the intent with which the first shot was fired.) Kennedy and Scanlan came up on horseback. They were 150 yards from us. The prisoner was still kneeling behind the log. He stooped to pick up a gun. Kennedy was on horseback. Prisoner said, “You go and sit down on that log” (pointing to one), and added “Mind you don’t give any alarm, or I’ll put a hole through you.” The log was about 10 yards distant from the prisoner, in the direction of Kennedy. When they were 40 yards from the camp I went to them and said, “Sergeant, we are surrounded; I think you had better surrender.” Prisoner at the same time rose and said “bail up.” Kennedy smiled, and apparently thought it was a joke. He put his hand on his revolver. As he did so prisoner fired at him. The shot did not take effect. The three others came from their hiding place with their guns, and cried out, “Bail up.” Prisoner picked up the other gun. Scanlan, when Kennedy was fired at, was in the act of dismounting. He became somewhat flurried and fell on his knees. The whole party fired at him. Scanlan received a shot under the right arm. He fell on his side. Kennedy threw himself on the horse’s neck, and rolled off on the off side, putting the horse between him and the prisoner. I caught Kennedy’s horse, and I looked round and saw the others running past. I attempted to mount the horse to get away. The last I saw was Kennedy and Scanlan on the ground. I got away. I heard shots fired. I can’t say if they were fired at me. I got thrown off the horse in the timber when I had ridden two miles. I remained in the bush all night, and got to Mansfield next afternoon (Sunday), about 3 p.m. I reported the matter to Inspector Pewtress, and a search party was organised. We started from Mansfield about 6 o’clock. Never saw the prisoner again till after his arrest at Glenrowan. I arrived at Glenrowan on the Monday afternoon. Saw prisoner at the railway station, and recognised him.
Cross-examined by Mr. BINDON.―We went out with Kennedy to arrest the prisoner and his brother. I did not see the warrants for their apprehension. I can’t swear that any of our party had a warrant. I knew of the warrants by the Police Gazette. Kennedy did not roll of his horse through being wounded by the prisoner. From the time the sergeant came in sight till Scanlan was shot was about a minute. Kennedy’s horse was restive after I caught him. I thought nothing of the horse till I saw Scanlan was shot, and then I did not think I could get away. Scanlan was shot immediately after Kennedy was fired at. When they were firing all round I thought no mercy would be shown to any of us. If I had known Kennedy would have fought I would not have left. I did not consider there was any opportunity for a fight.
George Stephens, groom, said he was at Faithfull’s Creek Station when it was stuck up by the prisoner, and Hart, Byrne, and Dan Kelly. He said prisoner gave him the following account in answer to a question about shooting the police. Prisoner said:―We were behind a log. I told Dan to cover Lonigan and I would cover McIntyre. I then called on them to throw up their hands, and McIntyre immediately did so. Lonigan made for the log, and tried to draw the revolver as he went along. He laid down behind the log, and rested his revolver on the top of the log and covered Dan. I then took my rifle off McIntyre and fired at Lonigan, grazing his temple. Lonigan then disappeared below the log, but gradually rose again, and as he did so I fired again and shot him through the head. I then sent two men back to our own hut, fearing a surprise there. I sent Dan over to the rise to watch for the police coming. While I was talking to McIntyre the men appeared in the open, and I had just time to fall down by the fire. The fire was very high scorching my knees. McIntyre went over and spoke to Kennedy, and Kennedy smiled. I immediately sang out for them to throw up their hands. Scanlan swung his rifle round and fired at me. I then fired, and Scanlan fell forward on the horse’s neck. I still kept him covered, thinking he was shamming. When the horse moved, he rolled off.”
Cross-examined.―I have been in the police. I left in 1868. I was discharged for being absent for two or three days without leave. I am going to try to get employed by the police.
Re-examined.―I repeated my evidence to Detective Ward shortly after the prisoner went away.
Wm. Fitzgerald, labourer, at Mologolong, who was present at the conversation between Stephens and prisoner, gave evidence similar to that of the last witness.
Henry Dudley, employed in the Government Printing-office, gave evidence as to having been stuck up by the prisoner at the Faithfull Creek station, in December, 1878. Referring to a conversation he had with prisoner, he said that the prisoner pulled out a gold watch in a double case. He said “That’s a good watch, is it not? It belonged to poor Kennedy. What would be best for me―to shoot the police, or for the police to shoot me and carry my mangled body into Mansfield?”
Robert McDougall, bookbinder at the Government Printing-office , who was with Dudley, gave similar evidence.
James Gloucester, draper at Seymour―I was hawking goods in December last in the neighbourhood of Mr. Younghusband’s station, when I was locked up by the prisoner at the station with 14 other persons. The prisoner in one conversation described the shooting of the police at the Wombat. One of the prisoners, out of curiosity, asked him about it. Prisoner said that he had shot Lonigan, and had also shot Kennedy. He said, “Lonigan ran to the log, and was trying to screen himself behind it when I fired at him. He fell. I was sorry afterwards that he didn’t surrender.” He said that Lonigan was struck in the head and killed. He said, People called it murder, but he had never murdered anyone in his life. I said, “How about Sergeant Kennedy?” He said, “I killed him in a fair fight; as Kennedy came up I told him to throw up his arms, but instead of surrendering he showed fight, and during the fight he retreated from tree to tree. Kennedy must have been a good shot as well as a brave man, for one of the shots went through my whiskers.” He added that Kennedy turned round, and he (Kelly) thought he was going to shoot him, and he fired, and shot him. He was sorry he had fired that last shot, as he had thought since that Kennedy was going to surrender, and not fire. He said that he had afterwards had a long conversation with Kennedy, and seeing from his wounds that he could not live, he shot him. He said that the party were going to leave the ground, and as he did not wish Kennedy to be torn by wild beasts while he was dying, he shot him. He added that it was no murder to shoot one’s enemies, and the police were his natural enemies. He said he had stolen about 280 horses, and that if the police had taken him for any of these cases he would not object, but that the police had persecuted him.
Cross-examined by Mr. Bindon.―Prisoner said he was 200 miles away at the time of the alleged shooting at Greta; that his mother had struggled up with a large family, that he was very much incensed at the police, that his mother had been unjustly imprisoned, and that Fitzpatrick’s testimony was prejudiced. He referred to his mother having an infant at the breast when she was taken to gaol. Prisoner said he was sorry Lonigan had not surrendered. I said at the Police Court that my impression was that he took the whole of the shooting on himself to screen the others.
At this stage the further hearing of the trial was adjourned till next day, at 9 o’clock.
The jury were taken to the Supreme Court hotel, where quarters for the night were prepared for them.