THE TRIAL OF EDWARD KELLY
The trial of Edward Kelly was to have taken place yesterday, in the Central Criminal Court, before his honour Mr. Justice Barry. A large concourse of people assembled in front of the court for some time before the court was opened, expecting they would be allowed admittance. An additional jury panel had, however, been summoned, and the sheriff gave orders that till a jury had been empanelled none but jurors or witnesses should be allowed into the galleries. Mr. Wisdom, the Attorney-General of New South Wales, and Mr. Cowper, the sheriff of New South Wales, were accommodated with seats on the bench. After the prisoner had been arraigned on the charge of murdering Constable Thomas Lonigan and Michael Scanlan, Mr. Bindon applied for an adjournment of the case till next sittings, as the prisoner was not in a position to be properly defended, owing to inability to obtain money to pay for counsel; that an application had been made to the Crown on Friday for funds for the defence, but the fees allowed by the Crown were not adequate compensation for the work that would have to be done, and it was said if a postponement were granted till next sittings the prisoner would be in a position, through his friends, to employ counsel. Mr. Smyth, the Crown prosecutor, contended that there was no reason why there should be any delay in the trial, as the prisoner had been committed two months ago, and had been told that he would be tried at these sittings. But that it should not be said that the prisoner was prejudiced in any way, the Crown would consent to an adjournment for a week. Mr. Justice Barry said that as he had to preside at the Sandhurst and Castlemaine assize courts, he would postpone the trial till the 28th inst. He remarked that it was a very becoming act on the part of the Crown to postpone the trial. The trial was then postponed, and the prisoner was removed to gaol.
In the Central Criminal Court yesterday, before his Honour Mr. Justice Barry, Edward Kelly was placed in the dock, and two presentments were filed against him by the Attorney-General, the first for having, on the 28th October, 1878, at Stringybark Creek, wilfully murdered Thomas Lonigan; the second presentment charged him with the murder of Michael Scanlan. A large crowd had gathered round the Old Court-house for some time before the proceedings commenced, but the doors were not opened till shortly before 10 o’clock, and the only persons then admitted to the galleries were the jurors, of whom, in addition to the ordinary panel summoned for Friday last, another panel was summoned for yesterday. The seats in the body of the court were reserved for professional gentlemen.
Mr. C. A. Smyth, Crown prosecutor for the Central Bailiwick, with Mr. Chomley, Crown prosecutor for the Northern Bailiwick, prosecuted for the Crown.
The prisoner pleaded not guilty to the two presentments.
Mr. BINDON immediately after the presentments had been pleaded to, came into court, and said that he had been asked on behalf of his friend Mr. Molesworth to apply to the Court for an adjournment of the trial till next sittings. The application was based on an affidavit by Mr. D. Gaunson, the prisoner’s attorney, who swore as follows:―
“1. That an unsuccessful application was made on Friday last, the 15th day of October inst., by Mr. Molesworth to his Honour Sir Redmond Barry, presiding in the Central Criminal Court, to postpone the trial of Edward Kelly, a prisoner committed on two charges of murder, until the next sittings of the said Central Criminal Court.
“2. That on returning from the said court to my office I wrote and sent the following letter to the hon. the Attorney-General:―‘Today an application was made in court for a postponement of Kelly’s trial until next sittings. In support of that I made an affidavit, the gist of which was that, owing to the usual access of the prisoner’s friends being debarred him, he had been greatly embarrassed in preparing his defence; that his mother’s selection had been forfeited or confiscated, but that it was likely the Government would revoke that confiscation, and thereby funds might be obtained on security of the land, and that he would be unable to obtain counsel unless the postponement was granted. This application was opposed successfully, the Crown prosecutor stating that if the prisoner were without means the Crown would supply them in the usual course. Having regard to the time which the trial is calculated to occupy, and the time counsel would require to work up the case, I respectively submit that his fee should be 50 guineas, and I accordingly apply that you will be pleased to allow that amount. As time so greatly presses, I beg your reply to-day. If the Crown would allow the postponement, this application would be unnecessary.’
“3. That in reply I received the letter following:― ‘Crown Law Offices, Melbourne, Oct. 15, 1880. Sir,―By direction of the Attorney-General, I have the honour to acknowledge the receipt of your letter of this date, seeking the payment by the Crown of the necessary fees for the defence of Edward Kelly. In reply, I am to point out that the application must be made to the sheriff, in accordance with the regulations in that behalf; and on the matter coming before the Attorney-General in proper course, he will be prepared to act as circumstances may warrant.―B. C. HARRIMAN, Secretary to the Law Department.’
“4. That in consequence thereof I wrote and posted to the sheriff at Melbourne the letter following:― ‘Sir,―In pursance of a letter received by me to-day from the Crown Law department, I beg to apply that Edward Kelly, as a prisoner in your custody awaiting trial for murder, and without means of defence, may have counsel assigned for his trial, meaning thereby the amount hereinafter referred to may be granted, the prisoner selecting his own counsel. Allow me to point out that the prisoner has been committed on two charges, each forming a separate case; therefore counsel would require two fees, because he must prepare for both cases, notwithstanding that his services may not extend beyond the first case. In my letter to the hon. the Attorney-General 50 guineas was mentioned as counsel’s fee. I am aware that the fee ordinarily paid out of the public purse is not so much, but I think I may urge that this is no ordinary case, but one that will take up a very great portion of any experienced barrister’s time, and to the absolute exclusion of any other business if he is to do justice to the prisoner’s case. My belief is that it means a good week’s continuous work, including preparing for and going into court. At Beechworth the case took a week, and practically there were no counsel’s speeches. Surely, then, the fee I have named is only adequate to secure an experienced and able counsel. Having regard to the possibility of any barrister taking up the defence for the ordinary fee, or as has been said, for the honour of the bar, defending gratuitously, I would submit that the prisoner is thereby necessitated to trust for luck for able and experienced assistance. The prisoner selected Mr. Molesworth to defend him. That gentleman’s fee was mentioned at the amount I have stated, and whether Mr. Molesworth or any other experienced and talented criminal barrister is retained the fee is little enough. I beg to request the earliest possible answer, as Monday has been mentioned as the day upon which the prisoner is to be arraigned.’
“5.―That at about half-past 11 on Saturday last, the 16th October inst., a warder from the Melbourne Gaol brought to my office the letter following:― ‘October 16, 1880.―Mr. Gaunson, solicitor,―Will you come and see me at once, as the sheriff has been here to see me, and wants to have an answer in half an hour on an important matter, which I cannot give without seeing you.―Oblige your truly, EDWARD KELLY (X his mark). Witness―Patrick Long, Warder. The question is whether Kelly will apply to the Crown or not for means for his defence.―J. B. CASTIEAU, Governor of Gaol.’
“6. That thereupon I went to the gaol and saw the prisoner, to whom I read the foregoing correspondence, and he then said he would ask the Crown to defend him.
“7. That I then saw the sheriff and informed him of the prisoner’s wish, and the sheriff said that he must get that in writing from the prisoner himself.
“8. That I thereupon again saw the prisoner, and wrote for and read to him the letter following, that is to say:―”The Sheriff.―Sir,―I adopt Mr. Gaunson’s letter received by you this day, and in reply to your query, beg to state that I am without means of defence, and wish the Crown to employ Mr. Molesworth as my counsel, through Mr. Gaunson as my attorney. October 16, 1880. EDWARD KELLY (X his mark). Witness―Patrick Long, warder.’
“9. That I left such letter with the governor of the gaol at about a quarter to 1, and understanding from my previous conversation with the sheriff that the Crown Law Offices would probably, as it was Saturday afternoon, be closed, and also that no answer might reach me that day, I left my office at about half-past one, but on returning at 8 o’clock in the evening I found the letter following, that is to say:―‘Sheriff’s office, 16th October, 1880, 1 o’clock p.m. Sir,―In reply to yours of the 15th inst. I have only this moment received Edward Kelly’s application to be defended by the Crown, and naming you as his solicitor, and his wish to have Mr. Molesworth as his counsel. I will therefore instruct you to do so on the usual conditions, viz., £7 7s. for attorney, and £7 7s. for counsel, with 5s. for clerk’s fee. I will forward your letter to the Crown Law offices, who will decide as to the amount of remuneration, if any, beyond what I have stated they will allow. Please to reply at this at once. (Signed ROBERT REDE, Sheriff.’
“10. That, having regard to the urgency of the case, I went out yesterday to Mr. Molesworth’s residence, and read the foregoing correspondence to him, when he told me that from what he had seen in the papers about the case he would not undertake to defend the prisoner for his life without at least four or five days preparation, and that before he understood the prisoner had desired him for his counsel he had accepted a brief in a heavy libel action, McIntyre against the ‘Age’ paper, which necessitated his being at Sandhurst on Thursday next; but that if the case were postponed till next sittings he could undertake the prisoner’s defence.
“11. That the remuneration offered is wholly insufficient for a case involving so much time and labour as this would entail on both counsel and attorney.
“12. That I yesterday wrote and posted to the sheriff the letter following, that is to say―’The Sheriff. Sir,―Yours reached me about 8 last night. The remuneration is wholly insufficient, and I beg to renew my letter of yesterday. If the Crown will postpone the trial to next sittings, Mr. Molesworth can act as prisoner’s counsel. P.S.―Of course, I am willing to act as Kelly’s attorney, but would necessarily require a postponement to instruct counsel.’
“13. That I am willing to act as attorney for the prisoner, but I believe it is impossible to properly instruct counsel for the defence in time for the present sittings.
“14. That the depositions in the two cases extend to 85 pages of brief paper, and in addition to fully acquainting with them counsel would require to read the voluminous newspaper accounts of the Euroa, Jerilderie, and Glenrowan affairs referred to in the depositions, and to study the law to see how far the Crown can go into them, and in my judgment and belief the time mentioned by Mr. Molesworth is the least to enable him or any other counsel to safely undertake the prisoner’s defence.
“15. That I am satisfied, if the Crown forces the prisoner to his trial at these sittings, the prisoner would have no defence provided for him such as the extraordinary circumstances of this case require.
“16. That I have inquired from the prisoner’s sister (Mrs. Skillian), and from his cousin (Thomas Lloyd) whether, if a postponement to next sittings were granted, the prisoner’s friends could supply means for his defence without requesting the Crown’s assistance, and I am satisfied that if the trial be postponed as requested, the prisoner’s friends will supply me with the necessary funds to properly defend him.
“17. That if the trial be postponed until next sittings the prisoner will then be prepared to take his trial.
“18. That owing to facts stated in the foregoing paragraphs of this affidavit, no brief has been delivered to any counsel.”
Mr. BINDON, having read the affidavit, proceeded to say that the object of the affidavit was to obtain a postponement of the trial of the prisoner until next sittings, on account of the gravity and importance of the case. It was certainly one of the most important cases that had ever been tried or that would be tried in Victoria, and it was necessary, in the interests of justice, that a proper defence should be made. Under the circumstances, it was quite impossible that a defence could be undertaken at once. It was therefore necessary that there should be a postponement till next sittings.
Mr. SMYTH said that he must oppose the application. No ground whatever had been shown why the prisoner’s attorney had not taken steps to be prepared for the trial. On the 10th August last the prisoner was committed at Beechworth to take his trial. On the 25th August notice was sent to the prisoner’s attorney that the trial would take place in Melbourne at the October sittings of the Central Criminal Court, and on the 28th August Mr. Gaunson was furnished with a copy of the depositions, so that the prisoner had nearly two months’ notice that it was intended to try him at these sittings, and it did not appear that till last week any attempt at preparation for a defence had been made. There was not an attorney practising in the Court who did not know that where a prisoner was charged with a capital offence the Crown, on a proper application being made, supplied the funds. It appeared the Mr. Gaunson never made any application for funds till Friday last―after the Court had sat, and two months after the prisoner had been committed for trial. There were a number of witnesses in attendence―one from New Zealand―and it was extremely inconvenient that they should be kept waiting. In regard to the application to the Crown for funds, he read the following affidavit from Colonel Rede, the sheriff:―
“1. That on Saturday last, the 16th day of October inst., I received a letter from Mr. David Gaunson, the attorney for the prisoner in this case, stating that the prisoner desired to be defended by the Crown, and that the said Mr. Gaunson required a larger fee than was allowed on ordinary occasions.
“2. That on the same day, and a short time after receiving the said letter, I applied by memorandum to the governor of the gaol, Mr. Castieau, to know whether the said Edward Kelly had made application to be defended by the Crown.
“3. That a short time after, speaking to Mr. Castieau, he said Mr. Castieau informed me that he had spoken to the said Edward Kelly to the effect set forth in the second paragraph of this my affidavit, and that the said Edward Kelly had declined to be defended by the Crown.
“4. That fearing some misunderstanding, I saw the said Edward Kelly myself at the Melbourne gaol, and the said Edward Kelly seeming undecided what course to take, I allowed him half-an-hour to make up his mind.
“5. That at the end of such half-hour I received from the said Edward Kelly an application in writing to be defended by the Crown.
“6. That immediately on receiving said application, viz., at about 1 o’clock on the afternoon of the said 16th day of October inst., I wrote to the said Mr. Gaunson, instructing him to defend the said Edward Kelly on the usual conditions.
“7. That I forwarded the said letter by messenger, but he returned shortly after, saying that Mr. Gaunson could not be found, when I told him to go back to Mr. Gaunson’s office and leave the letter at his office.”
Mr. Smyth, on these facts, argued that no ground had been shown for any postponement. If the ordinary remuneration allowed by the Crown was insufficient, it was known that the Attorney-General would, after the trial, take special circumstances into consideration and allow a proportionate fee, as where a trial lasted more than one day. With that question, however, this Court had nothing to do, but only whether this was a proper application for a postponement. However, there was no desire on the part of the Crown that the prisoner should be prejudiced, and as Mr. Molesworth said it would take him four or five days to read and consider the evidence, there was no objection to his having that time. He could not, however, understand why it should require that length of time. It was said that the depositions were voluminous, but if his Honour would look at the depositions―
Mr. Justice BARRY said he had read the depositions on Saturday.
Mr. SMYTH said that the evidence given for the Crown was not voluminous, although the examination had been lengthened out by the cross-examination. However, he would consent to an adjournment till some day next week―say Monday.
Mr. Justice BARRY said he should have to go to the Sandhurst and Castlemaine Assize Courts, and would not be disengaged till the 28th October.
Mr. SMYTH said that the case might stand over till that day. The Crown had no desire to do anything harsh.
Mr. Justice BARRY.―It is very becoming on the part of the Crown not to force on a trial where a man’s life is at stake.
The trial was then postponed, and the Court adjourned till the 28th inst.