The Age (33)
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Mr Gaunson here asked that a note be made that the whole of the conversation in the cell was objected to.
Mr Foster agreed to do so.
Witness to Mr Gaunson: I am an Irishman, about 35 years of age. Since the Wombat affair I have been in Melbourne in the Detective department. I remember when I arrived at the Richmond depot. It was on the 1 st of November. I volunteered to go to Glenrowan. I asked the Chief Commissioner to let me go up. The Chief Commissioner asked me at Glenrowan if I could identity prisoner, and I said, ‘Yes.’
Was it after some men had been roasted?
It was after I saw two bodies taken from the fire. They might have been women; I could not tell, they were so mutilated . I don’t remember anything further. That was on Monday. On Tuesday I went into the lock up at Benalla. Sergeant Whelan was in charge of the lock up. Senior constable Kelly may have been in charge at the time. I suppose he was for he had the key. I heard one of the constables say that Kelly had been talking about me. I went to Senior-constable Kelly. I said I wanted to see the prisoner. I saw him in the bedroom at the barracks. He was not in the lock up at the time. I do not remember Kelly asking for the key.
Mr Gaunson: So you idly visited this man?
Witness: I need not have gone if I had not liked. When I got in I put the questions to which I have already deposed. Kelly was wounded, and was lying down. I knew he was wounded on the arm. To my mind he was sane. Senior constable Kelly did not take notes of our conversation in the cell nor in my sight. I did not speak to Senior constable Kelly afterwards about the conversation. I did not say to him, ‘I hope you have taken notes.’ I slept at the police station last night. I did not report to the commissioner, but prepared a written statement of the whole case which I gave to Sub-inspector Kennedy. I have not been talked to concerning my evidence of witness. I have not compared notes with Senior-constable Kelly about the conversation. I told him what my evidence would be, and asked him if it was correct, and he said you. I believe there was a third constable present in the cell at the Benalla lock up when I spoke to Kelly. I know I am the principal witness against the prisoner. I have made statements to reporters about what occurred at the Wombat Ranges . I made my first report either to Sub-inspector Pewtress or Superintendent Sadleir. It was a written report. I wrote it in the Mansfield police station. I know a senior-constable Maud. I read The Age principally. I cannot say if I read Maud’s report in the Argus. I believe it was wrong.
Mr Gaunson: Did you say in your first report that Edward Kelly was the man who shot the police?
Witness: I cannot say what I wrote two years ago. I should have done so. My report did not reach Benalla for some days. I had never seen the prisoner or any of the gang before that the morning.
Mr Gaunson complained that the witnesses were listening at the door.
Mr Smyth denied that such was the case.
Witness continued: I read Kelly’s description in the Argus. I did not tell him that I believed Fitzpatrick had perjured himself. I saw his photograph with Sergeant Kennedy. It had been taken in Pentridge seven or eight years ago. He was described in the Police Gazette as having been born in ‘56. Kelly had hair on his face at the Wombat. When his photograph was taken in gaol he was clean shaved. I could see a resemblance between the photograph and Ned Kelly. I would not swear that it was Kelly’s photograph. I recollect seeing a reporter from the Argus in the Richmond barracks.
Mr Gaunson: Did you tell him that the likeness was a good one of Ned Kelly?
Witness: I cannot recollect what I said four years ago. The report of that interview may be correct. The only photograph which I saw of Kelly was that shown to me by Sergeant Kennedy. We went into the Wombat Ranges to arrest Daniel and Edward Kelly for attempting to murder Constable Fitzpatrick. We were all armed with the regular revolver. Sergeant Kennedy borrowed a gun.
Mr Gaunson: You should not take a cannon with you.
Witness: No. We expected resistance. I cannot say it we had a revolver. Kennedy may have had the warrant. I did not say in my examination-in-chief that we had no warrant. I had no warrant.
Mr Gaunson said in his examination the witness said there were warrants.
Witness: On Friday night, after we camped in the rangers, I went to look for kangaroos. I heard part of the case against Mrs Kelly. I heard part of the evidence of Constable Fitzpatrick. A man named Skillian and Williamson were tried with Mrs Kelly. I heard that the three prisoners were sentenced, Williamson and Skillian to six years, and Mrs Kelly to three years. I knew that Mrs Kelly had an infant at her breast. The infant was in gaol for one year. I believe it was on the 15th of April that the attempt to murder Fitzpatrick was made. A reward for ₤100 was offered for Kelly’s apprehension. I would not have shot Kelly if we had met him, if he had not resisted with firearms. I believe Constable Fitzpatrick has been discharged. I saw the notification in the Gazette.
Mr Gaunson: Do you believe he was dismissed because he was an honest, upright and truthful man?
Witness: If he possessed these qualities I think he would not have been dismissed, but he might have been dismissed for some indiscretion. I knew that a question was asked by Mr Graves in the House about Fitzpatrick. It was upon the evidence of Constable Fitzpatrick that Mrs Kelly, Skillion and Williamson were convicted.
Mr Gaunson: Upon the evidence of a man who is not good enough for the force.
Witness: I never saw anything wrong with Fitzpatrick. The reward was offered by the Government. We frequently searched for Edward and Dan Kelly before the 28th October. I did not know why that particular locality should have been searched. We were not in uniform, we were in plain clothes. We were not disguised like diggers.
Mr Gaunson: We had a row about plain clothes in Melbourne . I would like to know by what authority you scour the country in plain clothes, armed, and without warrants.
Witness: I was acting under the instructions of Sergeant Kennedy. When we were told to ‘bail up’ nothing was said to the effect that they (the Kellys) did not want to take life; they only a wanted the arms. Kelly said, ‘Fitzpatrick was the cause of all this.’ I replied, ‘You cannot blame us.’ I cannot remember saying ‘I know that.’ In answer to Kelly; but I will not swear I did not say so. If anything was said about Sergeant Steele having given evidence to back up Fitzpatrick’s. I do not remember it. I was quite cool after having been stuck up. When Kennedy and Scanlan were returning, Kelly said ‘Look out, lad. Here they come.’ I walked towards Kennedy, Edward Kelly being about ten or twelve yards from me.
Mr Gaunson: Is it not true that the instant Kennedy got off the horse you seized it and left him in the lurch?
Witness: I took the horse when it had been abandoned.
Mr Gaunson: You have in your direct examination said Kennedy smiled. Did he smile at you when you ran away with the horse?
Witness: I do not know; I would not swear that Kennedy was not dead at the time I got on the horse. I did not look round, because the timber was thick, and if I had done so I would probably be knocked off. I have sworn that when the prisoner fired at Kennedy he missed him.
Mr Gaunson: How long after that was it you seized the horse?
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