The Argus (51)
Ned Kelly's Committal hearing -application for remand
Mr Gaunson said the remark of the Crown prosecutor that this was not a proper time for defence was not only not warranted by law, but was opposed to common sense. His worship was to all intents a judge and jury, to find out whether there was a prima facie case against the prisoner, and if he was not satisfied that there was a prima facie case, it would be his clear duty to discharge the prisoner. It was therefore highly important that he (Mr Gaunson) should cross-examine witnesses on the prisoner’s behalf, but this would be impossible unless he was fully seized of the facts. If he ever did read McIntyre’s statement it had faded from his memory, and he was not sufficiently instructed for going on at once with the case. With regard to the conduct of the Government in preventing the prisoner’s friends from seeing him, whether there were reasons for it or not, his worship would be unable to get over the fact that the ordinary course ad been departed from. The prisoner, under the gaol regulations, had a right to see any person, but he could not see even his own sister. This was a monstrous tyranny, and he (Mr Gaunson) would fail in his duty if he failed to denounce it. The solicitor for the Crown had just remarked to the Crown prosecutor that he (Mr Gaunson) had no right to go on at all. He might or he might not have any right to be there, but if this was the style in which the prosecution was to be conducted e would venture to predict that the prisoner would be acquitted by a jury.
Mr Foster.—Under the circumstances of the case, I will grant a remand, but it will be but for a very short period. I only do it in consequence of the serious nature of the case. I remand the prisoner until 2 o’clock this afternoon.
The Court was adjourned accordingly.
Before Kelly could be removed from the dock Mrs Skillian and Tom Lloyd stepped forward and shook hands with him. He remarked to Mrs Skillian, “It looks as if they won’t let me see you—good-bye.” Mrs Skillian replied, “Never mind, Ned, they are a lot of curs,” to which the prisoner rejoined, “There’s one native that’s no cur, and he will show them that yet.” He was then removed and the Court-house was cleared.
On the Court re-assembling at 2 o’clock ,
Mr Gaunson thanked the police magistrate for the adjournment he had granted, and said that he had since been busy reading the accounts of the murders in The Argus. He now, however, found himself placed in a still more difficult position, by the immense mass of facts which had been collected by the Argus. It was utterly impossible for him to digest these reports in the time he had at his disposal, and he was, therefore, driven to beg his worship to remand the accused for a week, so that he might be able to consider carefully the defence that should be made on his behalf. It was only a preliminary investigation, but, as the Crown prosecutor well knew, the evidence taken at such enquiries invariably decided the case.
Unfortunately, owing to a premature order which had been issued by the late Chief Secretary, and which had not been cancelled by the present Chief Secretary, no person had been able to see the prisoner except professional gentlemen, and, in consequence, the prisoner had not had that fair opportunity of preparing his defence which the law entitled him to. That order was to be respected, but it ought not to be continued. The Chief Secretary had no more authority to issue such a mandate than his worship had to order the prisoner to be taken at once to the back yard to be platooned. In this case, however, might had been right, and law had been disregarded. Even the inspector-general of the penal establishments could not have made such an order legally, for the accused at present was only the prisoner of the sherriff―the governor of the Beechworth gaol. His worship had power to issue an order, on a statement by the gaoler which would justify such a course, that no person should be allowed to visit the prisoner, and he could also issue one that relatives of the prisoner should be allowed to see him. If the remand now asked for were not granted, he (Mr Gaunson) could not enter his protest that fair play had not been accorded to the prisoner, and that he (Mr Gaunson) was consequently defending him under great difficulties.
The prisoner was safely enough secured, and the extraordinary care the police were taking was not reasonable or proper. Montaigne, in one of his essays, demonstrated that cowardice was always the mother of cruelty, and one would imagine that this particular case was an illustration of that fact. Why should officers with loaded weapons have been seen about the court? The thing was simply ridiculous.
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