The Argus at KellyGang 19/10/1880 (3)
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 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.ld necessarily require a postponement to instruct counsel.’
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