The Argus at KellyGang 19/10/1880 (4)
“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 attendance - 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.
end
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