The Argus at KellyGang 30/10/1880 (4)
Defence summed up at Ned Kelly's trail
Who shot that man no one could tell. McIntyre said that he saw the prisoner fire at him, but there were shots fired by others at the same time, and to tell which was the fatal bullet was a matter of impossibility. Only two men were alive who were in the fray, and it was simply a question of believing the statement of the one or that of the other. Unfortunately for the prisoner, his mouth was closed, and they had only the statement of McIntyre before them. That statement, moreover, was not only that of a prejudiced witness, but the corroborative evidence given was of most peculiar and unreliable character, being simply a variety of remarks made by the prisoner himself―remarks made either ad captandum, for the purpose of screening others, or for keeping the persons he had in durance in subjection. Evidence of this character was of a most illusory nature, and ought to have no weight with the jury. The prisoner was not the bloodthirsty assassin the Crown prosecutor had endeavoured to make out. Both before and after the shooting of the police he showed that he had the greatest possible respect for human life, for he had many previous opportunities of assassinating policemen, if that was his desire, and at Euroa and Jerilderie he never harmed one of the persons who fell into his power. The jury had an important and serious duty to discharge, and he had to urge them not to take away the life of a man on the prejudiced evidence of a single man.
His Honour , in summing up, said that the prisoner Edward Kelly was presented against for that he, on the 26 th October, 1878 , at Stringybark Creek, in the northern bailiwick, feloniously, wilfully, and with malice aforethought, did kill and murder Thomas Lonigan. Murder was the highest kind of homicide. It was the voluntarily killing of any person in the Queen’s peace by another person of sound mind, with malice prepense and aforethought, either expressed or implied. Malice was twofold. It might be proved by expressions made use of by the prisoner, which showed a malevolent disposition, and that he had an intention to take away the life of another man without lawful cause. It might also be proved by the prisoner procuring materials to cause the death of another, such as purchasing a sword, or a knife, or poison, and if those weapons or the poison were used, it was evidence from which malice might be inferred, unless there was some justification for their use. As, for instance, if a man bought a pistol intending to shoot A, and went out intending to shoot him, and if on the way he was assailed and overpowered by another with whom he had no intention of quarrelling and should kill him, he would be justified in using the pistol in self defence. If, however, having bought the pistol, he proceeded to carry out his original intention, and did so, it would be murder. And if two or three or more persons went out together with an intention of an unlawful character, they were all principles in the first degree, and each was liable to account for the acts of the others.
So if four men went out armed intending to resist those in lawful pursuit of an object, and one of those four men interfered with those on their lawful business, and killed them, the four would be equally guilty of murder, and might be executed. Here four constables went out to perform a duty. It was said they were in plain clothes. But with that they had nothing to do. Regard them as civilians―he used the word because it had been made use of in the course of the trial, although he thought it inappropriate―what right had four other men armed to stop them? They had the evidence of the surviving constable as to what had occurred―that two were left by their companions at the camp―what right had the prisoner and three other men to desire them to hold up their hands and surrender? But there was another state of things which was not to be disregarded. These men were persons charged with a responsible and, as it turned out, a dangerous duty, and they were aware of that before they started. They went in pursuit of two persons who had been gazetted as persons against whom warrants were issued, and they were in the lawful discharge of their duty when in pursuit of these two persons; therefore they had a double protection―that of the ordinary citizen, and that of being ministers of the law, executive officers of the administration of the peace of the country. Whether they were in uniform or not, there was no privilege on the part of any person to molest them, and still less was there power or authority to molest them as constables.
The jury had been invited to be extremely careful before relying upon the evidence of Constable McIntyre. He went further, and told them to be careful in considering the evidence of all witnesses. According to the law of this country, the principles of evidence were the same on all sides of the Court―at the common law, at the equity, and at the criminal side, with some few exceptions. As, for instance, in treason there must be two witnesses, although not necessarily to the same overt act. In perjury there must be generally two witnesses, or one witness sworn and certain circumstances deposed to on oath to corroborate him. There must be two witnesses to a will. Some documents must be signed by an attorney, some documents must be attested by a notary public; but with these and some other unimportant exceptions one witness was sufficient to prove a case on either side of the Supreme Court. McIntyre was the only survivor of this lamentable catastrophe. The jury would have to consider the manner in which he had given his evidence, and say whether they thought from his demeanour or mode of giving his evidence that he was stating what was not true.
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