Royal Commission report day 36 page 4

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The Royal Commission evidence for 6/7/1881

(full text transcription)

(see also introduction to day 36)

[[../../people/peD_G/fitzpatrickAPC.html|Const Alexander Fitzpatrick]] sworn and examined

12801 By the Commission— What are you?— Timekeeper and clerk for Mr. Robb, the contractor.

12802 You were in the police force formerly?— I was.

12803 Do you remember the time that the four constables were shot in the Wombat ranges?— I do.

12804 You were stationed in the North-Eastern district at that time?— Yes.

12805 Where were you stationed immediately prior to that time?— I beg your pardon, I think I misunderstood you. I was not stationed in the North-Eastern district at the time those men were shot. I had been just transferred from there to Melbourne .

l2806 You had been in the district for how long before they were shot?— Nearly twelve months before.

12807 Where were you stationed during the time you were in the district?— At Benalla and Beechworth. About eight months at Benalla and two months at Beechworth.

12808 Were you going to any other station from Beechworth?— No. I was just transferred from the district for my own safety to Richmond depot.

12809 Will you state the circumstances that occurred at the time that you went to Mrs. Kelly’s hut?— That was on the 15th April 1878 .

12810 Where were you stationed at that time?— At Benalla.

12811 Were you in the police district where Mrs. Kelly's house is?— Yes.

12812 Were you authorized by any warrant to seize any of the Kellys for horsestealing at the time you went?— I noticed in the police gazette that there was a warrant issued by the Chiltern bench for the arrest of Dan Kelly and John Lloyd.

12813 Is it usual for policemen to attempt to arrest prisoners without having the warrant in their possession?— It is.

12814 That is they are bound by their regulations to arrest a criminal when they find him?— Wherever they find him, if they are certain there is a warrant in existence

12815 Was there any regulation in that district making provision that no single constable should go to arrest characters such as Dan Kelly?— I was not aware of any.

12816 You thought you were fully justified in attempting to arrest them?— Yes. I drew the attention of the sergeant was stationed there to this warrant being issued for Dan Kelly .

12817 Did he agree with you?— Yes, he agreed with my arresting him, and told me to be careful.

12818 Why careful?— They were known to be dangerous characters at that time by the police, and likely to resist the police.

12819 Were you long in the house before you attempted to arrest any of them?— I went a second time to the house before I made the arrest. The reason I went to the place at all was I knew I was capable of taking Dan Kelly away if he resisted; and there was a warrant issued at that time for Ned Kelly , and the local police were in search of him for some weeks previous to that.

12820 You understood he was not likely to be near the place?— Yes, not near the place.

12821 Will you tell the Commission what occurred?— When I went first to the place Dan was not there, only Mrs. Kelly and some of the younger children of the place, and I entered into conversation for a while to see if there was any chance of Dan putting in an appearance.

12822 She knew who you were?— Yes; and I drew her attention to the sound of some one cutting wood behind the hut on the creek where they lived; and I said, “I will go up and see who they are.” I went up there and found Williamson , a man that used to live with them, splitting rails, and asked him had he a license, and he said no, he did not require one, splitting on selected land; so, after I had spent a few moments with him, I was heading for Greta . I was going straight there–the station I was en route for. I was on horseback. I had occasion to pass by Kelly 's new hut at the time, the one they were living at at the time. As I was passing that I noticed two horsemen entering the slip panels in front of the old hut. I rode round to where they were, and by the time I got round one of the men disappeared, and Skillion was holding one horse by the mane, and hand the other horse, the one he had been riding, with the saddle and bridle on–he was holding that, and a third horse he had caught in the panel just after coming in. The horse that had been ridden had the bridle taken off. I asked Skillion who was riding the horse. He told me he did not know. I examined the mare, and saw it was the one Dan Kelly was riding two or three days previous to that when I had seen him. I said, “That is Dan Kelly 's mare,” and he said, “Yes.” I said, “Where is he?” and he said, “Up at the house, I suppose.” That is the new hut. So I rode up to the place again, and called out “ Dan ,” and he came out, and as soon as I saw him I walked up to him. He hand his hat and coat off, and a knife and fork in his hand. I said, “I am going to arrest you on a charge of horse stealing, Dan .” He said, “very well, you will let me have something to eat before you take me?” I said, “All right.” He said, “I have been out riding all day;” So he went back into the hut, and I followed him in. As soon as I went inside Mrs. Kelly accosted me, calling me “a deceitful little.” She said she always thought I was. She said, “You will not take him out of this to-night.” I said it was no use talking that way, that I had to do my duty; and Dan says, “Shut up, mother, that is all right.” I was scarcely in the place three minutes, when Ned Kelly rushed in and fired a shot at me and said, “Out of this, you.”....

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