The Age (48)

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As soon as the sitting of the Central Criminal Court was opened yesterday morning an application was made by Mr H Molesworth for the postponement of the prisoner Edward Kelly’s trial until next month.

The prisoner was not present in court and his Honor, Mr Justice Barry, to whom the application was made, admitted it was not necessary he should be.

Mr Molesworth, in support of the application, read the following affidavit:-

I, David Gaunson, of 17 Eldon chambers, Bank place, Melbourne, attorney for the above named prisoner, Edward Kelly, make oath and say:-

1. That the friends and relatives of the prisoner have not been allowed the usual access to the prisoner as a person awaiting trial, and the prisoner has thereby been greatly embarrassed in preparing his defence.

2. That the prisoner has been unable to provide the necessary funds for counsel, and I have therefore not delivered any brief.

3. That the depositions are very voluminous, and in order to defend the prisoner I believe counsel will need an adjournment till the next sittings.

4. That I am informed and believe prisoner’sister had arranged to borrow money for her brother’s defence, on land occupied by her, but on applying to the person who had promised her the loan she found that the Government had confiscated the land.

5. That on inquiry at the Lands office department, I found this week that the prisoner’s mother had a selection under the Amending Land Act 1865, on which she had paid up all the rents under her seven years lease. That she had borrowed money from the Land Credit Bank, Melbourne; that the bank sold her interest to prisoner’s sister, but that the Lands department on the application of the police, had refused to grant the title to the land.

6. That I therefore applied to the Minister of Lands, pointing out the injustice done in the Crown forfeiting the 14s per acre paid on account of such land; and I have reason to believe that if this trial be postponed till next sittings that the title will be completed, and money raised on such land for the purpose of defending the prisoner.

7. That the want of means has so embarrassed both the prisoner and myself in preparing a defence that I can safely say that in my judgment and belief the prisoner will be unable to obtain his counsel and be seriously prejudiced in his defence if this application for a postponement be refused.

Mr Molesworth also read copies of memoranda furnished in reply to repeated applications by Mr Gaunson to allow the friends of the prisoner to visit him so as to afford an opportunity of preparing a defence. The effect of these documents was a refusal to treat Kelly otherwise than as an ordinary prisoner, subject to the same gaol regulations. The learned counsel then proceeded to state that neither the committing magistrate or the governor of the gaol exercised any discretion in the matter, and that an authority had been assumed by the Chief Secretary which he did not possess. The present application, however, was based on the substantial ground that the prisoner had no means to proceed with his defence, and that under the circumstances, the court or the Crown ought not to force him to trial. As far as the Crown was concerned, a delay of a month could not possibly make any difference.

Mr Smyth(Crown prosecutor) said he absolutely opposed the application. The prisoner could obtain funds from the Crown for his defence, for it was not yet too late to make such an application. He was committed on the 10th August last, and sufficient notice of the trial had been given to Mr Gaunson, who had failed to give any reasonable account why nothing had been done in the meantime. As far as the confiscation of the land referred to in the affidavit was concerned, he (Mr Smyth) presumed that it had been confiscated for proper purposes.

His Honor said no reasons founded on justice or principle had been given in support of the application being granted. Applications of this character were never refused except on substantial grounds, but in this case there was no reason for supposing that if the trial were postponed money for the defence of the prisoner would be raised in the meantime. He could not assume that the land had been confiscated improperly, for there was an act of Parliament under which the proceeding would have to be guided; and as the grounds of the present application were vague, inconsistent and wholly unauthorised, he would refuse it. Application refused Index to documents Visit

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