The Argus (50)
Ned Kelly's Committal hearing -application for remand
Mr Gaunson then said he had to ask that a remand might be granted to the accused in order that he might have a fair opportunity of preparing his defence, an opportunity he had not been afforded up to the present time. He did not desire to say anything in support of his application that could be construed into an unfair endeavour to awaken sympathy for the prisoner, or into any reflection upon the constituted authorities, but he Mr Gaunson) was charged with the great responsibility of guarding a human life, and was not therefore in a position to yield tribute to any authority that was illegitimately exercised, and he was therefore bound to say that the Government, in refusing permission for the prisoner’s relatives or those friends in whom he had confidence to see him, had departed from the beaten track. They had not given the prisoner that fair play to which he was entitled to enable him to prepare his defence. It was true that a professional gentleman did see him on gaol in Melbourne, but it was also true that from the time of his arrest there had been an amount of doubt as to whether he would ever come to trial at all—whether indeed he would live—and steps which might have otherwise been promptly taken to prepare his defence were therefore delayed. Moreover, his friends were never able to discover where the preliminary examination was to be held. At one time Melbourne was mentioned, and at another Beechworth, and they were always kept in doubt.
The offences were alleged to have taken place at Stringy Bark Creek. The nearest court of petty sessions was that of Benalla, and the preliminary investigation should therefore have been held at that place. However serious or dark the circumstances surrounding the prisoner might be, they had to bear in mind that after all he was simply a prisoner awaiting his trial, and the humanity of the British law insisted upon a man’s innocence until his guilt is proved. In accordance with the spirit of that law, then, opportunities ought to be afforded to the prisoner to see his friends and to prepare his defence. Of course, if the authorities did not take every precaution in dealing with the prisoner they would be doing wrong to the community at large, but surely it was a hardship that the prisoner’s sister was denied an opportunity of talking with him through the bars of his cell—say, of asking him whether he was satisfied or not with his legal adviser.
The gentlemen representing the Crown were present in full force, and he (Mr Gaunson) was single-handed, and unacquainted with the case. He therefore insisted that justice would not be done unless a remand was granted.
Mr C A Smyth said he had to oppose the application. He understood that another professional gentleman was retained by the prisoner, and that he was in communication with him in Melbourne and Beechworth. He referred to Mr Zincke, who had been afforded many opportunities of consulting with the prisoner. The prosecution had nothing to do with the change of the prisoner's attorney. They had given the prisoner due notice of these proceedings, had told him that all the witnesses for the Crown would be in attendance, and that the case would go on. When informed of this, the prisoner expressed no desire for a remand. The case was one of a very exceptional character, and it would be inconvenient and positively dangerous if these proceedings were not gone on with. Regarding what had been said about preparing the prisoner’s defence, he would remind Mr Gaunson that this was not a stage for going into the defence at all.
As to the attack made on the government for not allowing the prisoner’s sister to see him, he (Mr Smyth) had nothing to do with that, and all he could say was that the prisoner had been frequently seen by his professional advisers. There were no doubt very weighty and important reasons why other persons should not be allowed to see the prisoner. With regard to the remark that the ordinary course had been departed from in not having the case tried at the court of petty sessions nearest to the scene of the murders, his worship was of course aware that the jurisdiction of his court extended over all the northern bailiwick, and that, according to law, it was not necessary to conduct the proceedings in any particular court, or even in a court-house at all.
The reason why the prisoner had been brought to Beechworth instead of Benalla was that he would be in safer custody in the Beechworth gaol. All the witnesses for the Crown were in attendance, many of them had come great distances, and as he had already said, a remand would be both inconvenient and dangerous. After the witnesses for the Crown had been examined he would have no objection to remand being given to enable Mr Gaunson to call witnesses on behalf of the prisoner.
Mr Gaunson.—How could I cross-examine unless I knew the facts of the case?
Mr Smyth.—The facts are pretty well known to everybody, and you must have seen the statement of the principal witness when it was published in the press.
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