The Argus at KellyGang 16/10/1880
An application was made to his Honour Mr Justice Barry, who was presiding in the Central Criminal Court yesterday, that the trial of Edward Kelly, who was committed on a charge of murdering Constable Thomas Lonigan, should be postponed till next sittings. Mr Molesworth, who appeared on behalf of the prisoner, read an affidavit made by Mr Gaunson to the effect that the prisoner had not been afforded an opportunity of communicating with his friends; that he had no means to employ counsel or otherwise prepare for his defence; that his mother had owned a selection under the Land Act of 1865, on which she had paid seven years’ rent, but that this land had been mortgaged with the Land Credit Bank, and the mortgage was afterwards transferred to a sister of the prisoner. It was intended to have raised money on this allotment to pay for the expenses of the defence, but it was found that the Lands Office had refused to recognise the transfers, but the injustice of this was pointed out to the Minister, and it was believed that if the trial were postponed the Lands Office would complete the title.
The application for an adjournment was opposed by the Crown, on the ground that the prisoner was committed for trial on the 1st August, and his attorney was informed on the 25th August that it was intended to proceed with the trial at the present sittings. The trial could not take place earlier, as the prisoner was committed to the Beechworth Assize Court, and that court did not commence till the 14th October, and the presentment against him could not be sent down at an earlier period. It was urged that the prisoner had opportunities of communicating with his attorney twice in every week; that a witness was detained here from New Zealand to give evidence; and that if the prisoner had no money, the Crown, on application, would provide any counsel nominated by the prisoner.
His Honour did not consider that a sufficient reason had been given for postponing the trial till next sittings, and stated that he would proceed with the trial on Monday.
THE TRIAL OF EDWARD KELLY
In the central Criminal Court yesterday, before his honour Mr Justice Barry.
Mr M olesworth mentioned the case of Edward Kelly, who had been committed for trial on a charge of murder. He said he was instructed to apply that the trial should be postponed till next month. The application was made on an affidavit by Mr Gaunson, who was the attorney for the prisoner, to the effect that the friends and relatives of the prisoner had 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. The prisoner has been unable to provide the necessary funds for counsel, and therefore no brief had been delivered to counsel. The depositions were very voluminous, and in order to defend the prisoner an adjournment till next sittings was necessary. The prisoner’s sister had arranged to borrow money for the defence, on the security of land occupied by her, but learnt that the Government confiscated the land. He had inquired at the Lands office, and found that the prisoner’s mother had obtained a selection under the Amending Land Act 1865, and that she had paid up all the rent under the seven years’ lease. She had borrowed money on the selection from the Land Credit Bank. The bank subsequently sold her interest in the land to the prisoner’s sister, but the Lands department on the application of the police had refused to grant a title to the ground. He pointed out to the Commissioner of Lands that there was an injustice done in forfeiting the 14s. per acre paid by the prisoners mother on account of the land, and if the case were postponed till next sittings there was reason to believe that the title would be completed and money raised on the land for the purpose of defending the prisoner.
He also stated that the want of means had so embarrassed the prisoner and himself in preparing the defence that he could safely say that in his judgment and belief the prisoner would be unable to obtain counsel, and would be seriously prejudiced in his defence if the application for a postponement were refused. Annexed to the affidavit were two letters, one from Mr Castieau, the governor of the gaol at Melbourne, dated 14th August, and addressed to Mr Gaunson:-
“I find that the rules only empower me to admit Mr Gaunson to see his client twice during the week. I could not be justified in making Kelly’s a special case without further authority. The rule is as follows:- Prisoners committed for trial or for re-examination may see their legal advisers or friends twice during the week at reasonable hours - the former in private if required, unless otherwise ordered by the committing magistrates, or unless the governor of the gaol shall know any sufficient cause why such legal advisers should not be admitted. The practice is for legal gentlemen to be admitted on Mondays and Thursdays from 10 to 12 and from 2 to 5 o’clock.”
There was also a letter from Mr Odgers, the under secretary, dated 12th October, addressed to Mr Gaunson:-
“I am directed by the Chief Secretary to inform you, in reply to your letter of the 8th inst., that he sees no reason to alter the order made by Mr Ramsay, and must therefore decline to permit John McElroy to see the prisoner Kelly as requested.”
Mr Molesworth contended that on this affidavit sufficient reasons had been shown to justify the Court in granting a postponement, for the prisoner had not had sufficient opportunity to communicate with his friends or his legal advisers. It appeared that he had no funds, and he ought to be allowed an opportunity of communicating with his friends and obtaining their assistance for his defence.
The Crown Prosecutor (Mr C A Smyth) opposed the application, and in reply to the affidavit from Mr Gaunson one was read from Mr Morel, a clerk in the Crown solicitor’s office, stating that on the 10th August, 1880, the prisoner was committed to take his trial at the Beechworth Assize Court on the charge of murdering Thomas Lonigan. On the 21st August notice was sent to Mr Gaunson, his attorney, that it was intended to try the prisoner at the sittings of the Central Criminal Court, commencing on the 15th October. Mr Gaunson acknowledged the receipt of the letter, and on the 28th August obtained a copy of the depositions. It was contended by the Crown prosecutor that there was no reason for any delay, as the prisoner and his attorney had known for nearly two months that it was intended the trial should take place this month. There was one witness for the Crown who had come from New Zealand. As regarded obtaining counsel, if the prisoner was without means he could apply to the Crown, who would provide the fee for counsel.
Mr Molesworth said that he did not know whether counsel would accept such a brief. But, at all events, it was impossible for a brief to be prepared and for counsel to undertake the defence on Monday.
His Honour said that nothing had been brought forward to justify him in granting a postponement. It was not shown that if the trial was postponed money would be raised for the defence in the meantime; and as regarded the confiscation of the land, there was no reason assigned that this had been improperly done. Land could be forfeited only according to law, and not by caprice. He refused the application for a postponement.
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