The Argus at KellyGang 16/8/1880

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(full text transcription)

EDWARD KELLY'S TRIAL

TO THE EDITOR OF THE ARGUS

Sir,-1 have with much pain read the sub- leader in your Thursday's issue. To the credit of journalism be it said, it is very unusual to observe remarks in newspapers prejudicial to any person awaiting trial. It is noticeable that your article is an unwholesome departure from the general rule as well us a departure from the law of the land in this respect, and beyond doubt you have rendered yourself liable to a criminal information for printing matter injurious to the prisoner, and well calculated, if not absolutely intended, to prevent his having what is his right-a fair trial. You attack me as solicitor for the defence, and you deliver yourself in such style that it must be seen at once you fail to understand or you forget the position I really do and ought to occupy. As legal adviser of the prisoner, would it be my duty to accept payment for my services, and then betray him? Or supposing, as such adviser, I acted gratuitously, and he gave me his full confidence, would it be proper for me to become lukewarm in his defence, and so thereby practically assist the prosecution? There cannot be anyone who would fail to answer each of these questions by an emphatic 'No!" Yet your article suggests that his trial is a mere farce, that he is guilty of the charges, that the gallows should be his end, and that I ought not to do any thing to counteract the ever recurring paragraphs appearing in your newspaper already condemning him to death. Ought Edward Kelly to have any trial at all? Your article, if it means anything, says "No." You praise up ex- Chief Secretary Mr Ramsay for issuing an order forbidding any access to the prisoner, an exception being made in favour of his solicitor. But the question is, what power has any Chief Secretary lawfully to make any order at all?

The law does not in any way recognise him as having any authority whatever over persons awaiting trial, and if it be conceded, as it both will and must he conceded, that the prisoner is to have a trial, whereby is meant a fair trial, then it is absolutely necessary that his friends shall be allowed-exactly what the law provides, no more-to see him and thereby give him a proper opportunity to defend himself. Of course, no objection can be urged against all possible and proper precautions being taken to see that he is brought to trial, and if the gentlemen of life und death (by which I mean the jurymen, who alone, without permitting any one to usurp their function, will decide the awful question, "guilty or not") finally swear he is guilty, I would be the last to offer objection to the most stringent precautions being taken to see that the law is observed.

In fact, my short complaint is in keeping with this view. All I contend for is the observance of the law, which the ex Chief Secretary and you have have so largely departed from. At the present time I confess my belief is that owing to the manner in which you and the press very generally have treated the case, his right to that fair trial which the British Constitution so carefully provides and jealously guards has been almost destroyed, or, at the least, seriously jeopardised.

One statement alone in proof of this I would refer to. Mr. Sadleir, superintendent of police, in a report to the Government (which you did, but were not compelled to publish), states that at the Glenrowan "massacre," as I take leave to term it, the prisoner shot Martin Cherry for some trilling disobedience.///

Of course, this statement was and is injurious to the prisoner, for many believed it; whereas, in truth and in fact, Martin Cherry was shot by the police.

This is but one of the "myriad" statements hurtful to the prisoner so largely circulated, and so much calculated to prevent that fair consideration of the case which it so greatly needs. It must not ever be forgotten that the murders charged are of police, that the witnesses chiefly are police, and that the feeling amongst them is chiefly extreme, and running so strongly that they will require to use all their honesty to restrain exaggerating the evidence.

Whilst the eternal code of natural justice insists that it is better that ten guilty should escape than one innocent suffer, most people believe that the police generally think it is best ten innocent should suffer than one guilty escape.

I noticed that in evidence it was stated by police that the police opinion is "he (the prisoner) will be hanged," and it is not unreasonable to think that herein the "wish" is father to the thought. It has been well observed, "there can be no cold blooded defence," certainly I think so, and I therefore deem myself bound by every obligation, legal and moral, to insist that the prisoner shall get the full benefit of the law. I do not ask, and have not ever sought for, more, I cannot in the interest of the prisoner accept less. "Waive no right that you possess that may affect the defendant; yield tribute to no authority that is illegitimately exerted to his injury; recollect, you guard the citadel of human life, be wary, and be firm. The judge and the jury, it is true, may take the life of the prisoner, but you are not to give it away. They must reach it over your own prostrate body," are the weighty words of an able American lawyer which do, and may well, guide in the prisoner's defence -Yours, &c

Aug. 14.  

DAVID GAUNSON  

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