The Argus at KellyGang 20/9/1880
“7. That I am informed and believe that in the said bailiwick, and more especially in the neighbourhood of Beechworth aforesaid, the said Edward Kelly has numerous relations, friends, and sympathisers, amongst whom strong feelings exist in favour of the said Edward Kelly.
“8. That from the lawless conduct and threatening demeanour of some of the relations, friends, and sympathisers of the said Edward Kelly. I believe efforts would be made to intimidate certain of the jurors on the jury panel of the said Assize Court, and that some of the said jurors might probably be thereby deterred and intimidated from finding a verdict in accordance with the evidence.
“9. That should a jury find a verdict of guilty against the said Edward Kelly, I verily believe that those members of the said jury who live in the country districts of the said bailiwick would be liable to serious injuries in their persons, families, and property at the hands of the said relations, friends, and other sympathisers of the said Edward Kelly.
“10. That for the foregoing reasons I verily believe a fair trial cannot be held at the said Assize Court to be holden at Beechworth aforesaid.
“11. That I am advised and believe it is expedient and essential to the ends of justice that the said Edward Kelly should be tried at the Central Criminal Court, Melbourne, within the central bailiwick, or any presentments that may be prepared against him upon the charges aforesaid.”
Mr S myth said that he relied more particularly upon the 8th and 9th paragraphs in the affidavit, stating that the jury would be liable to intimidation.
Mr Gaunson, who appeared for the prisoner, said he had to oppose the application, and asked for an adjournment. There were certain statements in Mr Gurner’s affidavit which required to be answered, and he had had no opportunity of communicating with Kelly. He was allowed by the gaol regulations to see him only on Mondays and Thursdays, and it was after he had seen him last Thursday that he received notice of this application. Besides the authorities would not allow any of his friends and relations to see him. With regard to the paragraph in the affidavit in relation to the friends and sympathisers of the prisoner, he mentioned that the Crown had caused to be arrested in 1879 about 20 persons said to be sympathisers, and after detaining them in gaol for a long time without preferring any charge against them, let them go.
Mr Justice Barry said he could not go into that question.
Mr G aunson said he only alluded to it for the purpose of showing that these men had been at large ever since, and had committed no acts of lawlessness or violence. He also pointed out that he had had no time to instruct counsel, and that, though reference was made to there being four outlaws, it was not stated that three of them were dead.
Mr Justice Barry asked what adjournment was wanted.
Mr Gaunson said till the 30th September.
Mr S myth objected to so long an adjournment, though he would have no objection to a reasonable adjournment. There were a great number of witnesses to be examined, and it was coming close to the time when the Assize Court would be held.
After some further discussion, it was agreed that the application should be adjourned till Wednesday next.
end
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