The Argus at KellyGang 21/2/1879

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(full text transcription)

Supreme Court

An application was made yesterday afternoon by Mr M'Farland to Mr Justice Barry for a writ of habeas corpus with the view to the discharge from custody of John M'Elroy, one of the prisoners arrested on a charge of giving information to the Kellys. The prisoner had been arrested on the 3rd January last at Swanpool, near Benalla, was on the following day remanded by the Benalla justices to appear at Beechworth and has since been remanded from week to week without any evidence having been given against him. The last remand was from the 18th February till the 25th. It was contended on his behalf that a magistrate could not remand prisoners indefinitely without same reasonable cause, that such cause must be shown by evidence; that no evidence having been produced in this case the prisoner was entitled to his discharge. Hs Honour doubted whether he could go behind the warrant but on authorities being quoted that this could be done in a question of jurisdiction he was about to grant the writ of habeas, and asked on what day the prisoner proposed that the writ should be returned.

The remand expired on Tuesday, prisoner's counsel said that it was desirable to have the case argued on Monday. But his Honour said that both the Chief Justice and himself would be absent till Wednesday next. Mr M'Farland persisted that the writ should be returned on Monday, because Mr Justice Molesworth could hear it. His Honour was still disinclined to make the writ returnable on Monday, but as Mr M'Farland pointed out that it was a matter of right so far as the prisoner was concerned he consented to grant the application. On looking over the papers, however, he discovered that the petition for the writ was signed only by the prisoner, and was not attested by two witnesses as required by the act of Charles II. Owing to this informality, therefore, he refused the application.



An application was made to His Honour Mr. Justice Barry yesterday by Mr M'Farland on behalf of John M Elroy, now prisoner in the gaol at Beechworth, for a writ of habeas corpus, directing Mr C G Thomson, the governor of the gaol, to bring before the Court the body of John M'Elroy, and show by what authority he was detained in custody. The warrant by which M'Elroy was detained was what is called a remand warrant, and was in the form prescribed by the second schedule of the Justices of the Peace Statute. It recited that M'Elroy on or about the 2nd January, 1879, was charged with having caused to be given to Edward Kelly, a person adjudged and declared to be an outlaw, and his accomplices, information tending to facilitate the commission by them of further crime, contrary to the provisions of the Felons Apprehension Act 1878." It then proceeded " that it appears to me to be necessary to remand the said John M'Elroy," and it directed that M'Elroy should be kept till the 25th February, and that he should at 11 o'clock on that day be brought before the Court of Petty Sessions at Beechworth to be further dealt with according to law.

The warrant was signed by Mr Wyatt, police magistrate. It was admitted that this remand warrant was good in form, but it was contended that the magistrate had no jurisdiction to order the remand. M'Elroy's a affidavit stated that he was apprehended on the 3rd January last, at Swanpool, near Benalla, and was on the 4th January brought up at Benalla before Mr A Robertson, JP, on the charge mentioned in the warrant, and was, on the application of Police Superintendent Sadleir, remanded to the Petty Sessions at Beechworth on the 11th January, "no evidence of any sort, or description having been tendered against him."

His HONOUR asked how the prisoner was arrested.

Mr M'FARLAND said that no doubt an information had been laid on which the first warrant was based.

His HONOUR That was some evidence

Mr M'FARLAND replied that that might be so, so far as the first remand was concerned. The prisoner did not complain of that remand, but of what happened subsequently. The affidavit went on to state that on the 11th January M'Elroy was brought before Mr Foster, PM, at Beechworth, and was again remanded on the application of Mr. Sadleir, till the 18th January, no evidence of any sort being produced against him. From the 18th of January he was remanded to the


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