The Ovens and Murray Advertiser 11/2/1879

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The Kelly Mob - The proceedings at the Beechworth police court on Saturday were enlivened by two or three rather exciting little scenes between the Bench and the members of the legal profession present. There was a new magistrate on the Bench in the person of Mr Alfred Wyatt, and his demeanor was in striking contrast to that of our own magistrate, Mr Foster. The latter was courteous and quiet, yet determined and showed how thoroughly he grasped the situation – in all things the gentleman as well as the judge. The latter talked incessantly; acted at the same time as judge, jury, prosecutor, counsel for the defence, apologist and moral lecturer. He was excessively rude to Mr Zincke, whilst his illusions to private conversations he had with Mr Foster, and the remarks he made to the prisoners, were ungentlemanly and in excessive bad taste. Fancy a magistrate adjudicating on most important cases, saying to a prisoner charged with a serious offence, “I would deal fairly with you if I could.” What he meant passeth our comprehension, but then we are not all so learned or have such intimate acquaintance with everybody and everything as Mr Alfred Wyatt, PM. A full report of the proceedings appears in another column, from which it appears that the fourteen men were for the fifth time remanded without any evidence being brought forward by the police. Mr Zincke expressed his intention of taking the case to the Supreme Court and testing it. For this purpose he proceeded to Melbourne yesterday afternoon, and this morning will apply to the Chief Justice in Chambers for a habeas. Should he succeed, it is his intention to take one of the prisoners, probably John McElroy, to Melbourne to be tried.


The fourteen men charged with giving such information to Edward Kelly, adjudged to be an outlaw, and his accomplices as would lead to the commission by them of further crime, contrary to the Felons’ Apprehension Act, were brought up at Beechworth Court, on remand, on Saturday, before Mr Alfred Wyatt, PM.

Superintendents Hare and Furnell represented the Crown, and Messrs Bowman and Zincke the accused.

Thomas Lloyd was first charged.

Mr Zincke asked for the information, and urged he had a right to see it and have it read.

Mr Wyatt declined, and the case proceeded.

Superintendent Hare applied for a further remand of seven days, on the ground that he was unable to procure his witnesses, for the same reasons as those he had assigned the previous week.

Mr Bowman objected. He said Superintendent Sadleir had distinctly agreed that when the second remand was granted, he would ask for no more, but bring the prosecution to an issue.

Mr Wyatt said he had seen Mr Sadleir, who had told him there was a difference between what he had said or meant and what Mr Bowman said. What he (Mr Sadleir) had promised was that he would get some evidence, but not necessarily that he would go on finally.

Mr Bowman said the proposition came from Mr Sadleir.

Mr Wyatt wished the learned counsel to be possessed of Mr Sadleir’s present view of the matter as against his.

Mr Zincke had distinctly asked Mr Foster as to the words used.

Mr Wyatt said he saw two gentlemen standing up together.

Mr Zincke said Mr Sadleir’s views as expressed in court, and as stated privately, were evidently at variance.

Mr Wyatt: “Sit down, sir.”

Mr Zincke: “Certainly.”

Mr Bowman wanted to know for what reason they kept the prisoners: what had they been arrested for? On the bare statement of a superintendent of police were they to be kept in custody, and remanded from time to time? Were they to be detained, because the police were so demoralised, so inefficient, so badly organised, that they were unable to catch the Kellys? Wild Wright said, and he for one, believed there was a large amount of truth in the statement, that the police dare’nt go off the roads after the outlaws, and the Age, the recognised organ of the Government, had spoken most strongly upon the total inefficiency of the force, and its inability to grapple with the present situation. No reasonable cause had been shown, and no evidence brought forward to warrant the further detention of these men. Was it reasonable to hold them when there was nothing against them?

The first remand, he admitted, was reasonable, but was it fair now to go on remanding them until they caught the Kellys, an event which might never be consummedated. He did not wish to talk about the privileges conferred by Magna Charta, a right brought about, not by any loyal liberal party, but by the grand old barons of England , but he remembered well that the Magna Charta said, “I will sell to no man, deny to know no man, delay to no man, justice.” In this case which would hardly be tolerated in any other country, justice was both delayed and denied to these men. People might talk about popes and priests, and tyrants, but what could be more monstrously tyrannical and unjust than the action now being taken with reference to these men. The information disclosed no offence, and gave the court no jurisdiction as there was no date, until one was afterwards inserted by some clerk of courts. There was no proof that the men had anything more to do with the Kellys than he had.

Mr Wyatt said his position was admittedly a difficult one. What Mr Zincke and Mr Bowman advanced was entitled to great weight. The men were charged with a certain offence by the police, and there could be no possible reason why they should make a false or stretched charge. Their object was to cripple the men now at large, who had been outlawed. The Counsel for the defence had assumed that this applying for a remand would go on for an indefinite period; but he felt assured the end was near, and he was in a better position to judge of this than they were. Were these men to be set at liberty some of them would probably at once go and co-operate with the Kellys, and if any of them were thus driven to do so, nothing could possibly be worse for the safety of the community.

The police knew what they were doing, and he was certain the consequences of letting the men go would be tremendous. He had been in communication with Mr Foster, before whom the men had been previously brought, and they were substantially at one in the view they took of the cases, and he knew that had Mr Foster been on the Bench, he would have followed the same course he himself intended to follow. But apart from that, on his own responsibility he would consent to remand the accused. He had undertaken to perform Mr Foster’s duty on the railway line, and wished to know to what day it would suit the lawyers engaged for him to remand the prisoners.

Mr Zincke said he was in the hands of the Court.

Mr Wyatt: “Then you refuse to answer.”

Mr Zincke:”If you intend to supply to the Supreme Court, I shall be glad, and will do all in my power to assist you. I have a difficult duty to perform, and if any sharpness is indulged in by me, I hope it will be passed over and forgotten.”

Mr Bowman: “Tuesday next would do if it suits your Worship.”

Accused was then remanded until Tuesday.

John McElroy was then charged.

Mr Zincke said that, out of deference to the Bench, he had sat down before, as he knew he was out of order. He, however, appeared for this prisoner and for all the others, and would draw especial attention to what had been agreed to by Mr Sadleir, and the definite arrangement which had been come to between that gentleman and himself. There could be no mistake about it. Mr Sadleir, through Mr Bowman, had distinctly agreed that if he (Mr Zincke) would agree to a remand for seven days, no further remand should be asked for, but the cases either be prosecuted to an issue, or the charges withdrawn. He on that occasion had said he wanted no splitting of words, and had asked Mr Foster who sat on the Bench to arbitrate between them. Very properly Mr Foster had said that in any after proceedings he would not be bound by any arrangement which might be entered upon. This showed how binding had been the agreement, and how it had been wilfully broken. The next week Mr Sadleir was shunted, and Mr Hare sent up in his place.

Mr Wyatt did not wish to express his views, so far as Mr Zincke and Mr Sadleir were at variance, but he could tell Mr Zincke that Mr Foster was with him. Mr Zincke said Mr Foster evidently presumed that the agreement would be carried out. Since that time he had seen constables in the Court whom the Crown said they could not produce, and who had sworn to some of the informations. He had seen there Constables Strachan and Constable Mullane, both of whom had sworn information.


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