The Complete Inner History of the KellyGang and their Pursuers

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CHAPTER XXI

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Ned Kelly’s Trial at Melbourne

Friday, 15th October, 1880.
Mr H Molesworth applied for a postponement of Ned Kelly’s trial until next month. In support of the application, he read the following affidavit made by Mr David Gauson:—
I, David Gaunton, of 17 Eldon Chambers, Bank Place, Melbourne, attorney for the above-named prisoner, Edward Kelly, make oath and say:—

That the friends and relatives of the prisoner have 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.
That the prisoner has been unable to provide the necessary funds for counsel, and I have therefore not delivered any brief.
That the depositions are very voluminous, and in order to defend the prisoner I believe counsel will need an adjournment till the next sitting.
That I am informed, and believe, prisoner’s sister had arranged to borrow money for her brother’s defence on land occupied by her, but on applying to the person who had promised her the loan she found that the Government had confiscated the land.
That on enquiry at the Lands Office Department, I found that this week the prisoner’s mother had a selection under the amending Land Act, 1865, on which she had paid up all the rents under her seven years’ lease. That she had borrowed money from the Land Credit Bank, Melbourne; that the bank sold her interest to prisoner’s sister, but that the Lands Department, on the application of the police, had refused to grant the title to the land.
That I therefore applied to the Minister of Lands, pointing out the injustice done in the Crown forfeiting the 14/- per acre paid on account of such land, and I have reason to believe that if this trial be postponed till next sitting that the title will be completed, and money raised on such land for the purpose of defending the prisoner.
That the want of means has so embarrassed both the prisoner and myself in preparing a defence, that I can safely say that, in my judgement and belief, the prisoner will be unable to obtain his counsel and be seriously prejudiced in his defence if his application for a postponement be refused.

His Honor, Mr Justice Barry, said no reasons founded on justice or principle have been given in support of the application being granted. Applications of this character were never refused except on substantial grounds, but in this case there was no reason for supposing that if the trial were postponed money for the defence of the prisoner would be raised in the meantime. He could not assume that the land had been confiscated improperly, for there was an Act of Parliament under which the proceedings would have to be guided, and as the grounds of the present application were vague, inconsistent and wholly unauthorised, he would refuse it.
Application refused.

Monday, October 18, 1880.
Mr Bindon (counsel for Ned Kelly) said he had, on behalf of his friend Mr Molesworth, an application to make to the court. It was, in fact, that the trial of the prisoner might be postponed until the next sittings, and he made a motion on the grounds contained in an affidavit sworn by Mr David Gaunson, the prisoner’s attorney, of which the following is a digest:—

“That an unsuccessful application having been made on the 15th instant to postpone the trial, and appeal was made to the Crown to supply funds for the defence, and Mr Gauson urged in view of the length and importance of the case, counsel’s fee should be fifty guineas.”

“The sheriff replied, instructing Mr Gauson to undertake the defence on the usual conditions, viz., £7 /7 /- for attorney and £7 /7 - for counsel, with 5/- for clerk’s fee. The Crown Law officers would decide as to the amount of remuneration, if any, beyond that amount. The deposition in the two cases extend to eighty-five pages of brief paper, and in addition to fully acquainting himself with them, counsel would require to read the voluminous newspaper accounts of Euroa, Jerilderie and Glenrowan affairs, referred to in the depositions, and to study the law to see how far the Crown can get into them. An adjournment to next sittings was, therefore, applied for.”

Mr Smyth (for the Crown), after going into details, said: Although opposing the application, he was loth to do anything which would convey an impression that the prisoner had been improperly treated; and if his Honor thought a case had been made out that he ought not to oppose it, he would not do so. If his Honor could, therefore, adjourn the trial until Monday next, he, (Mr Smyth) said he would not object to that course being pursued. His Honor said that he would not be disengaged until the 28th instant. Mr Smyth said that date would do, and the trial was accordingly postponed until Thursday, 28 instant.

Friday, 28 October, 1880

The Crown appeared to be thirsting for Ned Kelly’s blood, and provided an exceptionally strong bar to secure a conviction. Mr AC Smyth, with Mr Chomley, prosecuted on behalf of the Crown, and Mr Bindon, instructed by Mr D Gaunson, for Ned Kelly.

The called Detective Ward and Constable P Day to prove that a warrant had been issued for Ned Kelly prior to the battle of “Stringybark Creek.”

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