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Witness: At once; I cannot say what the feeling of the police with regard to Kelly is. I have spoken to them and spoken to Dwyer and Steele about him.
Mr Gaunson: Is the general feeling against him? Is it their wish that he should escape?
Witness: I cannot say. Many of the men have said he should be hanged. I cannot say what the feelings of others. I do not know whether Steele wishes Kelly to be hanged.
Mr Gaunson: I will leave you in the hands of a man better able to deal with you, and turn you inside out in the Supreme Court. Just one more question – How did you distinguish between the prisoner and his brother?
Witness: From description.
Mr Gaunson, having read from the depositions, asked why he had said to Ned Kelly. No when he asked if he and the others had come out into the Wombat Ranges for him?
Witness: When I said no, I did not know we were coming after you. I considered that I was giving Kelly an evasive answer.
The court, at five minutes to one o’clock , was adjourned for one hour.
On resuming, the cross-examination of M’Intyre was
He said: Kelly said in the Wombat, ‘What brings you out here at all; it is a shame to see fine strapping fellows like you in a lazy loafing billet of policemen.’ He also said, ‘If you get the others to surrender we will handcuff them, but we will let you go in the morning. We will let you go away on foot, as we want your horses and firearms.’ I was very close to Kennedy’s horse. When he dismounted, he threw himself off the horse in order to avoid the shots. Scanlan was on the ground when he was shot. I do not think I ever said that Scanlan was shot whilst running for a tree. I was annoyed with reporters. They would suggest questions and take anything for answers.
In my opinion these was too much publicity about the whole affair. There was not too much published to prevent the fair trial of the Kelly gang. What was published tended to the glorification of the Kelly gang. I think I have mentioned everything. I recollect the conversation between me and the prisoner lasted for about a quarter of an hour. The party had four guns when they came up, and my fowling piece, which they took, made five guns. I believed Hart carried a double barrelled gun Daniel Kelly carried a single-barrelled fowling piece; it was a cheap gun with common bore. I heard him discharge it, but I cannot say if there was anything in it but powder. I swear positively that I saw smoke issuing from the barrels of all the guns. I heard a dozen discharges at least. I could not say at what object Daniel Kelly was firing. I believe he was firing at Kennedy. Hart’s gun was also a common one. I heard him firing. I do not know, if Hart’s gun was loaded with ball. Byrne’s gun was an old fashioned one, having a very large bore. That gun was also discharged. Kelly gave my fowling piece to Byrne. After Kelly missed Kennedy, I saw him point in the direction of Scanlan. I will not swear he fired at Scanlan.
I did not resolve to escape before I saw Scanlan shot. The moment I saw Scanlan shot I heard three shots fired at once, and then I heard another shot. Scanlan was shot, and I at once made up my mind to escape if I could. I heard other shots after that, but I do not know by whom. I have not seen any of the guns with which the gang were armed since.
Samuel Reynolds, examined by Mr Chomley deposed: I am a legally qualified medical practitioner residing at Mansfield. I recollect seeing the body of Constable Lonigan on the Stringy Bark Creek on the 30th October; it was lying on the ground. I also saw the body of Scanlan. On the following day I made a post mortem examination of Lonigan’s body in Mansfield. I found four wounds; one through the left arm, on the left thigh, one on the right temple, and one on the inner side of the right eyeball. I looked upon them as bullet wounds; the one on the thigh travelled round the thigh under the skin, and I extracted it. The wound on the temple I might describe as a graze. I did not find the bullet which caused the wound through the eyeball; it entered the eyeball, and must have caused death in a few seconds. M’Intyre pointed out the body as that of Lonigan. I also examined the bodies of Scanlan and Kennedy.
Cross examined: The wound in the temple might not have been caused by a bullet. The wound in the left arm or in the thigh would not have caused death.
The evidence of M’Intyre was then read over to him, signed as correct. It occupied the clerk more than one hour to read the depositions, and whilst he was engaged doing so Mrs Skillian, Lloyd and Hart left the court with other friends.
Mr Foster said to Mr M’Intyre; I think it only right that I should inform you that it is my opinion that you have given your evidence in an intelligent and honest manner.
Mr Gaunson said: I need not say that it is very unusual to make such a statement before a prisoner is dealt with. I do not think he has given his evidence properly.
Mr Foster said he considered it to be his duty to make the remark, or he would not have done so.
Mr Smyth remarked: I think M’Intyre has given evidence properly, and I believe that opinion is shared in by all in court.
It being twenty minutes past four o’clock it was determined to postpone the further hearing of the case until ten o’clock on Monday morning.
Beechworth Saturday Evening
The artist of The Illustrated Australian News obtained a good position in the court in the morning with the view of taking a profile sketch of Kelly’s face. The watchful eye of the prisoner caught the intention of the gentleman with the brush and pencil, and he at once drew up a large opossum rug as to hide his face.
In the course of the examination Mr Gaunson received the following telegram:-
Melbourne , 7th August, 1880 – Telegram for Mr David Gaunson:- The Chief Secretary decline to vary the order of his predecessor at the present time – WH Odgers, Under Secretary.’
Mr Gaunson at once despatched the following reply:-
Beechworth, 7th August, 1880 To the honorable the Chief Secretary. As affecting the right of the subject generally, I am bound respectfully to say the order is unconstitutional, because Kelly is not convicted, but merely an accused party awaiting trial. It is moreover grossly illegal, and a violation of the rights of common humanity, therefore I respectfully ask the order may be cancelled and the ordinary course of the law followed with this with regard to the accused. – D Gaunson
Subjoined is a copy of Ned Kelly’s letter expressing a wish as to the conduct of the case:-
‘I wish Mr Gaunson to defend me. I intend to ask for a remand on Friday but if Mr Gaunson thinks it necessary to be at Beechworth on Friday, he can be present and watch the case, but there is no time to prepare any defence to go on with the case without further remand.- Edward Kelly
This is all that is worth mentioning.
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