THE TRIALS, CONVICTION, AND CONDEMNATION OF THE MURDERERS.
[Image of page 21]
THE TRIALS,
CONVICTION, AND CONDEMNATION OF THE MURDERERS.
A SPECIAL SESSION OF THE SUPREME COURT OF NEW ZEALAND, was held, by HIS HONOR MR. JUSTICE JOHNSTON, at NELSON, on 12th September, 1866, and following days, for the Trial of the Prisoners, all of whom were condemned to death: Burgess, Kelly, and Levy, for the murder of Felix Mathieu, one of the four men, there being separate indictments for each victim; and Sullivan for the murder of the old man, James Battle. The proceedings in the first case lasted six days, and in the second, one. A full and accurate report of the Trials was published in the Nelson Colonist, and is transferred to this pamphlet:--
FIRST DAY.
WEDNESDAY, SEPTEMBER 12.
[Before his Honor Mr. Justice JOHNSTON.]
CRIMINAL SITTINGS.
Punctually at ten o'clock, his Honor the Judge entered the Court-room, accompanied by the Sheriff, and Mr. Poynter, Resident Magistrate, and took his seat on the bench.
The prosecution was conducted by H. ADAMS, Esq., Crown Prosecutor, assisted by ROBERT HART, Esq., of Wellington.
The Grand Jury were then called, and consisted of the following gentlemen:-- Henry Baly, John Wallis Barnicoat, John Beit, Henry Beitt, Francis Blundell, Augustus Septimus Braithwaite, Charles Hunter Brown, Herbert Evelyn Curtis, Arthur Collins, Henry Goulston, William Charles Hodgson, Frederick Huddleston, Alfred George Jenkins, Dugald Little, James Townsend Low, Joseph Henry Levien, Charles Muntz, James Watkins, and Nathaniel Edwards (foreman).
THE JUDGE'S CHARGE TO THE GRAND JURY.
MR. FOREMAN AND GENTLEMEN OF THE GRAND JURY--
The occasion of our meeting together at this extraordinary Sitting of this Court, is but too notorious. Great crimes have been committed within this district, and great excitement has naturally arisen on the discovery of those crimes. The natural instinct of self-preservation, which is called the first law of nature, must necessarily exercise a vast
[Image of page 22]
influence on the feelings of a community; and it would require the exercise of a great effort to overcome this feeling of our common nature. But it is one of the highest triumphs of civilization and religion that, without ignoring the existence of our human passions and human instincts, they guide and control those natural feelings, so that their legitimate exercise shall lead to the welfare and general advantage of the community. The feeling of revenge has been called wild justice, and any system of jurisprudence which would ignore that natural instinct, would be based on erroneous principles. But, as I have said, it is the triumph of civilization that it guides and limits its action; and, when the first expression of indignation at great crimes is over, that civilization enables us to approach their final investigation in a tone of calmness and reason. A distinguished writer on jurisprudence has recently said, respecting our criminal jurisprudence, "viewing it (the English Criminal Procedure) as a whole, it would be unjust to deny to it the praise of being a generous, humane, and high-minded system, eminently favourable to individuals, and free from the taint of that fierce cowardice which demands that, for the protection of society, somebody shall be punished when a crime has been committed." In a wholesome system of procedure, time is afforded to allow the popular excitement which great outrages create, to abate, and for the discovery of all available evidence to trace every species of fact tending to establish the guilt or innocence of persons charged, or to discover the persons on whom rests the strongest suspicion of guilt. And, no doubt, it is a wise course which eschews precipitation on the one hand, and at the same time does not allow lapse of time to exhaust public patience, or to diminish the means of establishing the truth. Now, gentlemen, his Excellency's advisers, actuated, I presume, by this consideration, resolved on proclaiming a special sittings of the Supreme Court in this district; and I think I may congratulate you and the country at large, that we are now able to proceed to the discharge of our duties at this time. We must take all proper precautions in such grave affairs as we are here to consider, lest the eye of reason should be jaundiced by prejudice, or dazzled by passion, or the arm of justice should smite wildly and without discrimination. Having said thus much I shall proceed to notice the cases which are to come before the Court. The first case to which I shall direct your attention is that of four persons named Burgess, Kelly, Sullivan, and Levy, who are charged with the murder of four other persons, viz., John Kempthorne, Felix Mathieu, James Dudley, and James De Pontius. Now, although the murders of these persons were committed about the same time, yet each murder is a separate offence, and must be the subject of a separate indictment. I am not sure as to what will be the form of the indictment, but I should suppose there will be three or four separate indictments, that is to say, that each of the prisoners charged with these crimes will be indicted for the murder of each man killed. I understand that leave will be asked from the Court to allow one of the parties charged with the crimes, although he was not committed for the offence--I mean Sullivan--to go before you to give evidence in the case. Now, on the assumption that an accomplice will be offered as a witness in the case, I may, without travelling into the details, do my best to make you aware of the leading features of the case; and I will ask you first to consider the case apart from the evidence of the accomplice. It may be that his evidence will not be required, that there will be sufficient proof without the evidence of the accomplice. The case without his evidence stands thus: Four people are seen alive on the day of the murder, on the road from the Pelorus. They were seen by one witness taking refreshments, at a place called Franklyn's Flat. Two other persons saw them leaving Franklyn's Flat, a very short distance away from it on the Nelson side. The time of the day will perhaps not be shown by either clock or watch, but by circumstances of distance and the like. Shortly after the men were seen by these witnesses, another person, named Bown, passed along the road near to the spot where the dead bodies of the murdered men were found, and he saw nothing of them. Another man, named Möller, also passed along the road at the same place, and neither did he see anything of them. They were thus traced to within a very short distance from the place where the bodies were found. The four other men who are charged with the murders were seen on this road on the same day, going on to Nelson, and they passed along that road before the murdered men, but were not seen on it, and did not arrive in Nelson until after the men had disappeared; and as there is no road leading off this road, no persons could go off the road unless they went into the bush. The bodies of the four men were found sometime afterwards at a distance of thirteen chains off the road. All the evidence in this case is in favour of the probability that these men are the murderers. Without the evidence of the accomplice, there is evidence that these people occasionally showed themselves in town, but they were careful to avoid much publicity. They were all four travelling together, and, sometime previous to the murders, went to the Wakamarina; and on the morning before the murder of the four men, they were seen returning to Nelson, leaving the place, as one of them said, in disgust at doing nothing. While on the Wakamarina, one of these four was detached to Deep Creek, and he lived in Mathieu's hotel, and there he must have heard of the intended movements of the four men who were to leave Deep Creek. The four prisoners were apparently short of funds when they left the West Coast to come to Nelson; for they borrowed money in order to make up the amount of their passage money. They were in Nelson on the day following the murders, and on subsequent days, and were found spending money very freely, and afterwards, on being apprehended, they were found denying all connection with or knowledge of each other, and ultimately they gave false names. Those in charge of the case on behalf of the Crown will likely ask leave to place before you the accomplice, who has been examined as a witness before the Resident Magistrate. The doctrine regarding the evidence of an accomplice is this: In strict law a man may be convicted on the evidence of an accom-
[Image of page 23]
plice, without any corroborative evidence, but Judges usually advise jurors, and juries generally follow the advice, not to convict unless the evidence of the accomplice be corroborated by that of other witnesses in important parts, not only as to the offence, but also as to the identity of the parties who committed it. With regard to Sullivan's evidence, that was taken before the Magistrates, where he was liable to be cross-examined; and if his statement then was the only one made by him--made, after having heard all the other witnesses in the case--it was to be considered how far he was actually or probably adopting the evidence he had heard, and concocting a story to agree with that. But I am informed that this was not the first statement that he had made, and that he had made the same statement to the police long before the time when the evidence was given before the Magistrate. This makes a considerable difference in the matter, and renders his statement less open to objection than if it had been made for the first time after he had heard all the evidence of the witnesses. You will hear his statement from his own lips, and he able to ascertain whether it is in keeping with truth or probability, and whether the time and place and other circumstances are corroborated by other witnesses. No doubt Sullivan, in making this statement, or confession, was actuated by motives either of obtaining pardon or reward, for he knew, as you now know, that he was not only charged with complicity in these murders, but also in the other murders; and therefore he must have had interested motives in making his confession. It is true that the highest authorities in England have recently ruled that it is wrong to accept the testimony of accomplices until after they have been acquitted or convicted, and sentenced, so as the witness may be free from the influence which the hope of pardon or the fear of punishment may have upon him. But in a case like this, when the accomplice is charged with several crimes, and his evidence is deemed necessary in one case, it may be impossible practically to apply the principle just mentioned. Regarding the other case of murder, that of James Battle, all the four prisoners would be charged with that offence. This case of Battle stands thus: Sullivan has not given evidence in this case; but he has made a confession which will be given in evidence against him. This confession stands in a very different position from that of the evidence he gave when he was liable to cross-examination, and was then giving evidence against other persons. This confession respecting Battle's murder is admissible only as against himself. You will also be asked to take into consideration the judicial statement made by the prisoner Burgess before the Magistrate, and in which you will observe that while Burgess appears to admit his own participation in the crime, he throws the greater part of the guilt on another. I am bound to tell you, and you cannot shut your eyes to the fact, that his statement is not made on oath, and he was not liable to cross-examination; and that therefore, though the statement is evidence against himself, it is not evidence against any one else. Battle's case therefore stands thus:-- There is Sullivan's confession and Burgess' judicial statement, and by both of which each of these two prisoners implicates himself. I do not intend to go any further into the minutiae of these cases. I have indicated their bearings, and no doubt you will yourselves go into the cases in a spirit of fairness and intelligence. His Honour concluded by saying that an Act had been passed this session of Parliament, allowing the foreman of a Grand Jury to swear the witnesses they may examine, and that this course would be followed to-day, which would save a good deal of the disturbance to the proceedings that arise from swearing the witnesses in the Court.
The Grand Jury then retired.
At about twenty minutes to one o'clock, the Grand Jury brought in true bills against the prisoners Burgess, Levy, and Kelly, for the respective murders of Felix Mathieu, John Kempthorne, James Dudley, and James De Pontius, and thereupon the three men were brought in and placed in the dock, and the several indictments read to them, charging them with the murder of Felix Mathieu. On being severally called on to plead to the indictment,
Burgess said: I have already acknowledged before God and the public that I am guilty of these awful murders, and I do not mean to depart from that now, but for the sake of form I shall plead Not Guilty.
Kelly pleaded Not Guilty.
Levy pleaded Not Guilty.
After all the pleas were put in, the prisoners asked to be tried by a special jury, which was ordered by the Court.
Kelly said: I understand I am not to be tried until Monday.
The JUDGE: Who told you that?
Kelly: I heard it this morning on my way down in the coach.
The JUDGE said that a misleading statement of this kind had appeared in one of the papers, and he censured the publication of such unfounded assertions.
Kelly then made a rambling statement, purporting to complain of the evidence given in the Magistrate's Court by one of the medical witnesses respecting the weapon which may have caused the stab wound in Mathieu's body.
In reply to the Judge, Burgess said he was undefended by Counsel; Levy said that Mr. Pitt would defend him; and Kelly said he was prepared to go on with his own defence.
The names of the Special Jury were called over.
The JUDGE: Burgess and Kelly, you have just the same rights with a Special Jury as you have with a Common Jury with regard to challenging the jurors. You have each of you a right to challenge six of the twelve jurors who will be chosen to try you, but not more. His Honour then ordered the names to be read over, which were as follows:-- Henry E. Thompson, Robert Levien, George Bennett, William M'Rae, John Fedor Augustus Kelling, Hugh Stafford, Alexander Bain, George William Schroder, Samuel Pike, Henry Hamilton Knowles, Robert Pollock, William Henry Turner. The following jurors were challenged
[Image of page 24]
by Levy:-- William E. Thompson, and Hugh Stafford, their places being taken by Daniel Moore and Walter Scrivener Mortimer. Kelly challenged John Fedor Augustus Kelling and Alexander Bain, their places being taken by John Lockett and Hugh Martin. Robert Levien was challenged by the Crown Prosecutor, and his place was taken by Charles Canning, who acted as foreman.
The JUDGE here stated that he was not able to discharge either the rest of the Special Jury or the Common Jury; perhaps later in the day he might be able to do so.
The JUDGE here asked the prisoners whether they had been supplied with writing material, and was answered in the affirmative.
The first indictment against the prisoners was for the murder of Felix Mathieu.
Mr. HART then addressed the Jury for the prosecution. He said, in the face of the possibly very extended inquiries which it may be necessary to enter into in this case, he would not detain them by any remarks upon the importance and gravity of the circumstances attendant on it, which happily were but rare in the colony. He was able alike to congratulate the crown and prisoners that the case was to be tried by a special jury--by those who would most likely be free from the prejudices which beset a common jury. Before stating the facts of the case he would state that there were many circumstances in connection with it which, although trivial in appearance, would require the utmost attention on their part. The three prisoners were first indicted for the murder of Felix Mathieu. He was a respectable storekeeper residing at Deep Creek, and, together with three others, left Deep Creek for the purpose of coming to Nelson. The learned counsel then went briefly through the evidence, which it is unnecessary we should follow.
Thomas Brunner, being sworn, and examined by Mr. Henry Adams, said: I surveyed a portion of the road passing over the Maungatapu, leading from Nelson to Canvas Town. The portion was that from the Nelson side of the saddle to the Heringa river. I accompanied by a man named William Flett. I made a plan of the survey. [Map produced and placed in hands of jury].
The JUDGE: Have you a copy of the plan, Mr. Pitt?
Mr. PITT: Yes your Honour.
At the request of the Judge a copy was handed to Burgess and Kelly.
The JUDGE: This plan shows a section of the road from the junction of the Heringa river with the Pelorus, down to a place called Dwyer's.
Witness: Yes. I chained the road. The road is a narrow bridle-track, from four to six feet wide in some places; and, with the exception of Franklyn's Flat, the road passes through and has each side of it bush.
The JUDGE: After passing over the top of the saddle, down to Franklyn's Flat, what is the character of the road?
Witness: One-third of it side cuttings, and the other part follows spurs of the mountain.
The JUDGE: At what angle is the side of the mountain?
Witness: Very steep; about thirty degrees. There is no flat land except Franklyn's Flat, of about forty acres.
The JUDGE: Are the telegraph posts seen on the road?
Witness: Telegraph posts are distant about sixty to a hundred yards apart. It is seldom that more than one post can be seen at a time.
The JUDGE: Do any cross roads lead off the road?
Witness: There are no side roads, and no way by which any person could get off the road, except at Franklyn's Flat. I commenced to chain at the Heringa. To a spot marked A, I found it sixty-four chains, or rather more than three-quarters of a mile. 1 I made a sketch of the whole line of road from Nelson to Havelock. I have been that road. I took this map from Government surveys. I do not know the distance from Deep Creek to Canvas Town. From Canvas Town to Pelorus bridge is about six miles, going towards Nelson; from Pelorus bridge to Heringa river, six and three-quarter miles; from Heringa to Franklyn's Flat, one mile and a half; from Franklyn's Flat to Rock (C), three-quarters of a mile; from Rock to water-shed, the highest part of the Pass, the distance is two miles; from the watershed to Dwyer's, three and a-half miles; and from Dwyer's to the Court House, Nelson, the distance is six and a-half miles.
The JUDGE raised the question as to whether the prisoners who are undefended, or the Counsel for the defended prisoner, should first cross-examine the witnesses.
The JUDGE: Burgess and Kelly, have you any
[Image of page 25]
preference in the matter as to the cross-examination?
Burgess: I would wish Mr. Pitt to proceed first with the cross-examination.
Kelly: I would wish to examine Sullivan before Mr. Pitt does it.
The JUDGE: This question is of very considerable importance, and may be of advantage or detrimental to the prisoners.
Burgess: I merely stand here as an expert in this awful tragedy. I do not anticipate any advantage to myself, but I, on consideration, should wish to cross-examine Sullivan before Mr. Pitt.
It was then decided that the undefended prisoners should have the precedence in cross-examining the witnesses.
Burgess: You say that C indicates where the rock crops out on the road.
Witness: Yes.
Burgess: If a man is seated behind the rock, could he command the road, or see the road from C to B?
Witness: I could not say, but I think not. I did not try it. The road from C to B winds round in a zig-zag form, and there is a bend in the road from C to B. The blue mark on the plan close to the letter M indicates a creek. Prom M to N is about 11 1/2 chains, or about 243 yards.
Burgess: What do these stars at D, E, F, G, indicate?
Witness: Spots pointed out to me by Flett.
Burgess: These spots, I take it, indicate the places where the bodies of the unfortunate men were found. To witness: Did the prisoner Sullivan give you any instructions respecting these spots?
Witness: No.
William Flett, constable, being sworn, said: I went with Mr. Brunner over the Maungatapu, and pointed out to him certain spots. On the 18th of June, I went out to search on the Maungatapu for the bodies of the missing men. I knew one of them, named Dudley. I was one of the first men who found the bodies. I found Mathieu's body first, lying, as I considered, at the spot marked E on the plan.
Mr. Brunner, being recalled, said: E is about fifteen chains from the track up the hill.
[The Grand Jury here entered with a true bill against Burgess, Kelly, Levy and Sullivan, for the murder of James Battle.
The JUDGE: It will be necessary to take the pleas of the prisoners in this case. You will see the reason by-and-by. Let Sullivan be sent for.
Sullivan was brought into Court, and placed in the dock with the other prisoners.
To the question, Whether guilty or not guilty? Burgess said he was Guilty, but as a matter of form, and to forward the ends of justice, he would plead Not Guilty.
The three other prisoners also pleaded Not Guilty.
The JUDGE: Prisoners, do you wish to be tried by a Special Jury?
The prisoners Burgess, Kelly and Levy expressed a wish to be so tried, but Sullivan said he was indifferent on the subject. It was then agreed that the trial should be by a Special Jury.]
Examination of William Flett continued: I found Mathieu first, Dudley second, Kempthorne third, and De Pontius last. Dudley's body was lying about twenty yards farther up the creek than Mathieu's. Mathieu's body was lying on its back. The creek runs up from the road. There was a tree uprooted lying beside Mathieu's body. The left hand of the body was on the left side, and the right extended down by its side. There was a strap round the arms, which were pinioned together, above the elbows, behind the back. He was dead. The legs were close together, and fastened together by a small saddle strap. This was on the 29th of June. I noticed a wound in the left breast. It appeared to me to be a stab. It had a round appearance. Dudley's body was lying about twenty yards farther up. It was lying with the head up the hill, with its face to the ground. It appeared to be strangled. There was a handkerchief round the neck. The next body I found was Kempthorne's. He was lying on his back. He had been shot behind the right ear.
The JUDGE: Were there any firearms near any of the bodies?
Witness: None. The next body was that of De Pontius. It was lying on its face with the head down hill. There were stones on the body, large stones, about a dozen of them. The bodies were brought into Nelson. I went with Mr. Brunner and pointed out certain spots to him. [Witness was here shown a plan, and on being asked what B was, said it meant a tree that had fallen across the road].
The JUDGE: C is the rock. How what are D, E, F, and G?
Witness: They are the places where the bodies were found, and I pointed them out to Mr. Brunner. I saw some swags found. They were picked up near H. K is where the horse was found. I saw its body. This was the 22nd or 23rd of June, I think.
Burgess: By whom were you directed to go and look for the bodies?
Witness: By Sergeant Edwards and Sergeant-Major Shallcrass, my superiors in the police. I was one of the constables who accompanied Bradcock. I set out on Monday, June 18. I received my orders from Mr. Shallcrass in person. I was sometimes along with Mr. Saxton who conducted the search.
Burgess: Tell the Court the purport of the instructions you received from Mr. Shallcrass on the Maungatapu range.
The JUDGE: I am not sure if I am called upon to allow this question to be put, unless with the consent of the prosecutor.
Mr. Adams: I do not object.
Witness: I never returned to Nelson after receiving my instructions on June 18, until after the bodies were found.
Burgess: Did you fall across these unfortunate men accidentally?
Witness: No; I am not aware of getting any particular instructions. I went in search of the bodies, and found them.
The JUDGE: Was it in consequence of any particular instructions that you went to the place where the bodies were found?
Witness: Mr. Shallcrass came up on the 29th,
[Image of page 26]
and though I got no regular instruction?, I heard what was stated. I knew on the previous evening, when Mr. Harley came up, that Sullivan had confessed, and it was in consequence of instructions received that I went and searched that locality.
By Burgess: I went up the track about sixty yards, and dropped down into the creek. I went up the creek a distance of what I first thought, before it was measured, to be about three-quarters of a mile. The banks of the creek are very steep. I went up the bank of the creek about 100 or 200 yards.
Burgess: Take the position occupied by the body of the unfortunate Mr. Kempthorne at the mark D, and go on from that.
Witness: D is Dudley.
Burgess: Dudley! this is a mistake by witness, probably; D is Kempthorne.
Witness: There is no mistake. That is how they lay: D. Dudley; E, Mathieu; E, Kempthorne; and G, De Pontius. From where one body lay the others could not be seen. The distance between Dudley's body and Mathieu's was about forty yards, nearly parrallel with the creek. From D to E (from Dudley to Kempthorne) is about forty yards; Kempthorne was farther down the creek.
Burgess: If you go up the creek you come on Dudley first?
Witness: Yes.
Burgess: You say that the face of De Pontius was covered by stones. Did you see a wound in the eye?
Witness: No.
Burgess: I am satisfied there is a mistake regarding the position of the body.
The JUDGE: You can have an opportunity of ascertaining that afterwards.
Cross-examined by Mr. PITT: The weather was rainy part of the time when we were prosecuting the search. It took perhaps a quarter of an hour to reach the place where the bodies were lying from the rock. The wound on the breast of Mathieu was exposed.
Charles William Davis, being sworn, said: I am a policeman. I was present when the bodies of the four murdered men were found. I knew all of them. I saw the body of Felix Mathieu; he kept a public-house on Deep Creek. He was a Frenchman. The four murdered men all lived at Deep Creek. De Pontius was a digger, and lived at Deep Creek. The first body I saw was Mathieu's. The arms were strapped tight, and the legs were strapped, the right leg a little over the left. I saw a wound on his left breast, as the shirt was open. The next body I saw was that of Dudley; it was lying on the face. Kempthorne's was the next body; he was lying against a tree, shot through the ear. De Pontius' body I saw as they were carrying him down. I noticed that his lower jaw was fractured, and he had a wound in the corner of the eye. I helped to carry down the body of Felix Mathieu. The bodies were brought down to Nelson, and laid in the engine house. They were brought down the same day as they were found. In the engine house the bodies were laid across the room. Mathieu's body was lying nearest to the door. I have seen the prisoner Levy before. The first time I saw him was up at Deep Creek on Sunday, the 10th June. He was sitting by the fireside, talking to Dudley. He said he had come overland from the Buller, and had come up to Deep Creek because he had heard of a rush having occurred there. I heard him say this. The bodies were brought down lashed to poles, being first wrapped up in calico. The distance from Nelson to where the bodies were found is from thirteen to fourteen miles.
Burgess: In what position was the body of Kempthorne found?
Witness: Kempthorne was to the right of Mathieu, up the hill.
The JUDGE: Up the hill?
Burgess: The witness is right, the diagram wrong. I am the unfortunate man who did the deed, and therefore I must know.
Cross-examined by Mr. PITT: I was a miner at Deep Creek. I had not a prospecting claim, neither had there been any one granted else I should have heard of it. I do not know what clothes Levy had on. He had his coat off and a stiff hat. I do not know what Mathieu's condition was. I sat beside Levy and spoke a few words to him. I saw he had a watch and chain, but I did not see any rings. I could not say what kind of trowsers he wore. I did not pay much attention at the time.
Francis Longbourne Vickerman, sworn, said: I am a Surgeon, residing in Nelson. I am a M.R.C.S. I recollect going into the engine-house on 30th June. I was ordered by the coroner to examine the bodies therein. We, that is, Dr. Cotterell and myself, examined the body nearest the door, that of Felix Mathieu, and found a stab wound about one and a half inches from the nipple of the left breast. I examined the wound, and found that a pistol or other bullet had gone through it as well. The stab must have been inflicted first. The stab must have been inflicted by a broad blade with a sharp point. The stab wound would not have caused immediate death. I should say it was done by a convex blade. The back of the knife must have been thicker than the edge. [Sheath knife produced.] The wound might have been caused by a knife such as this. This knife would produce such a wound by puncture. I examined the course of the bullet wound; it entered the stab wound between the fifth and sixth ribs, taking out an under piece of the fifth rib on the left side. It passed obliquely downwards, wounding the diaphragm and the stomach. It took a circular patch out of the stomach. It then wounded the ascending vena cava, about two or three inches from the heart, and lodged between the seventh and eighth ribs on the opposite side to the wound. The effect of such a wound would be instant death from hemorrhage; the supply of blood would be at once cut off from the heart. The bullet I produce is the one I extracted. It is partly conical. I cannot say whether it has passed through a rifle or not. It is cylindrical, with a convex end. I found a second pistol bullet wound on the same side as the first, but nearer the spine than the stab wound. The wound travelled down towards the spine just below the skin. It entered between the fifth and sixth ribs. I produce the bullet. I found this piece of paper [produced] between the clothes and the body. I have compared it with a newspaper. I found a piece of rag in the
[Image of page 27]
wound. From the appearance of the wound, the weapon must have been fired close to it. I examined the other bodies. Kempthorne had a shot in the right ear. Dudley had marks of strangulation. De Pontius had a bullet wound at back of head on the left side, and a fractured jaw on the right side. I have compared the piece of paper I took from inside the clothes with a paper called the Marlborough Press, of the 30th May.
His HONOUR doubted whether this evidence could be used against the prisoners. It might stand for the present, but he by no means ruled that it was not evidence.
The JUDGE: Do you find that the piece of paper you produce corresponds on both sides with the newspaper now produced?
Mr. Vickerman: I do.
Cross-examined by Burgess: At what distance was the shot fired at Mathieu?
Witness: It must have been pretty close, but I could not tell the precise distance.
Burgess requested that the knife found in Kelly's swag might be shown him, which was accordingly done.
Witness: The wound was obliquely upward, and was probably made whilst the body was in a prostrate position. I have fired off a revolver once, and can speak as to the possibility of two chambers going off at once as on that occasion two went off. The stab wound must have been inflicted first, as the skin bore no mark of the bullet. There was no external trace of the bullet. The stab wound was there. Mr. Kempthorne was shot through the head, and I extracted the bullet. The weapon must have been fired close to him.
Burgess: If the revolver was discharged at a short distance from Kempthorne, how was it that the ball remained in his head, and did not pass through it?
Witness: From the obstruction it met with from the shattered bone and the brain.
Burgess here expressed his inability to frame his questions so as to elicit the evidence he wished to get, and the Judge therefore put a question to the witness as to the possibility of the obstruction he spoke of being sufficient to prevent the passage of the ball through the head. The witness considered the natural obstruction it encountered quite sufficient to prevent the passage of the bullet through the head.
Witness, in continuation: At my first examination I do not think I made any remark as to the character of the instrument which produced the wound. My reason for not doing so was, that I was not asked the question. I formed an opinion as to the nature of the weapon that produced the wound before I saw the knife produced. It was about perhaps a week before the second examination, that I was shown the knife. I did not say that this identical knife had made the wound; I said a similar weapon. I first heard that the knife was found at Carter's in Court. Very little decomposition had taken place in the bodies. I do not think bringing them down would have altered the form of the wound. When I examined the bodies, they were not decomposed, but decomposition had commenced.
By the COURT: The brain of Kempthorne, through the injury of the bullet, was decomposed. There was nothing inconsistent in the appearance of the bodies with their having been dead the time, considering the state of the weather and the place where they were lying. The carrying of the bodies slung on poles, and placing them in the engine-room, would not alter the shape of the wound, as that was the easiest method of carrying the bodies. I should have been able to believe that the wound was made by a blade of a convex form without seeing the blade.
Cross-examined by Mr. PITT: The exposure of the wound to the air and damp would not alter the substance, but merely make it look a little sodden. It might make the edges of the wound look a little thicker. In determining how the wound was inflicted, I was guided by its appearance at the mouth. The wound was clean all round. It was a sharp-pointed weapon that made the wound, The sides of the wound were pretty close together, except at the top where the bullet entered. I did not measure the length of the wound. If the knife were used at right angles, it might perhaps make a smaller wound, but, if the wound be oblique, more skin would be cut than the breadth of the knife. I examined the interior of the wound. From the skin to the heart was about four and a-half inches. The wound did not penetrate the cavity of the heart, but the pericardium, and wounded the heart. There was a piece taken out of the fifth rib. I first examined the wound with my finger, and then opened it. The diaphragm was wounded. It was a clean cut all round. If there had been blood around the wound, I should have given the same judgment as to the wound. The blood would merely indicate that some vein, or other blood-vessel, had been wounded. This wound could not have been caused by a jagged instrument. Tho examination of the wound was a minute one. A more minute one could not have been made for all practical purposes. I saw the inside of the wound. It could not have been inflicted by a knife sharp on both sides.
Re-examined by Mr. Hart: It might have been possible, in the case of two chambers of a revolver exploding at once, that one of the bullets might have become deflected, and it is possible that the position of the two bullet wounds might have boon caused thus. I found a piece of paper in the head of Kempthorne, which I produce. It was brown paper.
Charles Cotterell, being sworn, said: I am a surgeon, practising in Nelson. I am a M.R.C.S., London. I was present when the body of Felix Mathieu was examined in the engine-house, on the 30th of July. I found a stab-wound on the left breast, also a bullet-wound in the same wound, between the fifth and sixth ribs. There was also another bullet-wound nearer the spine on the same side. The stab-wound appeared to be a puncture-wound, going upwards and inwards in a slanting direction. I should say the wound was caused by a sharp-pointed instrument.
By the JUDGE: The blade must have been an inch, or an inch-and-a-half broad. The bullet-wound destroyed the front extremity of the wound. The
[Image of page 28]
other end of the wound, I should say, was that made by the sharp edge of the instrument. [Knife produced.] This knife might have inflicted the wound by stabbing. The pistol-wound passed towards the stomach, which it struck, ruptured one of the large blood-vessels near the spine, and passed through to the other side, between the seventh and eighth ribs, and lodged underneath the skin. Hemorrhage was the cause of death through the rupture of the large blood-vessel. It would cause instantaneous death. I examined Kempthorne also; I found a bullet in his brain. A piece of paper was found in his head. I can form no opinion as to the distance at which the weapon was fired.
Cross-examined by Kelly: I think there would be a change in a body left exposed to weather for seventeen days. There must be some change in the wound after that time. After death there must be some further change. Dr. Vickerman, having inserted his finger into the wound, would not alter its shape, as the bullet-hole was large enough to admit a finger easily. I do not think carrying the bodies down would at all alter the appearance of the wound. The bodies had not altered their appearance since I saw them on the mountain.
Kelly here said: I believe it to be impossible that a body could remain for seventeen days exposed to wind and rain and all kinds of weather, and then be wrapped in calico and slung on sticks and carried for miles, without altering both the state of the body and the appearance of the wounds. 2
The JUDGE said that was a point which the prisoner could impress on the jury.
Charles Cotterell's cross-examination continued: I have only seen the knife produced since I have been in Court.
Cross-examined by Mr. PITT: The examination I made of the wound was very minute. The breadth of the wound was about one and a-half inch. The lips of the wound were almost touching each other.
John Sherwood, being sworn, said: I am a constable. I was present when the bodies were brought into the engine-room. I did not search them that day. I searched them on the Sunday. I was in charge of them on Saturday. I remained in charge of them till Saturday night. I left them then, they were locked up for the night, and the key was left at the office. I found them in the same state on Sunday morning as they were when I left them on Saturday night. I found a watch in the right waistcoat pocket of Mr. Kempthorne, and a chain round his neck. I found no money, no gold, or nuggets. On Felix Mathieu I found a meerschaum pipe.
Kelly here said that he wished the Judge to issue an order for an alteration to take place with respect to Sullivan, because the way he was treated was different to the other prisoners. [He repeated a statement of this kind, the meaning of which it was difficult to comprehend, and the Judge asked him to put plainly what he wished the Court to do.] He then said that he wished the Court would give an order that Sullivan should not receive any treatment shown to him in order to encourage him in the course he has prepared himself to pursue.
The JUDGE said: The Court neither encourages nor discourages anyone. It has no control over the man who will be examined as a witness against you. When placed in the box you can cross-examine him.
The Court then adjourned till nine o'clock next day (Thursday).
SECOND DAY.
THURSDAY, SEPTEMBER 13.
EVIDENCE OF SULLIVAN, THE ACCOMPLICE.
The three prisoners were again brought up this morning at nine o'clock.
Sullivan, the accomplice, was put in the witness-box.
Mr. PITT (Levy's counsel) said: I would submit to the Court that although the evidence of this witness may not be held to be incompetent evidence, yet I contend that it is improper to bring him in at this stage of the proceedings, until further evidence be produced, showing a prima facie case against the prisoners, which as yet has not been done in the Court. Another thing is, your Honour, that while I admit it lies in the discretion of the Judge to admit or reject such evidence, yet it is usually laid down by Judges as a rule, that the evidence of witnesses who are accomplices to a crime is not admissible while such witnesses are under charge of another crime. Now, Sullivan stands indicted for another capital offence, to which he yesterday pleaded in this Court not guilty, and therefore seeing that he is under such a charge, he should not be produced while that charge is pending.
The JUDGE: I am not aware of any rule by which evidence in such cases must be taken after, rather than before any corroborative evidence; and as for the other point. I should like to hear your authority.
Mr. PITT: In II. Russell, page 958, in note, your Honour, it is stated that if it should appear that a witness is charged with another offence, for which he is liable to be condemned, it is not proper to admit such witness as king's evidence.
The JUDGE: I am not sure in what light it is proper to regard it; but the old notions respecting king's evidence are long since exploded. His Honour then read from authorities, to the effect that if a witness who is an accomplice, is made to believe that his evidence in that particular case would result in his being freed from the consequences of another crime with which he is charged, then his evidence is not admissible. In the present case there is not the smallest ground of any kind for this witness believing, or being led to believe, that his giving evidence in this case will in any way free him from the consequences of the other crime with which he stands charged. I shall very carefully, and very solemnly warn the witness against that. [His Honour then went over a few points in the case, and pointed out that on no occasion was there any hope held out to
[Image of page 29]
Sullivan by the Magistrate; and he made reference to the proclamation of pardon to an accomplice in these four murders, pointing out that the proclamation was perfectly silent respecting the other murder with which Sullivan was charged, and had no effect whatever on his position with respect to that murder.]
Mr. PITT contended that he stood in the position of being indicted for another capital offence, and he submitted that this should be sufficient to invalidate him as a witness.
The JUDGE: I do not think that it will; his evidence will be received and carefully weighed; its value being tested in connection with the peculiar circumstances under which it is given. [His Honour then referred to a case (that of Charlotte Winsor) in which it was objected in error that the evidence of an accomplice charged in the same indictment as a prisoner at the bar could not legally be examined. The Judge ruled that it could, but on appeal Lord Chief Justice Cockburn, although not declaring it absolutely illegal, strongly reprobated the course of taking an accomplice's evidence before the fate of that accomplice on this same indictment was determined.] But this case (continued the Judge) is different. It is of course assumed--although perhaps Counsel for the defence had strictly no right to refer to it--that Sullivan is indicted for another capital offence; but that charge is altogether distinct from this case, and after all the point raised really comes in the end to a question of credibility, and I shall warn the Jury that they must exercise caution as to the extent to which this man's evidence is credible.
Burgess here addressed his Honour. He said: If it is not against the rules of the Court, your Honour, I should like to examine Mr. Henry Adams relative to certain letters I wrote him.
The JUDGE: I cannot go out of the beaten course, nor allow interruptions by taking witnesses for the defence while the evidence for the prosecution is proceeding. But the Court is willing to allow you and Kelly also, who are undefended, the fullest possible latitude.
Burgess: Shall I be allowed to interrogate Mr. Adams at a subsequent period?
The JUDGE: Yes, you can subpoena Mr. Adams or any other witness you think proper, and examine him as fully as you please.
Burgess: Thank you, your Honour. I shall do that.
THE EVIDENCE OF SULLIVAN.
Joseph Thomas Sullivan (who remained in the witness-box while the debate on the admissibility of his evidence was going on) was then sworn.
The JUDGE then addressed him: Sullivan, you have heard what I have just said respecting you?
Sullivan: I have, your Honour.
The JUDGE: Then it is my duty to tell you that, whatever motives may have induced you to make the statement or confession which you have made, you labour under the strongest possible delusion if you suppose that the manner in which you give your evidence in this case to-day will have the slightest effect on the result of the trial of the charge of murder for which you are indicted.
Sullivan: I shall confine myself to the truth, your Honor.
Joseph Thomas Sullivan, was then examined by Mr. Hart: I first arrived in New Zealand on 12th April, 1866, in steamer Albion, at Hokitika. I know the prisoners. I first met them on Friday, 27th April. I associated with them, and went in company from Hokitika with Levy and Burgess to the Totara river, on 4th May, leaving Kelly behind. We came back on 7th May. On 9th May, Levy went to the Grey himself by coach. When we came back from Totara of 7th May, Kelly was there and received us. It may be necessary to explain----
The JUDGE: You are not giving information, but evidence and must answer questions as they are asked.
By Mr. HART: Levy did not return. We went in search of him, and went to the Grey, where we all met on 1st June. From that we went to the Buller in the steamer Wallaby. Levy supplied us with tickets. [Four tickets produced.] That is the ticket supplied to me, it is endorsed on the back. I could not swear to the others. I only know my own. We stopped at the Buller about twenty-four hours. We came on to Nelson from the Buller in the same steamer. The tickets were for the Buller only. The passage was paid from the Buller to Nelson by some one, I dont know whom. I received a letter from Burgess to give to Captain Palmer of the Wallaby, and ascertain from him whether he would give us a passage to Nelson, as we were short of funds, and we would keep ourselves, as we had purchased provisions for the passage. Burgess told me to see the captain and endeavour to get him to do this, and to state so to him if the letter he gave me should have no effect. I went on board and gave Captain Palmer the letter. I had a conversation with him afterwards. He said he could not comply with it, but he said if we had----
The JUDGE: You must not tell us that. He did not comply?
Sullivan: No, your Honour. Then I told Levy, and he said he would borrow some money; and I afterwards saw him borrow £2 from a Greek boatman; I do not know his name. He further borrowed some money from a man named Chesterman. Burgess, Kelly, and myself came as steerage passengers. Levy had a saloon passage. We arrived in Nelson on Wednesday, the 6th of June. On our arrival Levy took us to a boarding-house in Bridge-street, kept by Mrs. Sharp. We got there at about dusk. We staid till next morning, and the four of us had tea, bed, and breakfast there. I saw Levy pay for it. He gave Mrs. Sharp a £1 note next morning. She charged 5s. for each of us. We left on Thursday morning about a quarter to nine o'clock. We all went out of the house together. Levy arranged over night that we were to proceed to Picton. After leaving the house Levy observed some saloon passengers standing at the corner, and he did not wish to be seen with us; so he went up the street, and told us to go down, which we did. Burgess. Kelly, and I, had swags; Levy had none.
The JUDGE: What had you in the swags?
Sullivan: Burgess had two double-barreled guns, smooth-bores, two revolvers, some powder, balls, and
[Image of page 30]
caps. The revolvers were different; one of them was silver-mounted. They had six chambers; I saw the bullets. [Double-barreled gun produced.] This is one; I know it by the flaw in the barrel. [Another double-barreled gun produced.] I know this one by the loss of its key, which is replaced by a piece of iron. [Pulling out ramrod.] I know it also by the ramrod, which Levy made at the Grey. [Brass-mounted Colt's six-chamber revolver produced and identified by loss of ramrod. Silver-mounted six-barrelled older-fashioned revolver produced and identified by the witness, who swore to its general appearance.] In my own swag were two opossum rugs, two blankets, a tent-fly, and a flannel. Kelly's swag contained a strong and heavy shirt, a flannel shirt, a small tent, and a pair of socks. In Levy's swag were 7 or 8 lbs. biscuits, some tea, coffee, sugar, and butter. The order we went out was that I, Burgess, and Kelly went down Bridge-street, turned up the Waimea-road, and round by Shelbourne-street, and met Levy, according to appointment, near the bridge on the way to the road for Picton, at the Maitai Valley. We left Mrs. Sharp's as if we had been going to the wharf. Our way to the valley was roundabout, quite a circumference. We went on up the valley. I went on ahead, about 600 or 700 yards; they having stopped, talking. I overtook a man, and walked with him, and stopped with him for some time until the others came up. Before I came up with this man, three horsemen in company overtook me. Birrell was one of them. The three horsemen passed together. The man I overtook was a miner with a swag, going to Deep Creek. I stayed to adjust my swag, and when they came up we all stayed together and smoked our pipes. We went that day as far as the rock. I cannot state the exact distance. When the prisoners rejoined me, after adjusting my swag, we were about 2 1/2 miles from Nelson. The three horsemen overtook us about a mile and a-half from Nelson. The rock we went to that day is on the other side of the Maungatapu, and on the Nelson side of Franklyn's Flat. We went as far as Pelorus Bridge on Friday, 9th. At the Pelorus bridge we camped for the night. On Saturday we left the Pelorus bridge about 1 in the afternoon. It rained in the morning. We went as far as the Wakamarina River, and we called for a boat to take us across. We arrived at Canvastown about 4.30 or 5 o'clock. We got permission from Mr. Jervis to occupy an empty store there during the night. We remained there until Tuesday morning, the 12th. Levy was sent to Deep Creek on Sunday morning. He returned on Monday, at about halfpast 2 o'clock. He was sent to see if there was any place that could be robbed. He brought back a newspaper to Burgess. It was a Marlborough paper. I could not say what. It was a small paper, he said he stayed with a man named Mathieu, whom he knew, and had seen a man Dudley--an acquaintance of his in Dunedin. He said these people were going to leave with two other men on the Tuesday for the West Coast. That he saw a good deal of money with one person of the four, and some "long tailed ones," a cant expression for large notes. He said they had intended starting on the Monday but had remained to put a cover to the tent, but that they were sure to start on Tuesday and it was possible that they would bring all the gold in the place with them. Burgess answered him and said he thought it would be better to go no farther. That meant to proceed no further on the road to Picton. Levy agreed to it, and urged the necessity of going back on the road to stop these men. The position of Burgess was generally considered to be that of captain or leader when I joined them. He said it was a certainty to rob these men, whereas the robbery of the bank at Picton was not. It was proposed on starting from Nelson that the bank at Picton should be robbed. Levy was exhausted with travelling, and he merely stated that his trip had cost him 15s, as he had been playing cards, and he wished to ascertain what funds we had together. Burgess had 4s., Kelly had 2s., and I had 6d. Levy had nothing, he said. Levy being tired then lay down. Kelly was washing, and Burgess asked me to come out and assist him in grinding two knives. I saw the knives. Kelly wore one in his sheath; the other was carried in the provision bag. Both knives were of the same description, but one larger than the other; they were fossicking knives. The one was like what a butcher would use for cutting steaks. These knives were both ground, back and front at the point, on the grindstone which we were permitted by a Maori to use. The sheath knife was Kelly's; the other Levy brought on shore from the Wallaby steamer. [Knives produced.] That is Kelly's. I saw him make the sheath. When the knives were sharpened they were taken back into the store. The guns were oiled and cleaned on Sunday night, and put away; and on Monday night Burgess loaded both guns and pistols. He loaded the guns with balls, and then got a tomahawk and cut the bullets to fit the pistols They were stolen from a shooting gallery at the Grey. I saw them stolen. They were round bullets. I saw the bullets when they were stolen, but I did not see them after they were cut. [Bullet produced.] This is far smaller than the bullets taken from the gallery. The bullets from the gallery were too small for the guns, and wanted wadding round them. I did not notice what wadding was placed round them, except that brown paper was wrapped round one that was for the gun. One of the guns had no key to fasten the barrel into the stock. That was supplied by Burgess, who went outside with the tomahawk, and he fetched in two pieces of hoop-iron, prior to loading the guns. He tried whether the stock of the gun fitted the barrels with pieces of this hoop-iron, and it did. He then put them into his purse. When he loaded the gun afterwards, the barrels were detached. [Hoop-iron produced.] That is the piece. There were several pieces tried. Burgess loaded the pistols. We, that is Levy, Kelly, and myself, were all present. That was on Monday night. Burgess then gave Kelly the arms as a pillow; they were wrapped round with an old shirt. It was arranged by Burgess that we should start before break of day, before Mr. Jervis was up, so that he could not see which way we went. We could not start so early as we had no sugar, so we waited for Mr. Jervis getting up, and I bought some with a shilling given by
[Image of page 31]
Burgess. It was a quarter to eight when we started in the direction of Nelson. When we came to the Wakamarina we went down the river to find a place were we could walk over. We walked across there. We should have been wet up to the middle had we crossed at the usual place. After we had crossed the river we went on towards the Pelorus, and met the witness Daniel Couper, about half-a-mile from the Pelorus Bridge. He was carrying an axe. Later in the day, a couple of miles on the Pelorus side of the Tinline Bridge; and at about, two p.m., we met a man on horseback. The man was the witness Galloway. He was coming from Nelson on horseback.
His HONOUR remarked that the distances on the plan appeared to be marked as the crow flies.
Sullivan continued: That night we went as far as Franklyn's Flat. It was about a quarter after four that we arrived there. We were all four together. We erected the tent within an old building, and we all four slept under the tent. The tent could be seen from the road. We left at 8.30 or 9 o'clock in the morning, and travelled in the direction of Nelson for about a mile, when we came to the rock. Here we took off our swags, and put them in the bush at the back of the rock, about 10 or 12 yards from the back of the rock, up a rising ground. Three men on horseback passed towards Canvastown, two on foot. The men on foot had horses, but they were being driven with cattle by the others. I think they were Maoris from their conversation. We hid ourselves as they approached, and lay down in the thick undergrowth, and remained concealed from the road. After the cattle passed, we selected places, and each man had his station allotted to him by Burgess. We cleared these places with the tomahawk. There was an opening made to the road--clear from all undergrowth--in the direction of the creek on the left hand side of the road; the opening was made parallel to the creek. Another place was cleaved between the rock and the creek; the other clearing was on the valley side of the road, and there were dead boughs thrown up, so as to form an ambuscade. Levy was stationed behind the rock, where he had an opportunity of seeing down the road to watch for the four men coming from Deep Creek, as he would know them again. Kelly was to be stationed on the opposite side of the road from the rock, on the valley side. Burgess and myself were stationed in the creek below the rock, and were to be armed with a double-barreled gun each, Kelly and Levy with a revolver and knife each. This was arranged in the early part of the morning, after the brush had been cleared. We sat down behind the rock for a considerable time, to watch for persons that might pass, lest they should see us. After a time Kelly proposed that we should get ready straps to tie the men; and he went to the swags and took the straps off them. We used the straps because we could not find flax; we had been searching for flax, which we preferred. We had nine straps altogether, and we wanted eight. He tried one round his arm and broke it; and he tried the others, and found some of them either too weak or too thin, and we were short of our number, so Kelly said he should want a handkerchief, and he asked me for my sash. He put on an old woollen shirt, covered with clay, such as diggers use when working, and fastened all the straps round his waist, letting the shirt fall over them, he doubled the sash, and fastened it up also. We then all came to the side of the road, on the same side as the rock.
The JUDGE: How long had you been at the rock when all this was arranged.
Sullivan: We had stopped about two and a half hours. We sat at the roadside where anyone could have seen us. We had sat there a considerable time when suddenly a man on a grey horse came up the rise. I recognised him as Mr. Birrell, who had passed us on the road up on a previous day. We had just time to secrete ourselves when he passed. We went altogether behind the rock. Had Birrell looked about he must have seen some of us. He did not look round. We had no arms then; the guns were beside the swags. Burgess had a pistol in his breast, and Kelly the silver-mounted pistol. I do not know if they had the knives. Levy proposed as it was cold that "he and Burgess should take a walk, and see if they could meet the blokes." They went down the road, down-hill, towards Franklyn's Fiat. I went back to the swags, which were lying open, and took a Crimean shirt of mauve colour, with a triangular rent in the shoulder, and needle and black thread, and came forward in the sun to sew it. As I was preparing it I heard voices of persons coming from Nelson. I knew there were two, but I could not see them. I threw down the shirt into the bush, and left the needle and thread, and ran back to the swags, where Kelly was lying beside the two guns, and I threw myself down there. At this time, before the people came up, I heard a voice call "Tommy," (that was Kelly), and we called out "Hush," on which Burgess and Levy, who were behind the rock, and saw us as we saw them, threw themselves down on the ground. At this time a man and woman passed from Nelson. At the rock the road is very abrupt, and takes a sudden and steep bend, so that it is impossible at the rock to see anyone coming up that part of the road from Nelson until they are close upon you. The man and woman stopped opposite the rock, and looked about, and then went on a little farther down, and stopped again and looked up the hill, as if they had heard a noise. They looked towards us. When they went away, Burgess and Levy said, "There is no time to lose; every man to his position; they are coming!" Levy said he thought he was observed by the men at a creek down the road. They both had gone down the track to the edge of Franklyn's Flat, and watched them there, and saw them making ready to leave towards Nelson.
The JUDGE: After saying "Every man to his post," what happened?
Witness: It was arranged that I, with the assistance of Burgess, was to intercept them on the road, at the spot where the creek crosses the road. Kelly and Levy were to be stationed at the rock, and to allow them to pass the rock, and then follow them down, while we two stayed in the creek. [Sullivan made a pencil sketch showing the bend of the road between the rock and the creek.] Any person where Burgess and I were stationed could not be seen, as the ground is very abrupt from the rock, and falls suddenly to the creek, and there is a turn of the road
[Image of page 32]
there. After the man and woman went by, we posted ourselves according to arrangement and instructions from Burgess. Burgess first took two pieces of hoop-iron out of his purse to adjust the gun together. We were then at the swags, making ready. He fastened the gun with the hoop-iron, and gave it to me. He took the pistol out of his bosom, and gave it to Kelly. As soon as the men passed the rock, Kelly and Levy were to follow them down behind. I and Burgess were to stop them at the bottom; and when they were stopped, I was to pass up the rock, and take my station there, because from that point you could see both towards Nelson and Franklyn's Flat. You could see to the Nelson side, by looking through the bush, about 100 or 130 yards. You could not see along the track this side more than twenty yards, because of a steep bend. On Franklyn's Flat side, you could see better than a quarter of a mile, not continuously, but at different places where the road turns in different parts. We all took up our stations, and after remaining a short time, the word was passed from Levy, "They are coming: be ready." At that time I asked Burgess to allow me to form one of the party to take the men into the bush. He said, "No; the work is all cut out, and cannot be altered." The four men then came down hill, which is a steep cutting; there is a dip in the road. They came within fifteen yards. They were coming two and two, quite close to the near side of their horse, and between us and the horse, which carried a lot of swags. It was a dark chestnut, with a white star on the forehead.
The JUDGE remarked that no notes were being taken by the Counsel for the Prosecution, and that it was sometimes of the greatest importance that such should be done.
Sullivan: Burgess and I stepped out to meet the men, and stopped them; and I saw Kelly come down about eight yards behind them, speaking to one of them, with a knife in one hand and a revolver in the other. When Burgess and I stepped out, the men stooped in a crouching position, and hold up their hands, as if in fear of the firearms. Burgess and I presented our guns at them. We were then near the middle of the road, covering both the men and the horse; Burgess a little in advance, and I a little nearer the valley. I heard Kelly say to one of them, "You are very near a dead man, old fellow." I did not know the men; one of them had a large beard. Levy closed in on the men, and I passed up the road to the rock, and lost sight of them all except Burgess and the swags on the horse's back. I passed on to the rock to watch both sides of the road. After the lapse of five or six minutes, it might be a little more or a little less, I saw Levy come up the road leading the horse with a piece of rope. He took it into the bush on the incline on the side of the road at the rock. After he was a minute or two into the bush, Levy called out to know if I could observe the horse from where I was. I did not see it; and he then asked me to go on the road and see if I could see the horse, and I walked on the road and passed along, but could not see it. I went down to the bottom where the men bad been, but I saw none of them. Levy then went away. About twenty minutes after this, I was looking towards Franklyn's Flat, and I saw a man coming quickly along the road towards, Nelson. I did not know him. At the same time I saw a chestnut horse coming from the Nelson side, and I was afraid that the horse might neigh to it, and was looking about for a place to get out of sight. I went higher up. I did not see the man on the horse because the bush intervened. I only caught glimpses of the horse. I heard the word "No." Some conversation passed between them, but I could not say what they said. I staid where I was until I heard the horse pass off and heard the man cough on the hillside towards Nelson. I came nearer the road, and about ten minutes after the men passed, I heard the report of a gun coming as if down from the creek. I was then standing with my back towards the creek, and near to where the horse was. Almost momently after the gunshot, I heard five pistol shots within two or three minutes. The last one seemed to come from nearer Nelson than the others. Hearing so many shots, I shifted my position and crossed the road to the right side, on the valley side of the road. I got on to a fallen tree from which I could see the mouth of the creek, and also the place where the horse was. About a quarter of an hour after this, I saw Burgess emerge from the creek with a double-barreled gun in his hand. He stood in the road, and called mv attention to him by a cough or hem. I came out from the valley side, and he asked me what I was doing on that side of the road. I told him that I was getting alarmed at hearing so many shots fired, and asked if they had turned on them. He said, "No"; but that "they made a b----y mess of it." These were the words he used.
The JUDGE here said that what the witness was now about to state would probably be a narration of some conversation, which he says took place between himself and Burgess in the absence of the other parties, and which while admissible as evidence against the person by whom it was spoken, was not admissible against those whose names it may make mention of.
Mr. PITT thought it was improper to mention the names to the Jury, and that the evidence was only admissible against the one who took part in the conversation.
The JUDGE, after consulting his law books, said that the law was that when a conspiracy was entered into for the purpose of committing crimes, the acts and language of each conspirator are the acts and language of all, inasmuch as they were all connected. But it was not necessary to go into that point, because he could not exclude the names from the hearing of the Jury, even although the persons were not present at the time the conversation took place. The statement must be proved as it was made, not omitting the names. It was for the Jury to consider the value of the evidence.
Sullivan continued: Burgess said, "No. They have made a bloody mess of it. I knocked my man over at the first shot. Where is the horse, and have you searched the things?" I said, "No." He said, "That is a good job, as it will save a good deal of time, there is no need for searching anything but the portmanteau." The others then came up. They were in sight all the time, in company, but not
[Image of page 33]
speaking. They were on the spot and up with us when Burgess spoke of saving time. They heard this. We went to the horse. The things were fastened on by strong straps all round, and cords also. I undid the straps, and the things fell off by the side of the horse. The portmanteau was opened by Burgess in the presence of all of us. Levy was holding the horse's head. Burgess on opening the portmanteau said, "This is what I want," taking out a leather satchel with a long strap; what is called a courier bag. He opened it; there are two compartments in it. He took out from one side one bag and from the other side two bags. [Bag produced.] It was like this bag, but the leather inside was nearly new. Two of the bags contained gold dust, if there were nuggets in them they were small. The other bag contained copper coins, penny-pieces. I had no idea what quantity of gold the bags contained. When Burgess opened the bag containing the coppers he called the owner of them "a needy b----r" and threw them all over his head indiscriminately about the bush. He then called Tommy (meaning Kelly), to help him do the swags up. These two went away behind the rock to where the swags were left in the morning, about 20 yards off; Levy followed him. I complained that I could not put the things on the horse's back again, and after a little altercation Levy came, and then Burgess came and said, "I thought I saw some straps in the portmanteau, let me see." He looked and found three straps tied up with some twine. Kelly came up and they took the straps. When they took them out I observed the initials of a name on them; and then Kelly took his knife and shaved off part of the strap, cutting out the letters which were about six inches from the end. Kelly and the others said they wanted straps as they had left some of them behind. [Strap produced and identified]. With the assistance of Levy I got the things on the horse with the exception of a small parcel which fell off and I took it. I do not know what it contained. I took it because I did not wish to leave it; I afterwards threw it away. I saw nothing taken except the bags and the straps. I then told Burgess that the horse was ready, and he told me that I was to go along the road, and if I met any one I was to let them pass and then follow them back. He also said that we must throw away surplus food, and things we had and did not wish to take with us; a frying-pan, a tomahawk, and other things. I was to look out on the road for a place to dispose of the horse. I omitted to mention about this gun, which was almost worthless, having lost the key; and Burgess had said if this affair came off all right, meaning the robbery of these men, this gun was to be thrown away, and I was understood to get Burgess's, and he was to buy a revolver. I went on according to Burgess's instructions, and after I had gone about 100 yards I bethought me of my shirt that I had left behind. I went back and asked them for it. Burgess said that I should get a new one; but I said I wanted to put it away, and one of them gave it to me, and I went on with my swag and shirt and the little bundle which fell off the horse. I went up-hill about half a mile and stopped, and looked behind me, and seeing no one, I shoved the shirt in on the right hand side of the road, and about a yard from the road. I threw the gun away into the bush below it, taking it by the barrels and throwing it as far as I could. I did the same with the bundle. When I had done this Burgess came up carrying a gun in his hand, Levy following leading the horse. Kelly as behind with a pistol in his hand. Burgess asked me where my gun was, and I told him that I had thrown it away. He wanted to quarrel with me for it and Kelly quieted him by saying that I had done so on his own words, and I argued with him too, and told him his own words; I also told him that I had selected this place for the horse. I wanted to save its life; but it was found there was so much dead wood that the horse could not go down. We went on about 150 yards and blindfolded the horse. Levy still held him, but the horse refused to go off the road for a good while and Levy got frightened. Burgess got very much excited and snatched the rope out of Levy's hand, and attempted to lead him down. I went on first, clearing the brush and light timber to make a path, and got him about thirty yards, when he fell against a dead tree, with his body downhill and his legs up. We could not extricate him, and Levy brought the gun down, and I shot him in the forehead. Kelly was then keeping guard on the road. We went on until we came to the old chimney, near the foot of the Maungatapu, where we kindled a fire. It was dark then.
Here the Court adjourned for half-an-hour. At one o clock it re-assembled, and the examination of Sullivan was proceeded with.
Sullivan: I made a fire, and prepared tea at the camping-place, and, while doing so, Burgess and Kelly undid their swags, and Levy assisted me in boiling the kettle by getting the smaller brushwood. It was getting very dark, and I could not get enough small wood. Whilst doing so, we were both called to pick up some money. There were four lots of money, consisting of notes, gold, and silver, lying on a blue blanket. I do not know the owner. The money had been amongst the swags, but I do not know to whom it had belonged. Kelly was on his knees opposite to Burgess, who was also on his knees on the other side of where the money was lying. At the time I was called, Burgess and Kelly were doing nothing. I was told by Burgess to take up one lot. Levy was also told to take up another lot; Burgess remarking at the time, "There is £16 13s. a-piece for you." I took my money, and counted it, but found there was only £15 13s. I drew Burgess' attention to the fact, and he said that my lot contained a sovereign; but there was none. Kelly said that be also had only £15 13s. in his lot. Burgess then took the money from each of us, counted it all, and found that in each lot there was only £15 13s. He asked Levy how much money he had, by saying, "Phil, how much have you got?" Levy replied, "That he had fourteen £1 notes, two sovereigns, and thirteen shillings." Burgess said he had the same, and that he must have made a mistake; there must be two sovereigns missing. He thought that he had six sovereigns, and that he had laid a sovereign on both Kelly's and my own lot. On that, some document taken from the purses was lit, and a bright light brought to look for the money. A conversation then took place between Kelly and Burgess. Kelly
[Image of page 34]
said there were but £4 in sovereigns, and he had had them; that is, that he had them originally. After that, Burgess said, "It's of no consequence; it will be made up to-morrow when the gold is sold." I then saw a bag which I had not seen before, containing virgin gold. The bag contained a lesser amount than the other two. There were a great number of gold bags, pocket books, and purses. There was one in particular, a purse with a brass rim, which had to be broken open by Kelly. The purse contained a ring, which was handed to Levy, to give his opinion on it. He made some remark about its being "Schnein"--a cant word for base metal. It had a coat of arms and kangaroo on a shield. The papers were taken from the pocket books lying on the blanket, and placed in a heap on the fire and destroyed. I was in the act of putting the purses also in the fire to destroy them, but was prevented doing so, and they laughed at me for trying to do so. They were then gathered up and put into the satchel. Levy had some food left at the time, and some remark was made about not leaving it, and I was then sent by Burgess to plant or conceal the satchel and purses. [Satchel and purses produced.] This is the purse that was broken open, but it is disfigured and looks older, but it is the same. The ring was left in Levy's possession, for I saw it the next day. I took the satchel; the night was very dark and I went about twelve or fourteen yards from the angle of the chimney. The chimney was on the left hand side going to Nelson. I took the satchel farther from the road than the chimney was--some ten or twelve yards--at the foot of either a tree or stump. I scratched a hole and placed the satchel in it and covered it with decayed vegetation. I would have buried it but I had no shovel. When I came back Levy was putting out the fire, and dispersing the embers. Kelly and Burgess had, in the meantime, done up the swags again. We all then proceeded along the road with our swags; I had a swag and so had Levy. Kelly was very near sighted, and the road was very dangerous at that part. We had to come along a very high cliff, and I had to lead Kelly and keep him close to the wall of the rock. I went ahead of the other two as I had a white fly to a tent on my back as an object they might see. It took us a considerable time to get along, as a false step would have sent us over the precipice, so we travelled slowly. We then came to a refreshment house--Dwyer's, I believe. The dogs began to give an alarm so we kept wide of the house, leaving the track and making towards the river. We were probably fifty yards clear of the house--perhaps more. We then broke into the track again at the ford of the River Maitai. We travelled on slowly for about a mile and a half, more or less, when, turning sharp round the corner of the track, we came upon a very deep cutting, through which we passed, when I observed a man with a candle, which appeared to be in a bottle coming towards us along the track, and we all four turned back some forty yards before we could find a place accessible for us to clamber off the road and secrete ourselves. We clambered up and remained there about a quarter of an hour. We did not see the candle pass. I then left the others and went on to the road in a very stealthy manner, to see if I could notice anyone. I went back and told them it was a man who had gone into house there. We then proceeded along the road, leading Kelly as before. He was walking on the inside of me. In passing the house, a woman came to the door after we passed, as a small dog had begun to bark, and had alarmed her. The woman came out and spoke to the dog, and caused it to cease barking. A few yards from the house we had to cross the river. I and Kelly crossed the river, and Burgess and Levy, not seeing my white bundle as a guide for them, slipped and fell into the river, and got wet. We then proceeded on, and the road was very good all the way into Nelson. I had no difficulty in bringing on Kelly. When we got a little farther into the open valley, we all walked together abreast, and, when we were within a few miles of the town, it was suggested that the fire-arms should be discharged. Burgess' gun was discharged, but the pistols were not. Kelly fired two shots from his revolver; but only one shot was fired from Levy's revolver, as the charges in the other chambers having got wet from his falling into the river, they would not explode. I do not know how many chambers of his revolver were loaded. He tried more than once to discharge them. Kelly could not get one of his charges to go off, so he took out his penknife, and, in trying to extract the ball, broke the point of it. We then came on as far as the top end of Hardy-street, Nelson, where we all sat down. Burgess then desired each of us to go to a separate place, but cautioned us not to go to the Otago Dining Rooms, as he was going there, and no two of us were to go to one house. They undid their swags, and took three bags of gold out. Kelly took one, Levy another, and myself another. Burgess took the revolver from Levy, a pound canister of powder, an iron ramrod belonging to the other revolver, and fastened them together in a piece of black oilcloth, and put them into his rug. Kelly put his pistol and a bottle in his swag, rolled up in a flannel shirt. Kelly then said to me, "Come on, we will go ahead." Previous to that, Burgess told us all to meet at ten, a.m., on the following morning, at the wharf, where we had landed from the Wallaby. Kelly and myself went down Hardy-street, turned down Collingwood-street, went down Bridge-street, and there was an hotel there that he told me to go into and see if I could get accommodation there. I went to it, and could not be accommodated, but was recommended to go to the Mitre. I did not like to go to the Mitre; it looked too respectable; but I got accommodation there, Kelly standing outside while I was speaking to Mr. Owens inside; this was between nine and ten. I slept there, and the following morning, at about twenty minutes to eight, I came down and saw Kelly outside. He beckoned me with his hand, and I followed him down the street towards Trafalgar-street. I followed him to the corner of Trafalgar-street, when he said I wonder where Phil and Dick are, meaning Levy and Burgess. We passed down Bridge-street, and went to the Otago Dining Booms, to see if we could see him, but we could not see him. Kelly had on a new
[Image of page 35]
pair of boots bought that morning. He had not them the night before. I went back to the Mitre and promised to meet him after breakfast; I came out after breakfast, and he was still waiting; this was after nine. He asked me to come over to a draper's shop with him, as he had been purchasing some articles. I went over to Mr. Merrington's, in Bridge-street, and bought a hat. Kelly did not buy anything when I was there. Coming from there we went to the wharf, where we remained until eleven o'clock. It was the wharf mentioned as the rendezvous. Whilst there Burgess and Levy came down. When Burgess came down I did not know him, as he had different clothes on him. I noticed no other peculiarity about him at that time.
Burgess here handed a paper to the Registrar of the Court, intimating it was a request to subpoena Mr. Adams.
Sullivan continued: He asked where we were all staying. I told him I was staying at the Mitre. Kelly told him he was staying at Mr. Carter's. I had never been at Mr. Carter's. Burgess said that he and Phil were staying at a fisherman's--at the Oyster Saloon--sleeping on some nets. He made some remark that it was a rough place to stay at, but it was safer than staying at an hotel. After we had a little further conversation relevant to the matter, Burgess said to Levy, "You had better go and put that gold out, and not let the quantity remain the same in all the bags, as I want to speak to Tommy." Kelly then gave Levy a bag of gold. Levy and myself then went down the beach about fifty or sixty yards, where there was a deep cutting, or recess. We went off the road there, when Levy laid down a handkerchief, with a brown border and cream-coloured centre, into which he emptied three bags of gold--one which I had, one which he had before, and the one just given him by Kelly. The gold was mixed indiscriminately together, and then put back again into the bags. One bag contained much more than the others. None of the bags were filled, but the gold was put in quite carelessly. I then drew Levy's attention to a quantity of blood on his handkerchief. He said you had better look at your sash. I had got it back again from Kelly. He had given it back to me when he came down to the place where the horse was. I had the sash upon me, but I never looked at it. This handkerchief was then tied up with a stone, and flung into the sea. He then told me that the blood had come from the fellow whom he and Tommy had squeezed; and he then drew attention to my sash, and there was blood on it. I then asked what all the firing was about. He then related to me the manner in which they did it.
The JUDGE here said: This is a point of the evidence to which I lately referred, and I don't see any reason for altering my opinion.
Mr. PITT: I have been looking into the matter since, your Honour, and find this can be no evidence against Kelly and Burgess.
Mr. Pitt then read the following extract from "Pitt Taylor, on Evidence," page 490:-- "The declarations of a conspirator or accomplice are receivable against his fellows, only when they are in themselves acts, or where they accompany and explain acts, for which the others are responsible, but not when they are in the nature of narratives, descriptions, or subsequent confessions."
The JUDGE said that probably that was the correct reading of the law, but still it did not warrant him in rejecting the evidence. It only rendered it necessary to direct the minds of the jury especially to what its actual value against Burgess and Kelly was.
Sullivan continued: I may mention that, in coming down that night, the dangers of the road prevented any conversation on the subject. Levy then said that Burgess had "authorized them to take the four men away one at a time (as it was difficult to take them in a body), and hand them over to Charley." Charley was a supposed person. There was no such man in the party to my knowledge. He said, "I and Kelly took a man away, and we squeezed him." We came back then, and told Burgess that Charley said, "It was late, and that we should let them all go." Burgess then suggested that the men should be taken to where the others were, in the hollow of a tree, and then let them go. Burgess then told them not to be afraid if they heard a shot fired, as it was only to give notice to Charley to let the others go. They each took a man away. Levy said that he himself took a man away, and fired at him three times, and Tommy took his man. He said he had covered his man up so that they could never find him. He said nothing about the shots striking him. He afterwards said it would stun me to see the way in which they were dragged, by the scruff of the neck, up the side of the creek. After that conversation Burgess and Kelly rejoined us; we were talking at the time and they heard only the latter part of it, because Kelly smiled and said, that "they would think it was the Maoris." Burgess then inquired what banks we were going to. He said, "You had better know before you start, so as not to let two of you go to one bank." It was arranged that I should go to the Union Bank, Levy to the Bank of New Zealand, and Kelly to the Bank of New South Wales. He then told us to mark particularly, when inside the banks, how they were situated, and how many persons were inside. The bags were then distributed between us, each taking one. Kelly and I then took a 'bus; the 'bus stopped at the corner of Hardy and Trafalgar-streets. Opposite the place where we stopped, Trimble lived, and Kelly asked me to screen him from this man, who was formerly a constable, and who, Kelly said, would not sleep in his bed until he (Kelly) was apprehended, if he knew he was in town. I then showed him the way to the Bank of New South Wales, and went to the Union Bank; there I waited whilst some gentlemen transacted some business. Whilst there, I saw Levy go into the Bank of New Zealand. Soon after the persons finished their business, and I entered the Union Bank again. I was shown into a back room, and I told them I had some gold for sale. The young man cleaned it, and put it into the dish. I have omitted to state that Burgess ordered us to bring back bank receipts for the amount of gold sold. The gold I sold came to £106 7s. 6d. He asked me my name. I had seen the name of Everett over the door next the bank, so I gave that name. The clerk gave me a cheque for the amount, £106 7s. 6d.
[Image of page 36]
I took the cheque to the counter, and got four ten-pound notes, sixty-six sovereigns, a five-shilling piece, and half-a-crown, and I received a receipt stating the amount of gold, and the price given. I put the whole of the money into the chamois leather bag, which had formerly contained the gold. I came out, and went to Bridge-street. I met Kelly in Bridge-street; he had been making some more purchasers; he said so, and I saw that he had a new cap on--before he had a hat. He said, "You had better get some things," and he introduced me to the young man at Merrington's. He asked the young man there whether he would shout some sherry, if he did he would be a good customer and bring his mates. He did so. A bottle of sherry was brought and we had two glasses apiece. I purchased some things there. Levy then came along and Kelly stopped him and brought him in. Levy purchased a new hat. He inquired whether they made clothes there, and the shopman said yes, they did. Levy said he would come in again in the evening and get measured, and we had some more sherry on that occasion. We all had to meet at twelve o'clock, at the top of Bridge-street. I was looking for Burgess, but I did not know him, although I was close to him. He had on an entirely different suit from that he wore in the morning, and had shaved differently. We turned up a lane and then sat down, and I gave Burgess the money and the receipts from the various banks. Burgess looked at the receipts and said, "That's pretty correct, for I saw it in a pocket book which I found last night." We then emptied all the money on to the ground, and some boys came and looked at us, but we drove them away. They found fault with me for having brought gold instead of notes, but I said I thought it was more negociable. Burgess paid me my share in gold. I don't remember how much my share came to. I had some fifty odd sovereigns. I know that Kelly made a remark that his gold came to £76, and Levy said his share in gold was about £46. I got no notes then; my share was all in gold. After the money was divided, there was a conversation relative to the Bank of New South Wales, upon a report which Kelly brought and which he had been instructed to give. He wished Burgess to go and visit the bank, and look at the place, as there were only two men and a boy there, and a bit of a screw. He said: "It is the easiest place to rob that I have ever seen, there was no occasion to have gone so far if we had only known of that." Burgess was at a loss how to find an excuse to go there. At last he said to me, "Give me some of them sovereigns, I will buy notes for them." He told me at the same time that he had intended me to get £20 notes, that we might secrete them about our persons; then he told us that after we went to our residences, we should each of us sew a £20 note inside our flannel shirts, to have them beside us lest anything should happen to us. I gave him forty sovereigns, and then Kelly brought out some flat nuggets, four or five, and a specimen of gold with quartz in it. The quartz was knocked out from the gold, which was picked up, and Kelly said to me that I had better take the gold and sell it, and show Dick (meaning Burgess) where the Bank of New South Wales was; and he told me to avoid Trimble's house, lest Trimble should see and recognize him. We went round by a back way, and I left Burgess at the Bank of New South Wales while I went to the Bank of New Zealand. This gold was remarkable in appearance, and Kelly had told me, if any questions were put, that I should say "Jones' Creek, on the West Coast," as there was some gold like that found there. I put the gold into the scale, and when the clerk asked me where it came from, I told him "Jones' Creek." He looked hard at me, as if he did not believe me, and called another clerk. They said the gold was worth only 73s. an ounce. The other gold I sold was worth 76s. 9d. I was going to accept of the price, and they sent for the manager, as they said they did not wish to take the gold below its value. I waited for about twenty minutes; in fact I thought they had sent for the police, to tell you the truth. The manager came in, and I got 73s. per ounce. I got £5 2s. 6d. for the gold; and I met Burgess at the corner of the street, and gave him £2 11s. 6d as his and Levy's share; and I gave Kelly his. I then went along with Burgess to the same linen-drapers, and we bought some more clothes. Kelly and I passed the day together until bed-time. Next day we all walked out together, and discussed the manner and mode in which the Bank of New South Wales should be robbed, and the men in it destroyed.
Mr. HART: Did you see anything of Kelly from this time until you were arrested?
Sullivan: Yes; he was with me until I went to bed, and was waiting for me in the morning when I got up.
Mr. HART: When were you arrested?
Sullivan: On Tuesday, 19th June. I was the last of the four arrested. Levy was arrested on the Monday night; and I stood and saw Burgess arrested, and about twenty minutes after I saw Kelly arrested. I was walking up and down the street at the time.
Mr. HART: You spoke of Kelly breaking a knife with trying to take a bullet out of the pistol on the Wednesday night. What like knife was it?
Sullivan: It was a pocket-knife, tortoise-shell handle, with a large and small blade. I have never seen it since it was in Kelly's possession. He broke the large blade, and sharpened the broken part on a stone next day.
Mr. HART: Would you know the knife again?
Sullivan: Yes. [Knife produced.] That is the knife.
Mr. HART: Was anything found by you in the empty store of Jervis's?
Sullivan: The Maori who took us over in the boat introduced us into an empty store which smelled very bad, and we asked Mr. Jervis to be allowed to go into another and he agreed. In the first store we found a canister half full of pepper. We were cooking a turkey, and Burgess said he wished it stewed, and then we remembered about the pepper, and I went and fetched it. We had meat and fowls, and used the pepper. Levy had charge of the food. We threw away the canister, and Levy put up the pepper in a newspaper. I do not know what paper it was. Kelly went by three names--Thomas Noon, and Thomas Hannon, and Thomas Kelly, which he assumed in
[Image of page 37]
Otago. In New South Wales and Victoria he was known as Noon and Hannon, and had been committed there several times.
The JUDGE: You must not speak of those offences. You must only reply to questions.
Sullivan: At Hokitika he was going by the name of Kelly and Noon. Any one who knew him on the West Coast would call him Noon chiefly.
This closed the examination in chief.
The Judge then said: Now, Burgess it is your time to cross-examine the witness.
Burgess: I do not know your Honour, being inexperienced in such matters, what latitude I am allowed in putting questions to the witness. What I wish to do is merely to forward the ends of justice.
The JUDGE: The Court cannot admit that you are here as an advocate of justice. Your position is that of a prisoner on trial for a capital offence who has admitted being guilty, yet pleaded not guilty in order as it appears, to have an opportunity of accusing another, I must here inform you that you cannot state facts which do not appear in evidence. If you do so I must stop you, and you must only cross-examine on matters which are relevant to this case.
Burgess: I should wish to unfold particulars of crime.
The JUDGE: They must be connected with or relevant to the murder of Felix Mathieu.
Burgess: When did you arrive in the colonies, Sullivan?
Sullivan: The year 1840. I wish to make a statement, your Honour, in explanation.
The JUDGE: You cannot make any statement or explanation. You must answer the questions asked of you.
Burgess: Were you free or bond?
Sullivan: I arrived in Tasmania in January, 1840, as a prisoner of the Crown.
Burgess: Then you are an expiree convict of six-and-twenty years standing in the colonies?
Sullivan: I am.
Burgess: By what ship did you come out?
Sullivan: By the Canton.
Burgess: Where were you tried in England?
Sullivan: At the Central Criminal Court, Old Bailey.
Burgess: What crime did you commit?
Sullivan: Robbery from a shop.
Burgess: What sentence did you receive?
Sullivan: I can't tell. I did not hear the sentence. It was either seven or fourteen years; I think seven, because I only served seven years.
Burgess: What penal depot did you do your time at?
Sullivan: I was first at Newton, in Tasmania.
Burgess: Were you afterwards at Port Arthur?
Sullivan: Yes, in 1848.
Burgess: That was eight years after your arrival in Van Diemen's Land?
Sullivan: Yes. I was a prisoner for five years in Van Dieman's Land; and I never have been tried or charged with felony, or any other crime that could constitute felony, since I arrived, for a period of eighteen years, until I was connected with Burgess and the others.
Burgess; How came you to be sent to Port Arthur in 1848?
Sullivan: I was sent there from Victoria.
Burgess: Ah! Were you ever in the bush in Van Diemen's Land? or did you ever steal a boat while you were a Crown prisoner there?
Sullivan: No, never. I arrived in Victoria in 1845.
Burgess: Were you an escaped convict?
Sullivan: I was. I arrived as a passenger in a ship. My employer in Launceston afterwards was Mr. John Crooks, merchant. When I escaped from Tasmania, I was holding an indulgence, and, like many others, I thought I should never be missed. I was in Launceston in 1851, 1852, and 1853. I was sent to Port Arthur because I had escaped. A person to whom I used to give money informed against me, and I got only a nominal sentence because of my previous character. I got twelve months at Port Arthur. Escaped convicts were usually sent to Norfolk Island.
Burgess: When did you go to reside in Victoria permanently?
Sullivan: In September, 1853, to Sandhurst, New Bendigo. I was a storekeeper there. I went to Wedderburn in 1854, and never was away from it a week until I got acquainted with you at Hokitika.
Burgess: Did you know Detective O'Neill?
Sullivan: No, I did not.
Burgess: Were you ever stuck up by bushrangers?
Sullivan: Yes, once. I knew one of them. Two of them have been executed since, and one is doing penal servitude. I do not know his name. They stopped about thirty men that day. I reported this sticking-up to the Inspector of Police.
Burgess: Had you another motive in reporting this. Were you afraid lest others, seeing you there, would think you an accomplice?
Sullivan: No. Why should I? Some others were taken as early as 8 in the morning, and my trap was stopped on the road at 2. I reported for the furtherance of justice. One of the police got shot. I don't know the name of one of the men as Gipsy Smith. He went by the name of Turner when he kept a store at Sandhurst.
Burgess: Were you ever caricatured at Wedderburn as in the act of choking two men, one in each hand, and your wife rifling their pockets?
Sullivan: No, never, I never saw such a thing. (To the Judge:) I wish your Honour would ask him not to speak about my wife's name; I cannot go on if he does. [Here he stooped his head, and leaned over the box.]
The JUDGE: I cannot stop him. You need not answer questions unless you please.
Sullivan (in a subdued tone): I shall endeavour to answer all he asks.
Burgess: Were you suspected of horsestealing at Wedderburn before leaving for the West Coast?
The JUDGE here interposed, and pointed out that the witness need not answer the question, and that these questions had nothing whatever to do with the case of the murder. If a question was put to damage the former character of the witness, and even if he answered wrongly, Burgess was not entitled to prove that it was wrong, unless by proof of conviction, but he must accept the answer.
Sullivan: I'll answer him, your Honour. I never was suspected of horsestealing.
[Image of page 38]
Burgess: What female was that you had at Hokitika?
Sullivan: None.
Burgess: Do you know Walker, landlord of the Hope and Anchor Hotel, at Hokitika?
Sullivan: I do.
Burgess: Did you owe him any money?
Sullivan: I did; two weeks board while waiting for you, when you were in the lock-up.
Burgess: How did you become acquainted with me?
Sullivan: You became acquainted with me rather--I was in Hokitika, and I brought with me a considerable sum of money, what I call a considerable sum, and began to go to the theatre and to a hotel, and I used to see you and Kelly in the theatre with women, and we used to meet, but did not speak. On 27th April, Levy stopped me in the street, and took me to a man named Soloman, near the Jockey Club Saloon, and then Levy introduced me to you and Kelly as men who wished to sell shares in the Kanieri claims. I quarreled with a man who attempted to rob me of half a sovereign, and gave him in charge. I did not prosecute.
Burgess: Why did you not prosecute him?
Sullivan: Because you and Kelly got me away in a boat to the South Spit.
Burgess: Did you go on Sunday to rob Mr. Parr, at the Ahaura river?
Sullivan: No.
Burgess: Did you go to rob Mr. Kerr, the banker, at Ross?
Sullivan: Yes, I went with you and Levy.
Burgess: Why did you lend yourself so readily to rob these people?
Sullivan: Because I was under your influence, and in your power, and that of one of the constables.
The JUDGE: How could a constable's influence induce you to lend yourself to crime?
Sullivan: Because on the previous night, when Burgess and Kelly and Levy took me away to the South Spit to prevent me from appearing against the man who stole from me, I came home the worse for liquor. Burgess afterward, went to a house in a back street and left me, and then they went from that house and robbed a store. I was called out and given £5, as proceeds of the robbery. They stole a cash-box with £20 in it, they told me, and I saw Burgess burn a Bank of New South Wales cheque for £200.
Burgess: Were you a witness in my behalf when I was charged with the Camp robbery?
Sullivan: I was.
Burgess: State the evidence you gave on that occasion.
The JUDGE: I do not think this is relevant.
Burgess: It is a matter of direct perjury, your Honour.
The JUDGE: Then the witness is not bound to answer.
Burgess: Did you perjure yourself?
The JUDGE: You need not answer that question.
Sullivan: I refuse to answer.
Burgess: Did you swear that I was in your company when the man Chamberlain found and gave to me some revolver cases?
Sullivan: Yes, I did.
Burgess: Was it the truth?
Sullivan: I refuse to answer.
Burgess: Did you charge this same Chamberlain with this robbery of the Camp?
Sullivan: No.
Burgess: You went with me to the Grey?
Sullivan: Yes, and stopped at the Provincial Hotel, and stopped till the following morning. I came away with Kelly at six o'clock, before daylight, in the morning.
Burgess: Did you go with me to rob Mr. Wilkie while at the Grey, on the Sunday afternoon?
Sullivan: I did.
Burgess: When did you murder Mr. Dobson?
The JUDGE: You need not answer that question.
Sullivan: I'll answer him, your Honour. I saw Mr. Dobson lying dead in the bush. His body was shown me by two men.
Burgess: Was the man Wilson, at Hokitika, one of the two men?
Sullivan: Yes, he went by the name of Murray.
The JUDGE: I can see the drift of these question to be apart from the case altogether; I can't see how they can be relevant to the murder of Mathieu.
Burgess: It bears a great deal, because I was privy to the murder of Dobson; and this man Wilson was with me at the Grey, and Sullivan has since charged him with the murder. [To Sullivan.] How far was the place you saw the body of Dobson, from Greymouth?
Sullivan: About seven miles.
The JUDGE: Have you charged Wilson with the murder of Dobson?
Sullivan: I have not charged him. I gave information relative to the murder of Dobson, against a man named Wilson or Murray. He was one of the men who showed me the dead body of Mr. Dobson.
Burgess: Do you say why Wilson stopped with me at Greymouth?
The JUDGE stopped this question as irrelevant.
Burgess: Did you go with me on purpose to murder Mr. Fox, the gold-buyer, at the Grey?
Sullivan: Yes.
Burgess: Did you carry the firearms?
Sullivan: No; Wilson took them. They were always taken to a Jew's house at night, until he refused to have them any longer. I took the arms on board the Wallaby.
Burgess: Have you given information against the man who kept the arms for you?
Sullivan: No; I left the arms at a public-house, kept by Cross.
Burgess: Did you give information against Mr. De Lacey?
The JUDGE objected to this question, and ruled that it could not be put.
Burgess: Did De Lacey see you on the road the day that you murdered Mr. Dobson?
THE JUDGE: He has told you he did not murder Mr. Dobson, and you cannot put the question thus.
Burgess: Well, the day you saw the murdered body of Dobson?
Sullivan: Not that day, but the day before.
Burgess: Is he a witness against you for the murder of Dobson?
Sullivan: No, I think he is more like a criminal
[Image of page 39]
than a witness.
The JUDGE: He cannot he a witness against him, Sullivan is not charged with that murder.
Burgess: But, your Honour, there is a Proclamation out giving his description.
The JUDGE: It has never been before the Court.
Burgess: Did you propose that as there was probably gold on board the steamer Wallaby, that we should seize the ship?
Sullivan: Never; such a thought never entered my mind.
Burgess: Who took the large knife from on board the Wallaby?
Sullivan: I saw Levy take it. [Handle of knife produced and identified by witness.]
Burgess: Did you tell Jervis that yun had been three months prospecting at the Buller?
Sullivan: Yes.
Burgess: Why did you tell that falsehood?
Sullivan: Because you and the others instructed me to do so.
Burgess: Then you willingly lent yourself to practise this deceit?
Sullivan: I have said that already.
Burgess: Did you grind the knives?
Sullivan: I helped to grind them, which, I can't say; I ground one and you ground the other.
Burgess: Did you anticipate robbing these unfortunate storekeepers from Deep Creek?
Sullivan: I anticipated that I should assist to do so with you and others.
Burgess: Did you get your person wet crossing the Wakamarina?
Sullivan: One would have required to have lain down to get the body wet.
Burgess: Why did you murder that poor unfortunate man, Mr. Battle?
The JUDGE, to Sullivan: Don't answer the question.
Sullivan: Yes, your Honour, I'll answer it. I did not murder him, neither did I see him murdered. I was told he was murdered, and I know about the spot where he was taken.
The JUDGE: The Court cannot allow this to go on. It is most irregular, and has nothing to do with this case. You need not answer.
Sullivan: Well, your Honour, I won't answer.
The Judge cautioned Burgess to limit the scope of his questions, which were beyond the limits of the loosest cross-examination.
Burgess: You said I loaded the guns on Monday night, at Canvas Town?
Sullivan: Yes; so you did. I saw you load them and the pistols, too, and cut the bullets. You put a bag on one window, and Levy's macintosh on the other, so that nobody should see what we were doing. We staid up later than the storekeeper that night.
Burgess: Why were you not allowed to go into the bush with those four unfortunate men whom we took up the creek?
Sullivan: I can't tell you; you would not allow me to go.
Burgess: Were you privy to any arrangements of ours the previous night?
Sullivan: No.
Burgess: Were you considered as our equal?
Sullivan: I don't know, not altogether; I was in some things, but I was rather your slave.
Burgess: Were you in our confidence?
Sullivan: Not altogether; I was not allowed to know much, but was kept in the dark about some things.
Burgess: Why did you not stop Möller?
Sullivan: I did not stop him for fear he should be destroyed like the others, and like the old man?
Burgess: Then you were privy to their murder were you?
Sullivan: I knew Battle was killed.
Burgess: Why did you hide the shirt?
Sullivan: Because I wanted to know where I had hid the gun, that I might discover it at another opportunity.
Burgess: How was it you were deputed to hide the satchel at the chimney?
Sullivan: Because you and Kelly were employed packing up your bundles, and Levy was putting out the fire.
Burgess: What gold did you give to Miss Owens?
Sullivan: A small speck, about two grains, that I found in my pocket. I believe I may have told Mr. Owens that I was one of a party who got 700 ounces at the West Coast. There was a good deal of talk going on, and I may have said 7,000 ounces.
Burgess: Did you say to Owens that you were down at the wharf on the Wednesday morning before we came into town?
Sullivan: On Thursday morning, at breakfast time, Owens said he knew my features, and he asked me if he had not seen me the previous morning, drinking at the Port; and I led him to believe that he had. I did not tell you on Saturday, 16th June, that Owens had sent a telegram. I did not see you that night. I heard that said, but not on Saturday night.
Burgess: Did we not assemble together frequently?
Sullivan: Only one night.
Burgess: Our rendezvous was Edwards's store?
Sullivan: Yes. We met there on Friday, 15th. and you quarreled with Kelly, and insulted me; and from, that minute I intended never to meet you again at night, and that was my reason why we did not meet till Tuesday. I was in Potter's, the Coach and Horses, on Monday. The subject of the present trial was spoken of. Mr. Potter did not on any occasion point to me, and jocularly say, "There is the murderer." He never said anything of the sort to me.
Burgess: Did you steal a macintosh from Mr. Merrington's shop?
Sullivan: No, certainly not. I don't know if I told Chesterman that I had gold to sell in Nelson in preference to selling it on the West Coast. I did not walk on the beach with you on the Tuesday after Levy was arrested. I saw you that day in the morning in the yard of the Oyster Saloon. I hired a saddle horse for you at Newton's, and we rode out together. We stopped at the turnpike gate to pay the toll. A female made some remark relative to the missing men. She said the police had gone up the country after some men who were suspected.
Burgess: Did you tell her that one ruffian was in custody?
[Image of page 40]
Sullivan: No; I never used the word. I got off at the Turf, and I took the horse Burgess was riding, which was Potter's horse.
Burgess: Did you tell me Owens suspected you?
Sullivan: No; the very reverse. You wanted me to run away with you, and take the horses. Owens asked me to ride up to the Maungatapu, and search for the men. You told me and Kelly to draw the £50 each which we had deposited with Owens. It was after Friday I withdrew the money by your desire. I saw you at the Oyster Saloon. You told me you were afraid to stop there any longer, as you were afraid you would get "pulled," as "Phil" was "pinched" over night. You then told me that we should go up the country, and you would not go to Disher's, but went to a by hotel and put the horses up. I saw you at Collingwood bridge, but I did not see you shake hands with Kelly. On Tuesday forenoon, Murphy, the constable, came to me, and told me to go into the Oyster Saloon, and tell the owner that he thought one of the suspected men was in his house, but I did not go.
Burgess: Did you ask for legal advice when you were arraigned?
The JUDGE: What will this prove?
Burgess: His conduct, your Honour. He said he was prepared to confess at the first opportunity, yet he asked for legal advice and pencil and paper, and took notes before the Magistrate, and handed the paper to me past the two other men, and yet he says he was prepared to do anything against us.
Sullivan: I'll explain, your Honour; while we were in the lock-up, it was suggested that one of us should conduct the case for all of us, and the lot fell on me; but I would not have it, and threw the onus on Burgess, as I would not give up the £20 I had hid about me, and which I kept for another purpose. Burgess gave up his £20 note, and when Mr. Pitt came he went to Burgess. I was waiting for an opportunity to give information.
Burgess: Why did you not give information when you first came into town?
Sullivan: Because I was in danger.
Burgess: Oh! How far were you residing from the police station?
Sullivan: I was not in danger of being knocked down, but there was a danger of not furthering the ends of justice by giving information too early.
Burgess: If you had not been arrested, you would not have given the information?
Sullivan: Yes, I should.
Burgess: Did you tell the place where the body of Battle was to be found?
Sullivan: I did not; I stated the locality.
Burgess (to the Judge): I do not think I shall ask any more questions of this man; in our phrase, your Honour, he knows too much for me.
The JUDGE: You had better consider well before you determine, as, if you close your cross-examination to-night, I shall not allow you to re-open it tomorrow.
Burgess: I find his answers are not satisfactory. (To Sullivan): Did you tell where the bodies of the four men were to be found?
Sullivan: I did not; I told that they were taken up the creek.
Burgess: Did you tell that the shirt you hid was bloody?
Sullivan: No. I never knew it was bloody, and I knew that there was no blood on it when I left it.
Burgess: Did you tell where the bottle of strychnine and the pistol were to be found?
Sullivan: No. I could not state it exactly. I went with the chief of the police to the neighbourhood, but could not find them.
Burgess: You say I had a pistol in my breast when Birrell passed the rock?
Sullivan: Yes. You had one, and Levy another. Birrell passed about half past twelve or one o'clock.
Burgess: Have you not said to-day, that I gave Kelly a pistol after the men with the cattle passed?
Sullivan: We did not get arms at all at first. You merely put us through our "drill," as you called it. After Birrell passed, the woman and man came on from Nelson. They came past a considerable time after Birrell had gone by. I suppose Birrell must have been two miles on the road when they passed.
Burgess, to the Judge: I shall not detain your Honour any longer with farther questions.
The JUDGE: Do not speak about detention. If you wish to go on, we shall continue for hours, if necessary.
Burgess: I see that the questions I should have to put will not elicit to me information, and therefore I shall ask no more.
The Court was then adjourned exactly at six o'clock, until nine next day, Sullivan having been under examination for eight hours and a-half.
THIRD DAY.
FRIDAY, SEPTEMBER 14.
The Court assembled this morning at nine o'clock, and Sullivan was again placed in the box.
The prisoner Kelly proceeded to cross-examine Sullivan.
Kelly: Is all you have stated at this trial true? Sullivan: Yes.
Kelly: Are you positive of that?
Sullivan: Yes; as far as I can recollect, I have stated nothing but the truth.
Kelly: is what you said against me true about assisting in bailing up Mathieu?
Sullivan: All I stated is true.
Kelly: How long is it since you first met me?
Sullivan: On the 27th of April last.
Kelly: Did you not know me in London?
Sullivan: Never.
Kelly: Were you not in the same school as me in London as a boy?
Sullivan: Never.
The JUDGE: At what school were you taught?
Sullivan: Partly in Ireland, your Honour; I have not been at school since 1827.
Kelly: What did you make your confession for?
Sullivan: To endeavour to bring you to justice, and convict you if possible.
Kelly: What other motive had you?
Sullivan: None.
The JUDGE: Now, Sullivan, just reflect a little. Had you no other motive than this, no personal motive?
Sullivan: I had no other motive except to bring
[Image of page 41]
before the Court all the facts connected with these murders, and robberies, and other crimes.
The JUDGE: Had you no other inducement in the shape of pardon or reward?
Sullivan: No; I had no inducement of any kind.
Kelly: How long were you in the lock-up before making your confession?
Sullivan: Eight days.
Kelly: Why did you delay it so long?
Sullivan: I was waiting to see what witnesses would be produced on the part of the Crown, to assist me in laying the information.
Kelly: Just so. Was it before or after the bill offering a reward was placed outside of your cell?
Sullivan: I could not read the bill from my cell. I first saw the bill on the 27th of June.
Kelly: Had you, or had you not, read that bill before making your confession?
Sullivan: No. Burgess read it; but before he read it, I had sent for the Chief of the Police.
Here, at the request of Kelly, Mr. Shallcrass, the chief constable, left the Court.
Sullivan: I told the Sergeant of Police that I wished to see the Chief. I repeatedly asked for him; but we had been refractory, and gave trouble, and he did not come.
Kelly: How much reward was offered for finding the bodies of the murdered men?
Sullivan: Burgess read £400, but it stated that the reward would only be given to those who had no participation in the murders, and no person connected with the gang could claim it.
Kelly: Did you expect any of that reward?
Sullivan: Certainly not; the very words of the bill prevented me from thinking that.
Kelly: I only want an answer, not a statement.
Sullivan: Well, certainly not.
Kelly: How long were you in the lock-up before you heard of the Search Party having been sent out to look for the murdered men?
Sullivan: There was a Search Party being formed the day we were apprehended; we know that.
Kelly: What property did you hear was found belonging to the case, before you made your confession?
Sullivan: None at all. I never saw anything produced in Court, and did not hear of anything being found.
Kelly: Will you swear that you did not tell me, in the lock-up, that some property had been found?
Sullivan: I do swear it. Neither you nor anyone else told me so. We were in separate cells, and if anyone had told you, or any of the others, anything in an ordinary voice, I should have heard it, and so must all the others.
Kelly: Did you believe, before you made your confession, that the missing bodies would soon be found?
Sullivan: I did not believe they would soon be found. You said that they would never be found, because the place was too inaccessible to get to them.
Kelly: What did you say when you were arrested, and charged with murder?
Sullivan: I said that it was a novel charge. I was sitting down waiting to be arrested, your Honour. I could have escaped if I had wished, for I had plenty of time. I saw an advertisement long before, and I know a constable had been sent for me, and I waited until he came.
Kelly: Did you say it was a novel charge, and that you would not go away until you had something to drink?
Sullivan: I was taking some hot wine at the time, and waiting to be taken.
Kelly: Why did you not make your confession, when you were apprehended?
Sullivan: because that would have been a very dangerous course. I should have been placed in a false position by so doing.
Kelly: What other motive?
Sullivan: None; except for that--I should have given you all in charge at first, and myself too.
Kelly: Did you believe, before you made your confession, that Burgess would make one before you?
Sullivan: No; certainly not. I never heard he would confess. You said quite different from that. You advised us all to keep quiet, and hold our tongues, and nothing would be proved against us. You said, too, that that was the way you and your brother were acquitted in Victoria, in the case of the murder of Mr. Markis, and that you and your brother kept a quiet tongue, and got off, and the other man was executed. Markis was a person who was shot on the gold-fields in Victoria, in 1852.
Kelly: Why did you leave five of your fellow-creatures on the top of a high mountain, exposed to the hail and the rain, the frost and the sunshine, and exposed to the fowls of the air and the beasts of the field--to the wild pigs and the rats, with which many parts of the jungle of New Zealand are infested, and thus allow their bodies to be exposed for so long a time, before you made your confession?
Sullivan: Because it was not safe to confess at once, as I have told you; and, as for the bodies, the mischief hod been done, and they were dead.
Kelly: Why did you not make your confession before the witnesses swore to your being seen on the road between here and Canvas Town?
Sullivan: I was waiting to see whether or not the Government could get sufficient evidence to establish the case, and then I gave the necessary information to get all the witnesses together, to connect the case.
Kelly: Was it because you wished to see if any witnesses would swear to me?
Sullivan: No, we had all been sworn to, the whole of us, before I gave information.
Kelly: Was it because you wished to hear the witnesses first, that, you waited so long?
Sullivan: No, I knew we should all be sworn to. I was told, before you were apprehended, by a sailor who came up with us in the Wallaby, that he knew us all. He came to me at the hotel about eleven o'clock on the Tuesday morning, and said that he had seen Levy in the lock up, and knew him, and that he knew all of us.
Kelly: When Mr. Moorhouse, the Superintendent of Canterbury, came to look at you in the lock-up, why did you tell him that you knew nothing of these men?
Sullivan: I never saw him to my knowledge, Various gentlemen visited us in the prison, looked into the cell, and went out again.
[Image of page 42]
Kelly: Did you not abuse him when he came to look at you, and ask him who the h--l he was, that he should look at you?
Sullivan: No.
Kelly: What did you say to Mr. Jervis, when he came to see you in the cell, telling you at the same time how that he wished he had poisoned you?
Sullivan: Mr. Jervis said, "Well, Sullivan, how are you?" I said, "Thank you, Mr. Jervis, I am quite well; I am better." He said, "I wish the dose I gave you had poisoned you;" meaning some brandy and cayenne he gave me for dysentery, your Honour.
Kelly: Did you say, when Jervis left the cell-door, that your wife had given you what would poison all the Jervises and Owens in New Zealand?
Sullivan: No, never.
Kelly: How often were you spoken to about the missing men?
Sullivan: On Tuesday morning, the 19th of June, only once. Owens asked me to accompany him in search of them.
Kelly: On Sunday previous to that, when you were driven out by Potter, was not something said about the affair at that time?
Sullivan: I never heard a word about it. No action had then been taken about it by the public; the thing was not known.
Kelly: Are you aware that Mr. Potter is a witness in this case?
Sullivan: I am.
Kelly: Did you say, on the Sunday, to Mr. Potter, "George, these Nelsonians make a deal of fuss about missing men. If they were in Victoria, they would hear talk of missing men every week?"
Sullivan: No, I never said such a thing.
Kelly: Will you swear that when Mr. Potter drove you out in a break, a gentleman did not come out of a house and ask Potter whether anything had been heard of the missing men, and that Mr. Potter did not say, that every house ought to turn some one out to search for them?
Sullivan: I will swear that that did not happen on Sunday. You told me that a conversation similar to that had taken place on Tuesday, when riding out, but I was not with you at the time.
Kelly: Were not the missing men being talked about at every house we stopped at on the road, especially where we stayed to dinner?
Sullivan: No. I never heard anything whatever said about them.
The JUDGE, after considering whether such an examination was relevant to the case, admitted the answer as being evidence which tended to test the motive of Sullivan's confession.
The JUDGE; Where did you dine on Sunday?
Sullivan: At the Bridge Inn, Waimea East.
The JUDGE: Did any conversation about the missing men take place whilst there?
Sullivan: I never heard anything whatever about them then.
Kelly: Or at the other places at which we stayed to take refreshments?
Sullivan: I said before that I did not hear the circumstance mentioned anywhere.
Kelly; When you made your confession, had you any of the deceased men's property in your mouth?
Sullivan: I know what you mean. I had a £20 note concealed in my mouth whilst in the lock-up, but not when I was making my statement to Mr. Shallcrass. I took it out and gave it to Mr. Shallcrass when I went to make my statement. Burgess had a £20 note too. All except Levy had. I kept mine in my mouth whilst in the lock-up.
Kelly: Your Honour, does he admit having it in his mouth?
The JUDGE: Yes. [His Honour here read the evidence just adduced.]
Kelly: Did you not give the £20 note to Mr. Shallcrass after you had gone to the gaol?
Sullivan: No, certainly not.
Kelly: How many letters have you written from New Zealand to Victoria, since landing in this colony?
Sullivan: I wrote one whilst in Hokitika, to my wife in Victoria, and one again to her on the 26th of May, whilst in Greymouth. I wrote another to her whilst at Mrs. Sharp's boarding-house, on the 6th June. I wrote another [here the witness referred to some written notes] on the 27th June, from the gaol, and I also wrote a letter to some Magistrates, at Wedderburn. I also wrote some letters to the heads of the police departments in other districts.
The JUDGE: Was that since you were in gaol?
Sullivan: Yes, your Honour, and I have written another letter since. Those are all the letters I have written since I have been in the colony, except to the police officers in Nelson,
Kelly: Were you ever taken before any of the Magistrates in Wedderburn to whom you wrote?
Sullivan: Yes, I was.
Kelly: Is that the way you became acquainted with them?
Sullivan: Yes, I believe so. I was tried for an assault case.
Kelly: What did you believe about the bodies of the missing men being discovered, previous to your arrest?
Sullivan: I felt confident that they would be found; but you (Kelly) did not. You said they never would be found; the place was too inaccessible.
Kelly: Have you not stated before, this morning, that you did not believe that they would be found?
Sullivan: No; I never said such a thing.
The JUDGE: Yes you did [His Honour read from his notes. Mr. Hart corrected him, by saying that Sullivan had said that he did not believe the bodies would soon be found. His Honour remarked that it showed how necessary it was for the Counsel for the prosecution to take most accurate notes].
Sullivan: I always believed the bodies would be found some time or another.
Kelly: What did you believe about your wife, before making your confession?
The JUDGE: That question is far too vague. You must put it in some other form.
Kelly: Have you ever thought about your wife, since you have been in New Zealand?
Sullivan: Yes; ever since I have seen yon; and I have been nervous about her.
Kelly: What did you believe about yourself, be-
[Image of page 43]
fore jour arrest?
Sullivan: That I was a very bad man for knowing you.
The JUDGE: Such questions are too vague.
Sullivan: I do not mind answering it, your Honour.
Kelly: Did you not sleep in a garden, on the 13th June, some distance from Mr. Owens' Hotel, for fear of arrest?
Sullivan: I slept, on the night of the 13th June, in Mr. Owens' Hotel, in a room with a butcher. The room was a double-bedded one.
Kelly: Did I not tell you, on the following day, that Owens and I had something to drink whilst you were giving your coat, boots, and drawers to the ostler?
The JUDGE remarked, that it was an easily intelligible rule, that facts which were not proved were not to be assumed, and the question must first be put as follows: Did you give your boots and pea-jacket and pair of drawers to the ostler on Thursday, June 14th?
Sullivan: Yes, I did, your Honour?
Kelly: After that, did I tell you that I had something to drink with Owens, and, whilst doing so, saw a constable take the things you had given to the ostler to the lock-up?
Sullivan: This is the first time I have heard of it.
Kelly: Did you ever take me up to your bedroom, and show me that there were two beds in it?
Sullivan: I did; but you came up for another purpose, and brought a macintosh coat with you.
Kelly: Did you tell Mr. Owens you had asked me to leave the Lord Nelson, and asked me to come and stop with you at the Mitre Hotel?
Sullivan: Yes, I did; and Mr. Owens gave me the double-bedded room on purpose.
Kelly: Did you wish that subpoenas should be served on any of the witnesses for the prosecution in this case?
Sullivan: Yes, certainly. I understand that some of the witnesses have been subpoenaed from Hokitika, at my suggestion.
Kelly: Did you have a pair of cloth trowsers washed on the 14th June?
Sullivan: Yes, I had.
Kelly: Did you wish to have the woman who washed them, subpoenaed?
Sullivan: No; it was not relative to the ease.
Kelly: Whilst in town, did you not ride, and play cards and skittles, and enjoy yourself?
Sullivan: Yes; on the Sunday I drove out with Mr. Potter. On Tuesday, I rode out with you, and gambled with you, and enjoyed myself, drinking sherry with you, and in the evenings I used to play cards with Mr. Owens, or anyone else, for drinks.
Kelly: Is the statement you made yesterday and to-day as true as the statement you made before?
The JUDGE: I must put the question thus--Have you made a statement before?
Sullivan: Yes, your Honour. I made one detailed statement connecting the men; this is now ten weeks ago; it consisted of thirty-two folios, and was sent to his Honour the Superintendent. I have written no other statements except those to the heads of the police in other districts.
Kelly: Do you know whether any of your letters had been intercepted before your arrest?
Sullivan: I am not aware that such has been the case.
Kelly: If the letter which you say you wrote at the Grey to your wife has been intercepted and opened, will it not prove that part of your statement respecting me is false. Did you not tell your wife that you had got plenty of money from me?
Sullivan: Yes I did, and you read the letter afterwards. It was written at your dictation.
The JUDGE: Was the letter to your wife dictated by him?
Sullivan: Yes your Honour.
Kelly: Will you not swear to anything you like?
Sullivan: I shall swear to the truth and nothing else.
Kelly: How many witnesses did swear to you before you confessed?
Sullivan: If I had the list I could tell you; I do not know.
The JUDGE: When were you first examined before the Magistrate?
Sullivan: I was examined on the 26th, and made my statement on the 28th.
The JUDGE: When were you examined as a witness before the Magistrate?
Sullivan: On the 2nd of August.
The JUDGE then said, the depositions taken at the examinations will enable you (Kelly) to ascertain the number of witnesses who were sworn before this witness.
Kelly: Did you hear the whole of the witnesses examined throughout the examination?
Sullivan: I don't know whether I heard them all, but I heard a great many.
Kelly: Will you tell the Court what part of the whole of the property connected with the deceased men had been shown you, before you were placed in the witness box?
Sullivan: I was describing to the Sergeant-Major of Police a strap, and in doing so I was asked whether I could recognize it, and it was shown to me, that was all.
The JUDGE: Were no articles produced at the examination?
Sullivan: Not until I became a witness. I was describing the strap: that was the only article shown to me since I was arrested, up to the time I was put into the witness-box. When I was examined before the Court, I saw the various things, and I saw money that had been taken from our persons, but not that which had belonged to the deceased persons.
Kelly: How many days were you in gaol before your irons were knocked off, to the best of your recollection?
Sullivan: About fourteen days or perhaps loss.
Kelly: Have you been furnished in gaol with rice, sugar, and toast?
Sullivan: I was furnished with rice by the order of the medical officer.
Kelly: Have you been furnished with the depositions taken in the Magistrate's Court?
Sullivan: No, I have not.
Kelly: Did I sell £116 worth of gold in Hokitika after you landed there?
[Image of page 44]
Sullivan: Not that I know of. I never saw you with a bit of gold after I met you.
Kelly: Did you never go with me to a jeweller, at Hokitika, and see me buy some jewellery there?
Sullivan: Never. I know what he means, your Honour. The jewellery he refers to was pawned before I came to the colony, and the pawn-tickets were found on Kelly's person when he was arrested.
The JUDGE: I shall consider whether this evidence is irrelevant or not. If, Kelly, you wish to obtain this evidence, in order to disprove any statement with reference to your having no money before you went to the Grey, I shall allow it to be taken.
Kelly: Did you never go with me to a jeweller's, at Hokitika, when I was getting a piece of greenstone worked up?
Sullivan: I never was inside a jeweller's shop, in Hokitika, at all.
Kelly: Were you warned not to criminate yourself before you made your confession?
Sullivan: No, I never was.
Kelly: How many persons have visited you since you have been in the gaol?
Sullivan: Only the Visiting Justice, the Superintendent, a mercantile man from Victoria, and a young man who came over in the same ship from Victoria with me, and the medical man.
Kelly: Before you made your statement, did you hear Mr. Pitt cross-examine Mr. Jervis?
The JUDGE: Was Mr. Pitt counsel for the prisoners then?
Sullivan: Yes, your Honour, he was on that occasion, and attempted to show animosity on the part of Mr. Jervis. I heard the examination.
Kelly: What question did you ask Mr. Owens?
Sullivan: You instructed me to ask Mr. Owens whether or not he had sent a telegram to the West Coast, after four Germans who had gone to the West Coast, and who were supposed to have committed the murders. Kelly told me that Owens had said so on the Monday.
Kelly: Did you, before you made your confession, believe that I could not prove an alibi?
Sullivan: I was positive you could not do so, as you were never out of my sight.
Kelly: I wish to ask a few more questions, your Honour, but I do not know whether you will permit them.
The JUDGE: If you put them, I will tell you.
Kelly:. Did you not deceive the Magistrate and Court at Hokitika, when giving evidence in the case of the Hokitika Camp robbery?
The JUDGE: Do you object to answer that question, Sullivan?
Sullivan: No. your Honour. I made a statement which was not true to the Magistrate. I made a false statement under coercion of the other prisoners, respecting the theft of camp firearms and policeman's clothes, and with respect to the man Chamberlain finding the arms.
The JUDGE: Have you any more questions to ask?
Kelly: No more.
Cross-examined by Mr. PITT: Do you suffer from any complaint, Sullivan?
Sullivan: Yes, Prom rheumatism.
Mr. PITT: Anything else?
Sullivan: Not at present.
Mr. PITT: Anything the matter with your head?
Sullivan: Anything the matter with my head? No; only sick headache occasionally.
Mr. PITT: What from?
Sullivan: Biliousness.
Mr. PITT: Does it not arise from colds in the head?
Sullivan: No.
Mr. PITT: What did you tell Mr. Vickerman it arose from?
Sullivan: I don't know. I have been subject to rheumatism and biliousness for about ten years, ever since I was in Wedderburn. It certainly was not brought on by exposure to sea-water during a voyage from Tasmania to Victoria, for I was a saloon passenger then.
Mr. PITT: When did you meet Levy first?
Sullivan: At Hokitika, on the 27th April last.
Mr. PITT: What do you mean by saying that Levy was fourteen days at the Grey before you came over?
Sullivan: It was arranged that he should go over there first and wait for our arrival.
Mr. PITT: Had you seen him before this was arranged?
Sullivan: Yes.
In answer to questions from Mr. Pitt, Sullivan said: In going from the Grey to the Buller I slept on deck, and from the Buller to Nelson I slept down below as it rained in torrents. I slept one night on deck. I had a blanket to cover me all the passage up, but I had not Levy's oppossum rug. He had two blankets, I believe. There were two oppossum rugs, but I know neither belonged to Levy. I never used one on the voyage up. Kelly and Burgess brought them on shore. I brought only a bundle on shore. Levy brought nothing on shore; he came in the saloon and acted the gentleman.
Mr. PITT: Who signed the letter to Captain Palmer, of the Wallaby?
Sullivan: Burgess did so, in a fictitious name.
In answer to farther cross-examination by Mr. PITT,
Sullivan said: I can't tell the balance of our fare from the Buller to Nelson, nor who paid it. I was told it was a pound each for the fore-cabin. I saw a good deal of Levy on board the steamer; he played cards nearly all day in the saloon. I don't know where the revolvers came from: I know one came. Levy did not go on board the Wallaby again after arriving in Nelson, unless he went out during the night, because he never left us. We slept at the Rock the first night on our way to Canvas Town. The next place we camped at was at the Pelorus Bridge, within forty or fifty yards of Cooper's house, where the turkey was stolen. My head was not ill there. I never was better. Levy purchased provisions from Mrs Cooper, some bread a couple of ducks, two pidgeons, and a pint of milk. He had no money to spare for grog. Levy brought a paper from Mathieu's house, to show an advertisement about the Bank at Picton. We paid 2s., or 6d. each to a Maori at Wakamarina; I don't know who paid it. When Levy came back from Deep Creek he said he had lost 15s, and that he had no money. He said, "Boys, I'm
[Image of page 45]
stumped up" Levy said he saw the long-tailed ones--the big notes--at Mathieu's. When we divided the money at the chimney, I do not know if here were any big notes among the money. I got only one-pound notes. Burgess suggested that we should go back on the road and intercept those men, and Levy assented to it. He said that there was a certainty about it. Levy did not say there was a new rush at Deep Creek; he said it was a miserable hole. When I and Burgess went out to grind the knives, Levy lay down on the bed. All the money we had was 5s. 6d. When we took the pepper from the empty store, I did not take a book, but I saw a book. I saw Kelly bring the book. It was a small book. It was an English grammar--complete letter writer, with a grammar prefixed. I was lying down with dysentery at the time. The pepper was used for cooking, for their meals. I never used it; it did not agree with me. We had only two meals a day; we could not afford three. They were fond of pepper. I had never crossed the Wakamarina before we crossed it in the canoe on the Saturday, because we could not cross it. The river was swollen. Had we tried to swim it we should have been carried away. When we stopped at the rock on the Wednesday, there was no wind; it was a fine day. The tomahawk used there to clear the bush was brought by Kelly from the West Coast. The vegetation where the swags were concealed was about two feet high. The swags were concealed by the hush, and any man could hide himself behind a tree, and not be seen by anyone passing. This ambuscade was formed to intercept the men. One was placed behind the rock, and one on the other side of the road, and two were stationed at the creek lower down. When Mr. Bown came past on the chestnut horse, I was a good way up the hill, higher up than the rock. I could not be seen from the road. I could not say how long elapsed from the time our preparations were made until Mr. Birrell passed. We sat a long time smoking, making idle talk, and walking about. It took us about half an hour to make our preparations. I judge about the time by the appearance of the day. It was about twelve to half-past twelve when Birrell passed. Livingstone and Fulton passed after Birrell; I could not say how long after. It was only a very short time after this that the four men passed. It was long after noon when Möller passed; I should say an hour or more after the man and woman passed.
Mr. PITT. You asked Burgess to allow you to go into the bush with the four men; why did you do so?
Sullivan: Because I should have freed one of the men by undoing the strap as we went into the bush, then shot Burgess, and then the other two I should have taken, because they are cowards without Burgess. I am on equal terms if armed.
Mr. PITT: What is the character of Burgess?
The JUDGE doubted how far that was a matter for cross-examination in that form.
Mr. PITT: Were you afraid of Burgess?
Sullivan: No, when he was unarmed. When armed he was like a spoilt child, and the others backed him up.
The JUDGE: Had he more control over the other men than they had over him?
Sullivan: A wonderful deal more. What he said became law.
Mr. PITT: You said Burgess arranged a certain position for you in the creek. Were you not afraid of his anger for your changing your position?
Sullivan: Certainly not. I was behind his back, and could have destroyed him there if I had thought proper.
Mr. PITT: You spoke of the straps; who took those?
Sullivan: Burgess, and Kelly got hold of them and cut strings with his knife. I did not tie up my swag. I was doing up the horse. I imagine Kelly or Burgess did up my swag.
Mr. PITT: You mentioned your shirt, which you were about to mend when you were alarmed, and threw it aside. Who returned it to you?
Sullivan: One of them, Burgess or Levy, gave it to me. I think I went back for it. I don't know if there was any blood on my shirt then. I did not see any. I did not open it out when I got it from one of them. I put it under my arm, and went on. [The shirt was produced; a Crimean shirt, mauve, with black spots.] The last time I looked at it, there was no blood on this shirt. It had no blood on it when I took it out to mend it.
Mr. PITT: Do you see any blood on it now?
Sullivan [after closely examining the garment]: There is a stain there on the back of the shoulder. I don't know what it is. I never saw it before. I don't know in whose custody the shirt was. I heard Mr. Shallcrass state in Court that there was to be an examination of the shirt.
Mr. PITT: Did you examine the satchel at the chimney?
Sullivan: No; it was given to me just as I saw it yesterday. The white bundle I had when crossing the rivers was a new tent fly that Levy got on credit at the Grey. Levy did not lend me a handkerchief on my way up to Canvas Town. I did not want any. I had some to spare. We all went to the end of Bridge-street, after coming from the Bank, a few minutes after twelve. The children were just coming out of school. I saw Levy go to the Bank of New Zealand, between eleven and twelve. It was about half-an-hour before we all met finally. I sold the nuggets at the Bank of New Zealand, about half-past twelve. I waited in the Bank about twenty minutes; it might be more, or it might be less.
Mr. PITT: You said yesterday that you and Burgess went to stick up Mr. Wilkie?
Sullivan: Yes.
Mr. PITT: Did you not say, in your statement to Mr. Shallcrass, that it was Galloway?
Sullivan: Yes; I made a mistake. I confounded the two names. It was Mr. Wilkie, and not Galloway. who was the person we went to stick up.
Mr. PITT: At the time you wrote the statement, did you know that Mr. Wilkie's father resided in Nelson?
Sullivan: No. When I was at Canvas Town, my clothes consisted of two flannels, two Crimean shirts (one of each on, and the other in the swag), three or four pairs of worsted socks. I had a black silk handkerchief, two white pocket handkerchiefs, coat, trowsers, boots, and a sash round my body.
[Image of page 46]
Mr. PITT: You told us that you lent Kelly a sash. How could you keep up your trowsers without your sash?
Sullivan: The trowsers had an elastic waistband, which kept them up. The sash was more for ornament than anything else. I gave to the ostler at Owens' a pea-jacket, boots, and drawers. I used to get up at Owens' about eight in the morning. I never got up so early as half past six. I did not go for a walk before breakfast except on Thursday morning, the first morning. I then went along Bridge-street in company with Kelly. I was arrested in Owens' public house. I went within with Mr. Owens. [Witness' clothes were produced: a pair of trowsers, with elastic band, one flannel shirt and sash, white handkerchief, a coloured handkerchief, a pea-coat, and one black silk handkerchief.] Mr. Owens accompanied me into his house before I was apprehended. I was walking up the road at the time. He asked me to come in and have a glass. I knew his purpose. I don't think he asked me where I was going, and I don't think I told him; but I said to him inside that I was going to see M'Eachen, who lives down by the bridge. I don't know what things I sent to be washed, nor how much was paid for them. Mr. Owens paid for them. I sent a pair of trowsers, they were all over mud. I saw no stains. Only trowsers, flannel shirt, and black silk handkerchief were washed.
Mr. PITT [producing a coloured handkerchief tied at both ends, and torn in some parts]; Why did you not get this washed?
Sullivan [taking up handkerchief and throwing it over his shoulder, with one arm in it]: Because it was no use. It was torn, and had been used this way to hold the swag instead of a strap of which we were short. I wrote a letter to my wife on the 29th June, while I was in prison. It was written to dictation, to calm her fears lest she should see my name in the papers.
Mr. PITT: At what time on the 28th of June, did you send notice to Mr. Shallcrass that you wanted to see him?
Sullivan: I sent word to him on Wednesday, the 27th June, at nine o'clock in the morning.
Mr. PITT: Levy had been removed then?
Sullivan: Yes. He was removed on Tuesday night. I did not mention to Burgess and Kelly that I was afraid of Levy. Burgess said I need not be afraid of him, that they could "cook" him if it was needed.
Mr. PITT: Were you not the first to express a fear that Levy would confess?
Sullivan; I knew he would not confess.
The JUDGE: How could you know that?
Sullivan: I felt positive he would not, your Honour.
Mr. PITT, displaying a printed placard, of which the following is a copy:
V. R.
FOUR HUNDRED POUNDS REWARD.
Whereas JOHN KEMPTHORNE, FELIX MATHIEU, JAMES DUDLEY and JAMES PONTIUS, having been missing since the 16th of June instant, and are supposed to have been MURDERED on the Maungatapu Mountain;
Notice is hereby given, that a Reward of £100 will he paid by the Provincial Government for the recovery of each or either of the bodies of the above-named missing persona, within twenty-one days from this date.
This Reward of £100, now offered by the Provincial Government, as well as the £200 previously offered by Mr. THOMAS W. KEMPTHORNE, will be divided amongst the enrolled Volunteers, working under the direction of Mr. CHARLES SAXTON, in the event of the bodies being discovered by the efforts of that company.
The above will not be paid to any person concerned in the murder.
ALFRED GREENFIELD,
Provincial Secretary,
Nelson, June 27, 1866.
NOTICE,
TWO HUNDRED POUNDS REWARD.
Free Pardon to an Accomplice!
Colonial Secretary's Office (Judicial Branch),
Wellington, Juno 28, 1863.
Whereas persons of the names of FELIX MATHIEU, JOHN KEMPTHORNE, JAMES DUDLEY, and JAMES PONTIUS, have mysteriously disappeared: And whereas it is supposed that they have been MURDERED on the road between Nelson and Marlborough:
This is to notify that should those persons, or any of them, have been murdered, a Reward of Two Hundred Pounds (£200) will be given to any person who will give information that will lead to the conviction of the perpetrators; or his Excellency the Governor will grant a Free Pardon to any person implicated in such murder, except to the actual murderer or murderers, who shall give such information as shall lead to the conviction aforesaid.
E. W. STAFFORD.
Now, was a placard like this placed opposite the door of your cell?
Sullivan: No, it was on the entrance door. I could not see it from my cell when the door was open, which it was nearly all daylight.
Air. Pitt: Couldn't you put your head out of your cell door, and read it?
Sullivan: What! and the door locked?
Mr. PITT: Couldn't you put your head through the aperture in the door?
Sullivan: No, my head is too big for that. As long as the door was open I could not read it.
Mr. PITT: Didn't Burgess read it?
Sullivan: I did not hear it all, I was then writing a note to send to Mr. Shallcrass. I knew the purport of what he was reading. I knew it was an offer of a reward by the Provincial Government for the discovery of the missing bodies.
Mr. PITT: Did he not say anything about a free pardon?
Sullivan: That part I did not hear then, but I did afterwards. I first knew the full contents of the placard on the 30th June, in the gaol yard. I read the placard through then, your Honour. It is to the same purport as that produced.
Mr. PITT: Now, didn't you hear Burgess read that through in the lock-up, that about the pardon too?
Sullivan: No; I did not hear it all, I was engaged then writing, as I told you.
The JUDGE: Now, Sullivan, listen to me. Were you or were you not aware, before that time, that a free pardon had been offered by the Government for any accomplice not an actual murderer, who would give certain information?
Sullivan: I was aware there was something about it. I read it about the middle of Wednesday,
[Image of page 47]
when the door was partly shut, but I could not make out all the small print at that distance.
Mr. PITT: Will you swear you were not aware of this before you made your first statement to the police?
Sullivan: Before I made my statement to Mr. Shallcrass I had heard of a free pardon. The note I was writing in the cell was to ask to see Mr. Shallcrass in an important matter. I did not make any statement.
Mr. PITT: You said you saw Kelly and Burgess arrested on the Tuesday?
Sullivan: Yes. I had been speaking to them shortly before about the arrest of Levy. We had met to discuss his arrest, because Burgess said he could not now go back to the Oyster Saloon.
Mr. PITT: Did you see any policemen about?
Sullivan: Yes. There were great numbers of policemen about, and persons acting with the constabulary. A constable spoke to me at the time. Burgess was then about fifty or sixty yards away, and Kelly was in at tea.
Mr. PITT: If you were so anxious to give the men up to justice, as you say, why did you not do it then?
Sullivan: Because I was in danger of not being able to establish the case. These men might have denied being in company with me, and I believe they would have done so.
Mr. PITT: But why did you wait so long?
Sullivan: To see if the Crown could get witnesses to connect us all together.
Mr. PITT: Did you know Birrell?
Sullivan: Yes. I saw him watching me and Kelly.
Mr. PITT: Did you see Jervis, in Owens' hotel, on the Monday?
Sullivan: No. If I had, I should have been apprehended there and then. I don't know if I saw a man named Harvey. I would not know him again. If I saw him I had no knowledge of it.
Mr. PITT: How many statements did you make?
Sullivan: One to Mr. Shallcrass, a long one to the Superintendent, and a third one in presence of the Resident Magistrate. I have not a copy of that statement, not a scrap of paper, nor a printed copy. I saw a printed copy of Burgess' statement.
In reply to several questions from Mr. Pitt, as to his treatment in gaol,
Sullivan said he was unwell, and under medical treatment. He had irons on his legs for several days, and was handcuffed. He was ill in the cell, and was shifted, after having been annoyed by the other prisoners. He was then removed to the ordinary debtors' room, which was much colder than the other cells, as he felt by his rheumatism.
Mr. PITT: Did you give information about the gold robbery at Okarita?
Sullivan: I gave hearsay information only; what I heard from another party.
Mr. PITT: Did you deposit £50 with Owens?
Sullivan: Yes, and afterwards withdrew it.
Mr. PITT: Why did you withdraw it?
Sullivan; Because Kelly and I had both deposited £50 with our landlords, and Burgess scolded us, and called us a couple of asses for letting a publican know how much we had.
Mr. PITT: But it would do no good to take it back, as the mischief had been done?
Sullivan: I was as well able to keep the money as he.
Mr. PITT: You told us yesterday that Levy made a certain statement to you about gold. When did this take place?
Sullivan: This was about 30 or 40 yards farther down than where the old ship is lying; a number of tents are on the place, and buildings about 20 yards beyond. We stood and knelt. There was the face of a rock cut down to obtain metal, or dirt taken out. It was quite close to the road. It was high water at the time, too, I remember, for Levy threw a ring that was taken out of one of the purses into the tide. We got into the 'bus going up near to the Custom House. It was in motion at the time. There were only me and Kelly who went up. In referring to the speck of gold I gave Miss Owens, I meant to say it was the only virgin gold I had handled in New Zealand. It was part of the gold taken from the men, and of which I sold part. I have handled some since then in gaol.
Mr. HART (re-examining): Before these transactions on the mountain took place you said you threw down in the bush the shirt shewn. Was it in anyone's charge while you were away?
Sullivan: I remembered it, and came back and asked for it. Burgess asked me what was the use of an old thing like that. I did not pick it up. Either Burgess or Kelly gave it to me rolled up. I did not look at it; but they had it while I was away. They must have had it in their possession, because I got it from one of them.
Mr. HART: Did you mention the circumstance of hiding the shirt to Mr. Shallcrass, when you made your statement to him?
Sullivan: I did.
In reply to Mr. PITT, Sullivan said: Before Mr. Shallcrass took down the statement I made, he asked me what I wished to say to him, and he said that whatever I might state to him might be used against me. I told him I was perfectly satisfied that he should make use of the statement, and that I told him for that purpose. He asked me to write it, but I could not.
This concluded Sullivan's examination, which had lasted for nearly fifteen hours.
Alfred Chesterman, being sworn, said: I am a publican at the Grey. I know the prisoner Levy. I never saw him until I went on board the Wallaby, coming from the Grey to the Buller, about the commencement of June. We were talking together. He asked me to lend him £2. I do not think he told me why he wanted money. He said he would give it to me when I came to Nelson. He told me he was coming to Nelson; he did not say what for. He repaid me the money. He gave me one pound the day after we left the Buller, and the other pound on the Thursday or Friday week after we landed. I was in Nelson then. I heard of four men being missed. I can't say whether the money was paid that week, or the week following.
Burgess (in cross-examination): Did you see Sullivan on board the Wallaby?
Witness; I saw him there, and in Nelson.
[Image of page 48]
The JUDGE: Burgess, Sullivan is not in the question; I cannot allow you to proceed in this way. Whatever impression your religious, or other advisers may have made on your mind, I cannot allow you to consider yourself in any other light than that of a prisoner being tried for his life.
Witness (in reply to Burgess): Sullivan told me he had sold gold in Nelson. I do not recollect his telling me any reason for not selling gold at the West Coast.
Burgess: He told you positively that he had sold gold in Nelson?
Witness: No, he told me that the middle one (Kelly), had sold gold.
Kelly (to witness): Did you see me on board the Wallaby?
Witness: I could not swear to you.
Kelly: Did you see me at the hotel at the Buller?
Witness: No.
By Mr. PITT: I did not know Levy before I saw him on board the Wallaby. I saw him at the Buller, playing skittles, bat I don't know whether he won or lost. The money I lent him was not on account of our going portions in gambling on Wednesday night. I saw him playing cards. I played with him, and I think he won £3 or £4. There was loo being played. Levy played euchre.
The JUDGE: What game?
Witness: Euchre, your Honour. It is a digger's game.
The JUDGE: Is it a gambling game, or a game of skill?
Witness: It is a game of chance.
Mr. PITT: Did you not notice what sum Levy won?
Witness: No, not particularly.
John Shallow, sworn and examined, said: I am a seaman residing in Nelson. I belonged to the Wallaby in June last. I know the three prisoners. I saw them on board the Wallaby on June 3rd. No one else was with them. [Sullivan was brought forward.] Sullivan was also with them. This was at the Grey. I did not see them come on board. They were passengers by the Wallaby. I saw them on board with their swags. I don't think there were more than five or six passengers together on board. They conversed together on the passage up. I saw Burgess and Kelly together very often. They came on to Nelson, and the vessel arrived on Wednesday, 6th June. The prisoners left the vessel here.
By the JUDGE: I am a British American.
By Burgess: Were you on duty on the Sunday night?
Witness: Yes, I was.
Burgess: Was Sullivan on deck?
Witness: Yes.
Burgess: Did you see any bedding on deck?
Witness: No.
Burgess: Where did you afterwards see Sullivan?
Witness: I saw him, after the voyage, at the Mitre Hotel, but when, I cannot say exactly.
Burgess: Did you know Levy was arrested before you saw Sullivan?
Witness: Yes.
Burgess: When did you tell Sullivan this?
Witness: I told Sullivan (with whom I had a row on board the Wallaby in coming up), in the Mitre Hotel, that the man who had told me about him was arrested. He walked out without listening. I did not call attention to Sullivan, as I was drinking.
By Kelly: I never saw a person in whom I was mistaken yet.
The JUDGE: Then you have more power of observation than I have, or any one else.
Cross-examined by Mr. PITT: I saw Levy on board, but did not see him drinking. I saw the prisoner Sullivan, when washing decks one morning. I was throwing water over the house, and he was in the passage. I told him to come out of the passage, and he would not, so I threw some water down, some of which went on his hat. He called me everything he could, and said he would throw me overboard if he had me on deck. I did not see anyone sleeping on deck.
Re-examined by Mr. ADAMS: Levy told me it was well I had not got into Sullivan's hands, as he was a fighting man; that he had seen him fighting a good bout on the Dunstan. That was all he said.
George Nicolls, being sworn, said: I am a boatman at the Buller river. I am a Greek. I know the prisoner Levy. I first saw him at the Grey about six months ago, as nearly as I can recollect. I saw him. last in June, at the Buller. This was when the Wallaby was there; she had come from the Grey. He came and asked me for the loan of some money to go up the country. I forget what he said precisely. He asked me for a £5 note. He gave me no reasons for wanting to borrow it. He said he had none. This conversation took place in the street. I had seen him before at the Grey; but we had no communication at the Grey. He said nothing, when he asked me for the loan, in recognition of me. He seemed to recognize me as having seen me at the Grey. I lent him £1; he made no promise about payment.
Cross-examined by Mr. PITT: I have a mate of the name of Alec. Levy said nothing to me or I to him about this man owing money to him. I know that Levy was known in the shops in Greymouth. He told me he was going up the country. I do not recollect telling him that the freight was £50 or £69 a ton to the Little Grey. I think I recollect speaking to him about the Little Grey. I cannot say whether there was any conversation.
Jane Sharp, being sworn, said: I keep a boarding-house in Nelson. I recollect some men coming to my house in the beginning of June. There were four of them. They came to my house on the 6th of June. I cannot say what they had with them for certain; what they had was more like swags than passengers' luggage. They came together and had tea, and breakfast in the morning, staying all night. They left in the morning about half-past eight, I do not know which way they went. I was paid a £1 note by one of them, which was at the rate of 5s. a-piece. One came first and asked if I could accommodate him and his friends--three of them.
Edwin Palmer, being sworn, said: I was master of the Wallaby steamer, in June last. I know the prisoner Levy, but he did not go by that name. I saw him at the Grey. He came on board my
[Image of page 49]
steamer in June last, at the Grey. [Ticket of passage produced.] This is the ticket he produced at the Grey. The name of passenger given is Lane. It was for a saloon passage from the Grey to Buller. The same prisoner did not obtain, or show any other tickets. I can't say whether there were others in his company. Having arrived at the Buller, he applied to me at first for a free passage for himself to Nelson. I told him I could not do so; that the most I could do would be to alter his ticket, and give him a Nelson ticket instead of one for the Buller.
By the JUDGE: The through ticket would be cheaper. This was arranged, he having agreed to it.
Witness, in continuation: There were other passengers whose tickets were altered in a similar manner. Levy said that he knew of three or four others who were hard up on shore, who would be glad if I would do the same by them, and I told him I would do the same with those as I did with him. I can't say who paid me for the other three, but Levy paid his own £2. I told Levy if he was acquainted with the others, to send them on board, and I would make one lot of it. £1 each was charged to the others. I do not recollect if any one else spoke to me on the same subject. I should know the tickets if I saw them, as I endorsed the difference of fare on the back. [Tickets produced.] These marked Jones, Williams, and Morrison, are the tickets used by them. I do not know which of the men got these tickets. I cannot speak with certainty of any but Levy. I do not recollect having received any letter on the subject.
Cross-examined by Burgess: When did you give up command of the Wallaby?
Witness: I gave up command of the Wallaby last Friday.
Burgess: Do you know where the coloured man, who was cook on board the Wallaby, is now?
Witness: I cannot say. He left soon after the time you speak of.
Burgess: Did you ever see a knife used by him for culinary purposes?
Witness: I have seen all his knives.
Burgess: Could you identify any of them?
Witness: No, I could not.
[Handle of knife produced.]
Burgess: Is that like it, Captain Palmer?
Witness: Yes; I could not swear to it, the cook had so many knives.
Kelly said he had no questions to ask.
Cross-examined by Mr. PITT: I cannot say who paid the balance of the fares. Levy might have paid the whole. When Levy came on board, I cannot say whether we were weighing anchor or not.
Re-examined by Mr. ADAMS: I merely left the Wallaby to be present here as a witness.
Patrick Birrell, being sworn, said: I was a livery stable keeper in June last. I recollect the 7th of June last. I left Nelson for Picton at ten in the morning, on a grey horse. After I had proceeded from two to three miles on the road, I passed four or five men on foot. I see two of them in Court, Sullivan and Levy; they were dressed as diggers. The other two prisoners I cannot swear to, but they resemble them very much. I saw them again two miles farther on. They stopped at the Pelorus Hotel that night. My journey was to Picton. The second time I saw them I had occasion to stop for an hour, and they came up within a hundred yards of me. Picton is about seventy miles from Nelson. I left Picton on Tuesday, June 12, and reached Wilson's accommodation house, Pelorus Valley, that night. I started next morning about a quarter past eight. I first passed two diggers after I had passed the Wakamarina river. They were going in the same direction as myself. I then met two horsemen; one was Mr. Galloway, of Picton, the other was Mr. Cooper's son. I then met another party on horseback, after I had passed the Pelorus Bridge. I next met some parties with a mob of cattle. One of them was a European. I then came up to Franklyn's Flat. This was between twelve and one o'clock, pretty near one. I saw a pack-horse feeding there; it was a bay horse with a white mark on his forehead. There were four men squatted down close by. They were having something to eat and drink. I knew them. One was John Kempthorne, the others were Felix Mathieu, James Dudley, and James Pontius. I knew Kempthorne very well, the others I knew slightly. Kempthorne rose and spoke to me. About a mile farther on, I met a man and a woman. The woman's name was Fulton, and the man's Livingstone. They were walking, coming from Nelson. I was then going about four miles an hour. It is a rough road. I met Bown about a mile and a quarter after passing the man and woman. He was on a chestnut horse, and going towards the Pelorus. Between the time I left the woman and Mr. Bown, I met no other person whatever until I reached this side of the Maungatapu. I then met Mr. Leslie, about two hundred yards on this side, and about three miles from Dwyer's. I met no other person. I stayed at Dwyer's some time.
Kelly: Did any person tell you that I was going to ask you questions to day?
Witness: No.
Kelly: Did you see any of my questions?
Witness: No.
Kelly: How long were you on duty in the gaol?
Witness: Three weeks. I did not do duty all the time outside of Sullivan's cell. I did duty near his cell as well as the others. I watched him also in the yard.
Kelly: Did he speak to you?
Witness: Very seldom, unless on matter of duty.
Kelly: Did he tell you he saw you on the 13th of June, as you were riding along the Maungatapu?
Witness: I have heard him say so.
Kelly: Did he ever ask you whom you met on that day?
The JUDGE: This is not relevant to the case, but I don't want to stop you.
Kelly: Did you notice anyone camping about thirty yards off the road on the left hand side, about half a mile before you come to Dwyer's?
Witness: No.
Kelly: Did you notice any smoke about thirty yards off the road?
Witness: No.
Did you notice an opossum rug and a tent spread on some bushes?
[Image of page 50]
Witness: No.
Did you see a man smoking before you came to Dwyer's?
Witness: No. I did not notice any one.
Kelly: Might not I have been camping there on the day you passed?
Witness: I can't say.
Kelly: While on duty in the gaol, did Sullivan ask you whether the Search Party had found anything?
Witness: No.
By Mr. PITT: I passed the rock about one o'clock. I met the man and woman about a mile on this side Franklyn'8 Fiat. I could not swear which side of the rock it was.
By Mr. HART: There might be a convenient place for camping about half a mile on the other side of Dwyer's.
Ann Smith, being sworn and examined, said: I am the wife of James Smith. I reside on the road between Nelson and the Maungatapu, five and a-half miles from Nelson. I recollect Thursday, June 7th, when I saw three persons pass on horseback; Mr. Birrell was one of them. They went towards the Maungatapu. After, I saw five men pass. I knew Burgess and Sullivan among them. They went in the same direction. They passed almost directly after Mr. Birrell. They were all carrying swags. There were two together, and then two more, and one walking alongside. I saw that Burgess was carrying a long-handled shovel, and one was carrying a new tent; I could not say which. Burgess said, "Good day, Mrs."
Cross-examined by Burgess: I think you went first. I believe I made a mistake before the Magistrate in saying that Sullivan carried a long-handled shovel. I believe it was you.
Burgess: There was only one shovel. I wish to rectify this mistake.
Witness: One might have been a gun. There were two things of the kind, and I am sure one of them was a shovel.
Alexander Thompson, being sworn, said: I am a miner living at Wakamarina. I was at Nelson on Thursday, 7th June. I left that morning about nine o'clock for the Wakamarina. I proceeded up the Maitai valley. When about two and a half miles up the valley, I was overtaken by Sullivan. We exchanged salutations, and I asked him where he had come from, he was carrying a swag and a tent and a long-handled shovel. We had proceeded about ten minutes together, when Sullivan stopped to readjust his swag. I waited, and in the meantime the prisoner Burgess came up and joined us. He was followed by two other men. I could not swear to the two other prisoners, but I think the middle one (Kelly) was one. I could not swear they were not the two. They all spoke together and knew each other. We all walked along together until we had gone about nine miles. We passed Mrs. Smith's place together, and after going a little further, I had a pannikin of tea with them. I asked if they were going far, and they said no; so I left them.
George Jervis, being sworn, said: I am a storekeeper, at Canvas Town, about thirty-two miles from here. I know the three prisoners, and Sullivan. I saw them on the 9th of June, on a Saturday, at Canvas Town. I gave them, on their application, permission to occupy an empty house of mine. They occupied it from Saturday to Tuesday morning. I had conversations with both Burgess and Sullivan. I sold Burgess some mutton on the Saturday, I think. I also sold them some sugar. On the Sunday I sold them some flour, and likewise some soap. They left about eight o'clock, or before that time, on Tuesday, the 12th of June. Sullivan was ill whilst there. He said he had dysentery. I gave him some burnt brandy and cayenne pepper; and he said to me, on the Sunday afternoon, that it had cured him. I had a conversation with Burgess on Sunday morning. He said he had come from the Buller, where he had been prospecting, and he mentioned several persons there whom I knew well. He said, on Saturday, that he had come that day from the Pelorus Bridge. I saw them all four crossing the river on Tuesday. Burgess spoke to me, and said, "Good-bye, old fellow; we are all going to leave this b----y country; there is nothing to do here." I saw they had several ordinary diggers' swags with them. I saw two opossum rugs amongst them, one of which I noticed had a black patch in the centre; and as I never had seen a black opossum, I went up to it, and, on examination, felt convinced it was the skin of a flying squirrel. [The rug produced. This is the rug. I think the prisoners spent about 14s. or 16s. with me. They told me they had run short of funds prospecting at the Buller. I remember wrapping the mutton up in a portion of the Marlborough Press, of May 30,-- they made the remark at the time that I need not mind putting it in paper. I brought in some iron hooping to town on Monday last. [Hooping produced.] This hooping is the same. This piece, marked K, is one of the same pieces. I found the hooping in the room occupied by the prisoners. I searched for it from information received, and delivered it to Mr. Sharp. I knew Mr. F. Mathieu; he lived at Deep Creek. I saw him last, crossing the Wakamarina at about four o'clock on June 12th, in company with De Pontius, Kempthorne, and Dudley; they had a bay packhorse with white hind feet. They stayed at my house and had refreshments. There were four or five swags with them. The horse was unloaded and reloaded at my house. There were two swags on one side of the horse. On the other side there was a large swag, with a bag; inside of which was a small portmanteau. On the top was a large portmanteau, and a few smaller parcels. The whole was secured together with straps passed through the surcingle. This is the first time I have described the manner in which the horse was packed in Sullivan's hearing. I knew the contents of one small parcel belonging to Mr. John Kempthorne. He came down on Tuesday, at mid-day. He gave me this parcel containing gold, and at one end, I believe, a roll of notes. Kempthorne carried this away in his hand as he was leaving. They started in the direction of the river, and I saw them cross. This was about 4 o'clock on Tuesday afternoon. I believe the small parcel contained about 60 ozs. of gold.
By the JUDGE: My place is sixteen miles from Franklyn's Flat. They started on Tuesday, the 12th
[Image of page 51]
June. I lent the prisoners a tin-dish on Sunday, for the purpose of making a loaf with the flour they had bought from me. I also lent Sullivan a stone to sharpen a razor upon, and a bottle of salad oil; and I gave him a razor to sharpen for me, which he did, and returned the razor, stone, and oil to me.
Burgess: What was the state of the Wakamarina river when we arrived in Canvas Town?
Mr. Jervis: It was low when you arrived, and very low indeed when you left on Tuesday.
Burgess: You said in your evidence just now, that I had several conversations with you, whilst staying in your house; what was the tenor of these conversations?
Mr. Jervis: I almost altogether forget everything you talked about then.
Burgess: Did I not speak about the town of Havelock, and inquire what description of place it was?
Mr. Jervis: Yes, you did, and I think I told you it was a very similar place to Canvas Town.
Burgess: You have said that the river was very low; how low was it?
Mr. Jervis: The canoe could not cross, and I think anyone wearing watertight boots would not have got wet in crossing on foot.
Burgess: You said in the Magisterial evidence, that one of us had said, on crossing the river, that "it was a b----y country, and we are going to leave it;" how is it that you did not then, as now, particularize me as having said it?
Mr. Jervis: Because I never was asked which of you did say it.
The JUDGE: Was it Burgess who made use of the expression?
Mr. Jervis: Yes, your Honour.
Burgess: Are you sure it was me? How far were you off at the time?
Mr. Jervis: About thirty yards, I think. The river was running between us at the time, but there was no chance of any one being mistaken in the nature of the salutation. I did not dine at Mr. Owens' Mitre Hotel on Sunday. I saw you first at the cells at the lock-up. When I saw Sullivan in the lock-up, I said, "Well, old fellow, what are you here for?" I also asked him if he felt cured of the dysentery? He said, "Yes; he had felt nothing more of it." I said, "You b----y wretch, I wish I had poisoned you at the time." I thought then that he had something to do with the missing men. When I said this, he drew back to strike me, but the officers pulled me out.
Cross-examined by Mr. PITT: I gave the mutton to Burgess. I saw Levy at Canvas Town. He was dressed as a digger. I did not notice particularly how he was dressed. He had a greyish shirt on. I should not have known what scarf he had on. Mr. Sharp told me to search for the hoop-iron from which pieces had been cut off. I did so.
William Harvey, being sworn and examined, said: I am a digger residing in Nelson. I was at Deep Creek on Sunday, June 10, and saw Levy there, at Felix Mathieu's Cafe de Paris. He stopped there that night. I had no conversation with him. I left on the Monday morning in the direction of Nelson. My brother and John Bray were with me. Levy came part of the way with me--to within a mile of Canvas Town. I saw Mr. Kempthorne about two miles from Deep Creek. He was in a store between Deep Creek and Canvas Town. We conversed together in Levy's presence. Kempthorne said he was coming to Nelson next day. He said he should have liked to come with us, but bad promised to go with Mathieu's party. I went to the Pelorus Bridge that night. I slept at Cooper's Pelorus Bridge Accommodation House, that night. There were three of us. We had two guns with us, a double and a single barreled one. We left the Pelorus Bridge at about 8.30 on Tuesday morning. We proceeded direct to Nelson, and arrived in Nelson about 10 in in the evening. I saw Sullivan and Kelly in Canvas Town, but not on the road. I saw three of them in Nelson, Sullivan, Levy, and Kelly. This was on the Thursday.
Cross-examined by Kelly: I saw you about 10 in the forenoon of the 14th, close to Merrington's shop, in Bridge-street.
Cross-examined by Mr. PITT: I did not see Levy spending money at Mathieu's. I was spending money. We were doing what is generally called "going round the horn," for drinks.
By the JUDGE: That is a game of chance, by which it was decided who should pay for the refreshments.
By Mr. PITT: There were six or seven of us, and the loser would have to pay six or seven shillings. Levy went in for that. I did not see him pay Mathieu before I came away. I did not see him playing loo. Levy was following us close behind. He came with us, as I had volunteered to show him a clean road down, as he said the road he had come was dirty. I knew Dudley and Mathieu. I did not know their circumstances. We had a game of "going round the Horn," just before we left. Neither Levy nor myself paid then. I saw no one showing a large quantity of money up there. Kelly was by himself when I saw him on Thursday. I saw Sullivan and Levy going into Herrington's shop together, and Kelly was just outside.
Re-examined by Mr. ADAMS: Levy did not pay at all for "going round the Horn." We did not play cards.
Daniel Cooper, being sworn, said: I keep an accommodation house at Pelorus Bridge. I saw the three prisoners and Sullivan on Friday, the 8th June. They came altogether, and pitched their tent near my house, and left next day, at one o'clock in the afternoon, in the direction of Canvas Town. I saw them afterwards, on Tuesday, not far from the Pelorus Bridge, and coming towards it from the Wakamarina. That morning two horsemen passed in the same direction. They left our place together a little after nine. They were Messrs Hartman and Leo. There were three diggers who left about eight o'clock, and went towards Nelson. I knew Harvey and his brother. They were amongst them. After I passed the prisoners, I met an old man named "Jamie." I knew Felix Mathieu; I saw him next morning with Kempthorne, Dudley, and De Pontius. They came to my house to breakfast on the morning of Wednesday, 13th June. They left about 9.20 a.m.. My house is about ten miles from Franklyn's
[Image of page 52]
Flat, over a difficult road. They went across the bridge towards Nelson. They had a packhorse with them.
Burgess said he had no questions to ask this witness.
Kelly in answer to the Judge said the same.
Cross-examined by Mr. PITT: I was at home when Levy bought some things at my house from my wife. I was close to him at the time. He bought two pigeons, for which he offered 2s. 6d.; my wife would only take 2s.
Thomas Galloway, being sworn, said: I am a draper, in Picton. I walked over the Maungatapu, from Nelson, on the 12th of June last. I met Mr. Hartman and Mr Leo on Franklyn's Flat. A little farther on I met three diggers, of whom the witness Harvey, was one. They were shooting pigeons. I met an old man a little farther on. I then met four men further on, about six miles from Franklyn's Flat. I recognise Levy as one of them. They were walking in a string, some yards apart, and coming towards Nelson. I passed the compliments of the season with them, and Sullivan answered; but the others turned their heads away, as if to avoid observation. This was about four o'clock in the afternoon. They carried swags, such as diggers usually travel with. I saw, no one on the road that evening (Tuesday). I knew Mathieu and Kempthorne, and met them along with Dudley and Pontius, next morning (Wednesday), at the Pelorus Bridge, having breakfast. We started together, taking different directions. I then met Mr. Birrell, on a grey horse, coming towards Nelson, some four or five miles from the Pelorus Bridge. It was about ten a.m., that I met him. I met Möller a little this side of Canvas Town, and went on to Picton.
Burgess stated that he had no questions to put to the witness-
Cross-examined by Kelly: I keep a clothing establishment in Hokitika. My brother attends in the shop there. I do not remember you buying a coat in the shop in Hokitika.
Joseph Livingstone, being sworn, said: I am a labouring man in Nelson. I was going towards the Wakamarina from Nelson, with Ann Fulton, on the 30th June last. We started from Smith's, on the Maitai, in the morning, and went the other side of the Maungatapu on Wednesday. We went beyond Franklyn's Flat on that day. I met Mr. Birrell about ten minutes before we arrived at Franklyn's Flat. We then met four men and a pack-horse. I knew the one named Dudley a little. This was about nine or ten yards from the creek on Franklyn's Flat. They were coming towards Nelson. I did not speak to them. The creek runs down alongside the flat. I just nodded my head to them. I asked Mr. Birrell what time it was, and he said about one. I don't know exactly what time we left Smith's that morning. Afterwards we met Möller walking. We met him about one to one and a-half miles the other side of Franklyn's Flat, on this side of the first bridge. I spoke to Mr. Möller. As night drew on we met two diggers about one to one and a-half miles after passing Möller. I never saw any of the prisoners that day to my knowledge. I did not see any other persons but those I have spoken of. I saw none of the prisoners on the day previous.
Cross-examined by Burgess: I noticed no rock on the upper side of the road. I have only travelled the road once. I crossed a creek not far from Franklyn's Flat. I heard no one talking there. I did not look round, to my knowledge. I cannot say exactly whereabouts I met Mr. Birrell. I did not notice a large fire just before I got to Franklyn's Flat. I did not notice the rock. I met Mr. Birrell.
Cross-examined by Kelly: I noticed no one camped half-a-mile from Dwyer's. I saw no opossum rug or tents hanging out to dry. I do not recollect my being in advance of the woman on the road about that distance from Dwyer's.
Ann Fulton, being sworn, said: I went over the Maungatapu with the last witness, on the 13th. We started from Smith's early in the morning, after breakfast. I do not know the exact hour we started. The first man I met was Mr. Birrell. Soon after that I met the four men with the pack-horse. I met these nine or ten yards from the little creek close to Franklyn's Flat. I then met two diggers, about one to one and a-half miles farther on. It was getting on towards evening then. I camped on the road that night.
Cross-examined by Burgess: I noticed no rock cropping out of the ground on the upper side of the road. I do recollect crossing any creek, or going over a tree lying across the road. I met Birrell about ten minutes before I met the four men and pack-horse.
By the JUDGE: I was then going down hill.
Cross-examined by Burgess: I could not say whether I could get over half a mile of ground in ten minutes or not.
Cross-examined by Kelly: I noticed no one camping near Dwyer's Accomodation House. I saw no tent or opossum rugs hanging on the bushes near there, nor did I observe any smoke about thirty yards from the road.
Cross-examined by Mr. PITT: I had no bundle with me passing Dwyer's.
Henry Möller, being sworn, said: I am a storekeeper, at Deep Creek. I am a German. I knew Kempthorne, Dudley, Pontius, and Mathieu. They engaged me, on the 12th of June last, to fetch back the horse belonging to Felix Mathieu, from Nelson to Deep Creek. They engaged me in the morning of Tuesday, June 12. I left Deep Creek for Nelson on the following day, at between six and seven in the morning. I met several persons on the road on horseback. On the other side of the Heringa bridge from Nelson, I met Mr. Jones and another person driving cattle. I then met a woman named Ann Fulton, in company with a man named Livingstone, on the Marlborough side of Franklyn's Flat. I next met a man named John Bown, with a chestnut horse, from the back of which he had just jumped off to get under a tree that was lying across the road. This was after I had passed Franklyn's Flat. I was walking very fast. I can walk from four to five miles an hour. I did not afterwards notice a rock on the side of the road. It would be short of a mile, the distance I travelled from Franklyn's Flat to the tree. I spoke to Bown in a loud tone of voice. I could have been heard a good distance off. After he got on his horse, I handed him
[Image of page 53]
his basket, containing fowls. Mr. Bown used the word "no" in a loud tone of voice. I came into Nelson the same day. I saw Dwyer's son, but I did not see any of Kempthorne's party that day. I saw none of the prisoners on the road.
Cross-examined by Burgess: I have made four journeys along the road since I saw Bown. I have since seen the rock standing up at the side of the road. I cannot say how far it is from the tree.
The JUDGE: We have been told 275 yards. Is this true?
Witness: Between 200 or 300 yards, I should say.
Cross-examination by Burgess continued: I heard no report of fire-arms after I passed Bown. On arriving in Nelson, I first went to the Commercial Hotel, for the horse, but did not find Kempthorne's party there. I went to Owens' on Thursday night, and there made inquiries about Kempthorne. I did not acquaint the police until Saturday afternoon. I then told Sergeant Goodall.
Cross-examined by Kelly: I did not wear a brown coloured shirt over my trowsers while on the road. I had on a check shirt, half cotton, inside my browsers. I had on a Californian hat that day. I might have had a coat thrown over my shoulder. Before coming to Dwyer's, I noticed no smoke off the road, and I noticed neither opossum rug nor tent on the bushes.
Cross-examined by Mr. PITT: The weather was very calm when I passed Bown. There are turns in the road between the rock and the tree. The average height of the underbush is from six to ten feet. I cannot say how far down towards Franklyn's Flat you can see from the rock.
Re-examined: I wore the same clothes in Nelson as I had on the road.
John Bown, being sworn, said: I am a farmer, and live in the Pelorus Valley. I left Nelson on the 13th June for the Pelorus, and went over the Maungatapu. I met Mr. Birrell about half a-mile on the other side of the watershed of the Maungatapu. I also met Mr. Möller a little more than half a-mile this side of Franklyn's Flat. I was on the track leading my horse when I met him. I had passed underneath the tree, but was near it when I met Möller. He appeared to be walking very fast. We spoke together in an ordinary tone of voice for the road. The word "no" was made us of by me. It might have been spoken louder than I am speaking now. After I had passed the tree, about one and a half mile beyond Franklyn's flat, I passed Levestam and Ann Fulton. I then met two diggers. I saw none of the prisoners that day.
Cross-examined by Burgess: After I passed Franklyn's Flat, I went very slowly, as I was carrying a basket.
Kelly: Were the contents of your basket covered with a white cloth?
Witness: Yes.
Kelly: Did you carry it chiefly on your thigh?
Witness: I did.
Kelly: Did you notice any persons camping about thirty yards off the road on the left side, about half a mile on the other side of Dwyer's?
Witness: No, I did not.
Kelly: Did you see an opossum rug or tent?
Witness: No.
Cross-examined by Mr. PITT: I knew Möller before I met him on the road. He was not in the habit of speaking particularly loud. I did not notice if there was any wind at the time I met him. It would be a little after two when I met him.
Henry Phillips, being sworn, said: I am a shipwright. I live at the Otago Dining Rooms. I keep these rooms. I saw the prisoners Burgess and Levy on the 13th June, in the Otago Dining Rooms. It was late at night; to the best of my belief, after ten o'clock. They had something to eat. I could not say how they were dressed. They were like diggers. I had a talk with them while they had their supper. I asked them where they were stopping, and they told me down the beach. I did not ask where they came from.
Burgess: Did you infer I was a stranger?
Witness: I thought you were some persons from a steamer come to get a feed.
Burgess: What made you think I was a stranger to Nelson?
Witness: Because you asked me about "Tommy," as he was called, a friend of yours, who was in town about three or four weeks ago.
The JUDGE: Who was he? What was his name?
Witness: His name was Tommy Mullin, I believe.
Burgess: Did you see me in your house on a subsequent occasion?
Witness: I did not see you. I heard you were there, but I was not in at the time.
Kelly did not cross-examine this witness.
By Mr. PITT: I did not notice how the prisoner Levy was dressed when he came into my house.
William Henry West, being sworn, said: I am a hairdresser, residing in Nelson. I know Burgess and Kelly. I do not know Sullivan. I remember Burgess coming to my shop, on the morning of Thursday, the 14th of June last. He got shaved, and had a bath. I shaved him. His beard was different then from what it is now. It was not divided in the middle as it is now. He asked me to shave it through, and I did so. It made a great difference in his appearance. He bought a purse, or port-monnaie, from me. Kelly came down to my shop on the following Sunday, the 17th of June, to get shaved in the morning. He had got shaved previously to my seeing him. I made no great change in his appearance.
Cross-examined by Burgess: After purchasing the purse, you threw away an old one. I kept it for some time, and then gave it to Murphy, the policeman. It was not a very old purse. It would hold money securely.
Burgess: Mr. Shallcrass, would you produce the purse? [Purse produced and identified.]
Burgess [after examining it]: That is the purse, your Honour, that I threw behind West's counter. You see, your Honour, the elastic is broken.
Kelly did not ask any question.
By Mr. PITT: I do not recollect Levy coming to my place for a bath on Thursday morning. He might have got one from my man before I came down. I don't recollect a clothes brush being found in a bath room that morning.
Robert Carter, being sworn, said: I keep the
[Image of page 54]
Lord Nelson Hotel. I know Kelly. I first knew him on Thursday, 14th June. I first saw him about half-past seven o'clock on that morning. He had slept the previous night in a bedroom in my house. I do not remember how he was dressed, but he went out, and returned in a few minutes with a bundle. He went straight away upstairs. He came down to breakfast about a quarter-past eight. He had a new pair of trowsers on, of a dark colour. He came in at different times of the day with parcels. He stayed at my house till the Tuesday night following, when he got apprehended. I had many conversations with him. He told me that he was secretary to the Kanieri Mining Company, down on the West Coast, and that Sullivan, who was with him at the same time, was carpenter of the company. Sullivan said so too. He said he had almost unlimited authority to sell shares in the mine, and that he was a large shareholder himself. He did not offer to sell me any. He said that the first night he was in Nelson he had lodged at Mrs. Sharp's, and then he had staid two or three nights with a friend. When they came first, Sullivan's hands were scratched, and he said that was done with the gravel, in putting the timber into the mine. Kelly did not give any name, and I never asked him what his name was.
The JUDGE: What did you call him?
Witness: I did not call him at all. I think I heard Sullivan call him Kelly, but I could not be sure. He spent a good bit of money in my house, at one time or another. He brought in his friends, and had drinks. He may have spent about £7 in about five or six days. He gave me £50 to keep for him, either on Friday or Saturday. As near as I recollect, there were a £20, two £10, and two £5 notes.
I gave him £30 of it back. He had £20 on Sunday morning, and £10 on Monday morning. I gave the the other £20 note to Mr. Shallcrass after he was apprehended. He was apprehended close to my house. Sergeant Edwards took Kelly's things away; some that night, and the rest next day. He took an opossum rug out of Kelly's bedroom. It was lying at the foot of his bed. I could recognise the rug. It had a black spot in the centre.
Burgess: You said your attention was attracted by the scratches on Sullivan's hands?
Witness: Yes; they were all over scratches. I never, saw the like.
Burgess: Were they recent scratches?
Witness: Yes: quite recently done.
Kelly: Have there been any subpaenas served on your wife and your niece?
Witness: Yes, I believe so.
Kelly: Did you reckon in the £7 you say I spent at your house, the price of the mantle, hat, and silk dress, I bought for your niece?
Witness: There were such things spoken of, but I know nothing about them.
Kelly: Did you reckon their price in the £7 you spoke of?
Witness: No, they were not included.
Kelly: Was I frequently in your house with Sullivan?
Witness: Yes.
Kelly: Do you remember me and Sullivan, and the old gentleman who sat next me at dinner, and , you and Mrs. Carter, all being in the long room together when I stood drinks all round, and there was a bundle of Bank notes on the table between us?
Witness; I can't remember particularly. You were often together, and often drinking. I know you gave me the £50 either on Friday or Saturday; I think Saturday.
Kelly: Did I often stand drinks for you?
Witness: Yes; pretty frequently.
Kelly: How many glasses a day did I stand for you?
Witness: Well, I could not say how many. It might be five or six; it might be ten or eleven.
The JUDGE: You are not particular as to the number of glasses you take in a day?
Witness: No, your Honour [laughter].
Kelly: He you think that the number of glasses, ten or eleven, you had at my expense, would be the cause of your making such a statement as that I was secretary to a mining company that never existed?
Witness: I don't know anything about that, but I know you did say that to me, for I would never have said it if you had not told me, and you told me so time over time.
Kelly: Do you remember me tearing a leaf out of my pocket-book and giving it to Sullivan, while we were sitting in your bouse?
Witness: No, I do not remember anything of the kind.
Kelly: Were the missing men often talked of at the table at meal-times?
Witness: It was spoken about, but not much, for there was very little known of it at the time.
Kelly: Did I tell you that I liked Nelson so well, that I thought I might stop all winter here? Witness: Yes, you said so.
Kelly: Was I at your house many times without Sullivan being with me?
Witness: Yes, frequently.
Kelly: I have no more questions to ask.
The witness stood down, and the Court adjourned at six o'clock, until next day (Saturday), at nine o'clock.
FOURTH DAY.
SATURDAY, SEPTEMBER 15.
The Court sat to-day at nine o'clock.
Before the proceedings commenced Burgess addressed the Judge. He said: Your Honour, there is one thing I should like to draw your attention to, if it is allowable by the Court. It is this: I have been employed for some time in prison in writing an account of my life, and, before coming into Court, I left the sheets of the manuscript in the hands of the Governor of the prison, to take care of them for me. Yesterday I asked him for these sheets, and he said "All right," and went away; and came back in five minutes, and said he could not let me have them, as he had received orders to keep possession of them. What I wish to know is, whether your Honour will order that they should be restored to me?
The JUDGE: No, I cannot interfere in the matter. If the authorities of the prison have seen proper to
[Image of page 55]
impound these documents, they have, no doubt, good reason for doing so, and I cannot interfere.
Burgess: May I be permitted to dispose of them, your Honour?
The JUDGE: Dispose of them?
Burgess; Yes, dispose of them; to make a present of them to anyone, your Honour.
The JUDGE: Most unquestionably not. The moral injury which such things may cause ought to be prevented; and we do not know what mischief to the people statements of this kind may cause. I cannot interfere.
Burgess: May I have them, after I am tried, your Honour?
The JUDGE: That may he a different matter. If you had written something in prison for your use at the trial, and the keeper of the prison had detained it from you, you would have had some reason for applying for its delivery. But as it is, you, a prisoner on trial for a capital offence, have no right to any property in gaol. After the trial, the matter may be reconsidered; but, at present, I cannot interfere.
Mr. PITT applied for leave to have Sullivan recalled, in order to put a question to him through the Court.
A discussion arose on the point.
Mr. PITT said his question to Sullivan would be, Whether, before he gave his evidence in the Court, he hoped to be pardoned for his share in the murder of Kempthorne, Dudley, and De Pontius?
The JUDGE said that it had been established, on good evidence, that before be gave information to Mr. Shallcrass, he had known that there was a free pardon offered to an accomplice, not the actual murderer. But, after all, what does it signify? Every accomplice who gives information of the kind--turns King's evidence, as it is called--entertains hopes of pardon for the offence.
Mr. PITT proceeded to say, that he purposed asking his Honour to expunge the whole of Sullivan's evidence, on the ground that he was not free from the fear of punishment or the hope of reward, and that therefore his evidence ought to be excluded, as being biassed by that consideration.
The Judge said that, in point of law, there was no such thing as excluding such evidence; its value and weight were to be determined by a jury.
Mr. PITT repeated that, as Sullivan was implicated in the murders of Kempthorne, Dudley, and De Pontius, and had not been pardoned or acquitted on these charges, and had made the confession in the hope of pardon, therefore his evidence was inadmissible.
The JUDGE said that Mr. Pitt was forgetting the difference between a confession extra-judicial, not before a magistrate, and evidence given by a witness on oath before a magistrate, and where he was liable to cross-examination. This is not the case of a party charged, but is the evidence of a confessed accomplice who takes the position of King's evidence, and is liable to cross-examination.
Mr. PITT, after some further conversation, abandoned the objection, and the evidence was proceeded with.
The first witness called was,
Stephen Owens, who, being sworn, said: I am a publican residing in Nelson. I keep the Mitre Hotel. I know Sullivan. I have seen Sullivan at my house, and the three prisoners on board the Wallaby. I gave Levy a card of my tavern when on board the Wallaby, which had arrived from the Buller. I saw Kelly and Burgess on board too. I saw them the same afternoon after they had come out of the boat. I saw Levy and Kelly opposite my house, looking in at my door. This was after one o'clock; it might be two. They did not come into my house. I next saw them on Thursday, 14th. I saw Sullivan on the night of the 14th. He came into my house, and asked for accommodation. I saw Kelly next day at my house. Sullivan was dressed in an old pair of trowsers, pea-jacket, and boots; the trowsers were inside the boots. He had no waistcoat on. Sullivan slept in my house on the night of the 14th of June. He brought in a parcel with him after supper. On Friday I first saw him with new clothes on at breakfast. I did not see him with old clothes on on Friday morning. After breakfast, he called the ostler, and gave him his old clothes and boots. He then went out, and he came back about 10 or 11 o'clock in the forenoon. I think he came with Kelly. He introduced him to me as a schoolmate of his. He said he had not see him for years. This was told me in the presence of Kelly, who told me that he was staying at Carter's hotel. He told me, on Thursday, that he had dropped in with an old friend, a schoolmate, whom he had not seen for years. He said he would introduce me to him. Sullivan gave me £50 to keep for him on Saturday morning; two £20 notes, and a £10 note. I returned that money to him on the following Tuesday morning.
Burgess: You say you saw us all on board the Wallaby when she arrived?
Witness: Yes.
Burgess: What made you notice us so particularly?
Witness: As strangers, and because of your appearance.
The JUDGE: Was there anything peculiar about their appearance?
Witness: I thought they looked like diggers.
Burgess: When did Sullivan first come to your house?
Witness: On the 14th June.
Burgess: Are you sure he did not come on the 13th?
Witness: Quite sure.
Burgess: When did you first hear that Mr. Kempthorne's party was missing?
Witness: On Thursday morning.
Burgess: Did you ever meet Kelly in your house?
Witness: Yes, and Sullivan was present.
The JUDGE: Were the missing men talked of in Sullivan's presence?
Witness: Yes; he might have heard us talking about them.
Burgess: Did you suspect any Germans in your house?
Witness: I suspected some Germans, but they were not in my house--they were at Jervis's.
Burgess: Did you suspect Sullivan then?
[Image of page 56]
Witness: When Levy was arrested I did.
Burgess: Did you ask him to ride with you to the Maungatapu to search for the missing men?
Witness: Yes, I did.
Burgess: What excuse did he give for not accompanying you?
Witness: He said that his head was too bad, and that he could not ride.
Burgess: Did you intend to take him out, and to keep him with you?
Witness: Yes, I had a slight suspicion of him then.
The JUDGE: Was Levy arrested then?
Witness: Yes, your Honour.
Burgess: Did you go out to the Maungatapu yourself?
Witness: No, not then.
Burges?: Why did you not go, after asking Sullivan to accompany yon?
Witness: Because I had a reason.
The JUDGE: What was the reason?
Witness: Because I thought that Kelly and Burgess were the right men, and I went to the Port to make sure.
The JUDGE: How do you mean to make sure?
Witness: Because I knew parties who had come up in the Wallaby with them, and I at once went and made inquiries about them, and found that they had all been together on board. I myself did not see Sullivan on board the Wallaby.
Burgess: Did Sullivan have a horse on Tuesday?
Witness: Yes, when I had come back.
Burgess: Were you at Newton's livery stables when Sullivan got his horse there?
Witness: No, but I saw him coming out of the stables on horseback.
Burgess: Did you see in which direction he went?
Witness: He went down Hardy-street.
Burgess: You went out that day on horseback, did you not?
Witness: Yes, I went out with Mr. Shallcrass up Waimea-road.
Burgess: Where were you going?
Witness: We were looking for you.
Burgess: When you knew that Sullivan had gone up the Waimea-road, did you think he had gone away?
Witness: Yes, I thought he had flown and went to the lock-up at once. Sullivan had told me he had some from the Collingwood gold-fields. [The JUDGE said that Sullivan was not on his trial, but he would allow the examination to continue.] He said that he had been to the West Coast, and that he and two others had divided 700 ounces between them.
Cross-examined by Kelly: The night you were arrested I did not say, "Halloo, I want you. Where's Mac?" [To the Judge]: Sullivan gave his name as M'Gee. Sullivan introduced you to me as an old schoolmate of his. He did not tell me he had slept in a garden before he came to my hotel. Sullivan was often in my hotel without you. I saw you in Merrington's the day you were arrested. I made no inquiries from Mr. Potter when he was driving you out, about any men who were wanted on suspicion of having anything to do with the missing men.
Cross-examined by Mr. PITT: Sullivan came to my house on Thursday night with a swag and asked for accommodation. Sullivan used to get up about seven or half-past seven in the morning when in my house. I noticed Levy on board the Wallaby. He was dressed similarly to what he is now. I did not notice whether Levy wore a watch and chain or not.
Re-examined: A man named "Tom the Butcher" slept in the same room with Sullivan the first night he was in my house.
Francis Porcelli, being sworn, said: [Interpreted by Mr. Cotterell] I am a native of the Kingdom of Naples, and came from Barletta, about 100 miles from the city of Naples. I keep an Oyster Saloon, in Bridge-street, Nelson. I know Levy and Burgess, they both were in my house. They came to my house on a Wednesday. I don't recollect the exact date. I recollect giving evidence before the Magistrates in this case. I think the prisoners were at my house during the same month. The men were at my house five days before I gave evidence, I think. I do not know where the men went to on going away from my house. Levy and Burgess came together. They were covered with mud, boots and all. They had a blanket and opossum rug rolled up, and nothing more. There were two swags. They slept at my house that night. They slept on a stretcher, and not on the ground, nor on a bed. I saw them on the morning when they went out to buy new clothes. When they went out, they were dressed the same as they had been on the previous night. They returned in about a quarter of an hour. They brought back a parcel of new things, tied up in paper. I do not know what they did, as they went to their room and shut the door, and I went to the kitchen. I saw them again in half an hour. They had taken off their dirty things, and put on new clothes. After they were dressed, I gave them their breakfast. They breakfasted about eight o'clock, and about nine o'clock went out again. They lodged at my house five days. I remember Levy being arrested. Both Levy and Burgess remained in my house until the arrest of the former. When Levy was arrested, they left all their clothes there. I gave them up to the police on their being called for. When Levy was arrested, Burgess remained in the house that night. He went away in the morning, but did not come back that day. He did not remove anything after Levy's arrest. Their boots, and trowsers, and shirts were wet; the flannels appeared to be damp with perspiration; the stockings were very wet.
Cross-examined by Burgess: I supplied you with a small mattrass to lie upon. You went to bed the night of Levy's arrest about midnight. I knew one of the two men who had stayed in my house was arrested, but I did not know which of them. I first heard that Levy was arrested about eleven o'clock at night. After hearing about this, I saw Burgess. He was in the house at the time.
Burgess: I do not care about asking any more questions, your Honour; it appears impossible to make him understand, and the questions are not very material.
The JUDGE: Then they ought not to be asked. It is easy to make the witness understand if the questions are necessary.
[Image of page 57]
Cross-examined by Mr. PITT: Levy was dressed in dirty clothes, wet with mud, when he first came to my house. He had not on the same clothes as now. Neither he nor Burgess had on coats, but each had shirts. I did not see Levy next morning in the coat he now wears. I do not remember whether he had on the same scarf as that which he now wears, or whether he wore any at all. I had no conversation with Levy about purchasing apples, but he spoke about purchasing oysters. Levy had said that when he went to Hokitika he would take some oysters with him. The conversation took place the first and second nights.
Timothy Creed, being sworn, said: I was an assistant to Mr. Merrington, a draper in Nelson, in June. I know Sullivan, Kelly, and Levy. On 14th June, Kelly and Sullivan purchased some men's clothing; Sullivan bought clothes from me. Sullivan spent either £3 10s. or £3 17s. 6d. They came again in the course of the week. I served Kelly on the morning of the day on which he was arrested. I supplied to him about two guineas' worth of goods. I sold Kelly a fancy mohair dress, and trimmings, and it cost about £2 2s. I saw him buy something else from the show-room; it was a head-dress and lady's mantle. He paid the young lady, who handed the cash to Mr. Merrington. I know the head-dress and mantle cost about £3 5s., but I will not swear to the amount. On the 11th Levy bought a coat.
Cross-examined by Kelly: I did not go and get a glass of drink with you. You spoke to me, and told me you were a digger from Hokitika, and had mining shares at the Kanieri. I did not ask you about any person I knew there. You never told me you lived at Carter's. I never said I thought I had seen you before.
Isaac Lambe, being sworn, said: I am an assistant in Mr. Merrington's shop. I supplied goods to Sullivan, Burgess, and Kelly. I sold Kelly, on the 14th June, a cap, 5s. 6d. a macintosh, 37s. 6d.; a valise, 18s. 6d.; lining an opossum rug with green baize, £1. The rug had a dark skin in its centre. Burgess had twenty-three yards of linen at 9s. 6d. a yard. Sullivan had a macintosh, 37s. 6d.
Cross-examined by Kelly: It was about nine in the morning when I first saw you. We had some conversation in the shop. I don't recollect saying I thought I knew you, or asked for your name. You told me you were stopping at Mr. Carter's, where you went for the opossum rug. I think you told me you came from the West Coast.
Kelly: Did you believe, when I was dealing with you, that I was an honest man?
The JUDGE: I don't see what a linendraper's assistant's belief regarding your honesty has to do with the case.
Witness: I forgot to mention that Levy had a cost and vest made of tweed. The coat cost £2 12s. 6d. I could not say what day it was. I did not measure him for the coat.
Thomas Corbet, being sworn, said: I am a storekeeper residing at Nelson. I know Levy and Burgess, from seeing them in my shop. I saw them there on the morning of the 14th June. Levy came in about half-past eight or nine in the morning, and bought a pair of socks at 1s. 9d, and he came afterwards and purchased a pair of boots. The price he paid to my shopman was £1 1s. I sold Levy nothing else to my knowledge. Burgess came in alone, about ten o'clock in the morning, and bought a pair of boots at 19s. I saw the shopman, on the same day, serve him with a French felt hat-digger's hat--at 10s. 6d. I don't know of his getting anything else.
Cross-examined by Mr. PITT: Levy came in for the boots shortly after nine, and I saw him with them at between eleven and twelve the same day. He was dressed then much as he is at present.
John Moore Richardson, being sworn, said: I am a storekeeper in Nelson. I saw Burgess on 14th June, about nine o'clock in the morning. I sold him a suit of clothes that morning. The whole amount was £6 17s. He paid me.
Charles Flood, being sworn, said: I am a tailor residing in Bridge-street. I remember Kelly coming to my shop, about the 14th or 15th of June, a few days before his arrest. He ordered a pair of trowsers, and next he ordered a vest--a black silk velvet vest. I supplied them. He paid me £4 for them. A day or two after I supplied Sullivan with a pair of trowsers, and black silk velvet vest. He paid me £4 for them.
Cross-examined by Kelly: You told me you were stopping at Mr. Carter's, Lord Nelson Hotel, and you said you came from the West Coast.
John Thornton, being sworn, said: I am a storekeeper in Nelson. I have seen Kelly and Sullivan. They came to my shop on the 14th June. Kelly came alone about 10 o'clock in the morning. I sold him a pair of knee-boots, 36s. Sullivan came with Kelly in the afternoon, and Sullivan had a pair of boots, 20s.; and on Saturday afternoon, they both came again, and Kelly had a pair of boots, 20s, and one pair of cork-soles, ls.
Cross-examined by Kelly: You asked me to put in nails in the knee-boots, and said you lived at Carter's, and would call again for them. One of you said you came from the West Coast.
George Potter, being sworn, said: I keep the Coach and Horses Hotel, corner of Bridge and Trafalgar Streets. I know Sullivan and Kelly. On Friday evening, previous to their arrest, they came to my house. They had something to drink. I saw them again the same evening about half-past seven or eight I saw them both together again on Saturday, I saw them all day on Sunday, together. I took them up to Waimea-west in my break. My daughter was with me. We stopped at the Turf public house, about four miles out of town. We had something to drink there; either Sullivan or Kelly paid for this, I don't know which. I was on the box. We next stopped at Moonlight's, just through Richmond. That is a public house. We had some refreshment there, only drink. One of them paid for that. We stopped and dined at the Bridge-Hotel, kept by Silcock, near the Wairoa Bridge. After dinner I went out to see if the horses had had something, and when I came back there was a bottle of wine on the table. We had beer and spirits at dinner. I don't know who paid. I asked the landlord "If all was paid," and he said yes, and I drove on
[Image of page 58]
to Palmer's, at the other side of the river. We had two bottles of sherry there. There were from twelve to thirteen people in the room. Kelly and Sullivan treated the men who were there. They paid for the drink that was had then. We came home that night. Sullivan and Kelly were in the habit of coming into my house after that, and I believe they had a glass of sherry in my house on Monday. I told them, on Monday, that I was going to the Star and Garter Hotel, to Mr. Disher's sale, on Tuesday, and I said I would take them. Sullivan did not come, Kelly did, and I drove him and my misses, and my child. I left a horse for Sullivan, and I believe he rode out to Richmond. They gave me to understand that they had been digging on the West Coast, and had done well.
Cross-examined by Burgess: I first heard the report of the men being missing on Monday evening, about half-past eight o'clock, when one of the men was apprehended at the Wakatu Hotel. It was spoken of at my house, but not in the presence of Sullivan. When I was coming back from the sale, I passed Sullivan on my pony, and another man on a bay horse. I don't know if the other man was Burgess. I drove fast past them, and they galloped after me. After we passed Sullivan, I hallooed after him about being late for his ride, and sung out that I must fine him a bottle of champagne. The other man then galloped past.
Cross-examined by Kelly: There was no talk on Sunday about the missing men. The affair was not known. I did not read the report of your examination. I am no scholar. Sullivan did not give me a pencil-case and a few small nuggets of gold on the Sunday. I have none of the kind in my possession that I am aware of. While you and I were out on the Tuesday, the police inquired of me if I had seen any person go past on horseback. When we went through the toll-bar a woman asked me if I had heard anything of the missing men. I said, "No, not yet." A man ran out of a house on the road, and asked me a similar question, and I said "No." While on the road, Kelly and I were talking about the missing men, and I said to him "It was quite likely they were all tied to trees and starved." Kelly said, "Oh no, I don't think that;" and I said every man in Nelson should hire a man, if he can't leave his business, and go out and search for them. No other conversation passed between us about the men.
David Leslie, being sworn, said: I am a clerk, and live at Mrs. Sharp's, Bridge-street. I recollect, on a Wednesday, in June, I was going up the Maungatapu. I do not remember the particular date. I was walking, but I walked part of the way with Mr. Bown, who was riding a chestnut horse. Bown rode on. I left him about half-a-mile on the other side of Dwyers'. I met Mr. Birrell about 200 yards on this side of the water-shed of the Maungatapu. I was taking a walk to get a view of the country. I went on as far as a mile, or a mile and a-half, on the other side of the Maungatapu. I did not see any of the prisoners on the road about half-a-mile on the other side of Dwyers'. I did not see any persons encamped near the road-side, nor any signs of such. I saw no person encamped, nor any tent, clothes, or opossum-rug. I saw no sign of five or smoke.
Edwin Edwards, being sworn, said: I am Sergeant of Police, in Nelson. I went to the Lord Nelson Hotel for some articles, on the 10th June. The house is kept by Robert Carter. I fetched away an opossum rug containing several articles; a knife was wrapped up in the rug. The articles were pointed out to me by Mr. Carter as belonging to Noon, who is now Kelly. I gathered other articles up and took them to the lock-up. [Knife produced.] This knife is the one that was lying under the valise, partly rolled up in the centre of the opossum rug. The opossum rug was not fastened, but partly folded and lying on the bed. I took the things to the Police-station and handed them over to Mr. Shallcrass.
Cross-examined by Kelly: Mr. Carter told me you were stopping at his house in the name of Thomas Noon. T had no name given to me. After you were arrested Carter spoke of you as Thomas Noon. I arrested you on Tuesday night, the 19th June, between eight and nine o'clock. I collected the things together before I arrested you, and was in the act of bringing them down. I was not in the lock-up when the charge was booked.
William Fitzgerald, being sworn, said: I am one of the Nelson Police Force. I remember the arrest of the prisoners. I was present when Kelly, Burgess, and Sullivan were brought into the lock-up. I saw them searched. I know what articles were found on them. I took a memorandum of the articles found on them. [Memorandum of Burgess's articles produced.] This is the memorandum of the things I took from Burgess, who called himself Bichard Henry Miller. I took three £10 notes, one £3 note, five £1 notes, one sovereign, one half-sovereign, and two shillings in silver. That was all the money. There were two screws, one purse. [Produced.] This is the purse. From Kelly, who called himself Thomas Noon, I took one £10 note, one £5 note, three sovereigns, one crown piece, one half-crown, one florin, three shillings, and four sixpences in silver. That was all the money. One parchment miner's right, with the name of Noon on it; one watch-guard; two wooden pipes, one tobacco-pouch, one purse, one pocket-book, two pocket-handkerchiefs, one necktie, one skein thread, two buttons, three accepted bills, two half leaves of an English grammar, one small piece of tweed. There is a name on the leaves of the grammar--Thomas M'Grath, Wakamarina, is written on them. On Sullivan, who gave the name of Thomas Joseph M'Gee, I found one £20 note, one £3 note, four £1 notes, one shilling, four sixpences in silver, four precious stones, one meerschaum pipe, one clasp-knife, one metal match-box, one tailor's thimble, one new leathern purse, one necktie. I tied each man's things separately, and handed them to Mr. Shallcrass. I made a memorandum of them afterwards, and copied it while the facts were still fresh in my recollection.
Kelly: Will you read the receipted bills and the miner's right found on me?
The REGISTRAR then read out the miner's right, issued in the district of Hokitika, and signed by George Sale, Esq, Commissioner, and also two receipt for money paid in Hokitika to Mr. Christen-
[Image of page 59]
son, for jewellery.
Kelly: Were there not taken off me two vouchers for £116 worth of gold sold by me in Hokitika, in April and May last?
Witness: No.
Kelly: Did you take a note of everything found on my person?
Witness: Yes, I did.
Kelly: Were there not several persons present when I was searched?
Witness: Yes, I believe there were persons there.
Kelly: Did you not take off my comforter, necktie, spectacles, and collar?
Witness: Not that I am aware of. I do not recollect doing so.
Kelly: Is there not a book kept in which entries are made of the things found on those who are taken to the lock-up?
Witness: Yes, the sergeant keeps the book.
Kelly: Your Honour, I should like to have the book produced.
The JUDGE: You can, if you like, subpoena the sergeant to produce it.
Joseph Bradcock, being sworn, said: I am a police constable, living in Nelson. I was on the Maungatapu on the 18th June, with Theophilus Mabille, searching for the missing men. He gave me two pieces of paper and a flour bag whilst there. One piece of paper contained pepper and the other gunpowder. [Paper produced.] These pieces are the same. They are pieces of the Marlborough Press. On the paper with the powder I noticed the name of the Marlborough Press. I noticed the leading article commencing with the words, "A very pretty quarrel." I gave them to Constable Marten to take to Mr. Shallcrass. The pieces of paper were given me by Mr. Mabille at the camp of the Search Party. I was present when the gun was found, about 100 yards this side of the third creek from Franklyn's Flat. The creek is on this side of the rock, and not far off it. The gun was a double-barreled one, complete, and loaded and capped. The barrel was attached to the stock by a piece of hoop iron. It was found on the lower side of, and about 100 yards from, the track, in the brushwood. It was in a position to which a man on the track might have thrown it. I saw a shirt found near the track in the bush on the lower side of the road, about ten yards farther down the road towards the rock. The gun might have been 100 yards off the track, perhaps not so much. The shirt was rolled up and stuffed under a log. I sent it with the gun to Mr. Shallcrass by Constable Marten. I saw the horse after it was found, lying on the ground, about 100 yards nearer to Nelson than where the gun was found. The horse was lying about 80 or 100 yards from the track. I produce the gun. [Gun produced.] This is the same gun, but then there was no ramrod to it. This stock and barrel were fastened together by a piece of hoop-iron.
Burgess: When was the horse found do you say?
Witness: On the 20th June.
Burgess: And when were the shirt and gun found?
Witness: The gun and shirt were found on the 22nd, and forwarded to Mr. Shallcrass in Nelson, on the 23rd.
Kelly had no questions to ask this witness, nor had Mr. Pitt, on behalf of Levy.
Henry Marten, being sworn, said: I am a police constable, residing in Nelson. I was one of the Search Party engaged in searching for the missing men, in June last. I was given some trunks and swags whilst on the Maungatapu by constable Bradcock some papers, containing pepper and gunpowder.
Mr. PITT: Your Honour, my client Levy has handed me a note, in which he says, that Sullivan has just given a paper to Mr. Shallcrass, which he wishes should be read.
The JUDGE: What paper is it Mr. Shallcrass?
The note in question was handed to his Honour, who said that there was no doubt the proceeding was irregular, and read it aloud. It contained a question as to whether Mr. Shallcrass could be asked if Sullivan had sent for him previous or subsequent to the proclamation of pardon being issued.
Examination of witness continued: I also received a gun fastened together with hoop-iron; [produced] this is the one; also a shirt. The gun, pieces of paper, and shirt, were brought to Nelson on the 23rd, and I delivered them over to Mr. Shallcrass. They are the same as now produced and in the same condition, except that they were then damp.
Peter Levy, being sworn, said: I am a constable residing in Nelson. I recollect the prisoners were had up before the Resident Magistrate charged with the murder of James Battle. Burgess made a statement to the Magistrates. In consequence of which I went to Toi-toi Valley, and found in a gorse hedge a parcel rolled up containing a gun and a revolver, and some powder. I gave them to Mr. Shallcrass.
James Stout, being sworn, said: I am a miner residing on the Kanieri river, near the Hokitika river, on the west coast of the Canterbury province. I had a gun in my possession in January last, but it did not belong to me. [Gun produced, which the witness scanned carefully in every part for several minutes.] This is the gun. It was stolen from me. Its appearance since I last saw it has greatly altered. The veneering has been worn off the stock; there is also another ramrod; and the key which fastens the stock to the barrels is also not the same. I had a key made for it by a blacksmith in Hokitika, but the one on it now is another. The gun was stolen from me on the 1st of January last.
The JUDGE: How then, notwithstanding these great alterations in its appearance, can you identify the gun as yours?
Witness: A piece some two inches in length was cut off the barrels whilst the gun was in my possession, and at the time I lost it the iron at the breech was much shaken. It was loosened when I was once firing in the bush. The iron at the breech is started in the gun now produced in a similar manner. The initials of the maker's name are the same, There is also a stamp on the barrel, which I recognise as well.
The JUDGE: How can you tell that the gun now produced has had two inches cut off the end of the barrels?
Witness: Because the upper keeper for the ramrod is gone.
[Image of page 60]
The JUDGE: You trow that most guns have the upper keeper of the ramrod nearer the end than the upper one on the gun produced is?
Witness: Yes, your Honour. The maker's name is the same--"William Bradley," and there is a coat of arms, with a kangaroo in it, which is also similar.
The prisoners Kelly and Burgess put no questions to this witness.
Mr. PITT: When you had the two inches cut off, was anything else done to the gun?
Witness: Yes, I had a new key put in to connect the stock and barrels.
William Warner, being sworn, said: I am eighteen years of age. I found a revolver in Tasman-street, in a furze hedge. I gave it to Mr. Helps. I found it on Thursday last. Mr. Shallcrass got it in my presence. Tasman-street is a street at the upper end of Bridge-street.
Burgess: I wish the pistol to be produced. [Pistol produced.]
Witness: It was a pistol like this.
Robert Shallcrass, being sworn, said: I am Chief Officer of Police. I was present at the Police office when the prisoner Levy was brought there. He was searched. It was on Monday night, the 18th of June. There was found on him one £20 note, two £10 notes, ten £1 notes, thirteen sovereigns, one half-sovereign, five shillings, two sixpences (£63 16s.), one gold watch, chain, and locket, two finger rings, one watch key, one pocket-book, one tobacco pouch and tobacco, one meerschaum pipe, one clasp knife, one lead pencil, one match-box and matches, one necktie, one piece of tobacco, one button, one shirt collar, one pocket handkerchief, and four pieces of paper. [They were produced all together.] Levy said something on that occasion, in answer to questions. I asked him where he had come from, and he said he had come from the Buller; that he had come overland alone; that he was at Deep Creek on Sunday, 10th of June. I did not say anything to induce him to believe that answering my questions would do him good. I told him that he was apprehended on suspicion of committing murder, and that a person had identified him as having been at Deep Creek on Sunday, 10th June. I asked him if he had come down from Deep Creek on Monday, 11th June. He said he had, alone. I then asked him if he was not accompanied by a tall young man who was carrying a double-barreled gun? He said, "Yes." I then asked him if there was not another voung person who came down with them, and who also had a gun? He then said, "Yes, there were three of us altogether." I asked him where he slept on Monday night, and he said he had slept some distance on this side of the Wakamarina river, on his opossum rug, alone; that he had walked into Nelson the following day alone; that he had no mate or mates, and he refused to tell me where he was lodging in Nelson.
Mr. HART: Did you subsequently receive information where certain bodies were to be found?
Witness: Yes.
Mr. HART: From whom?
Witness: From Sullivan. It was on Wednesday, 28th of June. The prisoners had been examined before the Magistrates before that time. Evidence had been taken two or three times before this.
Mr. HART: At what time of day was this information given you by Sullivan?
Witness: About half-past ten o'clock, or between that time and eleven.
Mr. HART: How did you get the information?
Witness: Sullivan had sent for me several times during the previous day, hut I declined to go, because I was so often sent for on frivolous pretences previously to this.
The JUDGE: What induced you to go?
Witness: Sullivan then sent me a scrap of paper, [Paper produced and identified.] It was read as follows:-- "I have some important information to give you or your officer.--Thomas Sullivan. Allow me out to write a letter, and then I will let you know."
Witness; On getting this, I went and saw him, and let him out. He told me that he intended to make a confession of all that happened between him and his fellow-prisoners ever since he became acquainted with them.
The JUDGE stopped the narration, as being hearsay.
Witness: Sullivan then made a full communication to me, and I went and acted on it. I started from Nelson on the 27th of June last. There had been a voluntary arrangement among the citizens to search for the bodies of the missing men, I sought out Mr. Saxton, on the Maungatapu, who was in charge of the Search Party. In consequence of what I had heard I pointed out a certain locality to him, and the party went in that quarter. I went part of the way. In consequence of this information four dead bodies were found. I did not see them found; I saw the four bodies about half-an-hour after the party had left me. I did not knew any of the bodies. They were afterwards brought to Nelson and laid in the engine-house. They were there before a fifth dead body was brought there. I got one £10 note, and ten £1 notes, from Mr. Carter, of the Nelson Hotel. I received a £20 note from Sullivan. I believe it to be a £20 note. It remains rolled up in the same state as when I got it. [Produced, and found to be a £20 note.] I do not know where he took it from. I saw several articles found by Sergeant Edwards. [Knife produced.] I received this knife from Sergeant Edwards. I received the gun identified by James Stout from Constable Marten. I received from Constable Levy a parcel containing a double-barreled gun anil a revolver--that is it, the silver-mounted revolver; and a canister of gunpowder. There is a name on the name-plate of the gun. The name is "Thos. Noon." It is scratched on. The other revolver pistol was given to me by Mr. Helps, in presence of the last witness. The last gun was given to me with the barrels and stock detached from each other. The first gun given to me by Marten was not detached. Both barrels were loaded. I had the charges drawn by a gunsmith in my presence. I have the pieces of paper which formed the wadding, and also the bullets. [Wadding produced, piece of printed paper, with advertisement on one side. "Marlborough Press" occurs, within inverted commas.] The bullets were too small for the barrels, and wera wrapped round with brown paper.
[Image of page 61]
Mr. HART: Have you traced where these pieces of paper were torn from?
Witness: I have. Both of the pieces of paper which formed the wadding I have traced and fitted to the piece of paper in which the gunpowder was found. [Large piece of paper produced, and the small pieces fitted with nicety into a part of the larger piece from which they had been torn.] The printed matter on the two pieces of paper corresponds on both sides with the printed matter from which they had been torn. I produce also one piece of paper in which the pepper was found, This piece was also fitted to the larger piece in which the gunpowder was found, and witness deposed that the edges of the torn parts fitted together, and the printing corresponded. I received the pieces of paper produced from Constable Marten, I found, in the Maungatapu, the courier bag, the purses and the contents, at the old chimney, as on the map. I produce a bag containing some gold. It contains some peculiarly marked gold, one flat nugget. [This nugget was set apart.] I produce a shirt, which was delivered to me by Constable Marten. There are marks on the shoulder, which we supposed to be blood. There was a rent on the shoulder. It has been subjected to a scientific examination. [A saddle strap produced.] This strap was taken out of one of the prisoners' swags, The swag belonged to Burgess, being the swag brought from the house of Porcelli, the fisherman. The small pocket-knife I found on Kelly. The leaves of the grammar [part of English grammar and a separate leaf of same produced] were taken from Kelly. A small piece, consisting of a leaf of an English grammar, was produced before the Magistrates by the witness M'Cabe, with the name written "Thomas M'Grath," and "Abridgement of Cobbett's English Grammar," also written. There is the same name on the other part of the book, and the writing corresponds.
Burgess: You say you found the satchel?
Witness: I was told to look for it.
Burgess: By whom?
Witness: By Sullivan.
Burgess: When was the proclamation placarded on the door of the watch-house?
Witness: On Thursday, 28th of June.
Burgess: When did he ask to see you?
Witness; On the previous day several times, but I did not go. The piece of paper asked me to go, and I went.
Burgess: When you came, did he make any excuse at the aperture of the cell door?
Witness: Yes.
Burgess: What was that excuse?
Witness: He said he wanted to write a letter to his wife.
Burgess: He did not tell you direct that he wanted to make a confession?
Witness; I had received his note before that time.
Burgess: Could he hear the proclamation read, if read?
Witness: If the door was closed or nearly closed he could read it, not if it were open.
The JUDGE: Sullivan has admitted that he heard it read, and knew its purport, what good will this question do?
Burgess: He has said, your Honour, that he could not get his head through the aperture in the door, and I wish to prove that he could.
The JUDGE: Mr. Shallcrass, could Sullivan get his head through the opening in the door?
Witness: I could not get mine, your Honour, and I don't think he could his.
Burgess: What is the ordinary charge of powder to load a gun like that, to carry ball?
Witness: I could not say. I measure mine.
Burgess: Would that [the top of a canister in witness' hand] hold a charge of powder?
Witness: A small charge.
Kelly: Did you ever take Sullivan with you to find any property belonging to this case?
Witness: Yes.
Kelly: How often?
Witness: Once. It might have been twice.
Kelly: What did you take him for?
Witness: I took him to find some strychnine, and a pistol, which had been hidden in a gorse hedge over in the Wood.
Kelly: Did he find it?
Witness: No.
Kelly: Did you ever send him with any constable to find any property belonging to this case?
Witness: No.
Kelly: Before he was placed in the witness-box, how much of property belonging to this case was shown to him?
Witness: Nothing, except a strap, and that he described before he was shown it.
Kelly: Did you receive any information to intercept letters he had written to Victoria?
Witness: No.
Kelly: Did Mr. Sharp tell you that I told him, in presence of Mr. Pitt, that Sullivan had written some letters from New Zealand to Victoria that would prove his statements false against me?
Witness: No.
Kelly: Did you get any information to receive any letters which might be for Sullivan at the Post Office at Hokitika?
Witness: No.
Kelly: You did not?
Witness: No.
Kelly: Have you any letters belonging to Sullivan?
Witness: No.
Kelly; After Sullivan made his statement to you, did you give him any property that was taken from him when he was arrested?
Witness: Yes.
The JUDGE: What was it?
Witness: A pipe, a worsted jacket, and a pocket-handkerchief.
Kelly: Anything else?
Witness: No.
Kelly: Did you give him a comforter?
Witness; No.
Kelly: How came he to have one?
Witness: If he got one, he must have got it from me, but I do not recollect. I must have sent it to the gaoler for him, the same as I sent your spectacles;
Kelly: How often have you given him tobacco and matches?
[Image of page 62]
Witness: Never gave him any.
Kelly: Did you find the men's bodies near the spot where Sullivan pointed out?
Witness: Hot so near as I expected. They were farther up the hill.
Kelly here read from a portion of a newspaper a part of the evidence given by Mr. Shallcrass before the Resident Magistrate, with a view, apparently, to show some contradictions between the witness's statement, then and his evidence now; but there was no discrepancy.
Kelly: Did Sullivan give you any money?
Witness: Yes, a £20 note. It was rolled up into a very small compass.
Kelly: Did he tell you it was part of the proceeds of what was taken from the murdered men?
Witness: He did.
Kelly: Did Sullivan give you, or any one else to your knowledge, one £10 and two £20 notes to send to his wife?
Witness: No, he did not.
Kelly: When Sullivan was in the lock-up cell did you get pen, ink, and paper, for him?
Witness: No.
Kelly: How did he write that note he sent to you?
Witness: He wrote it with a pencil.
Kelly: How did he get the pencil and paper?
Witness: I don't know how he got the paper, the pencil, I believe, be got in Court when he was before the Magistrate, and when all the prisoners asked for pencil and paper.
Kelly: Were there not, in the things you took from me, two bank receipts for gold sold by me in Hokitika, one dated April, and the other May?
Witness: No. There was nothing of the kind taken off you except the two receipts produced in Court to-day.
Kelly: Is there a report-book kept at the police station?
Witness: Yes.
Kelly: Were the articles taken from me when I was arrested entered in that book?
Witness: No.
Kelly: Why?
Witness: Because it is not our custom to do so. In such cases, the things found on each man are put in along with an inventory of them, and the bag and its contents are then placed in a storeroom kept for the purpose.
Kelly: When you took Sullivan out to look for the things, you say you could not find them. Did you give him anything to drink?
Witness: No.
Kelly: Did anyone else give him anything to drink?
Witness: No.
Cross-examined by Mr. PITT: When Sullivan made his statement to me, he did not know that the Crimean shirt produced had been found; but it had been found then. I sent the shirt to Dr. Cusack on 25th of July. It did not go before that time because it had never previously been carefully examined. The shirt was never produced in the Magistrate's Court. Other things were sent to Dr. Cusack for examination. There were portions of a shirt, a comforter, belonging to either Burgess or Levy, as it was found at the Oyster Saloon among their things a small portion of a sack found in Sullivan's swag. We have not yet received those things back from Dr. Cusack. There was a strap or two found among Sullivan's things taken from Owens' house. They were new ones. Mr. Joseph Harley went with me to the old chimney. It was he who actually found the satchel and other things there, and he pointed them out to me, and took them up. The things were not all found from Sullivan's information; in fact, the most of them were found without it: the horse, and swags which were on the horse, and the swags found elsewhere; two long-handled shovels, a double-barreled gun, the shirt referred to, and the parcel which Sullivan threw away; and the papers with the gunpowder and the pepper. He told me where the pistol and strychnine were likely to be found, where the purses were to be found, and where the bodies of the murdered men were likely to be found. We intercepted no letters of his.
Kelly: I would like the Government of this country to order that the letters be produced which Sullivan wrote to his wife.
The JUDGE said that could not be done. Governments are not omnipotent bodies, and cannot do impossibilities.
The Court here adjourned for half an hour.
The Court having reassembled, Mr. Shallcrass was again placed in the witness-box, at the request of Mr. Pitt.
Mr. PITT: Did you not, the day before Sullivan confessed, send Mr. Isaacs, a Jewish Rabbi, to the gaol with one of the placards which have been referred to, in order to induce Levy to confess?
Witness: I did not send him. He visited Levy in gaol, and took one of the placards with him a few days prior to Sullivan's statement being made.
The JUDGE: Does the prisoner Levy belong to the Jewish nation or persuasion?
Witness: I believe so your Honour.
The JUDGE: Has his Rabbi seen him?
Witness: Yes, he visited him, I believe.
The JUDGE: Sullivan's statement was made on the 28th June, and the placard offering the pardon is only dated the 26th June, in Wellington; so he could hardly have taken one of the bills to the gaol a day or two before Sullivan confessed.
Mr. Shallcrass: The placard he took with him was not a copy of the one you refer to, your Honour.
Luke Nattrass, being sworn, said: I am the Librarian of the Nelson Institute. I receive regularly the Marlborough Press through the post from the publishers. I received one of the 30th May last. I retained it in my possession until I gave it to Mr. Adams. I entered the circumstance in my rough day-book. I gave it on the 9th of July.
The Judge remarked that this testimony appeared irrelevant, but consented to place it on his notes on the statement of the Crown Prosecutor that it would be made evidence.
Henry Adams, being sworn, said: I am counsel for the Crown in this case. I received a copy of the Marlborough Press newspaper, of the 30th of May, from the last witness. I cannot speak positively to the date upon which I received it, but I have re-
[Image of page 63]
ceived no other. I immediately gave it to Mr. Sharp.
John Sharp, being sworn, said: I am Registrar of this Court, for the Province of Nelson. I received a Marlborough Press, of the 30th May, from Mr. Adams. I produce it.
The JUDGE: What do you propose to show from this?
Mr. ADAMS: We propose to show that the pieces of paper found are pieces of the Marlborough Pressof a certain date.
Examination of witness continued: I saw the charges drawn from this gun [gun produced] by a gunsmith, in the presence of Mr. Shallcrass. I saw two pieces of paper taken out. Those produced by Mr. Shallcrass are the same. I have compared these pieces of paper together, and also the papers containing the pepper and gunpowder, with the Marlborough Press produced, and the printing corresponds on both sides. The edges of the torn pieces of paper fit together.
The JUDGE: But have you examined all the papers published in the colony of that date, Mr. Sharp?
Mr. SHARP: I believe I have almost all.
The JUDGE: It is impossible to make such evidence exhaustive. I have known a great many papers in England which corresponded exactly with each other except in parts relating to local matters.
Examination continued: I examined the other gun and revolver. I noticed a name written on the silver mounting of the gun. The name on it is "Thos. Noon." I believe the writing to be that of the prisoner Kelly. I judge this from specimens of his handwriting which I have.
The JUDGE: You are aware, Mr. Adams, that there is a clause pertinent to this subject in the Act recently passed, by which the law relating to the comparison of handwriting has been extended to criminal eases?
The JUDGE: Mr. Sharp, have you any of Kelly's handwriting?
Mr. SHARP: Yes, your Honour, what has been given to me from prisoner Kelly.
Mr. PITT: I object to this evidence being taken, your Honour, as it appears to refer to engraving and nor to handwriting.
The JUDGE: You do not mean to say, Mr. Pitt, that because it is on metal it is not handwriting. You might as well say that when an ancient philosopher took his stylus and wrote on his wax, that it was not his handwriting.
Mr. PITT: I maintain, your Honour, that the writing on a plate cannot be judged by the ordinary handwriting of a person.
The JUDGE: A certain style can be detected in the marks of a shorthand writer which would be admissible as evidence, or in paintings even. I have known many cases in which even a particular way of stitching has enabled a man to swear to the workman. A man can often say, "That is my work; I know by the manner in which the stitches are made."
Mr. SHARP [producing some of Kelly's handwriting]: The name on the gun is like the writing of Burgess slightly, but it is in the main more characteristic of Kelly's.
The JUDGE thought the evidence of little importance; but if it was wished, Mr. Sharp could be examined as an expert.
Examination continued: I examined the revolver sufficiently to say that some of the chambers had not been fired off. Two of them did not present the same traces of recent discharge as the others did. The revolver and gun were brought in by Peter Levy and Sergeant Nash. They brought them in on the 9th of August, the day of Burgess' confession. I know that the two chambers were not fired off, because I took out some powder from the chambers, dried it, and burnt it.
Theophilus Mabille, being sworn, said: I am a civil engineer. I formed one of the Search Party in June last. I was one of the first Search Party that left Nelson on the 18th June last, with Flett, Bradcock, and Marten. We went up the Maungatapu. We stopped first at Smith's accommodation house, then at Dwyer's, and then at an old chimney on the Maungatapu. That was between three and four in the afternoon. I observed that a fire had lately been lighted in the chimney. I observed this from the state of the burnt logs in the chimney. I also noticed a piece of paper rolled up, about three feet from the chimney. I unrolled it, and found it to be a piece of newspaper containing a black substance, which was in a solid state. I called the attention of the party to it, and gave it to Bradcock. [The paper and contents produced.] This is the same. I continued my search, and told the men with me to look carefully round the chimney, and a man named Henry Hope found another paper, containing some pepper. I saw him find it. I compared it the same night, at Franklyn's Flat, with the other pieces, and found that they corresponded in their edges, and would fit. The next day, on the other side of the Maungatapu watershed, at the rock, I found another piece of paper. It was a piece of an English grammar. [Piece produced.] This is the piece. I gave it to nobody. I left it on the same spot, thinking it unimportant. I found by the rock the mark of a bullet ia the tree, and some black thread.
William Henry M'Cabe, being sworn, said: I am a gentleman, residing in Nelson. I have no avocation. I was one of the Search Party, who went to the Maungatapu to search for the missing men. I found there a piece of paper between the rock and where the horse was found. [Piece of paper produced.] This is the piece. I brought it to Nelson, and produced it in Court at the magisterial examination.
John Lethbridge D'Albedhyll, being sworn, said: I am accountant at the Bank of New South Wales, Nelson. We buy gold. Some gold was bought on the 14th June last, by me, for the bank. It was about eleven o'clock in the forenoon when it was bought. I could not say who it was that sold it. He appeared to be a digger from his dress. I produced the voucher of the sale of gold in the Resident Magistrate's Court. I got it from the bank. It is called a bank voucher or a purchase ticket. It was drawn up by me that day. It is from that the entry in the ledgers is made. It is an account of gold purchased by me on that day. There were two lots sold that day; one of 20 ozs. 19 dwts. 14 grs., which
[Image of page 64]
was bought at 73s., amounting to £76 11s. 6d. I cannot say from the voucher what time that was bought, but I am sure it was bought in the forenoon. There was another lot sold immediately after, or before, of 7dwts. at 73s., amounting to £l 5s. 6d. The gold was Wakamarina gold. I know from its appearance that it was Wakamarina gold, and as such it was sold. Wakamarina gold fetches two or three shillings an ounce less than other gold.
Burgess: Did you say you forgot who sold you the gold that morning? Let me refresh your memory. Do you not send those who are anxious to sell gold into a different apartment to the one into which you first come?
Witness: Yes.
Burgess: Is not there a counter in that room?
Witness: No.
Burgess: Is there not a glass case there?
Witness: Yes.
Burgess: Is there not a gentleman in the Bank who is shorter and stouter than yourself?
Witness: Yes.
Burgess: Don't you recollect asking the condition of the Wakamarina gold-field of the person from whom you bought the gold?
Witness: It is very likely I did. I usually try and get all the information I can concerning the various diggings.
Burgess: Don't you recollect Mr. Goulstone (I think is his name, is it not?) looking over your shoulder at the gold whilst you were buying it?
Witness: No, I don't.
Burgess: Are you in the habit of taking the names of those from whom you buy gold?
Witness: We were not then, but we do now.
Burgess: Do you usually give a receipt for gold bought?
Witness: Not unless asked for.
Burgess: What size are your cheques?
Witness: The usual size.
By the JUDGE: We don't always give vouchers unless asked for. We always pay the money from the till, as we only have three hands in the bank, and I act as cashkeeper and gold buyer as well. We don't always give sellers a memorandum of the gold bought, When asked we do so, and we tear the memorandum out of a book, leaving the butts without marking them, as it seldom happens we are asked to give memoranda.
Burgess: Do you remember anyone coming into the Bank about half past one, and tendering forty sovereigns for two twenty pound bank notes?
Witness: No. I do not.
Burgess: Do you remember nothing at all of the circumstance?
Witness: It is one that happens so often that it would make no impression on my recollection.
Burgess: Then, your Honour, I should like you to subpoena the Manager.
The JUDGE: You can, if you like, subpoena him, of course,
Burgess: I am ignorant of how I should proceed, and therefore apply to your Honour.
The JUDGE: It is all affectation; you know perfectly well if you apply for a subpoena through the Governor of the Gaol, your request will be granted.
Oliver Wakefield, being sworn, said: I am clerk in the Bank of New Zealand, in Nelson. I remember seeing Sullivan in the bank on the 14th June last. He was selling gold. I did not purchase the gold. This happened at about 12.30. This parcel consisted of a few ounces. I know the general character of the gold; it was nuggety gold. I believe £3 13s. 3d. an ounce was paid for it. This is all we give for Wakamarina gold. This was some gold from there. Mr. Lyell, the teller, bought the gold.
Burgess: Are you an assayer?
Witness: No.
Burgess: You said it was nuggety gold; can you give any description of the nuggets?
Witness: No, I cannot.
Burgess: Was this said to be West Coast gold?
Witness: Yes.
William Duncan, being sworn, said: I am clerk at the Union Bank of Australia, in Nelson. I bought some gold on the 14th June last--28 ozs. 1 dwt. 11 grs. --amounting to £106 7s. 6d. The seller gave me the name of Everett. I cannot recognise either of the prisoners, or Sullivan, as having sold the gold. I did not pay the money, but I know the teller's marking amounted to £106 7s. 6d. The price was that of Grey gold. I could not say whether it was or not. It might or might not have been. Vouchers are only given when asked for. I gave the seller a cheque for the amount.
John Lyell, being sworn, said: I am clerk in the Bank of New Zealand. I recollect buying some gold on 14th June last. I bought several lots at various times of the day. I believe I bought one lot from Sullivan. I believe that Sullivan was kept some time waiting in the Bank, but my recollection is not clear on that point. The amount sold was worth £5 3s. 4d. The gold was put in a bag with some other gold. I gave some gold afterwards to Mr. Shallcrass. I cannot say whether the gold given to Mr. Shallcrass came out of the same bag as that into which the gold Sullivan sold was put. We had four bags of gold. They were all more or less mixed. The gold I gave to Mr. Shallcrass was selected from one or more of these bags. There was another lot sold, amounting to 11 ounces, some pennyweights and grains, at £3 13s. 3d. an ounce. It came to £42 5s. 3d. I bought it. I do not know who from. The price given was that of Wakamarina gold.
Cross-examined by Mr. PITT: I have been told before that it was Sullivan who sold the gold, but I am not sure I was told before I was examined before the magistrate. I know Sullivan from the general appearance of his features. I believe I never was told by the police that Sullivan was the man who sold the gold. My own recollection enables me to speak as to Sullivan's identity.
Henry Goulstone, sworn, said: I am acting manager of the Bank of New South Wales. I do not remember being present; when any gold was being sold on the 14th of June last.
Burgess: Do you remember anyone coming into the bank, and changing forty sovereigns for two twenty pound notes?
Witness: Such an occurrence happens too often for me to remember it particularly.
[Image of page 65]
Charles Morgan, sworn and examined, said: I am a miner residing at Deep Creek. I recollect having a small piece of gold in my possession some months ago shaped like a cockatoo's head [produced]. This is the piece. I gave it to my wife to put by; it then remained in her box for some months, when it was sold with some more.
Maria Morgan, sworn and examined, said: I am the wife of the last witness, I remember my husband giving me a particular nugget about three months before I sold it. I afterwards sold it to Mr. Felix Mathieu, of Deep Creek, on 9th June. I sold it then with six other ounces. He was then buying gold. That is the piece. [The witness here selected the piece from amongst a parcel of gold]. I was at Deep Creek on Sunday 10th June last. I saw Levy at Mathieu's Cafe de Paris. I knew him on the Dunstan Diggings in Otago. I had a conversation with him regarding Mathieu and others going over to the Grey, or Cobden. I said they were going on Monday or Tuesday, and that the chief commissioner there had written a letter for them to come over. I told him Mathieu was going to put up a public-house there. Levy said "he can't put up any kind of a house for less than £100." I did not say anything about Mathieu's circumstances. Levy stopped that, night at Mr. Mathieu's. I saw him there next day at breakfast.
Cross-examined by Mr. PITT: Levy was dressed in dark clothes, and had no coat on, but a waistcoat. [Levy's scarf produced]. This is like the scarf he wore. I told him there was no rush there. I read the newspaper, and there was nothing in the Marlborough paper of that time about any prospecting claim being granted.
William Hall, sworn: I am a digger residing three miles from Deep Creek. I sold some gold to Mr. Felix Mathieu; I should know two of the nuggets, one piece is flat, and smaller at one end than the other, and coated with black at one end. [Gold produced]. These two pieces were amongst what I sold on the 10th of June last to Felix Mathieu.
Joseph Turner, sworn: I am a miner residing at Deep Creek. The last witness--William Hall--was a mate of mine. I know the two pieces of gold he identified; they once belonged to me, but Hall sold them.
The JUDGE here remarked that, the evidence regarding the particular nuggets was not conclusive. It had only been proved that amongst the mixed gold in the four bags, into one of which the gold sold by Sullivan had been put, there had been found nuggets which had belonged to Mathieu.
The JUDGE here stated that there was only one other witness for the prosecution (Daniel Cooper) on his list to be examined.
Mr. HART said that the prosecution had given up the intention of examining this witness.
The JUDGE: Do you, Burgess, Kelly, and Levy, wish to have this witness examined?
Burgess: No, your Honour.
Kelly: No, what should I want him examined for?
Mr. HART then said that there would be two more witnessess forthcoming for the prosecution, but he was not prepared at once to undertake their examination.
The JUDGE asked whether, if the Court adjourned for a short time, he would feel prepared to do so?
Mr. HART thought not, and the Court was adjourned until Monday, at 9 a.m.
FIFTH DAY,
MONDAY, SEPTEMBER 17.
Mr. Shallcrass was recalled, and the following question was put to him by the Court: at the request of Mr. PITT:--
The JUDGE: Did Sullivan give you information as to the quantity of gold sold at the banks before the bank clerks' evidence was given before the Resident Magistrate's Court, and before any previous communication respecting the amount of gold sold had been made to Sullivan?
Mr. Shallcrass: Sullivan had given me information as to the exact amount of gold he had sold himself, before the evidence of the bank clerks was given, and before I had said anything to him on the subject. He gave the information at different times. The first time he told me was about the 28th June. I had made application to the banks for gold before this time, but I do not think I received any information respecting gold at that time from the banks.
Burgess said: I wish your Honour, to ask Mr. Shallcrass a question, not on this matter. I wish to know whether he has satisfied himself if he can put his head through the aperture in the cell door? The question was put through the Judge.
Witness: I can do so now your Honour. Burgess has shown me how. There are several persons in Court, who tried and could not succeed, because they did not know the way.
Henry Dwyer, being sworn, said: I keep an accommodation house six or seven miles up the Maitai river. I have examined the upper side of the road to the Maungatapu between my house and the river.
The JUDGE: It appears to me that in taking this evidence you are attempting to rebut mere assumptions of facts which have not been proved. It is speculating on the truth of one of the prisoner's statements, not borne out by evidence. Burgess, do you object to this evidence being taken?
Burgess: No, your Honour.
The JUDGE: Do you, Kelly?
Kelly: No; I don't know how the witness has come here; whether he has been subpoenaed, or told what he is to say.
The JUDGE: The evidence is perfectly useless, I believe. One of the prisoners has consistently cross-examined all the witnesses for the prosecution in the endeavour to elicit certain evidence and has failed, and it is to rebut this assumed evidence that the witness is being examined. You have a right, however, Burgess and Kelly, to cross-examine the witness now that he has been subpoenaed.
Burgess and Kelly both were unwilling to ask any questions.
This closed the evidence for the prosecution.
In answer to questions from the Judge, Burgess and Kelly said that they intended to call witnesses; and Mr. Pitt intimated he should do so on behalf of Levy.
The JUDGE said that, as he understood the present
[Image of page 66]
Act, the course to be followed must be, that A should first open his case and state what he intended to prove, and then B and C should do the same. Then A should produce witnesses, and B and C follow with theirs. Thereafter A would sum up, and B and C do the same in rotation, all being entitled to fully dismiss the evidence on both sides, and after that the prosecution replies on the whole case.
The JUDGE then said: Burgess, the time bas now arrived when you can state to the Court what you intend to prove in defence, and by what witnesses.
Burgess: Gentlemen of the Jury, you have heard the statement of the approver, Sullivan, in which he says that he had no other illicit cause for making his confession than to bring me to justice. Now, I shall show to you by the witnesses that I shall call, that his conduct was entirely otherwise; and that instead of wishing to have any of us arrested, he wished to escape himself and for me to escape also. I shall not say much now, as in my general defence I intend enacting before you this fearful tragedy over again, to take you as it were to the very places where these terrible deeds were committed, and to show----
The JUDGE: Burgess, I may as well tell you at once that I shall not allow you to do this. I shall not permit you--either for the purpose of gratifying your own vain-glory, or, to take it in your own phrase, for what you call the "furtherance of the ends of justice," to state any fact which is not given in evidence, or any supposed fact of which you do not intend to produce evidence. If I were to permit anything of the kind, I should be violating the strict rules of evidence. You cannot give evidence for yourself in that position; and even if your course is not checked by counsel on the opposite side, I must interpose at some time. I have hitherto given you ample latitude, more I believe than I have been justified in doing; yet as you are undefended by counsel I have permitted that latitude; but I cannot allow you to abuse the privilege you have had, nor abuse the forms and established principles of an English trial, for vague purposes of your own. You must not say, in now addressing the Jury, anything except what has been proved in evidence, or what you intend to prove by your own witnesses. I give you this warning, and shall allow you to go on, but shall stop you when I think you are merely abusing the forms of justice.
Burgess then continued: The witnesses I shall produce will be merely intended to prove that Sullivan desired to escape, and not, as he has said, to assist justice, but really to evade it. But, your Honour, I am not accustomed to prepare cases for defence, and therefore I shall not address you further, but shall, as I have said, produce witnesses to show that Sullivan merely wished to escape as well as myself after the commission of these fearful crimes.
Kelly next addressed the Court. He said: I wish to call witnesses, gentlemen of the jury and your Honour, in order to prove that what has been stated by the man Sullivan against me is false; and I wish to call the landlady of the house I was living at to show that these things he has stated are false, as I am an innocent man, and did not kill anybody, and was not with them when they were killed, and also to show that what Sullivan has said about me is false.
The JUDGE: Well?
Kelly: am I to make my defence just now your Honour?
The JUDGE: You have now an opportunity of stating the particulars of the case you intend to set up as your defence; and all such particulars as you intend to prove by evidence you can refer to in this statement. You will have another opportunity of addressing the jury; and if you have anything more to say regarding what you mean to prove, now is your time to say it before calling witnesses.
Kelly: I don't wish to say any more.
Mr. PITT (counsel for the prisoner Levy), said that in opening the case for the prisoner in whose defence he was concerned, his remarks at present would be given more as a matter of form; and he might as well tell the jury at once that he intended to rest his defence mainly on the shortcomings of the case for the prosecution; and when next he addressed the jury, at the close of the evidence for the defence, he should make some remarks on the evidence adduced, and how far it applied to the parties charged with the murder of Felix Mathieu, and how far their conduct is or is not consistent with complicity on such a charge. Mr. Hart, in his opening address, had stated that he would call numerous witnesses, who would be produced and examined not for the purpose of establishing very material points, but to add a variety of incidents which when taken together would, he said, give weight to evidence for the prosecution as well as allow the prisoners the means of controverting any part of it in cross-examination or otherwise. It would be impossible for him (Mr. Pitt) to prove an alibi on behalf of the prisoner Levy, as no evidence had been adduced to show that he was connected with the murder at the time of its commission. And there had been no evidence whatever to show that the prisoner was on the road that day; for Mr. Galloway, of Picton, was the last on the road who saw them the previous day and they were never seen by the other persons who passed through afterwards. There was no evidence to show that they were on the road that day. With regard to Sullivan, he would produce evidence respecting the state of his clothes. he should call Mrs. Dickens, a washerwoman, to whom Sullivan sent articles of clothing to be washed; he should prove that these articles were different ones from those produced, and that she observed on the trowsers given to her marks of a very suspicious character. There were also several articles shown to a medical man, and which articles were found among Sullivan's things, and these were given to a medical man by the police. This witness would prove that on these articles, which were subjected to a scientific examination, were found stains of a very suspicious nature. Why he had not been produced on the part of the Crown, he (Mr. Pitt) could not protend to say. The medical evidence that had been brought by the Crown, respecting the case of the death of Felix Mathieu, he should endeavour to show was not to be depended on.
The JUDGE: Unless for the purpose of controverting the evidence of some of the witnesses, the cause of death is unimportant.
[Image of page 67]
Mr. PITT said that he would adduce the witness for that purpose, and to show that the appearance of Mathieu's body was not inconsistent with death from natural causes. The Crown evidence was not certain as to the cause of death; and he (Mr. Pitt) would trust, if he could so prove the inaccuracy of the medical testimony offered, it would go so far as to weaken the case for the Crown. He should add here, that several witnesses had been subpoenaed for the prisoner Levy, from the West Coast, but he feared they were not in attendance, and therefore could not be produced. That however, was no fault of the prosecution, and as they were not in attendance, he could proceed first to call the evidence of the woman who washed Sullivan's clothes.
EVIDENCE FOR THE DEFENCE.
Bartholomew Murphy, being sworn, and examined by Burgess, said: I am a constable residing in Nelson. I remember the evening of the 10th June, That was on a Tuesday. I was on duty in Bridge-street that evening. I was there for the specific purpose of arresting you. I saw you about eight o'clock in the evening. I rather suspected, from your conduct, that you suspected me to be a constable. I followed you till I came to Mr. Edwards's store. I then crossed the road. I spoke to some one there. I should know him again. It was the man Sullivan, and I asked him to deliver a message for me. I asked him if he would be good enough to call at Porcelli's Oyster Saloon, and tell the Italian to come to me, as I wished him to see a man I was looking after. He did not go. I was watching him down the street. He passed the door on the opposite side of the street without calling. I afterwards saw him again after your arrest. I arrested him and charged him on suspicion of murder. I afterwards said to him, "You did not deliver that message I sent by you." I do not remember that he offered any reason for not having done so.
His HONOUR said: I suppose, Mr. Hart, that in the case of one of the prisoners examining witnesses they can likewise be examined by the others, if they choose to adopt them as their own also. There are certainly more niceties cropping out in this case than probably were ever before seen.
Neither Kelly, nor Mr. Pitt on behalf of Levy, asked any questions of this witness.
Thomas Newton, being sworn, said: I am a livery stable-keeper, residing in Hardy-street, Nelson. I remember Tuesday, 19th June. I remember letting a horse of mine to a stranger that day. It was let out by my man, not by myself. I was at home when the horse was returned.
Burgess: Who was it returned the horse?
Witness: You did. I said at the time that you were not the person who hired it. You also said that you would require two fresh horses in the morning, and I promised to supply you with them.
Stephen Hopgood was next called by Burgess, but did not answer.
The JUDGE: Has this witness been subpoenaed?
Burgess: I requested that he might be subpoenaed your Honour. I wrote to Mr. Adams about it.
The JUDGE: Has the prisoner applied to you, Mr. Sharp, to subpoena Mr. Hopgood?
Mr. Sharp: No, your Honour. Mrs. Hopgood has been subpoenaed, but not Stephen Hopgood.
Burgess: I wrote to Mr. Adams, asking him to subpoena several witnesses for my defence.
Mr. ADAMS said he had sent the letter to Mr. Sharp
The JUDGE: Then let it not be said that, through the fault of any professional man or officer, complete justice was not done to the prisoner. Let an officer at once take a carriage out to Mr. Hopgood, and return with him. In the meantime, as Mrs. Hopgood has been subpoenaed, will you examine her, Burgess?
Burgess: Yes, your Honour.
Jane Hopgood, being sworn and examined, said: I do not remember the 19th of June particularly. I reside at the toll-bar, on the Waimea-road. I remember the circumstance of two horsemen riding by about the time that the men were missing on the Maungatapu. The two stopped at the toll-gate, but I could not identify them. I cannot identify you (Burgess) as being one of them; nor any of the prisoners. I do not remember what particular day this was on. I recollect asking the men the question, whether the poor missing men had been found, and one of the men said, "Oh, it might all blow off like a bottle of smoke; they might have passed through Nelson some other way." After the men had gone on, some officers of police passed by. They made inquiries at the toll-gate respecting those who had passed that way. I cannot remember calling to the horsemen to stop as they went by on their return to Nelson.
This witness was not cross-examined.
Margaret Cundy, being sworn, and examined by Burgess, said: I am the landlady of the Turf Inn, Waimea-road. I do not remember the 19th June last; that is, I do not remember upon which day of the week it fell. I remember hearing about the men who were missing on the Maungatapu road. I don't know Mr. Potter's grey pony. I never remember engaging in a conversation with anyone about the missing men. I never remember seeing you (Burgess) at the Turf Inn. I recollect a sale at Richmond, at Mr. Disher's, taking place. That was on a Tuesday. I do not recollect Mr. or Mrs. Potter having called at the Turf Inn that day. I can't remember having seen Sullivan before.
No questions were asked of this witness by Kelly or Mr. Pitt.
Ann Ryan, sworn and examined by Burgess, said: I keep the Plough Inn, at Richmond. I remember on the day of Disher's sale, two horsemen coming to my house. You (Burgess) were one. I cannot recognise the other amongst the prisoners or those in court. You came up to the house first. The other came up within an hour afterwards.
Burgess: Did you see them make their exit?
Witness: No, I did not.
Henry Adams, being sworn, and examined by Burgess, said: I am a barrister and solicitor for this Court, and am acting in this case as solicitor for the Crown. I remember receiving two letters from you.
The JUDGE: I cannot sec that this is admissible as evidence.
[Image of page 68]
Burgess: Will you produce the letters?
The letters were both produced and read by Mr. Sharp. They were as follow:--
To MR. ADAMS.
RESPECTED Sir--I humbly request of you to interest yourself in seeing me furnished with a full copy of the prisoner Sullivan's evidence which he tendered on my behalf in the case of the camp robbery at Hokitika. Believing you to be the proper person to whom such a request should be made I have, therefore, intruded myself on your public services to see me furnished with the above.
I also require the name of the individual whom he gave in charge for robbing him of half a sovereign, and the nature of the charge be preferred, in fact, the charge itself.
Furthermore, I request subpoenas served to the following persons:--
To Mrs. Cundy, Turf Hotel, "Waimea-road.
To Mrs. Ryan, Plough Inn, ditto.
To Mr. Stephen Hopgood, Turnpike-keeper, ditto.
To Mr. Thomas Newton, Liverystable-keeper, Hardy-street, Nelson.
Trusting these requests meet your approbation,
I remain your humble servant,
Rickard Burgess.
Nelson Gaol, Monday, August 27, 1866.
To MR. ADAMS.
RESPECTED SIR--I forgot to mention in my previous requests for your official aid and furtherance, one item of importance to the carrying out of justice to all concerned, so I have taken the liberty of again intruding myself on you, to see that my application to you is attended to. It is this: If you remember, Sullivan stated the balls we had with us, and some of which were drawn from the gun he threw away, were stolen from the Grey: no such thing, they were purchased. Now I wish that you telegraph the authorities at the Grey, and cause them to make inquiry at Mr. Helier's shooting gallery, next door the Star Hotel, whether he remembers the night of Friday, the 1st of Anno, selling five shillings' worth of balls to anyone, on the same night the ramrod was priced. With this being sent through the Government, it will be sufficient proof, without issuing subpoenas for their attendance. Note the address, Mr. Eli Helier, next the Star Hotel.
I remain,
Your ever obliged and humble servant,
RICHARD BURGESS.
Nelson Gaol, Saturday night,
September 1, 1866.
Burgess: May I ask whether the requests have been attended to?
The JUDGE: Why should Mr. Adams do your lawyer's business for you?
Mr. ADAMS: I told Mr. Sharp when I received the letters.
Mr. SHARP: I telegraphed down to Hokitika, and have since been supplied with a copy of the evidence given by Sullivan at the examination before the Resident Magistrate there, concerning the robbery of revolvers from the camp.
Mr. SHARP, being sworn, and examined by Burgess, said: I received your letters.
Burgess: Did you act upon them?
Mr. SHARP: Yes, and have received the evidence asked in the first letter.
Burgess: And what did you do with respect to the second letter?
Mr. SHARP: I don't recollect receiving the second letter, but Mr. Shallcrass was commissioned to make all inquiries when be went down to the West Coast.
[The evidence asked was here handed to Burgess in the dock.]
On Kelly being asked to produce his witnesses, he called
Mary Carter, who being sworn, said. I am the wife of Robert Carter, who keeps the Lord Nelson Hotel. I remember you stopping in my house. I recollect Sullivan coming there every day after you came. I remember you sitting in the room behind the bar repeatedly with him. I never saw Sullivan, on one of these occasions, take a purse out of his pocket and place bank notes on the table. I have never read the evidence given by my husband on cross-examination at this trial. I believe you went by the name of Kelly, and I think Sullivan called you Tommy. You went by the name of Kelly, but I cannot say who told me that was your name. I never saw you tear a leaf our of your pocket-book on Sunday evening.
Maria M'Eachen, being sworn, said: The last time I saw Sullivan, previous to his arrest, was on Tuesday evening. He never has come to my mother's place since with a constable. I remember his bringing you to our house on the Friday evening before arrest. He said you were a school-fellow of his.
Kelly: I have no more witnesses your Honour.
Mr. PITT then called
Susan Dickens, who, being sworn, said: I am a laundress residing in Nelson. I know a man named Sullivan. I see him in Court now. I did some washing for him on the Thursday before his arrest: a pair of cloth trowsers, a pocket handkerchief, a black silk handkerchief, and a pair of collars: these were the things I washed. They were very dirty. There was a stain on the bottom of the right leg of the trowsers, which was very hard to remove, it seemed like a stain of port wine. I put them to soak for twenty-four hours, and I rubbed them hard. I returned them to Sullivan himself at Mr. Owen's, and he paid me for the washing. I did not mention the stain to him, but I did to the police afterwards.
Samuel Athanasius Cusack, being sworn, said: I am Batchelor of Medicine, and Fellow of the Royal College of Surgeons.
Mr. PITT: I want your opinion as to whether it is possible to discover the difference between a wound inflicted before and after death.
The JUDGE: According to my knowledge of medical jurisprudence, the proper course to follow is to ask a definite question relating to the case in point. Did you hear the evidence of Drs. Vickerman and Cotterell?
Witness: Yes, I did.
Mr. PITT: Then you recollect what was said about the bullet. Dr. Cotterell spoke of death being caused by hemorrhage. Can you state whether this is correct or not?
Witness: My opinion would depend on the coagulation of the blood at the wound.
The JUDGE: It is distinctly sworn that the pistol bullet would cause almost instantaneous death.
Mr. PITT: It is the correctness of this I want to prove, your Honour. Would there be any difference, Dr. Cusack, in the appearance of the blood caused by a pistol-shot before, and blood from a similar wound after death?
Dr. Cusack: Yes, both as regards the quantity and condition of the blood extravasated.
Mr. PITT: What would be the condition were the wound made after death?
Witness: There would not be so much blood, and
[Image of page 69]
it would not be coagulated.
Mr. PITT: Have you made a scientific examination on any articles lately?
Witness: Yes, on a shirt, and a piece of canvas.
The JUDGE: On what day did you examine the shirt?
Witness: I believe the date of the examination is marked on the shirt.
A piece of sacking was here produced.
Witness: This piece I cut off a bag received from Mr. Shallcrass.
Mr. PITT: How did you prosecute the examination?
Witness: I examined it by testing it in the usual manner through a microscope. It was dry, but I moistened it in a solution of glycerine; and I then detected the blood of a mammalian animal upon it, but it is not possible to say whether it is human blood or not.
The JUDGE: Were the blood marks such as to enable you to form an opinion of the time which they had been on the stuff?
Witness: No. I could not even form an approximate opinion as to this. It might have been a week and it might have been a year.
Mr. PITT: Did you examine the shirt in the same manner?
Witness: Yes,
The JUDGE: Did you cut a piece off it?
Witness: I drew some threads from it, which were sufficient for the purpose.
The JUDGE: Prom what part did you draw them?
Witness: From the shoulder.
Mr. PITT: With what result?
Witness: I found blood, but it looked as though it had been wiped on the shirt. On the sacking it appeared to have dropped. I wrote to Mr. Sharp respecting the examination I had made.
Mr. Shallcrass, recalled: The shirt is the same as brought down by Marten from the Maungatapu, and I got the canvas from Sullivan's swag.
The JUDGE, to Dr. Cusack: You did not see the body of Felix Mathieu yourself?
Witness: No. I did not.
The JUDGE: Then will you be good enough to listen whilst I read the evidence given by Drs. Vickerman and Cotterell.
His Honour then read the evidence relating to the wounds on Mathieu's body from his own notes.
The JUDGE: Do you agree with that?
Witness: Such a wound would be likely to cause death, but it might not be quite so immediate. I cannot say whether the wounds were inflicted when the body was alive or dead.
Mr. PITT said he had two other witnesses to call respecting the vessels lying in port on the 14th of June last.
Henry Clouston, being sworn, said: I am the acting gaoler in Nelson. I recollect that the prisoner Levy first came under my charge on the 26th of June last, and his being visited by Mr. Isaacs on the 27th. Mr. Isaacs is a Jewish Rabbi. He had no placard with him that I am or was aware of. I was not present during any conversation between Levy and him; Sanders, the turnkey, was.
Mr. PITT: Yesterday, I understood Captain Clouston to say that he was present,
Captain Clouston: No, I said that I had spoken to Mr. Isaacs afterwards.
Stephen Lambert, being sworn, and examined by Mr. Pitt, said: I am a storeman in Nelson. I was, on the 14th of June last, a wharfinger for Mr. Akersten. I know at which wharf the Wallaby lay. The Albion Wharf is 300 or 400 yards from Akersten's Wharf. I recollect there were cuttings in the cliff close to the road. The vessel lying at Mr. Akersten's wharf was the barque Chance; no other vessel was lying there. I cannot say what vessels might have been at Levick's wharf.
Robert George Gibbons, being sworn, and examined by Mr. Pitt, said: I am a wharfinger at the Government Wharf, about 250 feet from the Albion Wharf. The latter is farther down than the Government Wharf. Akersten's wharf is beyond. The barque Königin Augusta, schooners Mary Ann, and Aborigine, were lying at the wharf on the 14th June. I do not know what vessels were lying at Levick's wharf.
Jonathan Levick, being sworn, and examined by Mr. Pitt, said: I am a wharfinger at the Albion Wharf. I cannot say from memory what vessels were lying on the 14th of June last, at the Albion Wharf, but I keep a book, in which I made entries on the day in question. [Book produced.] I did not do so unless there were vessels lying alongside the wharf, discharging cargo. [Referring to book.] The Kennedy was alongside on the 14th. I cannot say what vessels were alongside the other wharves.
Stephen Hopgood, one of Burgess's witnesses, having been brought into Court, was then sworn and examined by Burgess.
Burgess: You keep the toll-bar on the Waimea-road, do you not?
Witness: Yes.
Burgess: Do you recollect the 19th June last?
Witness: I don't recollect anything particular on that day.
Burgess: Do you remember the apprehension of a man on Monday night, on suspicion for the Maungatapu murders?
Witness: Yes, I recollect hearing of it,
Burgess: Do you remember there being a sale at Disher's Hotel, at Richmond?
Witness: I recollect there being a sale, but on what day I cannot say.
Burgess: Do you not recollect seeing Mr. Potter on the day of the sale?
Witness: Yes, he passed by, I believe, that day.
Burgess: Do you remember two men stopping and talking to you at the toll-bar?
Witness: Yes, I do.
Burgess: Do you remember if one was riding a cream-coloured pony of Mr. Potter's?
Witness: I often notice a cream-coloured gelding going through the gate.
Burgess: Was one of the men riding that?
Witness: So many different horses pass through during the day, that I don't take particular notice of them. You were one of the men and Sullivan was another. I should know him anywhere. My mother said that it was a dreadful affair, the loss of these
[Image of page 70]
men, and Sullivan answered, "Yes, if they have been murdered, but they might have passed through Nelson another way, and so the whole thing might end in a bottle of smoke." You were at the time this was said standing by, looking at nothing or the gate-post. The police passed by shortly after you were gone. They spoke to me, and asked if I had seen one man go by, and I told them I had. Had they asked me if two had passed the gate, I should have told them that you and Sullivan had gone through. A German had passed along the road by himself.
The JUDGE: This evidence is in no way contradictory to Sullivan's. It is a difficult question what latitude can be allowed a prisoner. But these questions about the movements of the police are totally irrelevant.
Burgess said he had no further questions to put.
Mr. PITT stated that a list of the witnesses whom he had intended calling had been given to Mr. Sharp; their names were Banner, M'Beth, Doddy-Meade, Levy, and Isaacs.
Burgess said be had omitted a witness whom he should like to examine.
The JUDGE: Then by all means call him.
Leonardo Porcelli, being sworn, said: I remember the night you (Burgess) and Levy came to my brother's house, the Oyster Saloon in Bridge-street. It was on a Wednesday night. I remember having breakfast with you on Thursday morning. Afterwards I went to port. This was about ten o'clock.
I did not see you on the road between my house and the port; you did not walk part of the way to port with me. I am certain you did not; you are mistaken.
Burgess: Did you not go to port to clean oysters on that day?
The JUDGE: Have you an oyster-bed at the port?
Witness: Yes.
Burgess: What had you in your hands on that day as you went down?
Witness: Nothing.
Burgess: Not a rowlock of a boat?
Witness: No, nothing.
Agenore Dupuis, being sworn, said: I am a Frenchman, and a hairdresser, residing in Nelson.
Kelly: Do you remember the Sergeant of Police telling you about the missing men being shot?
Witness: I think I recollect some such conversation taking place. It took place on the Tuesday. After Levy was arrested, I do not recollect saying anything to a person who came to be shampooed in the morning.
This concluded the evidence.
The JUDGE: Now, Burgess, it is your turn to address the jury in your defence; but, before you commence, I have to remind you what you have a right to say, and what you have not. You can make any comments on the evidence taken for the prosecution that you think fit, but you have no right to go further than the facts relating to the murder of Mathieu, so far as you yourself are concerned, and you have no right to make any allusions whatever which may tend, on the one hand, to criminate the prisoners, or, on the other, to exculpate them of this or any other charge which is preferred against them.
BURGESS'S ADDRESS TO THE JURY.
Burgess then addressed the jury at considerable length, and went over very nearly the same narration as he made before the Resident Magistratel when he made his confession. He said to the jury that they were already in possession of his guilty confession, which he had no doubt they had seen through the press, and therefore they knew of his blood-guiltiness in killing these men. He said I shall now unfold fully----
The Judge objected to this course, as he said considerable mischief might result from it.
Mr. HART was understood to say that he did not care to offer objection.
The JUDGE said that Mr. Hart could ask for a verdict of guilty to be placed on the record, and request the jury to convict on Burgess's own confession made in the Court. His Honour thought it a most extraordinary proceeding that a man should plead not guilty, and then tell the Court and the jury that he is guilty. He did not desire to stop the prisoner, but he again warned Burgess that anything be might say out of a wretched vain-glory that did not concern the evidence, he should tell the Jury to pay not the slightest attention to.
Burgess proceeded to say that his object in disclosing his own blood-guiltiness was, that the guilt of another should not cause an innocent man to suffer. I stand here, he said, an actual murderer, and I state this, not from vain-glory, as his Honour has said, but because I wish to clear the innocent men who are accused of the murders which I and the villain Sullivan committed. My life for years has been a guilty one; and although I have lived without God in the world, I would yet save innocent life. I know it will do me no good, but I feel bound to make a full confession. I have already told you--at least it has been published--that Sullivan and I stuck up and killed these men, and that I am the murderer. I stand before you an execrable being, one who has destroyed the image of his Maker. I loathe myself when I think of my misdeeds, and therefore I wish now to make what reparation I can. In that confession which I made before the Magistrate's Court, I declared that the prisoner Sullivan was my confederate. Sullivan, in his guilty statement, declared that he made it for the benefit of society; yet the shirt and gun which he hid--the shirt as I said being foul with the blood of Mathieu--proved his guilt. Previous to making that statement he knew that the horse, the gun, and the shirt had been found, and that the bodies also would be found; so, just before the bubble was to burst above him, he, to endeavour to free himself, accuses innocent men, and steps into the witness-box, and stands before you a very fiend. If I use strong language and imputations, I hope you will excuse me, for no expression can be too strong for such a criminal as he, I should not have cared for his confession against me, for my own life is forfeited, as I am the principal agent in this terrible tragedy, and the principal in the guilt; but so is he. Gentlemen you have a very responsible and serious duty to perform, and my statement
[Image of page 71]
is not a vain-glorious one, for I know my name shall be remembered hereafter amidst the execrations of my fellow-men; but it is my intention to aid you to see through this mysterious case, for there is a mystery in it, and during all my wicked life I never saw a greater or more mysterious case. Burgess then proceeded to describe how he had met Sullivan at the West Coast; their card playing together; Sullivan accusing a man of robbing him of a half sovereign, striking him in the face, and then giving him in charge of the police. He thought this strange as, on being introduced to Sullivan by Kelly, a Masonic sign was passed between them, which implied that they were brothers, and it was not the habit of wicked persons like them to give each other into custody--we loathe, he said, such conduct. On meeting Sullivan afterwards, they exchanged confidences by giving accounts of their respective careers during a period of nearly twenty-six years of crime, and if he (Burgess) were to tell the jury all that Sullivan then told him, it would shock them as a dreadful career of crime. Burgess then narrated how he had asked Sullivan to go to the Arahaura river, along with Kelly to put up Mr. Parr, where they would get two or three "centuries"--meaning two or three hundred pounds--and he affirmed that Sullivan had said there was gold to be got at the West Coast, and that he would have some of it, and was as ready to do anything to obtain it as Burgess himself . He (Burgess) and Kelly generally acted as strangers to each other, as, having lately had three and a-half years' sentence together, they were too well known, and always tried to deceive the police. He (Burgess) told Sullivan about the bank robbery at Okarita, which Burgess had been himself to visit, and had seen the unprotected nature of the place, which could be very easily robbed. Meantime they were to go to Ross, and rob Mr. Kerr, banker, there. Sullivan agreed at once, and they walked at night, so as not to be seen during the day. Mr. Kerr used to go alone every Sunday to Donaghue's, and they were to put him up. Of course (said Burgess) our intentions were very wicked, for, had we caught him, we should have killed him. We took our positions, Sullivan in front, as usual. But, as there had been a robbery before this, they came armed, and Sullivan, from his spot, gave me the "office," that Mr. Kerr was not alone, but that four or five men were with him, and so they were allowed to pass, and we returned to Hokitika, As I have already said, we intended to rob the bank at Okarita, and wanted troopers' clothes. I stole the clothes. Burgess then described the method by which the two revolver cases were apparently found in the sand by a man named Chamberlain, as if by accident, who, Burgess said, was taken by him across there. Having previously hidden these revolver cases, he took Chamberlain where he would find them, in order that he might have evidence of the finding, in the event of his being apprehended for the robbery. He went into an old lady's house, where he was in the habit of spending the evening, and hid the cases under the sofa mattrass. Afterwards he intended to go and rob a Mr. Brown, a gold surveyor at Teremakau, and Sullivan agreed to go too. They were to meet at the wreck of the Montezuma. That night he went home a little intoxicated. The fact being, gentlemen (said Burgess), that I had been to a champagne supper that very evening. About two o'clock in the morning, a knocking came to the door, and the police came in, furnished with a search warrant, and I was apprehended on charge of robbing the camp. My legal agent told me that a man named Sullivan was to give evidence in my favour, and he came and took the Bible in his hand, and swore that he saw the man Chamberlain pick up the revolver cases and give them to me. This resulted in my acquittal; but I found it necessary to leave Hokitika, and my career there was ended. The truth was, gentlemen, I had cultivated the acquaintance of respectable men in Hokitika, who never suspected that Burgess was what he was. Meanwhile Kelly, who had been to the Grey, had returned to Hokitika to seek for me, and I went to the Grey. On arriving there, in consequence of Inspector James having been taken to see me at Hokitika, I crossed over to Cobden, was not to be seen during the day, and at night I returned to Greymouth, where I found Kelly and Sullivan. Kelly had drunk and disfigured his face, and then he went away for some time up the river. I had proposed to go the next Sunday, and stick up Mr. Wilkie, of Cobden. I had received information that could be depended on, that Mr. Wilkie went every Sunday a distance of four miles down the North Beach to get gold; and upon that I sent my informant to fetch Kelly, but he came back and told me that Kelly was not there, but that Sullivan would come. About four o'clock was the time that I was told Mr. Wilkie passed along the road, and Sullivan and I went and waited for him till nearly six, when, judging that he had passed another way, we returned to Cobden. I told Sullivan that I wanted him to go to Maori Gully to look after Mr. Fox, a gold-buyer. [Burgess here repeated that part of his confession in which he charged Sullivan with the murder of Mr. Dobson, in mistake for Fox, and affirmed that Wilson, who is in gaol at the West Coast on the charge, was innocent of it.] Meanwhile, he (Burgess) had laid a plan to rob a bank at the Buller, and had sent to Hokitika for Levy to come up to the Grey, as he would assist them in getting rid of the notes. Another attempt was to be made on Fox. He carried about £1,500 or £2,000; and they went out to intercept Fox and Maloy, another gold-broker. But somehow the police had heard of this, so that they were accompanied by a force of seven or eight men. There is a flat at the spot, across which we could see for a distance of two miles. One of our party remained behind, and they were let pass on account of their strong numbers, and we returned to the Grey. At that time our arms were done up in an ordinary swag. The house we were staying at was visited by a sergeant of police in plain clothes, who asked who we had in the house and wanted to examine us all. He asked me what I was doing there, and the Inspector said that if I did not leave the Grey river in forty-eight hours he would caricature me in the Grey papers. We then remained a few days, during which our arms were sent down to the beach. We sailed in the Wallaby from the Grey, and finding that our surmises with regard to the Buller were in-
[Image of page 72]
correct, we decided to go on by the Wallaby to Nelson. Accordingly we went in her, and arrived in Nelson on the 6th. On Thursday, we proceeded on the road towards the Wakamarina, and stopped at the Pelorus Bridge on Friday night. On Saturday morning we journeyed on towards Canvas Town, where we arrived just before dark, and we were accommodated by Mr. Jervis with an empty house. From here Levy started for Deep Creek, not for any illicit purpose, but merely to look around. In a conversation with Mr. Jervis, he referred to the condition of Havelock being nearly as dilapidated as that of Canvas Town. On the Monday morning, we got up early and put our swags into shape and cleaned our guns and pistols, and sharpened our knives, but did not load the arms. Sullivan took the long knife which he had stolen from the cook of the Wallaby, saying, with this and a revolver I am a perfect battery of defence. Levy returned on the Sunday, and brought a paper which had some information about the bank at Picton. He said he had met some people he knew at Deep Creek, amongst whom was Felix Mathieu, the unfortunate subject of this trial. He said several of them were going to the West Coast; that one was a storekeeper, and the other a publican. I told him I should intercept them, and put them up. Kelly said, "What is the object of doing that, when we came for a different purpose?" I said, "Who is to know, but what they have gone to the West Coast." Levy also objected to the plan. I accordingly arranged that Sullivan and myself should put the men up. We had intended starting early on Tuesday, but we were delayed on account of not having any tea or sugar, and started when Mr. Jervis got up. We then went down the river to where we could jump across from stone to stone. As we were crossing, Mr. Jervis came out, and I wished him "Good-bye;" but he has added something which I did not say. I am aware that he has not done this intentionally. He has made a mistake, but on my oath I never made use of the expression. Before reaching the Pelorus bridge, we met old Battle. [Burgess here related, as given in his confession before the Resident Magistrate, the unwillingness of Kelly and Levy to be parties to any act of violence on Battle, and of their separating themselves from him and Sullivan, and proceeding on their way to Nelson.] Burgess was then about to detail the murder of Battle, when the Judge interrupted him, and asked Mr. Hart if he could suggest any way in which the prisoner could be prevented continuing his statement.
His HONOUR remarked, that a British tribunal was almost quixotic in the latitude it gives to prisoners in such a case, but there must be a limit somewhere. He would allow the statement to be continued, but would warn the jury to efface it entirely from their memory as evidence either one way or the other.
Burgess then continued: I went on, and, overtaking Battle, engaged him in conversation. I found he had been working for Mr. Wilson. Sullivan said to me, "Did you see his poke?" meaning the bulk of his pocket. I said, "He looked more like a man who wanted a loaf, than one who had gold about him." When we passed the old man, Sullivan said, "I don't like his look; he partly suspects who we are. I saw him shift his knife to his other side." I then put paper in the chambers of my revolver, in order to give them the appearance of being loaded. I then caught hold of the old man by the wrist, and he attempted to defend himself with his knife, which I then took from him. He then sat down on the ground, and would go no farther.
The JUDGE: Have you much more to say, Burgess?
Burgess: Oh, yes, your Honour; a great deal.
The JUDGE: Then I will not allow you to proceed further until I have had time to deliberate on it. I shall adjourn the Court for half-an-hour.
The Court consequently was adjourned.
At the re-assembling of the Court,
The JUDGE said he would allow Burgess to go on.
Burgess then said: I am now about to unfold what has not been disclosed before by man in such circumstances. After we had secured the knife from poor old Battle, he sat down, and refused to go into the bush. I seized him by the throat as he sat on the road, and partially strangled him, and he then said, "I'll go, I'll go." So we went into the bush some distance, when he sat down, and said, "This is far enough." I had told him I would take him into the bush and tie him up, for some one to loose him afterwards. I again enacted what I have told you, and he got up, and went about 80 or 100 yards into the bush, and then I choked him. The breath or confined air came bubbling up, as I took my hand away. Sullivan struck him in the abdomen, and then he took the old man's shovel, and scraped a hole in the earth, turned him over, and covered him up. We regained the road, Sullivan remarking, "That this was was a nasty job for so little." After recapitulating what he said in his confession about camping at Franklyn's Flat, Burgess said, Sullivan found fault with my way of strangling Battle, and that he would show his plan next. I said I did not know anything about strangling. I have shot a man, ay, gentlemen, two, for this was my triple murder. [He next detailed the portions of his confession formerly printed, in almost the same language, stating that Sullivan wished to stop Ann Fulton and Levestam, and, after committing a rape on the woman, to have murdered both.] The four men were stopped and taken up the creek, and made to climb up the steep base of the hill; that they took Dudley some sixty yards away, and strangled him with Sullivan's sash, Sullivan pulling one end, and Burgess the other. Mr. Kempthorne was delicate, and fatigued, and not able to go farther, and therefore (said Burgess) I deputed Sullivan to take De Pontius, and I took Mathieu away to the right. Kempthorne, who had heard the gurgling noise Dudley made as we strangled him, asked what noise it was, and I told him it was us in getting through the scrub. I then took Mathieu away, and strapped his legs. I had a revolver stuck in my boot, and, after I had strapped his legs, I drew the pistol, and shot him through the breast. [Sensation.]
The JUDGE: If any of you cannot restrain your feelings, you had better leave the Court. No one should come here who cannot check such expressions. If there is any more of this I shall clear the Court. To Burgess; Go on, sir.
[Image of page 73]
Burgess: Gentlemen, I then sighted Kempthorne who had risen to his feet on hearing Mathieu cry out, and at thirty yards I fired from my double barreled gun, and shot him through the head, behind the right ear. After I did this, Sullivan came up, after he had shot Pontius, and I told him he had better look after Mathieu, which he did, and came back, and said he had "to chive" him with the knife he stole from on board the Wallaby. [Burgess then recounted the other parts of his confession about meeting Kelly and Levy a little distance on this side of the old chimney, and reaching town.] he said he intended to keep very retired in his habits, because Trimble, who keeps the Masonic Hotel, knew him in Otago, and would set the police after him. He (Burgess) sold gold to the amount of £76, and Sullivan £106 odd. He (Burgess) did not sell all his gold. Kelly, he said, did not know that the men were murdered, and Levy did not even know they were robbed. After Levy's arrest, Burgess and Kelly met at Collingwood bridge, and Burgess asked him to go with him, but he refused. Burgess then said "good bye," and Kelly replied, "Oh! don't say good bye; where shall we meet in a month?" Burgess made answer, "If you don't come now, you'll never see me again. I'll go to California, or somewhere else." Burgess then narrated what occurred up to his arrest, and then he was proceeding to give what he termed a retrospective view of Sullivan's vile conduct.
The Judge said that he should tell the jury not to give the slightest weight to anything that Burgess might say that had not appeared on the evidence. He was the last man in the world whose view the jury would accept, and he almost felt inclined to order a plea of guilty to be entered on the record.
Mr. HART was understood to say that he wished his Honour to do so.
The Judge said he could hardly say how he should act. He never was in such a position, and never saw such a case; and, had the charge not been a capital one, he should have done something of the kind long before now. There ought to be a limit to this kind of thing.
Burgess was allowed to proceed: He said that though he was the most wicked of men, he wished no one to suffer but himself, and he bore no ill-will to anyone. He then touched on the evidence of Sullivan. Gentlemen (continued Burgess), you heard me ask Sullivan why I would not let him go into the bush along with the men, and you heard him say that he was my slave, but he was a very willing one. He said he intended to shoot me, and release the men. Now, the position he delegated to himself was immediately behind my back, and, if he had chosen, he could then have shot me with one barrel, and had the other ready to cover Kelly and Levy. Had he then shot me, the law would have protected him. All that is but an exruse, and a very poorly clothed one it is. He knew before he confessed, that the shirt, the gun, and the horse had been found; and he knew that the horse must be found, from the noxious emanations which its putrid body would soon produce. The blood on that shirt was the blood of Mathieu, whom he stabbed while prostrate on the ground. Sullivan says he did not know until next morning how the deed was done, and until Levy explained it to him near the wharf, when they were dividing the gold. It is a most foul and wicked lie. I must tell you, gentlemen, that never, in my long experience of twenty years' standing, of men who have committed theft or murder, is a murder committed without enacting over the particulars of the crime at the first possible opportunity afterwards. It is absurd to say otherwise. Burgess then went over the particulars of his proceedings on the day of his arrest, and noticing the evidence of Mr. Shallcrass, said it was quite easy, when they knew the way, for a person to put his head through the aperture of a door-cell. Sullivan did this, and read the proclamation of reward and pardon to an accomplice in the murder. Burgess concluded his statement thus:-- It is needless for me to say that Sullivan's motive was to implicate others and to save himself. He is the veritable murderer along with myself. I do not wish to criminate anyone, or to bring anyone else to suffer death. God forbid. I know that I must suffer that penalty. I know that I shall shortly make my exit from this world, and I wish to save the lives of innocent men. And God above, whose providence reigns over all, knows that there is a mystery, and He may one day fully discover it. But for me, I have disburdened myself, and have nothing further to disclose, and have cleared myself of the responsibility of doing my best to save the innocent. God who is above knows all. And now, gentlemen, I leave the case to your Superior judgment.
KELLY'S ADDRESS TO THE JURY.
Kelly then addressed the Jury at considerable length, reading from a written paper, which he had prepared beforehand. He said: Your Honour, and Gentlemen of the Jury--I appear before you in the peculiarly unfortunate position in which I am placed, without the benefit of counsel for my defence, my funds having been detained wherewith I might have procured legal advice and assistance, although none of my money that was taken from me has been sworn to, and which same gives the learned gentleman a full opportunity of using his legal abilities against me.
The JUDGE here reminded Kelly, that he had asked him if he wished to get any legal assistance for the purpose of his defence, and that Kelly had himself declined, saying he would conduct his own defence.
Kelly, after having acknowledged that he had taken that course, proceeded with his address to the jury:-- And now, gentlemen, although the fearful murders that have taken place were enough to create the most intense anxiety, not only in this town, but also throughout the country generally--though the quiet and peaceful Province of Nelson has been aroused, do not let this cause you to wrong me, because I am a marked man. And, gentlemen, I consider myself blest, in my unfortunate position, in having so respectable and intelligent a jury to try me as you, gentlemen, are; for this most extraordinary and complicated trial calls aloud for the like. And it requires gentlemen well up in years, and of some experience of the world, to probe to the core the foul wound it might inflict, so that it will not be said
[Image of page 74]
"See how confounding the folly and weakness of the human heart with direct and actual criminality is at times." Nor, do not let it be said, "See how you have suffered the probable or the possible to usurp the place of the inevitably true." Nor do not let it be said, on account of the two horrible confessions, that you have been so carried away by passion or by prejudice as to convict an innocent man. Nor do not let it be said, gentlemen, that your judgments are fallible, or your tests weak. And bethink you that all you can do hereafter in atonement for so serious an error, would never erase the terrible brand that would cause guilt to be stamped upon my name; and distrust at least the promptings that might dispose you to condemn, and say to yourselves, gentlemen, "My good God! Kelly may be an innocent man." For you have seen, gentlemen, that the over-care and caution of Sullivan has been the clue that elicited his guilt and my innocence, gentlemen; for you have heard that he would swear anything he liked, and you have seen that he has shown himself to be a man of a fierce, persecuting, abandoned disposition. He has shown that he has been in a state of depravity from his very boyhood; he has shown that he has been schooled at Port Arthur, and in wickedness from his boyhood till well up in years. He has shown that he united the word of God, when he kissed the sacred book with his perjured lips; for you have heard that it was only a few weeks before he was arrested that he deceived the presiding Magistrate at Hokitika and a crowded audience; and, gentlemen, do not let him deceive you. The villain did it to serve his own ends, and you have heard that he is doing it to serve his own ends now; but do not let him be making a mockery of God's word and a Court of Justice whenever he likes. To let him do that would be a sin against God and man, for he has shown himself to be one who is guilty of blasphemous ways, such as those who are reprobated to eternal damnation. You heard his cruel insinuations, his imputed meanness, his perversion of meaning, and his unworthy bloodthirsty motives; but do not let him spill my blood, for, according to what has been stated at this trial, he has spilt enough already here. He is only in your country a few weeks, and look at the foul murders he knows all about. There must be a proneness in the murderer's heart and nature that swells his infamous character, till he becomes so enormous a sinner that in some instances one would actually believe that he would contend against God Almighty himself. I readily believe him to be such, or he would be afraid of being struck dead in the box. Look at his kissing the book the other day, which defeated the ends of justice and got Burgess acquitted, and caused people to be lying in the burial ground commingling with dust who would be alive to-day; and you will never be abie to banish from your minds the vindictive persecuting conduct he has displayed at this trial. And, gentlemen, notwithstanding the ease and confidence the presumptuous offender possesses, he may possibly before morning be overwhelmed with terror, It is only for God to give him a true sense of his guilt, and arouse his conscience, if he has one, to its proper office, and then all his determined courage will forsake him, and his pleasing expectations would be changed to despair, and he would feel such inexpressible misery as would be an awful presage and anticipation of his final destruction. Then, gentlemen, my accuser would be arraigned, convicted, and confounded. Yes, gentlemen, his pleasing expectations would be changed, and will be changed, although he put his head out of the door of the cell as often as he pleased, and read the glittering bait and reward, for Mr. Shallcrass saw Burgess with his head out last Sunday afternoon, and took his hat off and put his head in quite easy on account of being told which way to put it in. Yet Sullivan can stand up in this Court, and, in his bold, braggadocia style, say his head was too big, which caused him to smile at me for asking him the question, and called forth laughter from some of the audience, commingled with indignation. He will not have the question put to him, gentlemen, what part of the world he would like to go to. No, gentlemen, or he might choose some part of the world where murder might be unknown, and very likely a foreign land; some part of the world where perhaps the Government of our Mother Country had at the same time despatched some ministers of Christ to preach the Gospel, and spread Christianity amongst the inhabitants that would be living there. Oh, no, gentlemen, with all his deep cunning, the destroyer of man will not step a foot upon the shores of some country at the same time as the ministers of religion. God will not allow the very opposite extremes to take place--one hand to save, and the other to destroy. For you have heard, gentlemen, he is one of peculiar infamy, depraved beyond the common measure of his species in wickedness. Gentlemen, do not let him spill my blood, for he is one you must both blame and condemn. He will not prowl about any longer. Gentlemen, he is one who believed he had nothing to fear in what he would say about me, and he is one who suggested his course to pursue, and he is one who has attempted to remove the peril that lays in his wav, and the pleasing expectations of a reward determined and caused him to take shelter under the pretence of not being an actual murderer. You have heard him acknowledge that he is guilty of such base cowardice and treachery. You have the power of hearing, and you can believe, speak, act, and do what I tell you, and that is--do not believe one word he says against me about killing or robbing any of the men whose death I am being tried for, as you must consider him to be a disgrace not only to the colony but also to the age we live in. There was no talk in this quiet city of Nelson, of storekeepers, gold-brokers, or miners getting murdered, till he came prowling about the country; and may the odiousness of his name keep everybody from the most distant imitation of his example. I believed him to be one that would rob a man, but not a man that would kill one, much more do the atrocious, frightful havoc, he says be has done. Gentlemen, such was his instinctive love of his wicked life, when he saw and read the proclamation at that time, and so powerful were his impulses to struggle against fate, that as the time of his identification took place, and the exposition of his guilt drew near, he would have dared any danger with the hope of escape, and accepted any commutation of sentence, at that time, short of death. That was a sad stage of agony he was
[Image of page 75]
exposed to. As the scaffold must have been in front of him, he must have passed through a terrible period. I confidently hope I am being tried at an age and at a period of too much change, to have anything like public opinion connected with my case; so that what has been written about me yesterday will be forgotten to-day, and that my trial will be no moment of rash enthusiasm, nor period of misguided zeal, nor unbridled bigotry, which would be highly perilous to both you and me; and that no circumstances foreign to the matter at issue may influence any of your opinions. Gentlemen, you may be aware of order scarcely ever being present at any of the examinations that took place before this trial, and that it was only by the repeated effort of the Crier of the Court, or a rebuke from the presiding Magistrate, threatening to clear the Court, that order could be maintained, the Magistrate saying at the same time, "how could they expect me to have a fair trial?" If, gentlemen, any of you were eye-witnesses to what took place, dismiss it from your minds as well as you can, and try me this day as you, gentlemen, will be judged hereafter. I have mentioned this with no malice to any of my fellow-men. I bear no guile against those who caused these times to be mortifying to me. No, no, gentlemen; too deeply conscious am I of my offences against the world, to assume even to myself the pretension of martyr. And, gentlemen, you are well aware there are men whose antecedents have not been good, that would not shed blood. I do not wish to represent myself as a man free from error against society; but I hope you will bear in mind that I have never seen the man in my life that I am being tried for killing. I cannot avoid warning you, gentlemen, not to wrong me on account of anything that took place, for I have been the talk of every circle, at which some have expressed their opinions, and those opinions have gained currency, and been discussed by the press, which omitted other topics of interest to devote a large portion of their columns to commentary upon me. You have only to look back to the pages of the press since my arrest, and you will scarcely fail to find that each day contributed some new and ingenious suggestion about me. Some of these you will find were arrayed with great details, and others were constructed of materials the least probable and likely. [Kelly than took up a newspaper from which he was about to read an extract. The Judge said it was not evidence, and Kelly laid down the paper, whereupon the Judge said that although the paper of itself could not be offered, as not having been evidence, yet if Kelly thought it well to read it, he put it to the Jury hypothetically, thus: "Supposing that so and so--quoting the statement he wished to make--had been said by the press, the Jury would guard against giving any evidence to, or weight to such a statement," or something to that effect. Kelly did not read the extract, and went on with his address. Every view had, however, its peculiar advocates, and you know, gentlemen, to what violence the war of such controversies are carried upon such subjects the one now in question, by the publicity which accompanies such events as these; it generally causes discussion, and discussion suggests enquiry, and by degrees the general mind is turned and scarcely embraces any other subject, and it is one of the gravest inconveniences which accompanies free discussion, that an accused man is put upon his trial before the bar of public opinion, and his guilt or innocence pronounced, before he takes his place before his real judges. You can see how the most artful, cunning, and villainous devices of Sullivan, show with what clearness how often the superadded efforts of fraud contribute to ensure success, and are yet as frequently the sources of failure, as you have seen in the dark crime that I am being tried for; for the over-care and caution of Sullivan have been the clue that elicited his guilt and my innocence. For I am innocent of this murder; and I appeal to you, gentlemen, to try me by the evidence you have heard; by that evidence, and by your own conscience, and by the assistance of your God and the eminent Judge who is now sitting here; and I call on the approver Sullivan, in the name of God, to stand up and proclaim my innocence, when he hears me pleading for a life that I ought not to lose.
The JUDGE: Let Sullivan be removed from the Court.
The Gaoler: He is removed, your Honour.
Kelly: I have only been in Sullivan's company for seven weeks since I saw him thirty years ago. I knew him and his two brothers, and went to school with them. Their names are--Michael and John; and, as he denies this, you must not come to any conclusion except that he would swear anything about me, and would swear my life away. I ask you, gentlemen, in the name of God, can you believe him? If you believe him, I don't know anybody else on the face of the earth that does. Nobody else will. I won't. He says he stated all he had done to further the ends of justice, and yet there he was drinking hot wine and enjoying himself and waiting for arrest. You cannot believe this, for he was not far from the watch-house if he wanted to confess then; yet he drew his money from his landlord, but I did not draw mine. Now, gentlemen, you have heard Sullivan at times, when giving evidence, how he tried to make it appear that he would not hurt a fellow-creature; but you also heard, to the contrary, from two of the witnesses in this case--Mr. Jervis, and the man Shallow, of the Wallaby steamer. You heard that when Mr. Jervis came to identify him and me, he rose his arms to spring upon him, and but for the Sergeant of Police being at his rescue, and pulling Mr. Jervis back, he would have felt the grasping clutch of that mighty offender; and if he had, there is no doubt that there would be another added to the list of murders that are upon his head. For the horrid one, knowing Mr. Jervis to be a material witness in the case, would have been glad to put him out of the way; and yet he has said that he was waiting for the Government to take steps and collect witnesses that he could assist to forward the ends of justice. Does such conduct show it? Is it not a proof that he would rather defeat it? You have also heard that before he arrived upon the shores of your town, he threatened to throw a man overboard, and to give him a watery grave; which, if the man had met with, would have deprived the case in question of another material witness. Gentle-
[Image of page 76]
men, as I am an illiterate man, and not able properly to conduct my own case, and as I have no counsel, if it please his Honour, and you, gentlemen of the jury, you and he will be my counsel. As for the gun with my name scratched upon it, I became possessed of that gun at the West Coast, where I paid £5 for it last Christmas. How I became possessed of the grammar was this way--I got it from Sullivan. I met him on Collingwood Bridge, and asked him for some waste paper, and he gave me the grammar. As soon as I knew it was in evidence, I sent a gentleman to Collingwood Bridge to look for and discover some of the pieces, but the fresh in the river had washed them all away.
The JUDGE: Kelly, you did not cross-examine Sullivan about the grammar, when you had the opportunity of doing so.
Kelly: He frightened me, your Honour, as he was always making statements, and not answering questions. The knife I acknowledge to be mine, and anything taken off me I do not seek to deny, but nobody can prove I was on the road, or with the men when they were murdered. Only I drank too much water after walking so fast, as I did after leaving Burgess and Sullivan, else I should have been in town on the 12th of June. I drank that water with pleasure, but I did not think that it would cause me so much pain. I do not deny coming in the Wallaby, but I had money, and I got some from Burgess and Sullivan after they came to town. I am unfortunately a man charged with murdering men I have never seen. If those letters had been intercepted that Sullivan wrote to his wife, it would be seen that he said I gave him money. I had always plenty of money, and was always well dressed, and it would be proved, if I had got policemen up from Hokitika, that I worked five months on the Kanieri. The Government ought to have got those letters. Nobody knows. God knows all. Every business man in Nelson whom I dealt with knows that I told him where I was living, and my name was always Noon. Mr. Carter, in his deposition before the magistrate, said my name was Noon, and my receipted bills, and my miner's right, are in the name of Noon; and I am tried for my life in the name of Kelly.
The JUDGE: But you pleaded to the indictment, charging you by the name of Kelly; if you had objected to that, then a new indictment would have been made out.
Kelly: I don't, object now, your Honour. Mr. Christison came from the Grey, and he saw me in gaol, and mv receipted bills are genuine. Gentlemen, I am not able to make remarks on my evidence, and I wish you would do it for me. I throw my life into your hands; do your duty, and give me a verdict of acquittal. There were four or five men being killed; now this was not done by four men. It is not done by a lot of men. Don't think that four or five men would do this, and one of them a Jew. Two men might be found who would do all this; but not four, and one of these four a Jew. Gentlemen, I again declare my innocence, and although I am a marked man, I have not killed any of these men.
Kelly was considerably overcome as he concluded his address, and he was accommodated with a chair in the dock during the remainder of the sitting.
COUNSEL'S ADDRESS ON BEHALF OF LEVY.
Mr. PITT, as counsel for the prisoner Levy, next addressed the jury. After referring to the grave responsibility which devolved on him, and the law and practice respecting the value and acceptability of the evidence of an accomplice whose evidence was always to be regarded with suspicion, he said that none but an accomplice knew how a deed was done; and it stood to common sense that the man who was wicked enough to commit a great crime, or take part in it, was also wicked enough to swear falsely about it, Mr. Pitt, after stating that Levy challenged the world to prove that he was ever before at a bar of justice on any charge of felony, went over pome parts of Sullivan's evidence, and argued that his evidence was not corobborated if criminative on the part of Levy and Kelly. The statement made by Sullivan as to what Burgess said to him, to the effect that "Burgess knocked his man down at the first shot, but others made a mess of it," was only evidence against Burgess himself, and not against the others. The articles produced by the prosecution were, for the most part, discovered through information given to Mr. Shallcrass by Sullivan. Sullivan was not to be believed, and he contended that it was, on the face of it, absurd to suppose that two men conscious of their guilt, would, after committing murder and robbery, go away and divide gold, the proceeds of these crimes, in such a public place as Sullivan said Levy and he went--close by the Albion Wharf, while vessels were lying there, and while people were passing to and fro. He derided also the pretext of Sullivan, that he sought to further the ends of justice, and pointed out the contradiction of this, in the fact that he and the rest, after Levy's apprehension, met together and concerted measures for effecting their escape, and it was not until ten or twelve witnesses had been examined that he confessed; only when the horse, the shirt, and other proofs of his own guilt had been discovered; when, in fact, Sullivan found the rope tight round his own neck, that he made his confession, to save his own recreant life and imperil the lives of others. As the mouthpiece of the prisoner Levy, he (Mr. Pitt) contended that the whole evidence, excepting some portions of Sullivan's (and that evidence was, he maintained, utterly unworthy of credence), was consistent with the innocence of Levy. The prosecution sought to establish a conspiracy, on the part of all the prisoners, to murder; but at the most, it only consisted, according to the trustworthy evidence, in a conspiracy to commit a robbery. Sullivan's evidence is worthless. He stated in Court that it was Levy who advised the robbery of these men, but he previously stated to him (Mr. Pitt), that it was Burgess who did so.
The JUDGE pointed out that it was out of order to refer to what was not in evidence, and it was improper to state what was said out of Court.
Mr. PITT said that on the decision of the jury depended the lives of at least two men, against whom the evidence was very incomplete, and
[Image of page 77]
he besought them to consider carefully their verdict, He noticed the medical evidence, and contended that it was by no means conclusive of death from violence. Dr. Vickerman did not prove that Mathieu died from the bullet-wound, or that he actually met death from other than natural causes. He was proceeding to quote from "Taylor's Medical Jurisprudence," when
The JUDGE stated it was not necessary to prove what was the cause of death. The jury would inquire whether it was death from natural causes, and, if not, whether it was a violent death; and, if violent, whether it was caused by the deceased person himself.
Mr. PITT then went on to argue, that it was nothing to show that Levy was destitute of money; and he may have got money from either Burgess or Sullivan after the murders, with or without the knowledge that it was the proceeds of their crime. Moreover, Sullivan had stated that the prisoner Levy paid for everything. In fact, he always seemed to have money. He paid the passages, the expense of living at Nelson after arriving in the Wallaby, and he had furnished the money for the expenses at Wakamarina. Then he referred to the dress of Levy. Sullivan got new clothes, while Levy wore the same clothes, even to the coat, as was proved by several witnesses. The washerwoman's evidence showed how stained were some portions of Sullivan's clothes, and the scientific examination by Dr. Cusack showed that on the shirt, proved and admitted to be Sullivan's, and on the sack which was found in his swag, stains of blood were found. It was impossible that the blood could be that of the horse, because the shirt was hidden by Sullivan before the horse was shot. Sullivan, it was true, mentioned a circumstance by which he endeavoured to account for the shirt being out of his possession. He said he sat down, in the early part of the day, to mend his shirt near the rock, and, being suddenly alarmed, threw it aside; and that either Burgess or Levy afterwards picked it up, and had it in their possession, and gave it to him. Burgess and Kelly were engaged with the straps and other things from the portmanteau, and if the blood had got on the shirt from them, why were the satchel, and other clothing free from it? No article of clothing belonging to Kelly or Levy bore any stains of a suspicious nature, and the conduct of Levy was perfectly consistent with his innocence. The only suspicious circumstance was the possession of a larger amount of money than he had when he landed in the Wallaby, but this, as he had said, was explicable, on the supposition that he got money either from Burgess or Sullivan. He (Mr. Pitt) was at a loss to see any material points in which the evidence of Sullivan had been corroborated, and Burgess might, with equal impunity, have taken the very same position as Sullivan had done if he had chosen. Sullivan took the opportunity of the reward that was offered. He was afraid that Levy would confess before him; and the man who had not hesitated to perjure himself, who had not hesitated to take part in the commission of great crimes, would not hesitate to charge others with their commission; if by doing so he could save his own life. He concluded by saying, that the evidence of Sullivan was unworthy of one moment's credence, and he asked what other evidence there was to show that Kelly and Levy were present at the commission of those desperate deeds? There was no other evidence, and he appealed to the jury to weigh the fact well, and if there was any doubt on their minds (as there could not fail to be with the evidence of such a man as Sullivan, the chief evidence against the prisoners), then to give the prisoners the benefit of that doubt. It did not follow that because a man might readily conspire to rob, that therefore he would also murder. He left the case in the hands of the jury and his Honour, on whose able and just direction he fully relied, and he would only ask the jury to do their duty according to the evidence that had been laid before them.
This closed the case for the defence.
THE CROWN PROSECUTOR'S ADDRESS TO THE JURY.
Mr. HART then addressed the Jury. He said they had heard the evidence adduced on behalf of the Crown, and also the evidence on behalf of the prisoners. His duty was to sum up, and comment upon the whole of the evidence. The defence suggested on behalf of the prisoners, Kelly and Levy, might be considered of a twofold character. First, it was urged that they were not at the place whero the death of Felix Mathieu was effected; and, secondly, that the evidence of the Crown had failed to establish the charge of murder against them. It was abundantly proved, and almost admitted by the Counsel for the defence, that, as early as the afternoon of the Tuesday before the murder, they were in company with Burgess and Sullivan, at a distance of only fourteen miles from Nelson; that they knew at all events that a deed of violence, or at least of robbery, was to be committed, and yet, though they must have felt that it was their interest to be at Nelson, and to show themselves there, it had not been suggested that either that afternoon, or up to the latest on Wednesday, had they travelled more than a distance of seven or eight miles. Was this the part of men whose object it was to get to Nelson as speedily as possible? The only attempt which had been made in cross-examination to prove the whereabouts of these two prisoners at this time had entirely failed. It was concluded by the Counsel for the defence, that if they were anywhere, they were camped at a spot about half-a-mile from Dwyer's, where they must have been seen, and yet no witness saw them. If Kelly had been an innocent man, although unacquainted with the laws of evidence, he would have told the jury that he was at another place, and brought proofs of his assertion. It was highly improbable that they took the whole day to travel seven or eight miles, and this, of itself, afforded a strong presumption that they were not absent from the scene of the murder. It had been urged that a conspiracy to rob differed from a conspiracy to murder. If a man conspires to rob by force of arms, and murder follows, it is as much murder as if he had conspired to murder.
The JUDGE: He might become an accessory be-
[Image of page 78]
fore the fact, Mr. Hart. In conspiracy to rob with violence, unless the person conspiring is within such a distance as to be able to take part in the act of violence, he is not a principal, but an accessory.
Mr. HART: The first point is as to the credibility of Sullivan's evidence; and the cross-examination to which he was subjected, had done nothing to shake that evidence. He admitted that Sullivan had told lies, that he had given false accounts of himself, had even perjured himself on a previous occasion: but the question for the jury to consider was, not what Sullivan might be, but whether what he had said in evidence in this case was or was not the truth. Tested by the law of evidence, and by the testimony of the other witnesses, there was a striking amount of corroboration. He had said that he was not one of the party who went into the bush, and was actually engaged in the murder, and there is circumstantial evidence to bear out this statement. The gun which he had, and with which he was left to guard the road, if he had been in the bush and had murdered any of the victims, would have been discharged, but it was found where he had thrown it away, with both barrels loaded and capped, and there was nothing to show that it had been reloaded; but on the contrary, this gun was found so loaded, after the deed had been done, after the spoil had been gathered, and no more bloody work remained to be enacted. If it had been discharged during the day, it would have been thrown away discharged; but it was found capped and loaded, and was never used again. It was told, moreover, in evidence, that he used a gun after this to shoot the horse, but it was another gun, brought down to him from the road, and this gun was found, on Burgess' confession, with both barrels discharged. Another circumstance came out incidentally in the evidence of Mr. Shallcrass, the Chief Constable, who, on the information of Sullivan, had gone out in search of the bodies of the murdered men. Now, if Sullivan had been with the murderers, he would have been able to point out exactly the spots where the bodies were concealed, but Mr. Shallcrass stated that they were found a great deal farther up the hill than was indicated by Sullivan. He (Mr. Hart) attached far more value to a statement like this, casually brought out, than to one purposely obtained. With regard to the evidence given by the hankers' clerks, as to the purchase of gold on the 14th of June, it had been found impossible to identify any of the prisoners, but he put it to the Jury that parcels of gold were sold to the banks on that day, agreeing, in value and character, with that described by Sullivan. This is as far as evidence of this nature can be expected to go, for bankers' clerks have no business with persons who sell gold, but only with its weight, quality, and form. Sullivan had referred to certain nuggets, which the bank clerks had produced; these nuggets had been sworn to by witnesses, who had sold them to the deceased, Felix Mathieu. Those sales to Mathieu took place on the 9th and 10th of June, and there was nothing to show that he either sent them to Nelson, or took them there himself, and the result is, that some one who had them from him did take them into Nelson. So far, therefore, the evidence is clear on that point. He would leave for what it was worth, the prevarication on the part of Sullivan when the missing men were spoken of in his presence. It could hardly be expected that he would say anything but what would lead people off the scent. There was little use in discussing motives. Sullivan had said that he waited for a favourable opportunity to confess, and to see what evidence could be obtained by the Crown, and how far it would corroborate that he had to give. This was by no means an unnatural mode of proceeding. Mr. Hart then touched briefly upon the medical evidence, and on the theory started by the Counsel for the defence, that the wounds were inflicted after death. The fact was, that Mathieu was found dead with his bands and feet tied. Now, the only theory tenable under such circumstances would be, that he had been found dead by the roadside, and then taken up that long precipitous hill, shot twice, and then stabbed, all after death. It was untenable and impossible, and could not be entertained. After alluding to some of the witnesses' evidence, Mr. Hart spoke of Levy's visit to Deep Creek, where it was proved that he had learned from a woman who had given evidence, that one of the murdered men meant to build a public-house on the West Coast, a circumstance which in itself showed that they must be possessed of a considerable sum of money. Mr. Hart then proceeded to comment upon the movements both of the murdered men and of the murderers, remarking that nothing was left in doubt as to the whereabouts of the former until their arrival near the fatal rock, after which they were never again seen alive. Then, again, Sullivan had told them that, whilst behind the rock, he had commenced to mend a tear in his shirt with black thread, and this part of his statement was so far corroborated by the fact that, behind the rock, a skein of black thread was found, and he accounts for the shirt being out of his possession, by stating that he left it behind him at the rock, where he had been mending it, and where it was picked up by one of the prisoners whilst he was keeping the road, and was again returned to him. And, supposing it was proved beyond all doubt that it was human blood that had marked his shirt, there was nothing in this fact inconsistent with his statement. On the contrary, the smear which the medical evidence had alleged it to be, might have been produced whilst in the hands of the actual murderers. Then with regard to the sack, on which marks of blood are also apparent, there has not been the slightest suggestion made that it was his property; that it had been used by, or was in any way connected with him. Sullivan had told them, in his account, that Kelly, not being able to fire off his revolver, through damp, had used the point of his penknife in the endeavour to extract the ball, and that in doing so be bad broken the point of the blade, which he had reground afterwards on a stone. It appeared to be a trivial circumstance, but these apparently small links tended to strengthen in every way the belief that Sullivan's statement was correct. The knife was found with the blade mentioned broken at the point, and with marks visible of having
[Image of page 79]
been recently re-ground. That, they would be willing to admit) was corroborative testimony of the strongest kind in favour of Sullivan's statement, for the knife had not been shown to him since it had been in the possession of the police. Then again with regard to the gun found in Toi-toi Valley, through the information of Burgess. They found upon this the letters, "Thos. Noon," a name by which Kelly was known, the name in which he took out the miner's right. They would then ask themselves if, after carefully looking at this evidence, they could possibly come to the conclusion that Kelly had nothing to do with these murders. How then came the gun bearing his name to be mixed up with it; and how the knife found in his swag? Then again there was no doubt that the paper found in the gun was a portion of the same paper which was found near the rock, and on the body of the murdered man. Further, it had been proved that the sums of money found on the prisoners' persons almost corresponded with the amount upon the murdered men.
The JUDGE here remarked that no evidence had been adduced which proved the amount of money which the deceased men had when they left the Wakamarina, except the testimony of Sullivan.
Mr. HART continued: The amount of gold was estimated by Mr. Jervis at a certain sum, which, together with the notes and money alleged by Sullivan to have been divided in the chimney amongst the party, amounted approximately to the sums found on the men when taken into custody. They had each received £16 odd, and with this sum the value of the gold closely reached the sum which the deceased had amongst them. Now, he would ask them if, supposing, according to Burgess's statement, he and Sullivan had together committed the crime, would they equally divide each other's proceeds, with the other two (Kelly and Levy), in the risk of obtaining which they had no share whatever? It had been suggested by the counsel for the defence that Levy had means of his own; that he had property which placed him beyond the reach of want; but setting aside the evidence, which clearly showed that he was in want of money on the voyage, it would be of the utmost importance to him could he prove how, and from whence, he got the money found on his person--could he in some way explain how he had become possessed of it. This, however, has not been attempted. Mr. Hart went on to say that, had the trial followed shortly and closely upon the arrest of the four prisoners, and they had had no witnesses to examine, it might have been thought that time had not been given them to produce evidence which should corroborate their statements; but the number of witnesses who had been called, and the lengthened cross-examination they had undergone, showed that every opportunity had been given to the prisoners, of which, however, they could avail themselves nothing. After showing the fallacy of believing that any weight should be attached to the argument of Levy's counsel, that the alleged division of the gold at the spot named by Sullivan was impossible, owing to the number of vessels at the wharves and in the harbour, Mr. Hart pointed out the faLse account which had been given by Levy of himself when arrested, and this and the fact that the party of four had been afterwards seen together as they had been previously, tended to throw upon them the suspicion of having been the guilty parties. They had only been able to suggest that on the day on which the crime was committed they had but been in the very neighbourhood of its committal.
His Honour the Judge, at the conclusion of this speech, said that the important duty he had to discharge would not enable him to sum up the evidence without an adjournment.
The Court was consequently adjourned until next morning at nine o'clock.
SIXTH DAY.
TUESDAY, SEPTEMBER 18.
The Court met again to-day, and his Honour Judge Johnston took his seat at nine precisely. The attendance was large, and a considerable number of ladies occupied the seats both within and without the bar, while outside there were assembled large numbers who could not gain admission.
SUMMING UP BY THE JUDGE.
His HONOUR, after taking his place on the bench, commenced at once to address the jury. He said, they had now arrived at the last stage in this important investigation, and the patience and attention the jury had shown throughout the proceedings satisfied him that they would approach the concluding and responsible duties in a becoming spirit. Although he had no doubt, if a common jury had been chosen to try this case, that the prisoners would have received fair play and a just trial and that the ends of justice would in no way have suffered, yet he was not sorry that, by the concurrence of the prisoners and the counsel, the case was being investigated by a special jury, composed of gentlemen whose habits, education, and modes of thinking enabled them to apply and test the evidence with care and accuracy; and who were, therefore, well able to withstand any outside influence which might temporarily disturb the public mind on the discovery of offences so great as those they had to investigate. It almost invariably happened that, in momentous cases such as that they had under consideration, it was impossible to avoid the rise of a popular excitement. Not that he believed that the popular excitement of which they have heard, or the discussions in the public press which had been alluded to, would in any way have prevented the present or a common jury from doing their duty, or from throwing aside all exterior influences, and giving a verdict according to the evidence, and by that alone. But it was most natural for a free and generous people to be seized with indignation on the discovery of such crimes. It was also natural that people should do as the citizens of this place have done--should make large personal sacrifices of time and labour for the purpose of discovering the crimes, and thus to assist the authorities in bringing their authors to justice. It was this same free and generous spirit which, when the
[Image of page 80]
hour of passion had passed and the day of deliberation had arrived, enabled British juries to dismiss all prejudice, and fairly to consider and weigh all the evidence on its own merits alone. The excitement which arose on the discovery that great crimes had been committed against society showed that a healthy tone of society existed; and did not infer any violent or illegal dealing with their perpetrators; that indignation is a safeguard of society and of the laws, for it is in countries where life is little cared for that innocence is most in danger. After further pointing to the necessity that existed of the jury keeping their minds free from bias, he said, with regard to the present charge, there could be little doubt on the minds of the jurors respecting the guilt of the prisoner Burgess; but he was bound to tell them that, to make out a case completely against Levy and Kelly, it was necessary that there should be a thorough collation of evidence, and a full and careful examination of all the circumstances, in order to prevent a too hasty jumping to conclusions. If, on a calm consideration of the facts of the evidence, it was not made out to the jury, beyond reasonable doubt, that Levy and Kelly took each a part in the murder, the jury was bound to give them the benefit of the doubt; but they were not alone to exercise their duty on the side of what was called mercy; and while on the other hand they were not to allow their minds to be biassed by any mere apprehension of guilt, they were not on the other to reject conclusions that the facts warranted because of ultimate consequences. Any man who entertained conscientious scruples respecting the punishment of death, and who went into that jury box to frustrate the operation of the law, was a criminal against society; and he could not think that any juryman could be so faithless to the oath he took as to adopt such a course. He asked them to bring their minds to a calm consideration of the evidence. The prisoners Richard Burgess, Thomas Kelly, and Philip Levy, stood indicted for the wilful murder of Felix Mathieu, on the 13th June, 1866. There was no attempt at concealment of the fact that there are other charges of murder against the prisoners--and that had appeared in the proceedings in the court. When there were several cases connected together, and several men charged, it was not easy to apply the rules of evidence, and therefore a separate indictment had been framed in each ease. The jury had, therefore, substantially before them four cases of murder, and they also had before them four persons concerned in these murders, three of whom were at the bar; the fourth being Sullivan, who was fully implicated in the crimes by his own statement, and who appeared and gave evidence as an accomplice. His Honour said he proposed first to consider how the case stood in the absence of Sullivan's evidence. The case was very much narrowed by the confession of Burgess, who, in a most extraordinary manner, first confessed his guilt of the whole of the murders, and then pleaded not guilty "for the sake of the ends of justice" as he termed it, and yet in Court repeatedly acknowledged his guilt. With a strange and almost nauseous pertinacity, he persisted in a reiteration of his foul crimes before the jury; and in doing so, as he said, in the interests of religion and justice, he was guilty not only of an attempt to injure justice, but also of the most fearful blasphemy. If he had really been anxious, on behalf of justice, and knew and desired to prove the innocence of Kelly, he could first have pleaded guilty, and then tendered himself as a witness on his behalf. But he was himself the arch-plotter--he was the cruel assassin--and wished to let that be seen and known. The jury were to dismiss wholly from their minds all his overdrawn statements, unsupported and contradicted, against himself and against Sullivan--statements made with an extent of braggart vanity that he had never before witnessed. It was not necessary that the jury should be satisfied that either Kelly or Levy struck one blow or fired one shot, it was only necessary that they should be satisfied that Felix Mathieu, and the three other men who were with him, were murdered, and that the prisoners were all conspiring to murder; and this, in the first place, made them accessories before the fact. Or, in the next place, if the jury were satisfied that Levy or Kelly did not strike one blow, yet if they were near enough to have aided the others in their efforts, and knew what was going on, they are guilty, as principals in the second degree, as much as if they had struck the blow themselves. His Honour then proceeded to consider the case as it stood, without Sullivan's evidence, and briefly narrated the facts as brought out in the evidence. Mathieu, with his friends, were last seen alive, on the Maungatapu. on the 13th of June. In some sixteen or seventeen days afterwards, they were discovered on a steep hill-side, dead. The first point to consider was, whether they died either from suicide, or from conflict amongst themselves. He need not go farther than to refer to the fact, that they were all going along the road for a common purpose, not going some to the one place and some to the other; that three of them were found shot; and that there were no fire-arms near them. Suicide was out of the question, and so was a conflict among themselves; and it was equally clear that they did not die from natural causes. The contradiction of the medical evidence attempted, and very properly attempted by Mr. Pitt, the counsel for Levy on that point, was to his (the Judge's) mind totally irrelevant. None who had heard the evidence could for a moment entertain any doubt that Mathieu had been murdered. By whom was that murder committed? And he would enlarge the question, and ask, by whom were these murders committed? It was contrary to common sense to argue that the men were, murdered separately, that is, that the bodies were taken there separately after being murdered; and it was equally out of the question that one man only took the lives of these four men. Now, if one man did not do it, how many men did it? Burgess has admitted that he took the principal part in the murders; Sullivan has admitted that he took a subordinate part. The case for Levy and Kelly stands thus: They may he guilty of robbery; but they deny that they are guilty of murder. It was for the jury to consider if their story was consistent with common sense, with common probability. The four men went up the country with an acknowledged cri-
[Image of page 81]
minal intent, and, failing to make any prey where they expected, they returned towards Nelson, with the avowed object of robbery; but two of them, it was said, returned to Nelson, and were found sharing in the proceeds of the robbery, without taking any part in it. Was that consistent with common sense or probability? His Honour then traced the murdered men from Franklyn's Flat to the rock, near where their bodies were found; that the time of day was about one o'clock, or nearly so; and that, had the men gone on to Nelson, they would certainly have been met by Mr. Bown, and several persons who passed along the road. His Honour then followed the course of the prisoners. It was clear that they, after professing disgust at the want of occupation at Canvas Town, were seen opposite the Heringa bridge, at a late hour of the day, on the 12th of June, and, on the 13th, they were not seen on the road at all. Yet they made their appearance, all the four, including Sullivan, in Nelson, late that night, travel-stained, muddy and dirty. We must find out evidence to fill up the interstices. They were on the road on the 12th in time sufficient to reach Nelson that night, and if they did not reach Nelson where were they? The case for the prosecution is that they withdrew off the road indicated until the men came up. What applied to one applied to all; they were master and slaves, the slaves willingly, no doubt, doing the other's work; for, as Burgess has said, "Sullivan, if a slave, was a willing slave." If it was true that Levy and Kelly were ready to commit robbery only, but stopped short of murder and demurred to commit it, why did they not escape, and why did they share in the proceeds of the crime? There was time to escape it they had wished, and to be in town, but they did not appear there. The confession of Burgess must not affect the other prisoners; it only applies to himself. But let us look to the conduct of the party before and after the 13th of June, the day of the murders. The men left the West Coast; they were clearly associates, and necessarily were together. What were their pursuits while thus associated? It is clear their principal pursuit was the unlawful acquisition of money. Within a week of their arrival in Nelson, they were all in possession of large sums of money, but before that they were known to be in a state of poverty; borrowed money from two persons on board the steamer, paid £1 for their night's lodgings and breakfast, and at Canvas Town they spent under a pound. One of the party, Levy, went to Deep Creek, evidently to get information, and he learned that Mathieu and his friends were preparing to leave Deep Creek for the West Coast, to establish a business there. Levy spent little money there, he gambled there, and returned next day. On the day after, they leave the place early in the morning, one of them expressing disgust with the poverty of the place. Next night they arrived in Nelson, and on the day after, they are found spending money lavishly. One of them goes to a bank and sells gold, sells those peculiarly marked nuggets, known to have been sold to Mathieu. As for Levy and Kelly, the one gives a false name, and both give false statements. If they were not at the spot where the murders were committed, where were they? They were traced all along that road, and they disappeared. Such were the main points in the case for the prosecution, without the evidence of the accomplice. Regarding this evidence, a great deal of obloquy, and be would say deserved obloquy, had been thrown on the evidence of Sullivan, and strong observations had been made as to its value; and the jury must approach the case and give ample force to these objections, and take great care to weigh well the whole circumstances. He now had to remark on the facts relating to the evidence of an accomplice. According to the principles of English jurisprudence, as he interpreted them, he considered that, in the present instance, the testimony of Sullivan was not to be excluded, but was perfectly admissible. It had been urged to the contrary by counsel during the trial, but he--(his Honour) took it, that the question of the admissibility of such evidence was not the question to be considered, but rather the credibility of testimony given under such circumstances. The law relating to evidence had been much modified in late times principally under the auspices of Lords Brougham, Denman, and Campbell. It had recently been laid down in England, that it was highly objectionable to permit an accomplice, accused under an indictment, to give evidence against another person included in the same indictment, unless the accomplice were first acquitted, or convicted and sentenced before being put into the witness-box, so as thus to remove from his mind all disturbing influences which might induce him to bias his evidence, whether from hope of reward or fear of punishment. Be this as it may, he did not think he ought to use a discretion to interfere and decide that a witness who had been called for the prosecution should not be heard, nor was he aware of anything that should induce him to interpose in this immediate instance, and shut out the evidence of Sullivan from the jury. There were many circumstances that should be taken into consideration when accepting such evidence; the inducement which the witness had in tendering it; and the probability of such inducement actuating him to speak the truth or falsehood. It had recently been laid down in the case of Charlotte Winsor, tried for a capital offence in England, that a person charged along with her on an indictment on which both were put on their trial and the jury was discharged, and who without being put on her trial a second time was admitted as a witness at a second trial against Winsor,--was not inadmissible. He did not think there was anything on this occasion to prevent Sullivan from giving evidence, but he would request the jury to pay particular attention to the motives by which they would consider he was actuated. In a case where a free pardon was offered to an accomplice on certain terms, the reward was given where these special terms were agreed with; and in most cases he considered the great object of the witness would be to adhere to the truth in his statements rather than peril his life by the utterance of falsehoods. He would request the jury to give full consideration to those circumstances. Here was a man who had taken an active part in the proceedings of the other prisoners, who had made no attempt to extenuate his crime, but had acknowledged his complicity in
[Image of page 82]
these deeds; he was a man who freely confessed to being a robber and a perjurer, and who now has tendered his evidence in order to convict his fellow-criminals. With regard to the reward of £400, there can be no idea that, in his confession, he was actuated by a hope that he would receive this; he could never have hoped to claim it. But there is no doubt that he was actuated by a hope of the pardon offered by the General Government to an accomplice who was ready to turn approver, and who was not the actual murderer. Whether in this case he has brought himself within the terms of the last sentence, he could not say. He could not see how it was ever to be judicially proved that he was not one of the actual murderers, and it might be that he had taken the greatest care not to criminate himself in this respect, whilst in the main his testimony might be truthfully given. He should say, indeed, that it was likely that the truth would be spoken, stopping short of involving or criminating himself. There could not be any question that strong hopes had been entertained by Sullivan that pardon would be extended to him for the crimes for which the prisoners are now on trial; and it may be also said that he has hopes of the same being extended to him for the murder of James Battle. But he (the Judge) considered it to be his duty to warn him against thinking that the evidence which he had given on the present charge would at all affect the result of the other murder mentioned. It was most unquestionably the duty of the jury to weigh most carefully the probabilities of his evidence being correct, emanating as it did from the mouth of one who had acknowledged himself to be guilty of robbery and perjury; who, according to his own showing, only stopped short of actual murder. But if, notwithstanding that Sullivan had committed these crimes, they were ready to believe that his evidence regarding the acts of the prisoners was true, it would be their duty to set aside thoughts of his criminality, and accept his evidence. He would tell them, however, that the evidence of an accomplice should only be believed so far as it was corroborated by or not at variance with other circumstances and facts which are proved by other independent witnesses; and unless this were the case, he could never call on a jury to find a verdict of guilty. Now in the present case Sullivan's evidence had, to a most remarkable extent, been corroborated in this manner. It often happened that the corroboration of the facts and circumstances in connection with any act, often brought with it a corroboration of the persons who were the actors. Having thus pointed out the manner in which the evidence of Sullivan was to be considered, he would now approach the narrative of the various occurrences as they had happened, and see how far the assertions of the accomplice agreed with those made by others, and would give the jury an outline of the facts which had been proved in evidence. The position and route of the road, the neighbourhood of which was the scene of the crimes which they were investigating, was probably far better known to themselves than to him. It ascended up the Maitai Valley over the Maungatapu, and thence to Canvas Town. On this side of the flat, which bears the name of Franklyn's Flat, and about one mile and a half from it, stands the rock near which is the fallen tree which has been spoken of by the various witnesses, and on the other side of the hill and flat we come upon the junction of the Heringa and Pelorus rivers. Between a spot not far from the tree, and another spot on the road on this side of the creek, the party to whom Mathieu belonged disappeared from off it. The four men, three of whom are now in the dock, are proved to have arrived in Nelson on the 6th of June, and on the following day to have left in the direction of Canvas Town along the road in question. On the first day they camped at the rock, according to Sullivan's evidence, and they then proceeded onwards the next day to Canvas Town, where they arrived the same day. Whilst staying at Canvas Town, Sullivan had stated that one of the party, Levy, had left for Deep Creek--a circumstance which was corroborated by several witnesses who saw the prisoner there at the time--in order, as it was alleged, to obtain a report of what kind of place it was, and who were about to leave it. Starting from Canvas Town on Tuesday, the 12th, they were seen crossing the river by Mr. Jervis's, and after crossing the Pelorus Bridge they met with the witness Galloway coming towards Canvas Town. At that time they were not far from Franklyn's Flat, where they camped for the night. After this point they were not seen again until after the time the crime must have been committed; and it is here that the evidence of Sullivan must be taken and tested by the small minutiae of corroborative testimony which others have supplied. The various preparations which are stated by Sullivan to have been made in order to intercept the men--the clearing of the bush, &c.--are borne out by the discovery of different spots being found, and by the subsequent finding of the weapons which Sullivan stated each man had been supplied with. The place and position in which the bodies were found do not in any way suggest the possibility of death having been caused by themselves, or by one another; and there were no weapons found in the vicinity of the spot. And they would find that the details of the account given by Sullivan of the affair, were here corroborated by strong evidence. Sullivan says that, whilst behind the rock waiting for the four men to come up, he took a shirt of his, with the intention of mending it there, and they would find that, in corroboration of this circumstance, there was the discovery of the black thread at the spot indicated by him. Again, the account which he gave of the preparation of the straps to pinion the men, were fully borne out by the manner in which the bodies were tied when discovered. Again, he had told them that, whilst in the bush close to the road, at the time when the other men are stated to have been away up the creek, he heard the two men, Möller and Bown, meet below on the road, and that he heard the word "no" distinctly, and the utterance of which the two men themselves have since testified to, at the same time and spot. These men, going opposite ways, met neither of the two parties on the road, and there was no doubt that it was about this time the act was committed. The subsequent discovery
[Image of page 83]
of the gun thrown aside by Sullivan, which was found afterwards in the bush below the track, with both barrels loaded, was further corroboration of his testimony, that he was not one of those who had actually taken an immediate part in the transaction; and again, considerable strength was given to his story by the shirt being found where hid. He had next detailed the division of the money at the chimney, the concealment of the articles which they did not take with them, the accident of falling in the river and wetting the powder in the arms, the guiding of Kelly over the track, the occasion of meeting at the port, which all added to the semblance of truth which Sullivan's statement possessed. The detailed account of the sale of his own gold in Nelson, corroborated in the amount by the clerk at the Bank, added another point in which it was shown that Sullivan had spoken the truth. It was not possible to tell the exact amount of gold which the others sold, but in the gross amount be believed that they corresponded in the main with the amount of gold which was known to be in the possession of the men. His Honour then went over the evidence, explaining the various points, and indicating particularly those parts in which the evidence of the accomplice, Sullivan, was corroborated by the independent testimony of other witnesses. He first read over and discussed the medical evidence; and alluded to the endeavour on the part of Levy's counsel to show that the medical testimony for the Crown was not consistent with the manner of death; but he placed no weight on that testimony, and he noticed this peculiar fact, that the bodies were found under dense bush in such a remarkable state of preservation, although they had lain sixteen days exposed, that their identification was easy and certain, and there could be no doubt whatever that the men were murdered. The borrowing of money from a Greek boatman had been proved, and Sullivan was thereby corroborated. Burgess appeared to him to have assumed the position of leader, and probably was chief. He had said there was a certainty about this, and not about the Picton Bank; and, judging from the general tone and conversation of this man, and from hie general demeanour and conduct in Court, the jury would be able to draw some conclusion as to whether he had done those things in the manner described in Sullivan's evidence. After touching upon their careful and penurious expenditure on their first arrival in Nelson, he said Burgess was wrong in his statement, in saying that Sullivan said that the guns were loaded on Sunday. Sullivan did not say so; he said that they were cleaned on the Sunday night, and loaded on Monday night with bullets stolen from the shooting gallery at the Grey. Mr. Galloway's evidence allowed that the prisoners were seen about four o'clock on Tuesday, within two miles of Franklyn's Flat, travelling towards it from Canvas Town--
Burgess: Your Honour, if I might interrupt you, perhaps you will look to Galloway's evidence. You will find that he says he met us six miles from Franklyn's Flat.
The Judge found Burgess was right; but said it did not alter the case. Then they came to the statement of Burgess, wherein he referred to Sullivan having asked leave to go into the bush; and then came a point of some importance respecting the value of Sullivan's evidence--as to his motives for giving information--a point to which Burgess made a perfectly relevant reference. Sullivan said he had it in his mind, when he asked to go into the bush, to shoot Burgess and to save the men. Now he (the Judge) was bound to say that the comments of Burgess on this point merit considerable weight. Sullivan had the opportunity of destroying Burgess, and of stopping the other men, and did not do so; and if he had been guilty of killing Burgess in that way, and for that purpose, there is no doubt, as Burgess said, that the law would have protected him. As for the murders, it scarcely ever does happen that these great crimes are capable of direct evidence, for, of course, the perpetrators do not commit these crimes in presence of any one likely to convict them. We find it so in this case, as is stated by Sullivan, who was one of the party to these murders, the four murderers were armed, two of them with doubled-barreled guns, one with a revolver and knife, and the fourth with a revolver and knife. Sullivan, as an accomplice giving evidence, naturally said, "I dealt none of the blows, I fired none of the weapons, I was the watchman of the party and the probability was that this was true, that he was the watchman, for the practice evidently was to keep a watchman; and, as had been said, the gun that Sullivan had was found with both barrels undischarged. Möller and Bown had passed the rock immediately after the murdered men had disappeared, and this was chronologically at the very time when the deed was being done, for they were not seen on the road after that point, although they were seen at a short distance off by Birrell, and by others. Where were they? They were found dead; and the probability is that they were taken off the road in the way that Sullivan suggested. Sullivan said he saw Burgess emerge from the creek, and it was important to consider whether less than three men could take up four men in such circumstances. It would be remembered that Sullivan stated that Burgess, after coming out of the creek and finding that he had shifted from his position assigned to him, asked him what he was doing on that side of the road. It was a very consistent statement, very like what a man, a leader in these murders, would say to an inferior who had disobeyed orders. It was natural, too, that the gun which was the least trustworthy should be given to the person who was least likely to make immediate use of it, rather than that it should be taken into the bush, where it might fail at the moment it was required. And this was the case in the gun given to Sullivan, which was found undischarged, showing that it had not been used. As for the blood on the shirt which Sullivan hid, and which he had proceeded to mend in the morning, it was in the hand of some of the others, who might have wiped a bloody knife on it, as the stain had the appearance of a smear, as testified to by medical evidence. After alluding to the statement as to the division of the four lots of money at the chimney, which was the first rest on the road after the murder, there was corroboration of the prisoners' having large notes that night on
[Image of page 84]
their arrival in town, and it was for the jury to say whether or not it was probable they all shared in the spoil, or whether there was anything to prove the story set up by Kelly and Levy that they had got money early that day without having participated in the crime which produced it-
Burgess: May I make a remark here, your Honour?
The JUDGE: Yes, if relevant.
Burgess: Your Honour has stated that no gun was discharged at the scene of the tragedy. I think you will find that a gun-bullet was found in one of the bodies.
The JUDGE: They were pistol-bullets only, so far as I understand by the evidence.
Burgess: One bullet from the gun was found.
The JUDGE: Of course, he knows; but I cannot take his statement, as it is not in the evidence.
Mr. HART: I think your Honour will find that Sullivan had said, that when Burgess gave him the gun to shoot the horse, there was only one barrel undischarged, and that he shot the horse with that.
Mr. PITT: Yes, Sullivan said the left-hand barrel was undischarged.
The Judge, on reading his notes, said they would bear this construction.
Kelly said, Owens swears that Sullivan did not arrive at his house that night at all.
The JUDGE continued his reading of the evidence with a running commentary thereon. He referred to the corroboration of Sullivan having sold the gold in the name of Everett, and that under that name the quantity sold was as he described; the piece of newspaper in the wadding of the gun, corresponding exactly with the piece containing the pepper was, if not stringent evidence, a remarkable coincidence. None of the prisoners denied or objected to the evidence of their previous bad characters. Sullivan was essentially a bad man, conversant with crime, accustomed to associate with men of vile and dangerous character; and he was ready on all occasions to agree in taking part in schemes of violence and villany, and had only a few weeks previously been guilty of direct perjury in the court at Hokitika. He thus admitted his bad character and his disgraceful career since he came to New Zealand, but still while he admitted all this, that admission had to be viewed in two lights; first as showing that he concealed nothing of his past career, and secondly as to how far that career tended to shake his credibility as a witness, and if this admission did not also tend to show that he desired now to tell the truth. This the jury must consider. There was some contradiction offered as to the statement of Sullivan respecting the time he saw the proclamation, and a good deal of finessing took place as to the time he first saw or knew its contents. Now there was no doubt whatever that he knew about this murder proclamation, and did see it, or knew its contents, before making his confession. How far that may shake the credibility of his testimony, the jury would consider. He thought that the Crown and the Colony could not too gratefully acknowledge the promptitude of the steps taken by the community of Nelson in their endeavours to discover these crimes, and find the bodies of the lost men; and but for the ready exertions in the formation of a party to search the locality with certainty of finding the bodies, no doubt Sullivan would not have confessed at the time he did; and acting as the community did, they rendered an important service to the cause of justice and the country at large. After mentioning the strange circumstance of the men not trying to get out of the country immediately after the commission of the deed, and comparing their conduct to that of moths fluttering about the flame of a candle, his Honour noticed Kelly's demand that the Government should send to intercept letters for him--letters which had been sent out of the colony, and which had become the property of the persons who received them, and which, moreover, for all practical benefit to him, were of no use, as they were only to prove that Sullivan had told different stories about Kelly. No Government could take letters in this way; it was not their duty. His Honour also denied the allegation by Kelly that Sullivan had been unduly favoured in the prison. Sullivan had been ill, and suffering from dysentery, and his change in diet was by the orders of the surgeon. Kelly's frequent reference to Sullivan's perjury at Hokitika, and repeated allusion to its being committed before a magistrate and a crowded Court, was rather suggestive of the feelings of men who cared less for the crime of perjury per se, and less for a trial before a magistrate, than for the notoriety of a crowded Court. Unquestionably, in consideration that Sullivan had committed perjury, the jury must take his evidence as that of a man who can perjure himself to suit his own ends. The attempt to prove that the trowsers belonging to Sullivan were marked by stains of blood failed, they were old stains, like stains of port wine. As a whole, the jury would apply to Sullivan's evidence the ordinary tests of credibility both as to detail and motive, and taking into account the character and history of the man. It could not be said that they must believe all the details; and to what extent it was to believed, apart from the many details in which it is incontestible, it was for the jury to say, and it was a question of how far it was necessary to have corroboration beyond these details. He thought such corroboration was not specially required. It was not necessary either on behalf of the prosecution or for the defence, for a judge or jury to construct a scheme of the whole transaction that should be perfect and infallible; it was not necessary to construct a complete edifice. Men's judgments were fallible, and if so complete a scheme were required, many great crimes would escape detection and punishment. What is wanted is to say whether, taking a large view of the facts of the case, there was ground beyond reasonable doubt for the opinion, taken in connection with cohesion of the particulars, that the crime was committed as described by the prosecution. Mrs. Sharp's evidence corroborated that of Sullivan, regarding her case. Touching on Kelly's endeavour to prove an alibi, the attempt to establish proof of a camping party, smoke, tent, and opossum rug, about half-a-mile on the other side of Dwyer's, he said this kind of suggestion--for it was nothing
[Image of page 85]
new--on the part of Kelly, for the purpose of proving an alibi, had utterly failed. In the evidence there was not a shadow of ground for this kind oi defence. In referring to the evidence of Mr. Shallcrass, he spoke of the improvements which had taken place in the police establishment of Nelson. In most parts of the colony improvements had taken place, but none where there had been such a marked improvement as in Nelson; and he now acknowledged his great satisfaction at the marked improvement which had taken place in the police force of Nelson. A police force well organized, and supported by public opinion, directed by wise and judicious rule, and supported by the community, was of great value. He had on former occasions set forth the extreme necessity for precautionary measures, more especially when the new state of the colony offers such tempting baits for the ruffians who prowl about from place to place, and certainly include men of the worst nature, who would not scruple to use any violence to secure their own unlawful aims, unless due precaution is taken. In such a state of things it is perfectly ridiculous to think of law and order if the dangerous classes could expect immunity from justice, through the feebleness of the arm of justice, and he was glad to see the police here in a state of such efficiency. After noticing the witnesses whom Burgess, called, he spoke of the address he delivered, and which, so far as it went, should not influence the Court any further than to take it as a complete confession of his own guilt. Kelly had conducted his case with a considerable amount of ability and astuteness. Like Burgess, he strove to throw discredit on Sullivan's evidence, and the fullest consideration should be given to his interpretation of that evidence. Kelly, too, spoke of the discussion of this case in the public press; and no doubt there might be something in this objection. We who enjoy the advantages of a free and fearless expression of public opinion, know that those advantages are accompanied by unavoidable drawbacks; but when many important duties fall to be performed by institutions, which in a young country they must, they cannot always work out its work without doing some incidental mischief, and it was notorious that it was so. Had Kelly made an affidavit that he could not expect, from the state of excitement in the community, to get a fair trial, and if that had been unopposed by a counter-affidavit, he (the Judge) might have seen it necessary to remove the trial, but he at once shrunk from such a course. It was natural that, in presence of such great crimes, the instincts of the community should be greatly excited, and it was natural to find the inevitable comments of the public press on what stirred the community to its centre. He was glad that the feelings of the entire community were that simple justice should be done, and nothing outside of the law attempted, and that all men of all classes were content to await the administration of that justice. After a short reference to Mr. Pitt's ground of defence for Levy, namely, on the incredibility of Sullivan's evidence, his Honour said that Mr. Pitt had done all he could for the prisoners, and concluded by imploring the jury to give full weight to any hypothesis which implied that the two prisoners, Levy and Kelly, while conspiring to rob, refused to participate in the robbery with murder. If they believed this, he asked them, before God and their country, that if that participation were not clear beyond reasonable doubt--if it was not clear, beyond such doubt, that they were aiding and assisting its perpetrators, or partakers themselves in the act--then, in the name of justice--justice administered by fallible men--give those men the benefit of the doubt. But do not conjure up fanciful and unsubstantial doubts if there are no real and reasonable ones which the jury's knowledge and experience of life would lead them to act upon in the ordinary affairs of life. Their duty as to Burgess was so clear and plain as to leave nothing for them to consider. As for the others, they would consider the whole evidence--first, without that of the accomplice; and, secondly, with the evidence of the accomplice; and decide whether the two together establishes, or fails to establish, their guilt. Gentlemen, concluded the Judge, consider these things. Act in obedience to your conscience and the oath you have taken, and return a verdict according to the evidence.
The jury then retired, at twenty-three minutes past four.
VERDICT OF GUILTY.
After an absence of fifty-five minutes, the Jury returned and took their places; the Judge also took his place on the bench. Silence was proclaimed by the Usher of the Court, and there was a remarkable stillness in the crowded hall as Mr. Sharp, the Registrar, interrogated the Foreman of the Jury, Mr. Schroder.
Mr. SHARP: Gentlemen of the Jury, have you agreed on your verdict?
The Foreman: We have.
Mr. SHARP: How say you, Gentlemen, with respect to the prisoner RICHARD BURGESS, is he guilty or not guilty?
The Foreman: Guilty.
Mr. SHARP: How say you with respect to the prisoner THOMAS KELLY, is he guilty or not guilty?
The Foreman: Guilty.
Mr. SHARP: How say you Gentlemen, with respect to the prisoner PHILIP LEVY, is he guilty or not guilty?
The Foreman: Guilty.
Mr. SHARP then interrogated the prisoners. Addressing Burgess, he said: RICHARD BURGESS, have you anything to say why sentence of death should not be pronounced against you?
Burgess: Can I address the Court, your Honour?
The JUDGE: Only on a point of law.
Burgess: Then I have nothing to say.
Mr. SHARP: THOMAS KELLY, have you anything to say why sentence of death should not be pronounced against you?
Kelly: I wish to make a statement.
The JUDGE: It can only be on a point of law.
Mr. SHARP: PHILIP LEVY, have you anything to say why sentence of death should not be pronounced against you?
[Image of page 86]
Levy: I wish to say something with regard to my witnesses who did not come.
The JUDGE: You were ably represented by Counsel, and I cannot hear you on matters of fact, the time has passed for that. Crier, make the proclamation.
SENTENCE OF DEATH.--SCENE IN THE COURT.
The JUDGE then put on the black cap, and the Crier said:-- "All manner of persons are commanded to keep silence whilst sentence of death is pronounced against the prisoners at the bar, under pain of imprisonment."
His HONOUR was proceeding to address the prisoners when
Kelly said: Although found guilty, I wish to state that I was not on the road, nor near to the men when they were murdered. I don't think your Honour charged the jury right, when you told them that everything that was found where Sullivan stated it was, was corroboration of Sullivan's evidence.
The JUDGE: Have you any other grounds?
Kelly: I have plenty of other grounds.
The JUDGE: But you are talking of the evidence, when it is only on points of law you ought to speak.
Kelly: I am talking of why sentence of death should not be passed upon me.
The JUDGE: You can be heard only on a point of law. Juries and Judges are only fallible men, and you have been found guilty after the fullest and most careful investigation that could be given.
Levy: Is this a point of law, your Honour. If Sullivan has sworn to things which are not true, and which my witnesses could disprove?
Kelly: He has perjured himself in this Court.
The JUDGE: You have no right to say so now.
Kelly: Won't you let me speak? Oh, do let me speak!
The JUDGE: No longer.
Kelly: Oh, that's bad. Oh, let me speak! Nobody will be sorry for my death; no person will grieve for me. I have no friends who will regret me, still I ought not to die if it is wrong. Let me be heard.
The JUDGE: I tell you again only on a point of law. Have you any principle of law on which to speak; have you any principle of law on which to crave a bar of sentence? If not, I can permit this interruption to go on no longer.
Kelly: Very likely it may be a point of law, but you will not let me say it. I do not know what is law. It may be law.
The JUDGE: I cannot allow this. Officer, silence the prisoner. You have been permitted too long to disturb the Court.
Kelly: Oh, there never will he twelve other men in this world who will believe what that dreadful man Sullivan says, although you twelve gentlemen have believed him, and found me guilty.
The JUDGE: This must be stopped. Officer, prevent that man from speaking.
A Policeman: All right, your Honour. [Here Kelly was pulled suddenly from the dock to the floor of the Court.]
The JUDGE: No violence; no violence. [Kelly was again placed in the dock.]
The JUDGE: I ask you once more. Have you any point of law to urge against sentence?
Kelly: Yes, your telling the jury that any of the property that was found where he told corroborated his (Sullivan's) statement; but because he hid it he knows very well how to find it. It was not right to say that--
The JUDGE: Tell me the point of law on which you have anything to say.
Kelly: I don't know if it is law; but I have a great deal to say, but you won't let me.
The JUDGE: Richard Burgess, Thomas Kelly, and Philip Levy, listen to me.
Kelly: God forbid; God forgive you.
The JUDGE: Kelly, if you do not be silent, I shall have to take steps to compel you; you have had every latitude allowed you greater than any man I ever saw before in such a position.
Kelly: Yes, your Honour, I know you have allowed me great latitude, I must allow that, more than any I ever experienced before; but let me speak.
The JUDGE: Richard Burgess, Thomas Kelly, and Philip Levy: You have been convicted by a jury of your country of the crime of murder. I shall now speak to you severally and individually. You, Richard Burgess, have put yourself in a position which, according to my experience, is a position unparalleled in the history of British trials. You come to the bar of this Court, and say you plead not guilty, although you were guilty, and freely acknowledged your guilt. You have pretended that that plea was put in for the purpose of furthering the ends of justice and religion; and you have in the course of a most extravagant and vain-glorious statement, made for the purpose of producing an effect, acknowledged that you are one of the wickedest of men, one without any kindly feeling for your fellows. Without feeling of regret, almost with less regard for human life than that of the beasts of the field in the enjoyment of their natural and physical instincts, you have acknowledged yourself to be a murderer and a robber. You pretended that your revelations were made in consequence of the religious instruction given to you; and you have pretended that these revelations were made in the interests and for the furtherance of the ends of justice. I trust that those who have heard you make your unparalelled statement, with its flippant and daring impiety, will be taught that your pretence in favour of religion and justice is only such as might be expected from a man who has shown some of the cunning of the fox and a little more than the blood-thirstiness of the wolf. I hope that the words I am now addressing to you will be the last words of reproach that will he addressed to you in this world. They are uttered by me in order not to let it be believed that such a life, and such vain-boasting over evil deeds should be received with any other feeling than that of loathing and horror. If you have flattered yourself with the idea of becoming the hero of a life of crime; if you have flattered yourself that you shall depart from this world with some share of fame which shall remain behind you, and your name be spoken of among wicked men as that of one to be admired as a hero of crime, disabuse yourself of the idea at once. I trust
[Image of page 87]
and believe that there are few men in this world whose imaginations are so depraved as that they could look on such a life and such conduct as heroic, when it is only brutal. God forbid that, the people of this colony should ever come to regard a life like yours with other feelings than those of detestation. God forbid that people should be found who would think there was anything like heroism in the life of a man who ruthlessly took away the lives of his fellow-creatures when they were helpless and taken at unawares; or that there are men who could ever look upon such a man so reckless of human life as you have declared yourself to be, with any more interest--that is with any more sympathy--than they would look on a beast of prey. These words I think it necessary to address to you Richard Burgess, not for the purpose of wounding your feelings, nor for the purpose of adding to the sufferings you must feel in your present awful situation; but to let it be understood that you have been acting the part of a man wishing to make himself notorious for his murderous career, and to die as he has lived. If you have been hoping that the punishment which you will shortly suffer will afford you an opportunity of displaying that pernicious bravado which has hitherto marked your conduct, you have been in error. In this colony executions are private, with sufficient witnesses to guard against the possibility of the law being tampered with; and you will therefore not have the vulgar satisfaction of carrying out any cherished wish you may entertain of dying a felon's death, boldly and recklessly in the presence of a large assemblage of people. Richard Burgess, by your own admission you are the murderer of several men. How many we do not know; you yourself must know. You have been convicted, after a patient trial, of the murder of these victims; and I now proceed to pass upon you the sentence of the law, and that is: That you be removed to the place from whence you came, and, that there in due course of law you he hanged by the neck until your body be dead, and that it be disposed of in due course of law; and may Almighty God, in his infinite mercy, have mercy on your soul.
Burgess (weeping, but with a steady voice): Your Honour, I have deserved my sentence, and I receive it with humility.
Burgess then stood down from the dock.
The JUDGE addressed the next prisoner: Thomas Kelly, in your defence you have stated----
Kelly: You ought to let me speak.
The JUDGE: Be silent.
Kelly: I am allowed to speak at home, and I ought to be here. Oh it is wrong.
The JUDGE: You have been allowed every opportunity to speak, and full time has been afforded you on your trial.
Kelly: Yes, I don't deny that your Honour; I have got that.
The JUDGE: No reply.
Kelly [who was sobbing bitterly]: If you hang me, I must be murdered. I don't want to be hanged. I want to be put in a cage and taken up to the mountain top, where those men were killed. Hanging is too good for a man who could do that. [Here the prisoner laid his arms on the front of the dock and appeared thoroughly overcome.]
The JUDGE: Thomas Kelly, you are in a different position from that of the prisoner Burgess. No means have been spared to give every circumstance that could tell in your favour due weight. Every tittle of evidence has been examined with great care and you have had full benefit of that examination. You, and your companions, evidently were the willing slaves of your partner in crime. It may be that you were not a participator in another murder of which we have heard; but, after patiently hearing the evidence in this trial, the Jury came to the conclusion--and who shall blame the Jury? --that you took part in the murder of Felix Mathieu whose murder was the subject of this trial. And what kind of a murder was it? It did not arise from a sudden dissension, it was not caused by hot-blood or angry passions, but it was a murder deliberately planned and committed in cold blood for the love of lucre. In preference to earning an honest livelihood, you chose to murder peaceful men for their gold, which, when obtained, you spent in riotous living. You possess some ability, and some degree of intellectual power, however much it may have been misdirected. The manifestations you have exhibited to-day are indications of your character as a man. The sentence I am about to pass upon you, Thomas Kelly, is that you be removed to the place whence you came, and there in due course of law be hanged by the neck until your body be dead, and that it be dealt with in due course of law; and may Almighty God have mercy on your soul.
Kelly was then taken down in a very prostrate condition.
The JUDGE next addressed the prisoner Levy: He said Philip Levy, you have had the advantage of being defended by a gentleman who, as you and I have witnessed, has done the very best that could be done for your case. The evidence which he has called at your instigation was made the best use of that could be made. You have had the benefit of Counsel, and have had, for and against you, Burgess on the one side and Sullivan on the other. Everything that has been said against you by Sullivan, has been made the subject of steady efforts to overturn it; and Sullivan's testimony has been sought to be weakened by every means that could be tried. As far as I know, your case and the cases of the others have been investigated with great care and deliberation; and the conclusion arrived at by the jury who tried you (and who shall say that conclusion is wrong?) is that you are guilty of murder, and therefore, in accordance with that verdict, I proceed to pass upon you the sentence which I now do, and that is: That you be taken to the place from whence you came, and there in due course of law be hanged by the neck until your body be dead, and that it be disposed of in due course of law; and I say to you, as I said to the others, may that Almighty God on whom you as well as I both rely--the great Jehovah--have mercy on your soul.
Levy: Your Honour, may I speak a few words now?
The JUDGE: What is it?
Levy (in a calm voice): I am happy to inform you that in my own mind, and from the very bottom of my heart, by the God I worship, I leave this bar innocent of the murder of this man.
The JUDGE: Then I must inform you that there is
[Image of page 88]
no apparent warrant for your saying so, and that this statement of yours has no effect upon me, and should not have the slightest effect on the jury or the public.
The Court was adjourned till ten o'clock on Wednesday.
SEVENTH DAY.
WEDNESDAY, SEPTEMBER 19.
TRIAL OF SULLIVAN FOR THE MURDER OF BATTLE.
Punctually at 10 a.m., his Honour the Judge took his seat on the bench.
On the names of the Special Jury being called over, Alexander Bain and Robert Levien were absent, and, being in the ballot, were fined £5 each.
The following names comprised the Jury: N. T. Lockhart, W. H. Turner, J. Lockett, C. B. Wither, A. Greenfield, W. S. Mortimer, J. M. Pierson, R. Johnson, J. Oldham, H. H. Knowles, H. Martin, S. H. Pike; the two latter taking the places of R. M. Paton and D. M. Luckie, challenged, both by the Crown.
The indictment was then read over by the Registrar, charging Joseph Thomas Sullivan with the murder, on the 12th of June last, of one James Battle.
On being asked what his plea was, Sullivan said he wished to plead in accordance with his former statement, and confessed complicity in the murder.
The JUDGE: Do you wish to plead Guilty?
Sullivan: Not to actual murder.
The JUDGE: then let the plea of Not Guilty be recorded.
The prosecution was conducted on behalf of the Crown by Mr. HART and Mr. H. ADAMS.
Mr. HART opened the case as follows:--The facts of the case in which the prisoner stood indicted for wilful murder were these: James Battle, a labourer, who had for some time been in the employ of Mr. Wilson, at the Wakamarina, was paid his wages by his master, and on the 12th June left the Wakamarina to go towards Nelson. He was seen on the road on the morning of that day by several persons and was met, about one p.m., on the Wakamarina side of Franklyn's Flat. After that point he was never seen alive. There were witnesses who had seen the prisoner, together with other three men, on the road on the same day, and they will prove that in their company he left Canvas Town and was seen afterwards at various points of the road. Subsequently, from information given to Sergeant-Major Shallcrass by the prisoner himself, a search was made, and the body of James Battle was discovered, under circumstances which left no doubt that he had been murdered. The jury would consider whether, after this statement made by the prisoner himself, and the other evidence which would be brought against him, it was sufficient to convict him of the crime of which he stood indicted.
The examination of the witnesses was then commenced.
George James Baker, being sworn, said: I am a tailor by trade, residing in Nelson. I recollect, some day in July, going to search for the body of the man James Battle. I went to Franklyn's Flat and camped there on Monday night, and on Tuesday, 3rd July, I went a mile farther towards the Heringa river. We were then told off to search the bush in the neighbourhood. There were about twenty of us present. We all went into the bush at a distance of five yards apart. I was on the lower side of the road going from Nelson. I came to a fern with the root uppermost; this was about one hundred yards from the road. I examined the place, and moved a log about three feet long, and, scratching away the earth with my fingers, I came upon the body of Battle. A part of the body was naked. That was the part just above and below the middle. I did nothing more until the constable came. Constable Marten then came and we stripped the earth from the body. The body was lying on its face. It had the clothes on it, but was stripped both above and below the hips. I believe it had a blue shirt on. On turning the body over we discovered marks of discoloration about the chest and neck. I mean, by discoloration, an appearance different from the rest of the body which was putrescent. The body was wrapped up in calico, slung on poles, and brought to Nelson. I was present when the body was examined by Dr. Cusack and, I think, by Dr. Cotterell. Body identified by the hospital attendant.
Cross-examined by Sullivan: We were only told the locality where we were to search for the body.
James Barton, having affirmed, said: I am attendant at the hospital. I went on Tuesday, July 3rd, to the engine-house. I saw a body that day, and identified it as that of James Battle, who was once an inmate of the hospital. I saw the medical men there; they examined the body.
Charles Edward Cotterell, being sworn, said: I am a surgeon, residing in Nelson. I examined a body on the 3rd July last, at the time the last witness was there. I examined the body of James Battle with Dr. Cusack, and, in consequence of want of light, postponed the examination till Wednesday morning. There were no marks apparent of external violence. On opening the head, the brain was rather congested; it was rather soft, easily broken, and it was necessary to place it in a basin. On removing the skin of the throat, we found the muscles of Adam's Apple contused, as if compressed by some rigid substance. The appearance was different from that which would have been caused by a soft substance. The inside of the windpipe and mouth appeared healthy. There appeared nothing abnormal about the chest, except that one of the lungs was slightly congested. When the skin of the abdomen was removed, there was a distinct discoloration of the omentum or caul, and a contusion corresponding to the discoloration was found on the surface. The stomach was healthy and empty. The deceased might have vomited, and I think it very probable, for the mud was very hard to remove from his face, and I think the glutinous matter might have been the cause of its being more than usually adhesive. The injuries were such as would be caused by strangulation, they would probably induce congestion and asphyxia. I could not say positively that death was caused by strangulation. The symptoms might have been consistent with asphyxia from natural causes.
[Image of page 89]
Francis Longbourne Vickerman, being sworn, said: I examined the body of James Battle--with Drs. Cusack and Cotterell, at the engine-house, on the 3rd and 4th of July. He died apparently from strangulation, and a nervous shock caused by a blow on the stomach. The symptoms were not consistent with death having been caused by himself.
John Wilson, being sworn, said: I am a publican and farmer residing at the Wakamarina. I knew a man of the name of James Battle. He was at work for me for seven months, but I knew him before that. He ceased to be in my employ on Tuesday, the 12th of June, when he went away in the direction of Nelson, at about eight o'clock in the morning.
I paid him £3 18s., and he spent a shilling of it afterwards. I think he had about £3 17s. when he left. I have not seen him since. He had a long-handled shovel with him. I never saw the prisoners Burgess, Levy, and Kelly, before I saw them in the Court. The deceased was generally known as James Battle, or "Old Jamie." He sometimes called himself "Rufus."
George Jervis, being sworn, said: I knew the old man, Battle. I saw him last at Canvas Town, on Tuesday morning, June 12, He was coming from Wilson's towards Nelson. Wilson's is about half a-mile from my place. I never saw him alive since. I have seen the body since. I saw the body in the engine-house in Nelson. I know the prisoner Sullivan. He crossed the Wakamarina about a quarter of an hour before Battle did, with Burgess, Kelly, and Levy. I saw the place where the body was found, but did not see it found.
Baker recalled: The body was found about fifteen miles from Mr. Jervis's. It was about a mile from Franklyn's Flat, on the Wakamarina side.
Examination of Jervis continued; I saw the prisoner first on the 9th June. He and others had leave from me to occupy an empty house of mine whilst there. They spent about fourteen or sixteen shillings at my house. Levy went up to Deep Creek whilst they were there. I heard one of the men, this was Burgess, say, as he crossed the river, "Goodbye old fellow, we are going to leave the bloody country, there is nothing to do here." They did not appear to drop in casually, but all came together. Sullivan stated, on Monday afternoon, that they had been prospecting at the Buller and had run short of money, or otherwise I might have taken a few pounds from them. They stated that they had come from the Pelorus Bridge. They left a little before eight.
Cross-examined by Sullivan: I had a conversation with Mr. Owens on 17th June. The subject was the absence of the four missing men. Had I seen you then, I would have caused you to be arrested. He told me he had no strangers in the house. I saw you afterwards in the lock-up. I said something to you about poisoning. When I went in, I asked you if the dysentery had left you, and you said, "Yes," and I said to you, "You b----y wretch, I wish I had poisoned you at the time." I don't think you said anything about having enough poison to kill all the Jervises and Owens in the place.
Daniel Cooper, being sworn, said: I keep an accommodation house at the Pelorus bridge. I saw the prisoner Sullivan on Tuesday, 12th June. I saw him a quarter of a mile on the Wakamarina side of the Pelorus bridge. There were three other men with him, Burgess, Levy, and Kelly. The three others were a quarter of a mile behind him. This was between 10 and 11 o'clock in the forenoon. The distance to Jervis's from the Pelorus bridge is about six miles. I was going along the road from my own place to the Wakamarina. These people were going towards Nelson. I had seen them on the Friday previous, camped at the bridge. Half-a-mile farther on my road I met the old man, Jamie. I knew he had been in Wilson's employment. He was coming towards Nelson when I met him. He was carrying a swag and a long-handled shovel. I have not seen him since that time. He was the last person who passed that day that met me. I saw Mr. Galloway pass in the opposite direction. He was on horseback, and he stayed the night at my house.
I noticed that the prisoner and his companions were carrying swags, but observed nothing else very peculiar about them.
The witness Baker was again recalled.
The JUDGE: Do you know the Heringa river as it crosses the road?
Witness: Yes.
The JUDGE: Was the body found between Franklyn's Flat and the Heringa?
Witness: Yes, but nearer the Flat.
[The witness pointed out on the plan the spot (A), where the body of Battle was found.]
Thomas Galloway, being sworn, said: I am a draper, residing at Picton. I left Nelson on the 12th of June, at about ten a.m. I met Messrs. Hartman and Leo giving their horses a feed at Franklyn's Flat. I then met an old man not far from the Heringa bridge. I did not know his name, but I did his appearance. He was walking along towards Nelson. This was about three o'clock in the afternoon. He was carrying a bundle and long-handled shovel. I afterwards met, a mile farther on, four men, of whom Levy was one. The others I cannot swear to. I spoke to them, but they seemed to turn their heads away, as if unwilling to enter into conversation. I went on to Cooper's Accommodation House, and slept there. I met no one else that day.
Cross-examined by Sullivan: I recollect you. I think you returned an answer to my greeting, but the others turned their heads away as if to escape being seen.
H. Möller, being sworn, said: I am a storekeeper,, residing at Deep Creek. I left that place on the 12th June. I started between six and seven in the morning, and arrived in Nelson at about nine p.m. I had seen James Battle, and knew him by sight. I did not see him on the 12th June. I did not know Sullivan, or any of the other men.
Robert Shallcrass, being sworn, said: I am Sergeant-Major of Police in Nelson: I know the prisoner Sullivan; he made a communication to me on the 28th June, in the Police Office. I took it down at the time. It is signed by Thomas Joseph Sullivan. I took down what it contains from his dictation. I produce it.
The JUDGE: Did you read it out to him before had signed it?
[Image of page 90]
Witness: He read it himself.
The JUDGE: Does the paper contain substantially what he said?
Witness: Yes, your Honour.
Sullivan: When I made the statement, did you take all, or only the heads of it?
Witness: I took only the heads.
[The statement which Sullivan made to Mr. Shallcrass, relating to the murder of Battle, was then read out, the details of which correspond with the circumstances related below by him in his defence.]
Examination of Mr. Shallcrass continued: Sullivan acknowledged to me that he was with the others on Tuesday. He afterwards stated where Battle's body was to be found. He did not particularize the spot where it was to be found, and did not say it was buried. He said there were some marks by which I could know the spot where the old man was taken off the road, and these were found--the mark of a heel in the ground, and a log. I was not present when the body was found. Sullivan did not tell me the particulars of the death of Battle. He said he did not think Battle could have been shot, or he (Sullivan) would have heard the report of the fire-arms. I have two shovels that were found, and which I received from constable Martin.
Sullivan: Do you know where the body of Battle was found?
Witness: Yes. It was found near the spot indicated.
[The statement made by Sullivan in the Magistrate's Court was here read by the Registrar.]
Sullivan: Did I say more in my statement than was taken down at the time?
Witness: Yes. What has been read are only the the principal points in it.
Joseph Bradcock, being sworn, said: I am a constable residing in Nelson. I was one of the Maungatapu Search Party. The witness was going to state the discovery of the shovel found below the track, but the Judge considered the evidence irrelevant, as there was no attempt at its identification.
Stephen Owens, being sworn, said: I am an innkeeper residing in Nelson. I know the prisoner Sullivan. He came to my house on Thursday night, the 14th of June. He stayed until the following Tuesday.
This evidence the Judge considered unnecessary, and it was stopped.
Sullivan: How do you know it was on the Thursday that I came to your house?
Witness: I am sure of it.
Sullivan was proceding to further cross-examination when he was stopped by the Judge, who said there could be no good gained by such a course.
Sullivan: I wish to test the credibility of the evidence of the witness given in the former case.
The JUDGE: Then you have no right to do so, and I should merely have to tell the jury to dismiss from their minds any facts related with regard to a trial which is over, and with which the present one has nothing whatever to do.
The Judge then told Sullivan the time had arrived for him to make his defence, which was as follows:--
SULLIVAN'S DEFENCE.
YOUR HONOUR AND GENTLEMEN OF THE JURY-- The time has now arrived that I can be enabled to lay before the world and elucidate unto you, the mysterious manner I became an associate of these men, for as a witness it was not in my power to do so. It is very natural, gentlemen, you will ask questions how is it that Sullivan has gained that much confidence with men committing crimes of such magnitude, as they have been accused of by Sullivan? It was, gentlemen, in a very simple manner upon my part, but by a great deal of cunning displayed on the part of Kelly and Burgess in making me a party to a crime. And then they exercised a terror-like influence over me--as I have not the least doubt they have done over many others for a time, and then have slain them, as I feel convinced they intended to have slain me, when the bank robbery was done. For, since I have been in gaol, Burgess has expressed himself to the effect that it was a good job for me that I was in custody, as he intended to "cook" me; furthermore, he would get me hanged. Kelly has said the same, and Levy has not been sparing of his tongue towards me. In fact, gentlemen, from the first time I was in their power I discovered I had to do with men that their equals were not upon God's earth. They were possessed of a great deal of low cunning, and the coinage of their brain was great; therefore, to endeavour to possess their confidence, I often boasted of crime that was committed by other men, and made it appear to them that I looked upon crime as a business transaction, and I often talked of matters performed years back by criminals; for, gentlemen, since I have been in the colonies I was at a place called Port Arthur, in Tasmania, and while there I was overseer over a gang of convicts, and several of those men have been mates of both Kelly and Burgess. At the time I was overseer at Port Arthur, I was able to learn a great deal of the antecedents of others. But, gentlemen, before I was ever at Port Arthur, I had gained some notoriety. In my early days in England I had fought some battles with young men, and when I came to the colonies I commenced to fight with men, sometimes for money, at other times for the love of fighting; I was ambitious, and became a popular man amongst a certain class of men. As I got old I became more sensible, gave over fighting, but nevertheless encouraged it. I often undertook the training of fighting men; when in public business I kept a sparring room connected with the house, and a great many persons used to frequent my house, especially amongst the thieving fraternity, for where fighting men assembled, there also thieves would assemble. Gentlemen, Kelly has stated he went to school with me. I will make you acquainted with what knowledge he has had of me, if any. When first I saw him in Hokitika, he asked me if my name was Sullivan, and it was natural I should ask how he knew my name was Sullivan. He said he heard me so called in the street the other day by some men. He then told me he thought he knew me in London, and that he had seen me fight there. I, in conversation with him, learned from him that he resided not far from where
[Image of page 91]
my brothers went to school. He told me he went to school with them, and I was sure he knew them, for he said things that happened to my brothers at school, and spoke of persons whom I knew very well.
I then felt a warmer attachment to him than I would have had under ordinary circumstances. During the time I was at Hokitika, I sent a letter to my wife, telling her I was coming home, as the country was too cold for me; but unfortunately it has become too hot for me. I stated to her in my letter, that my money was nearly exhausted, and that I should want some when I arrived in Melbourne, to take me up the country, for I resided at a distance of 145 miles from Melbourne. Some time after this I went to the Grey with the prisoners, and I wrote a letter to my wife, as I felt uneasy about her, and what she might think of my not returning according to promise. I wrote this letter at the suggestion of Kelly. It whs written to calm her fears. I stated I had fallen in with an old schoolmate of mine, and that he had given me some money to keep me going for a short time, telling her not to write to me until she had heard from me again. This, gentlemen, is the origin of the tale of my being an old schoolmate of Kelly's. In the first place, there is a difference of ten years in our ages. I must have been a very old boy at school to have met Kelly there. I have not been at school since the funeral of the Duke of York. Your Honour and gentlemen of the jury, in addressing you upon this most unprecedented case, I am at a great disadvantage, for you perceive that I have the two prisoners Burgess and Kelly, and Mr. Pitt on behalf of Levy, against me. But, gentlemen, the evidence the Crown Prosecutor has brought against me is true. But, gentlemen, it is my duty, and a duty I owe to society, to narrate unto you what took place upon Tuesday, the 12th of June, relative to the death of James Battle. Gentlemen of the jury, it would be presumptuous upon my part, and an insult to your understandings, were I to attempt to reason with you as to the motives that the man Burgess had in making such a blasphemous confession as he has. Gentlemen, I shall confine myself to a few remarks upon that confession, and in as concise a manner as possible lay them before you; for I feel convinced, from the intelligent jury that has to investigate this case, I shall receive that amount of justice that invariably guides all British jurymen, that is, fair play. I shall not attempt to preface my defence with quotations from God's Holy Writ, as Burgess has done in his blasphemous confessions; calling down eternal damnation, saying Levy and Kelly were innocent. But, gentlemen, I shall narrate unto you what took place on Tuesday, the 12th of June, the day of James Battle's death; and, as I have taken truth for my safeguard, I shall, in as truthful a manner as my memory serves me, make you acquainted with it. But, gentlemen, there has been a great deal said during the commission of inquiry upon the death of these men; that my motives have been to obtain a pardon. Gentlemen, were I to attempt to mislead you upon that point, it would be fruitless, for there is no person who would believe me. Were I to assert I did not expect a pardon, it would be untrue, for, by my own acknowledgment, I knew the contents of the proclamation offering a pardon to an accomplice. But gentlemen, when I was a witness in the box, I was examined whether I read a proclamation offering a pardon. I emphatically denied that I read that proclamation. I still assert that it was impossible for me to put my head through the aperture in the cell door, and if I could have done so then I could not have read it without the door of the passage being closed; for the cell I was confined in was the farthest away from the door. But men like Kelly or Burgess can, for their heads are much smaller than mine. But, gentlemen, independent of any proclamation, I should have petitioned the Government for a pardon when the guilt of the men was established. Mr. Shallcrass has stated upon oath, that I sent for him before any pardon was offered. There has a deal been said why I did not give earlier information. If I had done so, there was a possibility of placing myself in great danger in not proving the guilt of the men. I awaited until I heard three material witnesses examined; that is, Mr. Jervis, the man Cooper, and the witness Harvey. Had I given information sooner, and Harvey could not have been found, there was a possibility of Levy denying having been at Deep Creek. Furthermore, there has been a deal said about my giving false testimony. At present I cannot enter into the particulars, for by so doing it might be the means of defeating the ends of justice in other cases that the Crown may proceed with. There was a witness examined of the named of Hopgood, to prove I said something about a bottle of smoke. Gentlemen, is it reasonable to suppose that a person thinks of all the idle talk he makes use of? When I was examined, I said I never made use of the words, and I am still under the impression that I did not. You see, gentlemen, the cunning displayed by Burgess. In his confession he stated I said so, knowing full well that the confession he made would appear in print. Persons reading this, imagine I used the words. Burgess must have known full well my memory is pretty correct; he knew I should deny having spoken the words if I did not use them. For, gentlemen, from the hour I made the false step of becoming an associate with these men, I can relate most all the idle talk that has been used amongst us; for, from the time of the first robbery, it made a deep impression upon my mind, and especially after I had seen a bottle containing strychnine in the possession of Kelly. I could tell everything we ate, and where, and at what hour. In fact, there is not a part of a road we travelled upon but what I can describe to you as if I had just visited it and every person we met since I left Hokitika. Burgess said I was always ahead, being a fast walker. No, gentlemen, it was not that; it was their wish to keep me in sight, and it suited my purpose to keep with them as much as possible. I dared not lose sight of these men, no more than them losing sight of me, for there was a crime committed at the Grey by Kelly and another person, and Levy and Burgess were cognizant of that crime, and if I had lost sight of them that crime very probably might have been placed against me, and I should never have been
[Image of page 92]
able, possibly, to connect with, it the parties concerned in the crime. Gentlemen, Mr. Pitt has stated I was the guilty party, and endeavoured to make me a great villain coming from Tasmania. Mr. Pitt, coming from Tasmania, bred and born amongst the convict element of that country, has had ample time allowed him to trace out my antecedents there, and I have not the least doubt he has done this. But my antecedents are of such a nature, he dare not mention them; for if he did so, no one would have believed one word he adduced on behalf of his client. He likewise received a £20 note from Burgess. There has been a portion of a bag produced in Court with blood stains upon it, but if my memory serves me right, the medical gentleman said that the blood was not human that was upon it.
The JUDGE; He did not say that it was not human blood, but that he could not swear to it. However, go on.
Sullivan then continued: I shall explain how the blood came upon that bag. The bag was used to place upon the ground to lay our food upon it at the time we camped at the Pelorus bridge. Levy purchased two pigeons from Mrs. Cooper, and a turkey was stolen there. These birds were cleaned, and placed upon the bag to keep them clean. As regards my shirt, when I placed that shirt out of my hand, after being disturbed by persons approaching, when in the act of repairing it, I did not observe blood upon it. It is possible for blood to be upon it. But when that shirt was shown me in the witness-box, it appeared to me as if a knife had been wiped upon it, or rubbed on it. The medical gentleman said the blood had the appearance of having been rubbed upon it, as it had not penetrated through the cloth. Furthermore, the stain was at the back of the shoulder, and it is very probable that one of the men must have wiped his hands or something upon it, for is it within the bounds of reason that, having a shirt stained with blood, I would tell where it would be found; or have placed it upon the road side, if my motive had not been to lead a person to where certain things would be found? Could not I have buried it? We had shovels with us. I trust, gentlemen, that the shirt in question will not bias your minds relative to the present inquiry. It has been said in this trial that I sent letters to my wife when I was in gaol, and that it was wished that the answers to these letters could be produced in Court and read. With his Honour's permission, I wish the officer of the Court to read them. There was something said about my hands being scratched. They were scratched; but it was done in clearing a road to take the horse down the hill. Any person's hands would have got scratched that did the same work. There was a portion of Burgess' cross-examination of me, as to whether Mr. Potter did not point me out as having been the murderer of the missing men? Burgess said that it took place on a Friday; but the fact, is, the men were not spoken of until the arrival of Mr. Jervis, on Sunday night. Kelly endeavours to make the witness Potter assert what is not true, in saying the missing men were spoken about on the Sunday along the road at the places we called at. These matters, gentlemen, I have called your attention to, though they have nothing to do with the present investigation. But I have introduced them merely to show the inconsistency of the confession Burgess has made; and from the whole of that confession I apprehend, gentlemen, you will arrive at the conclusion, that his motive has been to convict me, and defeat the ends of justice, and not to stay the effusion of innocent blood, for he cares not who is sacrificed so long as the approver is found guilty. Burgess has had other motives in reading his confession in Court; and, gentlemen, I think such a mode of procedure very irregular, from the very fact that that confession contained matters of grave importance, as Burgess, knowing full well that such a confession would be in the public journals, and thereby enable other parties accused to frame a defence from that confession, was ably supplied, from time to time, by Mr. Pitt, with information upon matters that other parties are accused of at the West Coast by me, which I shall be able to substantiate to the satisfaction of all concerned. Gentlemen, I wish to call your attention to a part of my evidence given in Mathieu's case. I was cross-examined by Burgess relative to evidence I gave in Hokitika, as to whether it was true or false. His Honour said I need not answer it without I liked. I did not answer it in a direct manner, for I did not know how far I was justified in answering it. But, gentlemen, when I first sent the information to his Honour the Superintendent ten weeks ago, I stated in that information I gave false evidence at Hokitika, so you see I made no secret of it. Will your Honour allow that portion of my statement to be read by the officer of the Court? I asserted, when I was in the witness-box, I challenged the world to prove that I was ever charged with any crime that would constitute felony until I became acquainted with the three prisoners. Hor have I ever been in a gaol for the last eighteen years until I came to Nelson, I still solemnly avow that it is true. Six weeks ago I gave Mr. Poynter, Resident Magistrate, the same statement, for I wanted it put in the journals, and it would have given any person an opportunity of rebutting such statement if it was not true, for I am well known in parts of Victoria. Sullivan here stated that he wished his Honour would allow some letters to be read which he had received from his wife.
The JUDGE: If they could be of any service in this case, I would permit it; but you must see, yourself, that letters received by you from other persons cannot be received as evidence in your favour during this trial. If this were allowed, what is easier than for criminals to get accomplices at a distance to write letters in favour of their confederates on trial?
Sullivan requested the Judge to look at the letters, which he did, and stated that they could not be read in Court.
Sullivan continued: Now, gentlemen, I shall narrate what took place upon the day of Battle's death.
Sullivan then went on to say that, on the 12th, his party left Canvas Town, and proceeded on the road to intercept the four men, and he was deputed to go ahead. They travelled on slowly until they came to the Pelorus Bridge, near which place they stopped; and, as they were stopping, an old man passed by.
[Image of page 93]
them. Burgess said to them as the man went by,
"Did you see the poke in his pocket," referring to something bulky which he appeared to carry about him. He (Sullivan) said, "Oh, he looks too miserable to have anything on him," and the old man went by. Levy then said "Well, if I had my way, none should pass by the road," and they sent him (Sullivan) on, being the fastest walker, to overtake him. Battle had a mile start of him, but he overtook him. He was a tall man, and when young, must have been upwards of six feet in height. He got him into conversation, and found that the old man had been nearly forty years in the colonies, twenty of which he had spent in Tasmania, and that he had been in New Zealand for many years; he said he was badly off, and was going down to Nelson to see if he could not get a passage away in a cattle-ship, of which he knew the master. He told me that he had been grubbing up flax at Wilson's, and could sometimes make £2 a week, but generally not so much, and he told me also what he had been paying for his provisions. Sullivan said he looked over his shoulder, and saw Burgess, Levy, and Kelly coming rapidly up, and he did not know what to do. Burgess came up and said, "Well, what do you think of him?" He had told Burgess that he did not think the old man had enough to raise a nobbler on the road, and also told him not to speak so loud, or the man would hear him. Burgess then had got into a passion. Sullivan threw his swag down on the side of the road. Burgess said that the old man could not have heard what he had said, and Sullivan answered that if he could hear him, the man could too. Burgess then got more passionate, and Sullivan apologised, and said that the others had better look for themselves and see if he had any gold about him. Upon this, Burgess drew a revolver, and, presenting it, said, "Come, old man, what have you got about you?" The old man said, "There, take my money," and drew his knife. Levy said, "Look out Dick, he has a knife." Just then the report of a gun was heard close by, and they were all alarmed. Burgess told Levy to get a long stick close by, and he, Sullivan, was sent on a-head again. The old man said, "Are you going to murder me?" and one said, " Yes, you old -----, if you pay out" --that is, scream. He was given a gun, and went up the road. Soon he heard a gurgling sound below him. After he had gone sixty or seventy yards along the road, he heard another shot, and he got up into the bush. He saw three men on the road with two guns. Soon after this he saw Kelly approaching from the Heringa bridge, and afterwards he saw Levy and Burgess coming. He then marked the spot with the heel of his boot, and went on to prepare a fire at the camping-place. Coming upon the skeleton of the chimney, he had made a fire, and gathered some manuka, when the others arrived. Burgess said that "It was a tough job; he (Battle) was the toughest old ----- I ever finished." Kelly said, "What, tougher than -----? You know who I mean;" referring to some one else they had killed. Burgess said, "Oh, yes." The money was then produced, and he (Sullivan) said that they saw he was right now--that the old man had no money to speak of. Burgess then got into a rage, and said, "You moralize like a parson." In speaking of the three men on the road, Burgess said to Sullivan, that he was only waiting for them to come too near, and he would have "knocked them over like crows." Burgess illustrated the manner in which they had killed the old man by putting his thumbs on each side of his wind-pipe. He said that "set" was too much for him. Levy had said that he would want the knife put into him, but it was not necessary.
At the conclusion of Sullivan's address, the Court adjourned for half-an-hour. On resuming,
His HONOUR summed up the evidence to the Jury. He said the learned counsel who had conducted the prosecution had considered it unnecessary to proceed against the other three men, against whom there were indictments for the same offence with which the prisoner stood charged. With regard to the discretion used in this matter he did not assume to express an opinion. It was a fact so notorious that those three persons had already had sentence of death passed upon them, having been found guilty of murder, that he need make no further remarks in explanation of the matter. But what they had to decide upon that day was, whether the evidence which had been adduced on behalf of the Crown, combined with any admission, either directly made or implied by the prisoner, of his actual criminality or complicity in the crime with which he was charged, was sufficient to convict him; and whether the facts elicited in the evidence they had heard that day, considered side by side with the statement which the prisoner had made, were such as would tend to establish the criminality of the prisoner? If they were not, he would call upon them to acquit him. But it was his duty again to repeat what he had said previously, that the assertions of the prisoner, unless borne out and corroborated by proven facts, must not be received as conclusive evidence. In this case a step further in favour of the prisoner might be allowed, and he might state that when these assertions were absolutely incapable of proof, or from want of collateral evidence were unsupported, a hypothesis based upon assumed facts might be formed, if not inconsistent with the evidence, and the prisoner receive the benefit of the doubt. After expressing his satisfaction that the case was in the hands of a special jury, his Honour said that in his remarks he hoped he would not be considered to be speaking dogmatically or dictatoriallv. What they had to consider that day was, not whether the prisoner was by at the time the crime was committed, but whether he took such steps as to render himself responsible for its commission. That James Battle had died whilst travelling along the road on the 12th June, and that his death was caused by other than his own hands, was not to be doubted; and that, shortly before his death, he was in the company of four men, of whom the prisoner was one, is clearly established in evidence and admitted by the prisoner. The issue of the prisoner's defence was actually that he was only to a certain degree mixed up in the crime. That he was banded together with a gang of men whose future deeds of violence had been the subject of discussion, was admitted by him; and that the special
[Image of page 94]
object of their being at that time on the road was the robbery of another party of men, was also acknowledged by him. But from what he could understand, the gist of the prisoner's argument was that, although he knew the character of his associates, was fully acquainted with the criminal nature of their antecedents and of their proposed actions, yet he was, although acting in concert with them so far as the minor crime of robbery was concerned, he was not prepared to go the length of murder. Let them test this by the evidence, and see how far the conduct of the prisoner was consistent with this statement. They saw the man before them, had heard from his own mouth that the pugilist, the fast walker, as he acknowledged himself to be, and who had been selected by his confederates in guilt to lead the way, had remained in the society of these men after a knowledge of their crimes had been imparted to him, and after the epilogue, so to call it, of the wretched tragedy had been read to him; but that he had stayed with them whilst another deed of violence was contemplated, and yet he says and asks you to believe that he wanted to leave them; but, if so, why did he not do so? Why did he not leave them, and raise the world on their track? But no, in obedience to the wishes of the "spoilt child," Burgess, he remained with them. He (the Judge) would ask them to consider quietly, and to so examine the question with the attention they would devote to a mathematical problem, whether his conduct was consistent with his allegation; and if he had seemed, in his remarks to the jury, to be too energetic and warm in his exposition, it was their duty quietly and calmly to correct his fault. The question depended not upon whether the prisoner had actually himself been a principal in the crime to criminate him. It was not even necessary that the party should together have agreed to commit the crime, to constitute him an accessory before the fact. His Honour then repeated the doctrines which he yesterday enunciated respecting the degrees of guilt attaching to participators in crime, as distinguished from that of principals, and again requested the jury not to come to the conclusion that all parts of Sullivan's statement were false except those that had been proved by fact, but where the statement was consistent with a hypothetical assumption of probable facts, which were at the same time incapable of proof, to give the prisoner the benefit of the doubt.
Sullivan explained that he could not, for fear of his life, leave the men, or he should have done so before.
The Judge answered, that the jury would judge of the probability of that.
The jury then retired to consider their verdict.
VERDICT OF GUILTY.
After an absence of about twenty-five minutes, the jury returned into Court, and delivered a verdict, through Mr. Greenfield, their foreman, of Guilty.
SENTENCE OF DEATH ON SULLIVAN.
Mr. SHARP, the Registrar, asked the prisoner if he had anything to say why sentence of death should not be passed upon him?
Sullivan: No.
The JUDGE then placed the black cap on his head, and, addressing the prisoner, said: Sullivan, you have been found guilty by the jury of the crime of wilful murder. I do not propose to review the circumstances of the crime of which you have been found guilty. You have tried with considerable ingenuity and force, to induce au intelligent jury to believe that, at the time you were a participator, you had no hand in the actual murder. The jury, after an impartial consideration, have on their oath declined to adopt your suggestion, and I cannot find fault with them. It is unquestionable that you have entertained an expectation that you may, after conviction, receive commutation of the punishment which the law awards. But I am here to tell you that in this case, for which you have been found guilty, you have no claim on society for pardon or commutation. It is not perhaps the part of a Judge in passing a sentence, to read a moral lesson; probably a moralist would say that this case formed a signal illustration of the force of the trite but true maxim respecting evil communications, as it shows the necessity of resisting the early temptations of the devil; for though only a trivial offence may be committed at first, it leads into greater, by certain inevitable gradations, until at last, from comparatively trifling offences, a man is led into the commission of enormous crimes, which bring on him a sentence such as that it is my duty to pass upon you. It is no part of my duty to suggest to you the probability, or even the possibility, of mercy being extended to you by the Crown. The time that is now left to you in this world I would advise you to employ in making preparation. There may be circumstances in your case which render it different from those of the men with whom you were associated. The letters which you tendered, but which could not be put in evidence, show that there are human hearts which bear affection for you, hearts which sympathize with you, and which, perhaps, you will cause to break by your misdeeds and the punishment you receive. [Here Sullivan burst into tears.] And I intreat you for their sakes, as well as for your own, to employ the last hours that justice allows you on earth, to prepare for that death to which it is now my duty to sentence you.
The Judge then pronounced sentence of death in the usual form, and the prisoner was removed from the dock.
The Judge then addressed the gentlemen of the special jury, both those who have served and others who were called but did not serve. It was in a more than merely formal way that he conveyed to them the thanks of the Crown and colony for their attendance to perform an important public service, and he felt it must have been a specially painful thing for those who had had to serve on the two serious cases which the Court had to try. In thanking them he would also desire to notice the able manner in which the preliminary investigation of these cases had been conducted, and the careful and systematic way in which it had been got up; and he also referred, with much commendation, to the facilities afforded by the local authorities for asserting the majesty of
[Image of page 95]
the law, and proving to older countries and other colonies that we had arrived at that stage in this small and young community, that crime should not long find shelter here, and that if members of dangerous classes thought to find impunity here, they would be mistaken; that if crime were committed, it would most assuredly not go unpunished. To his Honour the Superintendent of this province, and to his Executive, and to the Police who are under his control; to the Resident Magistrate and his able assistant; to the citizens of Nelson, for their ready and valuable exertions in assisting in and leading to the discovery and punishment of these great crimes; to all these he felt that the colony owed a large debt of gratitude--a debt which some day he hoped would be paid. There were some of these persons to whom it was impossible to suggest how they should be rewarded, but who must have the sweetest of all rewards--the satisfaction of knowing that they have done their duty, with success. He also noticed the excellent services of Mr. Shallcrass, the chief of police, whom he called up in Court, and informed that he had been permitted to to say that it was the intention of the Provincial Government to promote Mr. Shallcrass to a higher grade in the service, and that with the promotion would come a more substantial acknowledgment. His Honour further remarked that his attention had been called to the great and valuable services of the witness, Mr. Jervis, of Canvas Town, whose devotion and activity first led to steps being taken for the apprehension of the criminals, and who well deserved a liberal attention on the part of Government; and although he, as Judge, had not the power possessed by English judges, of awarding a sum out of the public purse as a reward of such services as his, yet he thought it right thus to bring the matter before both the General and the Provincial Governments. With regard to those who organized and managed the Search Party, formed among the citizens of Nelson, as well as respecting that Search Party itself, he considered that their efforts reflected great credit, not only ou the province, but on the colony at large, and their proceedings would indicate to all those of the criminal classes, whom the great natural resources of the colony may attract to its shores, that they will find a public opinion, and a public masculine vigour, which will teach them the salutary lesson, that their crimes will not be permitted to escape the vigilance of a vigorous police, backed by public opinion.
He then again thanked the jury, and, dismissing them, retired from the Court-room. Thus ended the special and most memorable criminal sittings ever held in Nelson or in the colony of Now Zealand.
