18 May 1881 and recalled 31 May 1881
John Kelly, Senior-Constable of Police, sworn.
7975. By the Commission.—Where are you stationed?—At present stationed at Terang. If you produce the record-sheet I could tell you all the dates. I have been in the service twenty years in January next.—[The record-sheet was handed to the Chairman by the Secretary.]
7976. What is your object in desiring to have the record-sheet here?—Just to show my previous service, what I have done.
7977. Just for the Commission to inspect it?—Yes, for the information of the Commission. I was stationed about nine years and a half at Ararat, and Beaufort about five years, and there I was doing plain-clothes duty through the district. In October 1871 I was transferred to Melbourne to the detective office. I applied afterwards, after a month or so there, to go back to the general service; as I was a stranger in town and to all the criminal class, it would take me some time to learn and find them out. I was transferred then by Mr. Hare from the depôt to Dandenong.
7978. What was the date of that?—I do not think that date is here. I was afterwards at Oakleigh for a short time. After about six or seven months at Oakleigh, Mr. Hare asked me would I come into the depôt, to do plain-clothes duty for the district. I did. I have been engaged in two murder cases at Mornington, and I arrested Hastings, the second-last man that was hanged in Melbourne. In March 1877 I was transferred to Wood’s Point to take charge of the Wood’s Point station, and on the 23rd October 1878 I left Wood’s Point, in charge of a gold escort, for Benalla. On the 24th I arrived at Mansfield, and the late Sergeant Kennedy met me at the coach. He told me in confidence he was going out after the Kellys. He asked me if I would let him have a rifle that Constable Horwood was going to take with him on the escort. I told him that as there was only the one rifle between us, it would be a very dangerous thing, but, after consideration, I said, “Get a second revolver and give it to Horwood,” and I said, “You can have the rifle.” He said he had very good information. I also saw Constable Scanlan there that morning, who was afterwards shot by the outlaws. I arrived that evening at Benalla, and I got on the following day a week’s leave to come to Melbourne. On Sunday night the 27th October 1878, about midnight, at the hotel, where I was staying—the Polo hotel, near the detective office—Detective Hayes was also staying there, and he was out on duty, he came in and he asked me, “Are you asleep, Kelly?” I said, “Is that you, Hayes?” And he said, “Kennedy, Scanlan, and Lonigan are shot.” So I said, “Come in and strike a match”; and I got up and sat upon the bed. I went next morning to the detective office. They had not any official report of it there. I also came to the Chief Commissioner’s office. I believe it was between ten and eleven when the information came from Benalla.
7979. Had they heard at the Commissioner’s office then?—They had not in the evening. I then threw up my leave, and I went down to meet the train at three o’clock. I met Constable Falkiner, Constable Strahan, and Constable Dakin at the train, and Captain Standish, and also Mr. Nicolson. He was going up in the same train. We arrived at Benalla about eight o’clock I think. The three constables with me had instructions to go on to Wangaratta. I came to Benalla, and Mr. Sadleir was absent at the time, I believe at Shepparton on some duty. There seemed to be no constable upon the station; they were all away that knew anything about the country.
7980. Did you understand that they had gone out on the search?—Yes, I understood they were out. Senior-Constable James was brought down from Beechworth. He was supposed to know the bush. We started the following afternoon—Senior-Constable James, me, Constable Connor of Seymour, Constable Meehan, and a constable that died lately in Mr. Hare’s district.
7981. How many altogether?—Five. We went in the direction of the King River, and we went through Greta.
7982. Who was the constable?—(To Mr. Hare.)—Do you remember who died lately in your district?
Mr. Hare.—Where at?
The Witness.—He was at the station, but he died out near Mr. Clarke’s. I think he was a fine shooter and a good policeman.
Mr. Hare.—Bray. He died up at Trentham.
The Witness.—We wore making for Moyhu, but it got very dark and commenced to thunder and lighten about four miles on the Boggy Creek. We had to camp there, and it was raining all night.
7983. Had you any accommodation at all—tents?—No, we had no tents. I had no blankets. The rest of the men had a small blue blanket each—I had none. Next morning we noticed a light. I went towards it. I found it was a Mr. John Lewis’s place. I told him we were police, and he got up and made a fire. We dried ourselves, and he got us some breakfast; and then we started towards Redcamp, on the Redcamp run. From there we went to Hedi. We stopped at Hedi police station that night. There were no police there, they were all away; at least the constable that was stationed there was away. We started up the King River on the following morning, and near Bungamara station I met the outlaws’ uncle, Jack Quinn, George Johnson, and a man of the name of Thomas, alias Galloping Jack. We had a conversation with them, and they told us they were looking for cattle. We stopped at Bungamara station that night, and met Sergeant Steele and some constables with him.
7984. Had they come from another direction?—They had come from another direction; they were further up the King.
7985. Then you were unsuccessful upon that occasion?—Yes.
7986. Will you pass over it a little more quickly, because we have got pretty well all this before from other witnesses?—We started next day in the Wombat, and arrived about ten o’clock that night at Mansfield. We stopped all the next day, and on Sunday, that would be the 3rd November, Sergeant Steele received a telegram, I believe from Mr. Sadleir, to return at once to Benalla—there was a man stuck up by the outlaws on the Murray flats. We returned to Benalla that night. We met Wild Wright and his brother (the dummy), and, I believe, a daughter of Tom Lloyd’s, on the road riding on horseback. Sergeant Steele and a party of men left that night in a special train, I believe, for Beechworth. I remained at Benalla for a few days with three or four men. At the same time, Senior-Constable Strahan and Shoebridge and two constables also came in from the ranges. We were ordered—there was a special train got ready, and Mr. Nicolson, Captain Standish, and five of us went to Beechworth.
7987. What was the date of that?—It would be about the 7th of November 1878. At Beechworth Mr. Sadleir met us on the platform—that was before daylight.
7988. Where did you go eventually?—We went to Sebastopol, Sherritt’s hut, and were unsuccessful, and I was instructed by Mr. Sadleir to return to Wangaratta.
7989. Have you seen the printed accounts of those things given by the other constables that have been examined?—I have read the papers.
7990. Do you agree with them?—I do.
7991. On that visit—was that the first time you saw Aaron Sherritt?—That was the first time I saw him.
7992. Under what circumstances did you see him?—I saw him near the back of Mrs. Byrne’s house speaking to Mr. Sadleir.
7993. Did you see Captain Standish speak to him?—I did, and Mr. Nicolson.
7994. Did you hear any overtures made by either of those officers to Sherritt—I did not.
7995. Were you in a position to hear any overtures if they had made them?—I was about ten or twelve yards away, I think.
7996. Did you hear Captain Standish ask Sherritt at that time?—I saw them, that they were speaking, but I never heard a word that passed between them.
7997. You were too far away to hear?——Yes.
7998. Did you notice any other members of the force nearer than yourself to Captain Standish?—I did not.
7999. Did you see Ward nearer?—I did not see Ward there at all.
By Mr. Nicolson.—I stated that Ward was there, but I find I made a mistake. Sergeant Steele was there.
8000. By the Commission.—Was he nearer to them than you?—I do not think so.
8001. Were any constables near?—No. I walked away into the bush a bit.
8002. What is your opinion as to the faithfulness of the discharge of the duties that Sherritt was appointed to carry out?—I do not know anything at all about Sherritt. I saw him only two or three times.
8003. You were not one of the cave party?—No.
8004. You were not in the house when Sherritt was shot?—No; I was not there at all.
8005. You went out constantly with search parties?—No. On the 10th of May 1879 I was sent to take temporary charge of Hedi station in the Black Range.
8006. Do you remember a report coming in that Brook Smith and party were close upon the Kellys?—I heard it. I was not there. I was in Wangaratta at the time.
8007. Do you remember what information came in?—I heard that they were on some tracks.
8008. Did you hear any statements made in reference to the efficiency of Brook Smith in that attempt?—I did not. I never heard anything, There were horses—some of the police horses—found. I was there when Detective Ward and, I think, Senior-Constable Johnson and some other constables brought in some of the police horses that were found in the Warby Ranges.
8009. Did you see the horses?—I did. I was with Mr. Nicolson in the stable next morning. After returning from Sebastopol, I got instructions from Mr. Sadleir to go to Whorouly and Constable Ryan from Greta would meet me there.
8010. Was the horse that was found one horse or more do you remember?—There was one chestnut—a big chestnut—that I know. I rode him myself.
8011. Whose was that?—I think they had it for a pack horse—Sergeant Kennedy’s.
8012. Did he belong to the police force?—Yes.
8013. Did you observe the state he was in when he came in to the station, was he covered with marks or anything at all?—I did not notice any marks. They looked knocked up.
8014. Had he marks of perspiration over him or anything of that sort?—I do not remember.
8015. Had he been recently used?—There is no doubt he had been recently used.
8016. Why do you say “no doubt”?—Because he had the appearance of being knocked up.
8017. What was the appearance that made you think he had been recently used?—His sides were quite hollow, and he seemed to be recently worked.
8018. Would you say whether he had had a week’s spell or had he been worked within a few days before?—I do not think he had had a week’s spell.
8019. Do you think he had been worked by the outlaws or anyone else within a few days before?—I think so.
8020. Go on with your narrative?—I was about three weeks at Whorouly with Constable Ryan, watching the Whorouly bridge.
8021. What time was that?—About a week after coming down from the Woolshed in November.
8022. 1878?—Yes, 1878.
8023. It will be no use following up that narrative—is there anything of importance?—No, nothing of importance.
8024. Only that you were out with search parties continually?—Yes.
8025. Do you remember the time, or about the time, when the outlaws had killed Aaron Sherritt?—I do.
8026. Where were you then?—I was in Benalla.
8027. At the time?—Yes.
8028. What action was taken upon that?—Mr. Hare sent for me that Sunday afternoon, and said I was to bring down a horse with me to the telegraph office.
8029. Where was Mr. Hare?—In the telegraph office. He came to the door and met me, and read a telegram to me. He said, “Aaron Sherritt is shot.”
8030. What did you do then?—He told me to go over and see Mr. Stevens, the railway station master, and see if we could get a special train. I did so, and. Mr. Stevens said, “Yes,” he would get one ready. I got instructions to get some provisions and get ready. I had everything ready, and gave instructions to the men that were to come. Mr. Hare gave me a list. There were Constables Barry, Canny, Gascoigne, Kirkham, Arthur, and Phillips. We went down to the train about half-past one.
8031. On Sunday?—No, this was Monday morning.
8032. About half-past one in the morning?—Yes.
8033. Just at midnight?—Yes.
8034. With horses ready and everything?—And a special train from Melbourne came with Mr. O’Connor and five trackers, and four gentlemen belonging to the press, and two ladies. We got the horses in, and made a start for Glenrowan. I was in —
8035. You say you made a start for Glenrowan?—Yes, by the train.
8036. Did you intend to stop at Glenrowan when you left Benalla?—No, we left for Beechworth.
8037. Did you really intend to stop at Glenrowan?—I do not think it; at least I never heard anything about stopping at Glenrowan. All of the five constables got into the guards’ van. There was one, Constable Kirkham, he got in with the black trackers in the carriage—a first-class carriage.
8038. He had some management of the black trackers?—He had. I was on the top step with the guard, and he had a lamp and this cleaning wadding that they have, and I kept the window clear watching
the pilot engine. I mentioned in the stable before I left, to Constable Day, there is nothing surer than that the line would be pulled up, because I heard that they knew all our movements.
8039. How did you know that they knew all your movements?—I heard that from several parties.
8040. That is in a general way?—In a general way.
8041. Not that particular matter?—No.
8042. That is to say you understood that the Kellys had good information of all the movements of the police?—That was the general impression.
8043. That was the impression?—And through their sympathizers the way they were galloping about.
8044. From that you judged there was a possibility of the line being torn up?—Yes. When within a mile of Glenrowan, we noticed the pilot engine pulling up. I saw a man coming back with a light. I saw it was Archibald McFie, railway guard, that was in the pilot engine. I said to him, “What’s up?” and he said, “I met a man with a red light in his hand—that stopped me.” He said, “The Kellys are up in Glenrowan, and they have them all stuck up there, and have pulled up the line.”
8045. Are you quite positive that he gave you that information—that the Kellys were in Glenrowan?—Yes.
8046. And had them all stuck up?—And had them all stuck up.
8047. What further did he say?—I jumped out, and Mr. Hare put his head out of the window and said, “What is up?” and I told him, and he jumped out with his gun and he went up with the guard and walked up to the pilot engine. Mr. Hare turned round and told me to take half the men to go on the engine; he would go on the pilot engine and let me go on the other. I had Constable Kenny and Constable Arthur with me, and I placed them upon the engine; the three of us, but the engines then were detached.
8048. They were coupled together—Coupled together afterwards. When we arrived there Mr. Hare said, “Get out the horses quick, Kelly.” Mr. Rawlings, a volunteer with us, whom I did not mention, came from Benalla with us.
8049. What was Mr. Rawlings?—A settler there. Mr. Hare went away for a bit. I placed Constable Barry at the back on guard, for fear anyone should come from the back.
8050. Do you know where Mr. Hare went?—Straight down towards the station master’s house; he and Rawlings.
8051. When did you next see Mr. Hare again?—The next I saw of him he was coming back, and Constable Bracken appeared upon the platform.
8052. Just about that time Mr. Hare returned?—About that time he came back. He said, “The Kellys are in Jones’s; surround the house—surround the house.” Those are the very words he said.
8053. That is Bracken?—Yes.
8054. What was done then?—Mr. Hare said, “Come on, men—come on, men.” We all rushed for our arms, and some of the arms were knocked about. There were, I believe, only one or two who had their arms in their hands. I was getting the horses out of the train. We all rushed down.
8055. What do you mean by “all”?—The constables, Mr. Hare, and I am not certain whether Mr. O’Connor did or not, but the black trackers were.
8056. Who left the station first?—I could not say.
8057. You left the station and came down by the road over the culverts?—Yes.
8058. The culverts being between that and what is called the wicket-gate?—Yes.
8059. Now will you carefully describe, as far as you remember, who was with you and near you?—I remember Mr. Rawlings was next to me; Mr. Hare was ahead, with three or four men with him.
8060. What men?—Barry, Gascoigne, Phillips, Arthur; I think that was all the men.
8061. Was Kirkham with him?—I could not say.
8062. Was Mr. O’Connor there?—I could not say.
8063. Just describe the way you proceeded towards the wicket-gate; did you arrive at the wicket gate in the railway fence in about the same order as you now describe?—There was Constable Kenny and two or three, I remember, stopped back picking up their rifles.
8064. You say Mr. Hare was in front and one or two constables?—Yes, and we were behind him.
8065. How far behind?—Four or five yards—it might be ten yards.
8066. Just describe the way Mr. Hare went?—They were making straight for the house.
8067. Did you see them go through this little wicket-gate here—[pointing to the map]?—No.
8068. Did you go through?—I went through the other gate down to the railway lines straight, and up to that gate, I and Mr. Rawlings and some other man.
8069. You were near the station master’s house?—Yes; the next time I saw Mr. Hare was when the shots commenced to fire.
8070. How far were you from him?—Seven or eight yards.
8071. In what position?—I can show you upon the map.
8072. Were you towards Benalla from him?—No, on his right, towards the railway station.
8073. Were you outside the railway fence then?—I was, certainly.
8074. More in front of the house?—More in front of the house. I was above the corner, west of the railway—west—in a line with the front of the house, because they fell back to the west.
8075. How far was Mr. Hare from you when he was shot?—Six or seven yards.
8076. Who were there beside you when he was shot?—There was Constable Gascoigne, Arthur, Phillips, and some of the black trackers.
8077. Were the black trackers?—Some of them were there.
8078. Were they outside the fence?—Yes, they were there—[pointing to the map].
8079. What black trackers?—Hero, I think, was one of them.
8080. Were you here when Barry was giving his evidence yesterday?—Not the first part.
8081. If Barry swears that Hero was one of the men, do you think he would be right?—I think so; I saw him with Barry afterwards.
8082. Whom else did you see beside those men?—Mr. Rawlings was close to me, near to Mr. Hare.
8083. Were those men far from Mr. Hare when he was shot?—Five or six yards to the left of him, at the first volley.
8084. On either side of him?—Yes. 8085. Who fired the first shot, do you remember?—I remember it was the outlaws.
8086. What was your impression when you saw Mr. Hare and the other constables and yourself—what was the impression that they intended to do at that time, if they had not been met with that volley from the hotel?—They were rushing straight for the house.
8087. And the first volley that was fired?—Came from the house. I saw one man appear on the outside, and said, “Come on, you dogs; you cannot hurt us.”
8088. Was that Ned Kelly?—I could not say. Mr. Hare said, “I am shot.” I saw him sticking the gun, after he was shot, between his legs, and re-loading it and firing it out of his hand, like that—[describing same].
8089. You are quite sure of that?—I am quite sure of it.
8090. You are sure he shot?—I am as sure as that I am sitting upon this chair.
8091. You swear that?—I swear it.
8092. Did you see Mr. O’Connor there at that time?—I did not.
8093. When did you see him first?—I heard Mr. Hare. He turned back to me and said, “Kelly, surround the house, for God’s sake, do not let them escape,” and he sang out “O’Connor,” and Mr. O’Connor answered.
8094. What did he say?—He said, “Come on, O’Connor, the beggars have shot me—bring your boys with you; surround the house.”
8095. Did you see Mr. O’Connor at that time?—I did not see Mr. O’Connor at that time.
8096. Where do you suppose he replied from—you say you heard his voice answering?—He was to the right of us, inside the railway fence.
8097. What time did you see Mr. O’Connor first after that?—I will come to that presently. Mr. Hare went back to the railway station, and he came back in a few minutes and said, “Stop firing.” There was a tremendous fog of smoke then from the firing.
8098. “Cease firing” or “Stop firing”?—”Stop firing.”
8099. What reason did he assign?—We heard some women crying out in the house.
8100. You are quite sure that Mr. Hare went back to the station after he was shot and came back again?—Yes; he spoke to me.
8101. Do you remember where he was standing—what position was he in when he said “Stop firing”?—He came back after getting his hand bound.
8102. Whereabout was he?—Behind me.
8103. Where were you at that time?—Behind the corner post.
8104. Still there?—Yes.
8105. Did Mr. Hare’s voice come from the right or the left?—The other men were to the left.
8106. But his voice?—From the station master’s house; he went through that gate and came back through that gate—[pointing to the map.] I asked him to send up some ammunition. I asked Mr. Hare to please send up some ammunition.
8107. After he was wounded?—Yes.
8108. After he came back with his arm bandaged?—Yes.
8109. You did not think it was a serious thing, or you would not have asked your officer to send up ammunition?—I saw him going back to the railway station, and I asked him to send some ammunition—he said he felt weak.
8110. And must return to the station?—Must return to the station.
8111. Did he say “I am losing blood”?—Yes, from the loss of blood.
8112. Could you see him bleeding?—I could, quite plain.
8113. Was it bleeding under the bandage?—I could not say. I was not so close to him.
8114. Did he say “I will have to go back to the railway station”?—Yes, and I said, “Send up some ammunition.”
8115. Did he give you any orders?—He told me “For God’s sake” to “surround the house.”
8116. Was that after ho came back from the railway station?—There was not five minutes between the time he was back.
8117. Then he twice repeated the orders to surround the house?—I ran down to the railway station—that is to the station master’s house. I mean it was there Mr. Rawlings brought the ammunition. I found it was the wrong ammunition. It was ammunition for the breech-loading guns.
8118. What breech-loading guns?—That the constables used to use.
8119. For their double-barrelled guns?—Yes.
8120. That was shot ammunition?—Yes, it was—all rifles, only one.
8121. I must ask you to be particular about that, for I intend to examine you particularly about the arms the men had. You know what arms the men under you had?—Yes, I know.
8122. What did you do when you found the ammunition was not right?—Mrs. Stanistreet, the station master’s wife, said, “You should not come here.” I said, “For God’s sake, go out of here—you will get shot here—take the children with you.” She said “Where will I go?”
8123. What did you reply?—I said, “Cannot you go over to MacDonald’s?” She said, “No, I will not go there.” “Well,” I said, “go out in the bush, towards Greta. There will be no danger there.”
8124. Did she go?—I believe she did. I had an overcoat on me, and a sling for the gun. I threw off the overcoat and the sling, and left them there. I had a wideawake hat, and I stuck it in my pocket. I went up then to Mr. O’Connor.
8125. Where was Mr. O’Connor at this time?—In the drain referred to on the map—inside the railway fence.
8126. How long was that after the first volley?—Five or six minutes, I suppose.
8127. Those things were done, and in a hurry?—All in a hurry.
8128. How long was it after Mr. Hare went back with the request to send ammunition that you found Mr. O’Connor in the railway drain?—A few minutes.
8129. Five?—No, I do not think five.
8130. Two?—It might be a couple of minutes.
8131. Between two and five minutes?—Yes.
8132. Had you any conversation with him?—There were two black trackers with him.
8133. Two drains have been mentioned as the position in which Mr. O’Connor was upon that day. Have you been to the place since?—I was there a few days after.
8134. Is the drain within the railway fence?—Yes.
8135. What is the fence composed of between that and the Jones’s house?—There is one rail—a top rail, about four by one.
8136. And how many wires?—Four or five wires; I could not say how many.
8137. Four or five wires and a top rail?—Yes. I asked Mr. O’Connor to come round—that we would place the men.
8138. Did the men come outside of the drain, outside the fence, and go round the house?—Yes, to surround the house. He said no, he would stop there. I went away then around; I went under the culvert—that culvert leading from that drain—[pointing to map]—and came out the other side.
8139. That is the Wangaratta side of the house?—No; the Benalla side.
8140. You went down the drain?—Yes, and crossed under the culvert to the other side.
8141. That is the Benalla side?—Yes.
8142. What constable did you meet first?—Arthur.
8143. What did you say to him?—I asked where the rest of the men were. He pointed out Gascoigne and Phillips.
8144. Where was Gascoigne?—Nearest to the house.
8145. Up the road towards the Sydney road?—At the end of the house on the Benalla side.
8146. That is the south end of the house?—Yes.
8147. Did you go to him?—I went further on, and I found Kirkham.
8148. That was the next man?—That was the next man. He had a black tracker with him.
8149. Is that Hero, do you think?—No.
8150. Then that is two black trackers?—Yes.
8151. You account now for one, and Barry says that one was with Kirkham; that is two?—The next I met with Constable Barry.
8152. That is the third man and two black trackers at the end?—Yes. I told Barry it was a good position, and to keep it. He was behind a tree, and he had a good view of the back of the hotel.
8153. He was still upon the south side?—Yes.
8154. Would that be in a line where the bodies of the two outlaws were found afterwards?—Yes. I gave them some ammunition.
8155. What ammunition?—Martini-Henry.
8156. You did not tell us where you got that ammunition?—I gave him some of my own. I had none from the railway station then. I took Constable Arthur with me. I told them I would go round, and went to the other side of the house.
8157. Where did you find Arthur?—He was the first I found at the back, and where Phillips and Gascoigne were. I took him further back.
8158. To see that the line was completed?—Yes. Constable Kenny I did not see, but he told me after that he had a position to the right of Mr. O’Connor, and a black tracker was with him.
8159. In front of the house?—Yes. I went to the north. When we got round to the north side of the house, crawling up upon our knees, we came upon a rifle and a skull-cap.
8160. When you passed round the house to the north, if you went round that way, you would come against the stockyard’s fence?—Yes, we went right round the fence.
8161. Did you station anyone at the stockyard fence?—No, we went round there, and Constable Arthur.
8162. You found a rifle?—We found a revolving rifle.
8163. Did you or Arthur find it?—Both of us at the same time. Arthur pointed to the rifle, and said, “Look at this,” and I pointed to the silk skull-cap, and said, “Look at this too”; it was all full of blood.
8164. The cap was?—Yes; and there was a pool of blood there, and I said, “My God, some of them have escaped.”
8165. Was that the revolving rifle?—Yes, I have a bullet belonging to it—a six-chambered rifle. I took the rifle, and planted it in the little scrub there for a bit.
8166. Was the blood fresh?—It was fresh upon it. In fact, it stuck to my hand when I took up the rifle.
8167. What occurred then?—We fired a few shots at the top of the house, to let them see we were round there at that side. We saw people passing in and out from the kitchen to the hotel, and heard Mrs. Jones talking about her child being shot. We remained there for some time—I believe, to the best of my knowledge, till between five and six o’clock.
8168. You were at the finding of the rifle. We want to ascertain exactly what you did then. You say you brought Arthur with you, and found the skull-cap?—Yes, and the rifle.
8169. Did you take any proceedings to see that the house was completely surrounded, for that would leave that position already occupied by Steele and all round open—was it open?—It was as bright as day, and no person could come out that we could not see at that side.
8170. It was moonlight?—It was as bright as the day—moonlight.
8171. Was there any firing upon the house from the side where you could see?—There was not from our side.
8172. That is from the north?—That is from the north.
8173. What did you do after you found the rifle?—About half an hour before Phillips came round to me.
8174. Were the constables walking round amongst the trees?—No.
8175. How did they come?—Constable Phillips came round to the front from the railway station, like from that direction—[pointing to map].
8176. Was not Constable Phillips one of the first men?—Yes, he was near Gascoigne, I believe. He told me that he had followed a man that came out with a child in his arms (McHugh), and that he told him they were inside all in iron.
8177. That the outlaws were inside and in iron?—Yes. I said to Phillips, “They are not all in; we have found a rifle and a skull-cap.” The next that came was Sergeant Steele. At the same time, I heard two trains, one coming close down from Wangaratta and the other from Benalla.
8178. You say that the next who came was Steele—did you hear the Wangaratta party coming?—I did. I asked who was there, and they said, “Wangaratta police.”
8179. Did they take up their position, or did you order them to take up a position?—Steele ran and took up a position at the north end, close to the house.
8180. Is that the tree that stands close to the building that is there now?—Yes, he had a full view of the back door. I ran down to meet Mr. Sadleir when I heard the train coming in, and he was standing upon the platform when I went down.
8181. The Wangaratta party then strengthened your party?—Yes, and took a position.
8182. Who told them to take a position?—I told them to go further up. I told Mr. Sadleir the circumstances of the matter, and how the thing stood.
8183. After you saw Sergeant Steele opposite the door, and saw that his men were made up at the rear of the house, you then went to meet the train?—I went to meet the train.
8184. And Mr. Sadleir was there?—Yes.
8185. Whom did you see first?—Mr. Sadleir.
8186. What did you say to him?—He asked me where Mr. O’Connor was, and I said, “He is down here, in a hole”; and he said, “Take me down and show me where he is.” I went down. Mr. Sadleir said, “Come on after us”; and I told him some of them would get shot if they did not come single file.
8187. If they came in a body they would be shot?—They would; because the outlaws—at least I believe it to be them—were firing out of the two front windows. I walked down the drain with Mr. Sadleir, and within ten yards of Mr. O’Connor, and Mr. Sadleir said, “Come here, O’Connor”; and he said, “No, you come here.” Mr. Sadleir turned round to me and said, “You go and place the men wherever you think they are required.”
8188. Whom had Mr. Sadleir beside you and him?—Constable O’Dwyer then came up.
8189. After the conversation?—After the conversation.
8190. Mr. Sadleir told you to go and place the men?—Yes, where I thought they were required. I went round with a man.
8191. What man?—Sergeant Whelan.
8192. You went round with his relief party?—Yes.
8193. Who were the relief party?—Mr. Sadleir’s party.
8194. Who were they?—Whelan, Senior-Constable Smyth, Milan, Ryan, Wallace, Wilson, Kelly, Reilly.
8195. That is the big Kelly?—Yes; and one or two others.
8196. Did you place those men?—I did.
8197. All round the house?—Constable Kelly I took the furthest round.
8198. That is the man now stationed at Benalla?—Yes.
8199. Where do you call the furthest round?—By the stockyards.
8200. At the back of the stockyards?—Yes. Not quite at the back, a little to the Benalla side. I went round about again to the north side.
8201. Were not you afraid of being shot in going round?—No; I kept back a good bit, so as to avoid getting shot.
8202. And to see the men all in front of you?—Yes.
8203. You could see the men?—I could see the men. I came round to the railway fence.
8204. You came right round the house?—Worked round the house.
8205. Who was the next to Kelly?—Sergeant Steele’s men were next to him, Constable Moore.
8206. Was Sergeant Steele opposite the back door, behind the tree, where you have already said he was?—Yes, he was there.
8207. Was Riordan’s son shot at this time?—No.
8208. Who was next towards the railway station?—Phillips or Arthur. I am not certain. They were behind me then.
8209. Were they outside?—They were outside Sergeant Steele.
8210. Were they outside the railway fence or inside it?—Outside it.
8211. That is Jones’s; outside of the railway fence?—Yes.
8212. Did you come inside the railway fence?—I did not.
8213. When you came round did you visit Mr. O’Connor again?—No; I never went near him. I never spoke a word to him from that day to this.
8214. Did you visit him at all between Mr. Hare’s leaving by the train for Benalla, after his second return to the railway station, at the time you took Mr. Sadleir to him?—No; never saw him or spoke to him.
8215. Did you go inside the railway fence from the time that Mr. Hare left you until you went down to the railway station to meet your officer, Mr. Sadleir?—I did, I remember now.
8216. Where did you go?—I went to the railway station, and took a rifle down with me.
8217. That bloody rifle?—Yes.
8218. And the skull-cap?—And the skull-cap; I had that upon me.
8219. Where did you leave it?—I had it upon me—the cap—as I had lost my hat at this time, that I had stuck in my pocket.
8220. When you went all round by Mr. Sadleir’s instructions, did you report to Mr. Sadleir that the house was invested?—No.
8221. How soon afterwards did you report to your officer that you had completed his order?—I do not remember reporting it at all.
8222. When did you next see Mr. Sadleir?—The next I saw him was after the capture of Ned Kelly, I remember that now.
8223. Where did you see him then?—On the railway station; it was about seven o’clock. It was when Ned Kelly was brought to the railway station.
8224. How soon was it after you got the order to surround the house?—About two hours.
8225. Were you present at the capture of Ned Kelly?—I was.
8226. Will you tell the Commission the circumstances?—I was away down at a tree in the railway fence.
8227. North or south of the house?—To the north-east, I think.
8228. You mean the Wangaratta side?—Yes. Guard Dowsett was some distance further up from me.
8229. That is the guard of the railway?—That is the guard of the railway. It was about seven o’clock, or it might have been after, when some figure like a blackfellow appeared up in the bush. I heard a man—one of the men—sing out, “Look at this fellow.”
8230. Where were you stationed then?—I was behind a tree, on the north-east side of the house.
8231. And Dowsett was coming up towards you?—He was away to the right of me.
8232. Advancing towards you?—No, behind a log. I sang out, “Challenge him, and if he do not answer you, shoot him.” It was Constable Arthur. With that, he pulled out a revolver, and fired at him.
8233. Who did?—Ned Kelly.
8234. What happened?—Three or four of the constables had fired at him, and he advanced. On coming towards the house, in the direction of Jones’s, there were several shots fired at him; they had no effect. I sang out, “Look out, he is bullet-proof.”
8235. Would that advance of his, coming towards the house where the outlaws were, bring him just in the direction where Sergeant Steele was stationed?—Yes, just in the direction where Steele was. Dowsett was firing at him, too, with his revolver. He was behind a big fallen tree, and I got up alongside them. He moved up and had his hand outside the tree (Ned Kelly), and Dowsett said, “There is a good show for you.” His hand was hanging out a bit.
8236. To do what?—To shoot at it; he had a tree between us, and the hand hanging out a bit. I fired at him, and Dowsett said it was a little to the right.
8237. Was it a bullet you had?—Yes, a Martini carbine.
8238 You were to the right, he said?—Yes. I fired again, and Dowsett said, “By God, you have hit him.” After that he moved over to a fallen log, at the Jones’s side of the log. Sergeant Steele came up from where he was, and I moved on up to them, beside Constable Bracken, and I said,” Come on, lads, we will rush him.” Sergeant Steele popped out and fired at him—came close up and fired at him.
8239. Did he hit him?—I believe so—I could not say.
8240. Did you see him stagger?—I fired two shots, and with that he dropped upon his haunches, like that—[explaining the same].
8241. If you saw a man fire two shots at another man who was standing up straight before the shots, and he falls then, is it reasonable to suppose it is from the effect of the shot that he staggered and fell?—Yes.
8242. It would be?—Yes, I considered so. Sergeant Steele ran and got him by the wrist and under the beard.
8243. Then he had not his helmet on?—The helmet was on; Sergeant Steele said not, but I say it was.
8244. How did he get his beard?—He had him by the neck; it was not the beard. He had him by the neck some way.
8245. Was he lying upon the ground or half way?—Half way against the log, that way—[half lying down].
8246. Your opinion is that he had that helmet on when Sergeant Steele seized him?—Yes because when I pulled the helmet off I said, “By God, it is Ned.”
8247. You pulled off the helmet?—I pulled off the helmet, and Steele held it up, and said, “I told you I would be at his death.” There were three or four gentlemen and others, and some constables came up then.
8248. Did you see Ned Kelly rolling over upon Steele?—I threw him over upon him.
8249. In that little sandy gutter?—Yes.
8250. Had he his armour on at that time?—He had.
8251. Was his helmet off at that time you threw him upon Steele?—No, it was not. We took the armour off and searched him. I searched him, and Dr. Nicholson and I took the armour to the railway station, and Sergeant Steele and some other men took him.
8252. How was the armour fastened on?—With bolts and nuts.
8253. Was it fastened over the shoulder?—With straps.
8254. What sort of straps?—About two inches wide.
8255. Made of what?—Leather.
8256. And buckled?—And buckled.
8257. Leather or green hide?—Leather, regular straps.
8258. Were there any saddle straps about it?—I do not think there were.
8259. Did you see Dr. Nicholson examine him?—I did.
8260. What wounds had he?—Several wounds.
8261. Can you describe them?—Wounds in his arm and all along his thighs.
8262. Which of those were fresh in your opinion?—The ones on the legs seemed fresh.
8263. You say that you found the rifle covered with blood?—Yes; and he told me himself, in the presence of Phillips, that he got shot in the hand and the foot in the first volley fired by Mr. Hare’s party.
8264. Then he was shot in the hand?—Yes, in the elbow.
8265. And that it was a pellet; he would have been shot by the shot gun?—I could not say.
8266. I ask you if he was shot at the first fire, and if a pellet made that wound, he would have been shot by a shot gun that belonged to the first party that came up there?—Yes; he told me that he walked into the hotel, and asked Joe Byrne to follow him out, and that he went out at the back and Byrne did not follow. He said, “If Byrne came out to load my rifle I would be able to pick any of you off at 600 yards.”
8267. Did he allude to the rifle?—To his own rifle.
8268. Did he allude to the revolvers, rifle, or another rifle?—The revolving rifle. He had no other rifle. He told me that was his own.
8269. Did you have to carry him down to the railway station?—No; I took his arm; I and Dr. Nicholson.
8270. He walked?—They took him between them.
8271. Was not there danger in going along with him?—There was a bullet dropped between Dr. Nicholson and me when we were taking the armour off, fired from the back.
8272. I understood, in the evidence that you gave, that you stated that you had been recommended to the Customs Department as a suitable man to discharge customs duties?—Yes.
8273. Did you join the Customs Department upon the recommendation of your officer?—I did.
8274. Where were you sent for customs duty?—Up to Hamilton.
8275. In the Western district?—In the Western district.
8276. When you heard of the death of Kennedy —?—He was not shot at that time.
8277. When you heard of the death of your comrades, did you volunteer to leave the Customs Department and go back to that district?—I was not in the Customs Department then I was on leave here, in Melbourne.
8278. Did you volunteer to go back to the district?—Yes I threw up my leave, and went back to Benalla. I was then stationed at Wood’s Point.
8279. After you left the Customs Department, had you joined the North-Eastern district prior to your volunteering to go there before your time of leave expired?—No; I was sent back to the station at Wood’s Point after leaving the Customs.
8280. You were on leave of absence at the time of the murders?—I was on leave of absence at the time of the murders.
8281. And you were asked to go back and not take out your leave?—No; I went back voluntarily.
8282. Did you go to Hedi?—Not at that time; we went through Hedi.
8283. Where did you go to?—The King River.
8284. Was not that the most exposed position of the whole service?—Yes.
8285. Did not it take you amongst all the Kellys and Quinns up there?—Yes.
8286. And the most exposed position of the lot?—Yes.
8287. You stated that you came to Whorouly?—Yes.
8288. Was not that also a most exposed position?—It was.
8289. When you came to Glenrowan with Mr. Hare’s party, you were the senior officer of the Victorian police—at least you were constable of police, and were senior of the police force under Mr. Hare?—Yes.
8290. After the capture of Ned Kelly, did you receive any instructions to go to any particular place—to go to Greta?—I did.
8291. What was the position of Greta?—I was going to be sent to live in the hotel with three constables.
8292. Had you been just lately married at the time?—Yes.
8293. How long had you been married at the time?—Two or three months.
8294. Did you always show the utmost readiness to go to the front in the most exposed positions—Hedi, and all those places?—I did.
8295. Do you recollect meeting me about Hedi by yourself?—I do.
8296. In the most exposed part up there?—Yes.
8297. Alone, and by yourself?—Yes.
8298. And I asked you what brought you here?—Yes, I remember that.
8299. And my saying to you, “Do not you think you had better have some men with you,” thinking it queer you should be by yourself in that exposed position?—There was one constable with me then.
8300. You recollect that?—I do.
8301. Did you ever show the slightest reluctance to do your duty, or go to the post of danger?—I did not.
8302. You asked for the record sheet, I believe. I did not see the object of it before, when I think I see it now. Did you refuse to go to Greta?—I told Mr. Sadleir I did not like to be sent there. I was after giving evidence in the police court. I was the only member of the force who gave evidence against him in the Beechworth court at that time, and I was advised by people friendly to me to leave the district.
8303. Do you know that after the murder by the Kellys, that so important was the evidence required of McIntyre, that he was ordered away down here, so as to be available for the service?—Yes, he was sent to the depôt.
8304. Was he ordered here for his own safety?—For his own safety.
8305. And for the protection of Crown evidence?—That is what I understand.
8306. When you were ordered to Greta, were you one and the only constable examined as against Ned Kelly?—At the police court in Beechworth.
8307. Was the Greta station then the most dangerous position for you to be sent to?—I think it was the most in the district.
8308. Is that the nearest to Kelly’s place?—Yes.
8309. To Lloyd’s place?—Yes, to Tom Lloyd’s place.
8310. Is it nearest to people who are accused of being the most active sympathizers?—Yes.
8311. Right in the very centre?—Yes.
8312. Was it personal fear, what is called cowardice, that made you ask of your officer to be sent to anywhere but Greta?—It was not. Mr. Sadleir told me that Mr. Nicolson wanted a report from me, to ask my reason for not going there. I think my report is upon the 16th of September.
8313. What did you report?—If the report could be produced I should like it.
8314. You can say what it was—give the general tenor of your report?—I think I have a copy of it—[handing in a paper which was read by the Chairman as follows:—]
(Copy.) North-Eastern Police District, Benalla Station, 16th September 1880.
Report of Senior-Const. Kelly relative to be transferred to Greta. I beg to inform the superintendent that my reason for asking him not to transfer me to the station referred to is the prominent part which I took in the capture and destruction of the Kelly gang, and the well known feeling which exist against me there. I am the only member of the force in this district who gave evidence against Ned Kelly, and I have been advised, by many persons friendly to me, to endeavor to get removed from this district, as after the execution of Edward Kelly, there will be a much more bitter feeling of hatred against certain members of the force—myself in particular; and that sooner or later some serious or fatal violence will be committed on me. I do not desire to avoid going to live at Greta from any personal fear of such consequences; but I think that the ill-feeling which exist against me there would be a serious obstacle to the efficient performance of my duties. My being sent there will be looked upon as a challenge to the friends and sympathizers of the families connected with the outlaws, and will result as above referred to. I may remind the superintendent that, being on leave at the time of the murders of the police at the Wombat, I at once threw up my leave and returned to Benalla, and went into the bush with a party of men, and have been for nearly two (2) years exposed to the hardships of the search. Moreover, there is no place at Greta at which I can live, except Mrs. O’Brien’s public-house. Her position respecting the Kellys is pretty well known, and I should receive but little consideration from her. I therefore trust that I shall be permitted to perform my duties in some locality where I can place my wife in a suitable home.
The Superintendent of Police, Benalla. JOHN KELLY, Senior-Coast. 1925.
8315. Did you get any reply to that report?—I did, after about six weeks, I think.
8316. And you did not go to Greta at all?—No; I was transferred to the Western district.
8317. What was the nature of the reply?—I never got only just the order for the transfer. I know nothing of the correspondence that took place.
8318. Did you consider that you were well-treated by being shifted from the place—that it was in kindness to you?—Yes.
8319. That you were shifted?—Yes.
8320. You did not think it would militate against you in any way at any future time?—I did not.
8321. If there was a report sent that your request to be relieved amounted to cowardice, would you be astonished at that?—I would.
8322. And if a report of that sort were sent in, would it be a bar to your promotion, do you believe?—I believe so.
8323. Did you ever hear what the tenor of the report was?—.Never—never a word about it. In this case it is necessary to tell you what the report was. I will read it for you presently.
8324. When records are made in the sheet reflecting on a constable, have they an opportunity at the time of knowing of those?—They have not.
8325. Suppose it were a report unfavorable to the conduct of the men, they have no opportunity of knowing that those records have been made?—No, none.
8326. That record sheet of records made from time to time always remains in the office, does it?—I believe one is in the superintendent’s office and one in the chief’s.
8327. Suppose any time a constable has a record made to his disadvantage—say two years ago—would that record militate against his future promotion in time to come?—I believe it would.
8328. For all time to come would it weigh with the officer who had to deal with the constable’s case in after life: is that so?—Yes, I believe it would.
8329. So that a record of a damaging character being made against a constable, he has no opportunity to explain any particular conduct on his part which induced the officer to make the record?—No; I never heard of a man having an opportunity to make a record.
8330. So that the men are really at the mercy of the officers?—Yes.
8331. So that if the officers are so dishonest as to make a false record of a man’s conduct it would remain upon the record sheet, and it would never come to his own knowledge?—I believe I have heard of a constable applying for his record sheet to know what was in it, and I believe it was read to him in the office.
8332. I suppose a member of the police force would never apply for a record sheet without he had some reasonable grounds to suppose that some record had been made to his disadvantage?—Yes, exactly.
Mr. Sadleir.—Would you read the entry immediately preceding that?
The Chairman.—We will conduct the business in our own way. You must not interfere. The simple result of these interferences will be that we will sit in private and not allow any stranger to be present. We have found that these interferences with the witness have very seriously altered his tone before the Commission, not in this case but in other cases; and we have it in serious consideration whether we will not sit in private and get the information the best way we can.
Mr. Sadleir.—I beg your pardon. The reason I spoke was that I saw you bow to me, and I understood it to be a permission to speak.
8333. The Chairman.—I beg your pardon; it was a mistake. (To the witness.) This report of yours is dated 16th September 1880. Then, “25/10/80. The senior-constable, up to the date of the capture of the Kelly gang, showed himself very efficient. Subsequently, when told off to take charge of Greta station, with three constables, he pleaded to be excused from the fear of personal risk. Another constable undertook the duty, and the senior-constable’s transfer was recommended as a mark of my disapproval of his conduct.” That is signed by Superintendent Sadleir. Do you know if any other constables have asked to be relieved?—I heard that Senior-Constable Johnson asked; I do not know of my own personal knowledge; and Sergeant Steele, I heard too that he applied to leave.
8334. You heard this?—Yes.
8335. For what reason?—I do not know.
8336. Have you ever heard of anybody desiring to be relieved because his life was in danger—a constable?—I did not.
8337. Did you consider that the place was one of peculiar risk (where you were ordered to go to) to yourself personally?—I did.
8338. I think you gave evidence that it was right in the centre of the disaffected district?—Yes.
8339. Within a very short distance of Kelly’s house?—Yes.
8340. And within a very short distance of Lloyd’s?—Yes.
8341. And McAuliffe’s?—Yes.
8342. And other sympathizers immediately round?—Yes.
8343. And that Mrs. O’Brien, the keeper of the house, was in your opinion a sympathizer to some extent?—Yes.
8344. Is the country such that you could be waylaid and shot at any time?—At any time. If you go outside the door they could have an opportunity of shooting you.
8345. It is heavily timbered country?—Yes.
8346. And away from Greta you get into ranges where men could be sheltered?—Yes. 8347. You, heard the Chairman read the report entered in your record sheet?—I heard it.
8348. Are you thoroughly seized of the importance of it; is it so clear to your mind that you can now express an opinion of its importance to you?—It is damaging to me.
8349. In the future would that militate against your position in the police force with the officers?—Yes.
8350. Is that charge cowardice?—I consider it is.
8351. Would you consider it a charge of cowardice?—I would.
8352. Do you know that a lot of men have been discharged for cowardice in the service?—I do not.
8353. Do you know of Constable Baker discharged for not taking a blackfellow?—I do not.
8354. Do you know that cowardice of that character is a subject of dismissal?—I know it is.
8355. Do you know that if not dismissed it is the severest charge against you that could be got?—Yes.
8356. If an officer going to recommend you for promotion saw that charge in your record sheet would it not make him hesitate before he recommended you for promotion?—I believe he would.
8357. Do not you know he would?—Yes.
8358. You say in your application to be relieved from service at Greta, that it was not from fear of personal violence—you say it is not “from any personal fear of such consequences, but I think that the ill-feeling which exists against me there would be a serious obstacle to the efficient performance of my duties. My being sent there will be looked upon as a challenge to the friends and sympathizers of the families connected with the outlaws”; that is a challenge to come and assassinate you?—Yes, I believe it would be.
8359. Is not the murder of the police at Wombat considered a dastardly assassination, that the men had not a show?—No, they had not.
8360. Is there anything to prevent them assassinating you, if they were the same ill-disposed people at Greta, with the like impunity?—There is nothing to prevent them.
8361. Nothing to prevent their going behind a tree and shooting you if you were there?—Yes.
8362. Was not that place at that particular time a place of particular danger from the barracks being in the public-house, where the public had access at all hours up to a certain hour of the night?—It was so looked upon.
8363. Would it not be a much more dangerous place as being a challenge them than if the barracks were in an ordinary place?—Yes, I believe so.
8364. At the Greta hotel would it not be possible for men to come in at the back door and front door up to any hour of the day or night when the public had a right to access to the licensed house?—Yes, at any time.
8365. From your knowledge of the district do you think there is any place in the district where there are more ill-disposed people likely to assassinate you than in that district?—I believe it is the worst place in the colony.
8366. I want to ascertain exactly the discipline of the police force and the feeling amongst the men—was there, to your knowledge, amongst the men a feeling that any officers (I do not particularize officers) would have a down upon and would not advance the prospects in the force of men who had been in Mr. Hare’s party at Glenrowan?—I believe there was an ill feeling against Mr. Hare’s party with some of the men.
8367. Which of the men did you say?—Against Mr. Hare’s party of men—for his selecting all his own men.
8368. Feeling on whose part?—Some of the other constables. They were Bourke men.
8369. You say they were Bourke men principally in Mr. Hare’s party?—Yes.
8370. Did the same feeling exist amongst the officers; was it stated to exist amongst the officers?—I do not know.
8371. You have no opinion upon that matter?—I have no opinion upon that matter.
8372. Then if it is stated that there was ill feeling and that the men’s promotion would not be ensured that belonged to this particular party at Glenrowan, and that they would not be recommended for promotion, would that be true or false?—I cannot say.
8373. Would it be true or false, in your opinion. The question I ask you is this: what did you, in your own mind, consider that order to Greta was for. Did you think it was to ensure your promotion or as a punishment?—Mr. Sadleir told me that he was going to get me advanced, and that by not going there I should lose all.
8374. You got that notice?—He told me that repeatedly.
8375. At what time?—I think it was in the stable one morning.
8376. When?—Before I put that application in.
8377. Are you advanced or put back in the service?—I am neither. I am in the same position.
8378. You are a constable in charge of a district in the west?—At Terang.
8379. Then you have not received any promotion for your service?—I have not.
8380. In any way?—In any way.
8381. And it would depend upon the officer recommending you there?—Yes, I think it would depend upon the officer.
8382. You are in Mr. Chambers’s district now, are you?—Yes.
8383. In order to ensure your promotion when you change your district, have you to make way, as it is called, make your character known to the new officer?—I supposes he will go by the record sheet.
8384. Have you not, in going to a fresh district, to prove by your conduct that you are worthy?—You have.
8385. And that puts a man back in the service?—No doubt.
8386. Then with regard to changes, if a man is stationed in the country and he applies for a change, is it considered promotion or the reverse if he is sent down to the depôt here?—If he applies for a change it would be at his own request he was sent down.
8387. Supposing it is not at his own request he is transferred from the district, is it considered an advantageous station or the reverse to be sent from a country district down to the barracks?—They consider it a punishment, so I found.
8388. Is that so looked upon in the service?—Yes. 8389. It is not at all events a sign of promotion?—No.
8390. You say you knew how the men of Mr. Hare’s party were armed. How many of the party had double shot guns?—Only one.
8391. Who was that?—Canny.
8392. No officer?—Mr. Hare had a double shot gun.
8393. Then if the doctor’s evidence gave a sworn statement that the wound in the hand winch disabled Kelly from shooting was from a pellet, which is similar to the one used in the cartridges by the police, and that it was in the early part of the fight, must it have been either from the gun of Mr. Hare or Constable Canny?—Yes.
8394. Must have been?—Must have been.
8395. No other man had a double shot gun?—No other man had a double shot gun.
8396. Have you ever opened the cartridges with which those guns were loaded?—I have.
8397. What is the description of the charge?—Eighteen pellets and the wire cartridge.
8398. The wire cartridge is the casing of the pellets?—Yes; there are eighteen in one. We used pellets in one, and wire in the other.
8399. Are there not pellets in both?—Those are BB shot.
8400. Not so large as the other?—No.
8401. If the doctor says that the wounds inflicted on Ned Kelly were not recent, had been done prior to the shooting by Steele, and that he had a wound in the arm, and it was effected by a pellet similar to the ones the police were armed with, would you say it was one of the two persons that were armed with the gun that did it?—Yes, certainly.
8402. How many men fired at him, when he stumbled at the tree, with double-barrelled guns—do you know?—None but Sergeant Steele.
8403. Was Sergeant Steele armed with a double-barrelled gun too?—Yes.
8404. Was he armed all through that day with the double-barrelled gun?—Yes.
8405. To your knowledge?—Yes.
8406. If shots were taken out of his leg similar to the shots which he was wounded with in the morning would that indicate to you that he was shot in the legs by Steele?—Yes.
8407. Do you think that if a woman swears she was shot at by Constable Steele, and that the bullet went through her shawl and cut a bullet hole through, Sergeant Steele being armed with a double-barrelled gun and wire cartridges, could that be true?—It could not.
8408. It could not be true?—No.
8409. Who was the first constable you saw shoot Ned Kelly, when he was coming down that day?—I think Constable Arthur.
8410. And he fired more than one shot at him?—He did.
8411. Did Ned Kelly attempt to shoot him?—He did, he fired at him.
8412. Could you ascertain in the morning about how many constables fired the first volley against the outlaws, when they fired?—I could not say how many fired.
8413. Did you fire?—I did.
8414. Is it true that you went round the station during the whole time that elapsed between the leaving of Mr. Hare in the train, and the taking charge of Mr. Sadleir?—Yes, I went round.
8415. All that time you have sworn that to your knowledge Mr. O’Connor was inside the railway fence, in the drain that you have mentioned?—Yes.
8416. Do you say that from not seeing him elsewhere or, how do you arrive at the knowledge?—I never had seen him at any other place all the time.
8417. Then you only say that he was there from the fact of your not seeing him?—Yes.
8418. Had you any knowledge whether you were the responsible officer in charge from anything that was said to you from the time of Mr. Hare’s departure till you reported the position to Mr. Sadleir?—I considered that I was. I had all responsibility, I never looked upon Mr. O’Connor except just as in charge of the blacks.
8419. You felt the responsibility was upon you?—Yes.
8420. When Mr. Hare called upon Mr. O’Connor and the black boys to come forward, that he was wounded, and you saw your officer retreat or go away from the wounds; if Mr. O’Connor had then and there come forward and taken the command, would you have accepted his orders?—I would assist.
8421. Would you have accepted his orders at once?—I would.
8422. Therefore it was as a matter of fact, because he did not do so, that you, believing you were in command, took the steps you did take?—Yes.
8423. Did the men ask you when you were going round whether you or Mr. O’Connor were in charge?—No.
8424. They accepted your orders?—Yes, and never asked.
8425. Do you recollect when Sergeant Steele advanced from Wangaratta with his party and came and took his position in the nearest post to the house?—Yes.
8426. He was the nearest constable?—Yes, to the house at the side.
8427. Was any firing going on then?—There was not.
8428. Was Sergeant Steele then your senior officer?—Yes.
8429. He would be, in fact, in charge of you?—I consider so.
8430. The moment he came upon the ground and you reported to him the position of affairs, by the rules of the service he was in charge of the party until Mr. Sadleir came, and by his position took the charge from him?—He did not wait for the report, for I understood he knew all about it.
8431. Who?—Sergeant Steele; he went straight and took a position. Constable Bracken was with him.
8432. That was the constable that went and brought him there?—Yes.
8433. And must have told him that the Kellys were there?—Yes.
8434. He went up at once to the front of the house, in the closest position?—Yes.
8435. Did you communicate to him the position of affairs?—No, I did not.
8436. Did you tell him that there were women in the house?—No.
8437. Had you at that time discovered Ned Kelly’s rifle?—I had.
8438. Did you tell him you were afraid one of them had gone and you had the arms?—I did not; he did not wait for a second.
8439. How long after that officer took his position did Mr. Sadleir take the command or you report to him?—I suppose five or six minutes.
8440. As soon as you reported to Mr. Sadleir, you felt all responsibility off your shoulders?—I did.
8441. When Sergeant Steele took his position, you were at the back, north of Sergeant Steele, towards the corner of the stockyard?—No, I went down to the drain after Sergeant Steele went over to his post.
8442. When Steele took his post, where were you?—Behind him.
8443. North of him?—North of him.
8444. Towards the stockyard fence?—Not so high up as the stockyard—right up to the end of the house like.
8445. Did you, during the time between Mr. Hare’s leaving and Mr. Sadleir’s coming round, supply ammunition to the men surrounding the house, except on one occasion?—I did; I gave Constable Barry ammunition twice.
8446. How much?—I think I gave him a package once; I do not know how many the other time.
8447. Do you recollect Mr. Gaunson examining you in the court house, I being present, as to Mr. O’Connor’s position on that occasion?—I do.
8448. What did you tell the court?—I told them the same as I have sworn here.
8449. How many rounds of ammunition did you fire?—I could not say how many.
8450. Were not you asked that at Beechworth?—I believe I was.
8451. Do you recollect what you said?—I do not, really.
8452. Did any superior officer to you go round the constables to see that they were all right at any time during the day?—I do not remember seeing any of them.
8453. You have one statement there in your report, where you say, “Moreover, there is no place at Greta at which I can live, except Mrs. O’Brien’s public house. Her position respecting the Kellys is well known, and I should receive but little consideration from her.” What do you mean by “her position respecting the Kellys”?—I always took her to be a sympathizer.
8454. You know that the police are now stationed in her house?—Yes, I do.
8455. Then from that fact, and from your opinion, you consider it a very unwise step to place the police in the house of an enemy, you might say?—I think so.
8456. How did it become necessary to station the police in her house?—There are no quarters there, I believe.
8457. Were there any quarters there before that?—I do not think so.
8458. Do you recollect the time the Kellys were stated to have bought ammunition in Melbourne?—I heard about it.
8459. Do you recollect the time?—I do not.
8460. About that time do you remember reading in the papers and elsewhere that the Kellys brought ammunition?—I remember reading about it.
8461. Do you know that Mrs. O’Brien came up in the train in which they were supposed to be bringing ammunition; did you hear that?—I did not.
8462. Did you hear that Mr. Sadleir either searched or had her luggage searched, believing that she had the ammunition?—I did not hear. I was up in Hedi ten months.
8463. In going round to the police at Glenrowan, did you hear any of them volunteer to rush Mrs. Jones’s hotel?—I did. There was Constable Armstrong, Constable Dixon; and Armstrong in particular spoke to me about it. I told Mr. Sadleir, and he said he did not see why he should sacrifice any man’s life for the two ruffians inside.
8464. Did they explain to you any plan by which they would rush the house?—No, they did not.
8465. Then you are not in a position to say whether it was a practicable plan or not?—No.
8466. Have you any idea of your own about it?—Only just to rush right in—some men at the back and some at the front, and some were bound to get shot.
8467. Some of them would have been shot?—Yes.
8468. If you were left to your own free will would you have rushed the place?—I would, with the men.
8469. You are of the same opinion now, knowing all the circumstances. If the same was to be repeated you would take a part in the rush?—I would.
8470. What time of the day was that?—About two o’clock.
8471. In answering Mr. Hall’s question, do you mean to say you would rush at any time during the day?—No, not when all the prisoners were in, but after they left it.
8472. Do you know that Cherry was wounded inside after the rest of the people were left?—I heard the prisoners say. I was with Mr. Sadleir when he questioned them, after they came out. And the two McCormacks and Delaneys we examined, the two of them, and they pointed out where those two were lying down.
8473. What two?—Dan Kelly and Steve Hart.
8474. The question I ask is: did the people detained by the Kellys, when they came out, tell you that Martin Cherry was lying wounded in the premises?—I believe they did, but I am not certain.
8475. Can you say whether your officer knew, from any information given him in your presence, that Martin Cherry was in the house and the outlaws?—I could not say, I heard he was in the back kitchen.
8476. Who told you that?—I do not know.
8477. At what time in the day did you hear that?—About two o’clock, I think.
8478. When you heard he was in the back kitchen, did you hear whether he was wounded or not?—I did not.
8479. Here is your evidence, Mr. Gaunson examining—is this correct, “I asked Mr. O’Connor”—is that your signature?—Yes.
8480. “I asked Mr. O’Connor if he would come round out of the ditch; he did not do so, he remained in the ditch.” Is that correct?—That is correct.
8481. Has any constable in the district got promotion for his services that you are aware of?—No.
8482. Have they got better stations?—Yes, there are some senior-constables—Flood and Mullane.
8483. Have they got promotion since the Kelly business?—No, they got it during that time.
8484. Is there any rank between senior-constable and sergeant?—Yes, there is.
8485. What?—Sixpence a day extra and a stripe extra.
8486. Supposing that you were promoted now, what would be the next promotion that you could possibly get?—Second-class sergeant.
8487. Is that the same as Sergeant Steele?—That is the same as Sergeant Steele.
8488. Is there any such thing as good-service pay without getting a stripe?—There is sixpence a day after ten years’ service.
8489. Have you ten years’ service?—I have twenty, next January.
8490. Then, without giving you the stripe for service, it would have been quite possible for your officer to give you extra pay without giving you promotion?—Without giving me promotion I could not get it.
8491. You are now a senior-constable?—Yes.
8492. Can you get extra pay after the ten years’ service without being entitled to that pay by the extra stripe?—I would get it without the extra stripe.
8493. Did you get that?—Yes.
8494. Then you got the sixpence a day extra?—I have.
8495. When did you get it?—I think it is four or five years in existence.
8196. But you did not get any promotion, either in pay or in the service, since the Kelly business?—No, none whatever.
8497. The only promotion you got was change to the westward into a new officer’s district?—Yes.
8498. Are you aware of any constable of any district, or of any senior-constable, since the capture of the Kellys having got promotion in the district for his services or from other causes?—I do not think any of us have been promoted.
8499. Then promotion has been at a standstill in the district?—Yes.
8500. Nobody has been promoted over your head had you remained in the district?—No.
8501. You say the only promotion you got was removal to another district; do you consider that a promotion?—It is no promotion; there is nothing extra for it.
8502. I gather from your answer to Mr. Graves it is rather a disadvantage to go into a strange place and under a strange officer who does not know you; you do not look upon that as promotion?—It is no promotion.
8503. You are two months married?—Nearly twelve months.
8504. But two months married at the time you were ordered to Greta?—Yes.
8505. Putting yourself out of the question, would Greta be a desirable station for your wife at a public-house?—It would not; I would not take her there.
8506. Would it involve your paying for lodgings and for your wife?—Yes, I had to do it.
8507. Did you tell that to your officer?—Yes.
8508. Did you tell him you were married and that there was no place for your wife at Greta?—Yes, he asked me when I came back. I was down here on leave, and Mr. Sadleir asked me and called me into the office to tell me about the transfer. He said, “Have you brought up your wife?” and I said, “No”; and he said, “I am very glad you have not for a bit, for I want you to go to Greta with three constables.”
8509. Then you did not tell him you could not bring her to Greta?—No, I did not.
8510. By Mr. Sadleir.—When news of Sherritt’s death came to us, was it not in the afternoon, not in the morning —When was that?
8511. On Sunday the 27th. I have got it that you said it was in the morning; was not it in the afternoon?—No, I said in the afternoon.
8512. Then I misheard you. I will come direct to the matter—you heard it from Mr. Hare?—I heard it from Mr. Hare.
8513. It was a slip of the tongue of the witness, no one else seemed to notice it?—I went over to you to come over to the telegraph office in the morning over another matter.
8514. I will fake the order of the evidence as it was given for cross-examination. You said you went up to rush the house with Mr. Hare—what would the probable consequences have been of rushing a house with men inside armed?—We did not know they were armed.
8515. You said that, later in the day, if the house were rushed some men’s lives would have been lost?—Yes, I believe they would.
8516. Was it necessary to lose any lives?—I do not think it was.
8517. Would it have been generalship—I ask you as a sub-officer of experience—would it have been generalship of any officer to lose lives unnecessarily?—I do not think it would.
8518. You would not approve of a rush?—No.
8519. Is that really what you wanted to say?—That is it.
8520. At what hour did you find the rifle with blood upon it?—About four o’clock I think, to the best of my belief.
8521. Do not you remember coming to me and telling me about that?—I told you upon the platform, when you came there.
8522. Was it then you told me about the rifle?—Yes.
8523. I thought it was subsequent?—No.
8524. Can you account for Constable Barry not knowing that there were innocent persons in the house. He said that positively. Can you understand how any man could be ignorant of that?—In the first set off I thought they were all their own friends that were there, except Mr. Jones’s family.
8525. By the Commission.—Do you mean by that sympathizers?—Yes.
8526. By Mr. Sadleir.—Can you understand at the time I arrived, from half-past five to six, how any man belonging to the first party could be ignorant that there were innocent persons in the house?—I did not tell him.
8527. Was not it taken for granted by every one on the ground that there were a number of persons there not outlaws?—Could not I have what?
8528. Constable Barry said yesterday that he did not know all day long till the prisoners escaped at ten o’clock that they were in the house. Can you understand how any man could be ignorant of that fact?—I do not understand the question.
8529. Constable Barry was one of the constables upon the ground from the first start with Mr. Hare?—Yes.
8530. In his evidence he stated that until ten o’clock, when the prisoners were allowed out, he had no knowledge that they were upon the premises?—He would hear the women screaming.
8531. No doubt he told the truth, but can you understand how it was that he was in ignorance?—I cannot understand it.
8532. By the Commission.—How soon did you know there were innocent people in the house?—When Phillips came round to me.
8533. What time was that?—Just before Sergeant Steele came—about five o’clock, I suppose.
8534. How long was Sergeant Steele there before Mr. Sadleir came?—Not more than five or six minutes.
8535. By Mr. Sadleir.—Did not you explain fully to me the position of everything when I came?—Yes.
8536. You mentioned one part of the building that was not secured?—Yes.
8537. And you heard my direction to Sergeant Whelan about that?—I did not.
8538. Sergeant Whelan went down the line with his men?—Yes, he went and took up a post behind a tree, and stopped there all the time.
8539. He took most of his party?—Yes.
8540. That is, my party?—Yes.
8541. When I went to speak with Mr. O’Connor?—Yes.
8542. Do you remember we were being fired at?—I do.
8543. Who called attention to that?—I turned round and called the men to come in single file.
8544. You were therefore the first to speak?—Yes.
8545. Did I say this, “Scatter, men; do not keep in a body”?—Yes.
8546. Did you tell me at the time I landed at the platform that you thought one of them was away?—I am not certain whether I did or not I believe I did.
8547. I do not think you did?—I am not certain. I told you about the rifle, and I think I must have told you then that I thought one was away.
8548. Do you not call to mind whether you may not have seen me again in the course of about half an hour?—I do not.
8549. Can you be positive of that?—I cannot.
8550. Was not I in communication with you nearly all the day?—I did not see you after you went down to speak to Mr. O’Connor till I saw you up the platform, when Ned Kelly was taken into the van.
8551. What time was that?—About seven o’clock.
8552. That was an hour later?—Yes, about that.
8553. And after that you saw me constantly?—Yes, constantly. You and I examined together all the prisoners that came out of the house, and you ordered me to take the two young McAuliffes in charger when I told you who they were.
8554. Upon the platform, at seven o’clock, when I saw Ned Kelly, did you find any difficulty in finding me?—No.
8555. Nor any man upon the ground?—No. I saw you once when the priest came to me about going into the house. I told him I could not give him any authority without seeing you.
8556. By the Commission.—What time was that?—About three o’clock, when the house was going to be fired.
8557. By Mr. Sadleir.—When an officer, a principal officer, takes charge of men, what would you think of his running about with his own messages?—I do not think it is the officer’s place to run about.
8558. Did you ever see an officer running with his own messages—did you ever see such a thing?—No; he puts it through a non-commissioned officer.
8559. He takes a smart non-commissioned officer, or a smart constable, to take his messages?—Yes, always.
8560. By the Commission.—Would you expect to see an officer on a duty like that go round to visit his outposts to see that they were all right in position—is that a duty that he would put upon an orderly if he was surrounding a place—would you consider it his duty to visit his outposts, and see that they were upon the spot?
8561. By the Commission.—I ask him?—(The Witness.)—Yes.
8562. Did you consider that your duty?—I did.
8563. When you were in the position of command, the position of the highest man in the service in charge, did you consider it your duty to go round and see that your men were not shirking their duty?—I did consider it my duty.
8564. By Mr. Sadleir.—Could I have any doubt about the manner in which the men were doing their duty that morning?—I did not. I never saw a man that did not do his duty then.
8565. By the Commission.—Do you think it was a portion of Mr. Sadleir’s duty to go round and see the outposts the same as you did?—I think it was, at least once, to see how they were posted.
8566. Did you consider it the duty of Mr. Sadleir to go round and visit the outposts after he arrived in the same way as you had previously done?—Yes.
8567. Do you consider it was your duty to do that?—Yes.
8568. Whoever came after you it would be his duty to do the same thing?—Yes.
8569. Whoever he may be, if it was an inspector or any one else?—Yes.
8570. By Mr. Sadleir.—Can you say whether I did or not?—I cannot say.
8571. By the Commission.—Did you see him?—I did not see him.
8572. By Mr. Sadleir.—Was not moving about at the first a very difficult matter?—Yes, it was.
8573. Had not each man enough to do at his post to mind himself.—They were all under cover and behind trees.
8574. They had enough to do to observe what was before them?—Yes.
8575. Was it necessary to go up and speak to every man the same as you would men in the streets?—I do not think that was necessary, to speak to every one.
8576. When you went round was it sufficient to see every man at his post without speaking to him?—Yes, I did.
8577. By the Commission.—On visiting your posts, did you see that they were properly posted?—Yes I saw them.
8578. Did you ask them if they had ammunition?—Yes, I asked Barry.
8579. If a man had no ammunition would he be utterly useless?—He would.
8580. Would it not be your duty to see, not only that he was at his place but that his arms were serviceable, and that he was not wounded?—The men would inform an officer if the arms had anything the matter with them, and if they had not ammunition.
8581. Could they do that without leaving their posts if officers did not go round?—No.
8582. By Mr. Sadleir.—Did you see Constable Dwyer going round?—No, I did not see him going round.
8583. Did you see him going from post to post, not quite round, but part of the way?—Yes, I remember now I did see him.
8584. Have you any knowledge of who sent him?—Of my own knowledge I did not know. I heard that you sent him.
8585. If a favorable entry is made upon your record, you are informed of that, are you?—No.
8586. Is not that an established rule in the department, and not a rule by me or any officer?—I believe by the head of the department.
8587. There is no constable who is aware of what is there. Will Mr. Longmore object to read the last entry but one.—[The same was read by the Chairman as follows:—] “16/8/80. Was engaged in the Kelly search since October 1878, and was one of the first party of police who attacked the gang at Glenrowan on the 28th June 1880. Showed great zeal throughout, and special bravery and efficiency in the attack on the gang, and in assisting in the capture of Ned Kelly. Supt. Sadleir.—Recommended for promotion, half-yearly return.” That is 27/8/80.
Mr. Sadleir.—That is an addendum?
8588. By Mr. Sadleir (to the witness).—Does that satisfy your expectations?—Yes, the entry satisfies me.
8589. Do you think anything in the world could have been stated more fairly?—No; I consider that is very fair.
8590. Did not I select you, and give you to understand so, from the opinion I have of your services—did I not select you for Hedi, thinking you the best man I could find for it?—I believe you did.
8591. By the Commission (to Mr. Sadleir).—Did you tell him that you selected him on that account?
8592. By Mr. Sadleir (to the witness).—Do you remember my putting it that way to you; do you remember my saying, “Kelly, you are the only man I have fit to go”?—Yes, I remember that.
8593. Was not it only as a temporary arrangement to get the first difficulty over; you did not look upon it as my placing you there permanently, only that as long as the anger lasted after that day at Glenrowan did I wish you to be in charge?—Yes; but I told you I would take any station in the district before Greta.
Mr. Sadleir.—I know you did.
8594. By the Commission.—Did you distinctly understand, from what Mr. Sadleir told you, that it was to be only a temporary remove to Greta?—Yes, temporary.
8595. You knew that?—Yes.
8596. Have you any idea of the meaning of “temporary”?—I expected four or five months.
8597. There are men put temporarily in charge of a station, and left there for six or seven years?—I do not think so. That would not be temporary.
8598. By Mr. Sadleir.—Did not I hold out promises of promotion to you as far as I was authorized?—Yes.
8599. And there was nothing more that I could do?—There was not.
8600. By the Commission.—Would you consider that, if hopes of promotion were held out to you, a very unfavorable report would strike those hopes down?—That would prevent it.
Mr. Sadleir.—But the hopes of promotion were conditional, and the condition was not fulfilled.
The Commission.—“27/8/80”—that is the date of that recommendation for promotion; there is no condition here.
Mr. Sadleir.—But the conversation was after that he was recommended for promotion, and he probably knew it. When a man is specially recommended I usually tell him, but it was after that recommendation that this conversation took place and those further hopes of promotion were held out.
The Commission.—And after that conversation you wrote this minute upon the paper?
Mr. Sadleir.—Which minute?
The Commission.—The last one.
The Commission.—And that was in your mind to prevent the promotion.
Mr. Sadleir.—Yes. I had no particular view to do it; it was to express exactly my opinion, without regard to any other consideration.
The Commission.—What would be the effect of that expression of opinion?
Mr. Sadleir.—No doubt it would be injurious to the man.
The Commission.—Do we understand you to say that, irrespective of this private record sheet, when a man was recommended for promotion, you generally informed him of it?
Mr. Sadleir.—No, when a man was specially recommended for promotion.
8601. By Mr. Sadleir (to the witness).—I ask you, as a sensible man, put yourself for a moment in the position of an officer in charge of a difficult district like that, what would your feelings be after a disappointment if a man you chose declined, for any reason whatever, to go into the place?—Into which place?
8602. I say—put yourself in the position of an officer in charge of a district like that, would it not be a disappointment to you if a man you selected for a difficult and dangerous post showed a disinclination to go?—Yes.
8603. I ask you the same: have you any harshness to complain of in that minute of mine; is it any exaggeration of your own statement?—I believe it is injurious to me.
8604. Is it any exaggeration of the reasons you gave me for not wishing to go?—No.
8605. Is it not my duty, without any personal favor to you, or any consideration for your private feelings and interests, to say exactly what I thought was fair?—Yes.
8606. There is only one question more, and I suppose there is a reference to some jealousy felt by the force—whether officers or men I do not know—as regards Mr. Hare’s county of Bourke men—men of his own district: was there one man of Mr. Hare’s district in the first attack upon Glenrowan—Gascoigne does not belong to his district?—No.
8607. Never did?—Never did.
8608. Phillips was not of his district?—He was transferred, I believe.
8609. And Arthur?—Yes.
8610. And Barry, he was an exception, he might be a Bourke man?—Yes, Barry was Bourke at the time.
8611. No, he was a Western district man; yourself, you were a North-Eastern district man?—Yes.
8612. Where could the jealousy come in?—It was in the first set-off.
8613. I understand it to be Glenrowan. As regards Glenrowan, there was no man to be jealous of because he belonged to Bourke—Mr. Hare’s district?—No.
8614. By Mr. Hare.—You were at Benalla when I relieved Mr. Nicolson on the 2nd June?—I was; I was stationed at Benalla.
8615. Do you remember an agent, I will not mention his name, coming down from Beechworth to see me?—Yes.
8616. One of Mr. Nicolson’s agents?—Yes.
Mr. Nicolson.—I have not the slightest objection to Mr. Hare’s question, but yesterday the Commission decided that this matter should refer to Mr. O’Connor.
8617. By Mr. Hare.—It does not reflect at all against Mr. Nicolson. I made the statement in my original report, which I want the witness to substantiate. If the report is taken for granted, there is an end of it. I shall not then want to put the question. (To the witness)—Do you remember the fact that an agent had come down from Beechworth for the purpose of seeing me?—Yes, I remember that.
8618. Did you made an appointment that evening at my request to meet him at a certain place?—I did.
8619. Did we keep our appointment—you and I?—We did.
8620. Did the agent?—No.
8621. After waiting there for some time did we see him elsewhere?—I suggested we should go where we thought we should meet him, as he was going by train.
8622. At the railway?—Yes.
8623. Did we see him there?—Yes, we did.
8624. What did I say to him?—I walked away from you. You took him to the end of the railway station platform, in the dark, and spoke to him there.
8625. Did you hear any of the conversation?—No, I did not.
8626. None at all?—No.
8627. What became of him?—He went away. He told me he would not work for you.
8628. When?—Before you saw him.
8629. Before I saw him?—Before you saw him.
8630. That night?—That night.
8631. You did not tell me that then?—I do not know. I forget if I did.
8632. I am certain you did not, because why should I meet him?—I pressed upon him to come and see you—that it was all nonsense.
8633. You did not speak to him after I saw him?—No.
8634. He went away in the train?—He went away, and I did not see him till after the Glenrowan affair.
8635. Come now to Sunday, 27th June, what time did I send you up to the railway station that afternoon to see about a train or an engine?—About three o’clock, I suppose, in the afternoon.
8636. When we were stopped near Glenrowan, what position were you in, were you in front of me or behind me in the carriage?—I was in front of you—I was next to the engine.
8637. Did you speak to the guard before I came up?—I did. You put your head out of the window.
8638. Where were you then?—Standing upon the step of the guard’s van.
8639. Are you sure that the guard was not midway between the pilot engine and our engine?—I spoke to him, I remember well; he said to me about meeting a man with a red light.
8640. Was not that after I left—did not I walk with three men towards the pilot engine?—Yes.
8641. I left you with the train?—Yes, I stopped there with the train; you went up to find the man—that is the schoolmaster.
8642. Did not I meet the guard some distance from the train?—I understood the guard came up to the train. I remember your putting your head out of the window. You asked what was up, and I said, “The pilot engine has stopped.”
8643. Exactly; I saw that myself. You do not recollect which I met?—I saw Archie McFie, the guard.
8644. When we got to Glenrowan platform what was the first thing I did when I got out?—You sang out to me to get the horses out.
8645. Are you sure of that; were the horses removed till I returned from the station master’s house?—We were getting the horses out.
8646. Answer that question—did you see me and Mr. Rawlins going to the station master’s house?—I did.
8647. Did you say the horses were being got out whilst I was away?—A few of them were out.
8648. Are you sure of that?—I am sure.
8649. You say that you heard me call out to Mr. O’Connor to surround the house?—Yes. 8650. What distance could my voice have been heard when I called out that?—I should say it could be heard near the railway station there.
8651. Did Mr. O’Connor surround the house?—He did not.
8652. How many shots did you fire in the first engagement, have you any recollection?—I have not.
8653. About?—Ten or fifteen, I should say.
8654. Are you sure that you asked me for ammunition when I was returning the second time or the first time, when I was going back to the railway station the first time or after I had been wounded?—I am not certain which of the times.
8655. Do you remember saying anything to me at Benalla when you came to see me, after I was wounded, about Kirkham leaving his post?—I do.
8656. State what it was?—When I came, in company with Mr. Sadleir, I found Kirkham in the trench with Mr. O’Connor. I said, “Kirkham, what brought you here?” He said, “I came for ammunition.” I said, “You know well you cannot get ammunition there, and you have no right to leave your post.”
8657. Who was with Mr. O’Connor then?—Kirkham.
8658. And who else?—Two black trackers.
8659. That is four of them there?—Yes.
8660. How many men had you surrounding the house at this time, or when you posted the men there?—They were all—five men and three trackers.
8661. Where was Kirkham’s post on that morning, after the firing ceased, the first firing?—It was at the Benalla side of the house.
8662. Who was first posted the nearest to the front?—Gascoigne.
8663. Who was next?—Phillips, I think, was next to him.
8664. Who was next?—Kirkham.
8665. Who was next?—Barry.
8666. That was the post you gave him?—Yes.
8667. When you returned you found him in the drain with Mr. O’Connor?—I did.
8668. And what did you say to him?—I said, “Kirkham, what brought you here?” He said, “I came for ammunition.” I said, “You have no business to leave your post; you should stop where I put you.”
8669. How many men had you then surrounding the house when you placed Kirkham there?—Only five, with three black trackers; Sergeant Steele’s party were not there then.
8670. Was it before or after the arrival of Mr Sadleir that you saw Kirkham with Mr. O’Connor?—In company with Mr. Sadleir.
8671. Is that the first time you saw him there?—That is the first time.
8672. By the Commission.—How long after the first party went there did Mr. Sadleir arrive?—Mr. Sadleir arrived after five o’clock—between five and six.
8673. And the first party arrived, your party?—At about three o’clock, I think.
8674. Do you know when Kirkham left his post?—I do not.
8675. You say you found fault with him when Mr. Sadleir was there?—Yes.
8676. I thought you stated just now that Mr. Sadleir went up and spoke to Mr. O’Connor, and you went away?—The very minute I came up with Mr. Sadleir I spoke to Kirkham.
8677. Then you had some conversation with Kirkham?—Just the few words I am after speaking.
8678. And then ran away?—Then went away; Mr. Sadleir told me to go round.
Cross-examined by Mr. O’Connor.
8679. You stated that the special train arrived at Benalla about half-past one a.m. from Melbourne, and brought me up and my men?—I think it would be about half-past one or two; I am not certain. I did not look at the time.
8680. You say also at this time they put the horses in?—Yes.
8681. Are not you aware that part of the horses were in the vans when the special arrived?—Yes, I remember now they were.
8682. Then that statement of yours is not correct?—It is an error.
8683. By the Commission.—Are you talking of all the horses?—Yes; I remember we had all the horses in trucks just before the train came up.
8684. By Mr. O’Connor.—Upon arriving at Glenrowan, or rather when the train, stopped—not at the station—upon the train stopping did not you see a porter walking up to the train, or a guard, carrying a lamp?—Yes, I think so. I spoke to Archie McFie.
8685. Did not you see him come to the carriage door to Mr. Hare and speak to him?—No.
8686. Where did he go to?—Mr. Hare came out before the man spoke to him.
8687. Where did Mr. Hare meet him?—Close to the guard’s van.
8688. That is in the rear of the train?—No, in the front of it, next to the engine.
8689. The guard’s van?—Yes, that was attached to the engine.
8690. Is it not usual to attach the guard’s van to the end of the train?—I do not know, but it was attached to the engine on that night, and I and Constable Barry and another man were in the van attached to the engine.
8691. Upon arriving at Glenrowan, you state that you commenced to take horses out at once?—Yes.
8692. Who gave you that order?—Mr. Hare, before he went down to the station master’s house.
8693. Did he give you a reason for taking out the horses?—No, he did not wait a second.
8694. He did not say a word?—No, only, “Kelly, get out the horses.”
8695. You also stated that Mr. Hare went direct for the house?—He did.
8696. And that you ran along parallel with or along the line?—Yes.
8697. Which was the longest way?—The line, I believe.
8698. Considerably longer?—I do not think it is considerably longer.
8699. Did you run till you got outside the fence. That was what I understood you to say?—Yes.
8700. You ran along the line?—Yes, out of the gate.
8701. Would you recognize upon the plan?—I saw it.
8702. You see it is considerably the longer way round?—Yes.
8703. What delayed Mr. Hare from arriving at the house long before you did?—He did arrive before I did.
8704. And the firing was over?—No, it was just commenced. I was behind him, I suppose, seven, or eight, or ten yards. Mr. Rawlins and I ran down there. I remember him well. I do not know whether any of the other men were there.
8705. Returning to the railway platform again—you said that you placed Constable Barry as guard over the rear?—Yes.
8706. If he swears that he accompanied Mr. Hare down to Stanistreet it would not be true?—I know well that I placed Constable Barry there. I remember putting one man to go and guard at the back of the station, and I am certain it was Barry.
8707. You swear to-day that you put him there while Mr. Hare went down to see Mr. Stanistreet and Rawlins. Barry swears that he accompanied Mr. Hare down?—I know I put him on guard. I suppose they were not two minutes—not a minute.
8708. By the Commission.—What is the distance between the station and the station master’s house?—About 100 yards, I suppose.
8709. How far were you behind Superintendent Hare upon making a start?—We were getting our arms. Mr. Hare rushed the moment Bracken appeared, and we were behind, getting our arms.
8710. Would you be one minute behind him?—Scarcely; we might be.
8711. How many extra yards would you have to go?—I do not know.
8712. Would it be twenty?—I do not think so.
8713. By Mr. O’Connor.—Then when you actually, what I may call, overtook Mr. Hare he was wounded?—Yes, I believe he was.
8714. Did he make any remark to you about it at once?—He said he was shot.
8715. He turned round and spoke to you by name?—No, he did not by name at that time.
8716. Could you remember the words he made use of?—I believe the words he made use of were, “I am shot.”
8717. Did he say, “O’Connor, I am wounded.” Did he call me by name?—He called you by name when he came down.
8718. At first, “I am wounded”?—”Those beggars shot me.”
8719. “O’Connor, those beggars shot me”?—Yes.
8720. By the Commission.—Did he say, “O’Connor”?—Yes, he did. He sang out, “O’Connor, where are you? Where is O’Connor? Come on.”
8721. By Mr. O’Connor.—Did he or did he not try to find out where I was?—He asked where you were.
8722. Whom did he ask?—Me. He said, “Where is O’Connor?”
8723. That is another statement. I asked you what Mr. Hare said. Did he say, “O’Connor, I am wounded.” And you say he said, “O’Connor, those beggars shot me”; and then you give another statement, and then another. That is three different things that you say Mr. Hare said. What did he say?—I believe those are the words he said. He said, “Where is O’Connor?” and you answered in this ditch.
8724. I answered from that ditch?—Yes.
8725. You said before in you evidence that I did not answer?—I did not say so. You said, “I am here,” or something in that way. How would he know you were there then?
8726. By the Commission.—Mr. O’Connor asks, did you see Mr. Hare wounded?—I did; I saw him wounded.
8727. What did he say about Mr. O’Connor when he was wounded?—He said, “Where is O’Connor?” then he came down.
8728. By Mr. O’Connor.—I did not ask you that question, what I asked you was this: was Mr. Hare wounded before you arrived; and you said, “Yes.” Mr. Graves asked you did you see Mr. Hare wounded; and you said, “Yes”?—I did not see him get the bullet, but I saw him after sticking the gun between his legs.
8729. That is not the question. Mr. Graves asked you did you see Mr. Hare wounded; and you said “Yes.” And I asked you did Mr. Hare come up after he was wounded; and you said, “Yes.” I only want a plain answer to this: was Mr. Hare wounded before you arrived—before you overtook him?—I do not think it.
8730. You do not think it?—No; I was not close to him.
8731. Then my question was: did you hear Mr. Hare speak?—I did hear him speak.
8732. Whom did he speak to?—I do not think he spoke to anyone in particular at that time till he turned round. After firing his shots he turned round.
8733. I have not come to that yet. Mr. Hare, you state, spoke to no one in particular—did he speak generally?—He spoke to me by name.
8734. That is somebody in particular?—Yes.
8735. Then he spoke to you?—Yes, he did, and to you.
8736. You state that he spoke to nobody in particular, and the next minute you say he spoke to you and to me by name?—I do not say so.
8737. You do?—You want to make me say so.
8738. By the Commission.—The question is this: did you hear Mr. Hare say, “I am shot”?—I did.
8739. Did he say that to anyone in particular?—No, not at that time.
8740. By Mr. O’Connor.—I ask then did not you hear Mr. Hare address me by name, and tell me that he was wounded?—He said to me, “Where is O’Connor?”
8741. That is a different thing altogether?—And you answered him.
8742. By the Commission.—Did you consider that he spoke to you—addressed you, when he said that?—I did.
8743. By Mr. O’Connor.—Did he call me by name; the witness has said that he called me by name, and said, “O’Connor, those beggars have shot me”?—Yes.
8744. You state that Mr. Hare left the railway platform?—Yes.
8745. Did you accompany him?—No.
8746. How do you know he went back then?—I did not see him go down to the gate; I saw him go to the direction of the railway.
8747. You said in your evidence that he went to the railway?—Where did he go? He went in that direction.
8748. As you did not accompany him you say you do not know whether he went to the platform. He may have stopped short of it. You say then he came back again?—Yes, he came back again.
8749. Was not it quite possible that Mr. Hare never went to the platform?—His hand was bandaged up when he came back.
8750. I have witnesses to prove that he never left the platform after he arrived there?—You have no witnesses that can prove that.
8751. Again you say that you cannot tell whether he went to the platform or not; he went in that direction?—I saw him going in that direction.
8752. At what period of the fight was it you came to my position and asked me to come with you to place the men?—About ten minutes.
8753. Ten minutes after Mr. Hare left?—About eight or ten minutes, I suppose.
8754. After Mr. Hare left?—Yes, during the time that I went down from the corner, when I saw Rawlins coming along the railway line, I ran down to meet him at Mr. Stanistreet’s house, the station master’s house. I saw there was no ammunition, and I told Mr. Stanistreet to leave the house and take off his coat and run up to you.
8755. Did anybody hear you ask me that question?—There was nobody there about except the two black trackers.
8756. You asserted that you asked me that question?—As sure as I am sitting on this chair, I asked that.
8757. By the Commission.—You swear that?—I swear that.
8758. You also swear that you saw Mr. Hare going to the station wounded, and that he came back bandaged?—Yes, I do.
8759. By Mr. O’Connor.—How many times did you go to the railway station?—During the whole day?
8760. No, during the time up to Mr. Sadleir’s arrival?—Once with the rifle, before Mr. Sadleir arrived.
8761. When was the second time you came to me?—The second time?
8762. Yes?—Only the time I came with Mr. Sadleir I never went near you.
8763. That was the second time?—That was the second time.
8764. You do not remember coming to me and telling me about the Kellys escaping?—I never went near you.
8765. You did not give me that information about the rifle?—I did not; I never spoke to you.
8766. Did you tell any one else that you found the rifle?—Yes, I told Mr. Sadleir.
8767. Did you tell any of the men?—I told several of the men; any of the men that were upon the railway station and the gentlemen of the press.
8768. Then some one else might have told me that you found the rifle?—Yes, some one might have told you.
8769. Then when Mr. Sadleir arrived did you inform him that I refused to assist you?—I did not. I told him where you were.
8770. You did not tell him I refused to assist you?—No, I did not.
8771. What was the first time you saw me after I left my position, left this trench?—I do not remember seeing you till about ten o’clock, I think, after the prisoners coming out.
8772. And not the time they were coming out afterwards; was it with Mr. Sadleir, or how?—I saw you up towards the railway station.
8773. You did not see me with Mr. Sadleir, when the prisoners were coming out?—No. I was close to Mr. Sadleir, always with him; I do not remember seeing you there.
8774. You say that when Mr. Hare called out to me to surround the house I did not do it?—You did not.
8775. What do you mean by “surrounding the house”?—I mean to place men all round the house, not to let one escape.
8776. You looked upon yourself as the officer in charge of the white men and I was in charge of the blacks?—Yes.
8777. And I did not surround the house with my men?—No.
8778. Are not you aware that the black boy “Hero” was one of the first out through the wicket gate—sworn to in evidence?—No; I know Barry told me he was a good man.
8779. By the Commission.—And did come through?—No, he did not tell me that.
8780. By Mr. O’Connor.—Then if it was a fact, and the men were assisting?—They were—what I saw of Hero and this man Kirkham.
8781. They were assisting to do the same work as you were—to keep the outlaws in the house till the daylight?—They were.
8782. Now, although you say you did not consider that I was an officer over you or in the force, do you state that Constable Kirkham was not under me?—Under you?
8783. Yes, under me?—I did not consider he was under you.
8784. You never did?—Never.
8785. You never were aware that he was transferred to me?—No, I never was. I was well aware that he was in charge of the blacks, and any time they were out Kirkham was with them. Whenever I went out with the blacks I was always told never to interfere with them—to leave everything to Kirkham.
8786. Whose orders to you were those?—Through Sergeant Whelan.
8787. From whom did they come to him?—Mr. Nicolson.
8788. Mr. Nicolson then would be in a position to say where I got the instructions from?—I do not know anything about that.
8789. Then you consider that Constable Kirkham never had anything to do with my command, and that was the reason why you ordered him to keep such a position?—Yes.
8790. And were very much annoyed, or angry we may call it, when you found he was with me?—I was not; I was angry with him to find that he left his post; it was not on account of his being with you.
8791. You were angry, I suppose, because you found he had left his post?—Yes.
8792. He was one of your subordinates, and he disobeyed you?—Yes.
8793. Did you report this to Mr. Sadleir when he arrived?—It was in the presence of Mr. Sadleir I said it. I said, “Kirkham, what brought you here?”
8794. Did Mr. Sadleir then reprimand the man?—I do not know; I went away; Mr. Sadleir told me to go on.
8795. By the Commission.—Was it when Mr. Sadleir and you came to the place where Mr. O’Connor was that it first came to your knowledge that Kirkham had left the place where you wished him to be?—That was the first time.
The witness withdrew.
Adjourned to Tuesday week at Eleven o’clock.
John Kelly further examined.
8796. By Sergeant Steele.—Did you hear me tell the men who came from Wangaratta to scatter round to the back to prevent Ned Kelly getting away?—I do not remember that you said so.
8797. I wish to show tha.t the report furnished by Mr. Sadleir in reference to the outlaw Kelly was based on the report of Senior-Constable Kelly, and that I was never applied to in regard to it, though I was the senior officer on the ground at the time?—I never wrote a report.
The Chairman (to Sergeant Steele).—You will have an opportunity of referring to these points in giving your own evidence, and you will then be on your oath.
8798. By Sergeant Steele (to the witness).—Were you called upon by your senior officer to send in a report?—No; only about the reward.
8799. Did you make a report verbally?—I may have done so.
Mr. Sadleir.—No doubt he did make various statements to me, and Sergeant Steele objected to some statements in my report and was allowed an opportunity of forwarding his own view. All the reports, together with his remonstrances, are in the office.
8800. By Sergeant Steele (to the witness).—Did you furnish a statement to the newspapers?—I did at Glenrowan, and you made a statemnnt at the same time.
8801. Was the statement in the Age of the 25th a correct account of what transpired that morning?—I am not aware what it is.
8802. Have you not read it?—I have, but it is a long time ago.
8803. By the Commission.—Did you and the others at Glenrowan make certain statements to the reporters of the press?—Yes.
8804. Did you do it by making a verbal statement which was taken down by a member of the press?—Yes, there was one reporter there.
8805. Did he ask you to give a detailed report of what took place, and he took it down verbatim?
8806. Did any other members of the police force do the same?—Yes.
8807. You were never asked to send in a written report to a superior officer?—No, I never was.
The witness withdrew.