First Hand Accounts The Police

Constable Dwyer’s Testimony

Evidence from Constable Dwyer to the 1881 Royal Commission.

Foot-Constable James Dwyer was one of Sgt. Steele’s men, described as “eccentric” by his colleagues. The following is his evidence, given to the Royal Commission on 1 June 1881.

James Dwyer sworn and examined.

9373. By the Commission.—What are you?—A constable stationed in Melbourne. I joined the police force on the 14th January 1873.

9374. Were you engaged in the North-Eastern District in the search for the Kellys?—Yes; a few days after the murders of the police by the Kellys in the ranges I made application to Captain Standish to give me permission to go in pursuit of them. I stated in that application that I would do my best to search for and capture them or die in the attempt, and now I can truthfully tell you that I faithfully kept my word.

9375. Was it single-handed you went?—No, joined in search parties.

9376. Were you out in search parties?—I was in the search parties through the Strathbogie Ranges and other places.

9377. Did you, at any time, have information so far as you believed that you were considered to be near upon the track of the Kellys?—I got information, but it was not reliable; like all others, it was untruthful. 9378. Do you consider the information was given for the purpose of capturing the Kellys, or deceiving the police?—I believe at the time it was for the purpose of capturing the Kellys, but when it is hunted up it was found not to be truthful.

9379. Do you mean it was given too late?—Too late; there was no truth in it at all.

9380. Do you think any of that supposed information was given for the purpose of deceiving the police?—Yes; at the time of the Jerilderie bank robbery we were out in Strathbogie, and the informant who led us to go there stated he saw Ned Kelly on a Friday night a fortnight previous. We were there when we got the account of the sticking-up of the bank.

9381. Might they not have been in the ranges at the time?—We never found the slightest trace of them there; and this informant, when questioned, we found was a man who had served a sentence for horse-stealing, and was a sympathizer with the gang.

9382. You consider he gave false information?—Afterwards we did.

9383. Was he paid by the Government?—I never heard so. He gave the information voluntarily, to lead the police out there while the outlaws were committing this depredation upon the bank.

9384. Do you consider that any of those that were paid by the Government were not true men I believe some of them did act with truthfulness, and did try to assist the police.

9385. Were you in a position to know who was employed?—I know Sherritt was.

9386. Were you impressed with the truthfulness of Sherritt?—I was at that time.

9387. Were you afterwards?—No. I was at Bethanga at the time when I mistrusted him.

9388. What led to that?—People that lived near him, in conversation with them, telling me that Sherritt was leading the police astray and was a sympathizer with the Kellys, and I questioned those people, and they gave me the reasons.

9389. Did you believe them?—I believed them at the time; I believed, too, at that time the Kelly gang were not in the country.

9390. Were you one of the cave party at any time?—No, I never was round there.

9391. Were you in Sherritt’s house watching?—No.

9392. In what part of the country were you principally stationed?—Benalla, Eldorado, Bethanga, on the borders of the Murray, Murchison, on the Goulburn.

9393. Where were you when the information came that Sherritt was shot?—In Wangaratta.

9394. Were you one of those who went down in the train from Wangaratta to Glenrowan?—Yes.

9395. What time did you arrive?—It was twenty minutes to five when we arrived at the place where the rails were torn up.

9896. How long did you take then to get in?—Mr. Rawlins, who volunteered to go with Mr. Hare, when the engine-driver was approaching this place where the rails wore torn up, struck a match, and the engine-driver pulled up, and we got down and went to Rawlins, who told us then, how Mr. Hare was shot and what was done up to that time.

9397. Did you hear what he said?—He said, in approaching the house, accompanying Mr. Hare and Mr. O’Connor, the verandah lit up with a volley from the Kelly gang on the police, and Mr. Hare was shot, and said, “Oh! I am shot in the first volley,” and Mr. O’Connor said, “Where?” Mr. Hare said, “In the wrist, get your men,” and, turning to Rawlins and the men, said, “At your peril, men, do not let them escape.” Mr. Hare stood in the open fire and holding the gun in his hand the blood gushed out, and holding his hand up in his button-hole he fired again. Mr. Rawlins described how he got shot and what was done after.

9398. What did you do when Mr. Rawlins told you that?—He told us, too, Mr. O’Connor was with his men and directing the men to take their positions, and he saw Mr. O’Connor waving his hand to his men to go round the house and saw himself get into the trench.

9399. What did you do as soon as you got this information?—Mr. Rawlins was talking very affectionately of Mr. Hare, saying, “Poor fellow, he had to go back for loss of blood;” and I said, “My God, you do not infer by that he is dead.” Mr. Rawlins said, “I hope to heaven no.”

9400. Did you come on from the place?—A volley had been fired from the house, I had heard. We ran to the house, and down to the railway station.

9401. How long did it take?—Five minutes.

9402. What time did you arrive?—Twenty minutes to five—we were, about twenty to five, where the rails were torn up—and Rawlins took five minutes to give his information, and then five minutes to get there. The reporters of the press came forward—Mr. McWhirter of the Age, Mr. Allen of the Telegraph came forward—and, knowing me, said, “By George, Dwyer, we are glad to see you from the city.” They pulled out their books to note the time I arrived; and I said, “As you are going to make honorable mention of it, there is Sergeant Steele, and Constables Moore, Caussey, Welsh, and Montfort.” Mr. Carringtou put it down and took out his watch.

9403. Did you tell the reporters in the morning?—This was when we first saw them in the morning.

9404. Were they able to take it down?—They had their books, taking it down.

9405. Was it light at the time for them to write?—It was coming on to dawn of day, but it was before day. Mr. Carrington pulled out his watch, and said, “It is ten minutes to five.”

Dwyer and one of the Queensland Native Police (unidentified).

9406. Was that before you went up to Mrs. Jones’s house?—It was. At this, the train conveying Mr. Sadleir and his party whistled coming into Glenrowan, and a gentleman of the press (Mr. Allen) said, “Here is Mr. Sadleir and his reinforcements.” 9407. Where were you then?—On the platform of the railway station. The whole of us walked down the platform—the reporters of the press, and Mr. Marsden, the petty sessions clerk, and all of us. The train came in, and Mr. Sadleir was the first jumped out where I was standing, and asked me, “Where is Mr. O’Connor?” I said, “I do not know, sir; I have just arrived.” At this, Senior-Constable Kelly came running down, and Mr. Sadleir saw him, and turned from me on seeing him, and asked him the same question, “Where is Mr. O’Connor?” Kelly, pointing with his finger, said, “He is up in the drain in the front of the house.” Mr. Sadleir said, “I want you to show me to him.” At this, Mr. Sadleir turned round to the men, who were all at the train at the time, and standing in a mob on the platform, and said, “Come on, men, spread yourselves round the house and assist the others, walk three yards apart, so that you will not be a target for the outlaws to fire at you.” He passed, accompanied by Senior-Constable Kelly, and went to Mr. O’Connor; and Kelly turned after showing him whore Mr. O’Connor was, and took ground to the right.

9408. What side of the house?—The north side—the Wangaratta side, where I found him afterwards. Mr. Sadleir passed on, after leaving Kelly, into the trench where O’Connor was. That was about twenty-five or thirty yards from Jones’s house. I walked down the line with Sergeant Whelan and some others towards the gate, as Mr. Sadleir was approaching the trench where Mr. O’Connor was. Ther was a shot passed me to the windward in the direction of Mr. Sadleir.  I saw the windows lit up as the volley was fired. It was at Mr. Sadleir, from the two outlaws in the house.

9409. How could you prove it was at Mr. Sadleir?—Because the whiz of the bullets was so near, I could see he narrowly escaped at the time. I heard the whiz of the bullets over the heads of the men at the rear of me; it whizzed over their heads, and they made the remark at the time, some of them, that Mr. Sadleir had a narrow escape.

9410. Where was Mr. O’Connor?—In the trench.

9411. How far was Mr. Sadleir from Mr. O’Connor at the time of the whizzing?—Fifteen or twenty yards.

9412. Nearer the railway station?—Yes; he was in the open. I got up on the road leading through the gate, and Constable Millane, on the Benalla side of the house, called me, “Where are you going, Dwyer? get under cover or you will be shot.” I looked round to see where I could get under cover, and I could see nowhere only where Mr. Sadleir went in the trench.

9413. How far had you advanced up the road then?—I had just crossed the culvert to where it was metalled and got into the drain.

9414. Had you passed through the railway fence?—No; I got into the trench down with them, and heard Mr. Sadleir express to Mr. O’Connor, “How have you got on, I know nothing.” Mr. O’Connor repeated what he had done up to that time, and spoke about Mr. Hare being shot, and spoke very affectionately about him, and sorry for the mishap he had got. At this same time the women began to scream out and yell. Mr. Sadleir said, “Oh, there are civilians inside.”

9415. Who was in the trench when you were there besides Mr. O’Connor?—There were two trackers and Constable Kirkham.  Mr. O’Connor said, “Oh, it is full of them.” Mr. Sadleir then said, “By George, if they are there, we cannot fire into it, we will be only killing innocent people.” The police at this time were firing round at the Benalla side.

9416. Into the house?—Yes.

9417. What police?—The men that came with Mr. Sadleir and Mr. Hare’s men that had spread themselves round that side; and Mr. Sadleir said, while talking about the outlaws in the house, that they could not be sure they were all in the house; and I said when we heard in Wangaratta that Mr. Hare had them surrounded, we knew they would not escape, we knew that they were right. My heart was so sure and my mind impressed that wherever Mr. Hare would come on them they would never escape, and I volunteered to Mr. Sadleir, if he had any orders to give to the men, I would take them; that was in the trench. I was armed with a double-barrelled gun and a Colt’s revolver, and I knew how to use them well. Here is some of the ammunition I had at the time—[producing the same]. This ammunition was not able to penetrate the house. And I said I am not much use with this gun here, and any orders for the men I will take them. The orders he gave were in these words: “Tell the men not to fire till they hear a whistle from me, which will be a signal to give a volley, and when they hear two whistles, it will be a signal to cease firing; and whenever they would fire, to fire about the height of a man’s head,” so that they would not kill the people inside; and if any of those civilians approach not to molest them. He said, “You will not forget that, Dwyer,” and I said, “No, sir.” I left the trench then.

9418. What sort of a whistle was this; did he tell you what sort?—A whistle with his fingers.

9419. Do you think it would be heard from where he was?—Certainly; and it would be heard on the top of the hill, which is further away. I crossed under the gully. I left the trench, and on the other side I saw Constable Milne, and repeated the words Mr. Sadleir had given me, and, while doing so, a bullet whizzed through the trees from the outlaws in the house. I passed on, and met Constable Alexander or Wilson, and I told the same to him. Constable Barry was the third man I met and gave the orders to. He said here in his evidence that he did not see me until I was going round with brandy. He was the third man I met and delivered orders to; and I told him the words Mr. Sadleir had given me, and not to fire low, as the people were lying flat on the ground.

9420. How did you know that?—I heard Mr. Sadleir calling out “All you innocent people throw yourselves flat on the ground, and you will not be shot”—that was Mr. Sadleir’s voice.

9421. Were there shots then?—Yes; they were firing from above and below, and the outlaws firing also; and the same time I heard them call upon the civilians to come out, and they would not be molested.

9422. About what hour was that?—About half-past six o’clock.

9423. Daylight?—It was drawing for day. I passed on to all the other men, Constables Reilly, Kelly, and Welsh.

9424. Where was Kelly?—In the centre, at the Benalla side, in the centre from the gully—that was foot-constable Kelly.

9425. That is the big fat constable in Benalla?—Yes, in Benalla. While delivering these orders the outlaws saw me running, and they expressed, “Knock that b—— over.” As I was running delivering the orders from one to the other——

9426. Did you run pretty smartly?—I did from one man to the other to avoid the bullets.

9427. Did you hear the whizzing?—Yes, very well, the whizzing about through the trees from the constables. Constables Welsh, Kelly, and Reilly seeing my narrow escapes, called upon me not to run about, I might get shot. If I had any word they would pass it round the line from man to man. They passed on and went to the back of the stockyard outside the fence. Constables Moore and Caussey were at the tree behind this fence.

9428. What time did you arrive there about?—About half-past six o’clock; it was daylight then, They told me they had taken up good positions, and the outlaws’ horses were standing inside the fence. 9429. Did you see them?—Yes, I did; and Constable Moore told me their object was, if the outlaws attempted to come out and make an escape with their armour on to mount the horses, they would shoot the horses and so prevent them.

9430. You knew at half-past six in the morning that the outlaws were there in armour?—Yes, that was the first time, and before that I heard them running round, and they hit their armour with the revolvers, and said, “Fire away, you ——, you cannot kill, we will put the daylight through you.” I said, “It is a very good idea, and I will tell Mr. Sadleir so.”

9431. To shoot the horses?—Yes, I looked down then, and saw Sergeant Steele, Constable Montford, and others round the north side, down by the railway fence.

9432. Did you speak to Sergeant Steele?—I did not, I saw them. My object was to see so as to tell Mr. Sadleir the house was well surrounded.

9433. You were not going round to tell Mr. Sadleir anything; you said you were going round to convey certain instructions from Mr. Sadleir. What did you say to Sergeant Steele?—I did not speak to him.

9434. To any one near him?—I did not; I saw they had taken up their positions.

9435. Were you not going down to convey orders from Mr. Sadleir to the men?—Yes.

9436. Then how was it you did not convey those orders to the men on the Wangaratta side?—I turned back because some of the men called out, “Bring us up some ammunition.” Some had only five and some only ten rounds. I was talking to Constable Caussey then behind the horses.

9437. Where did you go then?—I turned back the same road as I came, to get the ammunition from Mr. Sadleir, to bring it up to the men.

9438. You did not tell those men at the back of the stockyard that Mr. Sadleir had instructed the men to fire high?—Yes.

9439. Did you ask those men to convey that information round to Sergeant Steele and his men?—I did, to pass the word round.

9440. Which of the constables did you tell?—Constablc Alexander, I think.

9441. Did you see Gascoigne?—I did.

9442. Where was he?—He was round at the Benalla side too.

9443. Did you speak to him?—I believe I did. There are so many I could not particularize them all; and going back to Mr. Sadleir, I said “The men are short of ammunition, tell me where it is till I take it up to them.” Mr. Sadleir said, “I do not know where it is, or whether there is any at the station. Every man that came with me brought a hundred rounds, and I do not know whether there is any at the station.” Mr. O’Connor said then, “Then send for it.” Mr. Sadleir then took out his memo. book and scribbled a telegram on it for me to take to the railway station, and send it to Benalla for ammunition.

9444. Where was Mr. Sadleir and Mr. O’Connor at this time?—In the trench. I met Mr. Sadleir out of the trench; he was standing in a very dangerous position. The bullets were whizzing round him, and his bravery at that time cheered me. My feelings towards him were that of a brother, and I would follow him to the mouth of the outlaw’s gun at the time.

9445. Where was he standing?—He was out on the open.

9446. Was he outside the railway fence?—He was near the fence leading up to Mother Jones’s house, but still partly in the trench, partly covered like.

9447. What time would that be that you got back to Mr. Sadleir and Mr. O’Connor?—It was before he gave me this paper.

9448. What time was it that you were at the stockyard-half-past six?—I cannot mistake, because I looked at my watch.

9449. What time was it then?—Twenty-five minutes to seven. He gave me the paper, and I left, and went up to the railway station. Approaching the railway station, Mr. McWhirter and Mr. Allen came forward and said, “What is it, Dwyer?” seeing me with this paper in my hand. I said, “It is only a telegram for more ammunition.” I then asked where was the station master, as I wanted to send this telegram. Mr. Stanistreet came forward, and I gave him this paper, and he sent it forward to Benalla.

9450. Was there any ammunition at the station?—No. Mr. McWhirter said, “Why, Dwyer, one of the outlaws is out in the bush, and the men are firing at him.” I looked up, seeing where they were, and saw Ned Kelly at the time. He had on a grey top-coat. He said, “Fire away, you b——s, you cannot kill me; I am encased in armour.

Dwyer with shotgun following Ned’s capture.

9451. You heard that?—Yes; and said, “Come out, boys, and we will lick the lot of them,” beckoning to the other two outlaws, “Come out, and whip the lot of them; Oh, you b——s, we will put the daylight through you.” I ran away from the reporters. Allen had hold of me by the right arm, keeping me back, saying, “Do not, Dwyer, you may be shot;” and tearing myself away from him, I fell on my right side; he had such a grip of me; and the first man I met was Constable Bracken, behind a tree, after crossing the railway fence. He said, pointing with his finger, “There is Ned Kelly.” I said, “Why not rush him; I am told he has armour on, you cannot kill him.” I heard the police on my left say, “Certainly, boys, let us rush him,” and on looking I saw Senior-Constable Kelly. I was then rushing up to rush Ned Kelly, and when about twenty yards I fired one barrel. At this time Ned Kelly was crossing a dry creek towards the log where he fell.

9452. What did you fire with?—My shot gun. Ned Kelly was then walking towards the dry creek coming down, and he turned round to fire at me, covering me. I was looking down at my gun to pnll back the empty cartridge, I heard some one call out, “Look out, Dwyer, he has you covered.”

9453. Who was it?—I did not know who it was at the time. I heard afterwards it was Mr. Rawlins—he told me so. While he was firing, Sergeant Steele fired at him.

9454. Did you see Sergeant Steele?—I did, and Ned Kelly dropped down. He was near the dead tree, and dropped down on his haunches like this—[indicating the same],and when Sergeant Steele was running up, Ned Kelly at this tried to shoot him with his revolver, and Sergeant Steele grasped it and turned it over.

9455. Did you see that?—Yes, we were running up. Senior-Constable Kelly, Bracken, and I were running up at the time. Sergeant Steele was the first and us three after; Sergeant Steele was at his head.

9456. Then yourself; Bracken, and Senior-Constable Kelly were all rushing at the outlaw when Sergeant Steele fired and closed with him?—Yes.

9457. You said Steele shot at him, and he fell as he shot at him?—Yes. 9458. And as he was firing he held the revolver that way?—Yes,  and Steele rushed forward and pulled it  out  of  his  hand  and  laid  it  by  his  side. I  vaulted  over  the  log  and  got  at  Ned  Kelly’s  feet as he was bending on his knees. Sergeant Steele had him with his left hand across his neck, this way—[indicating the same]. Senior-Constable Kelly was standing behind, Bracken had hold of Kelly’s left arm, and I was in front. Kelly was trembling with fear, and said, “Do not kill me, let me live as long as I can. I never injured one of you.” The helmet fell off as he was firing.

9459. After or before the revolver was taken?—Before it was taken.

9460. Did you see the railway guard Dowsett there?—He was about the fourth or fifth man that came up. Constable Montfort was about the same time, about the fourth man, and after him Dowsett, and then the reporters of the press.

9461. How long was it before Dowsett came ?—Not five seconds.

9462. Did you see Dowsett fire before you reached Kelly?—No, the first I saw of Dowsett was under the log with his head out.

9463. Did you see him fire?—I did not.

9464. Was that the log Ned Kelly was behind?—No, it was lower down, towards the railway fence. Senior-Constable Kelly was nearer the fence than Dowsett.

9465. It is said you wanted to make short work of him on that occasion?—I never made use of that expression.

9466. That you were going to finish him off?—I never made use of that expression.

9467. What did you say?—When he said he never injured any of us, I said, “You d—— wretch after your shooting my comrade and Mr. Hare, and when poor Kennedy was begging his life of you as you are begging yours of us, you shot him like a dog.”

9468. Did you give him a friendly kick?—I did not. The kick I gave him was the kick I would give a cow to wake her up. It was to show my contempt; it would not have hurt a child. He said, “For God’s sake, let me live as long as I can.”

9469. He did not want to die?—No; he showed all the symptoms of cowardice.

9470. You did not believe much in his courage?—What roused me was having heard he would never be taken alive, and then seeing his cowardice at the time.

9471. What did you do, because it has been stated publicly that you were going to finish him off on that occasion?—I never expressed such a word.

9472. On your oath, you say all you did was when you went down towards his feet, and you said to him, when he was begging his life, that he had shot Kennedy like a dog, and you kicked him?—I gave him a tip with my boot. When the crowd was leaning over Kelly, two bullets whizzed past from the outlaws in the house.

9473. In what direction?—At the crowd of us. The two outlaws in the house fired at the crowd as they were looking at us capturing Kelly. I saw them outside, between the kitchen and dwelling part of the house. Mr. Melvin, of the Argus, called out, “Keep watch, keep watch!” addressing himself more to me. I left the crowd to go back to Mr. Sadleir, and, passing in view of the outlaws, one of them came out from the kitchen door and levelled his gun, and I did the same with mine, and he drew back; and the other police, seeing him, put a shower of bullets at him. The police round the trees at that side—Arthur and Montfort and others—fired a shower of bullets at him. I saw the bark shot off the side of the kitchen doer, where he was standing. He said, “Fire away, you b——s, you cannot kill me.”

9474. Did you see Constable Arthur before you saw Sergeant Steele shoot Kelly?—No, I did not.

9475. How long after was it before you saw him?—About three minutes.

9476. Where did you first see Arthur after you left Kelly?—When I was going back to Mr. Sadleir. I met him coming up to the crowd from where he was.

9477. How far from Ned Kelly, should you think?—This was after Ned Kelly was captured.

9478. How far was where you met him from where he was captured?—About 20 yards.

9479. Did you see him running away?—No.

9480. Did you see any of the constables firing at Kelly except Sergeant Steele?—No, I did not see any only Sergeant Steele. Passing in front of the house, two bullets whizzed at me from the two outlaws in the house, and Mr. Sadleir, seeing my narrow escape, exclaimed, “Good God, Dwyer, why are you going about in that reckless manner, you will be shot?” I said, “I came down, sir, to inform you of Ned Kelly’s capture.”

9481. Where did you find Mr. Sadeir then?—He was in the trench. 9482. Where you had left him with Mr. O’Connor?—Yes. Mr. Sadleir asked, “Are you sure?” and I said, “Yes, sir, for there is his blood on my hand and trousers”—that was his left hand laid on mine and the thigh of my trousers.   Mr. Sadleir asked who was the first man caught him. “Sergeant Steele was,” I answered, and described then how he was captured, and what I did from the time I left him.   I then went up to the station to see if there was ammunition there, to bring it to the men who had not much. Approaching the railway station where the train was, I saw Mr. Rawlins and one of the reporters of the press leaning on the carriage window, talking to Mrs. O’Connor and her sister, Miss Smith, and I heaad Mrs. O’Connor express—“Oh, if I had seen any man who could tell me how he is” (meaning Mr. O’Connor) “for I have not seen or heard of him since he left my side.” I, hearing the remark, said, “Here you are, I have just left him in the trench.”   I saw she was crying, and looked very pitifully, and, to cheer her, I said, “There is no occasion for you to fret or make yourself miserable, he is all right,” and I commenced to laugh to cheer her up.   She said, “My poor fellow, will you have a drink of brandy?”   I was dreadfully fatigued and hungry at the time, and had nothing to eat since Sunday evening, and been out all the time. She called the sister, and said, “Give him a good nip.”   I answered, “Yes, please, I feel the want of it very much.”   The sister said, “Oh, give him a good nip,” and she poured out the brandy with some milk, and also gave me the bottle of brandy to take round to the men.   I took the bottle of brandy back and the sweet cake to Mr. O’Connor, who divided the cake, and shared it with us alike. After drinking  one  nip  of  brandy,  Mr.  O’Connor sent me round the lines with the rest of it, and I gave the men as I met them a nip of this brandy.   When  giving  it  to  Sergeant  Whelan, a bullet went into a tree a foot from my  side.   I  passed  on,  and  gave  to all the men that would take it. Some were teetotallers, and would not take it, and  some of the men said, “For God’s sake, Dwyer, bring us something to cat; we are starving.”   I went  round  to  tell  Mr.  Sadleir  this,  and  to send  for  some  provisions.   He  was  then  giving  orders about the  safety of Ned Kelly at the station, when I told him about it.   Ned  Kelly  on  seeing  me,  on  my  entering the  door, said,  “Oh,  here  is  the —— whom  I  fired  my  last  shot  at.”     He   was   then   on   a   stretcher. He said, “What is your name?” I said, “My name is Dwyer.” He said, “Where are you from?” I said, “That is no matter to you.” I saw him looking wistfully at the bottle in my hand, and looking down I saw I had about a nobbler in it, and I said, “Will you have a drink of brandy?” and he said, “Yes, please, if you will give it to me.” I said, “Why would I not?” He said, “Put the glass to my lips, I cannot—my hands are tied.” I put it to his lips, and some of the brandy fell on his big beard, and he put his hand up to suck the brandy in this way—[indicating his meaning]—andlooking up at me, he said, “Give me a bit of bread, I am very hungry.” Mr. Sadleir, hearing his remark, said, “You shall have every care and attention, Ned. Go, Dwyer, and see if you can get a bit of bread for him.” I went and got some scone cakes from Mrs. McDonald’s, and Mr. Sadleir seeing from his sucking his beard that he would like more brandy, told me to fetch a bottle of brandy. Mr. Sadleir gave him the brandy, and I gave him the bread. Ned Kelly, looking up, said, “Thanks, Mr. Sadleir, this is more kindness than I ever thought to get. Mr. Sadleir replied, “You shall have every care and attention, Ned; do not irritate yourself; keep yourself quiet,” settling Ned Kelly’s head on the pillow, and some one putting cotton round his sore leg and arm. Mr. Sadleir said to Ned Kelly then, “Ned, the fate of the other two men is certain, do you think if you sent a message up to them, they would surrender?”

9483. There were three men?—Byrne was shot.

9484. Was it known to every one then?—Only from what Ned Kelly said that Byrne was shot when he was taken.

9485. How could he know?—He saw him drop.

9486. How do you know about that?—Ned Kelly said, when he saw his best friend dead, he had no more faith in them; he left the house.

9487. Did you hear him say that?—I believe I did hear Ned Kelly say that at the time. He told Mr. Sadleir they were cowards, and would not surrender.

9488. Mr. Sadleir said that “the fate of the two men is certain, do you think, if you send a message up, they will surrender”?—Ned Kelly said, “No, they are too cowardly,” and this is the time I know he said about losing his best friend.

9489. How long had Kelly been at the station when this conversation was heard by you?—It would not be above fifteen minutes.

9490. That would be about seven o’clock in the day?—Kelly was captured about sixteen minutes to seven. I looked at my watch when I got back to the trench by Mr. O’Connor, and it was then twelve minutes to seven.

9491. Were there any of the reporters about when this conservation took place?—There were not.

9492. Who was by?—Mr. Sadleir and I.

9493. Anyone else?—I did not see anyone else.

9494. Was Dowling there?—No.

9495. Did you see Dowling with Ned Kelly there?—Yes.

9496. What was he doing?—Like all the others, assisting.

9497. Did you see Dowling at the station with Kelly between seven and nine o’clock?—No.

9498. Did you see Dr. Nicholson?—Yes; while the conversation was going on, Dr. Nicholson was the first I saw come in to dress his wounds. Ned Kelly was bandaged at this time. As Dr. Nicholson came in, Mr. Sadleir told me to go and tell Mr. O’Connor to come up, that he wanted him. I went to the trench, and told Mr. O’Connor that Mr. Sadleir wanted him at the station. At this time, Mrs. O’Connor and the train she was in was whistling, going back to Benalla. Mr. O’Connor stood up in the trench, and was waving his handkerchief to her, and she was at the carriage window doing the same to him; and at that time two bullets passed from the outlaws in the house at Mr. O’Connor when he was standing in the trench; the bullets went through the railway wheels.

9499. Did you see them?—I heard the rattle of them going through the railway wheels; Mrs. O’Connor fell back on the seat, and Mr. O’Connor stood up, turned his gun and fired at the house, and said, “You ——, would you shoot my wife.” One of the trackers, while he was standing in the trench too with Mr. O’Connor there, a bullet went here, and made a trail through his hair, and he said, “Oh, I believe I am shot.”

9500. That was while you were in the trench?—Yes.

9501. You seem to have had a special gift for seeing bullets whizzing past; Mr. Sadleir described you as jumping over the bullets; did you see any particular bullets passing?—It is an absurd thing, with all due respect, to say that I jumped them. The words that Mr. Sadleir expressed I am sure could not be reported correctly.

9502. He said you were jumping about, going from point to point?—I was jumping about everywhere.

Mr. Sadleir.—Isaid as a bullet struck the ground before him he jumped.

9503. By the Commission.—Howcould you tell the bullet hit the train?—I heard the rattle of the bullet going through the wheels.

9504. But the train would make a noise?—The bullets made a noise like hitting a target.

9505. How could you hear the rattle of the bullet going through if it did not strike something?—I saw the dust of the bullet when it struck the wheel and heard the noise of it, the same as if it hit a target. The time I did jump was when I was coming to tell Mr. Sadleir, and when the bullets whizzed round me and they turned up the ground at my feet. I made a jump. when the bullet tore up the earth in front of me.

9506. When you were coming to Mr. Sadleir did any bullets strike the ground in front of you?—One bullet did, and the other passed close by me, and Mr. Sadleir heard it, and he made use of the expression.

9507. You did jump then?—Yes, that was the only time.

9508. What time in the morning was this?—Twelve minutes to seven.

9509. Daylight?—Broad daylight. I got in the trench and looked at my watch. It was twelve minutes to seven. 9510. Was Mr. O’Connor still in the trench at the time the train left conveying Mrs. O’Connor to Benalla?—He was standing straight up in the trench.

9511. Had you seen him any where from the time you arrived on the ground until the special train left in any other place except in the drain?—Up to that time I never saw him anywhere but there.

9512. What time was it when the train left with Mrs. O’Connor?—It would be near nine o’clock, I should think.

9513. Did you look at your watch about the time the train left?—No, not at that time.

9514. It appears that Senior-Constable Kelly, in his sworn evidence at Beechworth, stated that you had kicked Ned Kelly when he was down, and I find here in Mr. Sadleir’s report that you acknowledge you did so. “It will be seen from the evidence of Senior-Constable Kelly, 1925, in the examination of the prisoner Edward Kelly, before the Beechworth police court, that Constable Dwyer, 2507, kicked the prisoner when already secured by the other police. I may state that Constable Dwyer reported the circumstance to me himself, immediately after the occurrence, and expressed his regret that in the excitement of the moment he so far forgot himself”?—Yes, I told Mr. Sadleir so.

9515. When you came down and told about the capture, you said you gave Kelly a kick?—Yes, I did.

9516. The question is this: was the kick given from vindictive feelings or disgust at his cowardice?—Disgust at his cowardice, having heard his friends say he would never be taken alive, and then hearing him call out what he did, it roused my indignation against him, as I have already said. The prisoners came out at ten minutes past ten. I was then at the railway station, eating a bit of dry bread and cheese on the platform, when I saw them rush out of the front with their hands up, crying out, “We are all innocent people; we are innocent-we are prisoners.”

9517. That was the men prisoners?—Yes, I ran up, and Mr. Melvin, of the Argus, the other civilians, and Mr. McWhirter. I ran into the crowd of prisoners as they rushed out. I had my gun ready, looking amongst them for the outlaws. I was under the impression that the outlaws had surrendered then themselves. Reardon was near me at the time. Not seeing the outlaws, I said to Reardon, “Where is the outlaws?” “They are in there, sir,” he answered, pointing with his finger to the window of the house.

9518. To the room they were in?—Yes. The two were standing at the window, and going back and forwards, like this, to get an open to fire with his gun, like this-[explaining his meaning by gesture]. Mr. Melvin, of the Argus, came up and laid his hand upon my shoulder, and I said, “Go back; do you see them inside going to fire out.” He did do so, and went back to a tree, and I went back with him. I was impressed then, that if I kept with the civilians, they would not fire at me; and I kept Reardon and the others close to me until I got to the north of the house. I was in plain clothes at the time. I took shelter behind a tree. I saw them then peeping out, going to the side of the window to look out. I saw a helmet on his head, and walking back and up the passage. I saw one get out from the dwelling-house to the back kitchen; and I ran round to the north side, thinking I might get a shot at him there. A second one came after him, and went into the kitchen too; and the thought struck me to go down to the railway station, to put on Ned Kelly’s armour. I did not tell anyone of it then that I would do so. I ran down to do so; and when I went to the railway station, Mr. Craven, of the Commercial hotel, Benalla, and Mr. Ball, and Mr. Shortell, and other civilians, they were looking at it; and Mr. Craven had the helmet of Ned Kelly fitting it on. Seeing me they spoke in a friendly way, and, talking about the armour, I said, “That is the very thing I came down for. I want to put it on and rush the house, and then the other men could come to my assistance.” One of those men—I do not know which—expressed, “It is a —— good idea, but perhaps it would be better not to go. You might get shot in the encounter.”

9519. Did you see Mr. Sadleir?—Not at that time.

9520. Did you suggest that to Mr. Sadleir?—No; the armour was so cumbersome and so heavy that I abandoned that idea and went back.

9521. Did you put it on?—Yes, some of it. I took the helmet from Mr. Craven—he had not the breast-plate and the rest of it; and when I took this breast-plate, I found it so heavy I thought I would do better without it, and rush. I went back again to the same place I left, and I heard Constable Armstrong, and saw him coming up to Mr. Sadleir. Mr. Sadleir and Mr. O’Connor were at this time walking round the lines.

9522. What did you hear Armstrong say?—I did not hear him say, but he himself told me after, that he had volunteered to rush the house.

9523. Did you volunteer to Mr. Sadleir to rush it?—Yes.

9524. When?-At half-past two.

9525. What did you say?—”Mr. Sadleir, there are four of us down behind the tree, Armstrong Dixon, Montford, and I, willing to rush the house, if you will let us, and put an end to this suspense.” “Indeed I will not,” he said, “I will not sanction any man to lose his life, and you should not ask me and you should not leave where you were. Go back and stop there.” I went back again to the constables. We were then within about twenty or twenty-five yards of the house, and Armstrong said, “What did he say?” and I told him that he would not allow it. Montfort said, “Well, I will go and ask him , and he did, and he told him the same words.

9526. Did Montfort tell you that?—He told us that Mr. Sadleir would not sanction it. The outlaws came to the front at this time and fired at us. They would fire a shot and then they might be half an hour before they would fire again.

9527. What time was this?—I saw them at half-past two coming from the back kitchen and going to the dwelling house.

9528. How many?—Two; one walked after the other. Constable Welsh of Wangaratta was with me at the time, and I said, “There they go, do you see them?”

9529. Where was the last shot fired—from what portion of the hotel that you saw?—The north window of the hotel, near the chimucy.

9530. Facing the front?—Yes.

9531. At what time?—It would be about half-past two.

9532. At what time did you see them at the back?—Half-past two. 9533. Did you see them at both places at the same time?—I  saw  them  pass  from  the back to the front, and I left that position and went down to where  Armstrong  and  Montfort  were,  behind the tree, twenty-five yards from the  house.    I  remained  there  half  an  hour  before  I  did  volunteer  to  Mr.  Sadleir; and at that place Armstrong said that he had volunteered; and he said, “Will you back me up?” He is a brave constable, I know his courage. We fired bullet after bullet in at them, and we heard the heavy thud of one of them falling, like the rattle of the armour on the ground. I said, “There is one of them shot”; and I called out as loud as I could “There is one of them inside shot,” addressing the group of civilians at the station. I think Montfort went up and told Mr. Sadleir that one of them was shot inside.

9534. How far were you from the house then?—Twenty or twenty-five yards at the tree at the north of the chimney; and the four of us there heard it as plain as if the armour was thrown upon these boards.

9535. Did you see Senior-Constable Johnson?—Yes.

9536. About what time?—At four o’clock.

9537. Did you see him before that?—Yes, when he arrived and after.

9538. Did you see him when you proposed to rush the place?—Yes, and a long time before that.

9539. Where was he stationed at the time you saw the outlaws—at the back of the hotel?—I could not tell, but at the time he set fire he was at the Benalla side. Half an hour after this heavy thud we heard another thud, and Constable Dixon said, “That is another shot.” That was about an hour before the fire was put to it. And a short time after that Mrs. Skillian rode down to the fence by us; and Montfort said, “Go back, Mrs. Skillian, you cannot come in here.” She had come down from the bush, and arrived on the scene and rode to the fence, and we all looked at her. She replied in a very low obscene expression, and turned her horse and went up to Mrs. McDonald’s house and came down on foot, and walked towards Mr. Sadleir, on the Benalla side, with Mr. O’Connor and other parties. What passed between them I cannot say. About five minutes after her appearing, Johnson came up and set fire to it. I saw him coming up with straw lit and setting fire. The priest, when the house was burning, came down and took off his hat, and blessed himself, going into the door; and he said, putting up his hands in this position—[holding up his hands]—”In the name of God, men, will you let me hear your confession?” addressing the outlaws in the house. I heard him say that as he entered the door of the hotel. He passed in and out of the back, and said, “Come up, men, these men are all dead,” addressing us at the tree. The four of us ran up, and Constable Armstrong and I took Joe Byrne, who was at the far end in the passage. I took Joe Byrne by the shoulders,and Armstrong by the feet, and lifted him out. At the door Mr. Sadleir, Mr. O’Connor, and others met us, and the priest, in the crowd, said, “Go back, constables, the other two men are on the beds.” We dropped Byrne and went back to the passage. The blaze of fire was coming and we put up our hands. Steve Hart had his feet up on the bed. He was burning down to here—[pointing to his waist]—andhis feet were on the bed, and his hands in that position—[indicating the same];and his face all burnt and his blood was passing and frizzling like asteak in a pan. Looking again to the left of us, the north end near the chimney, Dan Kelly was lying in this position—[indicating the same].The left knee was crippled and his hand outstretched. His helmet was off; he had the armour on—the breast-plate; and on his neck and thighs and hand there was blood. I knew him to be Dan Kelly from the low forehead, and the description of them, and that the other must be Steve Hart.

9540. Could you swear those were the two men, Hart and Kelly?—Yes, I knew the man I saw in that position, with the black hair and sallow complexion, was Dan Kelly.

9541. How far apart from each other?—About six yards, the length of the dwelling house, one at one end and the other at the other end. Dan Kelly was at the chimney side, with his feet on the bed, opposite the window.

9542. How did they get together when the bodies were found?—They were not together.

9543. Opposite the window you say?—Yes, the full length of the house. The passage was in the centre, leading out, and we were in the passage, and saw on each side.

9544. That is one to the north and the other to the south?—Yes, the whole length of the house. We could not get to them because of the fire, and Armstrong said to me, “Come out, Dwyer, we cannot take them.”

9545. Were they dead at this time?—They were. “No,” I said, “we will have to leave them to their fate.”

9546. Did they have any appearance of having killed one another?—No, the blood I saw along the arms and neck and thighs led me to believe they were shot by the police, and that the heavy thuds we heard was their being shot.

9547. Did you see them before they were shot?—Yes, I have said so. Armstrong said, “Come out,” and I said “Yes, we will have to leave them to their fate,” and we had only just left the place where we were standing when the ceiling fell down.

9548. Were you and Armstrong the first to follow the priest?—Yes, the two first, and took out the body of Byrne.

9549. Did you go from the front door?—No, the back door.

9550. Then you must have gone round to the back when the priest went in at the front?—No, we did not stir till the priest came out.

9551. You said you heard the priest ask them to make a confession and you were twenty yards away in front of the house?—Yes.

9552. Where were you when you heard that?—At the north end of the house, the Wangaratta side, partly to the front and partly at the side.

9553. You saw the priest enter?—Yes.

9554. Did you see him come out again at the front?—No, at the back. He went in at the front and out at the back.

9555. Did he return out through the front again?—No, he went out of the back door.

9556. Then you entered at the back door?—Yes.

9557. You say you saw the priest coming out of the back door?—He went in at the front, looked at them, and they were dead, as I said, and passed out of the passage over the body of Joe Byrne, and out at the back door towards the kitchen, and said, “Come up, men, those men are all dead.” We ran round to where he was standing and passed him and went in and took out the body of Joe Byrne. The priest said, “Go back, the other two men are on the beds.”

9558. How far did you go in from the back door?—Just as far as the bar.

9559. Where were the two bodies lying when you found them?—[The witness pointed on the plan the positions he had previously referred to.]

9560. If any constables say that in taking out the bodies they got them close together would that be true?—Not true. When I came out I saw Mr. Sadleir taking Cherry out, and heard the expression,“Give me a drink of water.”

9561. If six witnesses swore that the priest came out of the front door would that, in your opinion, be incorrect?—It would be incorrect. He never entered the house after telling us.

9562. You swear that he came out of the back?—Yes, and stood between the kitchen and the back building, and no man could enter the house without my knowing it.

9563. How long was it from the priest went in at the front door, having taken off his hat and said what you said about confession, till Mr. Sadleir came to the door?—About a minute.

9564. Just time to pull out Joe Byrne’s body and to see that you could not get the others in consequence of the fire.

9565. How long would that be?—About a minute. He was up to the door taking the body of Cherry in a blanket, and I heard Cherry say, looking up, “Give me a drink of water.”

9566. Was the body of Byrne taken out at the back or front door?—The back door. Armstrong and I took it out and left it there.

9567. Is the back door out towards the skillion place where the yard is?—Yes.

9568. And the front door is towards the railway?—Yes.

9569. Do you know the tree Sergeant Steele says he was behind?—No. I saw him by a tree at the north.

9570. Do you know the tree that it is said Steele was behind?—No, I do not.

9571. Did you see him behind the tree?—No, I did not.

9572. Would that tree command that back door you spoke of?—Yes.The witness withdrew.

By AJFPhelan56

Father, writer, artist and bushranging historian residing in Melbourne, Australia. Author of 'Glenrowan' and the popular website A Guide to Australian Bushranging.

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