The following is the evidence submitted by Constable William Phillips at the Royal Commission on 9 June 1881. It is important in helping establish a timeline for the police arrival at the scene as Phillips is on record stating that both Sadleir and Steele recorded incorrect arrival times for when they joined the siege. It seems that this was in an effort to prevent any of Hare’s initial party claiming they had killed Byrne who was, by the accounts of witnesses in the inn, killed at 5:00am.
William Phillips sworn and examined.
11284. By the Commission.—Were you in the North-Eastern district during the time of the Kelly outbreak?—Yes.
11285. What time did you go there?—12th June 1879.
11286. What are you?—Mounted trooper.
11287. Were you in any of the search parties?—No.
11288. Where were you stationed?—At Benalla.
11289. You remained at Benalla?—Yes.
11290. You were never out with any of the parties?—No, not one.
11291. You remember the time the Kellys were in Mrs. Jones’s?—Yes.
11292. Were you there then?—Yes.
11293. What time did you come in the morning?—Three o’clock.
11294. Then you arrived there with Mr. Hare?—Yes.
11295. Did you go out with Mr. Hare when the train arrived?—Yes.
11296. Were you with him at the time he was shot?—Yes.
11297. How far from him?—Between five and ten yards to his left.
11298. You were more in front?—No, he was opposite the fence of the house and I was to the left, Barry and Gascoigne were there alongside of me.
11299. Are you the constable that said at the barracks that you had not captured the Kellys because they had not come into the barracks yet?—Mr. Hare asked me, “how have you not caught them?” and I said, “They have not come into the camp yet.”
11300. What did you mean?—I meant—he said, “What have you done since you have been up?” and I said, “I have not done anything, except practise shooting.”
11301. You were at the barracks the whole time?—Yes.
11302. Was that what you meant?—Yes.
11303. Did you hear Mr. Hare say he was shot?—Yes, he said, “Good gracious, I am shot,” and I thought he was larking.
11304. Did you see his hand fall?—No, the moment I heard bullets passing I fired, and he was there, shooting with his wound, right opposite the verandah.
11305. Did ho continue firing at all?—Yes, I think it was he fired the first shot.
11306. After the first two shots from his gun did you see him load again?—No, but I saw him there shooting—I know he was there shooting.
11307. Did you remain all day on the Benalla side?——No. At four o’clock Neil McHugh came out of the hotel, carrying Mrs. Jones’s boy on his back. Constable Gascoigne was alongside of me. We said to one another quietly, “If this man does not come our way, we will not speak to him.” We were right across and could see right across the verandah, and the man proceeded down and went over the bridge under the road, and I said, “Paddy, perhaps it is two of them getting away.” That was to Gascoigne.
11308. Which door of the hotel did he come from?—From the back.
11309. Did he come round by the wicket fence?—He walked straight down.
11310. When he came from the hotel what road did he take to reach the station—did he get over the fence?—He did not go to the station, he went through the railway gate.
11311. Then he must have passed in front of the hotel to get to the railway gate?—Yes, and I said, “Gascoigne, perhaps it is two of them clearing out, come on and stop them;” and we ran down to the gate and he would not stop, and one of us threatened to shoot him, and then he came back, and between us he told us they had armour and there were thirty or forty in the house, and I said, “Who is inside?” and he said, “Three, I think, there is one or two of them wounded;” and he said, “Look out in the morning, they will shoot you all out at daylight.”
11312. Did he tell you he put the armour on them?—No, he said some red-whiskered man did, I forget his name.
11313. What weapon had you?—A Martini-Henry rifle.
11314. Did you shoot often?—I fired one shot straight at the figure that was in front of the house and then got behind a tree just opposite the verandah. There was a bush fire the other side of the house, and I could see three figures plainly, and I fired about four shots at them during the encounter, and I was surprised that none fell at about forty yards distance, so I fired a couple of shots low, and they walked of at once inside, and the figure that came out the second time fired about six shots, and Gascoigne said, “That is Ned Kelly, I know his voice.”
11315. Do you know whether he went into the house then?—The way he went then, in my opinion, was round the Wangaratta end and round the back yard.
11316. Did you see him after?—I saw him at seven o’clock in the morning.
11317. Where were you then?—I was at the tree at the rear of the hotel. After I challenged McHugh I went round, and I thought Mr. Hare had not gone. I wanted to tell him about the armour, and I did not find him, and I went and told Kelly. He said, “My God they have all got away.” I said, “Never fear, they are in the house;” and I said, “I stopped a man who told me all about the armour that came out of the hotel,” and Senior-Constable Kelly stationed me at a tree here—[explaining the same]. He showed me the spot where he had found the rifle. I stopped there from about a quarter to four to six, and then I challenged the Wangaratta police.
11318. Did you see Mrs. Reardon come out of the house?—Yes, I had my back to the house, and was watching the spot where Senior-Constable Kelly picked up the rifle.
11319. Did you see Mrs. Reardon coming from the hotel?—The first thing I heard was Steele challenging somebody and firing, and then I heard a woman screaming; and with that there were from the front of the house several shots came up.
11320. Did you bear Arthur say anything?—He said, “Do not shoot—that is an innocent woman,” or “that is a woman and children”—something to that effect.
11321. Was there any difficulty in yourself, Arthur, or Steele knowing that it was a female?—Not the slightest.
11322. Before be fired you could see distinctly it was a woman and children?—Yes, it was bright moonlight.
11323. Was there any one else?—Two or three children, and I thought three or four women.
11324. Did Steele shoot immediately he challenged them?
11325. Did you hear him say anything?—First, I asked him what he was shooting at, and lie said, “By Christ! I have shot old Mother Jones in the ——;” and I said, “It is a feather in your cap.”
11326. Did you see what happened after—what did the woman do?—She was singing out, and went away out of the place. Steele was at some of the trees there, and she walked down. The fence was between her and Steele, and that was what saved her no doubt. After he fired there was loud talking going on, and screaming, and I do not know who took her away.
11327. She was taken away at all events?—Yes, and did not go back to the house.
11328. Did you see any other figure besides her?—No, only the boy.
11329. Where was he?—He was following her, and all at once I saw him run back to the house.
11330. Did you see that he had hold of a child?—No, I could not swear that.
11331. Did you hear any one challenge the boy?—Sergeant Steele was the only one who challenged them.
11332. Did you see the boy shot at?—I do not know of it. I asked him what he was shooting at.
11333. Did you see whether the boy was shot or not?—No, I did not know he was shot.
11334. Did you see whether the boy was crawling?—Walking.
11335. You could not say whether he had any one by the hand?—No.
11336. Or his hand up?—No.
11337. Did you see any man after the boy?—I saw a man at the back door, that is all. He walked out and walked in again. I did not see anything further.
11338. You got placed you say by Senior-Constable Kelly?—Yes.
11339. What time was that?—About four o’clock.
11340. Did you receive any orders from any one else during the forenoon?—None except from I Hare before he left.
11341. What did he say?—When I was with him on the pilot engine he said, “Do not fire, boys, unless you are fired on, and if anybody fall do not mind him, do not wait to pick him up.”
11342. Did he give any instructions after he was shot?—Yes, he said, “Cease firing, the women are screaming. Kelly, for God’s sake, take the men and go and surround the place.”
11343. Did he say Kelly or O’Connor?—He said Kelly first, and then O’Connor.
11344. What did you do then?—I was stationed; where I was I had a good position, and the others went round the house.
11345. Did you see Mr. O’Connor going round to surround the house?—No, I never saw him.
11346. When did you first see him?—Some time in the day; eleven or twelve o’clock.
11347. Did you know where he was?—Yes, I knew he was in the drain.
11348. How did you know?—Kirkham told me early in the morning. I said to Kirkham, “How did you not challenge those men who passed down?” I said, “It might be two of the outlaws.” He said first, “Phillips, where are you?” And I said, “Where were you when that man passed?” And I said, “The whole mob might pass for all you might know.” I left there then, and I said, “Where is Mr. Connor?” And he said, “Oh, he is up above the bridge in the drain.”
11349. Did he appear to be making fun of Mr. O’Connor as to his position?—No.
11350. What was your opinion; was he in a safe position?—He was safe, no doubt.
11351. Did you think he was able to do good service where he was?—I did not think so. I did not think he could shoot anybody that came out of the house.
11352. He could not be shot out of the house?—Oh! no.
11353. McHugh must have passed round from the back to the front to reach you?—I had to run from my post to stop him.
11354. Had he to pass round to the front and between the trench and the hotel before you challenged him?—Yes.
11355. Then any one stationed in the trench could have seen McHugh pass before you saw him?—Yes.
11356. Passed through to the gate?—He had passed over the bridge and out on the railway when I challenged him.
11357. If any one was stationed in that drain and had the command of the hotel they ought to have challenged him long before you did?—Yes, they ought.
11358. Had you been in the position the black trackers were, would not it be your duty to challenge that man coming down towards you?—Yes.
11359. And you came from your post to see that man did not get away?—Yes.
11360. When did you first go up to the north-eastern district?—About the 12th June 1879.
11361. Who was in charge then?—Mr. Hare.
11362. Were you stationed at the depot?—Yes.
11363. Do you recollect the first party of men that were ordered from the depot on the 12th December of the previous year?—No, I was not amongst them.
11364. Do you know who could give us information who those men were who were ordered up then?—When they were delayed there?
11365. Yes?—I do not know the men’s names, but I know the occurrence.
11366. From your own knowledge or hearsay?—From hearsay.
11367. The man who could give the information is dead—could any one else give the information?—No.
11368. Do you recollect there being a report that men were delayed at the depôt after being ordered up to the north-eastern district?—I do.
11369. Can you tell who can give information on that point?—I never talked to any one except Sergeant Porter on it. He is the only man who could give the information.
11370. Is he dead?—Yes. He told me he sent the men away as they had been delayed there, I forget how many hours, contrary to Mr. Nicolson’s orders.
11371. Who ordered them away first?—I think the Chief Commissioner.
11372. You were all day at Glenrowan?—When I saw Mr. Sadleir it was about half-past eight or nine and I went to him. He was down by the railway fence, and I asked him what he was going to do, that the men had armour; and he said he had heard that, but he had sent for a cannon to Melbourne.
11373. Did he say that he had been advised to send for it?—No, he did not; he said to me, “You get on a horse and ride down to Benalla, and take another telegram,” and the engine was going down, and I went with it and came back at twelve.
11374. What position did you take up when you went back?—Anywhere; there was nothing to be done when I went back. I went back to the back of the hotel, where I was among my mates.
11375. You went to the back of the hotel to your old position, at the Wangaratta end?—Yes.
11376. Did you remain there all day?—Yes, until we were told off to fire into the front of the house, when it was set fire to.
11377. Were there any shots fired out of the hotel after the time you came back—did you see any?—No, I never saw any.
11378. Could they be fired out towards the front without your seeing them?—Yes.
11379. Or could they be fired out of either side without your seeing?—I could hear the report.
11380. Could you be sure it would be a gun fired there, or somewhere near the house?—Yes, I was near.
11381. Your opinion is there were no shots fired out of the house after twelve?—No.
11382. If any others have sworn that they saw, about half-past one or two, two men come out in the small passage of the house and fire, would that be correct?—I do not think it.
11383. From the position you were in you could judge?—Yes, I could see any part of the back of the building.
11384. You say you went to Benalla and were kept in barracks?—Yes.
11385. Did you wish to go out yourself?—I would like to go out in five or six of a party.
11386. When they were going out?—There was never a party out. When I went first, there was one party went out, and none afterwards.
11387. Were you kept in contrary to your own inclinations?—We were.
11388. How many?—Al1 the men were desirous of going out to catch them, to do the best they could.
11389. Do you know the reason why you we kept in?—No.
11390. Did you ever think of any reason?—No.
11391. Was there ever any reason assigned why you were not allowed to go out?—Well, I cannot say there was.
11392. Were you told off for special duty in the barracks?—I was guarding the banks in the town of Bena1la; there were two of us doing that.
11393. What time did you see the figure of Ned Kelly?—Shortly after seven.
11394. What position did you have in relation to the position Kelly was in?—At a tree at the back of the hotel.
11395. Did you see him advancing towards you?—Yes.
11396. How many members of the police did you see around there?—Montiford, Healey, Kelly, Arthur, and I and Sergeant Steele.
11397. Did you fire at Ned Kelly at that time?—Yes, I took four or five shots before I left the tree.
11398. Were you there immediately after he was captured?—Yes, I was behind Steele when he put his hand on his wrist.
11399. How many others were close to him?—Kelly and Steele were the first.
11400. Before you arrived?—I was about the fourth or fifth; I was there when Bracken and Dwyer and Montiford came up.
11401. Did you see Dowsett?—Yes.
11402. Did you see any members of the police attempting to make their escape from Kelly?—Arthur was about ten yards from me, and Healey between me and Arthur at this particular time; and after I had fired two shots I said, “Run round him, boys; that is the only show we have with him”; and Arthur and Montiford ran round. Ned Kelly stopped then and took a look round when he heard that, and went and sat down behind the stump, and sat there for seven minutes.
11403. Did you or any other member of the police make a movement at that time that would indicate that you were trying to escape from the outlaw?—No.
11404. And the movements made by the police were for the purpose of getting into better position?—Yes; we were all like this round the hotel at first—[describing the same]. Ned Kelly did not go individually towards Steele at all, but towards the house.
11405. Then it would not be the fact for any one member of the police to say that if it had not been for his individual efforts Kelly would have been able to make his retreat to the hotel?—No.
11406. It would not be right to say that any one was showing the white feather, and trying to escape?—No; I am convinced of that. Of course when Kelly and Dowsett were behind the tree he was walking right up to them; if they stopped there he would put a hole through their heads.
11407. Did you see him when he fell?—Yes; I was right up with him.
11408. Did Steele or anybody shoot before he fell?—That I cannot say. I had my eyes on Ned Kelly, and I rail down after him, and ran full butt against a stump, where he crossed this gutter. Whether Ned fell I cannot say.
11409. Did you receive any orders direct from Mr. Sadleir after that all the day?—Yes, he sent me to Benalla.
11410. Did any member of the police come to you stating he had been instructed by Mr. Sadleir to do certain things?—No.
11411. In point of fact you received no orders but those from Mr. Hare and Constable Kelly?—Yes.
11412. As far as you are concerned no officer gave you any other order?—No; of course Mr. Sadleir sent me to Benalla with the telegram.
11413. What time in the morning was it?—Between eight and nine.
11414. Did you bear Ned Kelly call out, “Look out you will snag yourself”?—No, I did not. I was the closest to him there.
11415. Did you hear any member of the police volunteer to rush the hotel?—Yes, Montiford, and Dwyer, and all of them. I said to Mr. Sadleir to put Dwyer in the armour; he is the biggest man, and let him walk in.
11416. Did you hear Dwyer volunteer to go in that way?—No.
11417. Was that the only reason that they recommended it in consequence of his strength?—Yes, to carry it in.
11418. You were not under the impression that he could see bullets specially?—That I did not know of.
11419. Was it told you any time that Dwyer had a faculty for seeing bullets and jumping over them?—No.
11420. Did you see him skipping?—Yes, he was skipping all about the place.
11421. What reply did Mr. Sadleir make?—He said, “I am not going to lose any lives over them, they are not worth it.”
11422. Is Dwyer considered in the police, amongst his comrades, as a little eccentric?—he is considered eccentric.
11423. Is he considered a courageous man?—He is. I wish to state that Sergeant Steele has sworn on oath that he was there at three minutes past five; when I read that I did not think he would swear that; I said if he did he would get into trouble. Superintendent Sadleir’s report, dated 1st June, is wrong about the time of his arrival there—there is no doubt they have a motive in it.
11424. Where is the mistake of Steele, first?—I asked Mr. Lang, the station-master at Wangaratta, what time the special train left there in the morning, and he said, “I can tell you by looking at the book.” The time was 5.20 a.m. that it left Wangaratta. It would take them half-an-hour, so the engine-driver told me, to go down; and Mr. Sadleir says in his report of the 1st June that, after finding Mr. O’Connor, he made himself assured that the hotel was surrounded by the police, and in that he was greatly assisted by Constable Dwyer. It will be plainly seen Mr. Sadleir could never have been on the ground till six o’clock, because Dwyer never left the Wangaratta station till twenty minutes past five, and he was there on the ground to see Mr. Sadleir, and the latter and party left the railway station, Benalla, at 5.30 am. Neither parties were on the ground before six o’clock, the returns of the railway will prove it. The object is this: they found that Joe Byrne was shot dead between five and half-past, and they wanted to lie there to take the credit out of that party that were there, and that wounded Ned Kelly and killed Byrne, and kept the other men in the house.
11425. Your contention is that Byrne must have been shot before Sergeant Steele or Mr. Sadleir arrived on the ground, or their men?—Yes, I have stated that in my claim, and I have stated I could bring witnesses to prove it too.
11426. What proof have you that Byrne was shot before six in the morning?—I have got the man he fell on top of.
11427. What is his name?—John Delany, of Greta; and also Sandercook, of Glenrowan.
11428. What is Sandercook?—He is a platelayer or something.
11429. Engaged on the railway?—Yes, working about there. There is plenty of evidence to prove that.
11430. Have you anything else you desire to tell the Commission?—I only wish that you will satisfy yourselves about the time that those two trains left the two stations; there is nothing else.
11431. How will the train-book tell that when it did not come up to the station?—It was twenty minutes after five when he left the Wangaratta station, and they swore they were on the ground at three minutes past five. I told them then, but they would not listen to me, and of course I told them what their object was.
The witness withdrew.