THE MAUNGATAPU TRAGEDY

Hawke's Bay Times, Volume 8, Issue 412, 20 September 1866, Page 3

THE MAUNGATAPU TRAGEDY

Trial of the Prisoner si SUPREME COURT, NELSON. —I2th Sept. [Before His Honor Mr Justice Johnston.] By the arrival, on Tuesday evening last, of the s.s. * Wellington/ from Southern Provinces, we have been placed in possession of the report of the trial of the Maungatapu murderers, —-a condensed summary of which (as far as it goes) will be found as follows: — Punctually at ten o’clock his Honor the Judge entered the Court-room, accompanied by the Sheriff and Mr Poynter, 8.M., and took his seat on the Bench.

THE JUDGE’S CHARGE TO THE GRAND JURY.

Me Foreman and Genteemek op the Gband Juey,—

The occasion of our meeting together at this extraordinary sitting of this Court is but too notorious. Great crimes have been committed within this district, and great excitement has naturally arisen on the discovery of those crimes. The natural instinct of selfpreservation, which is called the first law of nature, must necessarily exercise a vast influence on the feelings of a community; and it would require the exercise of a great effort to overcome this feeling of our common nature, But it is one of the highest triumphs of civilisation and religion that, without ignoring the existence of our human passions and human instincts, they guide and control those natural feelings, so that their legitimate exercise shall lead to the welfare and general advantage of the community. The feeling of revenge has been called wild justice, and any system of philosophy which would ignore that feeling as a natural instinct, exercising a certain amount of influence, would he based on erroneous principles. But, as I have said, it is the triumph of civilisation that it guides and limits its action; and, when the first expression of indignation at great crimes is over, that civilisation enables us to approach their final investigation in a tone of calmness and reason. A distinguished writer on jurisprudence has recently said, respecting our criminal jurisprudence, "viewing it (the English Criminal Procedure) as a whole, it would he unjust to deny to it the praise of being a a generous, humane, and high-minded system, eminently favorable to individuals, and free from the taint of that fierce cowardice which demands that, for the protection of society, somebody shall be punished when a crime has been committed.” In a wholesome system of procedure, time is afforded to allow of the cessation of the feeling which great outrages create, and for the discovery of all available evidence, to trace every species of fact tending to establish the guilt or innocence of persons charged, or to discover the persons on whom rests the strongest suspicion of guilt. And, no doubt, it is a wise course which eschews precipitation on the one band, and at the same time does not allow lapse of time to exhaust public patience, or to diminish the means of establishing the truth. Now, gentlemen. His Excellency’s advisers, actuated, I presume, by this consideration, resolved on proclaiming a special sittings of the Supreme Court in this district ; and I think I may congratulate you and the country at large, that we are now able to proceed to the discharge of our duties at this time. We must take all proper precautions in such grave affairs as we are here to consider, lest the eye of reason should he jaundiced by prejudice, or dazzled by passion, or the arm of justice should smite wildly and without discrimination. Having said thus much, I shall proceed to notice the cases which are to come before the Court. His Honor then explained that the four murders of Kempthorne, Dudley, Mathieu, and De Pontius would be necessarily the subjects of four separate indictments. On Sullivan’s evidence he said, —I understand that leave will be asked from the Court to allow one of the parties charged with the crimes, although he was not committed for the offence—l mean Sullivan —to go before you to give evidence in this case. Now, on the assumption that an accomplice will he offered as a witness in the case, I may without travelling into the details do my best to make you aware of the leading features of the case; and 1 will ask you first to consider the case apart from the evidence of the accomplice. It. may he that his evidence will not he required, that there will he sufficient proof without the evidence of the accomplice. His Honor then shortly reviewed the case as it would stand without Sullivan’s evidence, and concluded his remarks on this case by saying The doctrine regarding the law of evidence

of an accomplice is this; in strict law a man may he convicted on the evidence of an accomplice, without any corroborative evidence, but judges usually advise jurors, and juries generally follow their advice, not to convict unless the evidence of the accomplice be corroborated by that of other witnesses in important parts, not only as to the offence, hut also as to the identity of the parties who committed it. With regard to Sullivan’s evidence, that was taken before the Magistrates, where he was liable to be crossexamined ; and if his statement then was the only one made by him—made after having heard all the other witnesses in the case —it was to he considered how far he was actually or probably adopting the evidence he had heard, and concocting a story to agree with that. But lam informed that this was not the first statement he had made, and that he had made the same statement to the police long before the time when the evidence was given before the Magistrate. This makes a considerable difference, and renders his statement less open to objection than if ; it had been made for the first time after he had heard all the evidence of the witnesses. You will hear his statement from his own lips, and he able to ascertain whether it is in keeping with truth and probability, and whether the' time and place and other circumstances are corroborated by other witnesses, No doubt Sullivan, in making this statement, or confession, was actuated by motives either of obtaining pardon or reward, for he knew, as you now know, that he was not only charged with complicity in these murders, but also in the other murders ; and therefore he must have had interested motives in making his confession. It is true that the highest authorities in England have recently ruled that it is wrong to accept the testimony of accomplices until after they have been acquitted or convicted, and sentenced, so as the witness maybe free from the influence which the hope of pardon or the fear of punishment may have upon him. But in a case like this, when the accomplice is charged with several crimes, and his evidence is deemed necessary in one case, it may be impossible practically to apply the principle just mentioned. His Honor next adverted to the murder of Battle, and pointed out that Sullivan’s confession on this point would only go as evidence against himself. On Burgess’ statement he said,- —You will also be asked to take into consideration the judicial statement made by the prisoner Burgess before the Magistrate, and in which you will observe that while Burgess appears to admit his own participation in the crime, he throws the greater part of the guilt on another. I am bound to tell you, and you cannot shut your eyes to the fact, that his statement is not made on oath, and that he was not liable to cross-examination; and that, therefore, though the statement is evidence against himself, it is not evidence against anyone else. THE TRIAL. At about twenty minutes to one o’clock the Grand Jury brought in true hills against the prisoners Burgess, Levy, and Kelly, for the murder of Felix Mathieu, John Kempthorne, James Dudley, and James De Pontius, and thereupon the three men were brought in, and placed in the dock, and the several in-

dictments read to them, charging them with the murder of Felix Mathieu. On being severally called on to plead the indictment— Burgess said—l have already acknowledgedbefore God and the public that I am guilty of these awful murders, and I do not mean to depart from that now; hut for the sake of form, ! shall plead Not Guilty. Kelly pleaded Not Guilty.

Levy pleaded Not Guilty.After that the pleas were put in, the prisoners asked to he tried by a special jury, which was ordered by the Court. Kelly said—l understand lam not to be tried until Monday. The Judge-—Whb told you that? Kelly—l heard it this morning on my way down in the coach.

The Judge said that a misleading statement of this kind had appeared in one of the papers, and he censured the publication of such unfounded assertions.

Kelly then made a rambling statement, purporting to complain of the evidence given in the Magistrate’s Court by one of the medical witnesses respecting the weapon which may have caused the stab wound in Mathieu’s body. ‘ In reply to the Judge, Burgess, said he was undefended by counsel ; Levy said that Mr Pitt would defend him; and Kelly said he was prepared to go on in his own defence. ‘

The names of the Special Jury were called over.

Levy challenged two of the Jury, and Kelly also two. ■ ' The Judge asked the prisoners whether they had been supplied with writing materials and was answered in the affirmative. ‘ The first, indictment against the prisoners was for the murder of Felix Mathieui ' Mr Hart then addressed the Jury for the prosecution. He said, in the face of the possibly very extendedinquirieswhich.it may be necessary to enter into in this case, he would not detain them by . any remarks, upon tho importance and gravity of the circumstance attendant on it, which happily were but rare in the Colony. He was able alike to congratulate the Crown and prisoners that the case was to be tried by a special jury by those who would most likely be free from the prejudices which beset a common jury. Before stating the facts of the case he would state that there were many circumstances in connection with it which although trivial in appearance, would require the utmost attention on their part. The three prisoners were first indicted for the murder of Felix Mathieu. He was a respectable storekeeper residing at Deep Creek, and together with three others, left Deep Creek for the purpose of coming to Nelson. The learned counsel then went briefly through the evidence, which it is unnecessary we should follow.

Thomas Brunner, a surveyor, deposed to having mapped the road over the Maungatapu from Nelson to Canvas Town.

Copies of the map were produced and handed to the judge, jury, Mr Pitt, and to Kelly, and Burgess, who were undefended. The road is distinguished by letters marked along it in various parts, and an explanation will be necessary to enable readers ,to follow the evidence: —A. represents the spot where Battle’s body was found. Next comes Franklyn’s Flat. Bis a spot where a tree was found lying across the road, but under which a horse could pass. Cis the rock cropping out of the ground, near to the creek up which the men were found. M mouth of the creek where it embouches on the road. N represents the point in the creek up from which the bodies of the murdered men were found. Dis the spot where the body of Dudley was found; E where that of Mathieu lay; F, Kempthorne; G, Pontius, as stated by those who found the bodies. K represents the spot where the body of the horse was found; HI where swag was found. JL is where the old chimney stands, on the Nelson side of the Maungatapu. The question having arisen as to whether the undefended prisoners or Mr Pitt, Levy’s counsel, should first cross-examine the witnesses, it was decided that the undefended men should do so, Burgess saying I merely stand here as an expert in this awful tragedy; I do not anticipate any advantage to myself, but I, on consideration, should wish to crossexamine Sullivan before Mr Pitt.

Mr Brunner was cross-examined shortly by Burgess, as to the various positions marked.

[The Grand Jury here entered with a true Bill against Burgess, Kelly, Levy, and Sullivan, for the murder of James Battle.] The Judge—-It will be necessary to take the pleas of the prisoners in this case as to the jury by, which they will be tried. You will see the reason by-and-bye. Let Sullivan be sent for.

Sullivan was brought into Court, and placed in the dock with the other prisoners. The Judge—Prisoners, do you wish to be to be tried by the special jury ? The prisoners, Burkess, Kelly, and Levy expressed a wish to be so tried, but Sullivan said he was indifferent on the subject. It was then agreed that the trial should be by a special jury. To the question, whether guilty or not guilty, Burgess said he was guilty, but as a matter of form, and to forward' the ends of justice, he would plead not guilty * The other three prisoners also pleaded not guilty. , W, Flett, a police constable, was next examined, and described the position in which., he found the bodies.

He was cross-examined at some length by Burgess, but nothing particular was elicited.

C. W. Davis, .another constable, also deposed to. the position in which the bodies, were founds and differed slightly, from the previous witness on the matter, upon which Burgess said the witness is right ; the diagram, wrong. lam the unfortunate man who did the . deed, and therefore X must know.”

F. L. Vickerman, a surgeon, deposed to having examined the bodies, and described the nature of the. wounds.

The other witnesses were then examined, and the Court adjourned.

• Thursday, 13th Sept. The Court opened at nine o’clock, and Sullivan, the accomplice, was put in the witness box. Mr Pitt (Levy’s counsel) objected to his evidence being taken, on the ground that it ' was not proper to admit him as King’s evi-" dehce while still charged with another offence.

His Honor over-ruled the objection, and in the coarse of his remarks said of Sullivan, —ln the present case there is not the smallest ground of any kind for this witness believing, or being led to believe, that his giving evidence in this case will in any case free him from the consequences of the other crime with which he stands charged. I shall very carefully and very solemnly warn the witness against that. After some further remarks, —■ John Joseph Sullivan (who had remained in the witness box while the debate on the admissability of his evidence was going on) was sworn.

The Judge then addressed him—Sullivan, you have , heard what I have just said respecting you? Sullivan—l have, your Honor.

The Judge—Then it is my duty to tell you that, ! whatever motives may have induced you to make the statement or confession you have made, you labor under the strongest possible delusion if you suppose that the manner in which you give your evidence to-day will have the slightest effect on the result of the trial of the charge of murder for which you are indicted. Sullivan —-I shall confine myself to the truth, your Honor., He then proceeded to give at length the evidence which we have already published, when he gave it in the Resident Magistrate’s Court.

The Judge then said—Now, Burgess, it is your time to cross-examine the witness. Burgess-—I dp not know, your Honor, being inexperienced in such matters, what latitude I am allowed in putting questions to the witness. What I wish to do is merely to forward the ends of justice. The Judge—The Court cannot admit that you are here as an advocate of justice. Your position is that of a prisoner on trial for a capital offence, who has admitted being guilty, yet pleaded not guilty in order, as it appears, to have an opportunity of accusing another. 1 must hero inform you that you cannot state facts which do not appear in evidence. If you do so I must stop you, and you must only cross-examine on matters which are relevant to this case.

Burgess—When did you arrive in the colonies, Sullivan ? Sullivan—l arrived in Tasmania in January, 1840, as a prisoner of the Crown; lam an expiree convict of six-and-twenty years standing in the colonies; I arrived by the Canton; I was tried in England, at the Central Criminal Court, Old Bailey, for robbery from a ship; I did not hear the sentence; It was either seven or fourteen years; I think seven because I only served seven years; I was first at Newton,' in Tasmania; I was afterwards at Port Arthur, in 1848; I was a prisoner for five years in Van Dieman’s Land; and I never never have been tried or charged with felony, or any other crime that could constitute felony, since I arrived, for a period of eighteen years, until I was connected with Burgess and the others ; I was sent to Port Arthur from Victoria, in 1848.

Burgess—Ah! Were you ever in the bush in Van Diemen’s Land ? or did you ever steal a boat while you were a Crown prisoner there?

Sullivan—No,, never j I arrived in Victoria in 1845.

Burgess—Were you an escaped convict? Sullivan—l was; I arrived as a passenger in a ship; my employer in Launceston afterwards Mr John Crooks, merchant; when I escaped from Tasmania, I was holding an indulgence, and, like many others, I thought I should never be missed; I was in Launceston in 1851, 1852, 1853; I was sent to Port Arthur because I had escaped ; a person to whom I used to give money informed against me, and I got only a nominal sentence because of my previous character; I got twelve mouths at Port Arthur; escaped convicts were usually sent to Norfolk Island.

Burgess—When did you go to reside in Victoria permanently?"' Sullivan—ln September, 1853, to Sand-, hurst. New Bendigo; I was a storekeeper there; I went to Wedderburn in 1854, and never was a way from it a week until I got acquainted with you at Hokitika; I did not know Detective O’Neil; I was once stuck, vp by bushrangers; I knew one of them ; two of them have been executed since, and one U doing penal servitude; I do not know

Ilia name; they stopped about thirty men that day ; I reported this sticking-up to the Inspector of Police; some others were taken &a early as eight in the morning, and my trap was stopped on the road at two; I reported for the furtherance of justice; one of the police got shot; I don’t know the same of the man as Gipsy Smith ; he went by the name of Turner when he kept a store at Sandhurst.

Burgess—Were you ever caricatured at Wedderburn as in the act of choking two men, one in each hand, and your wife rifling their pockets? Sullivan—No, never; I never saw such a thing. (To the Ju<|ge—) I wish your Honor would ask him not to speak about my wife’s name ; I cannot go on if he does. (Here he stooped his head over the box.) The Judge—l cannot stop him. You need ndt answer questions unless you please. ■ Sullivan (in a subdued tone) —I shall endeavor to answer all he asks.

Burgess—Were you suspected of horsestealing at Wedderburn before leaving for the West Coast ?

The Judge here interposed, and pointed out that witness need not answer the question, and that these questions had nothing whatever to do with the case of the murder. If a question was put to damage the former character of the witness, and even if he answered wrongly, Burgess was not entitled to prove that it was wrong, but he must accept the answer.

Sullivan—l’ll answer him your Honor. I never was suspected of horse-stealing. Burgess—What female was that you had at Hokitika.

Sullivan—None; I know Walker, landlord of the Hope and Anchor Hotel at Hokitika ; I owed him money; two weeks board while waiting for you, when you were in the lock-up.

Burgess—How did you become acquainted with me ?

Sullivan—You became acquainted with me rather —I was in Hokitika, and I brought with me a considerable sum of money, what X call a considerable sum, and began to go to the theatre and to a hotel, and I used to see you aud Kelly iu the theatre with women, and we used to meet, but did not speak; on the 27th April, Levy stopped me iu the street, and took me too a man named Solomon, near the Jockey Club Saloon, and then introduced me to you to Kelly, and to a man who attempted to rob me of half-a-sovereign, and I gave him in charge; I did hot prosecute, because you and Kelly got me away in a boat to the South Spit; I did not go on Sunday to rob Mr Parr at the Ahaura river; I went with you and Levy to rob Mr Kerr, the banker, at Boss; because on the previous night when Burgess and Kelly and Levy took me away to the South Spit to prevent me from appearing against the man who stole from me, I came home the worse for liquor; Burgess afterwards went to a house in a back street and left me, and they went from that house and robbed a store; I was called out and given £, 5, as proceeds of the robbery; they stole a cash-box with i>29 in it they told me, and I saw Burgess burn a Bank of New South Wales cheque for .£2OO. Burgess—Were you a witness in my behalf when I was charged with the Camp robbery ?

Sullivan—l was. Burgess —State the evidence you gave on that occasion.

The Judge—l do not think this is relevant.

Burgess—lt is a matter of direct perjury, your Honor. The Judge—Then the witness is not bound to answer.

Burgess—Did you perjure yourself? The Judge—You need not answer that question. Sullivan —I refuse to answer.

Burgess—Did you swear that I was in your company when the man Chamberlain found and gave me some revolver cases ?

Sullivan —Yes, I did. Burgess —Was it the truth ? Sullivan —I refuse to answer. Burgess—Did you charge this same Chamberlain with this robbery of the Camp ? Sullivan—No.

Burgess—You went with me to the Grey ? Sullivan—Yes, and stopped at the Provincial Hotel, and stopped till the following morning. I came away with Kelly at six o’clock, before daylight, in the morning. Burgess —Did you go with me to rob Mr Wilkie while at the Grey on the Sunday afternoon ? Sullivan—l did. Burgess—When did you murder Dobson ? The Judge—You need not answer that question.

Sullivan—l will answer him, your Honor. I saw Mr Hobson lying dead in the bush. His body was shown me by two men. Burgess—Was the man Wilson at Hokitika one of the two men ?

Sullivan—Yes, he went by the name of Murray. k The Judge—l can see the drift of these questions to be apart from the case altogether. I can’t see how they can be relevant to the murder of Mathieu.

Burgess—lt boars a great deal, because 1 was privy to the murder of Dobson; and this man Wilson was with me at the Grey, and Sullivan has since charged him with the murder. To Sullivan—How far was the place you saw the body of Dobson from Greymouth ?

Sullivan-—About seven miles. The Judge—Have you charged Wilson with the murder of Dobson ?

Sullivan—l have not charged him. I gave information relative to the murder of Dobson, against a man named Wilson or Murray. He was one of the men who showed me the dead body of Mr Dobson. Burgess—Did you go with me on purpose to murder Mr Fox, the gold-buyer, at the Grey ? Sullivan—Yes; Wilson took the fire-arms; they were always taken to a Jew’s house at night, until he refused to have them any longer. I took the arms on hoard the Wal laby. Burgess— Have you given information' against the man who kept the arms for you ? Sullivan—No ; I left the arms at a publichouse, kept by Cross.

Burgess—Did you give information against Mr Do Lacey ? The Judge objected to this question, and ruled that it could not be put. Burgess—Did De Lacey see you on the road the day that you murdered Dobson ? The Judge—He has told you that he did not murder Mr Dobson, and you cannot put the question thus.

Burgess—Well, the day you saw the murdered body of Dobson ?

Sullivan —Not that day, but the day before.

Burgess—ls be a witness against you for the murder of Dobson ?

Sullivan—No, I think he is more like a criminal than a witness.

The Judge—He cannot be a witness against him, Sullivan is not charged with that murder.

Burgess—But, your Honor, there is a proclamation out giving his description. The Judge—lt has never been before the Court

Burgess—Did you propose that as there was probably gold on board the Wallaby that we should seize the ship ?

Sullivan—Never; such a thought never entered my mind.

Burgess—Who took the large knife from on board the Wallaby ? Sullivan—l saw Levy take it. [Handle of knife produced and identified by witness.] Burgess—Why did you murder that poor unfortunate man, Mr Battle ? The Judge to Sullivan—Don’t answer the question.

Sullivan—Yes, your Honor, I’ll answer it. I did not murder him, neither did I see him murdered. I was told he was murdered, and I know about the spot where he was taken.

The Judge—The Court cannot allow this to go on. It is most irregular, and has nothing to do with this case. You must not answer.

Sullivan—Well, your Honor, I won’t' answer.

The Judge cautioned Burgess to limit the scope of his questions, which were beyond the limits of the loosest cross-examination.

Burgess—You said I loaded the guns on Monday night, at Canvas Town.

Sullivan—Yes, so you did; I saw you load them, and the pistols too, and cut the bullets; you put a bag on one window, and Levy’s macintosh ou the other, so that nobody should see what we were doing; we staid up later than the storekeeper that night.

Burgess—Why were you not allowed to go into the bush with those four unfortunate men whom we took up the creek ? Sullivan—l can’t tell you; you would not allow me to go. Burgess—Were you privy to any arrangements of ours the previous night ? Sullivan—No. Burgess—Were you considered as our equal ? Sullivan—l don’t know, not altogether; I was in some things, but I was rather your slave. Burgess—Were you in our confidence ?

Sullivau—Not altogether; I was not allowed to know much, but was kept in the dark about some things. Burgess—Why didn’t you stop Moeller ? Sullivan—l did not stop him for fear he should be destroyed like the others, and like the old man.

Burgess—Then you were privy to their murder, were you ? Sullivan—l knew Battle was killed.

Burgess—Why did you hide the shirt ? Sullivan —Because I wanted to know where I had hid the gun, that I might discover it at another opportunity. Burgess—How was it you were deputed to hide the satchel at the chimney ? Sullivan—Because you and Kelly were employed packing up your bundles, and Levy was putting out the fire. Burgess—What gold did you give to Miss Owens ?

Sullivan—A small speck, about two grains, that I found in my pocket; I believe I may have told Mr Owens that I was one of a party who got 700 ounces at the West Coast; there was a great deal of talk going on, and I may have said 7,000 ounces; on Thursday morning, at breakfast time, Owens said he knew my features, and he asked me if he had not seen rae the previous morning, drinking at the Port; and I led him to believe that he had; I did not tell you on Saturday, 16th June, that Owens had sent a telegram ; I did not tell you that night; I heard that said, but not on Saturday night. Burgess—Did we not assemble together frequently ? Sullivan—Only one night. Burgess—Our rendezvous was Edwards’ store ?

Sullivau—Yes; we met there on Friday, 15tb, and you quarelled with Kelly, and insulted me; and from that minute I intended never to meet you again on earth, and that was my reason why we did not meet till Tuesday; I was in Potter’s, the Coach and Horses, on Monday ; the subject of the present trial was spoken of; Mr Potter did not on any occasion point to me, and jocularly say, “ There is the murderer; ” he never said anything of the sort to me.

Burgess—Did you ask for legal advice when you were arraigned ? The Judge—What will this prove ? Burgess—His conduct, your Honor, He said he was prepared to confess at the first opportunity, yet he asked for legal advice and pencil and paper, and took notes before the Magistrate, and banded the paper to me past the two other men, and yet he says he was prepared to do anything against us. Sullivan—l’ll explain, your Honor ; while we were in the lock-up, it was suggested that one of us should conduct the case for all of us, and the lot fell on me ; but I would not have it, and threw the onus on Burgess, as I would not give up the £2O I had hid about me, and which I kept for another purpose; Burgess gave up his £2O note, and when Mr Pitt came he went to Burgess; I was waiting for an opportunity to give information.

Burgess—Why did you not give information when you first came into town ? Sullivan —Because I was in danger. Burgess—Oh! How far were you residing from the police station?

Sullivan—l was not in danger of being knocked down, but there was danger of not furthering the ends of justice by giving information too early.

Burgess—lf you had not been arrested, you would not have given the information ? Sullivan—Yes I should. Burgess—Did you tell the place where the body of Battle was to be found ?

Sullivan—l did not; I stated the locality. Burgess (to the Judge)—l do not think I shall ask any more questions of this man; in our phrase, your Honor, he knows too much for me.

The Judge—You had better consider well before you determine, as, if you close your cross-examination to-night;! shall not allow you to re-open it to morrow. Burgess—l find his answers are not satisfactory. The Court was then adjourned exactly at six o’clock, until nine next morning, Sullivan having been under examination for eight hours and a-half. [to be continued.]