The Nelson Evening Mail. TUESDAY, SEPTEMBER 18, 1866. SUPREME COURT.

Nelson Evening Mail, Volume I, Issue 168, 18 September 1866, Page 2

The Nelson Evening Mail. TUESDAY, SEPTEMBER 18, 1866. SUPREME COURT.

CRIMINAL SESSIONS.— SEPTEMBEtt 17m [Before his Honor Mr. Justice Johnstone. J

R. Burgess, T. Kelly, and W. LeA-y were charged Arith the wilful murder of Felix Mathieu on the 13th June last. — Continuation of Trial.

Mr. Pitt in addressing the jury said he felt the responsibility that rested on him, and felt gratified to know that the jury represented ihe intelligence and respectability of the town. He was in a position to claim for his client antecedents that would bear examination, and he had no doubt the trial now going on would prove he was an innocent man. In reference to- the evidence of Sullivan the accomplice which was deemed sufficient to connect in point, of law. it was important to reiuombcr that such evidence must be corroborated in all its material points. The counsel traced the prisoners to Canvastown, dwelt on their actions there, and the plans that were laid to intercept the party. He then proceeded to inquire to what extent Sullivan was corroborated, and said as the things were found by his information, it established no case against the prisoner Levy. The only evidence of the identity of the prisoners being on the road on the Tuesday, was Galloway, the only poison on the road that day. Tlie prisoners were not seen in company after beintr at the Heringa, till they were Fcen in Nelson. Sullivan Avas not corroborated in several particulars. The remarks of Burgess, with legard to knocking over his man; the knife taken from the Wallaby; the conversation at the port were instances that required corroboration. Guilty men would not have divided the gold in such a public place. Sullivan was not corroborated in reference •to the place and time when tiie gold Avas sold, nor as lo the meeting of the prisoner Burgess. A close examination would discover many other discrepances. Many persons saAV the prisoners in toAvr that morning, but no one saw them at the Avlutrf. The demeanor of Sullivan in the box Avas open to exception as -well as the reason he assigned for turning king's evidence. liis subsequent drawing of the money from Mr. Owens, his meditated ■escape, and his failing to embrace numerous opportunities to confess, proved that his motives were not so pure as he said they were. It Avas not till he knew the bodies must be found that, to save his own life, he made a confession. Nothing that he had said was inconsistent Avith Levy's innocence. The evidence adduced by the prosecution only proved the conspiracy of the prisoner to commit a robbery, and Avhen the lives of tAVo men hung in the balance, the verdict Avould require clear and undoubted evidence. The medical evidence had not proved that Mathieu liad met his death by violence. It was not shown lhat the wound was inflicted upon a living man, and a jury must be satisfied as to the manner in Avhich death was caused. The indications that the Avound Avas inflicted during lite, Avere not present, according to Dr. Cusack's evidence, and nothing w-as adduced to slioav whether the hemorrhage avus in a fluid or a coajulated state. It Avas not conclusively proved lhat death avus caused by a pistol bullet wound. A conspiracy to rob was undoubtedly shown, but it Avas not proved the men had not met their death by natural causes. The medical evidence Avas most scanty, and the man Mathieu might have been dead before these wounds were inflicted by any of the prisoners. The jury Avould carefully consider the medical evidence as to whether death was caused by a pistol bullet wound. Although Levy and Kelly were seen by Mr. GalloAvay with the other prisoners, this Avas perfectly consistent Avith the innocence of the former. Ihe evidence of Sullivan must be corroborated as to the persons as Avell as ro the deed. Although the jour prisoners Avere seen together at the Heringa, they Avere not seen after on the road, a fact pointing most clearly to their absence from the i-cene of the murder. The counsel commented on the statsment of Sullivan that Levy had no money, and said the evidence showed that he had a considerable sum. It did not folloAv that the finding cf money on Levy proved his complicity with the murder. He might have received money, knowing, or othenvise, that it had bejen stolen. It Avas not proved that Levy was seen at 'the bank. The conduct of the prisoner Levy contrasted favorably with that of Sullivan. He Avore the same dress, Avlrile Sulhvau changed and washed his. At' Deep Creek Levy wore

the same clothes he did at Nelson, and did not send them to be washed as Sullivan did. Mrs. Dickens also contradicted the testimony of Sullivan in some respects. The marks on the shirt and sacking of Sullivan were most suspicious. It could not be the blood of the horse, as it was planted before the horse was killed. The blood on the strap was also another suspicious circumstance to show that Sullivan was closely connected Avith the murder. There was nothing suspicions about Levy's dress, and the only thing against him was the having a larger sum of money on him than when he landed from the Wallaby, the possession of which could be accounted for without identifying him with the murder. It was not easy to sec why the prisoner Burgess might not be in the same position as Sullivan if the latter had not first made the confession to save his own life. And what weight could be attached to the confession of so great a criminal, whose appearance and conduct in the box were the reverse of a contrite man. He considered the Government had pursued an improper course in allowing Sullivan too great a latitude and too much encouragement to persist in a statement which was not corroborated in important particulars, lie hoped the jury would weigh the evidence carefully before arriving at their verdict and scrutinise the statements of Sullivan narrowly before concluding that the prisoner was guilty.

Mr. Hart addressed the jury for the Crown. He spoke in a low tone of voice, which was scarcely audible at the reporters' table. He characterised the defence of Kelly and Levy as that which could not be sustained by proof. There was abundant proof that early iv the afternoon of Tuesday all the parties were seen together, when either a robbery or murder was contemplated. It was not suggested that they went more than a few miles on the following day when it was their interest to be in Nelson. Their whereabouts in the interim had not been pointed out, either by themselves or by the parties who passed along the road. It was incumbent, on the prisoners to show where they were during the interval, which they had not attempted to do. Were there a possibility of an alibi being shown, the greatest attention would be paid by the Crown to the suggestion. On any theory of their absence they were bound to have made further progress on the road than they were known to do. A conspiracy to rob had been suggested, and if this was done with violence and arms it was mur der on the part of those who were privy to it, as well as those who were concerned in it. The Crown Prosecutor commented on the evidence for the defence, and admitted that Sullivan may have given false evidence on former occasions. The question was had he stated the truth on this occasion. There was a striking amount of corroboration, and he would notice a faw salient points. Sullivan said lie was not one of the actual murderers, and it was not disproved. The gun he threw away was not the gun he had when the deed was done. Had the gun been discharged it could not have been found capped and loaded as it was. Another proof was very striking. Mr. Shallcrass directed the search party where Sullivan had indicated, not the direct spot where the bodies were, but considerably further on, th:<is incidentally proving that he did not know the exact spot of the murders. With regard to the evidence of the banks as to the gold sold, it proved that a quantity of gold was sold the day after the arrival of the prisoners. Tlie quantities sold threw suspicion on the prisoners, although it did not establish their identity. Tlie business of a hanker was to buy gold, and not to ascertain tiie names and identify the persons of their customers. Sullivan's evidence agreed with that of tlie bankers nearly, aud the purchase of three particular nuggets, formerly belonging to the person who sold them to the deceased, was a remarkable circumstance, and it was not, suggested who bad sold them

to the bank. Sullivan's preA-arications respecting the missing men Avere not surprising, as it Avas not likely a man Avould criminate himself. Not much importance could be attached to the question of motives, but he had explained that his object was to make out a clear case, and the explanation must be taken for Avhat it Avas worth. There could be no doubt that he Avould have been in danger of his life had he given information, Avithout being able to follow it up Avith proof. The great question to decide Avas, had Sullivan spoken the truth or not. With regard to the medical evidence, it had been suggested that there Avas a doubt Avhen the wounds Avere inflicted ; a supposition that death Avas not caused thereby was irreconcilable with human experience. There could be no doubt that death Avas caused by the Avounds in question, and no attempt, Avas shoAvn in cross-examination to prove that it was not. The man did not die by his own hands, and Avas not killed in mutual conflict, it must have been by violent means, and by Avhom. The counsel traced the murdered party from the place from which they started, to that in Avhich they were found ; noticed the fact that Levy was aAvare of the intention of the party to go to the West Coast, and kneAv they had money with them ; the fact that they were seen by various parties on the road between Cam'astoAvn and Frankly n's Flat ; and also by Levistam and Fulton. Their course Avas knoAvn through Levy. All trace of the men Avas lost after being seen by the tAVo last Avitnesses. Moller was following close behind, keeping a look out in all directions, and having failed to discover them, communicated his suspicions. The use of the Avord " no," by Bowen and Moller, and admitted by them, avus corroborative of Sullivan's statements. The men must have been intercepted at that part of the road, and murdered. Several Avitnesses had denied having seen any signs of persons camping close to DAvyer's, which they must had any persons camped and lighted a fire there. Had there been any signs of a camping party there, there were abundant opportunities of proving that it existed. The progress of the prisoners ivas noAv traced by the learned counsel. It ivas proved they came together from the Grey to the Buller, and thence to Nelson, without money. Their camping and cooking

on the road proved their poverty. Their purchases at. Canvastown proved their forced economy, and thenparting exclamation to Jcrvis showed their want oi resources. All who met them on the road agree in the appearance of the prisoners, and one witness remarked that three of them turned their heads away. From the time of their leaving Canvastown no one saw them till they were seen in Nelson. Had they been anywhere else on the day of the murder they have had ample opportunity to prove where they were. In Nelson they were not seen in public together, as they were when they landed and went to Canvastown, which they would have been had they not had some strong reason for being separate. The fitting of the gunstock to the barrel, as described by Sullivan, was a remarkable circumstance when proved by Jcrvis, who was requested to search for the hoopiron. Sullivan's account of the part assigned to each individual was consistent with the fact that he did not know where the bodies were placed, and that hewas not a principal actor in the tragedy. The information winch led to the 'finding of the shirt wasin Sullivan's favor, and the blood on the shirt was from a smear, if it was human blood at all. Sullivan gave a clear account of the placing the shirt there in which he was corroborated by one of the witnesses. There was no evidence to show that Sullivan had that shirt on and the stains on the sack might happen in any way. Sullivan's not seeing the knife that took out the bullet, till he sa:v it in the box, although a trivial circumstance, proved that he was now a truthful witness; it also fixed the guilt of the transaction on Kelly. There was no evidencethat the wound was inflicted by another knife than that produced. The gun found in Toi-Toi Valley in consequence of information received from Burgess, having the name of Thomas Noon upon it, proves his connnection with the guilty parties. If he hail nothing to do with the matter, how came Ins gun and knife to be in such a quarter. The counsel commented on the newspaper found and traced it to the guilty parties. All the questions put to Sullivan were promptly and minutely answered, and he was corroborated in numerous particulars. The moneyfound on the prisoners and spent by them, nearly made up the amount taken from the deceased. As each prisoner had nearly an equal share of the money, it showed they were associated. If Burgess and Sullivan alone committed the murders, Kelly and Levy could not have known the amount of the property taken. If Levy had money of his own, and knowing how important it was to be cleared of suspicion, he would have found it easy to show the source from whence he obtained it. Following his history, tracing his associates, and finding him in possession of such a sum of money, it was incumbent on him to show where the money came from. From the numerous witnesses examined on behalf of the prisoners, it was clear that they had obtained all the help they could, but they had failed to establish their innocence or exemption from participation in the enormities perpetrated. When Levy was arrested, he gave a false account of himself, which taken in connection with other conduct, had a most suspicious look. That two parties were innocent of these crimes, it would be for the jury to determine, but the onus should be thrown upon them to name a locality where they were to be found, when the murder was committed.

During this address Kelly appeared very ill, and Avas allowed to sit doAvn.

At half-past 6 o'clock the Court adjourned,

This Day,

At 9 o'clock his Honor commenced to deliver his charge to the jury, Avhom he complimented on the patience they had shown. He doubted not they would approach the last stage of their solemn duty in a becoming spirit. Without depreciating a common j my, he was not sorry that a special jury had been summoned. He did not think that the popular excitement or the discussion in the press Avould have prevented any jury from doing* their duty. The experience of indignation at the commission of great crimes Avas natural, but hoav the hour of deliberation had arrived, and the jury would proceed to do their duty. It was in countries Avhere apathy prevailed that crimes Avent unpunished and justice was frustrated His Honor called the attention of the jury to the nature of the defence of one of the parties, the confession of another, and the complicity of a third, and cautioned them not to arrive hastily at a conclusion, and not to convict Kelly and Levy unless they were satisfied of their complicity in the crimes. Whilst not alloAving anything to tell unduly against the prisoners, they Avould not hesitate to pronounce a verdict of condemnation from any consideration of the magnitude of the punishment. His Honor read the indictment, Avhich specified the crime and charged the prisoners Avith one murder, and said it Avas useless to attempt to exclude the otlier murders not iioav charged. Four transactions Avere mixed up together, and four persons Avere connected -with them. The part Sullivan had taken Avas a difficult and delicate one to explain; and in considering the case he Avould for the present exclude the evidence of the accomplice. The case was further narroAvcd by the remarkable confession of Burgess, who had Avith strange tenacity insisted on a repetition of Ms crimes, associated AAdth blasphemous utterances, and utterly useless to prove the innocence of the criminals he favored. Their duty Avas to regard him as the archplotter of the crimes, and to take no notice of his attempt to exculpate others. Their duty Avas to investigate the guilt of Kelly and Levy; and it was necessary only to prove that the men Avere murdered by a conspiracy in whicii all took some part, or Avere present as aiders aud abettors of the crimes. The jury had first to be satisfied of the corpus delicti of* the offence ; that the men Avere murdered, The finding of the dead bodies Avas an indisputable fact. Was it likely they fell by suicide or mutual conflict, when they lay with legs and arms tied and no trace of firearms near them ? And the medical

testimony was conclusive that Mathieu died in no other way than by the violence of an assasin. There was no pretence for saying there was any conflict in the medical testimony. The identity of the bodies was placed beyond contradiction. By Avhom were the murders then committed ? Tliey were not isolated murders, although the men might have been murdered separately. One man could not have murdered them and disposed of the bodies. Burgess and Sullivan had admitted taking a certain part, was it likely that Kelly and Levy had no part in the transaction ? Was it probable that they shared the fruits of the robbery Avithout taking some part in the murder. The nature of the road, their previous and past conduct, rendered this most probable. The men lost their lives soon after leaving Franklyn's Flat, at a place that offered a good cover for the bodies, and not far from the spot Avhere the horse Avas found. They never appeared in Nelson, and had they gone beyond that spot they Avould have been seen by another Avitness avlio gave his evidence. This fixes the time of the murder by circumstances rather than the hour. Who had an opportunity to commit this murder, and who Avere met on the road but the men avlio had been sworn to ? The prisoners are seen at 4 o'clock at the Heringa, on Tuesday, and on the 13th they Avere not seen ou the road, but in Nelson at night, in a dirty state. If so Avere they all together or separate? If the master and the slave Ai*ere AA-orking together, Avas it likely the other tAvo had left their company ? If they did, and Avere not responsible, Avhy did they share in the fruits of the crime ? The confession of Burgess ought not to be admitted as evidence against the rest. The conduct of the prisoners before and after the transaction threw light on the crimes. They all associated on the 6th to the 13th June, and Avere engaged in a common pursuit, the unkiwful acquisition of money. At one time they are in a state of poverty, and they are found spending little money during their residence at Canvastown. Levy acquires information Avhich alters their purpose and gives a neAV direction to their aims. They express disgust with the country, leave it, arrive in Nelson, spend money freely, and sell gold to the banks. They sell nuggets on the 14th which must have been stolen on the 13th June. Levy gives a false name, and both make false statements, and could it be believed that being robbers, they Avere not responsible for the murders. This Avas the substance of the evidence Avithout the accomplice. His Honor then approached the question of the accomplice, and laid down the test and rules of evidence that apply to the confession of an accomplice. Such rules left ifc not to the Judge to exclude certain evidence. As he read the Jaw, he could not exclude the testimony of an accomplice, hut felt bound to caution the jury as to its credibility. The tendencies of British law Avert more in form of receiving Avith due qualification the testimony of an accomplice. Such was not technically inadmissible, and he had not the responsibility of determining Avhether the accomplice should be called or not, and if he had, he knc'Av of no circumstances that avouKl induce him to interfere. The degree in which the testimony of an accomplice was to be credited depended on many considerations, and not upon his character and status. His Honor cited authorities in illustration of the question, and said there Avas nothing in recent judical decisions to induce him from preventing Sullivan's evidence from being taken. When a pardon Avas promised on certain terms, it «*as promised on his compliance with the terms, and Avas a poAverf'ul motiA'e to induce a man accustomed to falsehood and perjury to tell the truth. Sullivan had no doubt made some most damaging admissions against himself, yet, as he said, under a certain amount of coercion. The reward for the recovery of the bodies could not apply to his case, nor did he expect it. The rcAvard offered by the General Government and the pardon, excluded the actual murderer. It was not fur a Judge to say whether the had a claim on the Government for a pardon, as it Avas not proved that he had a share in tlie murders. No doubt he was influenced by powerful hopes which tended to make him tell the truth in all respects, ex cept by way of extenuating himself, and it was competent for the jury to credit him up to certain points and reject his evidence after. Sullivan was charged with another murder and might have hopes in reference to that, but he had been warned that his evidence in this case would not influence his fate in respect to the otlier murder. With all these drawbacks Sullivan made his statement, and if it Avas in the main true, the jury would know Avhat degree of importance to attach to it. His Honor stated the maxims that prevail in reference to corroborative evidence and called on the jury to notice the circumstances that corroborated Sullivan's testimony in this case. Here the corroboration of the facts Avere strickingly corroborative of the truthfulness of the person, and the facts taken in the mass proved that the man Avas truthful in his statement. An outline of the narrative of the facts Avas here given. The road was described, the rock pointed out, the creek and the tree referred to, and the limits defined within Avhich the transactions took place. The details of the stay at CanvastOAvn as given by Sullivan are corroborated by Jervis. The story of the preparation of the weapons, and the expressions used at parting, the meeting Avith GalloAvay, are corroborated. The details of the preparation for the encounter may be tested by the things that Avere found as Avell as the bodies. If doubts Avere entertained of Sullivan's evidence in this matter, there are circumstances pointing to the fact that he Avatched the road Some one would be appointed to Avatch under such circumstances. The thro .ving aAvay and finding of the black thread was a remarkable confirmation of Ms truthfulness. He was also confirmed in reference to the straps and the subject that Burgess mentioned to him, and the use of the Avord "no" by the parties on the road. He Avas also corroborated as to the gun and shirt. The fact that the gun Avith hoop-iron was found undischarged near the

shirt, ivas strongly confirmative of liis statement, and that he Avas not an actual murderer. In the matter of the division of the spoil, the disposing of the bags, the falling into the water, the arrangements for meeting, he was also corroborated. Sullivan's story of his transaction at the bank, the transactions of others, and the character of the nuggets sold, Avas confirmed by others. There Avas no agreement as to the precise items of expenditure. Having given a general outline™ of the case,* his Honor proceeded to read over the evidence. His address up to this point occupied an hour and a half, and Aye publish a mere abridgment of it.

He remarked that the medical evidence Avas substantially out of the case, for though there Avere trifling discrepancies there could be no doubt as to the cause of death. Their testimon} r Avas not substantially disputed. Curious questions of Jaw and fact had been elicited during this examination, but it Avas remarkable the bodies had been so preserved as to render identity easy and certain, proving that the deaths had occurred about the I -3th June. The jury Avere cautioned to receive Siilli\ r an's cvi dence Avith the greatest care, and to criticise his Honor's criticisms. The whole of this evidence Avas read. The fact of going by the name of Williams at the Grey, the taking of tickets in false names, the lending of money to Levy, the saloon passage, the lodging at Mrs. Sharp's, Avas corroborated. The following* Avere corroborations: — the gun with the hoopiron that A\ r as thrown into the bush; the mode of travelling up the valley, and the man they met; the meeting Avith Birrell ; the stay at Jervis't.; Levy's stay at Deep Creek ; the handing of the marked paper to Burgess. Was LeA-y's report a tissue of falsehoods or not ? He had opportunity at Deep Creek to learn the movement of the party. That Burgess Avas leader he admits himself. He Avas the animating and directing spirit. His language and action in court Avould be a clue to test Avhether he said and did the things represented by Sullivan. Was the representation of the absence of money true, and if so, how Avas it they came to possess large sums in Nelson. Kelly's knife Avas produced and identified. Such a knife as would have produced the Avound. Burgess was Avrong in saying Sullivan had said he loaded the guns on Sunday. Sullivan said he cleaned them on Sunday and loaded them on Monday . There avus a remarkable confirmation of the statement in reference to the hoopiron. The meeting of Cooper and Galloway Avas corroborated. The story of the drilling ivas not capable of corroboration, but the jury AA-ould judge of its probability from Burgess's well known character. If the story of the preparation Avas manufactured by Sullivan, Avould he have made so minute a detail at the clearing the bush, preparing the straps and other matters. No great stress should be laid on discrepancies as to time, Avhich from the state of mind of the Avitnesses and the absence of clocks, could not be easily ascertained. The passing of Birrell just after seeing the deceased party was corroborated. His Honor commented on Sullivan's statement that he Avished to take the men into the bush to save them and shoot Burgess, saying that if he Avished to do so he had, as Burgess said, ample opportunity. The jury could discredit this part of Ills statement as being prompted by a desire to obtain the pardon of the crown, and attach due importance to that which was confirmed by other testimony. The jury would consider Avhether the distribution of the Aveapons as detailed by Sullivan, Avas not probable. If probable it Avas important, as a knife Avas found on Kelly. Was Sullivan the Avatcher as he said, some one must Avatch, and avus not this statement probable. If Kelly and Levy did not commit the murder, but Avere near expecting to profit by it, they Avere principals in the second degree. The arrh-al of the chesnut horse, fixed the times that the deed avus done, and avus continued by Bowen and Moller, who passed OA-er the ground at that moment. Did the men go into the bush voluntarily, or Avere they taken there and murdered. It Avas consistent Avith the nature of the country that Sullivan might have heard the shots Avhich the travellers did not. The deed must have been done Avith singular preparedness, and rendered it probable that fewer than three men could not have done it in the short space of a quarter of an hour, the time stated by Sullivan. Burgess's address to Sullivan Avas in accordance Avitli his character, and shoAved an assumption of authority. The cutting of the straps by Kelly was corroborated, the straps being produced. The facts that the imperfect gun avus given to the man avlio watched, seemed to render SulliA'an's statement probable, and the attempt to slioav that there avus blood on the shirt had failed to a great extent, the blood having been produced by a smear, and not as if it had fallen from a murdered man. The spoil avus divided at the chimney, and Avas this consistent witli the story told by Kelly, taken in connection Avith his subsequent possession of money, that he was absent from the scene. There Avas a corroboration as to Kelly's penknife. The discharging of one barrel of the gun by Burgess would seem to slioav that the otlier had been discharged; and the discharge of tivo chambers of Kelly's revolver that the others had been previously discharged. The spending of money in Nelson at various places Avas verified by several Avitnesses. It Avas not slioavii that the place at the Avharf where the plunder AA r as divided Avas a very conspicuous place. Sullivan's statement as to the account Levy gave of the murders aud of the way in Avhich the blood came on the sash, and the throwing aAvay of the handkerchief, sliOAved, if it Avas reliable, that Levy ivas a principal in the affair. The Avork of the murder as described by Levy must have taken all tlie three men, and Kelly's coming up aiid smiling -was conclusive of the guilt of Levy and Kelly, if Sullivan was to be believed. The amount for Avhich Sullivan sold the gold Avas fully verified by the bank clerk. The story of the paper wliich formed the Avadding of the gun was confirmed, and must be taken for what it Avas worth. Kelly had admitted he had gone by different

names and Avas a bad character, although this did not prove him to be a murderer. Sullivan's crossexamination Avas commented on by his Honor, and the propriety of his being closely examined by Burgess fully justified. Sullivan made no concealment of his criminal career, warranting the jury in regarding him ivith suspicion. At the same time it Avas competent for them to credit him ivhen they believed that he actually spoke the truth, and had no motive to conceal it. His Honor referred to some immaterial portions of Sullivan's evidence, in which it Avas shaken by Burgess and Kelly, and told the jury to determine whether they would be justified in discrediting him in the more important and indisputable facts. His assertion that he gave information to further the ends of justice, and that he lvaited till he saAv he was sure to accomplish his object, must be narrowly scrutinised and estimated at its proper value. The cross-examination ot Kelly Avas commented on by the Judge, Avho said there could be no doubt that Sullivan knew of the proclamations previous to making his confession, one of Avhich could not possibly apply to his case, and the other was one by which he doubtless hoped to benefit. His Honor remarked that the conduct of both Governments Avashighly creditable, as it Avas possible that had they not offered a reward, Sullivan might not have confessed, and these great criminals been discovered. His Honor referred to the fancy of Burgess and Kelly AA-hich pervaded their questions, that SulliA r an had been treated Avith undue kindness in the gaol. He trusted that no difference of treatment had been shown to the criminals. From Avhat he knew of prisoners in New Zealand, he was certain that no distinction had been made ; that Avhat indulgence had been shown to Sullivan had been by the advice and under the control of the medical officer, and that the same indulgence. Avould be slioavii to the other prisoners if the medical officer so recommended it. The circumstance of SulliA-an having deceived a " eroAi-ded court," as remarked by Kelly, Avas commented on by his Honor, as showing the love of display that avhs peculiar to some great criminals, and from which some of those iioav on their trial Avere not Avholly free.

At 1 o'clock the Court adjourned for half an hour

At half-past one the Judge continued his analysis of the evidence, his comments commencing at Mr. Pitt's cross-examination of Sullivan. The attempt to slioav- that there Avere stains of blood on the clothes sent to be Avashed failed. A great deal of the evidence about the proclamation Avas unimportant, as Sullivan admitted that he read it or heard it read. The jury having heard the testimony of the accomplice, Avere aaked to test it by all those principles Avhich Avere at their disposal to do so. They Avould also inquire Avhether it Avas necessary to corroborate the circumstantial evidence at all by that of the accomplice. It Avas not necessary to construct an infallible series of testimony, as to the sequence, order, and connection in which everything took place. The jury had to take an intelligent and sensible vieiv of the facts laid before them, and see if they Avere consistent with the innocence of tho prisoners. His Honor Avenfc on to summarise the remaining evidence. Sullivan Avas corroborated b} r the Greek boatman and Birrell, the latter denying that he saAv anyone campins on the road, on the left hand side of Dwyer's. Kelly* entirely failed to establisli this, although he questioned several witnesses and utterly failed to proA T e an alibi. Thompson and Jervis corroborated Sullivan, the latter in some very important particulars. He proved that tlie men who Avere spending so vehemently in Nelson a feAv days after, spent very parsimoniously Avhile at his place. He also saA\- the party on their way tv toAvn, noticed their horse and property Avhich he described as Sullivan had done. Harvey's evidence proved, at least, that Levy -was asassociated with a party who had entered into a conspiracy to rob. Galloway identified Levy as one of four men lie met on the Tuesday. The evidence of Harvey, Cooper, GalloAvay, Levestam, Fulton, Moller, and BoAven, Avas commented on, and the various degrees of importance pointed out to the jury. None of these saw the prisoners or a man camping on the road. Carter's evidence Avent to shoiv that Kelly made false statements, which Avas a fact damaging to his character as a reiutabfe person. The Nelson Avitnesses were piincipally important as showing* that the prisoners purchased various articles of clothing. On Kelly remarking that he did not conceal his residence, his Honor remarked tliat it Avas impossible he should do so, but it Avas surprising that men avlio had incurred so fearful a responsibility should have laid themselves so open to observation in a place so near the scene of their recent crimes; one one Avould have supposed a priori that they Avould not have spent a shilling more than the most absolute necessity compelled them to do. It Avas noticeable that all the prisoners gave false names. His Honor said it Avould have been difficult to establish the identity of the paper found and the Avaddhig, with the Marlborough Press, except by a physical allocation of the parts. On coming to the evidence of the police, his Honor said he felt it his duty to recognise the great improvement that had taken place in the organisation and efficiency of the police in this and other districts. If he had previously had reason to complain, he Avas now equally pleated to notice that criminals would not find h easy to practise crime with impunity or escape from the hands of justice. Although the. neighboring gold-fields are great baits to criminals, they could not longer, he was happy to say, count on an impunity Avhich circumstances seemed to favor. Whilst it was not desirable as a rale that policemen should question criminals on arresting them, he was bound to sny that the questions asked by the police in this instance had been asked in a most judicious manner.. His Honor commented on the evidence of Mr. Shatierass, the chief of the police, and expressed his satisfaction at the manner in which he conducted his department. He also eulogised the efforts -of the

search party which had evinced so laudable a determination to find the .bodies" arid arrest the criminals. Not much importance »as to be attached to the state--nient of Sullivan that ffle locality of the bodies was not minutely known to him. lie gave general but • not particular directions to search for them, and the jury Avould form their oivn conclusions of the extent ofhis knowledge of the spot. The evidence of the bank clerks Avas commented upon as shoAving that Sullivan's eAddeiice Avas corroborated, as to the quantities sold and the amount divided on the 14-th June. From some of the gold sold certain nuggets Avere identified, as having belonged to Mathieu, before he left Deep Creek. Both Morgan and his Avife sAvore to the gold they sold to Mathieu on the 9th June, and it ivas found in the bank on the 14-th June. Mrs. Morgan corroborated Sullivan in some very important particulars, and ivas able to identify LeA-y, as having been at Deep Creek. Witnesses Hall and Turner proved having sold some gold to Mathieu that found its Avay to the bank. Having gone through the evidence given by f>4 persons, his Honor said it had tivo aspects: the one independent of the accomplice, and the other combined with it. As to the defence, that of Burgess was a repetition of his confession, that of Kelly an alibi, and that of Levy relied on tlie imperfectness of the prosecution. He thought it better that a questionable latitude should have been alloived to Burgess than that lie should have been placed in a position in which he might complain of a av ant of justice.. The witnesses he called Avere like a mocking of the Court, as they could not benefit a man who had confessed his guilt, and could only (iamage the accomplice, against whom he showed so strong an animus. Some of them proved nothing at all. Kelly's Avitnesses proved nothing in his favor, and Levy's Avere little to the purpose. The evidence of Dr. Cusack did not materially differ from tliat of the medical evidence for tlie CroAvn, he refusing to say there was aught but superficial blood upon the shirt. The Avitnesses called hy Levy failed to prove that Sullivan's statement was false in reference to the place where the booty Avas distributed. The jury were called on to dismiss Burgess from their minds so far as his defence Avas concerned. There avus no ground for the complaint of Kelly that he had been without legal assistance, as he had been alloived as latitude that would not have been allowed to counsel. Kelly had thrown considerable astuteness in attempting to throw discredit on a felloir prisoner, and the jusy Avere im-ited to lake into tlie account the fact of Sullivan's prei'ious bad character, Kelly had complained of the discussions of the press, and it AA-as to be lamented that our free institutions ivere not unattended by incidental evils. Had Kelly •ihown that he had been misrepresented by the press, and had not the means of having a fair trial, and had made the proper application, lie might have been tried in another place. As it Avas, all that Kelly and Levy could claim Avas simple justice yet the jury should hesitate to condemn these two because they were certain of the guilt of Burgess. The burden of Kelly's defence at as that Sullivan ought not to be believed, and Levy's defence rested on the same basis and some improbable hypo theses. It was for the jury to determine whether there ivas any evidence to controvert substantially the case for the prosecution. If the innocence of these men could be established on any fair supposition and consistently with right reason, let the jury say so. If on the other hand it ivas not clear beyond reasonable doubt that these men ivere not aiding and abetting, let the jury do their duty to their country by finding a verdict of guilty. His Honor concluding an address of seven hours duration at half-past 4, by imploring the jury to find a verdict according to the evidence laid before them, in accordance ivith the dictates of an enlightened conscience, and their duty to God and their country.

The jury then retired, and after a short deliberation returned a verdict of Guilty. liis Honor passed sentence of death on the three prisoners separately.