Benalla Police Court [Ned Kelly is charged with assaulting and robbing Ah Fook, 29 October 1869]

[Editor: A report on the trial of Ned Kelly for assaulting and robbing a Chinese man (Ah Fook). This is an extract; reports on other matters in the same article, not relating to Kelly, are not included. Published in The Benalla Ensign and Farmer’s and Squatter’s Journal, 29 October 1869.]

Benalla Police Court.

Tuesday, October 26.

(Before Mr. Wills, P.M.)

Edward Kelly, on remand, was placed in the dock on the charge of assaulting and robbing one Ah Fook, a Chinese, on the road between Winton and Greta on the 14th inst.

Mr. Nicholas appeared to prosecute, and Messrs. M‘Donnell and Pow defended prisoner.

William Tze Hing acted as interpreter during the hearing of the case.

Ah Fook, pig and fowl dealer, residing at Morse’s Creek, examined, stated — Remember Thursday, the 14th inst. Was coming from Morse’s Creek to Benalla on that day, and passed through Greta. A man robbed me between Greta and Winton. I identify prisoner as the man who robbed me. Besides 10s. in a purse in my pocket, I had other money hidden. The purse was in my right-hand side trousers’ pocket. The purse produced I identify as mine. When prisoner came up to me, he said, “I’m a bushranger: give me your money, if not I will beat you to death.” I proceeded towards prisoner’s hut. Prisoner drove me about half a mile and then robbed me. He had a stick in his hand. He ordered me to go and threatened to strike me if I did not. When I saw prisoner he asked where I was going. He took hold of me, put his hand in my pocket and took out the purse. After extracting the 10s., prisoner threw it on the ground. Prisoner assaulted me by hitting me on the right leg and arm with a stick. I got to Benalla at 8 o’clock in the evening, and reported the occurrence to the police at the station. Next day I accompanied the sergeant and a constable to the place where I had been robbed. The sergeant brought the man out, and I identified him.

Cross-examined by Mr. M‘Donnell. — The 14th inst. was on Thursday. In coming from Morse’s Creek to Benalla, I came by the Fifteen-mile Creek. When I was robbed there was only one man. Two other men had gone away. I saw these at first somewhere about Winton. Prisoner was one of the three. Prisoner went with me towards the Fifteen-mile Creek. He did not take me to the hut. I wished to go in but he prevented me. I saw a girl inside. Did not ask her for a drink of water. Did not threaten to strike her, nor shake my fist at her. I did not threaten to strike the prisoner. I had no stick. A woman at Winton told me to go to the police. When prisoner took me away to rob me he had a stick two or three fathoms long, and thick. (The interpreter here explained that a fathom was in Chinese measurement 6 feet.) Prisoner put his hand into my pocket quickly. The coat I now have on was folded up and on my shoulder. I resisted, but could not get hold of prisoner. I know the purse by the stitch, having made it myself. It took me about six hours and a half to come from the Five-mile Creek to Winton. I was robbed about 4 o’clock in the afternoon. I was alone when prisoner robbed me.

By Mr. Nicholas. — There is a track leading from Greta to Winton, and on the way there is the hut which I passed. After I was robbed I came towards Winton. From there I came to Benalla, and slept there.

By Mr. Wills. — I was travelling on foot and alone. The hut is close to the roadway. The 10s. consisted of one half-crown, a sixpence, and seven shillings. Prisoner came out of the hut with the stick. Three other men were with prisoner. They all came out of the hut together. The other two men went away, and prisoner came towards me. The hut is about 12 feet across, and is built of slabs, with a bark roof. I live at a Chinese camp at Morse’s Creek. The other men could not see what took place, they had gone. There were not many trees about the place.

Sergeant Whelan, on oath, stated. — I arrested prisoner on warrant produced, on the 15th inst. Ah Fook came to the station, and said he had been stuck up and robbed between Greta and Winton on the back road. Prosecutor told me that the person who robbed him wounded him with a stick, and I saw abrasions on his leg and arms. Took Ah Fook before a magistrate and an information was sworn. It was sworn through another Chinaman. The description of the interpreter tallied with the prosecutor’s, describing prisoner as a boy about 20, 5ft. 8in. in height, with no beard nor whiskers, and brown hair. Wore moleskin trousers and a straw hat with black band. On the following morning, I proceeded with a constable and prosecutor. Left Ah Fook concealed behind a brush fence. Saw a woman close to the end of the hut. The woman went into the hut, and the prisoner ran into the bush at full speed. I went in pursuit, and kept in sight of him. I was attacked by two dogs when passing the hut. When I caught him I asked him why he ran away. He gave no reason. When we came to the hut, I read the warrant to prisoner, and he said the Chinaman had insulted the woman and struck him with a bamboo. He said he did not strike the Chinaman. I asked him why he ran away if he did not do anything wrong. I arrested him and took him to where the two Chinese were. Ah Fook said the prisoner was the man who had robbed him. I then brought him to the watchhouse. Received the purse from Ah Fook on the 15th. He gave it me out of his pocket.

Cross-examined. — Did not see Ah Fook pick up the purse. Heard the prosecutor’s remark about the stick. It might or might not inflict a greater injury than it did. I brought the other Chinaman with me. Ah Hing gave me the information as interpreter. Did not prompt him to give me a description. I let him tell his own story. He brought a piece of paper with the name of prisoner written upon it. Have not the paper at present. Ah Hing said prisoner was 5ft. 8in. The measurement of the stick was described as fathoms. There is heavy timber in a blind gully near the hut. Could see the hut from the gully. I was dressed in plain clothes when I went to the hut. I was nearly half a mile away when prisoner ran out of the hut. I kept my eyes on him all the way, until I caught him. I did not caution him.

David M‘Inerney, constable stationed at Benalla, remembered the 15th October. Accompanied Sergeant Whelan to the place where prisoner was arrested. Knew prisoner’s hut about four miles this side of Greta, between Greta and Winton. Saw prisoner run away from the hut when we were going to it. After arresting prisoner accompanied him to Benalla. Sergeant Whelan asked him once or twice why he ran away, and he said nothing. He said if the fence was a little nearer he would have got away.

Cross-examined by Mr. Pow. — Witness was sure it was the prisoner who ran away. They were within half a mile of him. Saw others afterwards, but not at the time. Did not caution the prisoner when they apprehended him. Prosecutor pointed out the place where he picked up the purse.

To the Bench. — Prosecutor said the prisoner took the purse and threw it on the ground.

Sergeant Whelan, recalled. — I produce a small piece of paper I received from Ah Fook on the 15th inst. Ah Fook said he reported the robbery at the first house he came to, and the person wrote the name of Kelly, at Greta on the paper. On the 15th Ah Hing (who was interpreter) produced £25 which he said he had taken out of prosecutor’s boot on the 14th inst. Superintendent Nicholas said he could bring a Chinaman to prove that Ah Fook had the money on the 14th inst.

Mr. M‘Donnell said he applied to have the prisoner discharged, as the case had been originally brought under the 110th section of the Police Offences Statute.

The objection was overruled.

Mr. M‘Donnell then pointed out what he considered the weak points of the case, and called William Gray, a labourer in Mrs. Kelly’s employ, who said. — I know Edward Kelly. Was at Mrs. Kelly’s on the 14th of this month. Saw prosecutor there. Was standing outside the hut when prosecutor came up. Was with Kelly, Mrs. Gunn, and, a labourer named Skilling. He asked Mrs. Gunn to give him water, and she did so. I saw the Chinaman raise his fist to strike Mrs. Gunn, but she got out of his way. Saw prisoner then push the Chinaman but not strike him. The Chinaman then struck prisoner two or three times across the shoulder. That was near the hut. It was between 1 and 4 o’clock in the afternoon. Prisoner did not put his hand in the Chinaman’s pocket. Prisoner ran away when the Chinaman struck him. Heard the Chinaman say he would burn the place down, and he then went away. Saw prisoner all the afternoon.

Cross-examined. — Prisoner was with me about the house and not out of my sight during the afternoon.

By the Bench. — Mrs. Gunn did not say anything insulting to prosecutor. I did not interfere in any way because it was not my duty to do so.

Anne Gunn, wife of Alexander Gunn, living near Greta, said. — On the 14th of this month I was at Mrs. Kelly’s all the day. Recollect the Chinaman coming to the hut on that day, having a stick and billycan on his shoulder. Was outside the door, sewing. The Chinaman asked me for a drink of water, which I gave to him. When I gave him the water he spoke angrily in Chinese. He raised his fist to my face, and I ran inside. I did not see anything more.

Cross-examined. — I am prisoner’s sister.

By the Bench. — Gray, Skilling, and Kelly were all standing by when prisoner tried to strike me. Never had words with him previously. Could not understand why he was so violent.

William Skilling, a miner of Godfrey’s Creek, knew prisoner and prosecutor. Was at prisoner’s house on the 14th. The Chinaman was there; Gray and Mrs. Gunn were also there. Prisoner was inside. Prosecutor asked Mrs. Gunn for a drink of water, which she gave him. He used abusive language to her after getting the water. She went inside. Prisoner then came out and pushed prosecutor away. Prisoner was near the door all the time. Prosecutor struck him several times with a stick. Prisoner ran away. Prosecutor said “I will burn down the place,” or words to that effect. The Chinaman went away. Was with Kelly nearly all the day.

By the Bench. — Did not see the prisoner strike the prosecutor.

Cross-examined. — Was mining about a month since. Was at Kelly’s about a fortnight. Lost my horse or I would not have been at Kelly’s. Prisoner never left the hut all the time.

By the Bench. — I did not strike the Chinaman at all.

Mr. Wills. — I think you must have been a very quiet lot out there — three of you and to allow your friend to be beaten like that is most extraordinary.

Witness. — It was done very quickly.

Mr. Wills said the three witnesses for the defence so confirmed each other’s evidence, whereas the prosecutor’s evidence was unsupported, that he had no option but to discharge the prisoner.

The prisoner and his friends then left the court. The hearing of this case occupied over four hours.

The Benalla Ensign and Farmer’s and Squatter’s Journal (Benalla, Vic.), Friday 29 October 1869, pages 2-3

[Editor: Corrected “as intrepreter” to “as interpreter”.]

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