The drama in the courthouse continues to rumble on as the jury is given one last round of the evidence in the case of the murder of Constable Doyle and Albert Dahlke. The trial rumbles to its dramatic conclusion, the judge recapitulates the evidence to the jury and the brothers are given their fate.
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Addresses to the Jury
Mr. Lilley said that after Mr. McGrath’s lengthy speech it would be inconsistent with his duty if he did not also address the jury and thereupon spoke for about an hour in a very passionate strain. It was not the calm, clear, dispassionate, analytical address usually expected from a Crown Prosecutor, but rather a vehement appeal to the jury to find the prisoners guilty. He characterised the alibi set up by the defence as a vile conspiracy supported by deliberate lying. In his usual overbearing style he brusquely called the witness Thornton a perjured liar, and was equally hard on the other witnesses for the defence. He then gave the jury the Crown’s theory of the murder, as outlined in his opening address. When James Kenniff was arrested, he said, Patrick Kenniff came suddenly round the hill and shot Dahlke. After Dahlke was killed, Doyle had to die too. “And there,” exclaimed Barrister Lilley, pointing to the prisoners with dramatic gesture, “there are, the murderers. He was butchered to death by those fiends.” As Mr. Lilley is sfond of epithetepithe s he will perhaps pardon us if we term his speech fiendish and vindictive. Yes, Mr. Lilley certainly EARNED HIS BLOOD MONEY.
It was about 12.45pm when His Honor, the Chief Justice, commenced his summing-up to the jury. He said that the prisoners were, as the Jury were aware, charged with the wilful murder of Constable George Doyle at Lethbridge’s Pocket on March 30 last. The facts of the case were very simple. He explained to the jury what was the law on murder and manslaughter. On the evidence in this case it was murder. He could not see anything to suggest manlslaughter, nor could he see from the evidence that the prisoners had taken the life of Doyle unintentionally. It meant that the prisoners were guilty of murder or nothing. If two or more persons formed a common purpose to prosecute an unlawful act in conjunction, and in the prosecution of that act a murder was committed, they were both deemed guilty. If the jury came to the conclusion upon the evidence that the prisoners formed a common purpose to evade arrest by Constable Doyle on that day, and for that purpose they used firearms and killed Constable Doyle, each would be GUILTY OF MURDER.
No doubt the jury had paid careful attention to the evidence. There were various opinions held about circumstantial evidence. Some people thought that circumstantial evidence was better than direct evidence. In some cases it was better than direct evidence because there was a probability of some people who gave direct evidence tellig untruths. The advantage of circumstantial evidence was that if the facts were established there was no object gained by falsehood. Circumstantial facts, if established and put together, were more satisfactory than the direct evidence of one or two persons. It was like a puzzle they had seen in their childhood, where a lot of blocks had to be put together before they had the picture. They could not forget that illustration as applied to this case. There was evidence that four persons met at Hutton Creek on that Sunday morning. What was material was that there was direct evidence that four people met there on that Sunday. That depended entirely on the assertion of those people. They supplied a description of the camp of the things in that camp, and said it could not be possible for the prisoners to be at Lethbridge’s Pocket on that date. In the case of murder — life or death, and even in ‘any other case — the jury should weigh the evidence very carefully to ascertain the true facts and to draw inferences. It would be AN AWFUL THING to convict men of murder or, indeed, any crime on conjectures. But he supposed no jury would do such a thing in these days.
His Honor then referred to a case quoted by Mr. McGrath which happened in the reign of Elizabeth. It was not for the jury, because that case had been a miscarriage of justice, to do anything of the kind now. His Honor next referred to another point raised, that the jury could not convict because no body had been found. There had been a case of murder tried in that court where the body had not been found. It was shown that a few miles out at sea the man had been shot through the chest, the blood spouted out, and he fell overboard into the sea. The jury were satisfied that he was dead. It was necessary to show that the prisoners or accused persons committed the deed by direct or circumstantial evidence. It was the duty of the jury in capital cases to give their attention to the evidence. If they had any doubt it was their duty to give the prisoner the benefit of that doubt. If they were satisfied beyond all reasonable doubt, they should not hesitate to do their duty. It was a lamentable thing for young men to be tried for murder. It was a painful duty for himself and the jury to perform and it was a painful thing that men should be murdered, but crime could not be allowed to go unpunished. The jury would have to weigh the evidence dispassionately and see what conclusion they should arrive at. His Honor at some length referred to the evidence of Doyle, Dahlke, and Sam Johnson leaving the Upper Warrego Police Station on the morning of March 23. He described the situation of Lethbridge’s Pocket, and referred to the fact that Doyle was OUT WITH WARRANTS for the prisoners for horse-stealing. The witness Charles Pearson Tom had seen tracks on his run. That was a coincidence. When Sam Johnson espied three men in Lethhridge’s Pocket they were riding horses and had two pack-horses. Sam Johnson knew Pat and Tom Kenniff, but had never seen James Kenniff before, though he knew he was out looking for him. His Honor then referred to what happened in the Pocket that morning, as given in evidence, and to Sam Johnson escaping through the range to a place rolled the Pump-hole where he came upon Burke, who went back to the pocket, which was a courageous thing for him to do. In referring to the blood-stained saddle on Dahlke’s mare, His Honor said “The man was gone from the saddle, which was covered with blood. Blood was on the withers and mane of the horse, which indicated that whoever sat in that saddle had received a wound of some kind to cause such a quantity of blood to come. The jury would probably come to the conclusion that he was shot. From that they would infer that Dahlke was the last man riding in that saddle and had been shot, which. caused him to bleed so copiously. His Honor referred to the next visit paid to the pocket, where little heaps apparently made by leaves and not logs were found, under which was found to be what Millard said was blood. There were THREE POOLS OF BLOOD from which, it might be inferred, that Dahlke was killed there, and if they assumed Doyle was dead, the blood might have come from him. His Honor next referred to the apple tree and the log on which bullet wounds were found. This showed that the man fired at moved to the right in a line with the log. He had been missed again and again and had moved to the right where something had occurred, which was probably the cause of the pools of blood. There were the pack-bags which Burke had seen on the Sunday which were gone on the Tuesday when he returned to the pocket. Therefore somebody must have been at the pocket between the Sunday and Tuesday and taken them away. The bodies had been burned and the bones pounded down, before they were put into the pack-bags.
At this stage the court adjourned for lunch. On resuming, His Honor continued:
Dr. Voss’ evidence had proved that the bags contained human remains. These bags had been proved to contain the remains of a man or men. They might assume, so far, that they were not the remains of Doyle or Dahlke. In the pocket on the Sunday morning Dahlke’s horse was found with blood sprinkled over the saddle and mane. Doyle’s horse was found two days later with the pack-bags across the saddle. Other things had been found in the Pocket belonging to the missing men. Neither Doyle nor Dahlke had been heard of since that time. There was the evidence then to justify, them in coming to the conclusion that the pack-bags contained the REMAINS OF DOYLE AND DAHLKE: that they had been murdered in that pocket. By whom was another matter. Evidence had been given that Doyle and Dahlke had gone out to arrest the prisoners, and had come upon them in that pocket and remains were afterwards found in the pack-bags.
Under those circumstances he thought that there was not sufficient evidence before the jury to enable them to draw an inference that they had been murdered by the prisoners, if the evidence stopped there. But it did not stop there. He would call their attention to a singular fact. The two prisoners disappeared. Nobody saw them excepting the two witnesses who said they saw them on Hutton Vale on the Sunday. With the exception of these two persons they appeared to have disappeared from civilisation for a week less than three months, when they were arrested near a camp at or near Mitchell, armed with two rifles, while two revolvers were found at the camp.
Those facts were the outline, or skeleton of the case. Some facts were not disputed, excepting the evidence of Sam Johnson. He would ask the jury whether they believed Doyle was dead. Though the prisoners were not charged with killing Dahlke the deeds took place at the same time, it was one transaction. They were hale, hearty men. Doyle was a policeman going out with a warrant. It did not appear whether Dahlke was interested in that warrant. There was evidence that James Kenniff and Dahlke had met before, and were not the best of friends. If they believed Burke’s story James Kenniff had said that he was a better man than when he was on Babilboora, and Pat Kenniff had said “Whatever Dahlke gets you’ll get.” Dahlke had thought it necessary to go with Doyle to arrest the two prisoners. He need not describe in detail how the two men were equipped. Doyle had not been seen since, and there was no reason suggested why he SHOULD SUDDENLY VANISH off the face of the earth. His father is still alive. It was proved and sworn that on the occasion they left Doyle wore on his arm two little red armlets made up with two rings which had been given to him by Millard. He had here an exhibit similar to the armlets Doyle wore. Doyle also had with him five spare bullets, which he carried in his belt. Dahlke wore in the lapel of his coat some bouquet pins. His Honor described how those pins had been found at the flat rock. Dahlke’s mother had given them to him. He then referred to the flat rock which bore signs of having carried a fierce fire, and of the fatty substance found on it and in the crevices. Also the two sticks which had been used as pokers, with charred ends covered with fat and grease. A piece of vertebrae was found, fat still remaining between the bones, showing that the man could not be long dead. His Honor further dwelt on the fact of the two rings and the pins found. After referring to the chances of one man in a hundred wearing those pins, the learned Judge said that there was a reasonable probability of the remains being Doyle and Dahlke’s. That was for the jury to say and if they had any reasonable doubt they knew how to give effect to it if they had no reason to doubt that it was Doyle and Dahlke who were burned on that rock, and that they were dead, the next thing to consider was WHO DID IT? They would probably come to the conclusion that they were murdered that day. They would come to the conclusion that the same men that killed those men covered the blood on the ground, and that the same men burned the bodies on the rock. The first thing the murderers would do would be to hide all traces of their crime. Three men were seen in the Pocket, and they did not know what time the tracker would come back again. He then referred to the time Burke was at the Pocket, and what happened when he left till the next Tuesday. The murderer or murderers had come back and had lit fires to hide the marks of the blood on the ground, and had lit a fire on the other side of the creek. Mr. Lilley had suggested that they might have had an idea of burning the bodies there. By Tuesday they had done what they proposed to do for the purpose of hiding the traces of their crime ; they had burned the bodies, packed the contents in the pack-bags, which they threw across the police horse George. Whoever they were they were trying to conceal their crime. This was attempted but was frustrated by the horse George getting loose and coming back to Lethbridge’s Pocket. Two men met their death, and the murderers endeavored to remove all traces of their crime. That was what the circumstantial evidence lead to.
Various people had various ideas concerning the credibility of ABORIGINAL EVIDENCE. Some maintained that aboriginals were not truthful at all, that they would say anything that was told to them. They must judge Sam Johnson by his evidence, by his demeanor in the witness-box and the probability of his story ; it was a most consistent story. His Honor then read over Sam Johnson’s evidence. That was all the evidence of what took place, and supposing it to be true, was it not a likely story? He also read Burke and Tom’s evidence. If the blood Millard saw was Dahlke’s he must have bled profusely. Millard’s description of what he had seen in the Pocket was next read, as was also portion of Sub-inspector Dillon’s evidence. That was all the evidence relating to the pocket. If the prisoners were there, and Johnson’s story was correct that he lifted the prisoner James Kenniff out of the saddle and then, went to the pack-horse and heard five shots fired, one first and then four, it was very improbable that Jim Kenniff fired the first shot. Where Doyle was standing it was not at all likely that Jim Kenniff fired the shot at all. It must have been Pat or Tom. Tom is only a young boy, and they knew that in the evening he was at the new yards with his father and brother at 11 o’clock that night, whereas the prisoners had not been seen till their arrest. The two prisoners carried revolvers, and there was nothing to show that Tom did. It was not necessary to come to the conclusion that the prisoner James or Tom fired the shot. Th probability was that Patrick Kenniff fired the first shot at Dahlke who was sitting on the horse and the blood spurted over the horse and reins. That evidence was connected by other bullet marks to the right, and the pools of blood indicated that they WERE FIRING AT a moving object. The evidence of the surveyor was that he saw bullet marks on a log six yards from the apple tree. Two shots were certninly fired at a moving object to the right, then to the logs, where pools of blood were found, and that was where Doyle was shot or probably killed.
Supposing that that was what happened there who was responsible for it? It was not likely that both prisoners fired at Doyle, though they might have. His Honor then quoted the Law of two persons acting in concert, aiding one another, counselling and-procuring a crime. If they were acting in concert, both were guilty. If both formed the purpose before Dahlke was shot, and determined to resist apprehension and for that purpose fired at Doyle, they were guilty. The evidence was circumstantial in some particulars, though it was not as far as Johnson seeing James Kenniff held by Doyle, and Dahlke holding the bridle of his horse. Murders were not generally done while anybody was looking on. The answer to this charge, which was a serious one, was, “We were not there; we were 300 miles away, and could not be there.” That was the answer. What was set up might be called A DOUBLE ALIBI.
The two prisoners say they were at Hutton Vale on that Sunday morning, and secondly that Tom Kenniff wasn’t at the pocket at all on that Sunday morning. These two matters should be considered separately. Regarding, the allegation that the two prisoners were at Hutton Vale on the Sunday morning, his Honor referred to the story told by the two prisoners of their forming an idea to go to the Roma races. Hutton Creek was 95 miles from Carnarvon, and Roma was another 84 miles distant. They were to ride 80 miles on Saturday and Sunday to reach Roma on Monday. He described the camp at Hutton Creek, and the meeting of Mulholland and Thornton with the prisoners. He had before said that this direct evidence contradicted the circumstantial evidence. Both sides had directed the jury’s attention to the state of the country in March last. The prisoners picked up Darramundi and were going to travel him day and night till they got to Roma. The evidence of both James and Patrick was that their rifles were planted and that they did not get them until April 5 or 6, and that on their way to Hutton Vale they picked up some rations and put them in a bag across a riding saddle and that they had nothing else. The witnesses Mulholland and Thornton that on the occasion they saw the prisoners in camp at Hutton Vale, the Kenniffs had a pack-saddle and one rifle, or two. The suggestion was that the alibi was not true. His Honor dwelt at some length upon the nature of the evidence given in proving the alibis. It was extremely difficult to go into the witness-box and tell an untrue story relying solely on the memory. There must be a foundation for the facts related. He had heard circumstantial STORIES TOLD BY WOMEN which were simply impossible to have been invented. A witness might say that at time related certain things happened by substituting another date, and could then stand any amount of cross-examination. They had only to stick to the date, and relate things seen on another day. The evidence of the two witnesses, and Mulholland could not be accused of being unfriendly to the prisoners, should be considered. They said they saw a pack-saddle there and rifles. If that was true it was not on March 30. It must have been earlier or later. Of course the story was to be taken into consideration that they had ridden 95 miles on the road to Roma races and had still 84 miles to ride and had only a day to do it in. There was the evidence given by Tom Kenniff that on the evening of Good Friday his brothers said they were going straight on to Mitchell. That was the evidence, and it was for the jury to believe whether they were at Hutton Vale on March 30. It was for them to say whether they were satisfied with Mulholland’s and Thornton’s evidence. The former said he HAD LIED FREELY to the police, and considered himself at liberty to do so. Was it probable that the four men met at Hutton Vale on March 30?
The father and the sons had been traced from Lethbridge’s Pocket, and the evidence showed that the tracks were fresh, though they said they had left the pocket two or three weeks before. All circumstances should be taken into consideration. The prisoners started to go to the races on Good Friday night and changed their minds because a horse went lame. They rode about the bush with rations they had got long before, and when arrested they were armed. They knew for about a month that £1000 had been offered for their arrests. It was for the jury to WEIGH ALL THE EVIDENCE in their minds ; to consider what facts reliance could be placed on and if the truth of the truth of the actual facts established to their satisfaction was consistent with the guilt of the prisoners, or if it was with their innocence, it was their duty to say so. They should- reconcile all the facts of the case with the innocence of the prisoners, if they could not then they should say they were guilty. As to the men who fired the shot, if they were acting in concert to resist arrest then they should find both guilty. He did not think he could assist them any further. He would ask them to consider their verdict.
FOUND GUILTY! Patrick and James Kenniff Sentenced to be Hanged
At 3.15p.m. the jury retired to consider their verdict, and the prisoners were removed to the cells. Ten minutes later the jury sent in a request to be allowed to have the saddle, pins, and rings. These exhibits were sent to them.
Mr. McGrath then asked to have the following points reserved for the Full Court.
(1) That there was no evidence before the jury of Constable Doyle’s death ; (2) That there was no evidence that the prisoners, James and Patrick Kenniff, had acted in concert in committing the murder.
At 3.45p.m. the jury were again brought into court and his Honor directed them further. He said that the evidence given by Burke about James Kenniff saying he would meet Ryan, Doyle, and Dahlke together and would belt the lot of them, was not evidence of any intention to kill Doyle, it was evidence only of ill-will. If they believed the statement that Patrick drew a revolver and said. “Whatever Dahlke gets you will get the very same,” it would indicate that he had some idea of shooting Dahlke.
The jury again retired. At 4.10 p.m. the prisoners returned to the dock, and at 4.15 the jury filed into court and stood in front of the jury box while they answered individually to their names.
Then the associate asked: Gentlemen, have you agreed upon your verdict ?
The Foreman: We have.
Associate: Do you find the prisoner Patrick Kenniff guilty? — Yes.
Do you find the prisoner James Kenniff guilty? — Yes.
So say your foreman, so say you all?
Jurors (in low voice): Yes.
Mr. Lilley (in a subdued tone): I pray the sentence of the court.
While the jury were answering their names, the prisoners had shown some slight symptoms of nervousness. James Kenniff moved uneasily from foot to foot, while Patrick clasped and unclasped his hands. After the verdict “guilty ” had been pronounced both men resumed their accustomed attitudes. They leaned lazily against the front of the dock with their hands hanging over the front, and were apparently calm and composed. They had heard the worst, the tension was over, and they were now prepared for the fate that inevitably awaited them.
The Associate then turned to Patrick Kenniff and said: “Patrick Kenniff, you have been found guilty of wilful murder ; have you anything to say why sentence of death should not be passed upon you?”
Patrick Kenniff thus addressed, straightened himself up and, looking the judge squarely in the face, replied in a husky voice: ” Yes, your Honor, I know the sentence you are going to pass and before you do I say I AM AN INNOCENT MAN! I hope before I part from this world you will find I am an innocent man.”
James Kenniff was then similarly addressed. He hesitated, and then in a loud voice full of passion emphatically said: “Yes, I have! Your Honor I wish to mention, if you will allow me to comment on your summing up in our case to-day, that I think you never gave us one item of justice. I have no other witness to call, except Almighty God, that I am an innocent man! He is the only one I can call, and I call upon Him. . . . Before your Honor SHUFFLES OFF THIS MORTAL COIL, you will find that . . . . is near the murderer, and that is all I have to say I am an innocent man!”
His Honor (calmly to Mr. McGrath): I reserve those points for the consideration of the Full Court, Mr. McGrath.
Then his Honor turned to the press box, and said: I hope the press will not mention the scandalous statements made. The press will not be justified in giving publicity to them.
[These remarks referred to something James Kenniff had said about one of the Crown witnesses, which we suppress out of deference to his Honor’s expressed wish, though we feel it our duty, equally with his Honor’s, to say that we see no reason why the statement of a condemned man should not have the fullest publicity. — Ed. Truth.]
After a pause his Honor said: — The Law, provides that where points are reserved, a Judge may pronounce or defer judgment. I think it is my duty to pronounce judgment.
In a voice that betrayed some emotion, the Chief Justice went on: — Patrick Kenniff, James Kenniff: You have been convicted of wilful murder, after a prolonged and patient trial, by a jury of great intelligence, who have given their fullest attention to the whole case. I invited them upon the facts as found established by evidence, if they could say the truth was consistent with your innocence, to find you not guilty. They Have not been able to say that the facts established here were consistent with your innocence. Nor can I (decisively). I think it is my duty to say that I entirely agree with the verdict of the jury, and I fail to see how they could give any other verdict. By a SERIES OF SINGULAR COINCIDENCES you have been brought to justice. The means adopted of concealing the evidence of your crime would certainly have been successful had it not been for an extraordinary accident. I find on reference that you have never been arraigned upon so serious a charge before, but that you are both familiar, for long periods, with the interior of gaol, and according to the evidence you had practically resorted to a fresh career of crime. I do not want to say anything to hurt your feelings. The points reserved for the Full Court I have already expressed my opinion. I told the jury, there was ample evidence to justify your conviction.
His Honor then removed his wig and donned the black cap, and continued in a low, solemn voice: I have only to pass on you the sentence of the law upon each of you and that is that you be returned to your former custody and at a place and time to be appointed by the Executive you and each of you be hanged by the neck till you are dead, and may God have mercy on your souls.”
His Honor then announcod that under the Criminal Code he respited the execution till after the points raised were argued before the Full Court. Turning to the jury he said that they were now discharged, after a painful trial with the thanks of the country for their services.
[The remainder of the article is damaged, a chunk missing from the page in the archival copy. I have filled in what I can from inference and by referring to other contemporary articles. – AP]
The two prisoners smilingly shook hands with their solicitor, Mr. McGrath, [and] thanked him for his services. [They also shook hands with Mr. O’Neill, Mr. McGrath’s partner, and] were removed to the cells to await [transportation to the] waggonette which was [outside.] Meanwhile, a crowd of onlookers…had collected outside the [George Street entrance to the courthouse to await the coming of the police van. The] prisoners marched through [the concourse to the police van. The blinds were closely drawn and all that could be seen was the driver and two policemen on the front seat, at the back the hands of two policemen. A trooper rode behind. As the waggonette emerged] the crowd hooted [their support for the condemned men. The policemen] cocked their revolvers. [A feeble voice] called out. ” Good-bye Jim [Good-bye Pat.”] and the condemned men [were taken to] their last earthly habits [at Boggo Road] Gaol.
Source:
“The Crown says Doyle Was “Butchered to Death by these Two Fiends.”” Truth (Brisbane, Qld. : 1900 – 1954) 9 November 1902: 5.
“TERMINATION OF THE KENNIFF TRIAL.” The Brisbane Courier (Qld. : 1864 – 1933) 10 November 1902: 6.
“The Kenniffs.” The Telegraph (Brisbane, Qld. : 1872 – 1947) 10 November 1902: 4.
“THE KENNIFFS.” Worker (Brisbane, Qld. : 1890 – 1955) 15 November 1902: 9.