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The New Zealand Railways Magazine, Volume 8, Issue 2 (June 1, 1933)

Famous New Zealand Trials — The Maungatapu Mountain Murders

page 9

Famous New Zealand Trials
The Maungatapu Mountain Murders

Gold has been found, and in 1864, there were a number of “rushes” to various parts of the Marlborough and Nelson Districts. In particular, there had been one in the Wakamarina Diggings in the centre of which were the hamlets of Canvastown and Deep Creek. Then, in 1866, the fields were practically abandoned. There was only one settlement left and that was at Deep Creek, where some old miners were earning fairly good money. However, the news had come through that great reefs of gold had been struck in the Grey country, and from all parts of the Colony trooped the hopeful miners to the West Coast. Many succeeded and many did not.

On the 12th June, 1866, John Kempthorne, a storekeeper, Felix Mathieu, an hotelkeeper, James Dudley, a storekeeper, and James De Pontius, a miner, all set out from Deep Creek for Nelson, whence they intended to trek South to the West Coast, hoping there to find their fortune. As they walked along slowly (having to accommodate their pace to that of a slow moving pack horse that was bearing their impedimenta), they reached Canvastown before noon. Their joint wealth in gold and dust approximated £300. They left again in the afternoon and made their way along the track through the forest and on the sides of precipices and into the depths of the black valleys. They halted at an accommodation house six and a half miles further on and early next morning, on Wednesday, the 13th June, 1866, started on their final stretch for Nelson.

Mathieu, who owned the pack horse, had arranged for one Moller to follow from Deep Creek so that he could take the horse back from Nelson.

On the morning the party left the accommodation house, Moller set out from Deep Creek. He was a good walker and he had nothing to impede his progress. Rapidly he was catching up and whenever he met anyone coming from the opposite direction in which he was going, he would learn that his party was ahead. At Canvastown he learnt that his party was only a little ahead and Moller hurried on to join them. Halfway between Canvastown and Nelson there was a hamlet known as Franklyn's Flat and again he got news of the party slowly making their way ahead. On the road he met a Mr. Livingston who, with a woman called Fulton, were going towards Canvastown. They told him the party were only a mile or so along the way. Then a little later when he had expected he would have, by then, caught the party he met a man, by name, Bown. He had been travelling from Nelson and had seen nothing of the party. Moller was astounded. There was only one road and Bown ought to have seen his party. He hurried on but saw nothing of his friends. At Nelson there was no news of the men, and Canvastown on the 16th June. There he told Jervis, the storekeeper, who at once jumped to the conclusion that the men had been murdered. It seemed the only conclusion to come to, page 10 though there had been no kind of violence in the district since the “rushes” began. Yet there was no other explanation. Jervis went further and said he thought he could pick the men who had committed the crime. He told Moller of four men who had taken his empty store for a night. They had looked strange and suspicious-looking persons. They had allowed no one to enter the building while they were there though they seemed to be very busy doing something. One of the men had gone to Deep Creek and had there met a woman who had recognised him as Phil Levy, when he had been prospecting on the Dunstan. The woman was Mrs. Morgan, and when she saw Levy, said: “What, Phil Levy, what do you want here?” Levy shook hands with the woman and then Mrs Morgan asked: “Where is the woman Emma that was living with you on the Dunstan?” He replied, “Hush, don't say a word about her now,” and he hurried away. The woman Emma had mysteriously disappeared when she was living with Levy.

The police were not entirely unaware of the four men who were now under suspicion and they had been traced along the road. It was known that they were practically penniless. On the Monday following Moller's return to Canvastown the police started their search for the men, though there was, by no means, a general impression that a crime had been committed. Levy was seen at the Wakatu Hotel and was held on suspicion, though there really was little justification for arresting him at that time. After Levy's arrest his mates were found to be in town. Levy and one of them had slept overnight at Porcelli's Oyster Saloon in Bridge Street, Nelson. The three men were rounded up and gave their names as Richard Henry Mullin, Thomas Noon, and Thomas Joseph M'Gee. They were ultimately identified as Richard Burgess, Thomas Kelly and Joseph Thomas Sullivan respectively.

As soon as the men were lodged in gaol the excitement in Nelson was intense. A public meeting was called in the open square and about 300 men attended from whom a committee was formed to organise a search for the missing men. Some of the local Maoris were included in the party on account of their knowledge of bush-craft; £50 was raised at once to finance the search and about fifty men started off in a short space of time to search the precipices and the bush along the roadside. The day the expedition started Hemi Martine found the pack horse, covered with branches, lying dead fifty feet below the road down the side of the mountain. The men's swags were still attached to the horse and some other articles were found alongside the dead animal.

Almost at once the Government offered a reward of £400 for the recovery of the bodies, and a Mr. Kempthorne offered another £200 for the finding of his brother's body. At the same time the Government offered a further reward of £200 and a free pardon to any accomplice provided he was not the actual murderer.

For the next eight days the search continued in the bush below the road for five or six miles on the Nelson side of Franklyn's Flat. On the eighth day when the party was about to search above the road, news came through that Sullivan had confessed to having been an accomplice, but not an actual murderer, and he gave the police information where the bodies would be found. Sullivan's confession was a very full one and implicated his three mates completely, not only for the murder of the party of four, but also of another old man whom they had murdered on the road the day before they had murdered the party. On the 30th June the bugles rang out to the search parties to assemble on the road, and the information that Sullivan had given was verified. It requires no emphasis to portray the feelings of those searchers when they viewed the murdered bodies of those four men. Two of the men had been shot, one had been strangled and Mathieu had been shot first but not instantly killed and he was stabbed as he struggled against his foul murderers. A final shot into the knife wound put an end to his suffering. Horror and anger possessed these searchers and that feeling was soon sweeping over the whole township of Nelson. The wonder is that an attempt was not made to break into the prison and lynch the fiends who lay therein. Three days later James Battle's body was recovered. All Nelson turned out to the funeral and three thousand took part in the solemn procession. The search party refused to accept Mr. Kempthorne's reward.

The manner in which Sullivan came to confess was that a notice of the reward was placed in front of the cells occupied by the four men and after a few days Sullivan, to save his own skin, and well aware that sooner or later the bodies would be found (he knew that, with the others, he would be charged), took advantage of the offer to save himself by incriminating his fellow conspirators. He said he was not an actual murderer as his rôle in the crime was to watch the road for passers by while the others disposed of the unfortunate men.

At the hearing in the Magistrate's Court, Sullivan was placed in the witness box while his mates occupied the dock. His evidence was enough to hang the others and later, after a remand, when the evidence was reduced to writing, Burgess created a complete surprise by confessing his part of the crime, but tried to clear the other two prisoners while inculpating Sullivan. It was a desperate move to revenge himself on Sullivan. While here it is impossible to give much detail of what Burgess said in his confession, which he headed “The Confession of Burgess the Murderer,” the beginning is, I think, worth while repeating. It was in these words:—

“Written in my dungeon drear, this 7th day of August, in the year of Grace, 1866. To God, be ascribed all power and glory in subduing the rebellious spirit of a most guilty wretch, page 11 who has been brought, through the instrumentality of a faithful follower of Christ, to see his wretched, and guilty state, inasmuch as hitherto he has led an awful and wretched life, and through the assurance of this faithful soldier of Christ, he has been led, and also believes that Christ will yet receive and cleanse him from all his deep-dyed and bloody sins.” In this manner the confession proceeds for another paragraph or two. The insincerity of it, however, can be estimated when it is realised that the confession falsely purported to exonerate Levy and Kelly and to link up only Sullivan with Burgess. It was an hypocritical and blasphemous attempt to deceive his earthly judges.

The trial of Burgess, Kelly and Levy began on the 12th September. The Grand Jury returned true bills on the four charges of murder and then also on the fifth charge of murder in respect of the death of Battle. The charge touching the death of Mathieu alone was proceeded with. The evidence touching the other deaths was, of course, relevant to the inquiry. The trial was presided over by Mr. Justice Johnston and the jury was a special one. Mr. Robert Hart, of Wellington, then a well-known barrister, went over to Nelson and conducted the prosecution, with the aid of the local Crown Solicitor, Mr. H. Adams. Levy had secured counsel in Mr. Pitt, of the Nelson bar, but the other two men conducted their own defences. Burgess's defence, as may be imagined from the confession he had made, was mainly directed to throwing doubt on Sullivan's word so as to implicate him as an actual murderer. When the evidence began the question as to which of the three should begin cross-examining the witnesses brought from Burgess the statement: “I merely stand here as an expert in this awful tragedy. I do not expect any advantage for myself, but I on consideration, should wish to cross-examine Sullivan before Mr. Pitt.”

After formal witnesses had proved plans that had been taken of the locality of the crimes, evidence was given of the finding of the bodies of the victims. It was shewn that they had all been treated much in the same way. The arms had been pinioned together and then the victims had been led up the hill into the bush and there in their helpless state foully done to death. Then followed medical evidence, which was little more than formal, for there could hardly be any doubt how death had been encountered. The first witness on the second day of the trial was Sullivan, and Mr. Pitt tried to have him excluded as incompetent to give evidence.
“They loaded their pistols and revolvers and sharpened their knives.”

“They loaded their pistols and revolvers and sharpened their knives.”

It was a hopeless attempt and Sullivan was quickly sworn and told the most horrible tale that surely has ever fallen from the lips of a witness. He told of his association with the others previous to their coming into the district. They all came up from Hokitika. He told how they occupied the empty building at Canvastown and how Levy was sent to Deep Creek to see if there was any building there worth robbing. There they heard of the party they later murdered and made preparations then and there to stick them up, rob and dispose of their bodies in the thick bush where there would be little chance of discovery. They loaded their pistols and revolvers and sharpened their knives wherewith to do their foul deed. As they went along the lonely track to meet the party they found an ideal place for their crime. They found a place where the bush was thick, where three could conceal themselves. Here there was a huge rock (ever since known as “Murderer's Rock”), behind which the fourth could hide.
page 12

He told how the victims approached and were duly stuck up and robbed and then were led up the mountain on the promise that they would be freed. Sullivan said that his part of the crime consisted in staying on the road watching out while the other three led the victims away to their doom. Sullivan admitted that he also killed the pack horse. Burgess cross-examined Sullivan as to his previous history, and elicited that he was an escaped criminal from Australia and that he had been deported from England after a conviction for robbery. He said that he had been stuck up in Australia by bushrangers and had told the police. Burgess suggested that he was one of them himself and had turned approver on that occasion as he was doing now. Sullivan, naturally, denied this. A little later Burgess asked Sullivan “Why did you murder that poor unfortunate man, Battle?” But the Judge told the witness he need not answer that question.

The cross-examination of this fiend occupied many hours and firmly established that both Burgess and Sullivan were criminals of the worst possible type. Sullivan was in the witness box for fifteen hours in all.

Burgess, in his final address to the jury, attempted to reveal himself as a most vile person then repentant, who desired not to save himself from the end that justice would demand, but to save two unfortunate men, Kelly and Levy, who were quite innocent of the crime. He Explained that they had gone ahead of Sullivan and himself and they really knew nothing of the crime which he and Sullivan perpetrated. Burgess gave horrible details of how he and Sullivan actually murdered the four men. He finished a long speech invoking God in the interest of justice. Kelly's speech was a long rambling one and his final words shew the confusion that fell from his lips. These were his last words: “Gentlemen, I am not able to make remarks on my evidence, and I wish you would do it for me. I throw my life into your hands; do your duty, and give me a verdict of acquittal. There were four or five men being killed; now this was not done by four men. It is not done by a lot of men. Don't think that four or five men would do this, and one of them a Jew. Two men might be found who would do all this; but not four, and one of these four a Jew. Gentlemen, I again declare my innocence, and although I am a marked man, I have not killed any of these men.”

Mr. Pitt did what could be done for Levy. He denied that Levy's clothing bore any marks of the crime. He warned them against accepting the word of such a vile creature as Sullivan. Mr. Hart traversed the evidence at great length and on the morning of the sixth day the Judge began his summing up to the jury. It was inevitable that his summing up should be deadly. It would not have been judicial had it been otherwise. He properly warned them against believing Sullivan without corroboration. But what could a jurv do when Burgess confessed the crime and neither of the other prisoners went into the box. The jury retired at 4.23 p.m. and came back in 55 minutes.

In answer to the customary questions the foreman announced that all three were found guilty. Burgess said little, but Kelly became panic-stricken and began a rambling and irrelevant speech shewing himself to be the cur that he was. Levy said he was innocent. The Judge addressed the prisoners in sentencing them to death and was interrupted several times by Kelly. As the Judge was about to pronounce sentence on Levy, the prisoner said: “I am happy to inform you that in my own mind, and from the very bottom of my heart, by the God I worship, I leave this bar an innocent man.” The Judge at once replied “Then I must inform you that there is no apparent warrant for your saying so, and that this statement of yours has no effect on me, and should not have the slightest effect on the jury or the public.”

On the following Wednesday, Sullivan was tried for the murder of James Battle and was duly found guilty, and sentenced to death.

On Wednesday, the 3rd October, Burgess, Kelly, and Levy were duly executed. The excitement in the town was so great that the military forces had been called out in case of trouble. None arose in point of fact. The execution was conducted within the prison walls and while Burgess and Levy met their end with the stoicism commonly found in hardened criminals, Kelly shewed himself to be a cowardly our throughout the proceedings. He held up the proceedings for half an hour with his interruptions and in reading a long speech he had composed. He became hysterical and his conduct must have had a harrowing effect on all who were present.

Burgess possessed a terrible character. At the age of fifteen he was sentenced to 15 years transportation for burglary, and in Australia he was sentenced to 10 years for highway robbery. He was also tried for murder, but was acquitted. In an autobiography he wrote in prison he admitted having taken part in the murder of nine persons. Kelly's past included 7 years transportation for thefts, and in Australia he was the associate of a notorious bushranger, named Gardiner. He was tried along with three other desperadoes, for the murder of a Mr. Marcus. He was acquitted, but one of the others convicted and hanged was his brother. He came to New Zealand and in an affray at Gabriel's Gully he fired on the police and received a term of four years hard labour. Levy's past was not known till he came to New Zealand. He was known to the police as a receiver of stolen goods and used to suggest the commission of crimes to others while keeping out of trouble himself.

Sullivan received the benefit of his confession and was not hanged though his past was a bad one. He had been deported from England as a youth and thereafter dabbled in crime though he was not sentenced to any long term of imprisonment so far as can be ascertained.