Murderers Rock

DESCRIPTION: "Murderers Rock stands on the track And watches all that passes" by the Dunstan, where there is a gold rush. Four men murder Mathieu and other miners. Burgess, the leader, and two others will be hanged "on the evidence of an informer"
AUTHOR: Neal Colquhoun
EARLIEST DATE: 1972 (Colquhoun-NZ-Folksongs-SongOfAYoungCountry)
KEYWORDS: homicide police trial death punishment execution
HISTORICAL REFERENCES:
1866 - arrest of the Dunstan murderers. One of them, Joseph Thomas Sullivan, turns Queen's Evidence against the rest of the band, resulting in their conviction and execution
FOUND IN:
REFERENCES (2 citations):
Colquhoun-NZ-Folksongs-SongOfAYoungCountry, p. 41, "Murderers Rock" (1 text, 1 tune) (p. 41 in the 1972 edition)
Garland-FacesInTheFirelight-NZ, pp. 132, 135, 136-137, "(Murderers Rock)" (various excerpts)
RECORDINGS:
Tamburlaine, "Murderers Rock" (on NZSongYngCntry)
NOTES [8285 words]: The story of the "Maungatapu murderers," or the "Dunstan murderers," is told on pp. 132-137 of Garland-FacesInTheFirelight-NZ. The trial apparently attracted great attention, but it doesn't seem to have left much mark on history. The gang involved is often known as the "Burgess Gang" or the "Burgess-Kelly gang."
Richard Burgess was an interesting character. Clune, ever one for drama, on p. 4 calls him "a tower of strength, a brilliant man, but mentally and morally warped and gone rotten." I'm not sure I agree; he was determined, and he was without conscience, but he doesn't strike me as particularly intelligent -- he made too many foolish choices.
After he was condemned, he gave a detailed confession: David Burton, editor Confession of Richard Burgess: the Maungatapu murders and other grisly crimes (there are several editions). Although this was a confession made when he knew he was going to die, Martin, p. 6, thinks it not entirely honest; Burgess, he thinks, was trying to burnish his own reputation, save his comrades Levy and Kelly, and (if possible) hang the informant Sullivan. The last three of these, at least, are certain.
By his own report, Burgess was born in London in 1829, to an unwed mother (Clune, p. 5), and was born under the name Richard Hill. His father was not present in his life, except perhaps for one or two visits (Clune, p. 6). Clune conjectures that his mother was a member of the Grosvenor family who became pregnant by a man, perhaps a horse guard, who would not or could not marry her; Martin agrees that Burgess was illegitimate but will not go beyond that.
Despite his mother's social handicaps, she managed to give her son some education (his confession is surprisingly literate) -- but when he was twelve, she became the partner of a widower, and Hill/Burgess quarreled with them. In any case, he had been a hard-to-control, violent youth (Martin, p. 15; Clune, pp. 7-8). At 14, he ran away from home and joined a gang of thieves -- a real-life parallel to Fagin's operation in Oliver Twist (Martin, p. 16). Apprehended and sentenced to six months' imprisonment and two rounds of birching (Clune, p. 11), his mother and stepsister were waiting when he was freed, begging him to go straight. Instead, he said, he went back to his gang mates (Clune, p. 12). Not too long after, he was captured again (Martin, p. 17; Clune, pp. 13-14). Held in Pentonville Prison for more than a year, he was transported in the Joseph Somes on June 2, 1847, even though he was not yet eighteen. He seems to have been using the name "Samuel Watson" at the time (Martin, pp. 18-21). He arrived at Melbourne on September 10, 1847. Clune, p. 21, suggests he thought about going straight at this time. If so, he didn't think hard; he quickly moved to the vicinity of Adelaide where he resumed his criminal ways (Martin, p. 22). Caught again, he served a year and a half in Adelaide Gaol (Martin, p. 23. Clune, p. 23, points out that South Australia was not a penal colony, so conditions there were relatively good for prisoners).
Then, in 1851, there was a gold rush in that part of Australia, and Burgess/Hill headed there -- not so much to hunt gold himself as to feed off the legitimate prospectors (Martin, pp. 23-25; Clune, p. 24). It was apparently at this time that he committed his first murder; he and an accomplice robbed a rich storekeeper, but apparently the storekeeper claimed to recognize them, so they killed him (Martin, pp. 26-27; Clune, p. 25). After further escapades, he was sentenced to ten years' hard labor in Australia (after all, they couldn't transport him again!). It was 1852; he was 23 years old (Martin, pp. 28-29). He ended up being put aboard a prison hulk (Clune, p. 30). Men were confined for up to 23 hours a day in a space about two and a half yards long, a yard wide, and two yards high, with little air or light, bedding that was never changed, and limited, often rotting, food (Martin pp. 30-31). It probably broke many men's spirits. In Hill, it probably just made him meaner. When he was placed on a road gang, he became, or at least was accused of being, the leader of an attempted revolt. He became even more violent as a result (Martin, pp. 32-33). In this time, he claimed to have known several imprisoned bushrangers, including Harry Power and "Captain Melville" (Martin, p. 36). He made another escape attempt with Melville and others; he took a bullet in his shoulder and failed to escape; several died in the attempt (Martin, pp. 37-38). In the aftermath, several convicts, including Melville, were sentenced to death -- but their report of the conditions they were trying to escape was so graphic that it raised demonstrations, and in the end, no one was hung (Martin, pp. 38-39; Clune, pp. 30-32) -- perhaps unfortunate, since Burgess by this time was clearly beyond redemption. Despite this, he was released after serving just eight years of his ten year sentence (Martin, p. 42). He once again turned robber, bringing in a younger man as a sidekick. When they were caught, the younger man, David C. (last name unknown; Martin, p. 42) escaped, leaving Hill raging against him (Martin, pp. 47-48). Hill was able to conceal his identity, using the name "Charles Harris," and so was able to argue his way into a light sentence (Martin, pp. 48-49). When his identity was discovered, it was too late to change his punishment, so he was released after a relatively short time.
It was his big chance to go straight. Instead, he apparently heard of the Otago gold rush (for which see, e.g., "Bright Fine Gold"), picked a man's pockets at a cricket match, and used the proceeds to head for Dunedin in January 1862, where he started calling himself "Richard Burgess" (Martin, pp. 50-51; Clune, p. 36, thinks he borrowed the name from the owner of a sheep station who offered him hospitality).
By the time Burgess reached Dunedin, he had apparently been joined by Thomas Kelly. Kelly's history wasn't quite as crime-filled (although he was older) -- but it was bad enough. Born Thomas Noon in London in 1825, he stole a pair of pants at age 17 or 18 and was transported to Van Dieman's Land for seven years in 1843. Freed in 1849, he supposedly spent time in the gang of Frank Gardiner (for whom see "Frank Gardiner"). But he wasn't around for Gardiner's big exploits; he was taken in 1854 for an alleged robbery and murder (Martin, p. 51).
Burgess and Kelly started to prey on the Otago diggings, and started to gather a new gang: John "Spratty" Russel, J. Davies, and John Joseph Sullivan (Martin, pp. 52-53). Once again they got in trouble and were captured (Martin, pp. 54-55); on the way to custody, Burgess fell and hit a rock and suffered a prolonged recovery (Martin, p. 56). Burgess and Kelly were sentenced to three years and six months on the various charges. Once again, Burgess had managed to outrun his reputation; had they known who he was, he would surely have suffered a harsher sentence. He could not stay out of trouble -- but he somehow always managed to get a lighter-than-deserved sentence.
He made the worst of it, though (Martin, pp. 58-62), attempting to set up a mass escape, which failed and caused him to be put in solitary confinement for a year, then started an agitation when he was put back with the general prison population -- and so went back into solitary (Martin, pp. 62-63; Clune, pp. 47-48). He also suffered from flogging as a ringleader. According to another convict, the non-violent bushranger Henry Garrett, Burgess then swore to "take a human life for every lash and indignity they have laid upon me," adding that "I must see my victims die, look into their eyes, watch their tortures, and mock them as I have been mocked" (Martin, p. 65). He and Kelly/Noon were set free on September 11, 1865.
The Otago gold rush was largely over by then, so they left the southern part of the island and headed north (Martin, pp. 70-71; Clune, p. 49). The police were watching them (Martin, p. 72; Clune, pp. 52-53), so they pretended to stake a claim in Kelly's name though they didn't stop their crimes (and later sold it to get their shareholders off their backs; Martin, p. 72). Martin, p. 72, tells a truly nasty story of Burgess going to a brothel at this time and first enjoying the service then stealing the money -- but also courting a woman named Carrie, whom he got pregnant but did not marry although they did move in together (Martin, pp. 72-73; Clune, p. 57, thinks Burgess was trying to make a quick fortune so he could legally marry her, move back to Australia, and live respectably in Sydney. He might have said that in his confession; I personally doubt it).
Martin, p. 74, thinks that it was at this time that Burgess became involved with Phillip Levy, who was a far less flamboyant criminal: "Specializing in intelligence-gathering, financing and planning crime and disposing of stolen goods, Levy was a shadowy figure, a lone wolf and consultant to the underworld. He planned and facilitated the crimes of other men while remaining on the fringes, taking his percentage but staying beyond the clutches of the law." (Clune, pp. 44-45, agrees with Martin's description of Levy but thinks Burgess met him earlier, shortly after the Burgess came to New Zealand.) One of the oddities of the story is how Levy, generally not an active criminal, ended up serving as a member of Burgess's active gang -- he was arguably a double liability, not being used to this sort of work and, according to Clune, p. 73, "no athlete," so he may have slowed them down.
As his name implies, Levy was of Jewish ancestry, born in London in 1826. He had voluntarily migrated to Victoria, Australia in the 1850s, where he seemingly plied some sort of shady business. He moved to Dunedin in the early 1860s and set up another small store (Martin, p. 74). It was only when a big bank heist was planned that he thought the reward big enough to be willing to take an active part (Martin, p. 75).
But three men, they felt, weren't enough. It is noteworthy that the informer, Sullivan, was the last man recruited into the plot. It was apparently Levy who found him (Martin, p. 77). Although his rap sheet wasn't as long as Burgess's, he was another transportee to Australia who had been in and out of prison. He was apparently older, born around 1815 (so Martin; Clune, p. 54, says 1820. He had been a prize fighter and a baker. He had had far less trouble while in confinement than had Burgess (Clune, p. 54), and had finished his time in 1853 and run a public house and boxing establishment in the Australian goldfields. He had come to New Zealand in 1866 to try the gold fields (Clune, p. 55, describes it as a sort of vacation; he left his wife to run his business), and had been disappointed. Supposedly he had left a wife in Australia, had come to New Zealand with another woman, and intended to head back to Victoria. It sounds as if he and Burgess had some disagreements, but Sullivan -- not having enough money to return to Australia -- still joined the gang (Martin, pp. 78-79).
Their first attempt at catching a bank courier failed, but they kept making plans. The concluded they would need police uniforms (Clune, p. 56), and set out to rob a police camp to get them, finding a rogue policeman, John Carr, to help them (Martin, pp. 80-81). The thefts being detected, the police found the collaborator, who pointed them to Burgess. Burgess was taken into custody (Martin, pp. 84-85), then Kelly, but Carr came up with a plot to get him freed based on perjured evidence. It got them off, but they had to abandon their plan; their presence was now known (Martin, pp. 86-87; Clune, p. 60). So they ended up leaving the area and improvising.
Exactly what happened is a little unclear next. Burgess was not present, and the main account is Sullivan's self-serving testimony. What is known is that Sullivan, Kelly, and an associate named Jimmy Murray set out to rob a gold buyer named Edward Fox, who was known to regularly travel a certain road. But, on this occasion, Fox decided to go by boat, and they instead found an engineer named George Dobson, who had decided to walk the road Fox usually took. Dobson ended up dead, murdered or allowed to die by the outlaws, who argued about burying him then headed home (Martin, pp. 88-95; Clune, pp. 63-64, mentions the murder but omits mention of Murray and thinks Burgess might have been present. Martin's opinion is that Kelly and Sullivan committed the murder).
The gang hadn't given up on Fox. But Murray had. He was a criminal, but not a murderer, and he was afraid of the other members of Burgess's gang. He snuck away that night and went to the authorities (Martin, pp. 96-97 -- an important point, because Murray confessed and Sullivan would later testify that Murray had had a part in the murder despite Murray explicitly admitting to crimes but not that crime). That didn't mean that the others would give up, though.
Their second attempt to catch Fox was another failure. He came with enough guards that they didn't dare risk an attack (Martin, pp. 99-100; Clune, p. 64). An officer in the local police, Inspector Henry James, found them, briefly detained Burgess and Kelly, and ordered them out of town (Martin, pp. 100-101; Clune, p. 65). They decided to head for the town of Westport to rob a bank there, even though they had to rob a friend and associate to come up with the money to pay their ferry tickets (Martin, pp. 101-103). But, contrary to what they had heard, there was no bank there to rob (Martin, p. 104; Clune, p. 65). So it was back onto the steamer to head for the town of Nelson, with no real plan and no money (Martin, p. 105; Clune, p. 66). That town had the opposite problem: There were three banks, and lots of people, making robbery impractical (Clune, p. 70). So they decided to try the town of Picton, said to have a single bank. The trail was a narrow one, built to reach the Wakamarina goldfield, and it passed the mountain the Maori called "Maungatapu" (Clune, p. 69). This was a long walk for men with no money, forcing them to stop along the way for food and shelter, and along the way Levy met someone whom he had known years before (Martin, pp. 108-109).
They never made it to Picton. Clune, p. 75, thinks Burgess decided to return to Nelson and go to Picton by boat. But they would need money for the fare. Along the way, Levy found word of a party of travelers who would be heading along the track, and the band decided to attack it rather than plod onward (Martin, p. 110).
It is noteworthy that one of the four was Felix Mathieu, whom Levy had known in the past in Otago; Levy met Mathieu at a digger camp near the Wakamarina where Mathieu was running a pub. Mathieu told Levy about the traveling party, which included Mathieu, John Kempthorne (another man Levy knew), Jim Dudley, and James de Pontius (Clune, pp. 75-76).
One June 12, 1866, before the Mathieu party set out, the Burgess gang met an old digger, James Battle. He clearly didn't have much money, but they apparently murdered him anyway to eliminate a witness -- strangling him brutally to avoid having to shoot him (Martin, pp. 112-117; Clune, p. 79). They then prepared for the big robbery.
It was a difficult situation. There were four robbers and four intended victims -- and the victims all young and healthy. The Burgess gang did not really have the weapons to attack from hiding; they had two shotguns and two revolvers -- nothing accurate or with good range. (Nor is it clear that they were good marksmen.) To be able to fight such a group when all they had were those weapons, the attackers would have to come out and directly confront the victims. Including Levy. And... most of the victims knew Levy's appearance. Levy, the man who preferred to not be directly involved in crimes, was going to be unmasked -- if the victims lived (Clune, p. 77, 91). Plus, as Clune points out on p. 91, there were no side branches on the Maungatapu track; the robbers could not hide or go another way or make a quick getaway. If they robbed their victims but let them live, then they would be able to identify Burgess and Co. before they could make their escape. They, or at least Levy, may not have thought about it, but when they decided to rob those four men on that track, they were making a plan that had to include murder.
The gang prepared the ground so that they could make their attack quickly and decisively, picking a spot and clearing brush so that they could suddenly appear from under cover (Martin, p. 118). They let a few lesser targets pass while they waited for the main chance (Martin, p. 119). Then came the big moment:
Ell, p. 42, in the entry on "The Burgess-Kelly Gang": "The most notorious of the gangs to operate on the goldfields of New Zealand was known as the Burgess-Kelly gang. They were four armed robbers, criminals from Australia, named Burgess, Kelly, Levy, and Sullivan.... [Burgess and Kelly] were involved in incidents about Tuapeka in central Otago where Burgess and Kelly were arrested and sent to jail for three years. Released in 1865, they swore to take a life for every lash laid on them while imprisoned. Levy was said to have a gang in the Kawarau Gorge, near Cromwell, which robbed the passing miners and threw their bodies in the river. These three met up with Sullivan in the 1865 gold rush to Westland.... The gang was caught following the murder of five men on the slopes of Maungatapu. Their victims were storekeepers returning from the Wakamarina gold diggings. When arrested, Sullivan confessed and got life imprisonment. His partners were hanged, their corpses placed on public display, and their death masks taken for posterity. See Confession of Richard Burgess: the Maungatapu murxders and other grisly crimes, edited by David Burton...."
NewZealandEncyclopedia, p. 359, says that the "MAUNGATAPU MURDERS were the result of one of the few cases of bush-ranging in NZ during the gold-mining days." It confirms that the four murder victims, who left the Wakamarina River on June 12, 1866, were miner James de Pontius, hotelkeeper Felix Mathieu, and storekeepers John Kempthorne and James Dudley. At first, no bodies were found -- only a dead horse and various artifacts. Sullivan, Levy, Burgess, and Kelly were taken into custody on suspicion.
There were no witnesses to the crime other than the criminals and the dead men. Sullivan would implicate Burgess, Kelly, and Levy; Burgess would say that Kelly and Levy had left the party to return to Nelson and had no part in the murders (Martin, pp. 111, 120). Neither account makes perfect sense; Levy had no skill with weapons, and so might have been sent back, but perhaps was not fit enough to go alone; on the other hand, to have just two men to rob four is hopeless; there is no way Burgess would have sent Kelly with him!
Martin conjectures that, to prevent an escape attempt, the four robbers tried to separate the four victims and deal with them individually. He suggests they took Dudley away and strangled him (Martin, p. 121). This made enough noise to scare the other victims. So, while Sullivan watched the road, the other three were stabbed and/or shot (Martin, pp. 122-123). It seems likely that this was done by Burgess, Levy, and Kelly; Sullivan's gun was found not to have been fired (Martin, p. 123) -- which implies that his claim, that he was watching the road when the murders took place, was true. (But note that if someone dies in the commission of a felony, all involved in the felony are considered guilty of murder even if they do not commit the actual murder. Sullivan was still guilty of a capital crime.)
They didn't bother to bury the bodies, since they thought no one would notice; they just dragged three of them off the road, They did pile stones over the body of de Pontius, perhaps with the thought that the police wouldn't find his body and suspect him of the murders (Martin, p. 130). They also shot their packhorse, "Old Farmer," and threw a few branches over it (Martin, p. 131).
Based on the time various travelers on the Maungatapu Track passed each other and met each other, Martin, pp. 125-127, estimates the robbery took place around 1:30 p.m., with the actual shootings being around 2:15.
Having done their dirty work, the robbers disposed of identifying items such as personal papers and split the somewhat disappointing take -- they had expected to collect hundreds of pounds, but got only 64 pounds and change (Martin, p. 132). There was also some gold, however, some of which they would dispose of in Nelson (Martin, pp. 136-137).
That done, they returned to the town of Nelson, a harrowing trip at night on a trail that at some points hugged a cliff edge (Clune, p. 96; Martin, p. 133).
The plan was to go to Nelson and ship out to another town, or to Australia, though the fact that their haul of ready cash was small might have made it difficult to pay their fare. They would have to sell the gold in Nelson.
Fatally for the murderers, the four murder victims had arranged with another man to come and pick up their pack horse when they arrived in town. This man, Henry Möller (Clune calls him "Heinrich Moller"), was walking on his own but along the same track (Martin, p. 122). He was a fast walker and so had set out later than the others, but had almost caught up; was very close by when the murders were committed. Wanting to know when he would overtake the Mathieu party, he questioned another walker going the other way very near the site of the murders, who had never seen the party (Clune, p. 94), so he already knew something odd was happening. He reached Nelson to find the Mathieu party had never arrived (Clune, p. 95; Martin, p. 135), and wondered about it. Two days after, unable to find the people he was supposed to meet and wanting to head for his home, he talked to the police (Clune, p. 101). At the time, they didn't think there was enough evidence to justify a search (Martin, p. 143).
Meanwhile, the gang had taken the gold they had taken from the Mathieu party, divided it into three parts, and sent Sullivan, Kelly, and Levi to the three banks in Nelson to convert it to cash. Burgess, the one most known to the police, sat this out (Clune, p. 99; Martin, p. 137) -- after all, there were just three banks. Obviously going to three banks with smaller amounts of gold was better than taking it all to one bank, but it certainly wasn't too bright to do it all at the same time -- and once they had the cash, they started spending it and being seen around Nelson, which may have had three banks but was still a small town where a bunch of big spenders would be noticed! (Clune, p. 100). They weren't really doing much to conceal themselves, either. The total deposit was about 225 pounds (Martin, pp. 137-138).
At this stage, their goal was to take a ship out of town. Unfortunately for them, there was no ship going to a safe port for another week; the only ships at Nelson were heading for parts of the South Island where they were known. Their only choice was to wait for the Airedale, which would take them to the North Island (Martin, p. 141) -- if they weren't caught by then.
One thing led to another: Möller headed for home, asking about the Mathieu party all the way. On the way he came to the establishment of John Jervis, one of the places visited by Burgess and Co. before the murder. Jervis had talked with Levy, and seen the ruffians with him. He and Möller informed Sergeant Samuel Goodall -- the sole constable based anywhere along the track of their suspicions (Clune, pp. 102-103; Martin, p. 144). With strong evidence that the Mathieu party had disappeared, they returned to Nelson; this time, the Nelson police decided it was time to act (Martin, p. 144). On Monday, June 18, the gang first received word that the police were searching for evidence about the missing men (Martin, p. 145). A newspaper report referred to four "highly suspicious characters." Burgess and Co. were being actively sought (Martin, p. 146). One of the men the gang had met up the trail gave the searchers Levy's name (Martin, p. 147).
Soon descriptions of the four were being posted. Levy was quickly found by men who had seen him; he was arrested in a bar (Martin, p. 148; Clune, p. 108, says he was carrying £63 -- and that, when arraigned, there was little evidence against him except that he had been seen at Deep Creek along the trail to Picton). The other three were taken soon after (Martin, pp. 153-154; Clune, p. 109, says Burgess had £62, of which he hid £20; Sullivan had £49, of which he hid £20; and Kelly, who was a spendthrift, had just £18 -- interesting, given that they had said they had little money a few days before). They were arraigned on Wednesday, June 20 (Martin, p. 155). All four were formally charged on Saturday, June 23, even though the bodies still hadn't been found (Martin, pp. 159-160).
On Monday, June 18, a search party had set out to try to find the missing men -- or their corpses (Clune, p. 104). By forming a human chain, they found the dead horse (Martin, p. 158; Clune, p. 113), then, despite pouring rain, a series of artifacts including an abandoned shotgun (Martin, p. 159). But they did not at once find the bodies, which were not near the horse.
The circumstantial evidence against the four was significant, but it hardly rose to the level of proof. The police needed more -- and looked to get something out of one of the murderers. Who, it might be added, were mostly without lawyers; Levy hired one of the few in the area, but he only intermittently worked on behalf of the others (Clune, pp. 112-113, who suggests on p. 123 that a local rabbi paid the lawyer. On the other hand, Martin, pp. 176-177, says that Burgess wrote his confession with equipment supplied by his lawyer). They let the prisoners know that there was a promise of a reward, and even a pardon for someone who would tell them what happened -- then separated Levy from the others, seemingly in an attempt to convince them that he would confess (Martin, p. 162; Clune, p. 116). Burgess supposedly saw through the trick, but Sullivan -- who was already unhappy with Burgess and Levy -- saw his chance and took it, scribbling an offer to tell what he knew (Martin, p. 163; according to Clune, p. 117, he called for paper to write to his wife in Australia -- but kept winking and gesturing so that they would know he had more to say but couldn't say it while Burgess and Kelly could hear him).
One of the conditions for the pardon was that the person who confessed must not have been actively involved in the murder. NewZealandEncyclopedia, p. 359: "On the promise of a reward and a free pardon, Sullivan confessed that he had been the look-out but the other three had committed the crimes, and the bodies were discovered according to his directions. Two of the victims had been shot, one stabbed and the other strangled."
Sullivan, brought before the police commander in Nelson, didn't just describe the murders of the Mathieu party but two other murders committed by the gang, as well as some of their other exploits and their accomplices. He of course did not admit to his part -- but he did say where the bodies could be found. (Supposedly he was not promised a pardon, just told he would likely get one. I wonder.) Clune, p. 119, calls his recitation a "remarkable feat of imagination combined with some facts"; it is noteworthy that hours upon hours of questioning never managed to find a significant inconsistency in his testimony. (Martin, p. 239, has a very interesting suggestion: That Sullivan's tale was true except for one thing: That he exchanged the roles of himself and Levy, or, in one case, of himself and Wilson."Jimmy Murray." This would mean that Sullivan didn't have to make up anything; he just had to blame his own actions on Levy and take on Levy's relative innocence as his own. Very clever if true; sadly, we can't know. But Martin, pp. 244-245, gives evidence that Sullivan was an anti-Semite who disliked Levy; it makes sense that Sullivan would exaggerate Levy's role.) The body of James Battle was found somewhat later, confirming another of Sullivan's claims. (Clune, p. 122).
Sullivan's confession, or confessions, since he repeated it at greater or lesser length in different contexts, included information the police had not known, such as the murder of James Battle and the connection of the Burgess Gang with the death of George Dobson. He also claimed that he had consistently been on lookout duty while murders were committed (Clune, pp. 119-120).
The police sent out a party to check his information (Martin, pp. 164-165). And so the bodies were found, and the police at last had proof that murder and robbery had been committed. They were reported to be well-preserved, considering that they were not found until sixteen days after the murders (Clune, p. 121); when they were brought back to Nelson (Martin, p. 167), it was possible to determine the cause of death in each case, and it was clearly murder. In response to that, extra staff were brought in to guard the now-notorious prisoners (Martin, p. 168, seems to think it was to prevent escape; Clune, p. 122, to prevent them from being lynched).
On June 30, 1866, an official inquest was held and the cause of death of the four men was officially declared to be murder (Martin, pp. 168-169).
I am not sure why the song implies that Levy was any better than Burgess and Kelly -- though it does sound as if he was less vile. Possibly it's because he hadn't spent as much time with the gang (Burgess and Kelly, formerly Thomas Noon, had been working together for years), and although he was a habitual criminal he seemingly had no history of violence. Also, he was the only one who had not been transported; he had left Britain voluntarily (Martin, p. 14). Apparently the police felt that "Levy was the most likely of the four to be only an accomplice" and tried without success to get him to turn Queen's Evidence -- only to have Sullivan confess first. (Clune, p. 125, does note the interesting point that the conditional pardon applied only to the Mathieu party murders; it did not cover the murder of Battle. So Sullivan was not necessarily off the hook.)
There were various hearings before the trial proper. Martin, p. 175, says that on July 20, the clerks of the banks in Nelson were testifying about the gold received from the murderers. Sullivan's testimony began on August 2, 1866, six weeks after the four gang members had been arrested (Clune, p. 123).
When Sullivan gave his testimony, it apparently set Burgess thinking. He was by all accounts smarter than Kelly or Sullivan, and he has more experience with the justice system than Levy. Given Sullivan's testimony, the external evidence, and the public climate, he probably sensed that he was going to die. But perhaps he could take Sullivan with him (Clune, p. 125). A few days after Sullivan spoke, given paper and pen, Burgess began to write: "Written in my dungeon drear this 7th of August in the year of Grace, 1866..." (Clune, p. 127). Seven thousand words of confession followed (Martin, p. 177), much of it couched in the language of religious repentance (I personally doubt the repentance, but Burgess probably thought it would be more convincing to his readers; Clune, p. 126, also suggests, and I think it likely, that he was trying to save Levy and Kelly). When it was ready, Burgess read it to the court, then signed the court reporter's copy, declaring it a true transcript. As he said, "I have signed my own death warrant" (Martin, p. 178; Clune, p. 130). Burgess would expand and fill out the testament (Martin, p. 179), but the core of his claims was in the court record.
The problem was that the two confessions differed. Sullivan said that Burgess, Kelly, and Levy had committed the murders but that Sullivan himself was only an accessory; Burgess -- who explicitly declared that Sullivan had perjured himself (Clune, p. 127) said that Burgess and Sullivan were the guilty parties but Kelly and Levy were not involved in the actual slayings. The question then became, Who was telling the truth? And could the state prove its case without using an informer (who, almost by definition, was in it for himself)? Clune, pp. 131-132, thinks "The law had acted too hastily in granting Sullivan the immunity of an informer. The case against all four could have been sufficiently proved without recourse to this detestable detective practice" -- but for the life of me I can't see how. Even if the corpses had been found without Sullivan's testimony, and even if they had found soon enough for them to be in good enough shape to prove it was murder (neither of which is certain), the only evidence they had against the four is that they had been in the right place at what was probably but not certainly the right time.
The formal trial began September 12, 1866, with Justice Alexander Johnston presiding (Martin, pp. 178, 180). (NewZealandEncyclopedia, p. 280, says that Alexander James Johnston, 1820-1888, came from Aberdeenshire, and earned his MA at the age of just fifteen. He was appointed to the New Zealand Supreme Court at age 38, and would later serve as both acting Chief Justice and Acting Governor. In addition to presiding at this trial, he presided over the trials of several Maori "rebels," including Te Kooti, the subject of another Neil Colquhoun song.)
If I understand Clune and Martin correctly, they started with a Grand Jury of 19, which decided on charges, then chose twelve jurors to decide the case. (Clune, p. 133, thinks that the judge left it open for the Grand Jury to find a true bill against Sullivan as well as the others, but they charged only Burgess, Kelly, and Levy.) There was no change of venue, even though (as Clune, p.123, points out) opinion in Nelson was strongly against the gang members. Burgess and Kelly still had no defense attorney; they first one appointed had backed out, and they apparently refused to try to find another (Martin, p. 181). When asked how they pled, Kelly and Levy pled not guilty; Burgess explicitly admitted his guilt but pled not guilty for the sake of the trial (Martin, pp. 181-182). Sullivan also pled not guilty (Martin, p. 182) but was not tried with the other three,
The began with evidence about the causes of death of the four men, with Pitt (Levy's lawyer), Burgess, and Kelly all asking questions (Clune, p. 134). Burgess was especially active in his defense, examining the witnesses who testified about finding the bodies and the cause of death; he disagreed with their testimony at a few points (Martin, pp. 182-183), although it doesn't sound as if it was material. When the state called Sullivan, there was an argument about whether his testimony should be admitted, but the judge finally allowed it (Martin, p. 183), with the judge warning him, in effect, that what he said could and would be used against him and that being an informer did not guarantee him immunity from anything. After the prosecutor had, in effect, led Sullivan through his confession (Clune, p. 135), Burgess began questioning him, with each of the two liars trying to find the inconsistency in the other's story (Martin, pp. 184-188, has a long excerpt from this). Martin declares that both of them slipped up a few times, but seems to find more inconsistencies in Sullivan's testimony. No one (including Burgess) seems to have noted them at the time, though. Kelly also had a turn at Sullivan (Martin, pp. 188-191; Clune, pp. 138-139), and Levy's lawyer Pitt (Martin, p. 191). They chipped away at his testimony a little but in fifteen hours of trying they could not crack him (Clune, p. 139). Then came a parade of witnesses to testify that Burgess and Co. had been on the Maungatapu track at the time of the murders, although none of them could testify to anything that hinted at a murder. (Clune, p. 140; Martin, pp. 196-198. On the other hand, Kelly tried to get them to testify to his and Levy's alleged alibi, and none of them testified to that, either; Martin, p. 194). Clune seems to think this was enough to establish their guilt; I don't, and even if it did, it proved only that some of the Burgess party were guilty, not all.
The whole case was a problem for the judge, who near the end almost ordered Burgess's plea to be changed from "not guilty" to "guilty," since Burgess had confessed. He also had to spend a lot of time worrying about which of Burgess's statements were admissible, and which the jury would have to disregard (Clune, p. 141; Martin, p. 199). It's a defect in the court system, really -- its goal was to determine guilt, not ascertain the truth. He also refused Burgess access to his own written confession near the end of the trial (Martin, p. 195), or even give it to someone other than the police (Martin, p. 196).
After Burgess spoke, Kelly made a more conventional plea to believe his account, not Sullivan's (Clune, p. 143). He also called on Sullivan to confess his true actions, causing the judge to order Sullivan from the court (Clune, p. 145). Levy's lawyer then took his turn, apparently arguing in part that Levy wasn't the type to murder (Clune, pp. 146-147).
After the prosecution closed, Judge Johnston took a night to figure out his closing instructions (Martin, p. 203), after a trial which, to that point, had lasted just five days. I must say that these strike me as highly prejudicial (he roundly condemned Burgess; Martin, p. 204). He also told them they needed to apply the death penalty even if they were personally opposed to it -- a clear indication that the jury had not been screened on that important point! He also said that the evidence presented corroborated Sullivan's evidence, without noting that it also corroborated Burgess's. And he made errors of fact which Burgess corrected (Martin, p. 205; to be fair, the judge accepted the corrections). His instructions to the jury basically ordered them to convict Burgess and urged them to convict Kelly and Levy. It took the jury just 55 minutes to convict Burgess, Kelly, and Levy (Clune, p. 150; Martin, p. 206).
I find it hard to know what "guilt beyond a reasonable doubt" is; I need a probability. But I am bothered. I think there is at least a 90% probability that Kelly and Levy were guilty, but that's surely within the range of reasonable doubt. To be sure, I have yet to read of a nineteenth century trial where I didn't have doubts....
Burgess's mistake, I think, was in trying to accomplish two incompatible goals: to nail Sullivan and to save Kelly and Levy. It meant that he, like Sullivan, had to mix lies with the truth. If he had just gone after Sullivan, he could have told the straight truth and exposed Sullivan's lies; if he had just tried to save Levy, he could have told most of the truth while adding that he had trapped Levy into it. (I doubt Kelly could have been saved whatever he did; Levy's clean record gave him a betrer argument. Although Levy also had greater motive for murder, since some of the victims could recognize him. Clune, p. 176, thinks Levy was too "physically soft" for murder; I don't buy that.) By trying to both nail Sullivan and save the others, he fell short in both.
The three (Kelly in particular; Martin, pp. 207-208) argued with the judge after the verdict was read; he cut them off, assumed the black cap, lectured the three ("with undiluted contempt," as Martin says on p. 208), and sentenced them to death (Clune, p. 150-154; Martin, pp. 209-210). Burgess received his sentence calmly (Clune, p. 153); Kelly lost control and kept trying to argue (Clune, pp. 153-154); Levy -- who had claimed he had witnesses who did not testify -- declared that he still considered himself innocent (Clune, p. 154).
Burgess, Kelly, and Levy, duly convicted, were hanged at Nelson in October 1866. Sullivan in turn eventually faced a different murder charge, and was sentenced to hang in turn, but this was commuted to life in prison.
Despite the failings of the trial, it's clear that the court reached the right verdict for Burgess and Kelly (recall that one of the murder victims had been strangled, and Burgess once said that Kelly had taught him to strangle his victims; Martin, p. 229), and I think for Levy also -- although I somewhat doubt he *wanted* to commit murder, he probably *did* commit murder, and even if he didn't actually kill anyone, he participated in a plot which was likely to result in murder. Accessories to murder would generally get the death penalty at the time, so hanging him was appropriate by 1866 standards. I'd have given him life in prison instead, were it up to me, but of course I wasn't even alive then! The one thing that bothers me is Sullivan. They got him for the murder of Battle, sort of, but it is unconscionable that he suffered less than Levy just because he peached first (so also Clune, pp. 177-178). This is a severe defect in British justice that came up again and again -- e.g. in the Burke and Hare murder case.
The day after the three were condemned, Sullivan was placed on trial for the murder of James Battle, with Justice Johnston presiding but a new jury (Clune, p. 155; Martin, p. 210). Sullivan, asked how he pled, said he was "not guilty of actual murder," which the judge interpreted as a plea of not guilty (Martin, p. 210). Burgess and Co. did not testify; the case consisted of evidence that murder had been done plus Sullivan's account of what happened (Clune, p. 156). Sullivan said he didn't do it -- but it is worth noting that Battle died of suffocation made worse by a punch in the stomach. Recall that Sullivan had been a prizefighter; he was the member of the gang most able to kill with a punch!
The judge told the jury that a participant in a conspiracy to murder was as guilty as the actual murderer (Martin, p. 211). The jury promptly convicted him of murder, after just 25 minutes of deliberation (Clune, p. 157), and Justice Johnston sentenced him to death (Martin, p. 211).
The government at Wellington had to approve the executions, and the order to proceed arrived on Wednesday, October 3, 1866 (Martin, p. 212; Clune, p. 162, points out that this was exactly sixteen weeks after the murders). The locals, wanting to get things over with, scheduled the hangings for just two days later, the morning of Friday, October 5.
There was barely time to finish the scaffold before Burgess, Kelly, and Levy were hung. Burgess had spent the time since his conviction revising and expanding his confession (Clune, p. 160). It contains a number of religious comments, but Clune, p. 161, thinks these were added, or at least dictated, by his spiritual advisors; he believes they interrupt the flow and don't sound like the rest of the narrative. Nelson having never staged an execution (Clune, p. 160), and having no official executioner, they took applications, and the man who got the job was someone named Clarke whom Burgess knew as a fellow criminal. (Martin reports that Clarke would eventually be executed himself, in Hobart, for committing murder.)
The hanging, by law, was private (Clune, p. 166), but there was a more public moment before the men were taken to the scaffold. When the time came for last words, Burgess thanked those who had helped him in his final days and was relatively unemotional. He even complimented the local police commander on the promotion he had received for his work on the case (Clune, p. 167) as well as others he had been with during his time in prison (Martin, pp. 214-215); upon reaching the scaffold, he kissed the rope and said it was a prelude to heaven (Martin, p. 218). Levy gave a short speech about how his trial was somewhat unfair but was brief and also relatively unemotional until the end (Clune, pp. 170-171), though his last words were "I am innocent" (Martin, p. 219; Clune, p. 173). Kelly kept protesting -- he had written a four-page speech -- until they shut him up and took him away from the crowd (Martin, pp. 213;, 215-216 Clune, pp. 164, 168-170), having to haul him to the scaffold as he continued to protest (Martin, p. 219; Clune, pp. 172-173).
Burgess of course left the testament he had written; Levi had written a letter to his relatives again protesting his innocence and wishing them well (and saying he wished Sullivan would someday tell the truth); his rabbi later released it to the press (Clune prints it on pp. 164-165).
When the three were dropped, Burgess and Levy quickly stopped moving, Kelly did not; his body was convulsing, forcing the hangman to grab his legs to try to complete the execution. Clearly his neck had not been broken -- not an unusual occurrence when an amateur executioner was involved. But autopsies indicated that none of the three had actually had their necks broken (Martin, p. 220; Clune, p. 174); it's just that Burgess and Levy had presumably gone unconscious before they slowly strangled.
Afterward, the heads of the three were apparently removed so that casts could be made of them, while phrenologists made... phrenologists of themselves (Martin, p. 221).
The same mail shipment that had approved the executions of Burgess, Kelly, and Levy had included an order commuting Sullivan's sentence to life imprisonment (Clune, p. 162, who adds that he was shipped to Dunedin under guard to prevent him from being lynched). But he was a problem there, too -- the prisoners wanted to kill him (Clune, p. 178; Martin, p. 250). In 1869 someone who claimed to be his wife wrote to ask what his fate was to be (Martin, p. 250 -- though in 1871 she gave up and married another man; Martin, p. 251). Sullivan was pardoned in 1874 on condition that he leave New Zealand (Martin, p. 252). He wasn't allowed into Australia, either, since they had banned transportation of prisoners on conditional pardons. He wanted to go to the United States, but the ship that was supposed to take him turned around and took him back to Auckland the moment they found out who he was! (Martin, p. 252). So, after being paid to absent himself, he was sent back to Britain (Martin, p. 253; Clune, p. 179. This was presumably legal, since he had completed his sentence). Once he was recognized on the ship, he had to be kept under guard, in part for his own protection (Martin, p. 253). When he arrived in Britain, the British authorities started watching him (Martin, pp. 253-254). It was a crummy life, plus he wanted to see his family in Australia. He somehow managed to disappear from Britain and make it to Australia (Martin, pp. 249, 254). He soon showed up at his wife's door (Martin, p. 254). There, he was discovered and forced to leave the area (Martin, p. 254) then sentenced to transportation to New Zealand or three years in fetters (Clune, pp. 179-181). He argued successfully that this was against the law, but spent fifteen months in jail in Melbourne before it was determined that he was within his rights to visit his home (Martin, p. 256). Once free, he tried again to return to his wife's home (Martin, p. 257), but no one wanted him around, and they kept persecuting him (Martin, pp. 258-259). Interestingly, no one reports evidence of him committing another crime; the last report we have of him has him grubbing for gold and barely having enough to eat (Martin, p. 260). But what happened to him thereafter is apparently unknown; there is no verifiable record of where or when he died.
In the period after the convictions of Burgess and Co., several people who had worked with the Burgess Gang were taken into custody. Jimmy Murray, also known as James Wilson, the man involved with the Dobson murder, was one of them; so was John Carr, the policeman who had helped the gang steal police equipment (Martin, p. 225). But Sullivan, the main witness against Wilson/Murray, was so despised that the jury refused his testimony and acquitted Wilson (Martin, p. 216); another case also resulted in acquittal apparently because Sullivan was the key witness (Martin, p. 217, though on p. 241 Martin offers evidence that Sullivan again was lying, blaming Wilson for his own crime -- Wilson had witnesses saying he was not there). Martin's conclusion on p. 248: "The truth of the Maungatapu mystery may never be known, but there is a case for the man whose confession around the neck of his companions being as guilty as two of them and more guilty than the third."
There are several memorials to the crime. Rickard, p. 144, says that "Battle's Gully, near Port Underwood, was named after a whaler named James Battle from Tasmania; in 1866 he had the misfortune to be murdered by the Burgess-Sullivan gang, the notorious Maungatapu murderers."
In addition to the Burgess/Burton book, there are at least three others about this event, Wayne Martin, Murder on the Maungatapu: A Narrative History of the Burgess Gang and Their Greatest Crime, Canterbury University Press, 2016 (cited as Martin); [David M. Luckie] with a Preface and Postscript by A. A. Grace, The Maungatapu Mountain Murders - A Narrative of the Murder of Five Men Between the Wakamarina River and Nelson by Burgess. Levy. Kelly and Sullivan in 1866., R. W. Stiles & Co., 1924; and Frank Clune, Murders on Maunga-Tapu. A history of the crimes committed on the lonely slopes of Maunga-tapu ("The Sacred Mountain") in New Zealand in the year 1866, Angus & Robertson, 1959 cited as Clune). Martin strikes me as an excellent piece of scholarship; Clune is pure sensationalism and moralizing and probably should be avoided. I have not seen Luckie.
This is not a traditional song in any sense, but the event was dramatic enough that it probably deserves a song. - RBW
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