Thursday, 27 August 2015

Kelly Myths and cockroaches : Hard to Kill Off


“Ned Kelly : Man and Myth” is a fascinating book that was published in 1968. It contains the results of a symposium that was held over  the Easter weekend of 1967 at Wangaratta. Presenters at the symposium included Professor Manning Clark, and a youthful Ian Jones. The  lectures are presented along with interesting discussions that took place on the floor after each of them. The symposium included a display of Kelly “relics, documents photographs and writings” as well as a conducted tour through Kelly country. It would have been a fascinating weekend I am sure. But that was 48 years ago, many of the participants have passed on, and many new Kelly books and much new research has been published since then.  Its time someone convened a new symposium.

Never-the- less much of the material presented is still relevant and interesting to read.

I’ve just read  Chapter 5 : Regina v Edward Kelly by Law  Professor Louis Waller. It’s about the Trial, as you would guess and is brilliantly written. He provides much background information about the way in which the system operated then, and  how it differs and where its similar to the system that now operates. His description of the trial itself  is the best Ive ever read and along the way he addresses many of the issues that are still raised about the adequacy and the fairness of the trial. For example one often reads that the trial was rushed through so that Justice that Barry could go to the Races – at the end a questioner asked if a two day trial for a capital offence was a “track record” and Wallers reply, demonstrating his detailed knowledge of the times, was that in fact by the standards of the time it was a LENGTHY trial. He noted there were instances of arraignment trial conviction and sentencing taking as little as “about a quarter of an hour”.

Even Peter Fitzsimons in his recent book perpetuates this falsity, writing in Chapter 17 : “Nothing is to be allowed to interrupt his (Barry’s)  attendance at the Spring Carnival” This example illustrates yet again how uncritical the Kelly Mythmakers are, ignoring known facts and expert opinion to enable a piece of Kelly Mythology to persist to the present day even though it was exploded nearly half a century ago!

The thing that particularly delighted me, was to read the Professors view about the defense of Self Defense which was never actually put at the trial but is often regarded as the defense Kelly wanted and Bindon, his Barrister should have presented. What Waller believed all those years ago was what I had concluded myself, and presented in a Post here last year though not nearly as coherently as Waller does, that “Self defense” could indeed have been successful, and could have resulted in a different outcome to Ned Kelly’s trial for the murder of Lonigan. He provides a detailed description of relevant case Law from Kelly’s times and modern times to illustrate his  argument, but in the end has to admit that the outcome MIGHT have been different rather than WOULD have been. In any event, even if his trial for the murder of Lonigan had found him not guilty, there was still the matter of Scanlan and of course Kennedy : Waller wrote  “It would be impossible to make out a similar argument in respect of Sergeant Kennedy”


In truth, notwithstanding the hyperbole and misrepresentations about deficiencies in the trial that ended up with Ned Kelly being sentenced to hang, even if the Lonigan case had been decided in his favour, its impossible to imagine that his ensuing trial for the murder of Scanlan  and then of Kennedy would have ended the same way. One way or another, Ned Kelly’s crimes were going to catch up with him and he was destined to hang.

2 comments:

  1. There was a sequel to the '68 symposium. It look place in '93, again in Wang. And it was just as fascinating. Participants included Ian Jones (revisiting the Kellys and Beechworth and site of Stringbark battle), Keith McMenomy, John Phillips, Jane Clarke and others. It was never published. I do however have a copy of the papers presented (thanks to Marian Matta some years ago) and happy to assist if anyone is interested.

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  2. Always an interesting topic Dee,
    Everyone thought you had given up !


    Regarding the shooting of Constable Lonigan and trial of Ned Kelly,

    Discussion on the previous topic 'Murders at SBC' - I believe its pretty clear Ned may not have fired the killing shot at Lonigan. Most likely a second rifle shot fired by Dan Kelly who had been covering Lonigan from the start of the bailup.

    Const McIntyre would not testify at Kelly's trial that Kelly shot Scanlan, nore Kennedy's fatal shot because Mc was not there .

    The late Victorian Chief Justice - John Phillips in his book 'The trial of Ned Kelly' (1987) summerised it this way-
    he wrote - last paras on page 92, and 94

    P92 " What were the police really about?
    If they were bent on effecting the lawful arrest of Kelly or his brother, then Kelly's killing of Thomas Lonigan was murder; but if Kelly could show that their real purpose was to shoot him down and that in those circumstances he inflicted no greater injury on Lonigan than he in good faith and on reasonable grounds believed to be necessary in order to defend himself, then the defence had been made out and he was entitled to be acquited."

    P94 " the conclusion is inescapable that Edward Kelly was not afforded a trial according to law. Whether the result would have been any different had the jury been correctly directed is, of course, entirely another matter"

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