Friday, 3 June 2016

The Trial of Ned Kelly

John Harber Phillips
Surprising links keep turning up in the Kelly story. Here’s a curious one : Lindy Chamberlain and Ned Kelly were both defended by John Harber Phillips, the Victorian barrister who eventually became Chief Justice. He unsuccessfully defended Lindy Chamberlain at her first trial in 1982 and his defence of Ned Kelly came 107 years too late in the form of a book, The Trial of Ned Kelly” published in 1987.  And here’s another curious co-incidence : Lindy and Ned were both found guilty of Murder on a Friday, October 29th, but 102 years apart, in Court proceedings JHPhillips regarded as flawed in both cases. 

So much for trivia.

Ive been looking everywhere for Phillips book, because its author is often mentioned in the Kelly world as an authority whose opinion about Ned is said to support two important planks of Kelly mythology : the injustices of Kellys' trial, and the Republic. I wanted to read for myself what he actually wrote. But its not an easy book to come by.


In the end I bought a copy through Abe books at an exorbitant price. Published in 1987 its barely 100 pages long . Phillips interest was directed at the conduct of the trial, and there is not much else in the book but at numerous places explanatory references to various aspects of the Outbreak are inevitable. They show Phillips to be poorly informed in that regard, for example saying that the rail-way line was ripped up after the hostages had been confined to the Inn, and that Joe Byrnes body was retrieved from Ann Jones Inn at the same time as Steve and Dans were, after it had been reduced to ashes. These errors probably wouldnt be noticed by the average reader, and they are not important.

Phillips opinion, at the conclusion of his review of the trial was that  “..Edward Kelly was not afforded a trial according to Law”.   This is the statement that  Ian Jones and the other Kelly myth makers leapt on and continue to quote, citing Phillips lofty legal authority as evidence for their belief in the injustice of Ned Kellys conviction and execution. Unsurprisingly, in the context of the manufacturing of myth, Ian Jones and the rest neglect to mention Phillips next sentence “Whether the result would have been any different had the Jury had been correctly directed is, of course, entirely another matter”

Effectively Phillips is really saying that what he regards as a technical deficiency in the trial, may, in the end, have made no difference. Indeed every opinion I have read is that if acquitted of Lonigans’ murder, a subsequent trial of his killing of Kennedy would have most certainly convicted him of murder, and he would still have been hanged.

However I agree with him that the process is at least as important as the outcome. So what exactly went wrong?

Phillips believed that in his summing up the Judge was  obliged to remind the Jury that they had an option to return a verdict of not guilty on the basis that the killing was undertaken in self-defence.  However, Judge Barry didn’t do this. When I went back to read and re-read Bindons’ defence of Kelly, such as it was, I couldn’t find any evidence that Bindon did actually advance the defence of self-defence. Various elements that could have been drawn together to make such a defence were alluded to, but there was no attempt to present that specific argument to the jury. Instead Bindon focused on McIntyres testimony, trying to discredit it, and attempted to  convince the Jury that Neds claims to have done all the killing were a cover-up to protect the other gang members and that nobody could be certain who had fired the fatal shots. He also tried to persuade the Jury of something he had tried unsuccessfully to persuade the Judge during the trial, that the deaths of Scanlon and Kennedy, the Bank  robberies and the events at Glenrowan were not relevant to the issue of Lonigans murder. 

This led me to wonder if the real fault was Bindons for not having advanced self-defence as an argument, and that, if he hadn’t, why would the Judge be obliged to raise it? According to Phillips,  the fact that testimony given by various witnesses for the prosecution included statements of Kelly’s that he was acting in self-defence, created a duty on the Judge to inform the Jury that self-defence was a possible defense to the charge of murder, even though Neds team hadn’t raised it themselves. Philips says that Judge Barry raised the topic of self-defence in his summing-up of an earlier murder trial, and should have done it here too.

However Phillips also points to the Law of the day that said any person killing a Policeman, even accidentally, but while attempting to resist or escape arrest, is automatically guilty of murder. This was an additional protection afforded the Police in the execution of their duty, but only applied if the Police were acting lawfully. Phillips believes Judge Barry ought to have asked the Jury to consider if indeed the Police were acting unlawfully, as Kelly alleged, acting outside their brief with an intention to kill him. If that were the case then he had a right to self-defence. Instead, Redmond Barry ignored this possibility in his summing up, and the option of finding Ned not guilty on the basis of self-defence was taken from them. They had to find him either Guilty as charged, or, on the grounds offered by Neds inept defence, Not Guilty. But, as Phillips comments “ the matter was put to the jury in terms that were conclusive in favor for the prosecution”


So what would have happened if Judge Redmond Barry had done as Phillips believes he should have done, and advised the Jury they could find Ned not guilty on the grounds of self defence? He would have needed to explain to them that the Law that automatically defines the killing of Police as murder only applies if the Police were acting lawfully. He would then have to ask them to decide if Lonigan was acting illegally, trying to kill Ned rather than arrest him. If so, then Ned could have legitimately claimed to have killed in self defence, and if the Jury accepted this, they could find him not guilty.
 


But would they? 



The answer to this hypothetical question is assumed by Kelly sympathisers and writers to be yes, it was a miscarriage of Justice, the Jury was misdirected and of course if Barry hadn’t been so corrupt the Jury would have found Ned not guilty. But I am not so sure. Neither was Phillips.


Another inconvenient quote from John Phillips that the Kelly myth makers will never acknowledge is this one from an article he wrote for the La Trobe Journal, No 73, Autumn 2004: 

"I have long been of the opinion that Barry misdirected the jury in Kelly's trial by, in effect, taking away from them in his charge one of the central issues in the proceeding - whether the police party had gone forth to shoot him down or arrest him. It is possible that were the trial to be reviewed by a modern Court of Appeal, it would, because of the strength of the prosecution case, apply the Proviso in S.568(i) of the Crimes Act on the basis that it considered that no substantial miscarriage of justice had occurred.

If  it were possible to go back in time and change what Barry said in his summing-up, but no other aspect of the trial, there would still be the inexperience and inadequacy of Ned Kellys defence to contend with, and by contrast what Phillips above refers to as ‘the strength of the prosecution case’. There would still be the testimony of  McIntyre and all those people who had been Neds hostages, the knowledge of what happened to Scanlon and Kennedy, the robbery and hostage taking, the plans for Glenrowan, there would still be Neds strange behaviour during the Court case itself, there would still be the impression of  Dr Reynolds autopsy findings on the minds of the Jury, not to mention the real difficulties of accepting that it can be self defence to kill after deliberately confronting the Police in their camp... 


I think if the only thing that changed in a hypothetical re-run of the trial were the directions and  Judge Barrys summing-up, the outcome would have been the same. It was not the Judges responsibility to develop the argument of self-defence, to persuade the Jury of the merits of such an argument or to draw all the elements in favour of it together into a coherent defence - that was Bindon and Gaunsons job, but they didnt. 



The truth is that if Kellys defence had done their job perfectly, and the Judge had done his perfectly as well, the Jury may still have found Ned Kelly guilty of the murder of Lonigan. They might have decided the Police were there lawfully carrying out their duty, that Ned Kelly had no right to confront them whether to disarm them or not, and the resulting death rendered all four of them guilty of murder. 



And the rest, as they say, would be history.

30 comments:

  1. Dee, you are wrong in thinking that if Ned was acquitted of the Constable Lonigan murder the Crown would have proceeded against him with the Sgt Kennedy murder. There were no other living witnesses to the Kennedy murder than Ned himself...

    In fact, a trial brief against Ned for the Constable Scanlon murder had been assembled in case the Lonigan case failed. This brief is available at Public Record Office Victoria. However, Ned was convicted and executed for the Lonigan murder, and the Scanlon accumulated evidence was not required.

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    1. Yes I was aware of the Scanlan trial brief and that nothing had been prepared in relation to Kennedys death, but Ive often thought that it would have been better to pursue his killing of Kennedy because the question of killing in self defence couldn’t be raised in that case.

      One often reads that the absence of a witness was a problem in pursuing charges against Ned in relation to Kennedys death, but this surely is nonsense. I would guess MOST murders are not witnessed, and yet that doesn’t prevent a conviction. If you have an admission, and good circumstantial evidence then a Jury can and often does convict.

      Wouldn’t it be fun to have a serious re-enactment of the trial where the roles and the lines of the participants were not based on Kelly mythology but on reality? Now THERES a project for the BHRG!

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    2. "There were no other living witnesses to the Kennedy murder than Ned himself..." While obviously you are correct in that Mal, you have to remember that Ned had spoken about the murder of Kennedy to some of the hostages at both Jerilderie and Euroa. That is strong evidence. In addition, McIntyre's observations of those responsible for the killings of Lonigan and Scanlan, would certainly provide compelling circumstantial evidence as to who was responsible for the death of Kennedy. I think the Crown would have had a very good case to pursue Kelly if necessary.

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  2. Justice Barry is just another much maligned figure in the wretched Kelly myth. He had been a judge at the treason trials of the Eureka Stockaders a quarter of a century before. Juries acquitted them all.

    Phillips's Ned Trial book was a strange curiosity in which some of the courtroom evidence was manufactured, or at least noone else has been able to find what Phillips cited. Many of the modern criticisms of the trial are ill founded or incorrect.



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    1. Its standard practice in the world of Kelly mythology to vilify anyone who doesn’t agree with their idolatry of Ned Kelly, and you are absolutely right, Redmond Barry is one such “much maligned” figure. I will make a post about him too, one of these days and expose their portrait of Barry as yet another example of Kelly mythology and misrepresentation. The more I delve into the FACTS of this story the more staggered and amazed I am at the extent of the lies distortions and inaccuracies that underpin the whole shonky facade of the Kelly ‘legend’.

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    2. Can I suggest Ann Galballys book on Redmond Barry? Very well researched. He contributed so much to Melbournes culture and society. In stark contrast to keeping a mistress. (Louisa Barrow.) A very intelligent man with a few skeletons in his closet. There's that old pesky shades of grey thing again..

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    3. Mark why don't you write a Post about Redmmond Barry using that book? I don't have the book and probably not many of our readers have either. I was going to use Phillips speech about him but your books sounds good! Submit it here and instead of putting it up as a Comment I will copy and paste as a Post by you! OK?

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    4. Dunno Dee. No one likes Redmond Barry in these parts...

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    5. Oh well looks like I will just have to do it myself...

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    6. No. I will do a better job. (wink.) Just give me some time. Life is busy. (well played though by the way..)

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    7. Sorry Mark I forgot to thank you for the generous offer. I look forward to receiving your Post sometime soon. I'll post it exactly as you send it to me even if it isn't better than what I could have done! I've been really busy lately so could do with some help.

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    8. I am a wordsmith Dee. I forge words like a blacksmith forges a horseshoe over an anvil. I will make my sentences sing. Words will drip off my tongue like nectar... (wink..) I am also wondering why Sharon hasnt done much article wise.. Where is she??

      But seriously. ...Things are a bit full on at moment for me so please stand by. Rome wasn't built in a day. I need to re-familiarize myself with Galballys book too.

      I bought it back in 2010 at the Ned weekend and whilst most everyone were foraging for Ned trinkets in a frenzied fashion, I thought learning more about Barry was money better spent.

      Anyway, long weekend coming up. I am off to Burra, SA's answer to Beechworth. Good spot. The town that saved Adelaide from bankruptcy in the 1850's and where "Wolf Creek 2" was filmed with John Jarratt in the old Burra Brewery cellars. The home of Johnny Green. Also, the site of old Gaol in "Breaker Morant".

      Hope everyone has good weekend.
      Be good. Be safe.

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  3. The Kelly gang went deliberately to Stringybark creek to bail up the police there. No self-defense plea is possible. As well, Lonigan and Scanlon were killed before they could fire back. That's not self-defense by the gang either. They were all firing at police. No wonder the killings became known as the 'Police Murders'.

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    1. Pete it's an interesting discussion about the technicalities of the law, but if Ned could persuade a Jury that he was convinced the Police were coming to KILL him, then he could make a case that he killed in self defence! There have been such actual cases in Law and it's not even necessary to wait for the person who was killed to have fired the first shot or thrown the first punch. Even more interesting, it seems that the belief that prompted the pre-emptive strike doesn't even have to be valid, just truly believed by the person making the pre-emptive strike. So even though intuitively one can't help thinking that going TO the Police and confronting them rules out the possibility of what followed being self-defence it seems in law it's possible. Marks pesky old shades of grey!!!

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    2. Did the gang go there deliberately though Pete?? Or were they simply reacting to the police being in the Bullock Creek area and McIntyres shot at parrots??? And was Lonigan fired at first? Hmmm...

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  4. We are going around in circles

    http://kellylegend.blogspot.com.au/2015/06/more-on-killing-of-lonigan.html?showComment=1434619340031

    http://kellylegend.blogspot.com.au/2015/06/more-on-killing-of-lonigan.html?showComment=1434619340031

    In the book ' The Trial of Ned Kelly' by former Chief Justice of Victoria John H.Phillips, on page 50, he writes-

    " The only 'Challenge' to McIntyre's evidence was the suggestion that it may have been someone other that Ned Kelly who shot Lonigan- with a rather vague assertion that McIntyre would have been in an excited state and therefore liable to inaccuracy."


    In Posting 21, 16 June 2015,
    I wrote this part post - as gathered from the Royal Commission report -

    My words,-

    "Ned was set up to be tried for Const Lonigan's murder but when all the disparities came to light, i.e., McIntyre's four different accounts of the shootings, the big wig layers decided to instead turn focus on the shooting of Const Scanlan, but here too McIntyre would not testify on oath that he saw Ned shoot Scanlan. And, when Mc was giving his account of the Lonigan shooting, also sitting nearby was John Sadleir who had in his possession quite contrary evidence from George Stephens. Sadleir was afraid McIntyre would commit perjury if properly cross examined. By all accounts it was a kangaroo court committed to convict Ned Kelly no matter what.

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    1. As I recall, Ned Kelly admitted to a few people that it was he who shot Lonigan.

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    2. In addition -

      On Para 8, Dee wrote
      " But only if the police were acting lawfully"

      Was there a warrant to arrest the Kellys ? RC said Fitzpatrick had knowledge of a warrant 'only' to arrest Dan Kelly but he had not seen it or had one with him when attempting to arrest Dan Kelly.

      " Justice Phillips believes Judge Barry ought to have asked the jury to consider if indeed the police were acting unlawfully"

      as Ned Kelly alleged,

      If that was the case then Kelly had a right to Self Defence.

      This was not done, - so the case against Ned Kelly was flawed.

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    3. Yes Bill I think if a future Chief Justice concluded the trial was flawed then we have to accept it. However he made the point that if the Jury HAD been instructed properly, the outcome may well have been the same. Furthermore in his later comment, he said if the case had been referred to a modern Court of Appeal on the grounds that a miscarriage of Justice had occurred because of those flaws,that Court may well have taken the view that inspite of those flaws a miscarriage of Justice did NOT occur and they would then decline to hear it. ( In other words he was suggesting that pleading the defence of self-defence was unlikely to be successful on the evidence provided)

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    4. "RC said Fitzpatrick had knowledge of a warrant 'only' to arrest Dan Kelly but he had not seen it or had one with him when attempting to arrest Dan Kelly." There was and still is, no need for police to have the warrant in their possession to effect an arrest. At Common Law all that is required is that the constable knows of the existence of the warranty and the offence for which it has been sworn.

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  5. It’s not surprising we’re going round in circles Bill - the SBC events are almost impossible to put together into one rational narrative that accounts for all the parts of the puzzle. The biggest problem is that Ned claimed to have killed Lonigan with a single shot but Lonigan has four bullet wounds. McIntyre also claimed only one shot was fired, and he saw Ned fire it, and he saw Lonigan on the ground immediately afterwards. Trying to explain how one shot could cause four wounds has resulted in the ‘quartered bullet’ theory. The trouble with that is that nobody can describe a position that Lonigan could have been in such that all those four wounds were created at once. This is made even harder to explain by Neds claim that Lonigan was hidden behind a log and raised his head above it to take aim at Ned when he was shot. This in turn led someone to postulate that somehow Lonigan was ‘wrapped’ around the end of the log, but if his upper left leg was exposed, Lonigan was hardly ‘behind’ anything - almost his entire body would have been visible to Ned. I believe the quartered bullet theory is wrong as it cannot explain how bullets fired at the same time arrived at lonigans body with such different momentum - one able to break through bone, another barely able to penetrate the skin. So did others fire into Lonigans body after he was dead, all at once? I don’t think all these contradictions can be accounted for, and the exact details of what happened to Lonigan will never be known with certainty, other than that he was killed, and I don’t doubt it was by Ned Kelly.

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  6. Mark, irrespective of the reason, the gang deliberately went to SBC and confronted and killed the police.

    I don't think there is any evidence Lonigan fired a shot. His revolver was recovered at Glenrowan.

    Bill, you say McIntyre's had four different accounts of the shootings. What were they, and were they written or verbal accounts, or both? McIntyre's 'accounts' were are sworn statements. In court when questioned by defense lawyers, his 'accounts' may have differed in phrasing but not in substance. The only different version is in Sadleir's book published 30 years after these events. I think even McIntyre was dead by then.

    Phillips was not a judge or Chief Justice of Victoria when he wrote the book about Ned's murder trial. He was a relatively young defense lawyer with a bee in hhis bonnet about Ned.

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    1. Yes when he wrote his book he was not the Chief Justice, but he had been by the time he wrote those remarks for the La Trobe journal in 2004. His opinion hadn't changed in the interim, so I think his argument was sound. It doesn't bother me to accept there were what he regarded as deficiencies in the conduct of the case, albeit ones which technically at least resulted in Neds trial not being 'according to Law' because he was also of the opinion that they didn't actually result in a miscarriage of justice.

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    2. If you jump on the wrong horse its hard to change horses later.

      Like Sue de Silva earlier, I noticed the courtroom questions and answers printed in the Phillips trial book. Since there was no trial transcript, and newspaper reports did not quote questions, I hope these long quotes in the book weren't 'manufactured'. If they were, the whole book is sunk.

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    3. Phillips acknowledges in the book that there are no Court sanctioned transcripts, and he relies on the News reports, so that is the source of the "dialog" . I didn't comment on this in my Post - maybe I should have. - but they don't really affect the point of the book,in my opinion, because he is making an argument about a legal issue and the Judges duty rather than specifics about exactly what was said. I am assuming that the news reports were more or less accurate in so far as they reported on everything that he covered in the summing up, albeit not in detail.

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    4. Frank Middleton12 June 2016 at 00:27

      The news reports don't support Phillips. I haven't seen a single news report of the Kelly trial that quotes questions and answers - as seen in the PHILLIPS BOOK. The only exception is the dialogue between Kelly and Justice Barry when Ned was sentenced to death, but that did not involve trial evidence. I'm thinking that Phillips conned us in his book.

      The later ABC and other trial re-enactments were and are woeful and misleading.

      Later legal pronouncements like Phillips's book have led us astray.

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  7. It seems to be the general consensus here that the reason the defence of self defence was not bought up at the Kelly trial was due to the incompetence of Kelly's legal team. It is true his barrister Bindon was inexperienced but his solicitor Gaunson was well acquainted with Ned Kelly and his claims of self defence

    I would contend that this aspect would have been thoroughly examined by his legal team and either deemed impossible to prove or actually detrimental to their case once all the facts were reasonably considered. If introduced it would potentially allow the prosecution to produce rebuttal evidence including details of previous offences, threats by Kelly to kill Police and other matters of Kellys character, temper and intent to cause harm.

    All things considered it is reasonable to assume that an apparently incompetent legal team wasn't the only reason self defence was not raised at trial.

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    1. Mike, your point is also made by Alex Castle in his book, the fact that Ned had Gaunson acting for him as well, that Bindon wasn’t acting alone. Its just another false and ignorant Kelly myth that Bindon was incompetent and thats why Ned was found guilty. But you are right I think - Gaunson and Bindon MUST have considered self-defence - its a common enough plea - yet as you say, decided against using it , and there would only be one reason for not using it, and thats their belief that it would NOT be successful. As Phillips suggests, the ‘deficiencies’ in Neds trial were real, but they didnt result in a miscarriage of Justice. Ned was found guilty because he WAS guilty.

      (And I am still waiting for some Ned supporter to raise the issue of Ned being found not guilty in those TV mock re-trials, or maybe theyre too embarrassed to mention them, given that 60 Minutes is SO on the nose these days!!)

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  8. I disagree with Mike Jones than Gaunson "was well acquainted with Ned Kelly and his claims of self defence".

    Gaunson was a late legal replacement by the Kellys, and had trouble getting to Ned before the Beechworth committal. Even so, he defended Ned quite competently there.

    Bindon was a dud with negligible court experience who had missed the whole Kelly episode overseas. Neither of these men ever wrote about what they may have conferred about, or how and if they planned Ned's defense. Its another vast blank in the Kelly story.

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  9. This is rather off topic Dee, but of some interest regarding the dangerous outcomes of having a Ned Kelly tattoo:

    http://www.findlaw.com.au/articles/4345/ned-kelly-tattoos-minors-and-murder.aspx

    This subject has been mentioned in earlier forums and comments.

    That wretched australian government Ned Kelly glorification site is still running. It makes us look like a nation of D*ckheads:

    http://www.australia.gov.au/about-australia/australian-story/ned-kelly

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