50th Anniversary Lecture : Regina v Edward Kelly

Professor Louis Waller, Oxford graduate and Professor of Law at Monash University gave a long detailed and expert Lecture that was followed by a very long and interesting discussion about Ned Kellys trial. Professor Waller described the trial quite brilliantly, provided fascinating insights into the way trials were  conducted in 1880 and examined Kelly’s defence ‘in some detail’.

If we had been there at the trials he says we wouldn’t  have noticed much that looked any different from trials conducted today – the set-up in the Courtroom, the look of the judge in his red robes and the Lawyers in black with horse-hair wigs. By and large he says the process itself would have been much the same as it is today but with some important differences, the first one being the view of the time that a defendant was always regarded as  an ‘untrustworthy  witness’ and therefore was deemed to be unable to provide sworn evidence on their own behalf. In 1891 that prohibition was lifted so that accused persons could voluntarily give sworn evidence on their own behalf, depriving the defence of the tactic of announcing the defendants lips were sealed and giving the Prosecution the opportunity to cast aspersions on the defendant who refused to submit to cross-examination in the witness box under oath. However a defendant even in 1880 could chose to provide an unsworn statement from the dock, a statement that would not be subject to cross-examination, something which Ned Kelly declined to do.

The second major difference that Waller pointed out was that in 1880 there was no ‘general appellate process in criminal cases’ -  except in some very limited circumstances that were dependant on the trial judges discretion. In other words there was no court of appeal as there is today.

The third difference Waller pointed to was the rule about burden of proof. Nowadays we agree its the Prosecution that has to convince a Jury of its case ‘beyond reasonable doubt’. Back then, this concept was not established in Law and in Ned Kellys case it was the Defence who carried the burden of proof, needing to convince the Jury that perhaps he killed in self defence, or under duress or ‘whatever  other excuse or justification’ they could offer. 

In regard to the trial itself, Waller provides a detailed and clear description of how it proceeded, and recounts in full the unexpected and memorable conversation between the now convicted murderer Ned Kelly and Judge Redmond Barry as he was about to sentence him to death.

Waller next discussed Ned Kellys defence, which was that McIntyres evidence couldn’t be relied on and therefore the identity of Lonigans killer was uncertain. Bindon suggested that the Jury had been influenced by evidence he believed should have been inadmissible. (Waller agreed with Bindon and disagreed with Judge Barrys ruling on that point which related to events that took place AFTER the death of Lonigan). Bindon, Neds Lawyer, didn’t raise the issue of self defence though he hinted at it.

Waller then provided a detailed discussion of how self defence could be a defence, and indeed had already been successfully used elsewhere in the Empire, and cited a case from NSW in 1870. Such a defence is made complicated when the victim was a police officer, because Police had then, and still do have a particular protection, which is two-fold : the first  is that killing a Policeman while resisting arrest, even if the killing is unintentional, is murder. Waller identifies this kind of murder as ‘constructive’ as opposed to ‘express malice’ where in the usual case its necessary to prove ‘malice aforethought’ or an intention to cause grievous body harm. The second component of this protection is that a Policeman is not guilty of murder if he kills a man in the execution of a warrant for arrest, when ‘the object for which death or harm is inflicted cannot be otherwise accomplished’( R v Phelps 1841) This protection only exists where the arrest is Lawful, Waller pointing out that examples existed of Police killers being acquitted or being convicted of manslaughter, on the grounds of Police action being illegal for various reasons. He cites an example of a parish Policeman attempting to make an arrest in a parish over which he had no legal jurisdiction.

Waller believes a credible defence could have been created out of these two components – that Kelly believed on various grounds that the police may have been acting illegally, intending all along to kill Ned Kelly who was merely defending himself. This opened up the possibility of acquittal or at the least, a conviction for manslaughter rather than murder. The important deficiency in Kellys trial that Waller clearly identified 10 years before Justice Phillips wrote an entire book on the same point, was that Judge Barry misdirected the jury when he told them their options were to convict Ned Kelly of murder, or to acquit him. He should have told them finding  him guilty of manslaughter was also possible. Waller said “It would have been the Jurys task to decide a number of difficult questions going to Kellys beliefs about what the Police planned to do, about the necessity of protecting himself by holding up the police and ordering them to surrender, and then about the necessity of shooting at a resisting Lonigan – if they found he  had been about to fire his revolver”

He also said something very important that Kelly sympathisers need to take note of “ It cannot be stated with dogmatic certainty that had the defence which has been outlined above been fairly put to the jury….that Kelly would have been acquitted altogether or only convicted of manslaughter”

In any event, even if Kelly had been found not to be guilty of the murder of Lonigan 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.” One way or another, Ned Kelly’s crimes were going to catch up with him and he was destined to hang.

Dees Commentary

In the discussion that followed, Keith Dunstan asked about the duration of the trial “Was it a track record?”. He was of course  giving voice to the Kelly myth that the trial was rushed and corners were cut so that Justice Barry could attend the Melbourne Cup. Even Peter Fitzsimons in his 2013 Kelly biography  perpetuates this belief, writing in Chapter 17 : “Nothing is to be allowed to interrupt his (Barry’s)  attendance at the Spring Carnival” Wallers reply 50 years earlier? “No. By today’s standards it seems brief indeed. By the  standards of the nineteenth century, it was a lengthy trial. There are some instances recorded earlier in the nineteenth century of persons being arraigned  convicted and sentenced within  the space of about a quarter of an hour” This example illustrates yet again how ill-informed 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!

But this is not the only bit of Kelly mythology that was exploded 50 years ago by Professor Waller that modern day Kelly sympathisers ignorantly perpetuate. There is a stupendously stupid Kelly sympathiser who declared once that he has a special interest in the police murders at Stringybark Creek, so he poses as some sort of expert on the subject. He insists there’s only one definition of murder and it involves a necessity to prove ‘malice aforethought’. This Kelly buffoon has espoused this ignorant belief of his at every opportunity on every Kelly forum Ive ever seen somewhere or other, sooner or later and not a single Kelly fancier has EVER challenged him, even once. This must mean neither he nor any other Kelly fancier has ever read this book, or if they did they didn’t understand what they were reading because as I’ve pointed out, Waller describes the special protection afforded Police even to this day that it is murder if you kill a Policeman legally carrying out his duty. ‘Malice aforethought’is not needed. You might even kill the policeman accidently, but it’s still murder.

The fact is that notwithstanding the deficiencies in the trial, Ned Kelly could quite legitimately have been convicted of the murder of Lonigan even if all the arguments about self defence had been put to the Jury, but if he had been acquitted, his killing of Kennedy was even more clearly a murder with ‘malice aforethought’. Nobody seriously discussing the Kelly story should ever again argue his trial was rushed or that somehow he could have escaped hanging for murder. Kelly Legend movie makers please take note!