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NEWSFLASH : Ned Kelly Found Guilty at Correctly conducted Retrial

On the 138^thanniversary of Ned Kellys execution, it’s an appropriate time to once again discuss the mythology that is promoted about his trial. It ended on October 29th with Ned Kellys conviction for the murder of Constable Thomas Lonigan, and the sentence of Death was carried out twelve days later, on November 11^th1880.

Just last week on his Facebook site , author of picture book ‘An Introduction to Ned Kelly’ Jack Peterson wrote “Regardless of the truth, Ned Kelly's fate was sealed from the day he was captured”, an expression of the commonly promoted sympathiser view that Kellys trial was a sham. The Kelly legend is that if Ned Kellys trial had been fair he wouldn’t have been found guilty and he wouldn’t have been hanged. Jack Peterson again : “Any hopes Ned Kelly had for a fair and unbiased trial and judge were dashed when Redmond Barry was selected to preside over his trial for the murder of Constable Lonigan.”Here Peterson ignorantly continues the Kelly supporters’ vilification and abuse of the celebrated Victorian Sir Redmond Barry whom Kelly supporters hold responsible for the outcome of the trial.

Sympathisers claim legal expert opinion supports their view, and to try to further prove their point they have staged mock retrials at which Kelly was acquitted. 

But it should surprise no-one to discover, on investigation of the sympathisers claims about the trial and about what the experts say, that they are misrepresentations and distortions of the truth, fake news.

Kellys trial has been the subject of academic review on at least four separate occasions by modern legal experts. The first was by Professor Louis Waller at the 1967 Kelly Symposium. His presentation can be found in the publication that followed the Symposium  ‘Ned Kelly Man and Myth’ Edited by Colin Cave in 1968, and my discussion of it can be read again HERE. As an aside, Waller debunked the idea, still pushed in sympathiser circles, that Ned Kellys trial was rushed. It took two days, which is rushed by modern standards but Waller informed his audience that in Kellys time it wasn’t unheard of for a murder trial to last less than half an hour! 

In 1987 a second analysis of the trial was undertaken by a former Victoria Chief Justice, John H Phillips who published ‘The Trial of Ned Kelly’. My review of this book is HERE.

In 2005, ‘Ned Kellys Last Days’ by Alex Castles was a broader analysis of what happened to Ned Kelly after he was captured. It concentrates on the trial but includes analysis of other aspects of the legal situation that Ned Kelly was in. I reviewed this book HERE. 

Lastly, in 2014 Julian Burnside QC published an essay about Ned Kellys trial, and expressed the view that the reason Ned Kelly didn’t get a fair trial was because he was inadequately defended. As a result, according to Burnside, Bindon didn’t properly challenge McIntyre, the Crowns principal witness, and he didn’t mount the defence of self-defence, which Burnside says “might have been available (although it was not without its difficulties) if it could be shown that the police who went to arrest Kelly were in truth intent on killing him.”

All four of these actual genuine legal experts  who reviewed the trial believed they could identify decisions  and actions during and surrounding the trial where proper process was not strictly adhered to. Accordingly, they all concluded, as Phiilps wrote in a sentence that is widely quoted by Kelly sympathisers including Ian Jones that  “Edward  Kelly was not afforded a trial according to law”On the basis of comments such as that one, the Kelly myth-makers would have you believe that these experts all claimed that Ned Kellys trial was a fraud and that, as Jack Peterson claimed last week, Ned Kellys fate was sealed from the moment he was captured. They then go on to claim that if Ned Kelly was re-tried in a fair Court in 2018, with a good defence team, an unbiased judge, and a jury of ‘twelve good men and true’ he would have been acquitted.

In fact, that is certainly NOT what the legal experts concluded.  Firstly, their criticisms were not by any means wholesale condemnations of the entire trial, but in the main somewhat technical criticisms relating to process. Secondly, and most importantly what they all said was that if all the deficiencies and mistakes they found were eliminated in a re-trial, the outcome may well have been the same. The sentence quoted  by Kelly followers in which J H Phillips announced that Kelly was ‘not accorded a trial according to law’is followed directly by this one , a sentence they never quote “Whether the result would have been any different had the Jury had been correctly directed is, of course, entirely another matter”.Julian Burnside wrote “On one view, a fair trial would still have resulted in a conviction.” Elsewhere, Phillips later wrote “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.”

The argument about self-defence mentioned by Burnside was first developed by professor Waller. Waller believed such a case had merit and noted as did Burnside that it was never advanced by Kellys defence team. However, Waller concluded “ 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”

So lets set the record straight right now: modern expert legal opinion is that if Ned Kellys trial had been carried out according to the book, and even if he had been ably defended with an argument about killing in self-defence, there’s every chance that argument would have failed and the outcome would have been the same as it was in 1880 : Guilty of Lonigan’s murder. The sentence of course would be different because capital punishment has been abolished.  

Despite that, the possibility was left open by these legal experts that an argument based on killing in self-defence could possibly have been successful.  Certainly, it was the claim made by Ned Kelly himself in the Jerilderie Letter, that he shot and killed Lonigan because Lonigan didn’t ‘Bail up’ as ordered, but instead drew his revolver and was about to shoot Kelly from behind  ‘a battery’ of logs.  However, if an argument for self-defence was put forward in a modern re-trial, it would now be very easy to demolish because of what we have recently come to understand about the detail of Lonigans death, an understanding that wasn’t available even to Burnside as recently as 2014. The problem with Lonigans death was that nobody could provide a satisfactory explanation for the autopsy findings of multiple bullet wounds, including one that traversed his left thigh from outside to inside. A bullet extracted from that thigh was always reported as being a revolver bullet, and yet it was always accepted that Ned Kelly shot Lonigan with a rifle. The mystery as to the origin of this ‘revolver bullet’ and the other injuries to Lonigan created confusion about the detail of his death, and that confusion enabled Ned Kellys version of what happened to remain viable. Everyone, including Burnside, Waller , Phillips and Castles had a view of what happened to Lonigan but not one of their explanations made sense of all the autopsy findings and the known facts. 

The Lawless documentary makers last year almost got it right, showing that Kelly fired some form of shot, or multiple projectiles from his rifle, all of which hit Lonigan at once. However, the Documentary makers struggled as had everyone before them to explain the revolver bullet taken from Lonigan’s thigh. They rejected Burnside’s theory it had come from Lonigan’s own revolver and decided that someone else, unknown, had fired it into his corpse later on. They must have forgotten that Dr Reynolds said that at autopsy he couldn’t find any wounds that had been inflicted after circulation had ceased. 

This problem was solved on this Blog only a year or two ago. There is a subtle but critical discrepancy between the two records of what was said at trial about that ‘revolver bullet’. In the news reporting  that everyone has had easy access to, it was described as a ‘bullet’ and that was what everyone took it to be, but in the Trial Judges notes, he wrote that the 'bullet' removed was ‘as of’ a revolver, meaning not necessarily a revolver bullet but like one, or in other words, a small projectile ‘as of a revolver’. In fact, it was simply another component of the load of shot that Kelly fired at Lonigan.

The importance of this finding in relation to Kellys trial is that it proves that Ned Kellys claim that Lonigan was shot when behind ‘a battery of logs’ and taking aim at Kelly, is an outright lie. A forensic expert witness in a modern court with a few diagrams of Lonigans body and indicators showing where the various fragments of Kellys load of shot hit him, would instantly demolish Kellys claim that Lonigan was behind logs – the only place Lonigan could have been when he was brought down was out in the open. The only way that pattern of injuries could have been inflicted was if Lonigan was turned left side on to Kelly, head turned back but not facing him, not aiming a gun at him, not about to shoot at him, most likely trying to get away.

At the very least the forensic evidence would show Kellys claim about what happened was a lie. The defence of self-defence would collapse, meaning that if Ned Kelly was re-tried in a fair Court in 2018, with a good defence team, an unbiased judge, and a jury of ‘twelve good men and true’ he would most certainly have been found guilty, and except for the fact that Capital punishment is now abolished, he most certainly would have hanged. 

No doubt about it. 

How long was Ned Kelly’s last stand?

This is a guest post contributed by Stuart Dawson, who recently set out to investigate and tackle an unresolved question in the Ned Kelly commentary. It is posted here to encourage feedback for correction and improvement. It is intended to be part of a future, longer research article on Ned Kelly’s Last Stand.

Did Ian Jones’ admiration for Kelly lead him to wrongly accept a statement that Kelly’s last stand lasted over twice as long as it actually had? According to Jones, “The Last Stand had lasted for half an hour”, from Constable Arthur’s challenge to Kelly as he advanced in armour from the bush towards the Glenrowan Inn, and the first exchange of fire, to Kelly’s capture (Short Life, 2003: 236, cf. 231-6). Peter FitzSimons followed Jones, as have many others, in accepting a half hour timeframe, while noting that “the timetable … varies wildly in most contemporary accounts, with only broad agreement that from first shot to last it took around thirty minutes” (Ned Kelly,2015: 777 n.2). This is a red flag that the timeline needs review, especially given Daily Telegraph reporter George Allen’s contemporary estimate that “the whole affair” lasted “about a quarter of an hour, I suppose, or 20 minutes” (RC,Q.10774). Clearly the gunfight itself did not last half an hour; but how long was it?

The Age text of 29 June 1880 is partially damaged in Trove, but is reprinted in Hare’s “Last of the Bushrangers”, ch. XII. It says of 28 June, “The morning broke beautiful and clear. The police were disposed all round the hotel, when they were beset by a danger from the rear. … It was nearly eight o’clock when [Kelly’s] tall figure was seen close behind the line of police. … For half an hour this strange contest was carried on”. In a different place it gushed, “About seven o'clock Ned Kelly was seen in the timber, where he fought valiantly for about half an hour” (Age, 29 June 1880, 2). This is the source of the half hour gunfight generalisation beloved of Kelly enthusiasts. But the Age’s first (8am) starting time is an hour out. All sources agree that Kelly rose from the bush at dawn and began his advance toward the Glenrowan Inn and the scattered police line (Q.10043 Carrington; Q.10345 McWhirter). On that day, civil twilight (dawn) at Glenrowan was 6:59am (Geoscience Australia), and Kelly’s appearance and advance began “about 7am or after” (Q.8229 S/C Kelly).

Before the gunfight, one must allow for Kelly walking some 50 yards in armour, from 150 yards out (S/C Kelly, Argus, 29 June 1880, 6; Dowsett, Argus, 1 July 1880, 6) before being challenged about 100 yards out by Arthur, himself some 80 yards from the Inn(Argus, 2 July 1880, 7). [Both Jones p. 231 and FitzSimons p. 548 wrongly placed Arthur 100 yards from the Inn.] Upon that challenge Kelly raised his revolver. Arthur then fired, and Kelly returned fire (Q.11161); although he told the Argus at the time that Kelly fired first. Either way, the gunfight had commenced. Kelly called out, “fire away you b—s, you can’t kill me, I’m in armour”, and called to the outlaws in the Inn, “Come out boys, we’ll lick the lot” (Q.9450 Dwyer). Regardless that Dwyer’s watch was perhaps half an hour out (Q.9490), he noted what are here two key timing points: the time he was at the Inn stockyard just before he went up to the station, from which place he saw Kelly in the bush and heard him call out the above challenge (Q.9448-50), and then the time Kelly was captured (Q.9490), about 8 minutes later. Kelly’s last stand was not an epic half-hour gun battle; it was over in less than 10 minutes.

Kelly was captured before or around 7:15am, in the presence of reporters who had rushed up and witnessed his capture: “The outlaw howled like a wild beast brought to bay, and swore at the police” (Argus, 30 June 1880, 2). A few minutes passed with exchanges of words, Dwyer giving Kelly a kick, and Bracken defending Kelly from other injudicious treatment including possible summary shooting by Steele as his armour was removed (Q.10345 McWhirter). Kelly was then supported (“carried”) and walked some 100 yards to the railway station, including being lifted over a fence, while under fire from the Inn, and placed in the guard’s van (Q.8269-70 S/C Kelly; Q.10355 McWhirter). It was not until shortly after Kelly was lodged at the station that the sun rose (Q.9232 Steele; cf. Q.9234). On 28 June 1880, sunrise at Glenrowan was at 7:27am, so Kelly was in there at latest by 7:25am.

The Age’s “half an hour … contest” is a gross exaggeration of the gunfight timeframe, likely the result of excitement and nerves on the day. If it is to be taken as a marker of anything, it would encompass the entire time from Kelly’s first appearance from the scrub at 7am, through to his lodgement in the guard’s van at the station around 7:25am; but this is much more than the event known as the last stand. That, as the quote from FitzSimons above makes clear, is universally understood to mean the timeframe from first shot to the last at his capture. At most it might include some of his first walk in.

Allen’s estimate of a little more than 15 minutes for “the whole affair” was correct, within which the gunfight occupied less than 10 minutes. Only a few of the 34 police then present at Glenrowan, and railway guard Dowsett, were involved in the gunfight with and capture of Kelly. (The civilian Rawlins also assisted in securing Kelly, but was not involved in the gunfight, Q.11740-7.) The rest of the police stayed at their posts surrounding the Inn to prevent the other outlaws’ escape. Despite Jones’comprehensive reading of the evidence surrounding the last stand (SL, 2003: 405), he wrongly accepted the Age journalist’s exaggerated statement of the gunfight timeframe, over clear evidence that shows that Ned Kelly’s last stand was barely 10 minutes. Truth is duller than fiction. 

(Dr. Stuart Dawson is an Adjunct Research Fellow in History at Monash University.) 

The Police Killings are the Elephant in the Kelly Support Room

Exactly one hundred and forty years ago today three policemen were murdered at work by the Kelly Gang in a violent outrage of monstrous brutality.  Of Sergeant Michael Kennedys death alone, the Report of the Royal Commission into the outbreak declared “It was cruel, wanton and inhuman, and should of itself, apart from other crimes, brand the name of his murderer, the leader of the gang, with infamy”

Kennedys death was the third killing that day, and Ned Kelly was later hanged for the first of them, the murder of Constable Thomas Lonigan. Most people know that Lonigan was the policeman who attempted to subdue Ned Kelly when he was violently resisting arrest one year earlier, by applying the ‘squirrel grip’ to his testicles. But how many know that in 1878, when he was murdered by Ned Kelly, he was a married man with four children, the eldest of whom was a ten year old daughter called Emily? How many knew he was raised a Catholic in Ireland but became a Protestant so he could marry the love of his life, Charlotte Siggins? 

As with every other event in the Kelly story, the facts about Stringybark Creek have been buried under a mountain of lies and obfuscation made up originally by Ned Kelly, and believed and elaborated on by his gullible supporters ever since, lies and deception and cover-up, without which it would be impossible for any rational human being to believe that Kelly was a hero and an admirable human being. 

Take the murder of Lonigan. Ned Kelly said in the Jerilderie letter that after he called on Lonigan and McIntyre to bail up, “Lonigan ran some six or seven yards to a battery of logs...and put his head up to take aim when I shot him that instant or he would have shot me”

This statement of Ned Kellys is an outright lie. It’s a fabrication. It’s false, not true, a porky, its bullshit – whatever you want to call it, the facts are indisputable - Ned Kellys description is wrong and he knew it. His version was a self-serving lie. What we know, from analysis of the wounds, and the fact that what Kelly fired at Lonigan wasn’t a single bullet but a charge of projectiles - swan drops or perhaps a quartered bullet – is that Lonigan was killed within a few seconds of the order to bail up, that he was out in the open, that he didn’t have time to get his gun out let alone run to a battery of logs and hide behind it, and he was brought down by a cluster of projectiles that hit him all at once, in the left arm, the left leg, the head and the right eye. Kelly fans claim their hero Ned Kelly was an awesome crack shot but never admit that what he killed Lonigan with was a spray of bullets all fired at once. 

The Lawless documentary last year demonstrated this horror in graphic detail, which is why the pro-Kelly Facebook warriors denounce the documentary. Several years ago one of them announced he had worked out what happened to Lonigan – but then went silent and we are still waiting for his explanation. He can’t find one that lets Kelly off the hook so he is hoping his boasting will be forgotten about. 'Fraid not!

Here’s a another of Ned Kellys lies about Stringybark Creek, from the Jerilderie Letter :  “Had they been my own brothers I could not help shooting them or else let them shoot me which they would have done had their bullets been directed as they intended them” We know this idea that he had no choice but to kill is a lie because Ned Kelly chased after Sergeant Kennedy as he was running AWAY, and shooting back as he fled. Instead of letting him escape, Kelly, heavily armed, ran him down and murdered him. It’s an undeniable fact. Sympathisers claim that covering his bullet riddled body with a cloak was a sign of respect shows how out of touch they are with ordinary standards of human decency, and of the depraved way in which criminal minds function. In similar vein to his apparently ‘polite’ treatment of captive women, these displays are designed to mock and humiliate his victims. If he had any respect for the man he would never have shot him in the first place. Its also an undeniable fact that a couple of years later he was planning the greatest mass killing of police in all history – the outrage at Glenrowan. He went to Stringybark creek with an intention to provoke a confrontation that would give him an excuse to kill police – and he went to Glenrowan to kill police - no doubt about it – but this time he didn’t even bother trying to manufacture an excuse. The reality is that the Kelly sympathisers are all in very deep denial about the horrors of Stringybark Creek and what they reveal about their ‘hero’ Ned Kelly. At SBC he was not only revealed as a merciless killer but as a desperate liar. 

Sympathisers engage in a sickening annual pilgrimage on the anniversary of Kellys death to the Gaol where their hero was hanged and leave flowers and cards expressing their grief. But will they leave flowers at Stringybark Creek today for his innocent victims? Not at all! What they will do instead is continue what Ned Kelly started – a campaign that is nothing more than a smoke screen, that began with attacks and vilification and lies about the murdered police. They are accused of being corrupt lazy mercenaries out to kill the Kellys for rewards they might have got from squatters. Leo Kennedys recent book explodes that nasty smear. He also debunks the nonsense about the police being in disguise, by providing something Kelly sympathisers wouldn’t be interested in hearing – FACTS! That’s why so many of them are refusing even to read his book!

The Kelly myth-makers misrepresent the SBC murders with the preposterous claim that it was a fair fight – but never explain how four armed men confronting two police, only one of whom was armed could be called “fair”. As Leo Kennedy mentioned in his recent book, most police had never fired a gun in anger – but the Kelly Gang had been practicing for this encounter for weeks beforehand, using trees near their hideout as targets.  Everybody knows this. 

One of the academic apologists of recent times, John McQuilton can be seen on a 2003 You Tube video “Outlawed” pronouncing that the police came to Stringybark Creek “heavily armed with Martini-Henry rifles”. McQuilton then shows a pack-horse weighed down with equipment that includes at least FOUR of these rifles – but this is an utterly false claim, it’s a lie – the four police had ONE rifle, and it was a Spencer carbine, not a Martini-Henry. These FACTS have been known for 140 years so how on earth can McQuilton justify making such inaccurate statements? The Police also had a shotgun borrowed from a Mansfield Vicar – and that is the sum total between the four of them of the arms they took with them in addition to their service 6 shooter revolvers. “Heavily armed”? – no way! The irony of course, never mentioned by the Kelly apologists is that by the time Scanlan and Kennedy returned to the police Camp it was the gang who was very heavily armed, and the two police had a single rifle and two revolvers between them. The Gang were prepared to risk more deaths to get hold of them.

McQuilton adds another myth to the story with a claim invented in the 20^thcentury that the police took ‘body straps’ – which he also shows loaded onto the horse. These straps, said to be the equivalent of modern day ‘body bags’ were NEVER mentioned by anyone anywhere until Ian Jones wrote about them in his book ‘The Fatal Friendship’. Its claimed these ‘straps’ are a kind of smoking gun that gives away what the police really intended to do with the Kelly Gang – kill them! If true, this would have been vital evidence in Kellys later trial – but as I say, nobody ever anywhere at any time in the nineteenth century EVER mentioned them. However, it WAS a well-known fact that the Police had HANDCUFFS with them – demonstrating unequivocally their hope was to be arresting living suspects and bringing them to Court. But which Kelly sympathiser ever bothered mentioning that?

And what of the claim that the Police didn’t have warrants with them? Pro-Kelly people think this means the police were acting illegally – along with being in disguise – but there are the FACTS : there was no requirement then, and there is no requirement now, and there never has been a requirement that police have the warrant in their hand to show a suspect before they can be arrested. The ‘warrants’ issue is a red herring, a furfy, completely irrelevant!

There is also the claim made by Ned Kelly and supposedly supported by the now discredited body straps theory – that the Police party intended to shoot the Kellys on sight. “I heard that the police used to be blowing that they would not ask me to stand they would shoot me first and then cry ‘surrender’” This is just another part of the Kelly disinformation smoke screen – it’s based on the claim by a Kelly relative, Pat Quinn about something that he claims Sargent Strahan said, and which was then passed back along the line to Ned Kelly. It’s a highly dubious claim, it certainly was NOT police policy, it certainly was NOT the practice of any of the police in the north east to go about murdering criminals, Strahan wasn’t in the party who camped at SBC, and the police who WERE in that party were led by a policeman with a very good reputation as an honest hardworking dedicated Cop. There is nothing in this slanderous story of police planning to murder the Kellys to suggest it isn’t just another one of the many self-serving lies that Ned Kelly told about SBC. 

So there it is – strip away all the red herrings and the smoke screens and the lies and disinformation and what is left - a merciless mass killing by a notorious liar -  the elephant in the room that nobody in the Kelly world wants to talk about. They  will talk about - and do talk about - absolutely everything else - but not this horrible event, the main event of the kelly story, the elephant in the room.  It’s the fact that when confronted directly and honestly and in possession of all the facts, makes support for Ned Kelly as some kind of hero and an icon impossible for any reasonable, right thinking human being.

Black Snake: The Real Story of Ned Kelly

There is one compelling reason why I believe everyone who purports to have an interest in the Kelly outbreak should read this book: to my knowledge it’s the first book since the outbreak that is an authentic voice from the other side of the argument. It’s not an argument ABOUT the other side of the debate by an ‘anti-Kelly’ author or an academic trying to find the balance and the middle ground in the great struggle between the Kellys and the Police – there are plenty of books like that. No, this is an account BY the other side, and for the first time. It’s a voice, a perspective, a family history and an account of an experience of the Outbreak that we have never properly heard before, and no matter what you might have already decided about the Outbreak, this voice from the family of a murdered policeman has to be respectfully listened to. Until now it’s been more or less drowned out by the machinery of the Kelly myth-making industry.

This was the realisation that dawned on me after I had read just a few chapters of this book, that this was a story we haven’t really heard before, and we all needed to listen. 

I must admit, before my copy arrived I had some misgivings about it. I heard Leo Kennedy being interviewed on the ABC one morning and he seemed hesitant and nervous and didn’t make his case at all well. Even though the books title is “Black Snake The real story of Ned Kelly” I wondered if the book was going to be one long sob story about Bridget, Michael Kennedys widow.

I finally got my copy last Monday.  It was a good-looking book, a proper hardback with a dramatic cover and a thick section of mostly familiar photographs in the middle. The writing style makes it very easy to read. There are 43 short chapters and a disappointingly thin smattering of references, but no Index and no Bibliography. True to its title, it wasn’t a sob story about Bridget Kennedy, but a story about Ned Kelly as seen through Kennedy eyes. I also realised it was written from a very clear and unambiguous moral perspective, something which was often lost in earlier Kelly narratives which in their attempts to understand the outbreak, and be seen to be even-handed, or perhaps because of confusion often avoid taking a position about the ethical qualities of Ned Kellys behaviour, making allowances for his behaviour on the basis of his claimed persecution, his claimed mistreatment and suffering as the son of a widow. But for Kennedy it is clear: bullying, forgery, thieving, lying and killing are unambiguously criminal. There are no excuses. There is no need to canvas alternative views, or take seriously the testimony of the known liar Ned Kelly in trying to understand, say, the McCormick incident or how Michael Kennedy died. Theres no point in trying to sugar-coat the brutality of hostage taking and Bank robbery at gunpoint with references to sham displays of courtesy to women, or forced dancing, and no point in even mentioning the foolish adulation of men or women who may have been taken in by it. So  Kennedy ignores most of it.

Predictably, many Kelly myths are exposed in this book. For example, debunking the myth that the policemen who went to Stringybark Creek were in disguise, Kennedy points out that Policemen had to buy their own uniform, and it had to be kept in perfect order. However, because they were so poorly paid it could take a year just to pay it off, and so to prolong the life of their expensive uniforms they would often wear ordinary clothes when on country patrols. I also learned Police had only 12 days off per year, most had never fired a weapon of any sort, ever! -  and Irish were 14% of the Victorian populous but 82% of Victoria police.

How many of us knew of Edwin Graves, a stockman who caught Ned Kelly trying to steal his boss’s black mare in 1874, and ‘gave him (Ned) an absolute hiding’? Kennedy claims that Ned Kelly would often get drunk and pick fights because he wanted to be known for his toughness, and this need to impress people was his motivation for the Cameron, Jerilderie and other letters, and explains why whenever he had an audience he harangued and boasted and lectured anyone he could corner, self-justifying behaviour which continued even in the Court room after his conviction. 

I hadn’t known that the Kelly Tree was originally known as the Police Tree. There’s an anecdote about a woman who was so afraid of the Kelly gang that she hid her husband’s trousers so he couldn’t go and join the search for them! Kennedy says the green sash taken from Ned at his capture at Glenrowan wasn’t being worn as some kind of Irish republican symbol but as ‘wadding to protect his shoulders and chest from the leather straps and metal’. There were a number of other things he mentions without much support, such as that Fitzpatrick accepted a bribe of several hundred pounds from Ned Kelly to stay quiet after the ‘incident’, that the gang held up the Glenmore store for supplies prior to the Glenrowan showdown, and that in 1877 Ned and some others murdered a guy called Barron, reputed to have been an ‘enforcer’ employed by George King who also disappeared in very suspicious circumstances at about the same time. Some say for physically abusing his mother Ned murdered George as well.

More importantly Kennedy debunks the negative mythology about the four police who went to Stringybark Creek, and in particular the reputation of his great grandfather Michael Kennedy, detailing his years of dedicated service to policing prior to his death, his status in the various communities that he worked in, and his devotion to his family and his community. One of the slurs still made against him, and one which Leo Kennedy says his great grandmother Bridget often mentioned and was deeply offended by was that Michael Kennedys motivation, in searching for the Kellys, was the reward being offered. Ned Kellys defence suggested to McIntyre at Kellys trial in Melbourne that Kennedy conspired with Scanlan at Stringybark Creek to set off that day without McIntyre and Lonigan in the hope they would catch the Kellys and only have to split the reward two ways instead of four. 

“McIntyre felt gutted to be dragged into a corner by Bindon. It was all hypothetical. It should have been objected to and stricken from the record. Bindons slurs showed the worst side of the combative legal system. Though baseless hypotheticals and conjecture, he had disparaged the dead men’s actions”

In fact, Kennedy was known to share any rewards he received with anyone who had helped him earn it. Its recounted that in 1878 he received £40 for helping to capture Daniel McIntosh a sheep thief: he gave some of it to local informants, used half of the rest to pay down his mortgage and the rest he saved. 

Kennedy offers some interesting perspectives on Ned Kellys trial. He believes David Gaunsons involvement was entirely self-serving, his main intent being to advance his own political interests, and that he ‘used’ Ned Kellys notoriety and fame to advance his own profile. He describes Gaunsons fake Ned Kelly ‘Interview’ – the one that begins “I do not pretend to have led a blameless life or that one fault justifies another...-  as a ‘stunt’ which ‘wounded himself and Ned”, and his failure after two months to have produced a ‘brief’ as ‘ridiculous’. He reminds the reader that the option of manslaughter was not available to the jury because of a ‘special protection law’ which required that anyone who caused the death of a policeman while resisting or escaping arrest must be charged with murder-manslaughter was not an option. Bridget Kennedy always resented the fact that Kelly wasn’t tried for Scanlan’s murder and for the murder of her husband: “Then there would have been none of this nonsense that’s going on today” she quite correctly would claim.

There were unfortunately a few important mistakes in this book. Kennedy correctly reports that Lonigan was killed within seconds of the order to ‘Bail up’ and well before he could draw his gun, but his claim that Lonigan had turned to run and was shot through the eye when looking back over his shoulder is wrong. Without listing the reference, he claimed that a bullet fragment entered Lonigan’s ‘upper chest near the right breast bone’ but I have never seen that reported anywhere in respect of Lonigan’s post mortem findings.  He also was wrong to claim that bullets were fired into Lonigan’s dead body in some sort of bonding ritual, after McIntyre had fled. Leo Kennedy noted that Dr Reynolds told the RC that “If wounds were inflicted before the circulation had actually ceased it would be impossible to state accurately whether they were before or after death”but failed to realise that would have meant the firing of additional bullets into Lonigan very soon after he fell, something which McIntyre would have seen and reported. But he didn’t. But if those bullets had been fired into Lonigan long after McIntyre had fled the scene, circulation would indeed have ceased long before, and the wounds would have had a different appearance, something that Reynolds would have seen and reported – but he didn’t. This detail is particularly important as it was for Lonigan’s death that Kelly was eventually hanged. Getting this detail right cements in place the proof that what Kelly claimed about Lonigan’s death was a lie.

There’s a brief discussion about the history of mis-identification of the site of the Police camp at Stringybark Creek, and Leo Kennedys involvement with Genepool and the makers of the Lawless documentary that was screened last year. The documentary makers claimed to have found the exact place of the police camp, and Kennedy says the siting problem ‘was solved by dating the hut and by matching Constable McIntyre’s map and the various descriptions from all testimonies given at the time with the Burman photos’. These statements will mean nothing to everyone except the well-researched Kelly buff, and cannot be verified because regrettably Kennedy doesn’t supply the critical references. The claim that the hut was ‘dated’ is going to be news to everyone with an interest in that subject - no-one I know was convinced by the documentary makers glib explanations. Somehow, I expect if this claim is challenged, and I don’t doubt that it will be, it will be found wanting. The Lawless documentary makers claim to have found the place where Michael Kennedys body was found in 1878, “a quarter mile northwest of the camp” is also likely to be challenged!

Kennedy fell for a number of the Kelly baseless myths about Constable Fitzpatrick, describing him as foolhardy, saying he tended to be busier in the bedroom than in the police station, and that he died from cirrhosis of the liver. However, he claims the cirrhosis was not caused by alcohol but was a result of Fitzpatrick suffering from haemochromatosis. These claims are again not referenced but we know the death certificate didn’t mention hemochromatosis or cirrhosis so I am at a loss to know where he obtained this information from. 

The last claim made in this book that I want to mention is the thing that probably surprised me the most. Anthony Griffiths, a Kelly descendant told Leo Kennedy on Valentine’s Day 2017 that Kelly descendants then and today are adamant: Ned was a horse thief and not a very good one. “He did not have a political bone in his body. He was a thief who was too busy thieving”

Now isn’t that interesting? I wish the Kelly descendants would tell that to the Kelly fanciers and ask them to stop hero-worshipping and making up stupid fairy stories about Ned Kelly, and lies about good men like Michael Kennedy. Notwithstanding my criticisms of this book, it is nevertheless a terrific informative and insightful read and a great addition to my Kelly library. Thank you Leo.

For whom the Bell tolls.

The Kelly Myth is history

With the recent passing of Ian Jones and Professor John Molony, the last remaining important links to the golden age of Kelly adulation were broken, and the Kelly story has reached a watershed. Up until Jones died, his mere presence in Kelly country was like a bulwark against the tides of change that were steadily turning against the popular image of Ned Kelly as the people’s hero. Jones’ word, written or spoken, could and did often settle an argument, close down a discussion or inspire another round of Kelly enthusiasm. No other figure in the Kelly world commanded anywhere near the same respect or wielded the same power and authority over Kelly history as did Ian Jones. One of the things that impressed me about his writing was that with some notable exceptions, for the most part Jones was prepared to let the evidence speak for itself. It must have been difficult for him to admit, in his discussion about the Fitzpatrick incident, that Ned Kelly lied about it. But Jones accepted the logic of evidence and facts.

I say we have now reached a watershed moment in Kelly history because there are no longer any spokespersons for the Kelly story like Jones and the cohort that accompanied him, such as Manning Clark, McQuilton, McMenomy, Phillips and the like, who have the standing and the academic authority that gave their pro-Kelly points of view credibility. These people are not all deceased but they have all fallen silent. We are at a watershed moment because the balance of credible academic opinion has now tipped the scales in the opposite direction. This is undeniable - all the credible voices that continue to discuss the kelly story are dismantling the old view:

·     Ian MacFarlane (The Kelly Gang Unmasked - 2012)

·     Dr Craig Cormack (Ned Kelly under the Microscope-2014) 

·     Dr Doug Morrissey (A Lawless Life -2015),  

·     Dr Stuart Dawson (‘Redeeming Fitzpatrick’, ‘The Myth of the Kelly Republic’, ‘Ah well I suppose it has come to this’, and ‘The shooting of George Metcalf’) 

·     Grantlee Kieza (Mrs Kelly 2016)  

·     Dr Morrisseys second work (Selectors Squatters and Stock Thieves 2018) 

·     Leo Kennedys Black Snake: The real story of Ned Kelly ( yet to be reviewed on this Blog)

In tandem with the dismantling of the old view there has been a decline in the once active Kelly world, both online and in the real world. There was once a very active online forum called the Ned Kelly Forum. I joined but was kicked out within a few weeks, but Forum activity declined and then it disappeared completely a couple of years later. There was once an active free online forum called Kelly Country 2000 – it declined into inactivity and when it was recently threatened with closure by imposition of an annual fee of $80 its administrator announced it would close. Nobody offered a cent to keep it going! There are a couple of worthless Facebook pages devoted to Ned Kelly – but both are echo-chambers from which all dissenting voices are banned. They are inhabited by people whose main pre-occupation is attacking and vilifying every voice wherever it may be that expresses an opinion they disagree with. 

In the real world, Heritage Victoria is revising the tourist experience at Stringybark Creek, changing the emphasis from the gang of murderers to their police victims.  The Ned Kelly Weekend, an event that devotees once attended in their hundreds has disappeared, due to lack of interest or support. At huge expense an exploration of the tourist potential of the Kelly story delivered a report to North east councils this year that suggested pouring buckets of money into promoting it, but all that’s happened so far is a lukewarm commitment to the least expensive proposals. The suggestion that a significant Kelly Centre with a tower be developed at Glenrowan, something that had already been mooted many years ago and dropped, has once again been dropped, and the Kelly descendant hoping to get millions for the Center after her own attempt to raise money flopped, has yet to even complete a web site which has been ‘under construction’ for years. 

In the movie world, the big money is not going into the actual story of Ned Kelly but into a fantasy based on him.  Crowd funding for a grand Kelly outbreak movie promoted by Kelly devotees failed dismally. Now the same group are seeking funding for a movie centred around the demise of the Kelly Gang at Glenrowan – and have already announced it won’t contain one of the central myths of that bloody debacle, the myth that it was an attempt at establishing a Republic : progress in the right direction! Another Kelly movie, successfully crowd-funded and promoted not by devotees but by independent students of film-making is in production as we speak. It will depict the horrors of the Stringybark Creek murders – another step in the right direction, away from the myths and lies of the Kelly fables. 

Against that onslaught where are the defenders of the Kelly myths? The only voices that remain are those of a few remaining die-hard believers who gather in their echo-chambers on Facebook and reassure each other that yes, the whole world is out of step! Every single dissenting voice and opinion is shouted down with abuse, vilification and derision, and silenced by intimidation and expulsion. They plan to hold a talk-fest next April at Chiltern but with a couple of exceptions, the speakers are the same tired old amateurs who by all accounts will be recycling the disproven myths and yarns they’ve been telling for decades.

Some of them claim to be Kelly ‘researchers’ but what they mean by ‘research’ is trawling the internet and the historical records for the tiniest shred of evidence that could possibly be construed or misconstrued as supportive of their extreme hatred of Fitzpatrick and their blinding pro-Kelly bias. An even easier tactic is simply to make stuff up about him – such as the contemptible unsupported and unchallenged claim made the other day on Facebook that he was a child molester.  But the claim he was drunk and a liar and a womaniser is also made up. Lately in their attempts to shore up this increasingly untenable and pernicious view of Constable Fitzpatrick, in the absence of facts that support their claim about the kind of man he was when he visited the Kellys in April 1878, they have turned to muck raking and mud-slinging not just about the man he might have been many years later, but also about any of his near or distant relations - if they were unsavoury, that proves he must have been as well, according to these sleazy ‘private eyes’. But nothing about what happened to him after he left the police, or about his family or his next door neighbour or the price of fish is in any way relevant to what happened years before. If they want to make allegations about what he was when he was in the police force, they need to show evidence from when he was in the police force, not from decades afterwards. Their entire muck-raking campaign is a huge distraction and of no relevance at all to the causes of the Outbreak. 

To date none of these malicious muck-rakers  have uncovered a single fact that supports their contention that in 1878 Fitzpatrick was a womaniser, a drunk and a liar.  Not one blow has even landed on Stuart Dawson’s exposition of what happened, let alone dented it. However, at Chiltern next year one of these muck-rakers, Alan Crichton, is going to be opening the talk-fest with a presentation about Fitzpatrick.  Going by his public utterances to date, this talk will be a sickening fact-free vilification of a man who died what would have been a lingering painful and horrible death from disseminated cancer that was invading his stomach. But Crichton says he is “now convinced he died from a liver complaint caused by an over indulgence in the consumption of alcoholic beverages”. According to Crichton “Fitzpatrick’s death certificate says it all”.

This conviction, that Crichton shares with his fellow Fitzpatrick-haters, is completely the opposite of what science and medicine and pathology textbooks say. There is no known link between liver sarcoma -  which is what Fitzpatrick died from, -  and ‘over indulgence in the consumption of alcoholic beverages’. And yet these wretched Kelly supporters are so determined to vilify Fitzpatrick that they simply close their eyes to the facts written in black and white in front of them on Fitzpatrick’s death certificate. Because he died from disseminated sarcoma which was invading his stomach and causing ascites, Crichton, who clearly knows nothing about medicine or pathology, is going to use that miserable lingering death as an excuse to label him an alcoholic. What more desperate act of cringing muck-raking could anyone imagine? Ian Jones would be spinning in his grave: he was the man who wrote "Fitzpatricks version appears to be closer to the truth than Neds version" and at another place, about something else said " we are in happy disagreement" - but such tolerance and openness will never be found or even tolerated in this disgraceful new crop of so called kelly 'researchers'. 

I suppose from my point of view I should be happy that the only voices that remain to defend the Kelly legend are people like Crichton and the other male speakers at this last stand at Chiltern. They completely lack the integrity and credibility that people like Ian Jones exhibited, and fair minded people will be, and already are turning away in droves – not just from their talk-fest but from their entire Kelly fairy story. Who would want to associate with a bunch of muck-raking haters?

No doubt in my mind : the passing of Ian Jones was a watershed for the Kelly legends . There is no-one left with any credibility to defend it.

Fitzpatrick Realty Check, and PTSD.

Until Stuart Dawson published his “Redeeming Fitzpatrick” article in 2015, the Fitzpatrick story had been more or less unchallenged and unchanged for most of the preceding 140 years. The story up till then focussed almost entirely on Fitzpatrick’s time in the Victoria police, which ended in less than three years when he was sacked in April 1880. 

What Dawson showed in 2015 was that the universally accepted view, promoted and supported by Ned Kelly and his apologists ever since, that Fitzpatrick was a drunk and a womaniser who then became a corrupt lying policeman, was not supported by a detailed and critical review of all the evidence, and that up to the time of the incident, he had an unblemished record. A month before the ‘incident’ an entry in his Police Record Sheet reads: “A young member of the force, likely to prove acceptable” (Morrissey 2018, p270). Dawson showed that Fitzpatrick’s testimony about the so-called 'Fitzpatrick incident' itself also stood up to intense scrutiny, and was consistent and reliable, something which could most certainly NOT be said about the testimony provided by the various Kelly clan witnesses for the defence at the trial. 

However, two years after the incident, Fitzpatrick was sacked, an event which Kelly apologists claim proves their point about him. In fact, Fitzpatrick was never charged let alone convicted for any alcohol related offences or for lying or for perjury, his sacking was not for being a drunk, or for being a ‘liar and a larrikin’ as they often assert, but for ‘inefficiency and insubordination’, a description that arose out of some quite trivial charges laid against him by senior police who had an openly admitted hostility towards Fitzpatrick. The outbreak and the murder of three police colleagues after the ‘incident’ led some police unfairly to hold that Fitzpatrick was largely to blame for it, and they wanted him gone.  Despite his protestations and requests for an independent investigation into the charges against him, and the support of two petitions signed by a couple of hundred reputable citizens of Lancefield, the last town he was posted to, Fitzpatrick was sacked and that was the end of his police career. In 1881 Fitzpatrick was vindicated somewhat by the Royal Commission of enquiry into the outbreak, the Report offering no direct criticism of him and saying that his conduct ‘was justified by the rules of the service’. They had much harsher criticism of Standish, the Police Commissioner who sacked him. 

In recent weeks, Kelly apologists have turned their attention to the rest of Fitzpatrick’s life in their search for support for their now disproven attempts to discredit his character and performance as a policeman. It had long been claimed as proof that he was a drunk, that his death certificate registered one of the causes of death as cirrhosis of the liver. This claim can be found in Justin Corfield’s Ned Kelly Encyclopaedia, but it’s wrong. The death certificate actually says he died of a disseminated liver sarcoma, it was invading his stomach and there was ascites, an almost universal accompaniment of disseminated abdominal malignancy.  Despite the known facts regarding the pathology of disseminated malignancy, Kelly apologists like Bob McGarrigle, a Kelly gang ‘relative’ and former bank officer continue to insist on Facebook that the ascites proves Fitzpatrick was an alcoholic, and that I am a liar. What these people are refusing to accept is that disseminated sarcoma and cirrhosis both cause ascites, but what the doctor who did the autopsy found was that the cause of the ascites in this case was not cirrhosis but sarcoma. Sarcoma and cirrhosis are two very different things, but in this case the sarcoma was the cause of the ascites. Bob I hope you’re not going to go around telling every terminally ill patient dying of disseminated abdominal malignancy and ascites, like Fitzpatrick did, that they’re all alcoholics! But that’s what you’re saying of Fitzpatrick. Pretty nasty if you ask me.

So that attempt to prove Fitzpatrick was a drunk also failed. 

In the last few days, still looking for an opportunity to vilify Fitzpatrick, they have resurrected the old news that someone called Alexander Fitzpatrick, listed on the charge sheet as a farmer, went to gaol for cheque fraud in 1894. Some but not all of the newspaper reports claim this Fitzpatrick had been drinking heavily. I mentioned this in my post a couple of weeks ago, and accepted the possibility that this man was ‘our’ Fitzpatrick, even though he was said to be a farmer and there were other details in the police record that didn’t match ‘our’ Alexander Fitzpatrick, such as that he was single and had dark hair. However, reasonable doubts remain; the cheques, for amounts of only one or two pounds were drawn on the bank at Orbost, which is a very long way from where Fitzpatrick was living in Melbourne in 1894. Adding to the doubts, Stuart Dawson made the surprising discovery that in 1891 an actual farmer named Alexander Fitzpatrick was approved for a lease of land at Murrungower, a few km further east from Orbost.  As yet, no link has been found between ‘our’ Fitzpatrick and Murrungower, so perhaps he is in the clear after all?  However, newspaper reports of this case, and even the Police Gazette mention of it, link this man with the Kelly outbreak. So, does that settle it?

Well no, not quite.

Dawson reported in a comment to this Blog the other day that Fitzpatrick told Cookson (p. 94), about a number of cases of mistaken identity: “A man was arrested for drunkenness or some other minor offence at Korong Vale, in the Bendigo district, and he said he was ex-Constable Fitzpatrick. A Bendigo newspaper printed a paragraph, reflecting on my character, and I issued a writ for £1,000 damages. My legal advisers, however, said that I would have to show that I suffered some loss in consequence … before I could succeed, and reluctantly I had to abandon the action. Every now and again, for years afterwards, I had to stand up and defend myself against unjust accusations”. So, we know that identity mix-ups DID happen, and thus it’s possible that the newspaper reports and even the Police gazette got it wrong this time too, mislabelling the farmer from Murrungower as the former policeman from the Kelly outbreak. 

Yesterday, I came across yet another intriguing twist in the tale : a post to Facebook that urges caution in the rush to judgement with news that there were two other police constables from that time called Fitzpatrick! One was Patrick and the other Charles! More opportunities for confusion and misidentification!

Lastly, we come to the prison photos of Fitzpatrick. In his recent book, Morrissey confidently dismisses the idea that the man sent to gaol was ‘our’ Fitzpatrick and says that the prison photos of the ‘farmer’ look nothing like ‘our Fitzpatrick’ - but others swear the opposite, saying it was definitely him. As we all should know, it’s easy to get it wrong – to anyone claiming certainty in their identification of the Police photo, I have two words: Gentleman Ned! Who wants to be reminded how the foremost Kelly biographer and all round expert on Kelly matters went out on a limb and declared his absolute certainty that the photo named Gentleman Ned was undeniably Ned Kelly, lampooning the doubters – only to be proved wrong! 

In the end though, the reality is this – even if he was an alcoholic in later life, and even if he did go to gaol for cheque fraud, these incidents cannot be used against Fitzpatrick’s unblemished record from years earlier as a young Policeman, to claim they prove that all the innuendo and lies that were spread about him back then must be true after all. The claims against him need to be justified by evidence from the same time, not by ‘evidence’ dragged back from the future.

The most likely reality, if these charges against him being an alcoholic and a fraudster in later life were proven to be true, is that they were a result of the outbreak, not a cause of it. There is ample evidence in modern society of the way in which the traumas of police and armed forces service can give rise to the disabling psychological injury now called PTSD. Enormous energy is now given to supporting men and women with PTSD because of the high risk that it leads to alcohol and drug abuse, marital breakdown, depression and suicide. Its entirely possible that after his harsh treatment in the police and what he regarded as unfair and summary dismissal, Fitzpatrick suffered with PTSD, and struggled to maintain his equilibrium. To continue to abuse and vilify the memory of a man likely to have been suffering PTSD  would be contemptible – but then, look at how the Kelly apologists have been talking over the weekend about Kelly gang murder victim Michael Kennedy and his great grandson, the newest Kelly author Leo : contemptible! But then, bullying abuse, lying and vilification was the stock-in-trade of their  criminal hero Ned Kelly, so why wouldn't they follow his example?