The Trial

The idea that Ned Kelly didn’t get a fair trial is a core belief of Kelly fanatics, who maintain that he shouldn’t have been hanged for the killing of Lonigan at Stringybark Creek because Kelly shot him in self defence; it was Kill or be Killed! The Fanatics claim Ned Kellys problem was that he had an inexperienced Lawyer defending him, he didn’t attempt to defend himself , that McIntyre told lies in the Courtroom and the Judge had it in for him in any case. If only Ned Kelly had a proper Lawyer, or more time or had taken the opportunity to do what he said he could do if given a chance, and tell the story from his perspective and persuade the Jury of his innocence! If only…..and then it all would have been different for our dear Ned!

Recently I watched the Sixty Minutes episode from 15  years ago where they recreated the Trial of Ned Kelly and gave him a proper  lawyer and the opportunity to state his own case to the Jury. It was preceeded by an interview with “Australias leading Kelly expert” Ian Jones – of course! Jones remarks would certainly have coloured the average viewers perception of the story with such contentious lines as 

“I would trust Ned Kelly with my life” 

and Ned was 

“ a very brave man, a very honest man in his way” 

and 

“ a man who was drawn, or let himself be drawn into a chain of events that led to his outlawry”

Quite inaccurately – as to be expected from commercial TV I suppose – the narrator says the proceeds of the Bank robberies “were given away, Robin Hood style, to the Poor” 

and says of Judge Barry that he 

“sentenced one of Kellys uncles to be hanged” which is true, but not the whole story by any means. The drunk uncle burned down the Kelly house in the middle of the night, fortunately incinerating no-one, but making a large family of children homeless. On appeal, his sentence was reduced to a long term of imprisonment but those facts mess up the poor persecuted Kelly narrative beloved of Kelly fanatics and dumb 60 Minutes journalists!

As for the Mock Trial itself : now we have an incompetent Prosecutor in the form of Julian Burnside, an emotive and silly oration from Ned, a smug Kate Kelly and a defence based on the 20^th century hoax about leather straps. So naturally, Ned is acquitted.

But I wonder if the Fanatics ever do think about what exactly would have happened if Ned Kelly’s defense had been successful, and he had been found not guilty in 1880 ?  I have NEVER seen any discussion of this scenario, the one they dream about fondly, because I suspect, whenever they think about it they realize it gets them nowhere. They would be like would-be Jail escapees who emerge blinking excitedly into the bright sunshine from  their carefully dug tunnel and find  to their  horror they are still in the middle of their prison! 

The  awful truth for the Fanatics is that the ultimate outcome would have been the same : acquittal of the Murder of Lonigan would have soon been followed by Trial for the murder of Kennedy, he would have been found guilty and of course would have been hanged for murdering Kennedy. Even Ian Jones believes this, but of course nobody ever talks about it.

But in a Trial for the Murder of Kennedy, Ned would not have been able to plead ignorance of who it was he was shooting; he would not have been able to plead self defence; he would not have been able to claim it was “Kill or be Killed” because Kennedy was trying to get away, Kennedy was unarmed and wounded, defenceless, when Ned Kelly shot him at point blank range.

Another thought has occurred to me as well, about this killing, something that I haven’t read elsewhere that I would be interested to hear others thoughts on. Its about the  peculiar thing that is supposed to have happened after he was dead : Ned Kelly covered him with his cloak. Its said that someone returned to the camp to get Kennedys cloak and cover him with it as some sort of sign of respect. The odd thing of course is that this same respect wasn’t shown towards the other two dead police who were right at the camp itself.  And why, if it was a sign of respect were Kennedys possessions stolen from his corpse, along with those from the other dead Police? Surely its the grossest disrespect  imaginable to rifle through the pockets and flog the watch of a dead Policeman? I don’t buy the Mythology on this one. None of it really makes sense.

My suggestion is this: Kennedys cloak was retrieved because he was not fatally wounded, and to start with the plan was to leave him there, alive , as night fell and the air  grew cold, perhaps to survive long enough to be rescued. They retrieved his cloak because he was alive – the others didn’t get cloaks because they were dead. Its also known that Kennedy was alive and lucid enough to not only converse with the Gang but also to write a letter to his wife in his notebook, the notebook that was subsequently recovered with pages ripped out of it. In the end though, the psychopath’s lack of empathy for fellow human beings trumped the other gang members humanity and Kennedy was silenced, like an ISIS Hostage pleading for his life, the retrieved cloak thrown over to cover the ghastly sight of his shattered torso. Later of course the psychopath elaborated a story to portray himself in some sort of saintly light, breaking his own heart to put the poor policeman out of his misery. Crocodile tears!

Without a doubt, Ned Kelly was destined for the Gallows. Re-enactments of the trial he did get, manipulated to get him an acquittal achieve almost nothing, except perhaps to highlight possible deficiencies in the process. What would be really interesting though, would be to recreate another trial Kelly didn’t get, the one for the murder of Kennedy. Then, everyone would realize that in the end, albeit by imperfect means, when Kelly was hanged Justice was done.