Dan Kelly : Persecuted or Perjuror?

According to the list in Appendix IV of George Farwells 1970 book “Ned Kelly” – such an original title! – these are the Arrests and Convictions of  Daniel Kelly :

1871      Illegally using a horse      Wangaratta                     Discharged

1877      Stealing a saddle             Beechworth                   Discharged

1877      Wilful Damage                 Benalla                        3 months

1878      Murder and Outlawry      SBC                                 Died

                                                                                       at Glenrowan

According to modern day Kelly sympathisers, these charges against  Dan Kelly came about because he  was picked on by the corrupt police, who hounded and persecuted his whole family and their associates, turning them into Police-made criminals.

In a series of Posts I have  been testing these claims, looking for the evidence of the corrupt behavior and persecution by the Police that the Kelly sympathisers talk about.  So far my close inspections of the criminal records of Ned Kelly and his brother Jim Kelly have found precious little evidence of this. In fact I have presented evidence that even though in those days the system was harsh, and there were times at which Police behaved badly – as indeed they still do on occasion today – in the main the system treated them appropriately and in response to deliberate acts of criminality and violence.

Mike made a very telling observation in the discussion about Jim Kelly, pointing out that if the Kelly explanations of why they came into contact with the Police were true, when he changed his name to James Wilson and went to NSW, one would expect that in NSW Jim would be left alone, but of course he wasn’t.  In fact Jim quickly came to the notice of the Police for selling a stolen horse and saddle, so it would be absurd to suggest that his arrest was an example of Kelly clan persecution because the NSW Police didn’t know he was a Kelly. Sharon told us that it wasn’t until much later that Jim Wilson was exposed as Jim Kelly. So are the modern Kelly supporters going to propose that he was only ever a criminal in NSW, and was innocent in Victoria? How do they explain Jims behaviour? 

So lets look now at Daniels record. The first entry on his Charge sheet relates to an episode that I wrote about in relation to his older brother Jim. One Saturday they took a horse each, the owner complained and they rode off when told to stop. They were chased down, taken to Wangaratta Lock-Up  and discharged by the Magistrate on the Monday morning ‘on account of their age’ Dan was 10 and Jim 12. Is it persecution for Police to try to recover stolen property?  Of course not! Was it overkill and persecution to lock them up? Probably not in those times, when rigid discipline  and corporal punishment of children was regarded as a Christian duty. But yes, today it would be overkill, in my opinion.

Dans next court appearance was in relation to a saddle that had been reported stolen from a Benalla Hotel in May 1876. It was located on Dans horse but in Court he produced a receipt for £1 that he paid to ‘a man called Roberts’. Ned claimed to know this man, Roberts , and tried to find him, “alas, to no avail” as Peter Fitzsimons so regretfully tells it!

Once again we have the marvelous resource of Troves digitized newspaper Collection to thank for an exact copy of the Court report in the local newspaper:

Ovens and Murray Advertiser

Thursday March 1^st 1877

Beechworth General Sessions

Wednesday 28^th February

Before his Honor Judge Hacket

Mr Armstrong appeared as Crown Prosecutor

LARCENY.

Daniel Kelly was charged with stealing a saddle at Benalla, and pleaded not guilty.

Mr F. Brown appeared for the defence.

The following jury were sworn

Robert Rae (foreman), John Carew, R.Douglass, Edward Keogh, J. Stephens, Christopher Kibble, Edwin Ansell, Geo. Cross, William Duncan, Henry Wiseman, Thomas Sutherland, and John Ewing.

Sidney Smith, a woolstaker, residing at Benalla, Deposed that he had a saddle on the 4th of May last. Left it in the back kitchen of the Liverpool Arms

about seven o'clock in the evening. Shut the door, and missed it the next morning. Identified the saddle produced by a seam which he had objected to on

purchasing it, and by other marks.

Edward Shortell, a saddler at Benalla, deposed that he sold the saddle produced to prisoner over two years ago.

Mounted-constable Robinson deposed that he was at Benalla on the 30th of December, but was stationed at Richmond at present. Saw prisoner that day with the saddle produced. Asked him about the saddle. He first said he had bought it from one man, and afterwards from another.

By Mr F. Brown : It was five months from the time witness heard of the saddle being stolen until the arrest. Prisoner did not refuse to go with witness to see about the saddle. Prisoner gave two different accounts of how he came by the saddle. He produced a receipt subsequently at the police court.

This closed the case for the prosecution.

John Lloyd lived on the Kilfera road, and knew the accused and was present at Eleven Mile Creek, where he dealt in a saddle with a man named Roberts.

Prisoner gave Roberts a saddle and £1,and got another saddle in exchange. This happened at Skinner's.

Witness was one of the witnesses to the receipt produced.

By the Crown Prosecutor : Skinner was prisoner's brother-in-law. Witness was prisoner's cousin.

Wm. Skinner knew the accused. Remembered a transaction about saddles at his house between the accused and Roberts, and they exchanged saddles,

prisoner giving Roberts £1 to boot. Roberts wrote the receipt. Edward Kelly, brother of the accused, knew Roberts, and had tried to find him for the purpose of this trial. Was present when the saddles were exchanged, and saw a receipt like the one produced,

drawn out.

His Honor, in charging the jury, said he did not see why the prisoner was there at all. He had given a perfectly valid account of how lie had come to be in pos

session of the saddle, and the whole of the evidence corroborated that account.

Verdict : Not Guilty.

The accused was discharged

What this remarkable report shows is the exact opposite of the Kelly myth about the poor Kellys being persecuted by an unjust system!  Instead we have a Court process that is scrupulously fair, even when the defendant changes his story, the witnesses for the defense are the relatives and friends of the accused, and the mysterious Mr Roberts has disappeared without trace. But there never seemed to be any doubt that Sydney Smiths saddle was stolen and it ended up on Dan Kellys horse. I am not sure what a ‘woolstaker’ is but somehow I think Sidney Smith wasn’t a squatter but an ordinary  member of the poorer working class, the sort of people Ned Kelly was supposed to be the champion of.  Nobody knew it then, but Ned Kelly in 1877 was a major crime figure in the region, fully engaged in his ‘wholesale and retail’ horse stealing racket, an  activity that treated the Law with contempt and involved the creation of false identities, false documents and forged signatures, the very techniques that I would guess he employed here to get Dan off the hook. Who suspects that he and Ned and the other witnesses perjured themselves, that Mr Roberts was a fantasy and the Receipt for £1 was a Forgery?  Peter Fitzsimons obviously does! And so do I, but of course without evidence, who can be sure? And so, Dan was found Not Guilty! His treatment was better than fair, it was lenient and generous in the face of considerable doubt.

You know, this case shows how deeply hypocritical it was for Ned Kelly to claim in the Jerilderie Letter that ‘there was never such a thing as justice to be found in the English Laws but any amount of injustice’, and suggests how very wrong this entire Kelly myth about Police and Judicial corruption and persecution is.  Here is a case, in 1877 of the Police and the Judicial system abiding strictly and perfectly to the letter of the Law, in a case that if the 'persecuted Kellys' story were true would have been the easiest of all to turn into a conviction and a prison sentence. In fact  the corruption was Ned Kellys,  the perjurer and the forger of signatures and fake documents, the self confessed thief, a thoroughly dishonest villain who gamed the system to circumvent justice being meted out to his brother. And lets also not forget the hypocrisy of the man who claimed to be the champion of the poor, here aiding and abetting his brother stealing from the poor,and escaping Justice. And just over a year later these proven thieves, liars, forgers and hypocrites were proclaiming Fitzpatrick was the crook and their sweet innocent selector selves were being maligned and vilified unfairly.  

The closer I look at the Kellys and the historical truths about the Outbreak, the more the Mythology is revealed as a flimsy cover-up and  I see a villain and a brood of criminals.

Is there ANYONE who wishes to defend them ? So far it seems almost  nobody dares.