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 29^th, 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.