Fact Checking the Kelly Story

On the Facebook pages where the Kelly story is currently being promoted and discussed, people who post in support of Ned Kelly as an Australian icon and a hero almost always betray their ignorance of the detail of the story by including in their comments statements which are factually wrong. I am not talking about opinions that differ from mine, or claims as facts things that cant be proven either way, but statements that are simply, unarguably false.

One of the most frequently repeated such errors is the one Ellen Kelly herself is reported to have made when Constable Fitzpatrick came to arrest her son Dan. She is reported to have said that because Fitzpatrick didn’t have the Arrest Warrant with him, he had no right to arrest Dan and Dan was under no obligation to go with him. As a result of this false belief of hers she attacked Fitzpatrick with a shovel, a melee ensued during which Fitzpatrick was shot, and, as we know the Outbreak was born.  

There seems to be a belief that a policeman has to show the actual warrant to the person before being able to arrest him, but this is simply NOT true. It wasn’t true in 1878 and its not true now - its never been true, and even a moments reflection would reveal why it couldn’t possibly be true. It would mean, for example that if a policeman saw someone committing a crime he would be unable to do anything until a Warrant was created. It would mean that if he saw a known criminal on the loose and didn’t have the correct piece of paper in his pocket, the criminal couldn’t be apprehended. It would mean there could be no such thing as a ‘citizens arrest’. It would mean that Police would have to carry about with them the warrants relating to all known local suspects, in case they ran into any of them on his rounds. It would substantially inhibit the ability of Police to maintain Law and order.

I learned something the other day that might explain why this false belief is so common. It relates to a different kind of Warrant, a warrant that the Police do indeed have to show before they can act : it’s a Search Warrant, and is quite different from an Arrest Warrant. To legally invade your home to conduct a SEARCH, Police either have to have your permission, or else apply for and be given permission by an independent authority to do so. There are some particular situations where even that warrant is not needed, such as if they wish to arrest someone they believe to be hiding inside, or if they think evidence may be destroyed if they delay entry, but in general, if the Police come to your house with a SEARCH warrant they have to show it to you. If they can’t show it to you, and prove they have permission to search your house, then you have a right to refuse them entry.

But if there is a warrant for ARREST, they have a right to enter a home to make that arrest and are under no obligation to display the actual document. It can be shown to the suspect back at the station.

So why do so many Kelly sympathisers believe this falsehood? Simply put, it’s from ignorance of what the Law really is, in relation to warrants and arrest. It also happens because when such erroneous claims are made on FB pages and elsewhere, nobody in the Kelly world bothers to supply the correcting facts.

But it also arises from ordinary people who mostly don’t have a few shelves of books on Kelly history, accepting the word of people who promote themselves as authorities on the subject in the press and in print, and who should know better. Jack Peterson is the most recent example – this  sloppy poorly informed author repeats this simple falsehood both in his dreadful book and on his FB page.

Anyone repeating this nonsense about Fitzpatrick needing to have a warrant with him should be corrected. I don’t expect Jack Peterson or many Kelly sympathisers to ever change their views about Ned Kelly and the Police but at least they could stop spreading falsehoods about what happened. When they continue to repeat disproven claims about Ned Kelly they demonstrate their commitment is not to historical truth and reality, but to a fable that disguises a liar, thief, hostage taker and police killer.