Sunday 11 November 2018






Saturday 10 November 2018

NEWSFLASH : Ned Kelly Found Guilty at Correctly conducted Retrial

On the 138thanniversary 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 11th1880.

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 shamThe 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. 

Saturday 3 November 2018

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 bs, 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.)