The “Self Defence” Plea : what really happened at Stringybark Creek?

It may seem a bit pointless to ask what really happened at Stringybark Creek – everyone knows the Kelly Gang ambushed a Police party of four who were out searching for the gang and three of the Policemen were shot and killed.
The important thing to remember however is that this was the central event of the Kelly story, the action that ultimately resulted in Ned Kelly being found guilty of murder and hanged, and yet, Kelly sympathizers then and still today maintain that this was a miscarriage of justice, that the trial was a travesty and that Ned Kelly shouldn’t have been found guilty. They believe his claim that he killed in self defence, that it was either kill or be killed by corrupt Police. Of all things to do with the “Kelly outbreak”, this is the watershed event about which Kelly supporters disagree most with just about everyone else in Australia – either you regard Kelly as a police murderer who received his just deserts, or you regard him as a martyr and a victim of corrupt Police and Government, unjustly convicted and wrongly executed.
So how can it be pointless to ask again, what really happened at Stringybark Creek? Was Ned Kellys claim of killing in self defence credible, and would he really be likely to escape conviction if he were tried in a modern court and be defended by someone other than a novice lawyer, as some claim?
Now firstly I am not a lawyer and have had no training of any kind in the Law, but I can Google and I can read and I can think, so I am going to put my thoughts onto paper – well “e”-paper – and I will be interested in others thoughts and responses.
Firstly I have learned that in modern English law ‘self defence”  can be a complete and sufficient defence against a charge of murder. Not only that, it is not necessary for the defendant to wait to be attacked before responding –
Lord Griffith said in Beckford v R[1988] AC 130: “A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.”Read more: Self Defence | Criminal Law Cases | Law Teacher
Furthermore, its not necessary for a defendants belief that he is under threat to be reasonable or valid – his belief may be entirely mistaken, yet still be acceptable as part of his defence :
In Beckford v R (1988), the defendant police officer shot dead a suspect, having been told that he was armed and dangerous, because he feared for his own life. The prosecution case was that the victim had been unarmed and thus presented no threat to the defendant. The trial judge directed the jury that the defendant’s belief in the need to shoot in self-defence had to be both honest and reasonable. In rejecting this direction, the Privy Council approved the approach in Williams. Lord Griffiths commented that juries should be given the following guidance: “Whether the plea is self-defence or defence of another, if the defendant may have been labouring under a mistake as to facts, he must be judged according to his mistaken belief of the facts: that is so whether the mistake was, on an objective view, a reasonable mistake or not.” 
What this all means for Ned Kellys trial, if it were held today under English Law – and as far as I can tell Australian law is much the same – is that its not necessary to prove that the police  really were going there to kill him, as Kelly always claimed.  Even if you could prove that they were NOT planning to kill him – which is the likely truth – that wouldn’t be enough to invalidate the “self defence” claim because all that’s necessary is for Kelly to claim that he BELIEVED they were. And that belief doesn’t have to be reasonable or evidence based. But it does have to be genuinely believed, and this is one thing a Jury will need to be convinced of.
Sympathizers these days don’t seem to have understood this point  as they still try to prove by various circumstantial means that the Police were actually planning to kill Kelly on sight. They claim for example that the Police were “disguised” – though the Gang had no trouble at all in identifying them; that the guns and ammunition they took could only have meant they were planning murder; that the Police took along the 19thcentury equivalent of body bags, specially made  “body straps”; that certain Police had vowed to kill Kelly on site then claim there had been a confrontation – and so on.
None of this is necessary – all that has to be claimed is that for whatever reason, however reasonable or unreasonable, Kelly believed his life was directly threatened, and that he had a right to strike pre-emptively, and shoot Lonigan. And for that matter the others as well.
So if Ned Kelly was tried again, the challenge for the defence would be to convince a Jury that Kelly genuinely believed he was about to be killed and so responded in a pre-emptive strike.  Kelly wouldn’t even have to claim that all he was planning to do was deprive the Police of their guns and horses. A successful “self defence” argument would at least reduce his possible conviction from murder to manslaughter, or even acquittal. No doubt a good defence would include the claims about the armaments the Police were carrying, the leather straps and the plain clothes, the failure to bring the actual arrest warrants and the reported comments by Inspector Brooke-Smith that he would shoot Ned Kelly then lie about the sequence of events. All of these alleged facts, whether true or untrue could be seen as contributing to Kellys view, however mistaken it may have been, that the Police really were coming to kill him. The defence would possibly elicit from McIntyre his reported conversation with Ned Kelly that Kelly said he hadn’t planned to shoot anyone, that he could have done so easily from his hiding place in the spear grass, and his one-time claim that Lonigan ran rather than surrendered and was reaching for his gun. Kellys defence would be that he had to disarm the Police or else he would be killed,  and he used lethal force to do so only because the police didn’t react the way he ordered them to.
The prosecution on the other hand would set out to try to convince the Jury that the “self defence” argument was merely a device to try to escape from a murder conviction, and that Ned Kelly approached the Police camp intending to kill them. They would remind the Jury that after the “blackballing” incident Ned Kelly had publically vowed to kill Lonigan, they would quote Ned Kellys threat from the Jerilderie Letter that anyone not obeying an outlaws orders would be speedily dispatched to “Kingdom Come”. They would probably get the post mortem report that casts grave doubt on Kellys version of events – it showed Lonigan had been shot three or four times not just once as Kelly claimed, they would no doubt mention the rifling of the dead mans possessions and suggest robbery was part of the reason for the killings and no doubt they would claim that what happened to Scanlan and especially to Kennedy, who was chased through the bush and killed, demonstrated the motive was to kill, not to defend. In modern Law it is not regarded as self defense to kill someone fleeing – I read of a case where the victims chasing after a violent rapist and killing him was not regarded as a killing in “self defense’ but as murder, though perhaps “self defense” may have been accepted if the killing had occurred during the attack.
I came across a transcript of a mock “retrial” of Ned Kelly staged by the Victorian Bar association in August 2000.  In fact there are two such transcripts so the Bar Assosciation must have run this mock trial twice that month, and they were broadcast on the ABC’s Law Report. The actual Lawyers playing the role of defense counsel attacked McIntyres testimony, saying there were inconsistencies between the various accounts he gave, and therefore he could not be believed. He also suggests somewhat obliquely that the wound in Lonigans left thigh had been caused by Lonigan himself, attempting to undermine the suggestion that Kellys testimony of having only fired one shot was itself false. The defines were trying to show that Lonigan went for his gun and thereby  Kelly was forced to shoot him or be shot himself. In fact, even if all Lonigan had done was run for cover, if Kelly had already formed a view that Lonigan and the rest of the Police party was there to kill him, the self defence plea wold still be valid. In any event, the audiences apparently acquitted Ned in both mock trials.
From an Australian Legal firms website we have this description of the Principles for a defence of  “Self Defence” :
There are two questions to be answered by the Court when self defense is raised:
1. Is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself and,
2. if there is, is there also a reasonable possibility that what the accused  did was a reasonable response to the circumstances as he or she perceived them
The first question is determined by a completely subjective point of view considering the personal characteristics of the accused at the time they carried out the conduct
The second question is determined by an entirely OBJECTIVE assessment of the proportionality of the accused response to the situation the accused subjectively believed they faced
The accused need not have reasonable grounds for their belief that it was necessary to act in the way they did in order to defend themselves as the common law required. It is sufficient that the accused genuinely holds that belief
The jury is not assessing the response of the reasonable person but the response of the accused. In making that assessment it is obvious that some of the personal attributes of the accused will be relevant just as will be some of the surrounding physical circumstances in which the accused acted. So matters such as the age of the accused his or her gender or the state of his or health may be regarded by the Jury.
Where the accused’s conduct involved the infliction of death and was not a reasonable response in the circumstances but the accused believed the conduct necessary to defend himself to prevent the unlawful deprivation of his liberty, the accused may be found guilty of manslaughter.
If I was on the Jury I would probably form the opinion that Ned Kelly did indeed believe the Police were there to kill him. I would regard this belief of his as more or less without foundation but explicable in terms of what is known of the accused from reading his Jerilderie Letter, and learning about his background and his personality and his state of mind  – it was such that his obsessional hatred of Police convinced him of this delusional belief, and therefore he killed believing it was in self defense. If it were up to me, he would have been convicted of  the manslaughter rather than murder of Constable Lonigan.
An often overlooked and seldom mentioned fact about the Stringybark Creek killings is that Kelly was never tried for the killing of  Scanlan or of Sergeant Kennedy. If he was, in the case of Kennedy I would not have accepted “self defense” as his justification for murdering the fleeing policeman. For that death, he would have to be convicted of Murder.

So he would have been hanged anyway!
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9 Replies to “The “Self Defence” Plea : what really happened at Stringybark Creek?”

  1. Two quick things:

    The body straps were not body bags. They were simply long leather straps. The inference is that they would have been used to bind bodies onto pack-horses, to extract dead gang members out of the bush. They are not mentioned in the legal documents or police reports. Ian Jones introduced them, based on the oral history of two latterday cockies (who might, or might not have been having a lend of Ian).

    A trial brief had been prepared for the murder of Constable Scanlon in case the Lonigan prosecution failed. No brief was prepared for Sgt Kennedy, presumably because no witnesses (other than Ned Kelly) then existed to give evidence about Kennedy's murder.

  2. John Quirk says: Reply

    Very interesting — I stand to be corrected, but don't think self-defence was raised at the trial by Ned's Barrister. The Jerilderie Letter mentions such a defence (p.29), but was not introduced as evidence in the trial. Witness Tarleton mentioned a confession by Ned in which Ned had claimed self-defence, but this was not followed up by his barrister. Justice Barry, among other things, summed up that the police were there lawfully (even if in plain clothes); were acting as executive officers of the law in addition to being ordinary constables, and no person had a right to stop or question them. Each member of the gang was equally guilty of the three murders.

    Here is the relevant part of what Barry, J., said (The Age, 30 October 1880, p.8): "As, for instance, if a man bought a pistol intending to shoot A, and went out intending to shoot him, and if on the way he was assailed and overpowered by another with whom he had no intention of quarrelling and should kill him, he would be justified in using the pistol in self defence. If, however, having bought the pistol, he proceeded to carry out his original intention, and did so, it would be murder. And if two or three or more persons went out together with an intention of an unlawful character, they were all principles in the first degree, and each was liable to account for the acts of the others. So if four men went out armed intending to resist those in lawful pursuit of an object, and one of those four men interfered with those on their lawful business, and killed them, the four would be equally guilty of murder, and might be executed. Here four constables went out to perform a duty. It was said they were in plain clothes. But with that they had nothing to do. Regard them as civilians ― he used the word because it had been made use of in the course of the trial, although he thought it inappropriate ― what right had four other men armed to stop them? They had the evidence of the surviving constable as to what had occurred―that two were left by their companions at the camp―what right had the prisoner and three other men to desire them to hold up their hands and surrender? But there was another state of things which was not to be disregarded. These men were persons charged with a responsible and, as it turned out, a dangerous duty, and they were aware of that before they started. They went in pursuit of two persons who had been gazetted as persons against whom warrants were issued, and they were in the lawful discharge of their duty when in pursuit of these two persons; therefore they had a double protection―that of the ordinary citizen, and that of being ministers of the law, executive officers of the administration of the peace of the country. Whether they were in uniform or not, there was no privilege on the part of any person to molest them, and still less was there power or authority to molest them as constables".

    Ned Kelly could have made an unsworn statement but was advised against doing so by his defence team. Ned said during a long exchange with Justice Barry after he had been found guilty: "No one knows anything about my case but myself. Mr Bindon knows nothing about it at all, and Mr Gaunson knows nothing, though they have tried to do their best for me. I’m sorry I did not ask my counsel to sit down, and examine the witnesses myself. I could have made things look different, I’m sure".

    Self defence was not raised as an issue at Ned Kelly's Trial, but has been constantly raised since. Justice Barry's summation obviates what is, eventually, just another artful modern fabrication.

  3. Thanks for those comments guys.
    Yes I knew what the body straps were, but was pointing out that in a figurative sense they are like body bags, meaning that if you have them it implies you're expecting to be bringing back bodies. I also realise that the body straps claims are dubious, whereas the implication of the Handcuffs the Police definitely had with them is never commented on – they imply the Police were expecting to be bringing back fugitives in handcuffs, and contradicts the notion they were going out to kill the gang.

    In so far as the trial is concerned, I agree , self defence was not offered as a defence. And it does seem absurd to the non-legal person such as myself, to suggest that bailing up people and killing them could be "self defence" but to my surprise as I discovered in my reading, it can be.

    The can of worms that I didn't go into, and which is what Judge Barry was essentially saying in John Quirks quote above, is that it is a crime to resist arrest. Kellys argument then becomes more complicated but I still think it could be a defence, if he was able to convince a jury that he truly believed the police were corrupt and about to kill him. The interesting thing is that these beliefs can be delusional but still mitigate a murder charge.

    Essentially I think that Kelly was mentally deranged, obsessed and out of touch with aspects of reality, and hence had a genuine but delusional belief about the Polices intentions.

    I have yet to properly read the recent publication claiming kelly was a psychopath but that sounds right to me, especially after having read and thought long and hard about the Jerilderie Letter.

    And speaking of Ian Jones, I think he also might see a psychopath in the Jerilderie Letter that he doesn't want to see, and so he pre-empts that argument by saying all that nasty stuff is not Ned but Joe Byrne, that Joe Byrne was "the killer" and Ned was all bluff and bluster. Jones has a lot to answer for when it comes to perpetuating the myths about Ned Kelly.

  4. John Quirk says: Reply

    I'm no lawyer either, Dee, but can't help noticing that modern debate, reenactments and chatter sometimes rely on things that did not occur or were not mentioned in the trial. It is a murky story drawn from numerous, differing newspaper accounts rather than a official shorthand court transcript. Later discussion and modern criticism are based on modern interpretations and filters that are intentioally or unintentionally misleading. The Waller and Phillips interpretations rely eventually on self defence theories. It is remarkable after 135 years that no clear, detailed, non-partisan analysis of the case yet exists.

    Keep up the excellent work please!

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  6. Anonymous says: Reply

    To my way of thinking there is an easy rebuttal to the 'self defense' claim offered up by Kelly supporters. If Kelly and his cohorts truly felt that their lives were under threat by a party of just 4 police officers, why did they not flee the area and head into NSW for instance?

    1. That is a good point; if they felt threatened why did they not flee? I think for the same reason Ned did not flee from Glenrowan (even though Dan Kelly argued the case for fleeing); Ned was trying to stand up for his little brother at Stringybark who he knew was innocent of the original crime for which Fitzpatrick tried to arrest him (Dan was in gaol when the crime was comitted) but perversely did not protect Dan but catastrophically shortened his life by stubbornly trying to commandeer the event in bushranger mode.

  7. And ballsing up the bushranger bail up into the bargain (professional policemen) harder to bluff than everyday citizens; therefore the self defence argument from Ned is very flimsy because he was actively bailing them up ie trying to rob them of their weapons, food, horses & personal effects (watch, rings) etc.

  8. As an analogy, if a bankrobber shoots dead a bank teller who pulls out a gun from behind the teller, could the bank robber reasonably claim it was self defence? I think not. By the same token i think bushrangers forfeit their right to claim self defence because they are voluntarily & arbitarily putting themselves (& others) in harms way to procure ill gotten gains.

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