The idea that Ned Kelly didn’t get a fair trial is a core belief of Kelly fanatics, who maintain that he shouldn’t have been hanged for the killing of Lonigan at Stringybark Creek because Kelly shot him in self defence; it was Kill or be Killed! The Fanatics claim Ned Kellys problem was that he had an inexperienced Lawyer defending him, he didn’t attempt to defend himself , that McIntyre told lies in the Courtroom and the Judge had it in for him in any case. If only Ned Kelly had a proper Lawyer, or more time or had taken the opportunity to do what he said he could do if given a chance, and tell the story from his perspective and persuade the Jury of his innocence! If only…..and then it all would have been different for our dear Ned!
Recently I watched the Sixty Minutes episode from 15 years ago where they recreated the Trial of Ned Kelly and gave him a proper lawyer and the opportunity to state his own case to the Jury. It was preceeded by an interview with “Australias leading Kelly expert” Ian Jones – of course! Jones remarks would certainly have coloured the average viewers perception of the story with such contentious lines as
“I would trust Ned Kelly with my life”
and Ned was
“ a very brave man, a very honest man in his way”
“ a man who was drawn, or let himself be drawn into a chain of events that led to his outlawry”
Quite inaccurately – as to be expected from commercial TV I suppose – the narrator says the proceeds of the Bank robberies “were given away, Robin Hood style, to the Poor”
and says of Judge Barry that he
“sentenced one of Kellys uncles to be hanged” which is true, but not the whole story by any means. The drunk uncle burned down the Kelly house in the middle of the night, fortunately incinerating no-one, but making a large family of children homeless. On appeal, his sentence was reduced to a long term of imprisonment but those facts mess up the poor persecuted Kelly narrative beloved of Kelly fanatics and dumb 60 Minutes journalists!
As for the Mock Trial itself : now we have an incompetent Prosecutor in the form of Julian Burnside, an emotive and silly oration from Ned, a smug Kate Kelly and a defence based on the 20thcentury hoax about leather straps. So naturally, Ned is acquitted.
But I wonder if the Fanatics ever do think about what exactly would have happened if Ned Kelly’s defense had been successful, and he had been found not guilty in 1880 ? I have NEVER seen any discussion of this scenario, the one they dream about fondly, because I suspect, whenever they think about it they realize it gets them nowhere. They would be like would-be Jail escapees who emerge blinking excitedly into the bright sunshine from their carefully dug tunnel and find to their horror they are still in the middle of their prison!
The awful truth for the Fanatics is that the ultimate outcome would have been the same : acquittal of the Murder of Lonigan would have soon been followed by Trial for the murder of Kennedy, he would have been found guilty and of course would have been hanged for murdering Kennedy. Even Ian Jones believes this, but of course nobody ever talks about it.
But in a Trial for the Murder of Kennedy, Ned would not have been able to plead ignorance of who it was he was shooting; he would not have been able to plead self defence; he would not have been able to claim it was “Kill or be Killed” because Kennedy was trying to get away, Kennedy was unarmed and wounded, defenceless, when Ned Kelly shot him at point blank range.
Another thought has occurred to me as well, about this killing, something that I haven’t read elsewhere that I would be interested to hear others thoughts on. Its about the peculiar thing that is supposed to have happened after he was dead : Ned Kelly covered him with his cloak. Its said that someone returned to the camp to get Kennedys cloak and cover him with it as some sort of sign of respect. The odd thing of course is that this same respect wasn’t shown towards the other two dead police who were right at the camp itself. And why, if it was a sign of respect were Kennedys possessions stolen from his corpse, along with those from the other dead Police? Surely its the grossest disrespect imaginable to rifle through the pockets and flog the watch of a dead Policeman? I don’t buy the Mythology on this one. None of it really makes sense.
My suggestion is this: Kennedys cloak was retrieved because he was not fatally wounded, and to start with the plan was to leave him there, alive , as night fell and the air grew cold, perhaps to survive long enough to be rescued. They retrieved his cloak because he was alive – the others didn’t get cloaks because they were dead. Its also known that Kennedy was alive and lucid enough to not only converse with the Gang but also to write a letter to his wife in his notebook, the notebook that was subsequently recovered with pages ripped out of it. In the end though, the psychopath’s lack of empathy for fellow human beings trumped the other gang members humanity and Kennedy was silenced, like an ISIS Hostage pleading for his life, the retrieved cloak thrown over to cover the ghastly sight of his shattered torso. Later of course the psychopath elaborated a story to portray himself in some sort of saintly light, breaking his own heart to put the poor policeman out of his misery. Crocodile tears!
Without a doubt, Ned Kelly was destined for the Gallows. Re-enactments of the trial he did get, manipulated to get him an acquittal achieve almost nothing, except perhaps to highlight possible deficiencies in the process. What would be really interesting though, would be to recreate another trial Kelly didn’t get, the one for the murder of Kennedy. Then, everyone would realize that in the end, albeit by imperfect means, when Kelly was hanged Justice was done.
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9 Replies to “The Trial”
Had the Lonigan prosecution failed, there was a trial brief ready for the Scanlan case. No brief was ever prepared for Sgt Kennedy's murder, there being no other living witness then available than Ned Kelly himself.
Ok Ted I hadn’t realised that – but are you sure thats the reason no brief was ever prepared for that murder? What you’re saying is that if someone has been killed and someone else credibly confesses to having been the person who killed him, he cant be convicted of the murder unless theres another witness? Surely there have been many murders like that where a person is eventually convicted though nobody ever witnessed the murder? I can think of two in recent years in Queensland like that – or was it so different then?
What do you think of my suggestion about the cloak?
No Kennedy trial brief exists. Other than that simple fact, I can offer no legal explanation.
I thought Kennedy was severely wounded, and dispatched by Ned to avoid further suffering – or at least that is what I absorbed from books.
Yes Ted thats what we have all read from the books, but that account comes from Ned Kelly, the only witness who is recorded to have said anything about what happened, and he is hardly likely to recount any other tale than one that puts himself in the best possible light. Given his propensity to tell lies, to blame others for his actions and to minimise as much as possible his own culpability I think it would be reasonable to explore other possible scenarios for the events around Kennedys death. I realise of course that nobody is ever going to know what the truth really is, but the covering of his body with a cloak is an incident that is at odds with everything else they did up there at SBC, so I was just wondering aloud.
Sorry Dee, you paint a very dark picture.
I understand Ned sent Dan back to the creek to get some water for the sergeant. But if someone went back to the police camp 1/2 mile south west to get Kennedy's cloak, then this tells the gang were compassionate and trying to help the Sergeant.
The fact Const McIntyre had escaped, forced the gang to clear out as soon as possible.
Alternative views can always paint the most terrible scenario of murder and mayhem, but as with Kelly and Kennedy having a running gun battle from tree to tree any outcome would be uncertain. Had the Sergeant been shot dead on the spot much like Const Scanlan had been, then that would be it.
The problem being McIntyre had escaped and Kennedy feared for his life. And incidentally, Scanlan after firing a rifle bullet at Ned that passing through Ned's beard was too close and had Ned been killed, the whole shoot out may have resulted in the gangs annihilation.
However it did not go that way. Instead the defiant Sergeant had taken several shots at Kelly and he had no choice but to run for it after McIntyre. Had the three simply surrendered in the first place, then I doubtful any harm would have come to them. The Sergeants wounding and on the ground and in agony after a Kilometre skirmish, then the cloak retrieval from the camp by the gang shows compassion and readiness to help by the actions they took. Lets not forget the police party did go after the Kelly brothers in the first place. I understand they were only 'wanted for questioning' when the police party went after them. But the Outlawry act had been declared by Parliament which meant anyone could by law shoot the Kellys, and they knew it.
In Alex Castles book Ned Kelly's Last Days Page 91 makes the point in effect
the outlawry Act resurrected by Parliament (through the influence of the Stock preservation League / Society) for the purpose to capture the Kellys (dead or alive), NO longer applied as the session of Parliament had ceased by the stock of a pen as a new Victorian election was to take place , and by that the Kellys were NO longer Outlaws from December 1879.
Yet they continued the unlawful pursuit of the Kellys as Outlaws.
Alex Castles Last days- page 163
" McIntyre admitted there were faults in the way the SBC expedition had been organised – not knowing if Sergeant Kennedy or either of his unfortunate colleagues had in their possession official warrants to apprehend Ned and his brother – documents that might be considered a legal necessity under the circumstances."
Ned Kelly was a victim and you should understand that!
Ned Kelly was a career criminal from his horse stealing childhood onwards. He couldn’t lie straight in bed. He plundered his way through life From teenage highway robbery graduating to psychopathic murder. No victim there.
Ned Kelly was a perpetrator and you should understand that! Don’t gaslight his victims!
n-no he wasn’t, he killed innocents, robbed banks and took hostage various individuals over two years, in other words, he definitely was not a hero