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 sham. The 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 essayabout 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.