McQuiltons Case for Kelly Clan Persecution is Collapsing

Make no mistake: the MOST important finding made by the 1881 Royal Commission into the Kelly Outbreak, was that it did NOT result from police harassment and persecution of the Kelly clan. This finding is the opposite of what Ned Kelly and his supporters have always claimed, it exposes Ned Kelly as a liar and identifies him as just another criminal, who like criminals have always done, tried to blame the police and the authorities for the mess he made of his life. Never-the-less, despite that finding, in the minds of a small number of people Ned Kelly remains a hero, and the obvious question is ‘How come?’

One reason is that for obvious reasons readers simply haven’t been told of this finding : they’ve been kept in the dark by Kelly writers pretending it was never made. They’ve been told of other findings made by the Royal Commission, findings that fit with the Kelly supporters preferred story, but with one exception they’ve kept very quiet about the biggest one of them all, the finding that exposed Ned Kelly as a liar and just another criminal.   The exception was Professor John McQuilton – he attempted to make a case in support of Ned Kellys claim – that he was a police made criminal – in Chapter Four of his landmark 1979 book The Kelly Outbreak. 

Last week I pointed out that McQuilton based his argument on what happened the very first time a Kelly clan member was arrested and charged with stock theft. The only thing we actually know about this case is that in 1856, sixteen-year-old Jimmy Quinn was arrested and charged with stock theft, and subsequently acquitted. McQuilton claimed this case showed how encouragement from Squatter rewards resulted in Police picking on the clan, and the acquittal proved police didn’t have a case. But actually, when you think about it, if police were motivated by Squatter rewards and were corrupt, wouldn’t you expect them to have engineered a conviction rather than discharge, so they could collect the reward on offer?  Acquittal actually undermines McQuiltons argument, but he wrote that it was ‘difficult to over-estimate the importance of this arrest’.

In any event,  given we know nothing at all of the detail of  this case, McQuiltons claims are pure speculation – it would be equally as valid to claim this case showed that the Police were compassionate in their dealing with the young thief, that this wasn’t persecution but the actions of a Court system that was trying to avoid sending such young men to prison in the hope leniency would encourage respect for the law, and a life of crime avoided. But in fact, none of us has any idea of what happened or why, and speculation in any direction is pointless. McQuiltons first point is void.

I also showed last week that McQuilton attempted to bolster his interpretation with a completely misleading reference to the Royal Commission. The evidence he used came from 1868, long after the Outbreak of criminality in the north-east had become firmly established. His second point is therefore also void.

 

McQuilton next writes: “The next arrest of a clan member did not come until 1860 and attention shifted to the eldest son John(Jack) Quinn. Again, the charge was stock theft and it failed in court. The police stepped up their campaign, making nineteen arrests between 1860 and 1865. Twelve of the charges were dismissed by local benches. The repeated failure to obtain a conviction indicated either an incredible incompetence on the part of the police or, as oral tradition held, an overzealous attention paid to the wrong suspects.”

This really is a remarkable statement, because firstly, on the basis of a case about which we know nothing McQuilton claims to have identified a police ‘campaign’, and that it was ‘stepped up’! Why does the bare fact of making nineteen arrests in five years imply a ‘campaign’ by the Police? Couldn’t nineteen arrests in five years also just as plausibly mean that the police were responding to a campaign of increased criminality by law breakers in the north-east?

The huge problem with McQuiltons argument is that once again its not based on an analysis of the actual case, of details regarding the reasons Jack was arrested or why he was discharged. Instead, he performs a kind of crude statistical analysis on the list of charges and conviction supplied in Appendix 10 of the Report of the Royal Commission, adds up the columns and declares the only possible explanation for a conviction rate of 37% (7 of 19 charges) is either “incredible incompetence” or “attention paid to the wrong suspects” – in other words police persecution and harassment of the Kelly clan.

I hate to be the person to point this out to everyone but as an academic argument that is worse than dreadful, and its lazy. The idea that a particular conviction rate by itself, with no other data, can usefully inform a debate about Police competence and culture is unsustainable. A simple example that illustrates this obvious fact is the very low conviction rate for sex crimes in modern jurisdictions. According to one study of the US, Australia, Canada, England, Wales and Scotland, for example, only 7% of cases resulted in a conviction for the original offence charged, and only 13% led to a conviction of any sexual offence.

https://theconversation.com/victims-are-more-willing-to-report-rape-so-why-are-conviction-rates-still-woeful-92968

What would McQuilton say 13% conviction rates suggest?  Stupendous police incompetence or huge numbers of innocent people being falsely accused in a campaign of police harassment? Or perhaps he might concede that the statistic reflects how difficult it can sometimes be to legally convict, and is an indicator of scrupulous adherence to the principle of innocence until proven guilty beyond a reasonable doubt? The point is that by itself, a conviction rate tells us very little – the Royal Commissions table reveals nothing about the underlying processes and provides no support for McQuilton’s claim that it indicates police incompetence or the harassment of innocent victims. The same statistic could be used to support a view that the courts were being lenient on criminals, or that intimidation of witnesses, and perjury were successfully enabling criminals to avoid convictions, but without detail, who would know? McQuiltons argument again fails spectacularly.

What’s needed, if we’re really interested in finding out the truth are facts about the individual cases so a proper analysis can be done, and while much evidence is lost, there is still a great deal which when looked at closely, shines a very different light on those statistics.

 

So let’s now look at the second charge mentioned by McQuilton, the 1860 charge of stock theft by Jack Quinn : ‘Again, the charge was stock theft and it failed in court’writes McQuilton. John, aka ‘Jack’ Quinn was twice charged with stock theft in 1860, in the following year he was charged with robbery under arms, and in 1879 he also was charged with being a Kelly sympathiser.(RC Appendix 10) He was discharged without conviction every time, which in the eyes of some might indicate police harassment – charges laid without enough evidence to make them stick.

However, the story of Jacks first acquittal is a revealing one. What’s different about this case, compared to the 1956 acquittal of Jimmy Quinn is that the record hasn’t disappeared, and reviewing the detail of this case provides compelling evidence that McQuiltons statistically based explanation for acquittals being due to either police incompetence or harassment is completely wrong. In his defence perhaps I should concede that he may not have had the access that we are so lucky to have today, to all the old reports. Maybe if he did have the same access, his conclusions would have been different.

What happened was this: a neighbour of the Quinn’s, James Cameron reported two mares, two foals and a horse were missing. Jack Quinn and a man named Wilson were charged with selling them to a man named Butler, a man with a previous conviction for horse stealing. The transaction took place at a pub, the Little River Hotel, on the other side of Melbourne near Geelong. (Age 1-5-60 p6)

In Court one of the witnesses, John Keogh, the ‘gatekeeper at the Little River Railway Station’ told how he wrote out a receipt for the sale of horses from a Mr McDonald to Mr Butler ‘to oblige Mr McShane’ the publican in whose premises the deal was made. The receipt was exhibited in Court and Keogh said that Wilson ‘signed his name McDonald’.

However, the two witnesses could not swear in Court that the ‘prisoners’, Wilson and Quinn, were definitely the two men they had seen a couple of months before. They didn’t know them and only saw them on that day at the Little River Hotel. Quinn’s defence then produced a string of witnesses to say that Quinn couldn’t possibly have been in the pub at Little River that day because he was working with them on a farm, eighty or so miles away at Wallan, reaping and carting oats. All of the witnesses, as well as the supposed buyer Butler, were employees of Jacks father, James Quinn Snr, and it was on his farm they all claimed to have been working the day of the sale at the Little River Hotel. One of the witnesses was a brother-in-law, Robert Miller and another of them was George Porter, the same man who was later involved in a brutal attack with Jacks brother Jimmy on William Skelton, an attack that left Skelton permanently disabled. None of these people could be said to be unbiased or independent – indeed, given that their livelihood depended on wages paid to them by Jacks father, a serious conflict of interest is glaringly obvious. I wonder if these days such conflicted witnesses would have any credibility in a court?

In the end, as ‘the bench did not consider there was sufficient evidence against them’ they were all discharged.  (Age15-5-60)

This case is instructive because it depicts the very opposite of what would be expected if the McQuilton and Kelly narrative of police corruption and persecution were true. There was certainly an actual crime committed, but it had nothing to do with police – it was a dispute between one neighbour and another. And somehow the horses ended up being sold on the other side of Melbourne. Jack Quinn was acquitted on the evidence of family members and employees of his father, one of whom (Butler) was already a convicted horse thief and another (Porter) apparently, a violent thug. These unsavoury men were friends and associates of Jack Quinn. All the police needed to do to get a conviction, if that was what they had been corruptly intent on doing, would have been to ‘encourage’ their witness to swear for certain that Jack was definitely the man in the Pub. Instead, the court accepted the testimony of highly suspect defence witnesses, and the inability of prosecution witnesses to be absolutely certain about the identity of the two suspects. The charges were dismissed, not because there was no evidence but because there was ‘insufficient evidence’ against the two accused. The record documents scrupulous adherence to principles of justice and the rule of law. For Jack Quinn it was a close-run thing. This case, after close examination doesn’t just provides zero support for McQuiltons and Kellys assertion of police persecution, its actually powerful testimony to the exact opposite.

This example is also remarkable for another reason : it reveals that one of the methods used by Ned Kelly to dispose of stolen horses when he was a ‘retail and wholesale’ stock thief many years later , was in use in 1860, and quite probably by Ned Kellys uncle Jack. The method involved creating an impression in a stranger that a legitimate transaction was being conducted between a seller and a buyer and that a signature was needed from an independent witness.  The stranger, in this case Keogh, whom they met that day in the Little River Hotel, some eighty miles from Wallan where the suspects lived, wouldn’t have known that the ‘seller’ and the ‘buyer’ were partners in crime and the transaction was fake, but the documentation signed by the witness would then enable the stock to be disposed of in a legitimate sale elsewhere, and converted into cash for the thieves. The giveaway in this case was that no money was exchanged. Keogh reported that the two criminals engaged in what must have been a mock argument about when and how the payment was to be made, to allay any suspicions that might be aroused.

So what is happening to McQuiltons case for police harassment and Kelly persecution? What is happening is the same thing that happened when the Commissioners went looking for it in 1881 :  when you look closely at the actual evidence, at the facts and the historical record, the evidence thats supposed to support the claim that the Outbreak was caused by police harassment and persecution turns out not to support it at all and the myth evaporates into thin air. But its just not another Kelly Myth that’s disappeared – its the most important one of them all, and once that ones gone the whole myth collapses. 

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10 Replies to “McQuiltons Case for Kelly Clan Persecution is Collapsing”

  1. Hi David, there is a giveaway on page 70 of McQuilton’s often very useful book, where he says that “Jimmy Quinn, the wildest of the Quinn sons, held a bitter, almost unbalanced, grudge against the [police] force during his long criminal career”. To say that slowly again, a man with a long criminal career held a bitter and almost unbalanced grudge against the police. So who’s side is the author on? The side of the rural victims of the criminal’s long career? Or the side of the man with the long criminal career? It is pretty obvious that in making that statement, the author no longer stands for the protection of the community against men with long criminal careers, regardless of whether the man held any grudges against the police or not. Can we then say that the author has abandoned the rural community to the mercy of the man with the long criminal career? Not necessarily, as McQuilton says at the top of that page that while “the police were on firmer ground with their assessment of the Quinn clan … an oral tradition holding the opposite view has remained a powerful part of the Kelly story”.

    This means that your headline claim, that “McQuilton’s Case for Kelly Clan Persecution Collapses”, is premature. Before that claim can be validated, it will be necessary to examine all the evidence McQuilton put forward in this section, not just some of it. The above analysis of the 1860 case is solid, as you have given the background story and source reference (the Age and page number) for fact checking. Each of his examples on the next couple of pages would need the same examination before your conclusion become solid. At present, you would doubtless agree with McQuilton’s statement on page 74 that “by the 1870s, many of [the Quinn clan’s] members were actively involved in regional borrowing and theft”. What is important is that his list of examples “was the basis for Ned Kelly’s claim that the police had persecuted his family”.

    So as I see it, McQuilton has made a fairly complex and compact argument in a couple of pages, as he often does, and it requires a very close and detailed examination of all his points and references before it can be rejected. But you are off to a good start here, as I don’t think anyone has gone through this with a fine tooth comb previously. The Court List appendix in Graham Jones’ book, “Ned Kelly: the Larriikin Years”, is a very comprehensive list of Kelly clan scrapes, in case you haven’t seen it. Perhaps you may find that not all the examples can be as easily unpicked… Or you might find that they can…. It’s wait and see on my part, as I am busy for now on a non-Kelly project. Maybe some other people can come up with something on this, as it is too early to conclude that the case falls because two of several examples fall. They each need objective examination.

    1. Sorry Stuart Ive been pretty busy this week so after reading your Comment I changed the title of this Post as you will have seen, but haven’t had an opportunity to do much more till now!

      I have wondered though if I really do need to destroy every single argument that might be dragged in to support the Persecution myth? By analogy, to bring down an old building its only necessary to blow up the foundations – and the rest crashes down automatically.

      The important part of the persecution claim , as I see it, is to be able to show unwarranted harassment that precedes any actual criminal behaviour – because that’s Kellys claim, that he wouldn’t have been a criminal but for ‘bad treatment’ by the police.

      Episodes such as Halls bashing Kellys head to a pulp when arresting him for possession of a stolen horse are deplorable and inexcusable but are not a cause of Kellys criminality but a result of it.

      1. Hi David, I just saw this now, and agree that “is collapsing” is better that “has collapsed” PROVIDED that the case is actually collapsing rather than just a couple of pillars being shaken, which was my larger point. I am going to be difficult and say that I think “is collapsing” is also a bit premature when only a coupe of the bits of McQuilton’s case for persecution have been examined here. I remember that you did some posts on the same theme ages ago, about the lack of early childhood persecution of something, but while that may be relevant, it is not part of the McQuilton argument.

        So the whole argument about whether the Kellys were persecuted or not is a very large argument, of which the McQuilton points are only one part. To reject that argument in full means not only examining and rejecting all the points McQuilton raised in its favour, with his claimed historical proof, but also reviewing the related arguments by others, examining all the source evidence they used to argue their case, and seeing if it stands up to scrutiny or if it was selectively or wrongly used, or is contradicted by other and more credible sources. There would probably be several months work in doing that systematically, and I am not going there!

        On the other hand as you say, IF the persecution argument is that “unwarranted harassment that precedes any actual criminal behaviour – because that’s Kellys claim, that he wouldn’t have been a criminal but for ‘bad treatment’ by the police”, then that argument is made by people wanting to claim across the board that unreasonable or wrongful persecution preceded harassment practically all the time. I don’t know if Ian Jones went that far, for example, as he holds Ned Kelly responsible for stealing a horse to return for the reward as early as when he was still a boy in Avenel (in the Short Life book).

        But if someone did claim that, then the onus is on them to provide examples and evidence to support that claim enough that it becomes substantial. From what I have seen, no-one has done that very well, but undocumented generalisations abound. The case could go either way at this point, although I think it leans towards the failure of anyone to conclusively demonstrate a persecution case, given that several examples often claimed to show persecution don’t.

        The best thing about McQuilton’s approach to history is that he systematically collects and presents the evidence for each argument that he makes. So if he is addressing the persecution claim, for example, you can be fairly sure that anything related to it is probably cited by him. That makes it possible to review likely every significant point that has been put forward about that issue, and to review the claim accordingly. Maybe there is something in it, o maybe the evidence has been to some extent interpreted from a particular direction which may not stand p to scrutiny when the original sources are reviewed.

        So for example his collection of evidence for a selector army at Glenrowan, when the sources were re-examined, showed that only one armed man not with the police party was seen by anyone at any point during the entire Glenrowan siege. The selector army theory was pure fantasy built from selective quotation and erroneous source documents, such as actually wrong newspaper reports. so it fell apart under re-examination, as unsupportable. Doing that took a couple of months work, just to go through all the source material on that section, plus the related evidence, and what others had said, and then their source evidence (or creative interpretations).

        A similar amount of effort might be needed before it is possible to answer the persecution question one way or the other. At this point there seems to be enough doubts and little holes in the persecution theory to make it likely that more holes will emerge, and that the persecution theory will turn out to be a convenient historical fabrication with no substance. But it is too early to say that, and I for one don’t have time to look at it. Plus, I’m not sure if it’s worth the time – the holes that are there so far make it look like a statement of the obvious, that no systematic persecution took place, just as the Royal Commission held. They were there then, after all, and were keen to find faults with the police. People who say we will never know because we weren’t there, overlook that a lot of people were there and they left a lot of documentation. So before anyone takes up any view of historical events, they need to be willing to do a bit of research. It’s not that hard – everything is in English and most of it is free, on Trove or in the VPRO or State Library..

        1. A couple of points : In these posts I am specifically deconstructing McQultons argument that the Clan was persecuted. I am not trying to deconstruct ALL arguments, just his, mainly because he is regard as an authority on the Kelly story, and his word counts for much, in the eyes of many.

          Having said that, as I alluded to in one off my earlier posts, almost NOBODY else actually attempts to make the case, to demonstrate from the record itself, that the Commission was wrong to claim that the Outbreak was not actually a result of persecution. Jones for example simply dismisses that. finding, saying there are many example in the RC minutes that prove it. But he doesn’t list any of these examples and nobody else that I am aware of so far, other than McQuilton does actually attempt to list them or develop the case. All anyone ever does it seems, is repeat the assertion made by Ned Kelly. Often enough, about the only other thing they do is to quote Nicolson as proof that there was a police policy of harassment, but they always neglect to mention that this statement was made in 1877 by which time Kelly clan criminality was well under way. Nicolsons statement was a RESPONSE to Kelly clan criminality not a cause.

          1. Hi David, thanks for clarifying that; I was thinking broader than that the focus was just on McQuilton’s claim re persecution, despite the headline. But that’s fair enough, to tackle one specific authority and show why that authority may be wrong, or very wrong. And given your second point, that “nobody else that I am aware of so far, other than McQuilton does actually attempt to list them or develop the case”, that suggests that McQuilton may well be the only authority that has done that. In that case, the argument can be self-contained and complete, unless or until someone raises any additional evidence-based points against it. So that means, from what has gone before, that if all McQuilton’s examples in those few pages fail both independently and collectively to provide an evidenced basis for the persecution claim, then the claim fails. But I still think the standard of proof means reviewing all the examples he gave in those pages to show why they don’t work, not just some of them. Unless of course you have between here and possibly other posts done this, in which case you might reasonably restore the first draft heading of “has collapsed”…

            But I’m not sure if all his examples on this point have been addressed or not yet, in these recent posts or others. If you can systematically list them at some point, e.g. his 6 or 7 claims, or whatever, that would make it much easier to see how close the case is for regarding the persecution theory in this book to be dismissed, and on what evidence. The advantage of that listing process is that any other claims for persecution could be easily checked against the list, and effortlessly dismissed if they are not accompanied by any extra evidence not already considered by McQuilton. Of course, it is your blog, and you can tackle things any way you like; all I am suggesting is that a systematic review and demolition of the persecution theory is starting to look feasible if it is correct that no-one else has collected all the evidence that relates to the persecution claim. As far as I know, that would be a new and unique myth-buster that no-one has done before. I don’t know everything, of course! But it is an interesting investigation.

  2. David,

    David,

    I mentioned in my book that there a many missing Kelly gang official records. Perhaps the most important of these is Ellen Kelly’s land file. In it she might have explained some substantial things. Who knows?

    Regarding your blog though: All the court exhibits in the Baumgarten horses receiving case are missing. That’s the one where Ned Kelly (as Mr Thompson) was shown to be the bloke selling the stolen horses to the Baumgarten brothers (although one of the two on trial was exonerated by the jury).

    Those stolen horses had been stolen again from police paddocks, and most if not all were later found mutilated, with brands removed in or around the Murray River near Barnawartha. This was destruction of evidence on a disgusting scale. Eleven such horses were found. The only beneficiaries of this cruel mistreatment were the Kelly gang and to a lesser degree the Baumgartens.

    Cases like these showed the extreme difficulties police faced in solving them.

    The Kellys never faced charges relating to the Baumgarten case, but Dan and Ned had been indicted. All this was was superceded by the police murders at Stringybark Creek.

    Like all Aussies, I am sickened by the mistreatment of horses.

    I feed three each night.

    Ian MacFarlane

  3. David,
    Sorry to hear you are still being abused on that Facebook hatepage. You managed to get those Drongos (stupid or incompetent people) silenced by Facebook. They are exceptionally slow learners who never engage with what you write. Pathetically they only denounce you. As you have pointed out so often, they play the man not the ball. Luckily, that inept buffoon Fitzy is only a part-timer nowadays.

    I hope he is trying to raise funds for Christchurch victims…

    Ian MacFarlane

  4. On Jack Peterson’s site, on 21 May, Bob Mc Garrigle wrote: I agree with what you have written Jack. I think someone knows where this document [Ned’s NE Victoria republic declaration] is and like the JL and Cameron letters will one day be released for all to see.
    Obviously Ian MacFarlane couldn’t find it but then again there was a lot he couldn’t find,when others could.

    Bob, name one single document I couldn’t find that “others could”. Just one.

    The Age’s former journo Mr Radic withdrew his claim of ever having seen such a document.

    Bob, there is a large series of police records (from a slightly later period) that has not been archivally described yet. Sometimes original earlier records, if referred up the line, end up in later records. This document described by Jack doesn’t exist. If it did the Police Royal Commission would have highlighted it

    Bob, you could always offer to act as a volunteer to work through the hundreds of boxes of records involved.

    In the meantime, fess up the records I couldn’t find but others could.

    Ian MacFarlane

  5. Funny how everyone seriously believed for nearly 60 years that film critic Leonard Radic had seem a PRINTED COPY of a republic declaration document in London in 1961/2, as he had told Ian Jones, who repeated the tale ad nauseum, ad infinitum, and ad BS. And yes, Mr Radic withdrew his claim around 2013. Are we now are asked to believe that a mystery printer printed one only copy of a document that ended up in London, while no other copy was ever seen or even mentioned in Australia by anyone? Especially now that Mr Radic withdrew his claim? LMAO. No mention of any declaration was ever made anywhere until Max Brown imaginatively created it from two different newspaper items, neither of which said anything at all about a declaration document. The claim is entirely fictional. I showed in detail how the myth was created, including the source references, in my brilliant book, “Never mind the BS, here’s Ned Kelly and the myth of a republic of North-Eastern Victoria”, available free since 2018. It is best enjoyed with a glass of red and early Santana playing in the background. Santana/Miles Live goes particularly well.

    I have since heard, however, that if you draw a set of lines from the cave of the Ark of the Covenant, to the top of Cheops’ Pyramid, to the centre of the Bermuda Triangle, to the third statue on Easter Island, to the south pole and return, one of the lines passes straight through the site of the Benalla Police Station and up through Greta. Walk seven miles from the pub as the crow flies, then seven hundred and seventy-seven paces left, and you will find a rotted hollow stump. Buried under the tap root is a sealed glass beer bottle. Wink, LMAOA.

    Cheer up sleepy Jean
    Oh, what can it mean to a
    Daydream believer and a
    Homecoming queen?

    1. Len Radic was a theatre critic not a film critic. But the rest of the first paragraph makes sense.

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