In the Jerilderie letter, written in February 1879, Ned Kelly provided his version of the incident at his mother’s house on the evening of April 15th1878 when Constable Alexander Fitzpatrick arrived to arrest Dan Kelly for horse stealing. He said a fight erupted when Mrs Kelly told Dan he didn’t have to go because Fitzpatrick couldn’t produce the arrest warrant. According to Ned Kelly, Fitzpatrick then drew his revolver and said he would blow Mrs Kellys brains out “if she interfered in the arrest. She told him it was a good job for him Ned wasn’t there or he would ram the revolver down his throat. Dan looked out and said Ned is coming now. The trooper being off his guard looked out and when Dan got his attention drawn he dropped the knife and fork which showed he had no murderous intent and slapped Heenans hug on him, took his revolver and kept him there till Skillion and Ryan came with horses which Dan sold that night. The trooper left and invented some scheme to say that he got shot which any man can see is false”
The account given by Constable Fitzpatrick about what happened was recorded in police files and reported in the local newspapers. He had tried to defend himself when attacked by Mrs Kelly with a shovel, and by Ned Kelly with a revolver. He was shot in the wrist and the bullet was removed before he was sent on his way.
The following evening Sergeant Steel and SC Strahan went to Mrs Kellys house to question her. In his report, he wrote “She said I have not seen Constable Fitzpatrick since you and him was at my place and that is over a month, and as for seeing my son Ned, I have not seen him for the last four months. Catherine Kelly daughter of prisoner Ellen Kelly was present when her mother made this statement and made the same statement as her mother”PROV VPRS 4966 Unit 1 item 4/TDR 129)
Obviously, both of them were lying. And, as even Kelly authority Ian Jones later conceded, so was Ned Kelly, who claimed in the Jerilderie letter that he couldn’t have shot Fitzpatrick because he was several hundred miles away at the time. The evidence that Ned Kelly was there that night is overwhelming and no credible pro or anti –Kelly student doubts it.
A few months later, as a result of this incident, Mrs Kelly was on trial for attempted murder. The only argument advanced in her defence was an attempt to show that because he was drunk, Fitzpatrick had wrongly identified Skillion. The defence were hoping that by proving one part of Fitzpatrick’s testimony wrong, all of it could be dismissed as unreliable. Provocatively, the prosecutor suggested Kate Kelly be called to give evidence in support of Ned Kellys claim that he wasn’t there either, but the defence declined to call her, Kate offered nothing in defence of her mother, the defences argument was not accepted and so Mrs Kelly was found guilty and sent to gaol for three years, with hard labour.
The immensely significant and telling observation to note about the claims and counter claims made in the ten months that followed that day in April, about what exactly had happened, is that in none of them was even one word uttered about something which these days is supposed by many to be the central element of the entire event. These days the outrage at the heart of the ‘fracas’ at the Kelly house is said to have been a sexual assault on Kate Kelly. Nowadays its commonly believed that it was this assault on Kate, aged 14 at the time, rather than the attempted arrest of Dan, that provoked Mrs Kellys violent attack on Fitzpatrick, and yet, as I have pointed out, for all of 1878 not a single word was spoken about such an event by anyone, anywhere at any time.
At Faithfull’s Creek in December 1878, where the Gang kept hostages while the bank at Euroa was robbed, Ned Kelly talked with his prisoners ‘for hours’– and he ‘told them the story of his family’s problems with police’ (Jones) – but of Fitzpatrick’s alleged advances on Kate, a vile act if it happened: nothing. The Cameron letter and its expanded version the Jerilderie letter both gave detailed descriptions of the incident, identifying Mrs Kellys ill-informed objection to arrest without a warrant as the provocation for the attack – but of sexual assault: nothing. In the Court reports: nothing.
So how is it that Ian Jones can write in 1995 “Everyone admits that a brawl took place. Fitzpatrick’s advances to Kate provide a credible starting point” (Ian Jones 1995) How is that on a You Tube lecture from the National Portrait Gallery history professor John Molony says Kate was raped by Fitzpatrick? How is it that just last week in ‘A Guide to Australian Bushranging’ self proclaimed Bushranging historian Aidan Phelan can write: “What seems to have been the case, according to popular understanding, is that Fitzpatrick possibly made an unwanted sexual advance on fifteen-year-old Kate Kelly and a fight broke out. Fitzpatrick claimed that Ellen Kelly hit him in the head with a coal shovel and Ned Kelly entered the house and shot him in the wrist, accompanied by Brickey Williamson and Ellen Kelly’s son-in-law Bill Skillion who were both brandishing revolvers.”
The first recorded mention of an assault on Kate that I am aware of can be found on page 3 of the Melbourne Herald of February 7th1879 in an article titled “Kelly Gang” According to the article a ‘party of gentlemen’travelling from Sydney to Melbourne called in at the Kelly home in Greta and spoke to Kate Kelly:
“In fact, Miss Kelly did not hesitate to state that on the occasion when Trooper Fitzpatrick visited their house in the beginning of last year he did not do so for the purpose, as he said, of executing a warrant for the arrest of Ned Kelly for horse-stealing, although he had such a document in his possession. Fitzpatrick according to Miss Kelly was on very intimate terms with the family, and never would have executed the warrant but for circumstances that transpired during his visit; according to her statement she was in her house alone when Fitzpatrick came, and he commenced in violent manner to behave improperly. Just then her brother Ned came to the door, and caught Fitzpatrick in the act of attempting an outrage, whereupon, he, with the natural instinct of a brother under such circumstances, rushed for his revolver, Fitzpatrick it is said seeing the position of affairs immediately bethought himself of the warrant, which he pulled out and held up to Ned, saying at the same time,” I’ve got this for you.” At this moment, Ned Kelly, having seized his revolver, fired, and this was how it came that Fitzpatrick was shot in the wrist. This statement of Miss Kelly’s, it will be observed, settles the questions to whether Ned Kelly even did shoot Fitzpatrick some doubts being previously attached”
If these reports of what Kate Kelly said are accurate, they contain a deeply disturbing, even shocking allegation about Constable Fitzpatrick. No detail was provided, but the allegation is clear enough – the trooper made some sort of violent sexual attack on 14-year-old Kate Kelly, an allegation which has grown in the endless cycle of telling and re-telling from ‘attempting an outrage’ in 1879 to ‘rape’ in 2011. Though it took ten months for this complaint to be voiced, such delay is not in itself suspicious. It is well known that victims of sexual assault often don’t go to the police at all, and long delays between the assault and formal complaint are common. But the perfect silence for all those months needs an explanation, if the claim is not going to be dismissed as a malicious fabrication, part of the well-recognised Kelly clan campaign of vilification and lying about Constable Fitzpatrick.
Close examination reveals several major problems with this awful allegation, the first being that it’s part of a statement containing provable lies – Kates credibility is immediately called into question. Her claim to have been at home alone is a lie – all other witnesses said her mother and other siblings, including Dan were at home with her; her claim that Fitzpatrick produced the arrest warrant is also a lie – even Fitzpatrick agreed he hadn’t taken it with him; and she made a liar of her brother Ned Kelly who claimed he wasn’t there and that he hadn’t shot Fitzpatrick.
Secondly, everyone agrees Kate lied about being at home on her own, which means this assault must have happened in front of witnesses – but not one person ever came forward to support her allegation after it was made, or mentioned it themselves in their own accounting of what happened that night – neither Ned or Dan Kelly, not Williamson or even Kates own mother until more than 30 years later. Ian Jones recognised this problem and was forced to admit that if a sexual assault had happened, ‘it must have been more subtle than the attempted ‘outrage’ described in the more colourful versions’.
Thirdly, and damming, in my opinion, is the fact that if true it would have been a powerful defence in her mother’s battle against a conviction for assaulting Fitzpatrick. Even more sensationally, if proven, it could have resulted in Mrs Kelly going free and Fitzpatrick going to gaol for sexual assault. But not the slightest hint of such behaviour was alleged in Mrs Kelly defence, and no such charges were ever brought against Fitzpatrick for sexual assault.
So whose version of the incident at the Greta home should be believed: Kates, which alleges sexual assault, or Ned Kellys which didn’t?
Well, Kates credibility as a witness is called into serious question by the fact that the parts of her statement that can be fact-checked are untrue – in other words they are lies. This leaves the part that can’t be checked – the allegation of a violent sexual assault – in a very precarious position : to accept it as not just another lie , there needs to be something independent of Kates testimony to support it – but there isn’t anything.
Ned Kellys versions of events, both written and verbal, make no mention of a sexual assault. Furthermore, Ned Kelly was specifically asked about the assault in that famous “interview” conducted by David Gaunson in August 1880;
“Reporter: Now Kelly, what is the real history of Fitzpatrick’s business? Did he ever try to take liberties with your sister Kate?”
Kelly : No that is a foolish story. If he or any other policeman tried to take liberties with my sister, Victoria would not hold him” (The Age, August 9th1880)
In 1911, Mrs Kelly claimed to journalist Brian Cookson that this ‘improper’ behaviour was just an attempt by Fitzpatrick to ‘kiss my daughter’, and ‘the boys tried to stop him’. But can that be believed? Other claims Mrs Kelly made about Fitzpatrick at that interview were obvious lies, such as ‘it was said that I hit him. I never did. I never touched him’. The most charitable thing that could be said about her testimony in 1911, when she was 79, is that it showed her memory was failing. Less charitably, but accurately, it could be said that she was lying about her role in the incident, and likely also lying about what happened to Kate.
It’s clear, after careful examination that this allegation against Fitzpatrick of violent ‘improper’ behaviour is a malicious fabrication, one of many but perhaps the most revolting of all the lies the Kelly clan told about Fitzpatrick. It is a shocking allegation to make, and one that cannot be dismissed lightly, but the person making the allegation was a proven liar, and the only support she ever got for it was from her mother, 30 years later in an interview in which other lies were told. Her brother emphatically denied it ever happened and no other witness ever offered anything in support. If true, defending her daughter from sexual assault would have been a powerful defence for the charges laid against Ellen Kelly, and could have prevented a long period of imprisonment that would prove devastating for her and her family – but the claim was never presented. To my mind that is the most telling indicator that the allegation was a fabrication: nobody was prepared to have it challenged in Court. Instead, it was a nasty slur invented a few months later and spread about maliciously to further undermine Fitzpatrick, and perhaps try to gain some sympathy for the mess they found themselves in.
The only response Kelly sympathisers have ever made to the case against Kates claim to have been assaulted is to claim it was hushed up to spare her from the shame of having been raped. This is a conspiracy theory, of course, one of many that Kelly supporters resort to when there are no facts to support their stories. In reality, the reputation of the family was already badly damaged in any case, by Ned and Dans convictions and sentences for theft and other criminal activities, and Mrs Kellys own reputation as being ‘notorious’. But here’s their supposed calculation : on one hand they could save Kate some embarrassment at the cost of letting their mother go to prison and Fitzpatrick get off , OR, on the other hand, tell the whole story about what happened to Kate that night keep their mother out of prison and have Fitzpatrick convicted of sexual assault and have him sent to prison instead…. its a no-brainer! The idea that to protect Kate from embarrassment they would rather have their mother sent to Gaol, and miss out on the opportunity to put behind bars the criminal policeman who committed the rape, a man they clearly all hate with a passion ….is simply absurd.
As Max Brown wrote in 1948 of the claims of sexual assault against Fitzpatrick, ‘although Kate was sixteen (sic) and pretty enough(sic), the myth does not fit the evidence’.
In other words, its nonsense, and no credible modern Kelly story teller should be repeating it. Kate Kelly had a sad and troubled life, but she wasn’t ever raped, or subjected to an improper violent ‘outrage’ by Constable Fitzpatrick.
(This Post is based on “Redeeming Fitzpatrick: Ned Kelly and the Fitzpatrick Incident” by Dr Stuart E Dawson)