Here’s a question that the Kelly sympathisers have never wanted to answer: If their claim is true that Ned Kelly was innocent and had not assaulted Fitzpatrick on April 15th 1878, why, immediately after ‘nothing happened’ did he and Dan Kelly go into hiding at a reinforced hut in the Wombat ranges and spend so much time doing target practice that the trees all round it were riddled with bullet holes? What exactly is it about that behaviour that would be what one expects of an innocent person? Or to put it another way, isn’t what Ned Kelly did precisely what a guilty person would do – get as far away as he could from the scene of the crime and stay out of sight?
Guilty or not, that’s what Ned Kelly did the day after Fitzpatrick had returned from the Kelly shanty to Benalla with a wounded wrist, a smashed in helmet and a jumper with a bullet hole through it. By the time police got back to the shanty, Ned and Dan Kelly were nowhere to be found and the saintly Mrs Kellys first response to questioning was to pretend she hadn’t seen Ned Kelly for four months, and to deny that Fitzpatrick had visited. Her claim was supported by her daughter Kate, but many months later she changed her story radically and claimed that not only had Fitzpatrick been there, but that he had assaulted her. Mrs Kelly also later ‘remembered’ that yes, Fitzpatrick had visited.
In the Jerilderie letter a few months later Ned Kelly wrote “I was not there” a claim thats regarded by Ian Jones, every Kelly scholar who ever looked at this incident, and the Courts at the time as an outright lie. And eighteen months after writing those words Ned Kelly himself admitted that it was a lie, agreeing that he did indeed shoot at Fitzpatrick.
It’s worth noting at this point that many Kelly sympathisers still claim Fitzpatrick’s wrist injury wasn’t caused by a bullet but by something else, such as the door latch – even though Ned Kelly admitted to shooting Fitzpatrick. This scepticism is most likely the result of Ian Jones’ confusing misdirection in Chapter seven of ‘A Short life’ wherein he discussed the evidence provided by Dr Nicholson, who examined the wounds. In his quotation, Jones italicised the word ‘might’ to create the impression that Nicholson had doubts, and he left out the vital last sentence (underlined) which makes it clear Nicholson did NOT have doubts:
“Found two wounds, one a jagged one and the other a clean incision. They were about an inch and a half apart; one was on the outside of the wrist and the other near the centre. They might have been produced by a bullet – that is the outside wound. The wounds are consistent with Fitzpatrick’s statement‘ (Ovens and Murray Advertiser October 10 1878)
Later in the chapter, Jones almost reluctantly concedes that Nicholson did NOT have doubts about the wounds, citing the deposition Nicholson swore on May 17th 1878 “Could not swear it was a bullet wound but it had every appearance of one”
So, even though Mrs Kelly lied, her daughter Kate lied and Ned Kelly lied, it achieved nothing because on October 9th Mrs Kelly was convicted of ‘wounding with intent to murder’. The following day William Baumgarten was sent to prison for six years for receiving two of the horses stolen by Ned Kelly, whose mother was also now going to prison as a direct consequence, for three years.
After she was sentenced, when asked how she thought her sons might react Mrs Kelly is reported to have said “There will be murder now”, chilling words that Ned Kelly might have heard as permission to go ahead and exact lethal revenge. If true, those words illustrate yet again what a dreadfully irresponsible mother Mrs Kelly was, and point to the fact that more than anyone else, she was the person whose violent temper, whose ignorance and appalling judgement were at the heart of the outbreak. She was the woman whose faulty judgement determined it was OK to allow her 14-year-old son to be apprenticed to a gun-toting highway robber, she was the woman whose short temper and ignorance about the way arrest warrants function led to the attack on Fitzpatrick that put her before the courts, and now her faulty judgement was that instead of calling for calm and restraint, she should issue a coded message about revenge of the worst kind. Sure enough, two and a half weeks later her volatile larrikin son murdered three policemen at Stringybark Creek.
Magistrate Alfred Wyatt told the Royal Commission in 1881 that before the police were murdered he received word that ‘one of the Quinns’ and Isaiah Wright would ‘endeavour to bring the Kellys in’ (q2265) on the condition that Mrs Kelly was first set free. “In each instance, Quinn’s and Wright’s feeling was that it would be better for the men themselves to be brought in. It was not a feeling of treachery towards them, but that they could not hold out, and that it was better for them themselves to bring them in”(q2278)
Wyatt’s response was to say that he was in no position to make commitments on behalf of the Government, but if the men did hand themselves in he would make every effort to then free their mother: “I could not make a shadow of a stipulation on behalf of the Government, but if any such efforts were made, and were successful, I would use my most strenuous endeavours to carry out the condition they wished to impose”.
This incident involving Wyatt is believed by Kelly advocates to show what fair and decent-minded citizens the Kellys were, and how inflexible and harsh the judiciary was. Kelly sympathisers claim this offer was genuine and the Government was unreasonable not to accept it, but it was a proposition that had no chance of ever being acceptable. Quite apart from the unacceptable notion that Governments would be dictated to by criminals, no responsible Government would ever set a convicted criminal free in the hope that other known criminals would hold to their promise to then hand themselves in, least of all people like the Kellys who were known to be notorious liars. This was not a kind of plea bargain – they are arrangements made whereby the co-operation of a suspect is obtained on the basis they get some sort of reduction in their own sentence, not someone elses!
So, Wyatt’s counter offer was rejected; the Kelly brothers weren’t prepared to hand themselves in to give their mother even a slim chance at freedom. You have to wonder what was going through their minds at this time: were they expecting to be on the run for the entire rest of their lives – other than handing themselves in or eventually being caught there were no other realistic options apart from leaving the colony for ever.
With Mrs Kelly and two others imprisoned for their role in the murder attempt on Fitzpatrick, police turned their attention to bringing the fugitive Kelly brothers to justice. They were rumoured to be hiding in the Wombat Ranges, and much later when their camp was visited by a news reporter, he found a heavily fortressed hut made of thick logs with a heavy metal-reinforced door with a loophole. The discovery that surprised him the most was the way in which so many trees round about had been used as target practice, the bullets evidently having been gouged out of the trees and melted down to remake new ones.
I think this finding hasn’t been given the attention it deserves: it was a clear sign that the Kelly brothers were preparing for a gunfight, arming themselves and practicing their marksmanship, a clear sign that they had no intention of going quietly, a clear sign that they were prepared to shoot and possibly kill, that they were going to resist arrest rather than submit to the law. I am sure those were the thoughts that filled their minds when they discovered, no doubt to their complete surprise, that a police search party made camp a mile away, at Stringybark Creek on October 25th. Men wanted for attempted murder were about to become wanted for mass murder.