“Ned Kelly as we all know, was no angel. But how much better was his nemesis, Sir Redmond Barry, who sentenced Ned to death and who succumbed to Kellys courtroom curse by dying within two weeks of the bushranger’s execution?”
That question is asked on the back cover of “Neds Nemesis”, a small book written in 2007 by a former Victorian county court Judge, Graham Fricke. Fricke seems to think that though Kelly and Barry were from different sides of a cultural divide, their lives were in some strange way comparable and therefore its valid to measure one against the other.
In the Epilogue he writes of Barry “But despite the monuments – a University building, a street named after him, a statue – his fame has not increased posthumously. As the years have passed, the community has taken even less interest in the man than have the pigeons which from time to time leave their irreverent droppings on the head of his statue”
Of Kelly, he writes “Ned Kelly may have died a few days earlier than his antagonist Redmond Barry at a much more youthful age and at a time not of his choosing. But the cause for which he contended – broadly, democracy and fairness versus privilege and persecution – have in general terms prevailed.” In Fricke’s eyes the ultimate victor in this clash of cultures was Ned Kelly, even though he argues in the book that Ned Kelly was a victim of the unjust system that Barry represented and upheld. He summed up his understanding of Ned Kellys story this way:
“From today’s vantage point (Ned Kellys) experiences with the Law seem to have been characterised by inequity, furnishing an adequate explanation for Kellys rebelliousness and sense of oppression”
In other words, Fricke supports the idea that the Kelly story was not primarily one of criminality, but one of police and judicial oppression and inequity, and this behaviour was what caused Kelly to become an outlaw. “Inequity” in Fricke’s eyes provided an ‘adequate explanation’ – indeed, a justification – for the outbreak. This view is exactly the same as Ned Kellys : “ If my lips teach the public that men are made mad by bad treatment, and if the police are taught that they may not exasperate to madness men they persecute and ill-treat, my life will not entirely be thrown away.”
This view is a core Kelly sympathiser claim, but surprisingly perhaps this book is almost never mentioned in Kelly sympathiser reading lists.
To establish his point about ‘inequity’, Fricke discusses in sequence many of Ned Kellys encounters with the law, highlighting in each case what he perceives as the inequity, beginning with the incident involving an alleged assault by 14-year-old Kelly on Ah Fook. He downplays the seriousness of the alleged assault calling it a ‘skirmish’ and writes, to my amazement that “we can ignore the fine details of the incident…. since Ned was acquitted”. I would have thought that knowledge and an understanding of the detail surrounding the acquittal would be essential to understanding what happened – but apparently its irrelevant if you’re acquitted! According to Fricke the inequity demonstrated in this case was institutional and related to the bail system, because the police used it to deny Kelly his freedom and keep him in custody “for more than a month awaiting a trial in which he ultimately achieved exoneration.”
“Today it would be unthinkable that a youth of that age would be forced to spend several weeks in an adult prison or in a police cell awaiting trial”
According to Fricke, this prolonged unjustified incarceration of an innocent youth had serious consequences: “The by-then thoroughly radicalised young Kelly needed little persuasion from his mother to become apprenticed to the gentleman bushranger Harry Power”. An innocent youthful victim of an unjust system is ‘radicalised’ and propelled by it into criminality – exactly as the Kelly legend and Kelly himself claimed!
This argument sounds persuasive enough – until you decide not to take Fricke’s advice to ignore the ‘fine details’, and find out what actually happened. For a start, Kelly was not ‘exonerated’ or found innocent as Fricke’s language suggests – the defendant was ‘discharged’ because there were no witnesses for Ah Fook. In fact, it was generally thought at the time by anyone familiar with the ‘fine detail’ Fricke suggests we ignore, that Ned Kelly was lucky to have escaped conviction– in other words if there was any ‘inequity’ in the case, it was Ah Fook who was on the receiving end of it, not Ned Kelly! Much worse for Fricke’s ‘radicalisation’ argument though is the fact that Ned was not held in custody for “several weeks” or “more than a month” but only for 11 days, surely nowhere near enough time for the boy to become ‘thoroughly radicalised’? Not only does Frickes attempt to portray Kelly as a victim of ‘inequity’ fail at the very first attempt, he also fails to recognise the person who truly WAS the victim of ‘inequity’ – Ah Fook the Chinese traveller.
Fricke then goes on to describe Kellys other encounters with the law through this same distorted lens, making it his practise to minimise the criminality of Kellys behaviour and portraying him to be a victim of a system of ‘inequity’. He downplays the McCormick incident as a ‘run of the mill domestic dispute and behaviour in poor juvenile taste’ and criticises the sentence of six months as being excessive. He makes much of the fact that Ned Kelly was still in prison when the Mansfield postmasters horse was stolen, saying that once this was realised ‘the police were unfazed. They simply amended the charge to one of receiving.’ This phrasing is aimed at reinforcing the idea of ‘inequity’, conveying an impression that police just had it in for Kelly, and when the first charge couldn’t be made to stick they simply dreamed up another one. Fricke goes on to analyse the crime of ‘receiving’ and show in legalistic detail why in his view, Kelly shouldn’t have been convicted of it. Fricke thinks he has found another example of inequitable treatment of Ned Kelly!
However once again Fricke has let himself down by not being familiar with the ‘fine detail’, and arrives at a conclusion the facts don’t support. Ned Kelly was found in possession of a horse that had been reported stolen, and reasonably enough he was arrested and charged with stealing it. Subsequently police learned he couldn’t have stolen it, but they also learned something Fricke missed: in court James Murdock testified that Kellys intention was not ever to return the horse but to sell it, though of course Kelly well knew that it wasn’t his to sell. This resulted in his conviction, but it wasn’t for ‘receiving’ as Fricke wrongly reports, but for ‘feloniously receiving’ which is a more sinister crime than mere ‘receiving’. So once again Fricke’s incomplete grasp of the ‘fine detail’ has led him to an incomplete understanding of the entire picture and resulted in him constructing a flawed argument that Kellys trial was inadequate and that he had no case to answer.
Inevitably, Fricke’s account of the ‘Fitzpatrick’ incident contains all the usual lies that the Kellys and their supporters have attached to it over the years, almost every one of which has now been exposed. Fricke says Fitzpatrick’s visit was ’ostensibly’ for the purpose of arresting Dan, he says Fitzpatrick ‘didn’t bother’ to take warrants with him, that he went there ‘contrary’ to a police ‘directive’, that he had been ‘imbibing alcohol’, and that he ‘may have been more interested in seeing Neds fourteen-year-old sister Kate to whom, amongst other women, he was attracted’ (and Fricke’s footnote says Fitzpatrick was ‘quite a womaniser’). Every one of those assertions is false, though at the time he wrote his book they were all elements of the orthodox Kelly story, as presented by Fricke’s main sources Jones, Moloney et al. so I suppose Fricke can be excused for repeating them.
In his determination to support Kelly by finding ‘inequity’ everywhere, and undermine the policeman’s claim about his wrist injury, Fricke quotes a few words from the autopsy findings of Dr Nicholson: “it might have been produced by a bullet”. They seem to suggest Nicholson had doubts. However, every other statement of Nicholson’s about that wound show quite clearly he wasn’t sceptical at all: ‘it has every appearance of being one (a bullet wound)’ and ‘The wounds are consistent with Fitzpatrick’s statement’ and ‘either of the bullets produced by the mould taken from the Kelly house could have produced the wound’ – but all of them are ignored by Fricke.
I am not sure how Fricke would explain himself in regard to this misleading use of Nicholson’s words – did he deliberately ignore the ones that undermined his argument or was he simply ignorant of them? Either way it’s a terrible look.
Unsurprisingly, the obviously badly misinformed Fricke concludes that Ellen Kellys trial and conviction, presided over by Barry, was another example of ‘inequity’, because it was ‘based on the evidence of the shifty, devious Fitzpatrick’.The irony of course is that it was the Kellys and their friends whose testimonies were shifty and devious, being marked by frequent changes, internal inconsistencies and demonstrable lies. Fitzpatrick on the other hand gave one account and never changed any of it.
(Part Two to follow : Its already clear that Fricke has based his case on a very poor understanding of the ‘fine detail’ of the Kelly story. People who reviewed this book at the time were mostly legal types who were equally as uninformed, and so they recommended it. Fricke gave a talk about this book at the Beechworth Kelly Weekend in 2008, and took questions afterwards. I would guess, given his stance, that he was warmly received by the Kelly sympathiser mob who are now and probably were also then woefully uninformed of the ‘fine detail’.)
33 Replies to “Book Review : Neds Nemesis by Graham Fricke. (Part ONE)”
If I am ever charged with anything, I hope I appear before a judge like Fricke!
Yes it would be great to have a Judge who wasn’t too worried about minor detail – such as the facts!.
I think he was another of the legion of Kelly devotees who were mesmerized by Ian Jones. Pity he didnt get Sharon to do a fact-check on his manuscript before it was sent to the printer!
In many ways I wish Ian Jones was still around so we could hold him to account for the Kelly nonsense he sold to Australia claiming it was history.
The first part of Fricke’s book is devoted to slagging Redmond Barry off for no demonstrable reason. He references Anne Galbally favourably as “Barry’s biographer”; but that book is also a work of character assassination. Fricke is determined to ram home the idea that Barry hated what Fricke calls the “bog Irish”, but has nothing to support this bit of prejudice outside of the views of one of Barry’s aunts who lived in England! In fact Fricke shows that Barry was far from prejudiced class-wise, having a good relationship with tenants on his parent’s farm, and with working men in Melbourne. He sought to elevate the working class here through the means in vogue at the time, in particular the establishment of education and public libraries. In any event, Barry was a particularly poor choice of a “nemesis” for Kelly if Fricke was determined to find one. Sgt Steele would have been much more apt. The artificial polarisation of Barry and Kelly is so bad that it’s hard to know where to start critiquing it. Barry’s valuable and appreciated contributions to the new colony were described by Garryowen who Fricke quoted and it is the more remarkable that Fricke seems so determined to pull Barry’s reputation apart based on two main points:
First, the fact that Barry had a mistress (although he could not have married her due to religious strictures in any case), and second that for some inexplicable reason Fricke has joined the club of elite lawyers and judges exercising their wild side by sympathising with the most notorious police killer in Victoria’s history. Other luminaries have included John Harber Phillips who came out as a Kelly apologist after falling for Jones’s republic nonsense many years ago, and a clutch of legal eagles who indulge in Kelly retrials very few years do they can show how clever they are by finding him not guilty. That depends entirely on half assed misrepresentations of McIntyre’s evidence in turn based on Jonesy’s false claim that McIntyre changed his story from his first SBC report. That claim is false and relies on Jones treating the Sadlier 1913 “Recollections” narrative as fact, which it wasn’t. It was false memory and showed to be such by McIntyre’s Beechworth testimony. More to come in a few days.
Thanks Stuart. I am am 3/4 through the second part of my review of this book, and I begin it by admitting the fact that I ignored the first few chapters which as you say are ‘slagging Barry off for no demonstrable reason’.
Ive now also just come across a recording of Jon Faine Interviewing Fricke, and its clear Fricke has a major bee in his bonnet about Barry, as well as a soft spot for Ned Kelly . Interesting I also came across an obituary to a woman who discovered after her fathers death from lung cancer “that her biological father was not Alan Roberts but was a Judge of the County Court of Victoria, Graham Fricke. To say the least this was a startling discovery.”
Makes one wonder about the origins of Grahams anger and condemnation of Redmonds ‘moral failings’ doesnt it? I’ll put a link to the Audio in the second post.
Anyway, I will try to get this finished in a few days and post it for the weekend read! Maybe you can then add your promised “more to come”
I am not so sure that I would agree with Stuart on his suggestion that Sgt Steele would have been a better target for Fricke to attack. Maybe I am wrong from my limited reading, but it appears to me that the allegations against him made by Constables Arthur and Phillips at the Royal Commission in 1881, were almost certainly made up and was ‘pay back’ for Steele calling them cowards at Glenrowan. Steele was not given an opportunity to answer the allegation by the Commission and somewhat like a ‘kangaroo court’, the Commission recommended he be reduced to the ranks on very spurious evidence.
The allegation that Steele shot at Mrs. Reardon as she was escaping from the hotel is almost certainly false. Ann Jones had written a letter stating that the bullet through Reardon’s shawl did occur, but it was inside the hotel while Reardon was laying down on a bunk bed. Steele was armed with a double barrelled shotgun, and in all pictures taken at Glenrowan he can be seen holding that weapon. Had he fired a shotgun at Reardon, there would have been substantive injuries to all in the vicinity of Reardon. Steele denied the event ever happened and stated that other police between him and Arthur and Phillips did not hear any comments or conversation towards Steele alleged to be made by those officers.
Steele was strongly supported by his local community and he was never broken to the ranks, and remained a sergeant for the rest of his police career. The allegation and information relating to the public meeting in support can he read here. http://nedkelly.info/Steele.pdf
As far as Fricke is concerned, Graham Fricke should never have been appointed as a judge anywhere with his displayed attitude. It was clearly unethical and quite improper for him to make the statements he did regarding Redmond Barry and Ned Kelly.
Hi Sam, I agree with all that, I was just thinking of a better example of a nemesis if one wanted to find one. Although I think the whole idea of a “nemesis” was misfounded. Rather silly really IMOH.
David, I see from your FB page that you are still having to stomach the ever dwindling attacks of Kelly mediocrities XXXXXXXXX, XXXXXXXXX and XXXXXXXXX!
Where are all the new pro-Kelly book(s) that refute the recent histories about the Psychopathic cop killer?
N O N E.
Settle down Ian.
Some other clanging errors in the first part of Fricke’s book:
He repeats the old fiction that “England had little taste for establishing a settlement halfway around the world” but after the US broke free “England needed somewhere else to dump its burgeoning convict population” (p. 2). This was debunked well and truly by Alan Frost’s book, The First Fleet.
In complaining that the early police magistrates had military backgrounds (p. 27), he ignores that the London Metropolitan Police, the new model of policing on which many subsequent police forces including ours were based, was only established in 1829, barely 8 years before Melbourne’s founding. Of course policing began on the military model, it was still effectively that in most of England.
What is notable is that Melbourne established a court system early and could hear civil matters by 1839 (p. 27). By p. 36 Fricke is happy to declare that “Barry’s prejudices against the insubordinate big Irish remained with him for the rest of his life” – but Frick has nowhere demonstrated any such prejudices; it is only his own undocumented bias against Barry running riot. This attitude colours the whole rest of the book. God help anyone Fricke might have taken a dislike to during his years on the bench if this is any guide.
His self contradictions are truly contortionistic: two pages later he concedes that “Barry demonstrated that energy and perseverance are more important attributes than native talent”. (As indeed they are for most achievers.)
By p. 49 we are well into Kelly loving: after repeating the ludicrously wrong claims of a war between squatters and selectors popularised by Jones since the late 1960s, Fricke claims against practically every news article between the early 1870s and Kelly’s capture in 1880 that “many of the people in the northeast were battlers who readily empathised with the gang”, a claim long demolished by Morrissey from the 1980s onwards.
The heavy reliance on Jones mythology is obvious throughout. P. 51, “Thus Ned became the head of the Kelly household at the age of 12”.
Fricke lambasts Barry again about hating the big Irish on p. 63 when talking about the Eureka trials, again producing no evidence whatsoever that any such thought even occurred to Barry on that context. It is entirely made up from the fact that Irishmen were amongst the accused.
The first valuable contribution to legal argument is a clear explanation of the doctrine of concert on p. 69-71.
I am struggling to start chapter 5 titled Prosecution and Persecution, and which opens with lengthy quotes from the Jerilderie letter and the Ballad of Reading Gaol. Jones’s book is mentioned as the biography of “the celebrated bushranger”, and we are told by Judge Fricke to remember that Kelly “lived in an era riddled with injustices “. Oh my god. These are sourced to the legal system itself. It’s a good thing that we have such enlightened moderns around to declaim the outrages of history and put the world to rights through idealised time travelling…
More when I can steel myself to the task. But it is clear that there is a lot of bias to climb over to sift out the legal facts soon to be presented from the buckets of prejudice in which the story seems encased given this starting point. Of course there is room for interpretation, but as far as I can see nowhere is there any good evidence put forward for the hostility to Barry that completely permeates the first five chapters of this book. Let the Kelly years begin!
David, you meant that Judge Fricke was from the County Court, not Country Court didn’t you? And Stuart you meant BOG Irish not Big Irish didn’t you? Of course you did.
Hi Rebecca, yes Fricke says “bog Irish” repeatedly. My mobile phone’s autocorrect just tried to make it “big Irish” again when I typed it now. Myself, I would never write anything so insulting about a group of people as though they could be lumped together like that with a disparaging term. One can speak of specific persons and their particular backgrounds without using such provocative generations. Again, Fricke does not give one single quote from Barry anywhere to back up his belief that Barry had any such prejudice against a segment of the Irish population or of Irish who came to Australia in that period. Barry may or may not have agreed with the sentiment of a convict stain, but if he did there’s nothing in the first four chapters to demonstrate that.
Oh that’s a bit rich Stuart.
Didn’t you recently disparage the Glenrowan business owners as ‘despicable schmucks’?
Yes. You did.
No, I didn’t. You’re a despicable schmuck for saying that.
Furthermore , everyone knows that if you click on a comment you get the URL to that comment in your browser. So copy and paste the URL where you claim I ever said anything against Glenrowan businesses. It has never happened once. I have been to Glenrowan stacks of times including staying overnight and spent my hard-earned in many of the main street businesses, had pleasant conversations with people, done all the tourist things and taken tons of photos. Put up or shut up.
Quoting Stuart. 21 June this year:
‘I would have no problems with Glenrowan celebrating the defeat of Australia’s most notorious and evil outlaw. As it is now, however, Glenrowan is a cringe town like Jerilderie. “Look, we were done over and suffered. Now let’s pretend it was OK for the tourists.” Both towns are afraid to confront their own past and condemn the criminals who tore their towns apart, terrorised the inhabitants and whose idolisers continue to spread hate against anyone who criticises the criminal gang. Instead they supinely bow to the worst event in their history and hope the tourists will empathise with their cowardice in exchange for a few dollars. There would be just as much money in evil Ned Kelly for Glenrowan and the other places (including the old Melbourne Gaol) as there has been in touting him and his gang as some type of heroes that they never were. BUT THEY ARE SUCH PATHETIC SCHMUCKS. And the tourist places are mostly run by Kelly nuts, especially the volunteers, who recycle iunhistorical myths to gullible tourists and typically get narky at any challenge to their idiotic narratives. None of them deserve a cent of public funding’.
We think Ned’s real nemesis was detective Ward who relentlessly pursued Ned and his Gang all over NE Victoria. Ward was subjected to a protracted Gang hate campaign of letters with pictures of coffins and funereal tape, and disgusting allegations. Ward was near SBC when the horrible police murders took place.
Horrie and Alf
Re Anonymous 13 August 10:30am, as I said I did not call Glenrowan business owners despicable schmucks as per your misquote. I did not call them pathetic schmucks either. It is the tourism promoters who cow to the Kelly myth in the hope of a few dollars. Please invest in some new spectacles and a basic reading course.
Stuart, so “PATHETIC SCHMUCKS. ” is acceptable, whilst “despicable schmucks” is not? Are you for real? Your despicable remarks were directed at the people and business owners of Glenrowan, not the promoters as you deceivingly claim.
Could you have not written a reply to ANONYMOUS without being derogatory towards him/her?
Look at Me Look at Me!
Stuart there have been a few other Kelly fanatics joining in the pile-on attacking you for using the word ‘schmuck’ – but I’ll not post them. I wish you hadn’t used that word but youre entitled to an opinion and to express it , which of course is what the Kelly fanatics are all doing in attacking you. However I just want to point out to one and all that in the way there doing it they are once again also displaying their usual gross hypocrisy by indulging in greater vulgarity and direct personal abuse than you ever did in letting loose a spray at a generic class of Kelly myth-promotor.
For years and years Kelly fanatics have been posting abusive personal attacks and vilification of you online, but not a single one of these delicate souls who are so concerned about the word ‘schmuck’ have ever expressed the slightest concern about THAT personal abuse.
They hate you because you’ve exposed the fact that so much of the Kelly story they so blindly and uncritically have swallowed are laughable myths and bullshit. its the old story of blame the messenger>
On Facebook Ive been asking them to front up with examples of the things that Ned Kelly did that enable them to claim he made a stand against injustice and stood up for his family. The losers haven’t come up with a single thing. Their story is a hollow shell and they hate us for pointing it out to the wider world.
They’re just carrying on because the Anonymous on 12 August at 1:08pm decided to have a go at me, totally unrelated to anything about the topic, by lying and telling the world that I poo-pooed Glenrowan business owners. I didn’t; I said so, and I’ve lost interest in responding to illiterates. If someone can’t read plain English and insists on wilfully misinterpreting it that’s their problem.
David, for years and years Kelly fanatics have been posting abusive personal attacks and vilification of you online too. That is all they seem good at. They never contribute to the topics under discussion here. All they do is aim stupid pot-shots at you and Stuart and others. Get a life, dumbos!
To return to Fricke’s book, he lists what sees as injustices in the legal system from pages 75 to 77. This is all very well as background but begs the question as to whether Ned was treated correctly under the legal system as it was in his day in his various encounters with it. As David has shown in detail in other parts of this blog, the idea that Ned was persecuted by police or hounded for no reason doesn’t hold water.
On page 78 Fricke contends that Ned’s first brush with the law occurred in October 1869, before his 15th birthday, in the Ah Fook incident. This of course is way wrong: Ned had been nicking horses for the reward at least as young as 10 years old, as stated plainly in Jones’ Short Life which Fricke had read. His brothers had been into it too. After getting off charges of the robbery of Ah Fook due to the latter having no witnesses and Ned’s family lying in court – a detail that Fricke omitted – Fricke contends that “the by then thoroughly radicalised young Kelly needed little persuasion from his mother to become “apprenticed” to the “gentleman bushranger” Harry Power” (p. 80). It is quite funny to read a retired judge writing about someone who lived by armed robbery as any kind of gentleman after 4 chapters of derisive put downs about one of Melbourne’s early progressive luminaries. But in what sense was young Kelly (as the O&M called him back then) “radicalised”? Are car thieves radicalised by their misadventures with the law? Radicalised? No. “Radicalised” has political connotations clearly indebted to you know, and it is tosh. Criminalised maybe; radicalised no.
Taken into custody and charged with robbery in company and highway robbery under arms – there could be a novel in that – as a result of his apprenticeship, Fricke writes that “during this period in custody Supt Nicolson tried to pressure Ned into informing on Power” (p. 81). In fact it didn’t take much pressure at all. Perhaps Fricke was unaware that Ned did give Power’s location away – see the Black Snake letter and Babington VPRO file – and his uncle took the police almost to Power’s hideout for a £500 reward. This dobbing in of Power by Ned really upset the Kelly nuts when the evidence emerged from the police files.
My next contribution will be an analysis of Fricke’s trivialisation of young Kelly’s assault of the McCormicks as “a fairly run of the mill domestic dispute and behaviour in poor juvenile taste” (p. 82). Unfortunately Fricke presents Ned’s side of the argument from the Jerilderie letter as though that proves anything. The report of the case in the O&M shows why Ned got a tough sentence. And it was no juvenile prank: it was initiated and encouraged by hawker Gould, and Ned was assisted in the encounter by one of his many disreputable kin. But maybe David has presented enough detail on this incident and we can move on to his receiving the mare stolen by Wild Wright….
Kelly gaoled for receiving stolen horse, 1871
In 1871 poor little Ned was convicted of receiving a stolen horse and sentenced to three years hard labour. As Fricke stated, the prosecution had to prove for a conviction that the accused had received stolen goods and knew or believed that the good were stolen (p. 83).
Kelly was arrested on 22 April by Const. Hall who had seen him riding the mare on several occasions (VPRS937/P0, unit 413). At Wangaratta Police Court on 29 April 1871, Hall testified that when he asked Kelly who the horse belonged to, he replied, to himself. Hall had reason to believe the horse was stolen but did not know who it belonged to, and Kelly refused to say where he got it. The Mansfield postmaster testified that the mare was his property and he reported it missing about 10 April. James Murdoch labourer testified that he had spoken to Kelly about horse stealing and the mare he was riding, and Kelly said he had got it on the cheap on the Plenty and intended to take it to Beechworth to sell with some other horses he intended to steal that would not be missed for some time (O&M, 29 April). From the foregoing there is no question that Kelly had received stolen goods and knew that the goods were stolen. Further, he intended to profit from the sale of the stolen horse. It was not a youthful borrowing.
Kelly was subsequently tried in the General Sessions at Beechworth on 2 August 1871, charged with horse stealing and receiving. The first charge was disproved as he was not yet released from gaol for the McCormack outrages; but he was convicted of receiving after a repeat of the above testimony (O&M, 3 August). Fricke argued that “the critical element [in receiving] related to the state of mind of the accused, but the prohibitions against an accused giving evidence made it impossible for Kelly to make an effective response to the charge by providing his own account of the issue (p. 83). This is a furphy; Kelly was sunk by Murdock’s, Hall’s, and other’s evidence.
Fricke then asks us to “imagine the forensic situation if Kelly’s circumstances were replicated today. Ned, as an indigent young man, would be an obvious candidate for legal aid. His counsel would make great play of the amendment of the charges. He or she would suggest, with some justification, that the police were persecuting Kelly. … Counsel would then cross-examine the police about Kelly’s contemporaneous explanation for the possession of the horse. If that cross-examination went well, counsel would no doubt submit that Kelly had no case to answer” (p. 84).
All of this is wrong-headed. As above, the charges weren’t amended on the fly by the police: Kelly was charged in court with two offences and the first was disproved. The second charge was proved by several witnesses’ testimony, and Kelly was duly convicted. The question of legal aid and counsel raised here is ridiculous. Kelly HAD counsel – he was represented by solicitors Norton at Wangaratta Police Court and Brown at Beechworth (see the O&M reports). Fricke’s implication that Kelly was undefended possibly arose from reading Jones, who failed to mention that Kelly had legal representation in his polarised presentation of the matter in Short Life (2008) 81-85. The facts are that Kelly was guilty as charged and proved. The only question is whether three years’ hard was a representative or typical sentence for receiving a stolen horse in those days. I have seen no commentary to suggest it was exceptional.
I mentioned this incident in my review but its good to hear it again in more detail. One thing you missed which is important though is that Kelly was convicted of “FELONIOUSLY receiving” – I emphasise FELONIOUS because most commentators miss that, and in so doing miss the fact that FELONIOUSLY receiving is a level of criminality higher than mere ‘receiving’. It takes into account the intent not just to acquire property someone else has stolen but the intention to profit further from the theft by passing it on. That would be why he got three years rather than something less I would imagine.
Youre right I think that Fricke took Jones as his source for almost everything and didnt think to look anywhere else most of the time when it came to the Kelly story.
Hi David, you are right, I didn’t state clearly in para 2 that Kelly’s intention to sell the horse put him in the frame for feloniously receiving. He was sentenced for feloniously receiving a horse, O&M, ‘Sentences’, 5 August 1871 p.3.
The question is whether 3 years with hard labour was untypically harsh for his day.
In 1871 Thomas Clarke knowingly pawned property stolen by his partner. In the Bourke General Sessions, the jury returned a verdict of ” Feloniously receiving the stolen property,” and the prisoner, who had been previously convicted, was sentenced to imprisonment with hard labour for three years, Argus 4 April, https://trove.nla.gov.au/newspaper/article/5845508
In 1873 John Oliver was charged with cattle stealing; a second count charged him with receiving. On 3 February the jury at the Beechworth General Session returned a verdict of “Guilty of felonious receiving,” and he was remanded for sentence, O&M 5 February, https://trove.nla.gov.au/newspaper/article/197050231/21466440 On 4 February Oliver, having nothing to urge in extenuation, was sentenced to three years imprisonment to be accompanied with hard labour, O&M 6 February, https://trove.nla.gov.au/newspaper/article/197047346
Note that this directly parallels Kelly’s two charges of stealing and receiving. Here too stealing was disproved but receiving was proved. There was no “amendment” of charges by the police such as Fricke claimed to see in respect of Kelly (p. 84).
The above cases indicate that Kelly got a representative sentence of the day for feloniously receiving and was not treated in any way exceptionally by the court.
The Victorian Law Reports of 1886 are also relevant here: Per Curiam—We find no legal authority for saying that if there be evidence that the property has been stolen, and it does not necessarily point to accused as the thief, he cannot be convicted of receiving. Where the evidence is at large on the point, but sufficient to warrant the assumption that some one had stolen the property, the jury are justified in finding the accused received the property knowing it to have been stolen. —Reg. v. Corridas , 12 V.L.R., 195.
A similar view can be found in Gleeson CJ in Watkins (unreported, Court of Criminal Appeal NSW, 5 April 1995) in which His Honour said: “In my belief the common direction that is presently given on the issue of guilty knowledge in cases of receiving is as follows: The Crown must prove and prove beyond reasonable doubt that at the time when an accused received the goods he knew that they were stolen or obtained in circumstances amounting to felony. … Indeed, it is not necessary that the accused knew when or by whom the property was stolen. In order to prove the required knowledge of the accused it is sufficient if you as judges of the facts think that the circumstances accompanying his receipt of the goods were such that they made the accused believe the goods were stolen goods. … If you think that the facts known to him would have put a reasonable man on inquiry, that would be a relevant factor when you are considering whether he did not know it. It must be kept in mind that the issue finally for you to determine and the Crown to prove beyond reasonable doubt is ‘What did the accused believe?’ not ‘What would the ordinary man have believed?’ That in my view is an appropriate direction.”
In summary, Kelly was bang to rights on this one, all done by the book and found guilty as charged by twelve good and true. Well done, all, justice was served.
Thats brilliant Stuart ! Thanks so much for getting all that together.
Its so interesting to see Kellys treatment was absolutely unexceptional when it came to sentencing. Kelly and his supporters then and ever since have claimed he was persecuted and mistreated but there it is in black and white, in the form of the sentences handed out to non-Kelly offenders : the even hand of justice.
In the same Beechworth General Session, Isaiah (Wild) Wright and Alexander Gunn were both also tried on charges of horse stealing and receiving; the O&M 3 August 1871 is explicit that Wright was “placed at the bar charged with horse stealing; there was a second count of feloniously receiving”. So again, no amendment of charges on the fly by the police as some have thought to see. In Gunn’s case he was found guilty of horse stealing and sentenced to three years with hard labour. In Wright’s case, “Mr Bowman [solicitor] having made a very able and effective speech to the jury, and the judge having read some of his notes and explained the law”, Wright was found “guilty of illegally using” the horse and, having “received a very good written character from a number of the principal residents”, got 18 months with hard labour. The reports are in Kelvyn Gill’s excellent compilation of handy documents,. “Edward (Ned) Kelly: The Historical Record 1920-1893”, which can be purchased from him online – just Google.
So where did this apparently quirky idea of police amending the charges come from? Surprise! Ian Jones has this to say in Short Life (2008) p. 85: “The original charge against him [Kelly] had been Horse Stealing but this was untenable: the Mansfield postmaster swore that his mare had disappeared on 16 March; the Beechworth gaol governor testified that Ned had been in his custody until 27 March. The charge was amended to Receiving”. Yep, another fail by the guru, maintained since his first 1995 edition of SL.
There was no ‘amendment’ of charges by the police. They put both charges (horse stealing and feloniously receiving) against all three men who had been variously involved in the unauthorised removal of sundry beasts, and the charges were tested in court.
Jones proceeds: “Although it was clear that Ned had not known the horse was stolen, he was found guilty and sentenced to three years hard labour. … Wild was … sentenced to only eighteen months hard labour – as McQuilton comments, ‘ a curious paradox’. Ned had been convicted of ‘receiving’ a horse that had not legally been stolen, never mind the discrepancy between Ned’s sentence and Wild’s”. As we have seen, the idea that Kelly didn’t know or suspect that the horse was stolen is pure fantasy.
What we see here is a failure of Jones to understand the law that he was writing so persuasively yet wrongly about. As per my comment of 15 August 5:17pm above, there is no confusion or paradox anywhere in this. Courtroom testimony from the postmaster was that he had “never authorised anyone to remove the mare”. What was proved is that it ended up in Kelly’s hands, who claimed to the police that the unauthorizedly taken horse was his, and it was proved by other testimony that he intended to sell it on. He had legal representation in court, and while the horse stealing charge was disproved, “feloniously receiving” was proved beyond a doubt.
How many have been taken in by this nonsense about the police amending the charges so they could unfairly pot Kelly? Doesn’t anyone writing about Kelly do any research outside of Jones’ selective history and references? Jones started out with a narrative then for over fifty years looked for evidence to support it. He took what he wanted and ignored or mangled anything that didn’t fit. This is not doing history. The more one looks into Jones’ seemingly rich narrative, the more holes one finds in it. The SBC expedition body straps myth of which Jones was the key exponent also gets a passing mention as fact by Fricke (p. 123) but this too is fantasy fiction as David on this blog with subsequent discussion, and also Leo Kennedy (in his “Black Snake” book), have shown.
Jones began his section on Kelly’s ‘feloniously receiving’ with another of his frequent digs at the police: after his release from gaol for violently assaulting McCormack, Kelly’s return to the Eleven Mile “was undoubtedly noticed by [Constable] Hall or drawn to his attention by one of his toadies” (p. 79). So Hall runs a pack of toadies… This of Hall at a time when he was loved by most of his district’s community: the O&M 29 May 1871 praised him as “the right man in the right place … he has shown himself to be stout of heart .. in the performance of his duty”. The Kelly persecution myth runs on endlessly against the facts.
A further comment on the body straps myth. In Fricke’s book, body straps are multiplying like rabbits. Not only do we have Kennedy’s party allegedly equipped with the infernal things, but see the whole para on p. 123:
“One party of police set out from Greta … while another left from Mansfield…. Both parties were dressed in plain clothes…. They had set up leather straps on their pack horses, to enable human bodies to be carried out of the bush”.
The only way this reads is that both parties of police had equipped themselves with body straps. The tale has expanded further in the telling. And no a shred of evidence in Jones or anywhere else to support this preposterous notion of his – in Short Life (2008) 444 he slyly references his other book – “straps to carry dead bodies, Friendship, Notes, p. 210”. But to a casual reader it sounds like there is evidence there.
But in Fatal Friendship we find the source given as the “Kinnear papers, transcribed by the author [Jones], 1952. “Two long straps 10 feet by 3 inches wide to strap bodies on the pack horse. These were made by Boles the Mansfield saddler and are now in 1934 in the possession of J. Egan farmers of Mansfield.”
So only one set of body straps was alleged by Jones, no two sets as Fricke appears to present it. This may seem a trivial quibble re numbers, but we are talking about a total fiction here. No copy of these papers has been found by any Kelly researchers despite much attention being focused on the issue. Anyone can search this blog in the search box to see some of the detailed discussion that has occurred. If there were any such straps they would most likely have been made for some farm or industrial application, not for a hastily thrown together search party which had no idea at its outset where the two Kelly brothers might be, and was on such a shoestring budget that its only long guns – a Spencer rifle and a shotgun – were both borrowed at the last minute, the one from a gold escort, the other from a Mansfield vicar.
Third, no one has been able to explain why the police would clutter themselves with specially made “body straps” when they could have used rope and a normal strap exactly as was used by the search party that retrieved Lonigan’s and Scanlan’s bodies after the murders. Jones provides no context for his claimed quote from the Kinnear papers. There is nothing to show any connection between that Kelly hunt and the claimed straps, and as we know, Jones often misquoted or modified his sources (as I showed in detail in my “Ned Kelly’s shooting of George Metcalf” article which was written solely to document Jones’s deliberate twisting and mangling of historical source documents). Again, despite intensive searches by Botb Kelly fans and critics, nothing has ever been found to corroborate Jones’s extraordinary body straps theory.
Macfarlane wrote (p. 139):
There was, then, no evidence that the police were planning to kill the Kellys if they found them. However, one modern writer claims to have found such evidence. According to Ian Jones, the police party allegedly had special leather body straps made up before going bush.62 The impression is created that these would have been used to bind the dead Kellys to horses and so extract them from the bush.
What undermines this argument is that when police parties from Mansfield later set out to recover their dead comrades, they used the simple expedient of buckling together stirrup leathers as body straps, and also using reins.63 The whole story of the specially made ‘body straps’ for Sergeant Kennedy’s party seems far-fetched when the petty economies they were labouring under are considered. Even their tent had been loaned by Mansfield resident Archibald McKenzie. Because the party was so badly under-equipped, they also had to borrow a shotgun from Mansfield Anglican vicar Rev. Samuel Sandiford.64 Constable Thomas Meehan lent his revolver to Thomas McIntyre.65 The Woods Point Gold Escort, through Senior Constable John Kelly, lent its Snider rifle.66
Thanks Ash, I had totally overlooked that McIntyre also had to borrow a revolver. Without those last minute borrowings the police party would have only had three revolvers between the four police. Totally unprepared for an encounter with armed men who it turned out did have long guns as well as revolvers with them.
I have been in touch with Kelvin Gill and sadly he has sold out his reference book. He is unlikely to reprint it.
Hi Sam, it’s good that he sold the stock in one way as the well bound hard copies would have been expensive to make – my thesis cost over $40 a copy for printing and similar binding over 20 years ago – so he could not have made a lot from selling it and presumably had to pay for printing up front. A great labour of love and a terrific effort. Maybe a pay up front short run would be possible but it may be more trouble than it’s worth for him.
Further to the body straps myth: Assuming Jones’ transcribed his 1952 note from the unlocatable Kinnear papers correctly, a likely explanation is that the leather straps reportedly seen in Egan’s barn in 1934 came with some bonus oral history told to Kinnear at the time, linking them to the Kelly story in the same way that farmers all over the northeast claimed that Kelly had helped build one of their barns or sheds, or that Joy and Prior (“Bushrangers” 1963) reported that when they visited Euroa in the early 1960s, numerous residents claimed to have had a grandmother who happened to have been in Younghusbands kitchen, or a grandfather who happened to be in the bank, the day the Kellys came to town and passed by them “as close as I am to you now”. Remember that Jones invented the Kelly republic myth from vaguely claimed oral history based on nothing more than a 1940s recycled tale from a 1900 Bulletin Magazine spoof story.
If there had been any suggestion of ‘body straps’ in the SBC expedition it would almost certainly have emerged in the relentless cross-examination of McIntyre at Beechworth, when Kelly’s solicitor aggressively proposed that the expedition had intended to kill the outlaws. Yet there was nothing from Kelly about any such objects found at the site, either then or in any other conversations with his solicitor; and nothing in the Royal Commission about body straps regardless of claims about the police having it in for the gang. Outside of the Kinnear mention from the 1950s there is nothing at all. Maybe Egan was pulling his leg, or maybe Egan too had been fed a hand me down story from up to 50 years prior. The lack of any contemporary mention from Kelly’s day ought to have rung Jones’ alarm bells – but like so much other now debunked oral history in his books, he treated and relayed it as fact and defended it as unique insights that his diligent enquiries had miraculously uncovered.