The following Post was originally submitted as a Comment by Dr Stuart Dawson to my review of Graham Frickes book “Neds Nemesis”. Instead Ive posted it here, with Stuarts permission, because I felt this identification and debunking of yet another Kelly myth warranted greater exposure.
Dawson discusses the claim promoted by Ian Jones thats become a standard complaint among Kelly advocates, that Redmond Barry moved Ned Kellys trial from Beechworth to Melbourne because it would be harder to convict him of murder in the north-east, and as every Kelly fan knows, Barry was out to get Kelly, by any means fair or foul.This was all part of the conspiracy theory that Kellys trial was rigged.
In fact, as Dawson reminds us it was Kelly sympathiser behaviour – specifically threats made against people like Thomas Curnow, Jack and Bill Sherritt, railway Guard Jesse Dowsett , and others – that caused the trial to be shifted to Melbourne, because in the north-east it was feared jurors would likely be intimidated during the trial and suffer reprisals after it in the event of Kellys conviction , and therefore a fair trial was unlikely.So rather ironically it was Kelly sympathiser behaviour that provided Barry with every good reason to do move the trial to Melbourne.If they had behaved, the trial would have taken place in Beechworth – but the outcome wouldn’t have been any different I am certain.
Fricke noted that the transfer of Kelly’s trial from the Beechworth Assize Court to Melbourne was perfectly legal under the Criminal Law and Practice Statute of 1864 (p.135). He previously noted that the transfer was made on the prosecution’s application that there was a likelihood of intimidation of Beechworth jurors before the trial and, if found guilty, for reprisals (129). As we learn from the Herald of 18/9/80, that meant the probability of “serious injuries to their persons families and properties”, based on demonstrated past behaviour of Kelly gang associates. Ian Jones himself acknowledged this reality in a half page list of examples “during those weeks and months, as the trial and execution of Ned Kelly approached” (Man & Myth 1968: 175). Max Brown (Australian Son, 1948: 239) also acknowledged that “as threats by the Kelly relatives kept coming in, the authorities decided to transfer the trial to Melbourne”; so too Brian Carroll, NK Bushranger (1976: 200, “fears of what his relatives and sympathisers might do resulted in a transfer of the trial to Melbourne”. That has not stopped a raft of Kelly enthusiasts looking for ulterior motives.
John Phillips (The Trial of Ned Kelly, p. 125) wrote, “it is not clear whether [the] application [to transfer] was opposed”. It was, by Gaunson, regardless that he did not produce a counter-affidavit (Herald, 22/8/80). Phillips followed Jones in seeing the transfer as resulting from “an apprehension by the prosecution that a jury drawn from the Beechworth region might be more sympathetic to Kelly” (20). This is nonsense, and stems – surprise! – from Jones (Short Life, 2008: 368) reversing what was actually said by the sources at the time to imply that that the transfer was done maliciously by Barry in order to ensure a conviction – specifically writing that to Barry, “Smyth’s argument – that a conviction would be difficult in Beechworth – not only justified the change but demanded it”. Some two generations of conspiracy theorists have gleefully danced down this path since it was first outlined in the 1967 Wangaratta Man & Myth seminar under the sway of Jones.
John Molony (I am Ned Kelly, 1980: 236) was in there early: “After all that fruitless pursuit of the [gang] in the northeast it was not unreasonable for the officers of the law to conclude that a jury picked from those who had for so long refused to betray Kelly might fall short of its desired objective” [hence the transfer], bundled in with the “millions of sympathisers” myth. Ann Galbally (Redmond Barry, 1995: 189) lent on that combination too when she wrote, “the Kelly Gang had a legendary status in rural areas. Which was why, after capture, the system was manipulated to ensure that the trial was transferred to Melbourne”. Alex Castles (NK’s Last Days, 2005: 177) also implied that Barry had it in for Kelly, presenting Barry’s consent to the transfer application as having a vindictive personal motive: “He said the situation ‘demanded’ the hearing go on in the Victorian capital where he himself would be presiding…”. This in turn was represented as favouring the case to be presented by the crown as “many were of the opinion that he would relish the opportunity to put the bushranger to death”. What Castles is proposing is that Barry would force a conviction against the evidence presented in court, an outrageous proposition totally at odds with anything said about Barry’s conduct of that (or any other) trial in his day.
Fricke put it similarly to Molony : to Barry’s mind, “The crown’s argument that a conviction would be difficult to achieve in Beechworth not merely justified a change of venue; it demanded it” (129). We see this again in Peter Fitzsimons’ Ned Kelly 2013: 633, “the authorities know they have a much better chance of getting a Melbourne jury to hang Ned than they do a jury from Kelly Country”, referencing the Age 13/8/80 p. 2 which said no such thing. Under much of this we find the bloody hand of Jones’s warping of the historical record and its interpretation at work. In fact, what the newspaper source Jones referenced actually said was, “Barry thought there was sufficient disclosed on the face of the affidavit of the Crown solicitor not only to justify him in changing the venue, but to demand that he did so” (Herald 22/9/80). That is quite different to the bungling misreadings or wilful misrepresentations made by several presented above; and in particular – because of his influence – that by Jones (Short Life, 2008: 368, quoted above), that the transfer was maliciously done to ensure conviction, rather than the documented reason that it was done to avoid juror intimidation. As it very clear from the two Herald articles of the day referenced above, the transfer was made to ensure a “fair and impartial hearing” by precluding the very predictable intimidation of Beechworth jurors by Kelly relatives and associates, as the more objective and rational historians have seen and accepted.