One of the first things anyone with an enquiring mind will quickly discover when trying to find out what really happened in the Kelly Outbreak, is that every important event in the story has been deeply infiltrated with myths, misunderstandings and misinformation. They will also discover that even though most of the misinformation included in the story has been well and truly exposed and debunked in recent years, so-called ‘Kelly sympathisers’ continue to enthusiastically and uncritically believe promote and defend almost all of it.
This observation certainly applies to Ned Kellys trial, the 143rd anniversary of which is today, October 28th.
It’s an event that’s been confused and misrepresented by all kinds of false claims and conspiracy theories, and I daresay if they mention it this trial anniversary weekend on the Kelly admirers FB pages, the usual suspects will once again be promoting the standard litany of myths and lies about it, just as they do about every other aspect of the story. They all pretend that they haven’t seen or heard the scholarship that has overtaken them, but I am here to keep reminding them, and everyone else what the true story of the trial is.
There are at least four favourite myths that Kelly defenders keep repeating about the trial: one simple one is that Kellys trial only lasted two days because the Judge wanted to finish it quickly so he wouldn’t miss the Melbourne Cup. In fact, in those days it wasn’t unheard of for a murder trial to take only a few hours, and some were less than one, so two days was longer than most.
A second favourite myth related to the first one, is really a collection of myths about the character and the standing of the Judge, Sir Redmond Barry a man Kelly sympathisers routinely disparage and mock out of complete and utter ignorance of how great a man he truly was. One often repeated myth about him is that he was biased against the Kellys from very early on, as evidenced by a claim he said that if Ned Kelly had been at Mrs Kellys trial for attacking Fitzpatrick, Barry would have put Kelly away for 15 years. In fact, nobody has ever been able to prove Barry ever said that, but in any case, even if he did it would have been entirely appropriate, as the fugitive Ned Kelly was a named suspect in the crime, and given the conviction of his mother and three others, he would likely have also been convicted. As for Barry, Kelly sympathisers won’t bother to inform themselves about him as facts only get in the way of the myths and prejudices they don’t want to give up, but here’s a LINK to his biography for anyone who would like to be enlightened: Biography of Sir Redmond Barry
Another much more important and pervasive myth, yet another whose aim is also character assassination, is that Cst Thomas McIntyre committed perjury at the trial, giving a false version of how Cst Thomas Lonigan was killed that was fabricated in such a way as to make it impossible for Kellys team to plead self-defence. This claim was made and promoted by Ian Jones, and is wrong. The truth is that every single written and recorded statement made by McIntyre said the same thing about Lonigan’s killing – that it happened within seconds of the order to bail up, well before Lonigan would have had time to draw his revolver let alone fire it, or get to hide behind a ‘battery of logs’ as Kelly claimed. What Jones did in this unforgiveable libel of McIntyre’s integrity and character, was to find and promote over all of McIntyre’s own testimony, an account written by Sadleir when Sadleir was nearly 80, in which he recorded what he thought he could remember of what McIntyre had told him decades earlier about Lonigans death. It was in fact very similar to Kellys version, namely that Lonigan got behind a ‘battery’ of logs and when he lifted his head up above them and aimed his revolver at Kelly, in self-defence Kelly shot first and killed him. We now know that the forensic evidence confirms that version to be a lie, but Jones persuaded himself and just about everyone else in the Kelly world that in a trial, a 30-year-old second-hand recollection would have had greater evidentiary weight than several contemporary signed statements of McIntyres. To the very end of his life Jones cultivated the libellous false belief that Kellys conviction was based on McIntyre committing perjury. He didnt.
The greatest trial myth of all is the claim that it was a mistrial and if it had been conducted properly, and Kelly had been able to claim the murder was an act of self-defence then he would have been acquitted. Most Kelly sympathisers wouldn’t have read John Phillips 1987 book ‘The Trial of Ned Kelly’ but many might be familiar with one sentence from it, the sentence picked out and used by Ian Jones in his promotion of the claim that the trial was a mistrial:
“Accordingly, the conclusion is inescapable that Edward Kelly was not afforded a trial according to Law”
Phillips reached that conclusion because there had been vague rumours that the police were not intending to arrest Ned Kelly but to shoot him on sight. In that situation, Kelly would have been entitled to defend himself because the police would have been acting illegally. In fact, this is exactly what Kelly claimed in the Jerilderie letter, that he shot Lonigan because Lonigan was about to shoot him. According to the myth, that’s also why McIntyre was supposed to have committed perjury, and why the Jerilderie letter was not admitted into the evidence: to deny Kelly the self-defence argument. Phillips points out that in his summing up, Berry made no mention of this possibility, writing (p94): “Sir Redmond should have told the jury that it was for them to decide whether the police were acting as ministers of justice or summary executioners and then reviewed for the jurors the evidence relevant to the issue. Instead the matter was put to the jury in terms that were conclusive in favour of the Prosecution”
There are several important problems with these criticisms of Barry: firstly, Kelly could have made an unsworn statement but chose NOT to. Secondly, Kelly was NOT denied the opportunity to claim self-defence: his team decided NOT to make that defence – instead they attempted to discredit McIntyre. As for the Jerilderie letter – it wasnt admitted because Kellys OWN TEAM refused to allow it. And more importantly, the opinion of Phillips that Ian Jones promoted is not a view thats universally shared among legal minds : Jeremy Stoljar, barrister and QC, author of ‘The Australian Book of Great trials’ believes Phillips analysis is wrong and that Barry was NOT under any obligation to introduce into the trial defences and arguments that Kellys own defence hadn’t introduced themselves. As another legal expert said at the ‘Ned and the Law’ Seminar at Greta in February 2020 “If the self-defence ball is never thrown onto the playing field how can the Umpire make a ruling on it?” (Alice Richardson : A Brush with the Law )
QC and human rights advocate Julian Burnsides view is that Ned Kelly didn’t get a fair trial because his own Counsel failed him : Henry Bindon was very inexperienced, he didn’t have time to properly prepare himself for the trial and among other errors made during the Trial he didn’t raise the issue of self-defence. But whose fault was it that Kelly didn’t get the barrister they wanted, the very experienced and well regarded Hickman Molesworth? ANSWER: The Kellys. Molesworth’s fee was 50 guineas but it would seem in his hour of dire need, Kellys friends and sympathisers weren’t willing to back their support with cash. But would Molesworth made the difference? Burnside concluded that “On one view, a fair trial would still have resulted in a conviction.”
This qualification, that even if the trial had been fair the Outcome may well have been the same is shared by EVERY legal commentator on Kellys trial : even Phillips, in the very next sentence after the one quoted by Jones wrote this “Whether the result would have been any different had the Jury had been correctly directed is, of course, entirely another matter”. Its yet another example of the way Ian Jones misquoted experts to mislead.
Elsewhere, Phillips later wrote “It is possible that were the trial to be reviewed by a modern Court of Appeal, it would, because of the strength of the prosecution case, apply the Proviso in S.568(i) of the Crimes Act on the basis that it considered that no substantial miscarriage of justice had occurred.”
In fact proof has recently come to light that makes it almost certain that no miscarriage of justice occurred, because the mystery of how Lonigan came to have multiple wounds on his body has been solved, and it proves Kellys self defence argument would have been based on the lie that Lonigan was aiming to shoot Kelly from behind a ‘battery of logs’. Samuel Reynolds autopsy findings proved that all four wounds on Lonigans body were inflicted at the same moment, by a single shot of multiple projectiles, one of which entered his left thigh, a part of his body that would have been protected behind the ‘battery of logs’ if Kellys claim was true. The thigh wound proves Kelly lied and McIntyre told the truth about what happened : Lonigan was out in the open when shot and didnt have enough time to even draw his weapon let alone get behind logs and aim it.
At a properly conducted trial Samuel Reynolds evidence would have supported McIntyres and undermined Kellys. and disproved the self-defence plea. Kelly would have been found guilty no matter who represented him.