This is the book Ian Jones described as ‘poisonously inaccurate”, the one he planned to publically denounce at the Ned Kelly Weekend back in 2005 because he believed it is “marked by persistent vilification of Ned Kelly — unbalanced to the point of psychosis …” surely the kiss of death. As if that wasn’t enough there’s a dreadfully inaccurate cheap-shot review of the Book on IO by the “Neducator” whose conclusion was that the book only goes “a very short way in setting the record straight”.
Despite those discouragements, Mark Perry read it and recommends it, and I have to say I am glad he did, because I have now read it twice and found it equally absorbing both times. The second time I read it, I was looking for two things I seemed to have missed the first time. Firstly, I wanted to pinpoint the ‘poisonous inaccuracies’ and the vilifications of Ned Kelly ‘to the point of psychosis’, as claimed by Ian Jones. I’ll discuss these later.
Secondly I wanted to get a clearer idea of exactly what was the ‘legal loophole’ and the well hidden campaign that Alex Castles believed he had uncovered, showing that Ned Kelly may well have been hanged ‘illegally’. This latter claim is supposed to be at the core of the book. In fact there were many places in the book where Castles seemed quite breathless with excitement about dubious or arcane legal arguments and maneuvers that he believed he had uncovered, and he often hints at explanations that sound like conspiracy theory, but I never seemed to find the particular legal loophole, or develop a sense that there was a single big scandal at the centre of it all that resulted in Neds hanging being illegal. Castles intense interest in the Law, and his highly trained legal brain leads him to refuse to take anything at face value, and to examine each event from every possible legal perspective, and in so doing raises numerous possible places at which the Law could perhaps have been bent.
Take for example his account of the Inquest into the death of Joe Byrne. It took place at the exact same time that Joes body was brought out and strapped up to a door at the Police lockup, for a photo opportunity – indeed a ‘grisly diversion’, as this chapter is titled. Castles speculates as to why Wyatt, the local Police Magistrate left town that morning , hinting there was something inappropriate taking place to enable Standish to have his friend Robert McBean a JP preside over the Inquest instead of Wyatt whose job it would usually be . He believes that exhibiting Joes body at that time was a deliberate ploy by Standish to distract everyone’s attention from the Inquest – and he was successful. By the time the Press heard about it, it was all over, and Castle had to dig deep to sort out the precise details and timing of events that day. He suggests they wanted to avoid any scrutiny of the actions of the Police at Glenrowan, or of the exact mode of Joes death so as to minimize the possibility that reward money might not be paid. But Castles concedes, in truth everything that was done was ‘technically legal’, or in other words actually legal, but he says it came ‘perilously close’ to circumventing the Law. Given that nobody knows why Wyatt the police Magistrate became unavailable – and the explanation might have been innocent – then what happened may have been a perfectly legitimate and appropriate response, albeit less satisfactory than it may have been if the better experienced Magistrate had been available. But in the end I wonder how different things would otherwise have been – perhaps almost no different – the Court activity was virtually a formality, as there were no doubts about the identity of the deceased or the cause of death. Never-the-less Castles reviews it all in amazing and critical detail, and his somewhat ‘conspiratorial’ approach makes the discussion really interesting.
Castles microscopic examination of every detail of the events between Neds capture and his trial and execution, and of other events in the Outbreak such as the Stringybark Creek debacle provide a clear and unique analysis of the controversies that surround all of them.
But what of the ‘legal loophole at the core of the book’ and the possibility that Ned was hanged illegally? Ned and the other gang members had been declared Outlaws by a special act of the Victorian Parliament shortly after the Police murders at SBC. Being declared an Outlaw had the same legal status as a conviction, and the prescribed Sentence was Capital Punishment. It also meant that the Outlaw could not be held legally responsible for any further offences that the Outlaw may commit, because under the Act, his status had been reduced to that of a wild animal! However on the same weekend that Ned was captured at Glenrowan, the Victorian Parliament was prematurely brought to a close and a new election called for, and as a result, and because of the way it was designed, the Outlawry Act also lapsed, meaning the Gang were no longer Outlaws. This fact was realized soon enough, though not by everyone, but instead of immediate execution at capture Ned received a trial which would not have been his right as an Outlaw. However Castle contends the trial may still have been illegal because under the Law as it then was – and still is – no-body can be put on trial for an offence for which a conviction was already recorded. Neither could he be put on trial for offences commited during the period of Outlawry. So perhaps Ned should have been set free?
Castles hints that perhaps Authorities knew that technically what they were doing was illegal, but as he also points out, when the Act was drawn up it was not expected that the Outlaw would be captured alive, or that the Act would expire before the Outlaw. The Act made no provision for the circumstances they found themselves in with Ned. They were unanticipated. Once again there is the scent of a conspiracy theory in the back of Castles mind, but he doesn’t provide the smoking gun. Never-the less the detail and the background arguments are fascinating to work through.
I am afraid I was unable to spot the poisonous inaccuracy or the vilification of Ned to the point of psychosis that was claimed to warrant the books condemnation by Ian Jones in 2005. Its hard to see how Jones assessment could be true if we take at face value what Castles daughter claimed about her father:
“After seven years of working with Alex on this project, I can testify to the fact that he was neither ‘pro’ nor ‘anti-Ned’, much as I tried to get a commitment from him. He wanted to get past the myths and the hype, to return to the original sources and those events and characters that have been largely ignored by the popular histories, and let the evidence speak for itself.”
In that I would say he has been successful. In fact I thought Castles approach was almost perfectly balanced, his writing careful and precise, so I would be most interested to have examples of his vilification and poisonous inaccuracy pointed out to me by readers. I thought Ned was neither cravenly flattered nor utterly condemned by this book.
The one important thing the book lacks unfortunately are refernces. Sadly Alex Castles died shortly after the manuscript was completed but before he had compiled his references. His writing style suggests he took great care about accuracy and I have no reason to doubt the truth of the claims he makes in this book, but its always fascinating to search some of them out and read around the topics a little more.
The one important thing the book lacks unfortunately are refernces. Sadly Alex Castles died shortly after the manuscript was completed but before he had compiled his references. His writing style suggests he took great care about accuracy and I have no reason to doubt the truth of the claims he makes in this book, but its always fascinating to search some of them out and read around the topics a little more.
This is one of the small number of great books in the Kelly library. A must read.
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I disagree Dee. Castles' book was a bore. None of the claims about it were true. The poor bugger died before completing it, and it is vastly incomplete. Ian Jones's vilification of it was vile and misdirected. The MacFarlane book later shut Jones up forever.
According to his daughter, when he died Alex Castles book was "almost finished” – he had a draft of the Introduction and next on his list of things to do was his list of notes and sources, so I don’t think its accurate to say the book is ‘vastly incomplete’ . I can see why some might find it boring but personally I enjoyed reading about the minutiae. Could easily read it a third time! Had anyone else read it?
As you know Dee, I am a fan of Castles book. Liked your review. In fact, it was the book that set me on the permanent road to seeing Kelly as less than heroic. It led me to McFarlane and Morriseys thesis. Boring it is not. (sorry Guy.) I found some of the detail fascinating. Interesting to hear what Sharon and Brian (both of them) think. The lack of sources still frustrating though.
I understand if its not already written somewhere in the book that Scotch College in Melbourne have two large filing cabinets containing the records of the Kelly trial. How they ended up with them I do not recall exactly but think the collection was donated by one of the lawyers working at the trial. Alex Castles was a Legal professor entrusted to the contents.
In "Ned Kelly's Last Days" Castles said "I put to good use an original copy of the Crown brief held by the chief prosecutor at Ned's trial – one of the many treasures held in the Thomas Ramsay Collection at Melbourne's Scotch College Library."
I went to google and found that the prosecution brief had been withdrawn from public auction back in 1977 according to The Age of February 24, 1977 due to being stolen goods. (We can only wonder why they were not returned to the original archives and instead ended up at Scotch College.)
snippet from the article-
"Handwritten notes taken at Ned Kelly's trial in 1880 were withdrawn from public auction late yesterday. The documents were stolen from the Victorian Law Department archives more than 20 years ago. They were brought "in good faith" by a Melbourne businessman, Sir Thomas Ramsay, in 1958. Late yesterday, Sir Thomas withdrew the documents, which were an original prosecutor's brief from the case, after talks with officers from the Law Department…"
For more –
https://news.google.com/newspapers?nid=1300&dat=19770224&id=I_pUAAAAIBAJ&sjid=WZIDAAAAIBAJ&pg=6722,6271498&hl=en