The trial of Ned Kelly took place in Melbourne over two days in late October 1880. Kelly was found guilty of the murder of Thomas Lonigan, and the presiding Judge, Redmond Barry sentenced him to death. In this post I am not going to describe the minutiae of the trial or dissect the legal mechanics of what happened but review the commentary promoted about it in the Kelly mythology.
Now, I’m guessing, but I would imagine very few convicted criminals walk out of the Court after a sentence has been handed down and not complain about the Police, the Judge and the Jury, their defence team and everyone else, and not proclaim their innocence and that they’ve been mistreated in some way or another. So, we shouldn’t be surprised that Ned Kelly and his supporters from that day to this make similar complaints – they say the Judge was biased, the witnesses lied, the defence team was weak and inexperienced and the whole trial was rushed and a joke. They routinely express the notion, which is now a regular part of the Kelly legend that if Kelly had received a fair trial he wouldn’t have been found guilty. They say his murder of Lonigan was an act of self-defence and some of them claim Kelly should be given a posthumous pardon. In making these claims they are following the lead of Ian Jones who wrote this of the trial in his acclaimed Kelly biography ‘A Short Life’, quoting a former Chief Justice of the Victorian High Court:
‘the conclusion is inescapable that Edward Kelly was not afforded a trial according to law’…
So was Jones correct in suggesting that Kellys trial really a serious miscarriage of justice? It might surprise Kelly supporters to learn that at least four brilliant legal minds have studied Kellys trial in detail and published on the subject : Professor Louis Waller spoke at the Kelly Symposium in 1967, John Phillips former Victorian Chief Justice wrote a book in 1987 called ‘The trial of Ned Kelly’, Alex Castles wrote a book in 2005 called ‘Ned Kellys Last Days’ and Graham Fricke, another senior Victorian Judge published “Neds Nemesis “ in 2007. A fifth legal expert who commented on Ned Kellys trial was Julian Burnside in an essay entitled “R v Kelly”.
Kelly supporters like Ian Jones would have you believe these authorities all concluded Ned Kellys conviction was shaky at best and a complete miscarriage of justice at worst. In fact, though all of them believed they found faults of various kinds with the trial, most significantly every single one of them concluded that if the problems identified with the trial could be corrected, there was every possibility that Kelly still would have been found guilty.
This is what Waller wrote: “It cannot be stated with dogmatic certainty that had the defence which has been outlined above been fairly put to the jury…. that Kelly would have been acquitted altogether or only convicted of manslaughter”
This is what Burnside wrote : “On one view, a fair trial would still have resulted in a conviction.”
And here is what Phillips wrote, the part of the quotation supplied by Jones that he deliberately left out : “Whether the result would have been any different had the Jury had been correctly directed is, of course, entirely another matter”.
And here’s something else that Phillips wrote. Its not from his book but from an article he wrote for the La Trobe Journal, No 73, Autumn 2004: “I have long been of the opinion that Barry misdirected the jury in Kelly’s trial by, in effect, taking away from them in his charge one of the central issues in the proceeding – whether the police party had gone forth to shoot him down or arrest him. 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 short what he is saying here is that the case against Kelly was so strong that a Court of Appeal might well conclude that notwithstanding possible misdirection, a guilty verdict was still the right one.
Therefore, in contrast to the impression given by the influential Ian Jones, the consensus of the legal minds who examined the trial is that even if perfectly managed, Kelly would likely have been convicted.
The second thing that Kelly devotees need to remember is that even if Kelly hadn’t been found guilty of Lonigan’s murder, he couldn’t possibly have escaped conviction for Kennedys: on no planet can chasing a fleeing man half a mile and then shooting him dead be counted as self-defence.
As an aside, no rational person should be persuaded by the preposterous notion promoted by an uninformed few that Kelly wasn’t murdering Kennedy when he shot him in the chest at point blank range but acting out of kindness and putting him out of his misery. The argument goes that this is something soldiers do for their best mates when they have received fatal injuries in wartime. The serious problem with this argument is that it was Kelly himself who inflicted those fatal injuries to start with – and if Kelly is to be believed –Kennedy was already doomed. The last shot into his chest made sure he didn’t survive to tell the tale – chasing Kennedy half a mile through the bush as he fled makes it abundantly clear that outcome was Kellys intention all along. It was murder, without question.
So, at one level all this discussion about Kellys trial for the murder of Lonigan, and what may have happened if it was faultless, is a moot point: if he had been acquitted of it Kelly would soon enough have been convicted of Kennedys murder, and hanged for that one instead.
The argument most often advanced in support of the suggestion Kelly should have been acquitted of Lonigan’s murder is that the killing was an act of self-defence, an argument which for various reasons wasn’t actually made by Kellys defence. But Ned Kelly had claimed in the Jerilderie letter that Lonigan arose from behind a ‘battery of logs’ aiming and about to shoot at him while he was out in the open and so he was forced to defend himself by shooting back. In conjunction with this argument its often also claimed that McIntyre, the policeman who witnessed the death of Lonigan, committed perjury at the trial giving a false version of events in order to undermine Kellys version, and thereby deny him the defence that would have saved him.
The claim that McIntyre committed perjury is itself a lie, another of the persistent myths promoted by Ian Jones, and it’s very easily dismissed because Jones based his allegation on something Supt Sadleir wrote in his memoir thirty-three years after the fact! The idea that McIntyre could be fairly accused of perjury on the basis of Sadleir’s recall 33 years later is preposterous. All of the actual recorded statements McIntyre made at the time were perfectly consistent: Lonigan was shot within seconds of the Gangs order to “Bail up” and well before he had time to draw his weapon let alone get behind a battery of logs and prepare to shoot.
Remarkable as it may seem, very recently its finally become possible to conclusively prove that regarding Lonigans death McIntyre did indeed tell the truth, Sadleir’s recollection was faulty and Kellys version of events were lies. This is because only in the last three years has the puzzle of Lonigan’s autopsy findings been solved, the puzzle being the discrepancy between McIntyre’s report that Lonigan was shot once, and Dr Samuel Reynolds autopsy report that described four wounds – the head wound that killed him plus a graze to the right temple, a wound through the left arm and a bullet lodged in his left thigh. Because McIntyre only ever saw Lonigan being shot once, and he died almost immediately, this led to all manner of bizarre theories about who had fired into Lonigans corpse after McIntyre had gone, and why.
The key piece of information needed to solve this puzzle comes from Kellys trial: Dr Reynolds was questioned by Henry Bindon, Kellys barrister, and on the basis of his awareness that wounds look very different if inflicted before or after circulation had ceased, told him he ‘did not think the other wounds were inflicted after death’ an expert opinion that can only mean one thing: all the wounds were inflicted before death and, as only a single shot was fired, all were inflicted at the same time. This in turn can only mean Lonigan was struck by multiple projectiles fired in one volley from Kellys gun, and the only way those projectiles could have inflicted the pattern of the injuries Reynolds described is if Lonigan was out in the open. There is simply no other rational way to fit all these pieces of the puzzle together and what they conclusively prove is that Kellys claim to have fired in self-defence was a lie – no bullet could have entered Lonigan’s left thigh from the side if he had been sheltered behind a battery of logs as Kelly claimed. It also proves Sadleir’s recollection was wrong – for the same reason – and that McIntyre did not commit perjury.
What all that means is that the self-defence argument can no longer be advanced as the key to Kellys acquittal in a properly conducted trial. If advanced by his defence, Kellys lies would be immediately exposed by Reynolds findings and his defence would collapse.In the end, the Jury made the right decision : Ned Kelly had murdered Lonigan.
Another false claim thats still made about Kellys trial, even though that claim was debunked by Professor Waller 50 years ago, is that the trial, lasting only two days, was rushed so that Redmond Barry could get to the Melbourne Cup. As recently as 2017 this debunked claim was recycled yet again, this time by the supposed Kelly expert Brad Webb in his execrable paperback of sycophantic misinformation,’The Iron Outlaw’. In fact murder trials back then could be as short as half an hour – so Kellys trial, by the standards of the day was well inside the normal length.
Lastly, a comment about the interaction between Kelly and Redmond Barry the trial judge, after Kelly had been found guilty, a conversation Kelly mythmakers point to as something akin to magnificent oratory. In fact anyone not wearing Kelly-coloured spectacles would not be impressed by Ned Kellys impudent dialog with the judge. Everyone knows he said “The day will come when we shall all have to go to a bigger court than this” and “I will see you there where I go” but who remembers this from the man who a few months before had planned massacre on a grand scale at Glenrowan: “I am not a murderer, but if there is innocent life at stake then I must take some action. If I see innocent life taken I should certainly shoot if I were forced to do so but I should first want to know whether this could be prevented…” and “no man abhors murder more than I do .”
Kellys words to Barry were little more than an unhinged rant full of lies and delusional imaginings about himself. He also claimed that if given the chance he would have been able to persuade the jury that he was innocent. Again one has to ask “Oh really? Exactly how Mr Kelly?” In prison, Kelly subsequently wrote several letters that were equally delusional. Instead of being hanged, this dangerously delusional psychopath should have been put away for a very very long time, where his unhinged behaviour and disorganised delusional thinking would have been on display for years and made myth making about him impossible.