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 .”
Oh really?
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.
Ah well…..
The trial of Ned Kelly has been examined on several occasions. Trials are subjective matters and even today trial judges are criticized for their decisions and comments in misdirecting juries. That is par for the course in our judicial system. It is not faultless now, and it wasn’t faultless in 1880.
Having prosecuted criminal matters at one time in my life, I understood the decision by the Crown to only charge Ned Kelly with the murder of Lonigan. Kelly was also charged with the murder of Scanlan, but that matter was not proceeded with. He was never charged with the murder of Sgt. Kennedy and for good reason. The murder of Lonigan by Ned Kelly was by far the easiest to prove with a reliable eye witness to give evidence, that stood up to cross-examination and was devastating to Kelly. It was the Crown’s best chance of obtaining a conviction, ‘beyond reasonable doubt’. The murder charge for Scanlan was held in reserve in case the Crown lost the Lonigan matter. As we all know that prosecution was successful so the Scanlan matter was not proceeded with. The Scanlan matter may have been successful, but with the melee and the eye witness moving to escape the defence could have cut McIntyre’s evidence to pieces. The Crown did not consider that a charge of murder relating to Sgt. Kennedy would have succeeded. There was only one eye witness left alive and that was the defendant. There was some circumstantial evidence, and an autopsy report, but neither of those would prove the charge of murder ‘beyond reasonable doubt.’ If Kelly said, “I didn’t do it”, the Crown could not prove otherwise. Had the Lonigan and Scanlan murder charged failed, the Crown could still proceed with the attempted murder charge relating to Fitzpatrick and also horse-stealing matters.
Henry Bindon has been somewhat vilified for his handling of the defence. Having read some of the questions he asked McIntyre at the trial, it is clear to me that those questions were right to the point and could have damaged the prosecution witness. McIntyre, however, stood firm and was believed by the jury of 12 men.
As I understand the legal system at that time, Ned Kelly could not give sworn evidence himself, but he could have made an unsworn statement. Bindon refused to let Kelly do that, and he also did not wish to present the Jerilderie letter into evidence. It was ruled inadmissible in any case and rightly so. Had it been admitted the Crown would have torn it to shreds for the lies that proliferated throughout and done immeasurable damage to Kelly’s defence. Kelly’s unsworn statement could not be challenged directly by cross-examination of Kelly. Bindon was no fool and his conduct of the case was in my considered view more than satisfactory.
It was clear that at the end of the trial the jury of 12 were more than satisfied that Kelly was guilty. It took only 30 minutes for the jury to reach that verdict and that time would have been reduced had two of the jury members not held matters up by expressing concern about Kelly being hanged. In the end, justice was done and Ned Kelly was hanged for the murder of Constable Lonigan.
I totally agree with your point that no trial is ever perfect, and Kellys was no different, but as you say, in the end justice was done. In writing this piece I was pleased to realise how confident we can be that the claim McIntyre committed perjury is false.
In regard to Kennedys murder can you answer some questions Ive had for a long time about the possibility of Kelly being charged with that? For a start, am I correct to believe that many people have been convicted of murders in the absence of an eye-witness? If that is the case then how is such a person convicted – I would have thought a confession would be a big part of it. And also, isnt it true that if a group of people participate in a murder they are all guilty even if only one of them pulled the final trigger? It would be interesting to get some legal opinions on all this.
Maybe some of this is addressed in Morrissey’s new book?
The laws of evidence are complex and each circumstance will require a different judicial interpretation. Yes, there has been convictions as the result of confessions. However, it often depends on how the confession was obtained. Evidentiary provisions are complex and will be different in each and every circumstance. There are very complex laws around voluntary confessions. Generally if there is a confession, it is often followed by a guilty plea, where the defence will request a lesser sentence because of the confession. If a confession is withdrawn, as they often are, it will depend on how the confession was obtained, and it would be difficult to get a conviction unless there was corroborating evidence of a substantial nature to support the circumstances.
A recent case of note was Cardinal George Pell, where he was convicted on the uncorroborated evidence of a witness who was a juvenile at the time and the alleged offence occurred many years ago. The matter went to the Supreme Court of Victoria and the conviction was upheld, but at the High Court the conviction was overturned, for the lack of supporting evidence, which was non-existent. It is well held that convicting on uncorroborated evidence with no other supporting evidence, is not acceptable to provide a fair trial to an accused. Why the Supreme Court of Victoria did this is a mystery, as that rule of common law has been paramount for decades. The High Court was correct in my view.
Where you have a group of people involved in a murder the circumstances can again be complex, and it will depend on the state of mind of the accused in most instances. If for example they all agree to murder someone and only one person commits the murder while the others are present, all would properly be convicted of murder. If on the other hand where part of the group are not aware or expecting a murder to take place, it will depend on their frame of mind at the time, and their behaviour as a result. Very complex again and difficult to prove. In the latter circumstance where members of the group assist the felon after the murder, a charge of accessory after the fact would certainly be the least charge they would face. Your question is very difficult to answer as this area of law is very complex and each circumstance will lead to a different conclusion.
In relation to the Ned Kelly matter at Stringybark Creek if Ned Kelly intended to murder and did not discuss this with the other members of the gang, a charge of murder against the other three would probably not be an option that would succeed in relation to Lonigan. However, as they were all firing at Scanlan and Kennedy, murderous intent was obvious and a charge of murder should succeed against all four.
It is very difficult to give answers with certainty, as each circumstance needs to be taken individually, and as advised the laws are complex in relation to mens rea. (criminal intent)
Recent advances in technology, e.g. DNA has solved numerous crimes that would have remained unsolved in years gone by. It has been a game changer for law enforcement, especially in capital murder charges.
Hi David and Sam, there are two really key points (among many) being made here as I see it.
First, Sam notes that “as they were all firing at Scanlan and Kennedy, murderous intent was obvious and a charge of murder should succeed against all four.” This seems to logically explain why Barry was correct to admit the evidence of what happened soon after the murder of Lonigan – it does indeed demonstrate a collective intent to murder. I don’t recall that being pointed out so clearly in anything I have read so far (maybe it was but without re-reading it doesn’t ring a bell).
Second, David’s point on the medical evidence of Lonigan’s wounds having occurred before death together with McIntyre’s evidence that only one shot (hence a split bullet) was fired at Lonigan, and the fact that one of the pieces of lead hit him in the thigh, demolishes the claim that he had got behind some logs and raised himself to fire over them, at the same time demolishes Kelly’s self-defense claim. Lonigan never got his revolver out of its buckle-down case and was killed in cold blood.
I do not think it would be any defence for Kelly to say he killed Lonigan out of fear that he might have got his revolver out such that he would be in a position to fire at Kelly – that would be the fair fight that Kelly claimed he had but never did. Coward’s castle for Kelly for sure.
The third point (from the lead article) is Jones’ strange claim that Sadleir’s 30 year later account was a verbatim copy of McIntyre’s first report. We know this is nonsense because McIntyre’s first report surfaced in the prosecution brief. It was because of that report that McIntyre noted in his memoir (A True Narrative, p. 31) that Bindon did not pursue any previously alleged discrepancy between McIntyre’s reports. (The full report is typed into McIntyre’s narrative from the Victoria Police Museum website pp. 30-31, and McIntyre’s narrative has been reproduced in full with a truckload of useful annotations in Doug Morrissey’s new book, “Ned Kelly: The Stringybark Creek Police Murders”).
By claiming that the Sadleir recollection was a verbatim copy of McIntyre’s first report DESPITE Jones’ familiarity with the prosecution brief, in order to then accuse McIntyre of perjury, Jones committed the ultimate act of historical bastardy. He wasn’t stupid. He must have known full well that the claim was utterly false. He made that false claim in 1967 at the Wangaratta Kelly seminar, printed up in 1968 in Man & Myth. Even if he had been genuinely mistaken or confused about McIntyre’s statement in the prosecution brief back then, he cannot have remained ignorant of McIntyre’s statement in his 1900 memoir; or remained ignorant of his own gross error long before writing up his Kelly fiction in his Short Life book. Why did he never recant the falsehood? Pride? Chutzpah? Arrogance? Ego? Something else?
As a result a number of legal experts have been led up the garden path. They might be clever legal eagles but they are historical amateurs, rooted in secondary sources (centrally Jones) with much of their research done under his sway, as their acknowledgements show. Funny how many of the top end of the legal profession amuse themselves by putting down Redmond Barry and playing at defending Kelly, Australia’s most notorious murderer. Real rebels, aren’t they. Chardonnay at the club, chaps? And maybe get the history right (or not).
Another thing David: does not the fact of the split bullet itself provide evidence that murder was intended?
Thanks Stuart. So youve got Morrissey’s latest, obviously, and I hope you will produce a review for us. I’m reading it now so will also have some commentary.
You’ve picked on the thing that I think is perhaps the MOST significant piece of evidence in all this , the implication of Reynolds autopsy report, something that has been overlooked by everybody till now, which is that his findings destroy Kellys argument, they destroy Jones argument that McIntyre lied and they prove that Kellys conviction for murder was entirely correct. The more we look at Jones body of work the more we learn that it was a con.
Its amazing that a few scientific facts and a careful description by Reynolds can be so devastating to a whole collection of myths and lies about what happened.
Yes, key parts of Jones’s narrative are once again shown to be built on the deliberate omission of facts that contradict it. By regarding him as an authority many people take what he says as fact and fail to look further that the selective presentation of facts that he offered.
BTW when I said “split bullet” I meant not a military style quartered bullet but some amateur stuffing of bits of lead together to form a bullet. We have discussed this before but others might not have seen that. Maybe bits made in a smaller bullet mold? Someone will know about this stuff.
Stuart..
Maybe a discrepancy, maybe not. If the doctor who removed the lead projectile from Lonigan’s thigh described it as looking like a revolver bullet, then we would expect it to be either round or roughly conical, which is not what you would see if it was a larger projectile or lead bar that had been cut up with a knife of chisel. A plausible explanation is that such projectiles were typically cast from pure soft lead, and tended to deform severely on hitting bone. Therefore the doctor (if he is familiar with how such bullets behave) is merely noting that the chunk of lead is about that size.
Cutting up soft lead with a knife and mallet is not difficult and would be a likely thing for a man with a shotgun and no “buckshot” with which to load for use on man-sized targets. The irregular projectiles would also explain why the shot pattern would have spread at least 3 feet in diameter, as required to cover Lonigan from the head to mid-thigh… something that would not be expected at the relatively short ranges I understand were involved, using consistent shot.
I think we can reject the idea that more than one shot was fired, but so close together that it sounded like just the one. Being black-powder firearms, they produced large quantities of smoke so if more than one person had fired, it would have been immediately apparent to the witness.
David, I don’t think you are suggesting Dr Reynolds was some sort of Sir Bernard Spilsbury character. He was a country doctor who occasionally did rudimentary autopsies. I’m certainly not saying your single bullet theory is wrong, but some of your evidence is a bit lite. Lonigan’s body which you say contains bullet fragments must be dug up for modern forensic analysis. The revolver bullet from Lonigan’s thigh is long gone, but a proper modern investigation may prove you absolutely right. As you say, this is fundamental stuff.
Rebecca
Exhuming Lonigan would be an exciting thing to do from a historians post of view but I think deeply disrespectful to his memory and possibly NOT tell us everything we would like to know.
Nobody seems willing to oppose my theory – and I think thats because it really DOES make sense of so many pieces of the puzzle, and in a way thats logical and evidence based. In regard to Reynolds expertise I dont think he needed to be a forensic genius to differentiate between bullet wounds acquired while alive and when dead because, as he says the difference is about whether or not circulation has ceased. The obvious difference is that a living person will bleed, and maybe quite a lot, whereas a corpse doesnt bleed at all, there’s just a hole and adjacent trauma. Didnt Fitzpatrick faint from loss of blood from his small wound?
The alternative theories posed about Lonigans injuries in the past were much LESS credible – and NONE matches the forensic evidence because they all involve post mortem wounding.
I rest my case!!
I have no doubts that Ned Kelly shot and murdered Lonigan, as he had previously stated that if he were to ever kill a man it would be Lonigan, (due to a previous altercation between them). The hanging verdict was justified. Many argue that because the Kelly gang believed the police were out to kill them and not take them alive that they were justified in the shootings, and that a verdict of manslaughter should have been handed down, but there is no justification. The Kelly gang could have left the area as soon as they had spotted the police party and history would be very different now.
Sir Francis Hare wrote in his book “The Last of the Bushrangers” published in 1891, that he had never met a more murderous evil man than Dan Kelly and in this same book wrote of how much he admired Ned Kelly. I find this particularly interesting that a high ranking Police Officer partly responsible for the capture of Ned Kelly would state this? From all accounts Dan Kelly was potentially a psychopath. I don’t think Ned Kelly was a psychopath. Ned Kelly’s motivations, (however right or wrong), were born out of love and loyalty to his family. That doesn’t fit with psychopathy? Don’t get me wrong, he made very poor choices and bad decisions.
But I do wonder if Ned Kelly shot Scanlon and Kennedy??? I think it is more likely the MO of Dan Kelly and Joe Byrne. Unfortunately we will never really know the truth.
Hi Trudy thanks for joining in. You raise a lot of questions and make some great observations, not the least of which is ‘he made very poor decisions and bad choices’ – the entire saga is tragic all round, four young mens lives ended in horrible ways, police and innocent bystanders dead, all kinds of grief and bereavement and trauma affecting multiple families, and all of it the result of those poor choices and bad decisions.
My view is that the police were never planning to kill them on sight but to arrest them, which is what they had always done before. There is no record as far as I know of Victorian police having any kind of policy like that, and comments made by any individual policeman in anger or bravado are irrelevant – but those reports may have been fabricated for all we know.
In regard to Ned Kellys personality, the fact Hare was impressed by him doesnt rule out the man being a psychopath – they can be very charming and persuasive – but he clearly had some sort of personality or major character flaws to plan to avenge his mothers imprisonment by mass murder at Glenrowan! As for being motivated by love and loyalty to his family – I dont see it. Remember how he bragged about living the life of a rambling gambler – when it was reported his mother and sisters were living in poverty and squalor? No improvements were made on the selection but that would have been his responsibility. None of the huge sums of money he stole ever went towards obtaining Mrs Kelly an appeal. And when asked to name an example of the persecution he claimed he was rebelling against he didnt mention his mother but himself.
Ive not thought much about Dan Kellys personality but he seemed very aggressive at Stringybark, and was only restrained by Ned Kelly.
Thank you for your reply David, We have to remember there are always two sides to every story, it really just depends on your point of view. We also have to remember the time period. Ned Kelly wasn’t the only individual of the time to make poor choices and bad decisions. Had the actions of Constable Fitzpatrick, who was drunk and disobeying direct orders, not visited the Kelly home on that fateful night, the following events wouldn’t have happened. You can argue this? We also have to remember that he was dishonorably charged from the police force shortly after this incident. I take a very impartial point of view. I understand where your coming from. My research over the years has shown me that both sides were responsible for the pain and suffering of numerous individuals, many of which suffered for years after. The whole history is tragic.
Trudy have you read Redeeming Fitzpatrick? This impressively comprehensive document addresses every detail of the Fitzpatrick issue and will give you very good reason to reconsider the idea that Fitzpatrick was drunk and that he disobeyed orders that day. In short, he wasn’t and he didn’t!
I must take you to task regarding Fitzpatrick. Fitzpatrick was a police officer just doing his duty. He was not drunk as you claim. He did stop at the Winton Hotel and had one drink of brandy and lemonade, that was confirmed by the hotel manager. There was no order that at least two police officers had to go to the Kelly’s on police matters, that is a myth that is widespread and completely wrong. I believe it was Supt Nicolson who was questioned regarding this at the RC, and he stated on oath that no such instruction has been issued by him.
The reality was that Constable Fitzpatrick was standing up quietly alongside Dan Kelly waiting for him to finish a meal when Ned Kelly burst in and fired 3 shots at Fitzpatrick, the second hitting him in the wrist. At the same time Ellen Kelly hit the officer over the head with a fire shovel. She was gaoled for 3 years for that indiscretion, which was a severe sentence.
The officer did not make any approach to Kate Kelly at all. Kate made up that nonsense some 10 months after the event to discredit the police officer.
William Williamson, who was present at the time and who was holding a pistol on the officer was interviewed in gaol by the Chief Commission of Police. Williamson confirmed that what Fitzpatrick stated was correct. To view the evidence read here. Q3. http://nedkelly.info/Royal-Commission.pdf
After Ned Kelly was captured he confessed to shooting Fitzpatrick.
Also under oath, during Ned Kelly’s trial in Melbourne, Senior Constable Kelly described a conversation he had with Ned Kelly immediately after he had been captured at Glenrowan:
“Between 3 and 6 the same morning had another conversation with prisoner in the presence of Constable Ryan. Gave him some milk-and-water. Asked him if Fitzpatrick’s statement was correct.” Prisoner said, “Yes, I shot him.”
A journalist also asked Kelly about the alleged Kate Kelly incident.
“Reporter: Now Kelly, what is the real history of Fitzpatrick’s business? Did he ever try to take liberties with your sister Kate?” “Kelly: No that is a foolish story. If he or any other policeman tried to take liberties with my sister, Victoria would not hold him” (The Age, August 9th 1880)
Constable Fitzpatrick was dismissed from Victoria Police almost certainly under concocted circumstances. He was not permitted a hearing at all.
As David advises. Please read the research by Dr. Stuart Dawson on this poor fellow. It is quite long but well worth the read. http://nedkelly.info/fitzpatrick.pdf
Thanks David.
Redeeming Fitzpatrick is a very interesting publication. I do come back to Fitzpatrick being dishonorably discharged from the police force? This decision was made by his superiors. It does call into question his character? I think the truth of the incident is somewhere in the middle! We can surmise, but we will never really know for sure. You are very passionate in your convictions, which I commend.
Thanks Trudy. I hope you will keep reading the Blog and contributing your thoughts.
It would be interesting to have a discussion about the idea of there being two sides to every story. In fact there are many sides to every story, but there is only one set of facts. So with Fitzpatrick for example he was either drunk or he was not drunk. He was either fairly dismissed from the police or he was not fairly dismissed from the police.
What I am interested in finding out are the facts, as near as it’s possible to know them about things that happened in the past. But that is how all historical knowledge is developed, by firstly understanding the facts and then fitting them together in the most rational and logical way.
That is why Redeeming Fitzpatrick is so enlightening. It reviews the ‘facts’ and reveals so many claims about him were not facts at all – they were lies. And once the facts are known a different story altogether emerges.
Hi Trudy, I think there are three points to consider here.
First, Fitzpatrick was not dishonourably discharged, but was discharged for insubordination to his senior officer at Lancefield. There is a world of difference. The belief in his being dishonourably discharged is Kelly myth based on the frequent lie that he was discharged for drunkenness and perjury, as seen in Corfield’s Kelly Encyclopaedia, written under Jones’s wing.
Second, Fitzpatrick’s being discharged in 1880 and any subsequent life events after that have nothing to do with his actions in April 1878 in the Fitzpatrick incident, his positive performance appraisal in June 1878 (not mentioned by Jones & co), his coherent and consistent evidence about the incident in the trial of Mrs Kelly and others in October 1878 (with the fact that Mrs Kelly admitted striking him), and the corroboration and vindication of his reconstructed testimony in Redeeming Fitzpatrick, a basic historical task that Jones and co never bothered to attempt due to closed minds.
Third, Fitzpatrick’s character was good enough for two petitions to be got up by well over 100 ordinary respectable residents of Lancefield and surrounds asking for his reinstatement in the force – petitions not mentioned by Jones & co in their blinkered and biased narratives that don’t even list the existence of the petitions. For most Kelly writers that is understandable as their work is amateurish poorly researched partisan drivel. But for the so-called experts to selectively omit any mention or reference to highly relevant evidence that they knew full well existed – as they have mentioned other material from the same small files – is just pathetic.
David is right. There is only one set of facts, and the more clearly we can see them the better we can reconstruct historical events. It is made much harder when what we are told are expert narratives turn out to be deliberately selective presentations of the “facts” such that the narrative is largely nonsense.
Take away Jones’s wildly inaccurate presentation of the Fitzpatrick incident and the entire fiction of the republic myth, and there is not much left but wrong headed admiration for a criminal clan that preyed on their fellow colonials for nearly a decade until brought to heel. Probably Kieza’s Mrs Kelly book is the most readable narrative of the clan’s endless criminal activities.
Wang is going ahead with the Glenrowan development in 2021. God help us!
Horrie and Alf
I bet they don’t know about my Republic Myth book, my Metcalf shot in the face by Ned Kelly before the siege article, or my How long was the Last Stand piece proving that the “gunfight” was less that 10 minutes. I will have to send them over so the people on charge don’t make embarrassing major historical errors.
The tourists are going to love the VR re-enactment of Ned Kelly fiddling with Piazzis revolver and seeing the unfortunate hostage Metcalf getting shot in the face!
And another one they’ll love is when all the women were pleading with the swaggering bully, Ned Kelly not to shoot the bullied and frightened crying teenager, Jack Delaney .
……oh wait, let me guess : they wont be showing anything that tells it like it was, a ghastly horror show – they’ll just be recycling disproven unhistorical garbage about Ned Kelly being a hero. What a disgraceful waste of half a million the local ratepayers money!
Hi David, you could send them the Delaney info – I’d love to see that in the VR app. Ned Kelly railed at the boy for almost half an hour didn’t he? Watching Ned torment a teenager over that timeline would bring the sort of real historical accuracy the project ought to relish…
Well thats a good idea – to inform the producers of this material actual historical truths about the siege – but to whom do we send our suggestions?
Hi David, it’s a matter of seeing who or which section in Wangaratta Council is in charge of the Glenrowan development, maybe after the Christmas shutdown. Someone might have a definite answer. The Glenrowan tourist people seem to have made no great effort to ensure historical accuracy over the last decade. Some of the shops play bush style music with “brave Ned Kelly and the bad police” type lyrics, just ridiculous unthinking nonsense that’s really bad Kelly myth. The general tone is bogan low-brow, get your Kelly clothes and stickers and curse the police. The signage is full of Jones’s misinformation and historical errors that have been increasingly exposed since 2012 but no-one in the Glenrowan tourist groups have made any visible effort to update any of their long outdated visitor information. The place is an intellectual time warp stuck in the 1990s.
Stuart, it’s all about tourism, so don’t you get it? Many police have died in the line of duty and are soon generally forgotten about and are certainly not a tourist attraction. I have it from good authority that those couple of people hounding various Kelly related businesses and on government sites and programs, are looked upon as fringe nutters. I kid you not! Try all you might, but you will never get the alternative view pushed by you few, taken seriously, as there is too much at stake. You and the other couple need to settle down and accept that many people make a living out of the Kelly story, just like the anti Kelly people are trying to make names for themselves, with what many see as biased hatred. The terms your little cluster use to describe Kelly enthusiasts and those who don’t bow to your collective mantra, are utterly deplorable and have set the scene where people ignore you all. So the unflattering terms used to describe you few, by those you lot are pestering and demanding they change everything to your point of view, are definitely warranted. Talk about shooting yourself in the foot.
What on EARTH are you talking about, Anonymous12.00pm? SBC is entirely about police who have died in the line of duty and it certainly IS a very popular tourist destination!
But what youre really suggesting is that Local business doesnt care about the truth or not of the Kelly story being pushed, as long as it makes tourists spend money. You remind one of Noeleen Lloyds KTG Group who claim that farmers up at SBC labelled a random tree the Kelly Tree to trick visitors into thinking they were at the real “Kelly Tree” in order to stop them walking on their properties. And now youre suggesting the Glenrowan business community will be happy to continue this tradition of deceiving tourists to the area to get what they want out of them!
Well, I wouldn’t be so sure if I was you. I wonder if the North East would want its reputation to be about ripping off Tourists? In any case there is absolutely no need to – theres as much thats fascinating and intriguing about the True story of the Kelly Outbreak as there is about the fake one youre wanting to keep promoting. All thats needed is for someone with a little imagination to step out of the delusional Kelly mythology bubble and see the riches that are just waiting to be told.And the benefit of telling the true story is you wont any longer have to compromise your integrity by tricking tourists and interested visitors with garbage history. Frankly, if I was about to spend half a million of the local Ratepayers money on a tourist attraction I would want it spent on accurate history telling not the perpetuation of myths lies and fantasies about a psychopath in armour.
The thing is that there is at least as much potential tourist value in highlighting Ned Kelly as Austalia’s most notorious and evil outlaw as there is in the false narratives of Kelly myth. Bad Ned Kelly, the baddest of the bad, the maddest of the mad, spawn of a criminal clan, Greta mob larrikin, the psychopathic gang leader who plundered his neighbours since he was old enough to steal a horse (i.e. still a young boy), teenage highway robber, lag (turned in Harry Power, no honour among thieves), graduated to wholesale stock theft with the Baumgarten horse stealing ring. shot and wounded one policeman then ambush murdered three more, robbed two banks to pay for shelter in the bush, felt the law closing in and develops a plan to derail a police train and massacre any survivors… The worst of the worst whose story has never been accurately told. The film Stringybark has come closest to telling that episode truthfully. There are no multiple narratives, there are only the facts and to the extent they can be known, the motivations. The motivations on one side were building a self-reliant colonial society in a new world. The motivations on the other were greed and criminal self interest. Fairy land attempts at justification came later and are no part of the narrative of the day. Dark tourism is the way to go with the Kelly story. Everything suggests that ditching cutsie Ned and unambiguously condemning him and his gang is the key to honest cultural tourist success. Bad Ned Kelly. Australia’s most notorious outlaw (as Peter Fitzsimmons put it).
David and Stuart, I see you did not address what those you are trying to influence think of your delusional claims and arrogant assumption that you should be taken seriously. Everyone has an opinion and that of you two and Brad are all reading from the same script, but they are only opinions, backed up by carefully selected and invented propaganda to back your claims. Please Stuart, no more boasting about how good you are or all the pieces you have written, as I’ve seen it far too many times already. Self-praise is no recommendation as my dear old mum used to say. Keep trying though, as you three are a great source of amusement to many. If only we had a time machine to take all three of you back to Ned’s time, so you could all tell him face to face what you all really think of him. Now that would be something I would pay to see.
So now at last your true colours are showing – you’re one of those pathetic fools who follow Ned Kellys lead and think violence is a solution! As we all know, Ned Kelly was a violent thug who would react violently to being called out, and thats what you would pay to see! How disgusting. Your anonymity doesn’t disguise the fact you’re desperate, youre a sicko who is turned on by violence and your claims about who and what people are thinking about telling the true story instead of the bullshit you’ve swallowed are made up.
So, as you’re not capable of contributing anything worthwhile to this debate, and on this performance and others in the past you clearly have nothing to contribute in the future either, dont bother even trying. From mow on anything submitted by you wont see the light of day. Youre a worthless bully, not too different from many other Kelly devotees. Get out.
Funny how the latest Anonymous is happy to slag people off online but is too shall we say – modest? – to put a name to their comments. Your 28 Dec 9:15 comment is a good example of mind reading. You think you know what I and others think, but you don’t, so you make it up. You say “Everyone has an opinion … but they are only opinions, backed up by carefully selected and invented propaganda to back your claims.” That exactly describes most of Jones’s “Short Life” narrative technique, as I demonstrated in my refereed academic article, “Ned Kelly’s shoting of George Metcalf, labourer”.
For those unfamiliar with refereed publication, it means that an article is reviewed before acceptance for academic publication to ensure it meets the expected academic standards of its discilpine in terms of research depth, scope and relevance, and contains referenced evidence for its argument. While it may express its author’s opinions, it is not an opinion piece. An opinion piece is where someone makes claims without evidence – e.g. from alleged oral history. Opinions like that are in the style of “my grandmother said that her mother said,” with no evidence from the day such as letters and journals to corroborate it. So “Diary of a Welsh Swagman” is something that might be used as historical evidence, whereas the Kelly republic tales eagerly written down by Jones and Molony from one of the Lloyd descendants (ex-policeman Tom Lloyd) and later retracted by him to both Doug Morrissey and to Leo Kennedy’s dad in Leo’s presence, are not. Tom told those stories to make fools of the Kelly researchers; as he told both of them. But the Kelly researchers and their legion of simple followers don’t want to acknowledge that a central part of their Kelly myth was built on a leg-pull, and so we have ridiculous non-history presented as fact. The result is “a tale told by an idiot … signifying nothing”, as Macbeth might have it.
Maybe if you had writen anything worth reading you would see the point of actively promoting it, so that others might hear of it and read it. Maybe you have written something, but since you hide behind anonymity we’ll never know. It sounds like your dear old mum was like my dear old mum – don’t boast, don’t be proud, hide your light under a bushel. Such terrible psychological damage that old negative approach inflicted on a generation. Fortunately I overcame it after some 40 years. You need to do the same. Life is infinitely better if you can.
As for me, David, and whoever Brad is, “singing from the same script”, what script would that be? Have you read Grantlee Kieza’s “Mrs Kelly”, that gives a lengthy reatment of the Kelly clan’s criminality? Have you realised that Ian Jones got his story of teenage Ned learning stonemasonry at Williamstown (while gaoled in a Hulk) sufficient to later build a stone house totally wrong? Have you realised that McIntyre’s August 1880 testimony totally demolishes Jones’s nonsense claim that McIntyre changed his testimony about the encounter at Stringybark Creek? Or have’t you read that yet?
When you say, “I see you did not address what those you are trying to influence think of your delusional claims”, I have no idea what they think as unlike yourself I am not a mind reader. Where is something those people have written? Where is there any published critique of any of my claims? I’ve been waiting for 5 years now for any critique of my Fitzpatrick article, 4 years for any critique of my Kelly’s Last Words article, 3 years for any critique of my Metcalf article, 2 and a half years for any critique of my Republic myth debunking book, and nearly 2 years for any critique of my demonstration that the Last Stand was not quite 10 minutes. It looks like I’ve won all those arguments, all demolishing old, wrong points of view. What have you done?
Why not all band together and form an anti Ned demonstration up in the NE as it will do as much good as the ranting and raving in this blog.
Get Horrie and Alf to start the movement they always have something to say
Hi Anonymous, the majority of people who post here are not anti-Ned. They like me are interested in the Kelly story or they wouldn’t waste time here when there are so many other interesting areas of history that have nothing to do with bushrangers. One of the most interesting things about the Kelly story is how wrong so many people have got it. There are tons of facts and evidence that flatly contradict the dominant narrative. The fun is sorting out fact from popular fiction. I suppose that is demonstrating in a way, just what midwits some of the Kelly enthusiasts are.
What an ignorant twit Anonymous is. Attacking professional historians whose only crime, in his eyes, is to reveal the truth about one of this countries most prolific criminals. For that they are attacked mercilessly and quite often with venomous fervour.
I have often wondered at the mentality of Kelly fans, who, almost to a man, ignore the facts of Ned Kelly being a vicious murderer, stand-over thug, bank robber, who took hostages at gunpoint and threatened those poor souls with death if they did not obey his orders immediately. His Greta Mob had a free run in that rural area, and after stealing the only horse poor settlers had, would stand over them and threaten more damage if they dared to report the matter to the local police. Ned Kelly and his crew were a scourge on society and upon their demise NE Victorian residents at last could breathe a sigh of relief that the main perpetrators of these criminal actions were finally brought to heel.
How anyone with half a brain could even suggest that the professional historians who have made a substantial contribution to this nation by exposing the numerous myths, falsehoods, and downright lies regarding Ned Kelly are delusional and writing falsehoods, shows just how far people like ‘Anonymous’ will go to discredit good, decent, honest men and to keep the myths, falsehoods and lies of a serious criminal from being exposed.
I see people like ‘Anonymous’ as a disgrace to this nation, leading our children into false beliefs that a murderous criminal thug could somehow be considered a hero.
People like Anonymous are un-Australian, and deserve to be exposed for what they are.
Ian Jones and Peter FitzSimons may not have been academically qualified but are undoubtedly “professional historians” of the Kelly saga. Some of Sam’s pronouncements are often a bit odd.
Aussie Pickers
To suggest that Ian Jones and Peter FitzSimons are ‘professional historians’ is a misnomer if ever there was one. Jones did have an intricate knowledge, but so often conveniently twisted the truth, hid facts and denied truths, all aimed at lauding a very serious criminal, and degrading police.
FitzSimons was a protégé of Jones, and followed Jones myths almost to the letter.
“Anonymous” did you ever see in any of their books the report from the RC of Jacob Wilson, who was driven off his land by Kelly’s thugs? How often in their books do they attack police for giving perjured evidence without a scrap of evidence to support those lies. Professional historians be damned.
No. Jones and Fitzsimons are popular historians of the Kelly saga, but not professional historians of the Kelly saga. Jones was a professional TV series scriptwriter and producer and self described amateur historian. Fitzsimons is a professional journalist with an interest in Australian history who has done well from employing a research team to do the spadework on various topics including Kelly, writing them up and marketing them well. Both have well polished storytelling skills, which make their books engaging and at first reading persuasive.
BUT both purveyed the unhistorical Kelly republic myth; Jones despite being long mocked for it by professional historians, as McQuilton noted in his “Kelly Outbreak” where he notes that it relies totally on oral history (since debunked), and Fitzsimons despite doubts underscored by McFarlane’s “Kelly Gang Unmasked”, which Jones would not have a bar of.
Jones’s republic myth was first debunked in the 1967 Wangaratta seminar, in the Q&A that followed his talk published in Man & Myth 1968. He clung to it ever since, managing to persuade a number of influential people in non-historical fields (particularly in law) that he was onto something based on his highly selective choice and presentation of evidence. As I have shown, it is well told nonsense. Similarly both have either misread or not critically read Fitzpatrick’s Record of Conduct and Service, which shows that their louche Fitzpatrick stories don’t hold water.
The next step in the demolition of these false representations of Kelly as hero is realising that Jones and the legal eagles and others that he misinformed through his factually wrong 1968 and onwards claim that McIntyre changed his story about what happened at Stringybark Creek, based on the nonsense claim that Sadleir’s recollection of McIntyre’s account was McIntyre’s verbatim first statement. Jones wanted to believe it so badly, but no: the first statement not locatable in time for the Beechworth committal hearing was located before the Melbourne trial and is in the prosecution brief, blowing Jones’s theory out of the water. You can’t possibly claim he was a professional historian of the Kelly saga. He was a passionate amateur enthusiast with a severe case of selective confirmation bias. KDS?
KDS – Kelly Derangement Syndrome lol
Having reread Sam’s comments early in this comments section, we retract our criticism and apologise. Sorry Sam!
Aussie Pickers
2020 is nearly over. It was 140 years ago last month that Ned Kelly was hanged at the Melbourne Gaol. Did anyone notice? I didn’t see anything I can remember in the newspapers or on TV. No sad sack memorial dinners in the north east with whining speeches from people claiming to be descendants of the childless Ned and his childless gang members. The last advertised Glenrowan dinner was canceled due to lack of interest. Maybe next year.
Somebody was speculating regarding Ned’s personality.
A chaplain to one of America’s maximum security jails once wrote that the tendency of criminals to excuse themselves and blame others was almost universal. The worse the thug, the more likely they were to blame their victim, the authorities, other parties….. in short, anything but their own choices. Sounds familiar.
There is another theme that also rings a bell. That is that of the children of immigrants, who do not acquire the skills and do the work to achieve economic success, but excuse themselves by blaming the country of their birth. To justify that, they adopt the identity of the country that their parents left, without ever having to suffer the disadvantages of actually living there. Arguably the Kelkys were just one more violent ethnic gang who’d come to the conclusion that the rules for ordinary people did not apply to them. Hence the outrage and being arrested and held accountable, and the pride in “getting away with” so much crime.
The irony is that Kelly wanted to blame a centuries-old conflict, while living in a country that had given him an opportunity to become a significant landholder and whose native-born inhabitants had gained a reputation for independence by the middle of the 1800s.
If you’ll pardon the mish-mash of a comment, I also find the republican and squatters.v. settlers theme to be less than convincing. Especially when promulgated by people who seem to base their reasoning on the belief that farming is so easy that any mug could do it successfully…. so if someone does not, it can only be as a result of some kind of oppression. It’s a belief that will be familiar to anyone who has studied 20th century history, and the results have been disastrous. Bolshevik Russia declared every succesful (because they were actually good at it) private farmer a class enemy and killed or sent them to the gulags. Six million Ukrainians starved to death as a result. Venezuala is playing a similar game right now, with similar results.
A more reasonable view of Australian history is that the young colonies started with a great deal of land, but a desperate need for people with the money needed to import livestock to build an industry and create exports and income. That is the reason why the very early squatters saw little official resistance. As the population grew and the colonies achieved greater levels of self-government – not to mention income from other sources, like gold – the land laws changed to reflect the desires of the voters.
It wasn’t “greed” that caused the early squatters to acquire large areas, but being early adopters, willing investors, being willing to do the work and take the risks. If it was easy, everyone would have done it.
Oh, and another thought on the Kellys.
Thomas Sowell – the American historian and economists – points out that much of what is classed as “redneck” culture, can be traced directly back to the lower-class Scots and Irish.
There was a strong strain of clannishness, resentment of others, pride and violence. Reading about the Kelly behaviour reminds me of it, and they come from the same background.
Sowell is worth the read.
A shame Ned couldn’t give evidence about his balls aching after being arrested in Benalla and then feeling better after murdering Lonigan.
Oh how rude!
But yes Kelly did say that the pain inflicted on him by Lonigan’s squirrel grip continued until the moment he killed Lonigan at SBC. I remember Peter FitzSimons saying this and someone having to eat their words after claiming Fitzsimmons made it up ( might have been Alex McDermott…?)
But what are we to make of this? If its true it had to be some bizarre psychological effect – but my suspicion is it was made up by Kelly for dramatic effect.