The recent re-enactment of the trial of Ned Kelly revived my interest in that troubled case. Many fascinating books have been written about Kelly and his trial; Sidney Nolan’s famous series of paintings created the visual iconography which is now attached to the Kelly legend.

About the trial itself, a few things are clear: Kelly was inadequately represented; the only eye-witness was not adequately challenged; a viable case of self-defence was not properly developed. Kelly did not get a fair trial.

About the underlying facts there is more room for dispute. On one view, a fair trial would still have resulted in a conviction. On another view, the defence of self-defence might have been available (although it was not without its difficulties) if it could be shown that the police who went to arrest Kelly were in truth intent on killing him.

The following facts are clear: Kelly was an enthusiastic and prolific cattle stealer. His family had been victimized by a local policeman, Brook Smith, and probably by others. Kelly himself had had several experiences of rough justice with other policemen, including Lonigan and Strahan. A warrant for Kelly’s arrest had been issued and gazetted. For six months, Kelly had been evading the law. He had built a fortified hut deep in the Wombat Ranges in north-eastern Victoria. With Dan Kelly, Joe Byrne and Steve Hart he was panning for gold, growing corn for an illicit still and improving his marksmanship by constant target practice. He was a skilled bushman who had no real difficulty keeping out of the way of the police if he chose to.

In October 1878, a police party left Mansfield in search of Kelly. The party was led by Sergeant Kennedy. The other members were Constables Lonigan, Scanlon and McIntyre. On their first night, they set up camp at Stringybark Creek. They had no idea how close they were to Kelly’s hide-out. McIntyre had tried to shoot a parrot during the afternoon: a very careless thing to do if they were trying to take Kelly unawares. The party carried more weapons and more ammunition than prescribed by regulation. Their weapons included a Spencer repeating rifle: a very powerful and lethal weapon by the standards of the day. They were not in uniform. Their equipment included several long straps capable of slinging bodies on a packhorse.

Kelly came across their tracks, and recognised them as police tracks because of the distinctive markings on government-issue horseshoes. Together with Dan Kelly, Joe Byrne and Steve Hart he approached the camp and saw two men only: McIntyre and Lonigan. They came out of the speargrass and called on Lonigan and McIntyre to “ Bail up . Put up your hands”. McIntyre put his hands up. What Lonigan did is uncertain, but Kelly shot him dead.

The Kellys, Byrne and Hart ransacked the camp for weapons and waited for Kennedy and Scanlon to return. When they did, Kelly called on them to “Bail up”. Scanlon reached for his gun and was shot dead. Kennedy ran for cover and after an exchange of fire he also was shot dead. Amid the heat and confusion of the gunfight, McIntyre escaped. Over the next 48 hours he made five statements about what had happened. They differed in significant details. In the first of them (a short note scratched out as he hid in a wombat hole) he said that Scanlon had reached for his gun, and had been shot. In later accounts, he had Lonigan reaching for his gun and being shot. (His evidence at trial was silent about Lonigan reaching for his gun; in fact, it placed Lonigan behind McIntyre, so he would have been unable to see what Lonigan had done when called on to bail up).

For the next two years, Kelly evaded capture. He wrote (or rather dictated) several long letters in which he said he had shot the three policemen at Stringybark Creek, but asserted that the police were on a mission to kill him. He told several people that he had killed Lonigan, but that he did so only when Lonigan had drawn his revolver and tried to shoot Kelly.

When Kelly was captured at Glenrowan, he was charged with the murder of Constable Lonigan. The trial should have explored two issues: was Sergeant Kennedy’s party on a mission to kill Kelly, or simply to bring him to justice? And did Lonigan take aim at Kelly before Kelly shot him?

There is useful forensic evidence which provides a convincing answer to the second question. Dr Reynolds gave evidence that Lonigan had a graze to the temple, consistent with a bullet wound, but not necessarily one; a bullet wound through the left forearm; a bullet wound to the right eye; and a revolver bullet wound in the left thigh.

Kelly had a breech-loading single-shot rifle. He only had the chance to fire one shot. That shot, in my view, passed through the left forearm and into the right eye: Lonigan had his arm in a defensive position when he was shot.

The Kellys had no revolver. The thigh wound must have been caused by Lonigan’s own revolver. The revolver wound to the left thigh was odd: it “travelled under the skin and around to the inner side of the thigh”. It was odd in another way: the bullet had travelled less far than would be expected. The angle, and reduced penetration, are consistent with Lonigan having accidentally discharged his own revolver whilst it was still in its holster. Accordingly, it seems very unlikely that Lonigan had taken aim at Kelly, as Kelly had later asserted.

And what was the party’s purpose? The evidence is certainly suggestive: more ammunition than prescribed; more guns than prescribed; and the body straps. All these things might plausibly favour the Kelly theory that it was a killing party. However even the ‘body straps’, which add such a sinister cast to the other evidence, might have another explanation.

It seems to me that the answer may lie in the character of Sergeant Kennedy himself. He was in charge of the party. By all accounts he was a decent man in a police force not noted for the quality of its men. Kennedy was filled with foreboding when he set out and was not the sort of man who would take part in organised murder under colour of office. I strongly suspect that he armed the party as he did because he knew there would be trouble if ever they found Kelly; and he carried the body straps because he believed not all of his men would survive an encounter with Kelly.

However, there is another aspect of the matter which runs in Kelly’s favour. Why was he charged only with the murder of Lonigan? In a document dictated by Kelly, but written by Steve Hart, (the Jerilderie Letter) Kelly stated that he had shot all three policemen. But the Jerilderie Letter also contained many statements favourable to Kelly’s case that he was the target of a police vendetta. Although the Crown sought to tender the Jerilderie Letter at the trial, they pressed it faintly: the clear impression is that they were relieved when it was excluded.

The evidence of McIntyre was enough to prove that Kelly shot Lonigan, but only Kelly’s statements in the Jerilderie Letter would have proved that he had shot Scanlon and Kennedy. I suspect that Kelly was charged with the killing of Lonigan alone in order to avoid the need to rely on the Jerilderie Letter. If that theory is correct, it suggests that the minds who shaped the Crown case were very sensitive to the defence which Kelly might have run if given the opportunity.

The truth of the matter is beyond knowing. But whichever theory is right, Kelly’s counsel failed him, and as a direct result Kelly did not get a fair trial.

This essay was copied and re-formatted from Burnside\’s collection A Bit About Words.
Copyright © Julian Burnside