As soon as the authorities knew that Ned Kelly was going to live they started preparing the case against him. While they were planning for his committal hearing to be held in Beechworth, Ned's sister Maggie was trying her best to rally support for Ned's defense.
Ned's committal hearing on a charge of murder against Const Lonigan as a
result of the murders at Stringy Bark Creek was seen by many as a mere formality
It was hard. Glenrowan had been a bitter blow for many and there was a feeling that nothing was going to stop Ned's Kelly's conviction and execution. There was little money for a defense and nothing like legal aid to assist Ned. Even contact with him in the Melbourne Gaol was difficult. The family were prevented from visiting him for fear that they might give him something that would 'let him cheat the gallows'
Ned's sister Maggie led the forces to organize his defense. She and Tom Lloyd came down to Melbourne to see Mr David Gaunson. He was a lawyer and a member of the Legislative Assembly in the Victorian Parliament just a few days before Ned was taken from Melbourne Gaol up to Beechworth on 1/8/1880.
It had been planned that Ned's committal would be held in Melbourne but changed at that last moment. Gaunson and Maggie followed Ned up to Beechworth.
In an interview with Ned he complained to Gaunson that 'It seems to me unjust when I am on trial for my life to refuse those I put confidence in to come within cooee of me ... All I want to is a full, and fair trial, and a chance to make my side heard. Until now the police have had it all their own way. If I get a full and fair trial - I don't care how it goes - the public will see I am not the monster I have been made out. What I have done was under strong provocation'
Following Ned Kellys arrest at Glenrowan he was remanded in custody to appear
at the City Court in Melbourne on 5/7/1880 and because of his state of health
he was further remanded. (Herald4/7/80)
The case against Ned Kelly was presented by Mr Smyth and he was instructed by Mr Henry Field Gurner, the Crown Solicitor (The most important lawyer in the Victorian Government's public service). (Herald5/7/80)
On Saturday 31/7/1880 an impromptu court was held in the kitchen attached to the gaol hospital to remand Ned Kelly to be transferred to Beechworth for his commital. (Argus2/8/80)
Ned Kelly's counsel Mr Gaunson arrived in Beechworth the day before my committal on the last train and we had our first meeting at 12.30am on the morning of the hearing ()
Ned Kelly was taken from the Beechworth Gaol to the Court to attend his committal at 8am on the morning of 6/8/1880. He was kept in a cell next to the court house until his case was called. People came from all over the place to see the great man arrive. Ladies were given seats in the gallery to watch the proceedings. Others packed every corner of the public area of the court house. The police were also there in strength to make sure that went wrong.
Mr Foster was the magistrate
who had the job of hearing the matter. When Ned Kelly was led into the court
he nodded to Maggie,
his sister and to Tom Lloyd,
Dick Hart and his other
friends. Mr Smyth appeared
for the Crown. (Argus7/8/80) (Herald8/8/1880)
Com Standish sat next to the Magistrate, Mr Foster, during the committal hearing. (Argus7/8/80) (Kilmore12/8/1880)
Ned Kelly was charged by Const McIntyre, the survivor from Stringy Bark Creek,
with the "willful murder of Thomas Lonigan at Stringybark Creek in the
Northern Bailiwick of the Colony of Victoria on the 26th day of October 1878."
David Caunson, who appeared for Ned Kelly sort a short adjournment to prepare his defence. It was refused. (Argus7/8/80) (Herald7/8/80)
Const McIntyre was the first witness for the prosecution. At the start of the second day he was still giving his evidence. Gaunson cross examined him and asked if the thought Fitzpatrick was an upright and truthful man. McIntyre replied ; 'If he had possessed these qualities, I don't think he would have been dismissed. I know it was on the evidence of Fitzpatrick that Mrs Kelly, Skillion and Williamson were convicted'. There were a few other questions about McIntyre's actions at Stringy Bark Creek and Sgt Kennedy and the view that most police wanted Ned Kelly hung. (BWC) (Argus7/8/80) (Argus11/8/80)
The next witness was George
Stephens, the groom at Faithfull's
Creek Station. He told the court what Ned Kelly had said about murdering Const
Lonigan at the time of the Euroa robbery. (Argus10/8/80)
He was followed by Dr Reynolds from Mansfield who gave evidence on the inquests of Sgt Kennedy and Const Lonigan and Scanlon. (Argus9/8/80) (BWC)
Other witnesses including George Stephens (Argus10/8/80), James Gloster (Argus10/8/80) (Argus10/8/80), Frederick Becroft (Argus10/8/80), Robert Scott (Argus11/8/80), Robert McDougall (Argus11/8/80), Dudley (Argus11/8/80), Living (Argus11/8/80), and SConst Kelly,(Argus11/8/80), Mr Foster committed Ned Kelly on Monday to stand trial at the Beechworth General Sessions on 14 October. See (BWC) (Age9/8/1880)
After this evidence was given Ned Kelly was charged with an offence against Const Scanlon and the same witnesses gave the same evidence again. (Argus12/8/80)
At the end of the committal Gaunson complained about how the whole thing was conducted. (Argus12/8/80)
Ned Kelly told a reporter from the Age in Beechworth: 'I do not pretend that 1 have led a blameless life or that one fault justifies another; but the public, judging a case like mine, should remember that the darkest life may have a bright side, and after the worst has been said against a man, he may, if he is beard, tell a story in his own rough way that will lead them to soften the harshness of their thoughts against him and find as many excuses for him as he would plead for himself.'
Mr JJ Arundel, the court keeper, and Mr R M'Neice, the clerk of the court. The depositions were taken by the latter and by his assistant (Mr E Moore) in a very efficient manner.(Argus12/8/80
Because of alleged threats from the Kelly family and supporters Ned Kelly was taken to Melbourne and the case transferred to the Central Criminal Court in Russell Street, near the Melbourne Gaol.
The family had been denied access to Ned Kelly and had difficulty in preparing his defence. Maggie Skillion had had difficulty in raising the money to pay the lawyers to represent Ned.
On 14/9/1880 the Crown applied to Barry J for an order to transfer the trial of Edward Kelly from the Beechworth Circuit Court to the Central Criminal Court in Melbourne. The application was made under section 33 of the Judicature Act. See the reasons and affidavit in support. (Argus20/9/80)
Ned Kellys trail set for 15/10/80 (Argus14/10/80)
Next adjournment application (Argus19/10/80)
Ned Kelly's trial was to start before Mr Justice Barry.
On 15/10/1880 an application was made by Mr Molesworth to delay the trial to raise funds for Ned Kelly's defence. It was refused. (Age16/10/80) (Argus16/10/80) (Argus18/10/80)
Application for legal aid (kilmore21/10/1880)
Early in the morning Monday 18/10/1880 a large crowd gathered at the court to see all the people arrive. The jury and witnesses went in through the back way. Maggie Skillion was allowed into the court ahead of the public. Const McIntyre and SConst John Kelly were also allowed into the court with the other witnesses assembled in the court.
At 10am Mr Justice Barry entered the court with the Attorney-General of New South Wales, The Hon Wisdom and the High Sheriff of NSW, Mr Cowper who joined the judge on the bench. When all was ready the call went out to put the prisoner Ned Kelly in the dock.
Mr Bindon arose and announced that he, instructed by Mr Gaunson, appeared for the accused and Mr Smyth announced that he appeared for the Crown to prosecute the case. Then Bindon then asked for an adjournment to better prepare the case. He and Gaunson also wanted £50, the court offered £7 for both solicitor and counsel.
What was Mr Molesworth's role (Argus19/10/80)
Mr Smyth opened his case to the jury.
Det Ward to give evidence of the warrants taken out in April 1878 for the arrest of Edward (Ned) Kelly and his brother Dan on charges of horse stealing and the warrant for the arrest of Ned Kelly for wounding Const Alexander Fitzpatrick with intent to murder. (Argus29/10/80)
Const Day gave evidence of the
warrants issued after the Fitzpatrick incident. (Argus29/10/80)
Next came Const McIntyre, he gave evidence of the murder of Const Lonigan and the words used by Ned Kelly. (Argus29/10/80)
Henry Dudley and Robert McDougal gave evidence of conversations they had Ned Kelly. They came to Faithfull's Creek Station with Casement. Dudley told the court at the trial that Ned Kelly had said to him, 'In the yard he got hold of me by the collar of my coat and said, 'If you don't hold your tongue I'll blow your bloody brains out. Is it not bad enough to be a proscribed outlaw without having to take cheek from an old man like you' (Argus29/10/80)
McDougal said, 'Taking out a doulbed-cased gold watch, he said it belonged to poor Kennedy. 'Which would be best-for me to shoot him-or for the police to shoot me, and take my mangled corpse into Mansfield'
Robert Scott told the court about the events at Euroa. He said he was angury when Ned Kelly enter Mrs Scott's room without knocking. Scott then gave evidence of a conversation with Ned Kelly about the murders at Stringy Bark Creek (Argus30/10/80)
SConst John Kelly showed Ned Kelly's armour to the court. He gave evidence that Ned Kelly admitted to shooting Const Fitzpatrick when he was in the lock up at Benalla after the Glenrowan seige.(Argus30/10/80)
The Crown case ended just before lunch
Mr Bindon commenced the defence at 1.15pm. He called no witnesses. His case was that all the evidence about matters that did not relate to Lonigan's death should be excluded. Mr Justice Barry thought that evidence was relevant as it showed evidence of Ned kelly's response to the death of Const Lonigan. (Age30/10/80) (Argus30/10/80)
Mr Smyth addressed the jury for the prosecution.
When you find one man shooting down another in cold blood, you need not stop to inquire his motives; it was of malignant hated against the police. The prisoner had been leading a wild, lawless life and was at war with society. 1 have proved abundantly by witnesses who were scarcely cross-examined that the murder of Lonigan was committed in cold blood.
'So far as I was able to gather anything from the cross- examination, the line of the defence was that the prisoner considered himself justified in going about the country with an armed band to revenge himself on the police because he considered he and his family were injured in the Fitzpatrick case.
'Another point in the defence has been that because Sergeant Kennedy and his men did not surrender themselves to the prisoner's gang, the gang was therefore justified in what they called defending themselves.'
'How long will you allow this state of affairs to exist gentlemen? Such behaviour is not to he tolerated. I have almost to apologise to you for discussing the matter.
'Even admitting prisoner's defence that the charge of attempt to murder Fitzpatrick was a lie, which 1 do not for one moment consider, it is perfectly idle to say this would justify prisoner in subsequently killing Constable Lonigan.
'I think it is not an unfair inference to draw that McIntyre on that terrible day was kept alive till his superior officer arrived, only to be murdered afterwards, so that not a living soul would have been left to tell the sad tale of how these unfortunate men met their death at the hand of this band of assassins.
'The prisoner wants to pose before the country as a hero, but he is nothing more than a petty thief, as is shown by the fact that he rifled the pockets of the murdered men. The prisoner has shown himself a coward throughout his career . . .'
Mr Bindon addressed the jury.
'It was not my intention to refer to, or introduce, a number of matters which have nothing to do with the present trial for the shooting of Lonigan. Unfortunately, my intentions have been rendered futile by the Crown. The question still remains: How far is this material to be used by the jury in arriving at a verdict? According to all principles of fairness and justice, these matters should not have been brought forward. The only thing you are concerned with, gentlemen, is the shooting of Lonigan. With the shooting of Kennedy and the proceedings at Glenrowan you have nothing whatever to do at present, and 1 therefore request you to keep these things from your minds.
The police had appeared at Stringybark not in uniform but in plain clothes' 'An unfortunate fracas had occurred which resulted in the shooting of Lonigan. The evidence of McIntyre showed signs of deliberate and careful preparation, and was that of a witness who, under the peculiar circumstances at Stringybark Creek, could not be expected to distinguish what actually did take place. Of course, it was nonsense to say Lonigan was not shot; but the point was by whom was he shot? It is a most dangerous doctrine to rely on the evidence of one man, more especially when the charge was that one man had shot another deliberately and in cold blood. As for the confessions the prisoner had made at various times, they were uttered either for the purpose of intimidation or in order to screen others, and therefore were of no use whatever in corroboration of McIntyre's evidence.
'Only McIntyre and the prisoner can say anything of the affair,' 'The prisoner's mouth is shut; but if he could be sworn, then he would give a totally different version of the transaction . . . There is no ground for saying the police fell in with a gang of assassins. The whole career of the prisoner shows that he is not an assassin, a cold-blooded murderer, or a thief. On the contrary he has shown himself to have the greatest possible respect for human life. I ask: will the jury convict a man on the evidence of a single witness and that a prejudiced witness? If you have the smallest doubt, gentlemen, 1 trust you will give a verdict in this case different from that which the Crown expects.'
Mr Justice Barry summed up for the jury
He said that if two or three men made preparations with malice aforethought to murder a man, even if two out of the three did not take part, all were equally guilty. The fact that the police were in plain clothes had nothing to do with the case. No person had a right to stop or question them. The counsel for the defence had told the jury to receive the evidence of McIntyre with great caution; but I would go further than that and hope that the jury would receive and weigh all evidence with caution.
It was not necessary to have McIntyre's evidence corroborated. He asked the jury to note the behaviour of McIntyre in the witness box and say whether his conduct was that of a man who wanted to deceive.
The charge against the prisoner was the murder of Lonigan.
The object of admitting evidence subsequent to the shooting was to give the jury every opportunity to judge the conduct of the prisoner and his intentions on that particular day.
The jury must realise that the confessions made by the prisoner at various times were not made under compulsion, but when the prisoner was at liberty; and if he had made them in a spirit of vainglory or to screen his companions, then he had to accept full responsibility.
The prisoner's mouth was not closed. He could not give sworn evidence, but he could have made a statement, which, if consistent with his conduct for the past eighteen months, would have been entitled to consideration. But the prisoner had not done so.
'Whether prisoner shot Lonigan or not is an immaterial point. The prisoner was engaged in an illegal act. He pointed a gun at McIntyre's breast. That circumstance is enough to establish his guilt.
'The jury will, however, have to regard the evidence ag a whole and say accordingly whether murder has been committed. It cannot be manslaughter. Your verdict must be either guilty of murder or an acquittal.'
The jury retired to consider its verdict at 5. 10 p.m. 29/10/1880
Ned showed no sign.
The judge's associate asked Ned Kelly if he had anything to say why sentence should not be passed upon him. Ned's moment had come. He stood up and spoke in a quiet voice that could be heard throughout the court.
Ned Kelly addressed the Court
'Well, it is rather late for me to speak now. I thought of speaking this morning and all day, but there was little use. There is little use blaming anyone now. Nobody knows about my case except myself, and 1 wish 1 had insisted on being allowed to examine the witnesses myself. If 1 had examined them 1 am confident 1 could have thrown a different light on the case.
'It is not that I fear death; I fear it as little as to drink a cup of tea. On the evidence that has been given, no juryman could have given any other verdict; that is my opinion. But as I say, if I had examined the witnesses, I would have shown matters in a different light, because no man understands the case as I do myself.
'I do not blame anybody-neither Mr Bindon nor Mr Gaunson; but Mr Bindon knows nothing about my case. I lay blame on myself that I did not get up yesterday and examine the witnesses, but I thought that if I did so it would look like bravado and flashness.'
'For my own part I do not care one straw about my life, nor for the result of the trial; and I know very well from the stories I have been told, of how I am spoken of -that the public at large execrate my name. The newspapers cannot speak of me with that patient tolerance generally extended to men awaiting trial, and who are assumed, according to the boast of British justice, to be innocent until they are proved to be guilty. But I don't mind, for I am the last that curries public favour or dreads the public frown. Let the hand of the law strike me down if it will; but I ask that my story be heard and considered -not that I wish to avert any decree the law may deem necessary to vindicate justice, or win a word of pity from anyone. If my lips teach the public that men are made mad by bad treatment, and if the police are taught that they may exasperate to madness men they persecute and ill-treat, my life will not be entirely thrown away. People who live in large towns have no idea of the tyrannical conduct of the police in country places far removed from the court. They have no idea of the harsh, overbearing manner in which they execute their duty, how they neglect their duty, and abuse their powers.' (Age30/10/80) (Argus30/10/80)
Mr Justice Barry coughed and proceeded to pronounce sentence of death; but as he did so Ned Kelly interrupted him
'Edward Kelly, the verdict pronounced by the jury is one which you must have fully expected.'
'Yes, under the circumstances.'
'No circumstances that I can conceive could have altered the result of your trial.'
'Perhaps not from what you now conceive, but if you had heard me examine the witnesses it would have been different.'
'I will give you credit for all the skill you appear to desire to assume."
'No, I don't wish to assume anything, 'There is no flashness or bravado about me. It is not that 1 want to save my life, but because I know I should have been capable of clearing myself of the charge and I could have saved my life in spite of all against me.'
'The facts are so numerous and so convincing not only as regards the original offence with which you are charged, but with respect to a long series of transactions covering a period of eighteen months, that no rational person would hesitate to arrive at any other conclusion but that the verdict of the jury is irresistible and that it is right. I have no desire whatever to inflict upon you any personal remarks. It is not becoming that I should endeavour to aggravate the sufferings with which your mind must be sincerely agitated.'
'No; I don't think that, ..My mind is as easy as the mind of any man in this world, as 1 am prepared to show before God and man.'
'It is blasphemous of you to say that. You appear to revel in the idea of having men put to death.'
"More men than I have put men to death, but I am the last man in the world that would take a man's life. Two years ago, even if my own life was at stake -and I am confident, if I thought a man would shoot me I would give him a chance of keeping his life - I would have parted rather with my own. But if I knew that through him innocent persons' lives were at stake I certainly would have to shoot him if he forced me to do so. But I would want to know that he was really going to take innocent life.'
'Your statement, involves a cruelly wicked charge of perjury against a phalanx of witnesses.'
'I dare say; but a day will come at a bigger court than this when we shall see which is right and which is wrong. No matter how long a man lives he is bound to come to judgement somewhere, and as well here as anywhere. It will be different next time there is a Kelly trial for they are not all killed. It would have been for the good of the Crown had I examined the witnesses, and I would have stopped a lot of the reward, I can assure you, and I don't know that I won't do it yet if allowed.'
Eventually Barry replied, 'An offence of this kind is of no ordinary character. Murders have been discovered which have been committed under circumstances of great atrocity. They proceeded from motives other than those which actuated you. They had their origin in many sources. Some have been committed from a sordid desire to take from others property they have acquired, some from jealousy, some from desire for revenge. But yours is a more aggravated crime, and one of larger proportions, for with a party of men you took up arms against society, organised as it is for mutual protection and respect for the law.
' 'That,is how the evidence came out here. It appeared that I deliberately took up arms of my own accord and induced the other three men to join me for the purpose of doing nothing but shooting down the police.'
'Unfortunately,in a new community where society is not bound together as closely as it should be, there is a class which looks upon the perpetrators of these crimes as heroes. But such unfortunate, ill-educated, ill-prompted youths must be taught to consider the value of human life. It is hard to believe that a man could have sacrificed the lives of his fellow creatures in this wild manner.
'It is remarkable that although New South Wales joined Victoria in offering a large reward for the detention of the gang, no person came forward to assist the police. There seems to have been a spell cast over the people of the North-Eastern district which I can only attribute to sympathy with crime or dread of the consequences of doing their duty. For months the country has been disturbed by you and your associates, and you actually had the hardihood to confess having stolen over two hundred horses.'
'Who proves this?"
'That is your own statement!'
'You have not heard me. If I had examined the witnesses I could have brought it out differently.'
'I am not accusing you. This statement was made several times by the witnesses. You confessed it to them and you stand self-accused. It is also proven that you committed several attacks upon banks and you seem to have appropriated large sums of money -several thousands of pounds. It has also come within my knowledge that the country has expended about £50 000 in consequence of the acts of which you and your party have been guilty.
"Although we have met with such examples as Clarke, Gardiner, Melville, Morgan and Scott, who have all met ignominious deaths, still the effect has, apparently, not been to hinder others from following in their footsteps. I think that this is much to he deplored, and some steps must be taken to have society protected.
'Your unfortunate and miserable companions have met deaths which you might envy.
'I will forward to the Executive Council notes of evidence which I have taken, and all circumstances connected with your case; but I cannot hold out any hope to you that the sentence I am now about to pass will be remitted. I desire not to give you any further pain or to aggravate the distressing feelings which you must be enduring.
'Edward Kelly, I hereby sentence you to death by hanging. May the Lord have mercy on your soul!'
In 1911 Mr Edmund Duggan and Mr Bert Bailey were still prepared to act out the end of the Kelly story for the stage.(BWC)