The trial began on 15 October 1880. A brief adjournment was granted and it recommenced on 28 October 1880.
The Ned Kelly trial
Notes about the trial:
· The trial was sandwiched between the Great Melbourne International Exhibition of 1880 and the Melbourne Cup.\
Officials wanted the trial dealt with as speedily as possible.
It was over in two days.
· The only eyewitness to the shootings, Constable Thomas McIntyre said that Ned Kelly had simply walked up and killed Lonigan, that the other two policemen arrived and exchanged fire, and that he, McIntyre, had then escaped.
· This was a different version to the one given by McIntyre to his superiors immediately after the killings and to the version he wrote in his note whilst hiding in the wombat hole.It was, in fact, a fourth version.
· Bindon asked only a small number of questions of McIntyre, only half of which were relevant to the proceedings. He did not cross examine McIntyre on his inconsistent statements, nor was he challenged properly on the deaths at Stringybark Creek.
· If on reasonable grounds Kelly believed that the police were out to gun him down, not arrest him, then Ned would have been entitled to defend himself. If, however, Kelly believed that the police were going lawfully about their duties, then Ned could not argue self defence.
That defence and its significance were no understood by Bindon, who failed to cross examine witnesses on it, failed to present evidence on it, and failed to argue it except to make passing reference.
Instead, Bindon argued that the jury should not convict solely on the evidence of one man and that the jury could not be satisfied that the fatal shot had come from Ned Kelly.
· Bindon’s defences never had any reasonable prospects of success. The Crown presented witness after witness who testified that Ned had admitted firing the fatal shots.
· The fact that such witnesses could also have testified that Ned had also said that he shot Lonigan only after Lonigan sought to shoot him was not brought out by Bindon.
· McIntyre’s fourth version of the shootings was consistent with removal of a self-defence argument. Bindon does not seem to have appreciated this.\
· Bindon asked no questions of Dr Reynolds, who carried out the post mortems.
· Ned’s version of events and the circumstances that led to the Stringybark killings was set out in detail in the Jerilderie letter. Ned had all along, with the Cameron letter, the Jerilderie letter and by way of evidence in court, wanted to tell his side of the story.
In the letter he had written:
“ . . so I came back to Victoria knew I would get no Justice if I gave myself up I enquired after my brother Dan and found him digging on Bullock Creek heard how the Police used to be blowing that they would not ask me to stand they would shoot me first and then cry surrender . . . “
The Crown sought to tender the Jerilderie letter into evidence.
Bindon objected to the letter being placed into evidence and Barry upheld the objection.
The jury never saw the letter and never read Kelly’s version of the relevant events.
· Bindon called no witnesses for the defence.
· It was Bindon’s argument that all evidence that went to matters other than the death of Lonigan should be excluded. Mr Justice Barry disagreed, ruling that the evidence was relevant in that it showed Kelly’s response to the death of Lonigan.
· Ned Kelly did not give evidence.
In 1880 only an unsworn statement from the dock was permissible, an accused could not give sworn evidence.
(There was also no right of appeal, or court of appeal, in 1880).
It may be that Kelly was despondent at how the case was presented, or that he felt that tactically he felt that he should remain silent. Perhaps he was acting on the advice of his representatives.
Whatever the reason, he regretted it later.
Judge Barry’s summing up:
In his summing up and directions to the jury, Mr Justice Barry made the following points:
· There could only be a verdict of guilty or not guilty to murder, there could be no verdict of manslaughter.
· The doctrine of parties to a common purpose being equally guilty meant that Ned could be guilty of murder, even if he had not fired the fatal shot, where the group had intended murder. 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.
· MacIntyre’s evidence did not need to be corroborated.
· Kelly had chosen to remain silent during the trial.
· “Whether the 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.” - Judge Barry.
The jury retired to consider its verdict at 5.10pm on 29 October 1880.
At 5.25pm on 29 October 1880 the jury returned with a verdict of guilty.
Exchanges between Ned Kelly and Justice Barry:
What follows are some of the most amazing court exchanges in Australian history, made all the more impressive by Kelly's limited education.
Attendance at court is always an intimidating experience.
Kelly was neither awed or intimidated by his surroundings, by Judge Barry or by his impending sentence of death.
His exchanges and debates with Judge Barry make great and insightful reading.
Exchanges between Kelly and Judge Barry
The judge's associate asked Ned if he had anything to say why sentence should not be passed upon him. He stood up and spoke in a quiet voice that could be heard throughout 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.”
The court crier called upon all to observe a strict silence while the Judge pronounced the sentence of death.
His Honour: “Edward Kelly, the verdict pronounced by the jury is one which you must have fully expected.”
The prisoner: “Yes, under the circumstances.”
“No circumstances that I can conceive could have altered the result of the trial.”
“Perhaps not from what you now conceive, but if you had heard me examine the witnesses it would have been different.”
“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 to inflict on 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 I am prepared to show before God and man.”
“It is blasphemous for you to say that. You appear to revel in the idea of having put men 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, and would part 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 my 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 the next time there is a Kelly trial; for they are not all killed. It would have been good for 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 but I won't do it yet if allowed.”
“An offence of this kind is of no ordinary character. Murders had been discovered which had 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 the property they had acquired; some from jealousy, some from a desire of revenge, but yours is a more aggravated crime, and one of larger proportions; for, with a party of men, you took arms against society, organised as it is for mutual protection and for respect of 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 to join me, for the purpose of doing nothing but shooting down the police.”
“In new communities, where the bonds of societies are not so well linked together as in older countries, there is unfortunately a class which disregards the evil consequences of crime. Foolish, inconsiderate, ill-conducted, and unprincipled youths unfortunately abound, and unless they are made to consider the consequences of crime, they are led to imitate notorious felons whom they regard as self-made heroes. It is right, therefore, that they should be asked to consider and reflect upon what the life of a felon is. A felon who has cut himself off from all, and who declines all the affections, charities, and all the obligations of society, is as helpless and as degraded as a wild beast of the field; he has nowhere to lay his head; he has no one to prepare for him the comforts of life; he suspects his friends, and he dreads his enemies. He is in constant alarm lest his pursuers should reach him, and his only hope is that he might lose his life in what he considers a glorious struggle for existence. That is the life of an outlaw or felon, and it would be well for those young men who are so foolish as to consider that it is brave of a man to sacrifice the lives of his fellow creatures in carrying out his own wild ideas, to see that it is a life to be avoided by every possible means, and to reflect that the unfortunate termination of the felon's life is a miserable death. New South Wales joined with Victoria is providing ample inducement to persons to assist in having you and your companions apprehended; but by some spell, which I cannot understand -- a spell which exists in all lawless communities more or less, and which may be attributed either to a sympathy for the outlaws, or a dread of the consequences which would result from the performance of their duty -- no persons were found who would be tempted by the reward or love of country, or the love of order, to give you up. The love of obedience to the law has been set aside, for reasons difficult to explain, and there is something extremely wrong in a country where a lawless band of men are able to live for eighteen months, disturbing society. During your short life you have stolen according to your own statements over 200 horses.”
“Who proves that?”
“More than one witness has testified that you made that statement on several occasions.”
“That charge has never been proved against me, and it is held in English law that a man is innocent until proven guilty.”
“You are self-accused. The statement was made voluntarily by yourself that you and your companions committed attacks on two banks, and appropriated therefrom large sums of money amounting to several thousands of pounds. Further, I cannot conceal from myself the fact that an expenditure of 50,000 pounds has been rendered necessary in consequence of acts with which you and your party have been connected. We have had samples of felons, all of whom have come to ignominious deaths. Still the effect expected from their punishment has not been produced. This is much to be deplored. When such examples as those are so often repeated society must be reorganised, or it must soon be seriously affected. Your unfortunate and miserable companions have died a death which probably you might rather envy, but you are not offered the opportunity.”
"You will be taken from here to the place from whence you came, and thence on a day appointed by the Executive Council to a place of execution, and there you will be hanged by the neck until you be dead. May the Lord have mercy on your soul."
“I will go a little further than that, and say I will see you there when I go.”