Committal for Trial
Ned was treated for his wounds and allowed to recover.
At the same time, Ned’s family sought to raise money for his representation at trial. In that day there was minimal government legal aid to assist defendants. There was also a prevailing feeling that it was inevitable that Ned would be convicted and executed.
Ned’s sister, Maggie, and Tom Lloyd, his cousin, engaged solicitor and member of the Victorian Parliament, David Gaunson, to represent Ned.
David Gaunson (1846-1909), pictured c 1880
Ned was to face committal proceedings in Beechworth, that is, preliminary proceedings in which the Crown had to show that there was enough evidence, known as a prima facie case, to commit Ned for trial in the Supreme Court. It was considered only a formality.
Fearing that relatives might pass something to Ned whereby he would escape the hangman’s noose, the authorities prevented contact with his family.
He told Gaunson “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.”
Ned’s request that he be allowed to tell his side of the story was repeated a number of times subsequently, as was his request that he receive a fair trial.
In the end he had neither.
At his committal, Ned was formally charged with the "wilful murder of Thomas Lonigan at Stringybark Creek in the Northern Bailiwick of the Colony of Victoria on the 26th day of October 1878."
He was also charged with the murder of Constable Scanlon but this was later dropped for lack of eyewitnesses.
David Gaunson sought a short adjournment to prepare the defence but this was refused.
After hearing evidence, Kelly was committed for trial on both charges.
Gaunson again applied for an adjournment and was refused. He also complained at Kelly being denied contact with anyone but his solicitor, The magistrate said that he had no power to overturn the Chief Secretary’s direction in this regard. Gaunson also queried whether a fair trial was possible when the conservative newspapers were writing articles which pronounced his guilt and called for the death penalty.
Judge Redmond Barry:
The trial was set down for 15 October 1880 before Justice Redmond Barry, the same judge as had wanted to condemn the Eureka Stockade miners to death, who had sentenced Mrs Kelly and who had said that if Ned had been in court he would have given Ned 15 years; a man who, according to historian Manning Clarke, was a member of the establishment who “clothed their sadism towards the common people in the panoply of the law”.
Judge Redmond Barry
Gaunson wanted an experienced criminal barrister, Hickman Molesworth QC, to represent Kelly.
The letters QC after a barrister's name, meaning Queen's Counsel, means that that person is eminent in their field and that he or she has been appointed a QC. Today the initials are SC, Senior Counsel, as the move in Australia has been towards independence and away from England and Royalty.
Molesworth wanted 50 guineas per day, fees to be paid up front. Ned’s family didn’t have it and the government would only fund 7 guineas per day under the legal aid scheme in force, the first such scheme in the English-speaking world.
Gaunson acted without charging a fee.
Molesworth applied to Judge Barry for an adjournment to enable funds to be raised but Barry refused.
On the first day of the trial Gaunson sent a young barrister , Henry Bindon, to ask for a postponement so that Gaunson could further adequately prepare the case. Barry granted a 10 day postponement, not the longer period that Gaunson had wanted.
The Kelly family frantically tried to arrange fees to enable Molesworth to be briefed, but without success.
Ultimately Bindon appeared for Ned whjen the case resumed on 28 October 1880.
The appointment was not a favourable one for Ned, who was on trial for his life.
Bindon had only been practising a few months, had never conducted a trial and had been out of the colony when the Kelly events took place. Bindon was the only person in Victoria not acquainted with the facts. Not only would this be his first trial, he had made three attempts at matriculation and took 8 years to pass the Bar exam in London
The most famous prisoner in Australia (news of the Glenrowan siege and shootout had been reported internationally) would be tried by a judge known to be hostile to, and biased against, the prisoner.
The prisoner would be defended by the most inexperienced barrister in the colony.
Bindon ended up so traumatised and emotionally devastated by this case and his own ineptness that after its end, he opened a legal practice in Benalla and never carried out court work again. It is also reported that after the trial he sat on a stone near the court and wept.
A defence strategy:
Gaunson had devised a strategy that offered the most hope for a defence.
If the police officers at Stringybark had set out with the intention, not of arresting the Kelly Gang but of killing them, then that would be a defence to the charge of murder.
The fact of the police party being disguised, heavily armed, that they had brought extra mounts with leather strapping for moving dead bodies and that at least one officer had declared that he would shoot the Kellys on sight supported such a defence. The defence was further bolstered by the police officers having been called upon to surrender, that they could have been shot from ambush and that the police, who resisted, drew their weapons first.
If properly presented, the defence had prospects of success.
For those who have found the story a bit long and perhaps boring, you will be happy to know that the concluding parts - Trial, Execution and Aftermath - will be posted next weekend. Those, like me, who find the Kelly saga fascinating, all the more so for being true, will also have seen in it a reflection of society at the time and a unique piece of Australian history.