Patriot Realm

Details: Written by: Op-Ed Happy Expat; Published: 26 July 2021; Hits: 1611

The smouldering ashes of the Glenrowan Inn take many hours to cool down before the police can do anything further but eventually they do. The bodies of the three bushrangers and a non-sympathiser hostage, Martin Cherry, who has been hit by a police bullet, are retrieved. Superintendent Sadlier, the most senior man on the spot does not want to release the bodies to the families. They are to be kept for an inquest but the large throng of armed sympathisers, who outnumber the police, remonstrate and cause him to change his mind. Soon after, Standish arrives from Benalla and approves the release of the bodies of Dan Kelly and Steve Hart to their families.

The Kelly gang exchanges gunfire with police during the Glenrowan siege

Ned is carried to the station masters house where his numerous wounds are tended by a local doctor. He is taken to Benalla as there is no safe lock-up at Glenrowan. The next day he is taken by the regular train to the Melbourne Gaol with a magistrate in attendance to ensure that he is treated lawfully.

Ned Kelly on the Australasian Sketcher cover, 10 July 1880

Supt. Sadlier is preparing an official police parade at Benalla to honour the police who brought down the gang but a large and menacing crowd causes him to abandon those plans. Thomas Curnow and his family are removed to Melbourne for their own safety.

Ned’s mother, Ellen, is also incarcerated at Melbourne Gaol. The Governor permits her to visit him and he tells her of what has happened to her family back at Greta. At the same time, there is growing public concern at the way the police have handled the whole matter at Glenrowan. Letters of protest are published in the Age and the Argus. The general feeling is that the police are to blame for the destruction of the Glenrowan Inn, the exposure to danger, injury and subsequent death of so many innocent people held captive inside and the failure to secure a proper inquest over Dan and Steve in the face of public demonstrations. The newly elected government decides to appoint a Royal Commission into the whole affair and the general organisation of the police force. The newly-elected premier, Graham Berry, had been premier in 1877. At that time he had undertaken to mount an inquiry into the police force but was defeated at the next election before it could be convened. Now he was about to let history repeat itself.

On 1^st August, Ned, now on crutches, is taken by train to Beechworth for a committal hearing to start on 6^th. Ned is charged with the Stringybark Creek killings. The evidence is overwhelming and he is committed to stand trial. The Crown Prosecutor applies to have the trial moved from Beechworth to Melbourne. He believes that it would not be possible to empanel a jury that would not be sympathetic to Ned. Justice Redmond Barry agrees and moves the trial to Melbourne. They further agree to split the charges. Instead of one charge of killing three police, there are now three charges of killing each one on the basis that if one charge fails there is another that can be brought forward. The acquittal of the thirteen diggers from the Eureka Stockade incident 20 years before is not forgotten and Barry was presiding over 11 of those cases.

The trial of Ned Kelly, wood engraving, published in The Illustrated Australian news, Melbourne, David Syme and Co. November 6, 1880. Source State Library of Victoria, Illustrated newspaper file. Illustrated Australian news.

The trial date is set for 28^th October before Judge Redmond Barry, the senior judge in Victoria, who was once described as liking nothing better than to endorse death warrants. Ned had been represented at his committal by David Gaunson, Member of Parliament for Ararat, a rabid advocate for the abolition of capital punishment and an experienced advocate but not a barrister. For this reason, he could not appear for Ned in the Supreme Court. The Kelly family could not raise the funds needed to engage a senior barrister so they used a recently qualified man named Henry Bindon with Gaunson assisting without fee.

A well-known admonition in Victoria at the time was “all accused are innocent until proved Irish”. The defence was to be based on self-defence and that the family had been unfairly maligned and marginalised for years. Barry should have disqualified himself having presided over the case against Ellen and comments he made against Ned had he been the one in front of him instead of his mother. But he was unmoved. Bindon seeks an adjournment to better prepare himself. It is denied. Ned pleads “Not Guilty”. The jury is empanelled.

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Bindon’s cross-examination of Const. McIntyre, the principal Crown witness is inept. He asks only 21 questions. The first day ends with the jury already pretty well convinced that Ned is guilty. On the second day, the Crown seeks to introduce the Jerilderie letter. Bindon’s objection is upheld because the Crown does not have the original. Bindon would like to put Ned on the stand but the law at the time forbad an accused person from giving sworn evidence on his own behalf. Bindon states that the defence will not call any evidence. At the end of the closing addresses the jury retires. They return after 30 minutes. The verdict is “Guilty”.

"Ned Kelly in the Dock - A Scene from Life" Ned Kelly in the dock during his trial.

Wood engraving published in The Illustrated Australian News.

A courteous but defiant exchange takes place between Ned and Judge Barry ending with the pronouncement that “….you then and there will be hanged by the neck until you are dead”, followed by “May the Lord have mercy on your soul.” Ned calmly replies “I will see you there where I go”.

David Gaunson and his brother draft a Petition for Reprieve for distribution at places where people gather. Ned writes to the Governor of Victoria hoping his letter will arrive before the next Executive Council meeting. It does not and the Council confirms that Ned will hang on Thursday, 11^th November.

Image of Ned Kelly taken on November 10, 1880, the day before his execution.

The Gaunson petition achieves much success. On Guy Fawkes Night, 5^th November over 6,000 gather at the Hippodrome unanimously supporting the notion that Ned’s sentence should be commuted. TheAge and the Argus, on the other hand, roundly condemn Gaunson and describe the crowd at the Hippodrome as “ the social scum of a large city…”. Nevertheless, the Governor refers the petition to the next Executive Council meeting. The final petition has 32,434 signatures and is presented to the Council on 8^th November. The Council rejects the petition.

The next day a large crowd storms the Supreme Court Reserve demanding a reconsideration. The Chief Secretary, Berry, agrees to meet a deputation that night. Berry is not persuaded that the sentence should be commuted but confirms that the Royal Commission that he had previously announced will proceed. He also agreed to refer the matter to the Council again tomorrow, 10^th November.

Nothing changes and the next morning Ned’s last wish is granted. His mother is brought to him for one last meeting. The formalities of the last rites and a sumptuous meal are concluded, the officials assemble and at 10.00am the trap door is activated and Ned breathes his last breath 4 minutes later. Outside the main gate a crowd of several thousand gather to lament Ned’s passing. After 30 minutes Ned is officially pronounced “Dead”. His body is placed in a rough coffin, sprinkled with lime to speed de-composition, and buried in a remote position in the gaol yard marked simply by a stone etched with EK and a broad arrow. Ned’s last words as recorded are “Such is Life”.

Epilogue:

It is clearly a mark of poetic justice that 12 days later, Redmond Barry, the Hanging Judge, dies suddenly from blood poisoning caused by an infected carbuncle on the back of his neck. A prophetic conformation of Ned’s last words to him from the dock.

A week after the hanging the Reward Board met to decide how the reward money should be distributed. Hare was the biggest recipient with 800 pounds. Next was Curnow with 550 pounds but after protesting that he deserved more he received a further 450 pounds in 1882. The rest of the money was largely shared by various police officers. The Queensland black trackers were awarded a paltry 50 pounds each. They never received the money. In 1994, the descendants of two of the black trackers sued the Victorian government for $84 million being interest at 12% from the time of the award, in the Queensland Supreme Court. It failed. The case was appealed with action stayed until further notice. It remains in that Court today unresolved.

On 7^th March, 1881, the Governor of Victoria signed an order for the start of the promised Royal Commission into the Kelly matter and the state and organisation of the police force in general. After 66 sittings the findings handed down in October were not exactly complimentary to the police.

Commissioner Standish was censured for “conduct not characterised by good judgement and was the cause of much of the bad feeling amongst officers for lack of impartiality, temper, tact and good judgement in his dealings with subordinates”.

Hare was criticised and accused of cowardice by exaggerating the effect of his injured wrist at Glenrowan and together with Nicholson and Inspector Brooke Smith, was retired from the force. He died in 1892.

Supt. Sadlier was criticised for “injudicious conduct not calculated to raise the police force in the estimation of the Public.” He was demoted to the bottom of the list for promotion of superintendents.

Sgt. Steele was reduced to the ranks for failing to pursue the gang at Wangaratta on 4^th November, 1878.

The four constables at the hut of Aaron Sherritt the night he was shot were all dismissed from the force.

The Commission condemned the process of continually remanding the sympathisers without charge at Beechworth but more to the point it was pointed out that the key problem was the sense of grievance of Irish selectors and lack of justice in dealing with their land applications. There was almost total agreement among the denounced police that the untruthful testimony of Const. Fitzpatrick that lead to Ellen’s conviction was to blame for everything that had happened.

It is no coincidence that the incidents of the Eureka Stockade and the Kelly Gang’s brief reign happened in Victoria. When the British came to colonise Australia they brought with them, among other things, the prejudice and persecution of the Irish people. Melbourne became the heart of the Irish in Australia. The police were either directly recruited from England or were descendants of those who were. Persecution took many forms but the treatment of their applications for land was the overriding grievance.

Daniel Gaunson lost his seat of Ararat in 1881 but regained it in 1883. He served as legal advisor to the madame of Melbourne’s most famous brothel, the infamous financier and gambler, John Wren and the Licensed Victuallers Association.

Ned’s sister, Maggie Skillion died at 39 while her husband, Tom Lloyd, was serving time in prison. They had 11 children. Lloyd later married Steve Hart’s sister and had 6 children with her. Kate Kelly married a blacksmith and went to live in Forbes, NSW. She was drowned in the Forbes River in 1898 after giving birth to her 6^th child.

Ellen Kelly went to live with her son Jim after she was released from gaol and died in 1923 while son Jim lived until 1946 dying at age 87.

The old Melbourne Gaol stands today in Russel Street, Melbourne, as a tourist attraction and museum.

Glenrowan is still a little town, now by-passed by the Hume Freeway but an interesting diversion with an array of memorabilia of the days when it was famous.

Ned’s suit of armour is now held in the State Library of Victoria. Joe Byrne’s was kept by Hare and is still held by that family. Dan and Steve’s suits are held in the Police Museum. Despite his record Ned, in particular is held in high esteem by large numbers of the Victorian and Australian public. In more benign or civilised circumstances he may have risen to great heights. He was a natural leader of men. He had high ideals and high principles of fair play and justice but as his last words say; “Such is Life”.