Damien Carrick and Jan Wositzky
ABC National Radio, 21 May 2002
source: abc.net.au/rn/talks/8.30/lawrpt/stories/s559082.htm

Hear this program summary:
Even a 120 years after his execution - the bushranger has managed to find himself at the centre of a legal wrangle. A WA farmer - has come forward to say he has possession of Kelly's skull which was stolen from the Old Melbourne Jail back in 1978. So where do all the legal cards fall? - Who owns the skull? And what's the right thing to do with - what are after-all - human remains?

Details of transcript:
Damien Carrick Well, even though he was executed 122 years ago, bushranger Ned Kelly continues to have a strange hold over the nation’s imagination. A major new film on Kelly is currently in the pipeline, and as we saw on the weekend, controversy has erupted over the authenticity of a photo of Kelly, sold recently for $19,000 at Christie’s auction house. But there’s also a 20-year-old saga attached to a much more important piece of Kelly memorabilia:

Red Harrison Now the mysterious case of Ned Kelly’s skull. It was stolen yesterday from the Old Melbourne Jail where it was on display.
Reporter An appropriate fate, some might suggest, for the best-known bushranger of them all. The Curator of the Old Melbourne Jail, Mr Thompson, cannot shed any light on how the skull disappeared.
Mr Thompson I have no idea at all. The case itself was still locked.
Reporter Were there any signs that the case had been moved, or tampered with?
Mr Thompson None at all, no.
Reporter So it’s a complete mystery?
Mr Thompson An absolute mystery, yes.
Reporter Have you put any value on it? Do you call it priceless?
Mr Thompson Priceless, yes.
Reporter It’s quite simply priceless.
Mr Thompson Priceless, yes.

Damien Carrick Twenty years later, Tom Baxter, a farmer in the Kimberley region of Western Australia, came forward and claimed that he had possession of the skull. In this special report, the ABC’s Jan Wositzky asks, Is it really Ned Kelly’s skull? If so, how did it get to the north-west corner of W.A.? And what are some of the legal, social and personal obstacles to the skull’s return to the Kelly family?

Jan Wositzky The body hung for the required half hour before being taken down, pronounced dead. When the hood was removed it was found that the expression of the face was one of remarkable placidness, while the eyes were a bright expression. Then the body was at the mercy of science, a group of doctors and students. The students particularly went in heavily, taking part of his body and generally examining every organ. It was a ghastly sight, indeed hardly ever paralleled. And the head was sawn off and the brain removed, a pointless atrocity. The brain would have been given some spurious scientific value, preserved in a jar. The head, stripped of its flesh, would be kept purely as a curio, supposedly as a paperweight on the table of some minor government official. And what was left after the doctors, phrenologists, waxworks proprietors and students had finished their gory work was bundled into a coffin and buried in the jail graveyard.

Ninety-three years later, in 1973, the National Trust of Australia would receive Ned Kelly’s skull from the Institute of Anatomy in Canberra. The skull was put on display in a glass case at the Old Melbourne Jail, a matter of metres from where Ned Kelly was hanged. Then on December 12th, 1978, the skull disappeared, and nothing was heard of it for near on two decades. Then in the late 1990s, a man called Tom Baxter, a sandalwood farmer from the Kimberley in the north of W.A., voluntarily made it known that he had the skull hidden on his remote property, and he would give it back, under certain conditions.

Hello, I’m Jan Wositzky and last year I was introduced to Tom Baxter, in a Victorian country hotel. He told me that his quest was to have DNA testing done to make sure that the skull actually was Ned Kelly’s and to return it to the family of Ned Kelly for a dignified burial in consecrated ground as was Ned Kelly’s dying request. So in The Law Report today, I’m going to explore what it will take for Ned’s cranium to return to rest in Victoria, that is if it is Ned’s. First we go to the man who has the skull, Tom Baxter, now back on his farm in the Kimberley, ten days’ drive from Victoria. Tom, where is the skull now?

Tom Baxter The skull’s up in the West Kimberley.
Jan Wositzky Where we’re talking to you from at the moment?
Tom Baxter That’s right.
Jan Wositzky So the West Kimberley, for people all over Australia that don’t quite have that picture, you’re about 300 kms out of Broome?
Tom Baxter About 200 and about 120 from Derby.
Jan Wositzky Inland a bit.
Tom Baxter Yes, we’re in from the coast.
Jan Wositzky You’re on a farm, so you’ve got the skull that’s Ned Kelly’s skull, and where have you got it? Is it in the house, or have you got it down the back yard?
Tom Baxter Well that’s a closely guarded secret, no, not near the house or anything like that, it’s a closely guarded secret of course, but you usually say to people when they ask you, I say that it’s within 200 kilometres of Derby.
Jan Wositzky Now you don’t admit to having taken it from the Old Melbourne Jail in ’78; how did you get it?
Tom Baxter Well that’s probably a sensitive question again; it’s got all sorts of legal ramifications, so again it’s probably not worth talking about at this stage.
Jan Wositzky So how sure are you that it’s the skull that went from there?
Tom Baxter I’ve never actually claimed that it is Ned’s skull, although we’re slowly coming to believe that it is. I just say to people that it’s the skull that went missing from the Old Melbourne Jail in 1978, and if it turns out not to be Ned’s skull, well that’s for the National Trust to explain, because they had it on display as if it was Ned’s skull. But we’re quietly confident that it is the genuine article. We haven’t undergone the tests yet that would prove that one way or another, and that would probably be a DNA test or a facio cranial reconstruction, or there are various options that we’ve got.
Jan Wositzky So I’ve always, in all of the press, only ever seen yourself, Tom Baxter, associated with it, but you’re using the word ‘we’.
Tom Baxter I do claim to have a great many supporters around the country, and people who have contacted me as a result of being interviewed on radio and in the newspapers and other media. I don’t claim to be doing this on my own really, I feel like I am doing it with the great support of the people who are around me basically, including people who were descended from Ned himself.
Jan Wositzky So talking about great support. what do you want to do with this skull?
Tom Baxter Once it’s been authenticated, I’m just going to be quite happy to return it to Ned’s descendants.
Jan Wositzky You’ve had the skull for a while; how come you haven’t so far had DNA testing done on it?
Tom Baxter I simply haven’t had the resources to undertake something like that, and it’s only become clear in the last few years that that’s what’s got to happen if it does happen to be authenticated, because there is a question mark over its authenticity, regardless of anything that I might feel about it. Once we have authenticated it, well the path forward would become clear really, and I think the family are indicating to me that they would accept it upon authentication, you know my role in the whole business will probably be finished at that point.
Jan Wositzky That was Tom Baxter, Kimberley farmer who on one occasion had three carloads of police with metal detectors visit him out on the farm. They wanted to retrieve the skull, but they left empty-handed because Tom wouldn’t show them where it was, and anyway, you could hide a jumbo jet out in that country, never mind a skull. It’s now 122 years since Ned Kelly was hanged, and some people are doubtful that Tom Baxter’s skull ever belonged to Ned Kelly. So are the National Trust still confident that the skull they once displayed as Ned’s, was Ned’s?
Richard Berman-Hardman In a nutshell, it would be very hard to say either way whether or not the skull was believed then, and is believed now, to be Ned Kelly’s. The story regarding how the skull came into our possession is quite long, and it also conflicts with more recent stories that have surfaced over the last few years.
Jan Wositzky That was the new Manager of the Old Melbourne Jail, Richard Berman-Hardman. He detailed for me how after mutilation, what was left of Ned Kelly’s body was buried in the prison cemetery. Then in 1929, the bodies from the Old Melbourne Jail cemetery were removed for reburial at Pentridge Jail. When the workmen unearthed what was thought to be Ned Kelly’s coffin, there was a skull attached, and the contents were plundered again. The Trust now think it’s possible that the skull from that episode was the one they acquired from the Institute of Anatomy in 1973, as different to the one that was said to be sawn off at the time of execution. Historian Ian Jones also doubts that the displayed skull was Ned Kelly’s.
Ian Jones I have very serious doubts about it, on several scores. Firstly, as far as I’m aware, Ned’s skull was not buried with him, his head was removed during the bizarre sort of dismemberment of his body by doctors and students after his execution. Now the only reason for removing the head was to examine the brain. Now the head was apparently not buried, the skull was traditionally kept as a paperweight by someone. True or not, the skull would have to be in two pieces for the brain to be removed. Now that skull is intact, it hasn’t had the top taken off it. The other thing is when I first handled the skull at the end of 1972 or the beginning of 1973 when it first arrived in Melbourne, it immediately struck me that it was too delicate to be Ned Kelly’s skull, the facial structure was wrong. And shortly after that, a leading pathologist, Dr Don Hossack, told me that in his opinion it was the skull of a woman. Now that isn’t conclusive in any way, but it all led me to doubt very much that this was in fact Ned’s skull.
Jan Wositzky Historian, Ian Jones. Well if this is a female skull that was dug up in 1929, then Tom Baxter’s quest may be in vain, and the old National Trust management may have a little egg on their face. So for a third opinion, I went to Ron Taylor, the forensic sculptor at the Victorian Institute of Medicine. Ron Taylor is world renowned for reconstructing a face from a skull, and in doing so he’s helped solve many significant murders. He had some photographs of Tom Baxter and his skull, and I asked Ron Taylor if he believed the skull was male or female.
Ron Taylor There’s some things that suggest that it’s male, on the side there the mastoid process where that big muscle down the side of your neck attaches looks very strong, which makes you think that it definitely is a male one. But once again, it could be a female weightlifter, and it’s a very strong muscle that basically holds your head on. You need to have the skull in your hands to be able to do the proper analysis.
Jan Wositzky If you were going to have a go at demonstrating whether that skull Tom’s got was actually Ned Kelly’s skull or not, how would you need to go about it?
Ron Taylor If we were allowed to actually handle the skull, because of the legal and political situation we can’t, but if that was all waived, there’s imposition where you could take a photo of the actual skull and try and fit it into a photo of Ned’s, Ned Kelly’s face, and there are a lot of photos of Ned Kelly’s face around. We could do a facial reconstruction, and just like I do for the forensic work, and once again it’s just another little piece in the jigsaw, and obviously if you’ve got the bone itself, there’s DNA.
Jan Wositzky And, if say, it all did line up, to what percentage out of 100 could you say OK, I think that’s Ned Kelly’s skull?
Ron Taylor For this sort of work is being used in court cases before, and it’s been accepted in court cases as positive ID, so I think if you were that close and you could demonstrate it, then you would be pretty much 100%.
Jan Wositzk Forensic sculptor, Ron Taylor. Let me cut back to 1853, the year before Ned Kelly’s birth. On October 3rd, the bushranger Melville was hanged for robbery with intent to murder, and Melville’s body was released to his widow, who owned an oyster shop in Melbourne Town. There in the window of the shop, Mr Melville laid her dead husband on ice, decorated with flowers. The newspaper reported a brisk trade, with the grieving widow entertaining customers with a torrent of abuse against ‘the conniving police force’. Consequently the law was changed, and to this day, the remains of all of those executed are by law the property of the State, and must be buried in the jail. A barrister who grew up in Kelly country, and has a long-time interest in the Kelly story, is Ken Aldis. I asked him if the law stating that the body must be buried in the jail meant the whole body, and nothing but the whole body.
Ken Aldis As for taking off or mutilating bodies and removing parts of them, my view would be that those parts of the body are part of the body and it should have been buried.
Jan Wositzky So what rights does the owner of this body have? Can they for example put it on display in a museum if they want to?
Ken Aldis I would have thought not, as the law has directed the new owners, being the State, to bury it, rather than to display it.
Jan Wositzky And so from its illegal display, the skull was apparently transported to the Kimberley. How or exactly when I don’t know, but holding illegal gotten goods that were stolen is still a felony. So I asked Tom Baxter why he won’t return the skull.
Tom Baxter I want to do what’s right here. It’s not necessarily what’s lawful, but I’d be content with doing what was morally the right thing to do, and even though I have to take into account all the lawful considerations, it’s the morality of it that drives me more than the legality of it. And I just want to do the right thing here, because I believe that Ned is deserving of a basic human burial and as most people born on this earth are, and it’s something that’s been denied to him to this point. That’s my objective, and it’s a spiritual matter more than a legal one, I would say.
Jan Wositzky But it’s not only spiritual. The principal reason that Tom Baxter gives for holding the skull is that Ned Kelly did not receive a fair trial. Victorian Chief Justice, John Phillips is the author of the book The Trial of Ned Kelly, and I went to his offices to ask him about his point of view that Ned Kelly did not get a trial according to the law:

John Phillips I’ve never suggested Kelly was an innocent man wrongly convicted. On the contrary, the evidence against him was considerable, and certainly raised a prima facie case of murder. But the judge didn’t leave it to the jury to decide whether the police were out there in the Wombat Ranges to arrest Kelly or whether they were just going to shoot him. He said that the police were ministers of justice, that’s the expression he used, and entitled to the full protection of the law. That was to my mind a direction he gave the jury. What he should have said was ‘It’s for you to decide what role they had. Do you think they were ministers of justice merely going out to arrest these men, and if so they did have the full protection of the law. Or do you think they were intent on summary justice.’ There were pieces of evidence that were never presented to the court. There was a saddler in Mansfield who had made special straps to go on the side of the police horses to carry bodies. The police didn’t have the warrant with them, they were not in their uniforms; these things could have been brought out. Maybe the jury wouldn’t have thought them convincing, but they should have been brought out and discussed.

Jan Wositzky Victorian Chief Justice, John Phillips. Since Tom Baxter has claimed that he has the skull, some Kelly descendants have contacted Father Peter Norden, now CEO of Jesuit Social Services in Melbourne. Formerly the Chaplain at Pentridge Prison, Peter Norden oversaw the placing of a plaque on the spot where the remains of Ned Kelly are thought to lie. I asked Father Norden how he’d become involved.
Peter Norden We were approached by a person who said that he had a friend who had the missing skull of Ned Kelly that had been stolen from the Old Melbourne Jail some years before.
Jan Wositzky And you were approached for what purpose?
Peter Norden Well because I was a Catholic priest, and we at the time had possession of the former Pentridge Prison site property, it was thought by this group that I might be a good intermediary for the skull to be returned so that it could perhaps be placed in a suitable place, according to the wishes of Ned Kelly’s descendents. Initially I was interested because I thought it was a genuine request to return the skull and to respect the fact that it was human remains, and to hopefully respond to the interests of Ned Kelly’s descendants, several of whom had contacted me over recent years especially when there was some publicity about the missing skull, hoping that the skull would be returned and treated with some dignity.
Jan Wositzky You’ve implied from what you’ve said there though, that it wasn’t a genuine request? What did you discover?
Peter Norden This issue then continued for several years, and each time there was a bit of publicity about who had the skull, but no genuine efforts, it seemed to me, about a desire to return the skull and have it buried appropriately either with the rest of Ned Kelly’s remains in the Coburg vicinity, or in keeping with the wishes of his family perhaps in a non-identified place where the family were satisfied that it was treated with respect and dignity.
Jan Wositzky What did you discover then that Tom Baxter wanted to do with the skull? Did you find out what he wanted to do?
Peter Norden Well no. It seems that every six months some publicity arises around Australia identifying the fact that Tom Baxter has the alleged skull of Ned Kelly, and it doesn’t seem to progress much further beyond that in terms of actually bringing about an appropriate resolution to the issue.
Jan Wositzky Is it your opinion that if it is the skull that actually came from Ned Kelly, that it should go to that gravesite in Pentridge?
Peter Norden Well I think the wishes of the family would be most appropriate. That would be my primary concern. But secondly, recognising that it’s not the skull of a sheep or a dog or a cow, it’s the skull of a human being, we could test and see whether it is in fact Ned Kelly’s skull, presumably at least it’s the skull of someone who was executed at the Old Melbourne Jail. But my concern is that it’s human remains, it’s been sitting on someone’s desktop I presume for quite a few years, and been taken around Australia, that hardly seems the appropriate way of treating the remains of any person, much less Ned Kelly.
Jan Wositzky Tom Baxter also contacted Kelly descendents, including Roma Crotty, whose mother’s father was Ned’s cousin, and whose father’s mother was Ned’s sister, Grace. When I contacted Roma she said she didn’t do interviews but gave me the following to quote:

I indicated to Tom that if it is proven by DNA testing that the skull is actually Ned Kelly’s then I see nothing wrong with its return to the family, provided there’s permission from the proper authorities.

Jan Wositzky The Old Melbourne Jail, when Ned Kelly was hanged, was a brooding and shadowy place. Made of dark, impenetrable bluestone, long and narrow like the grave, you might say the feng shui is grim, not the place for a picnic. However many thousands of people visit every year, and the main attraction is Ned Kelly. Since the skull vanished in 1978, the National Trust have demanded its return. When I rang them recently to ask if they still wanted it back, and if so would they put it on display, the new manager, Richard Berman-Hardman asked me to wait a few days for them to consider. At the appointed time, I followed him to the third level, above the gallows to his office. This is what he had to say:

Richard Berman-Hardman As a progressive community-based organisation which represents the public sentiment on issues relating to conservation, we have decided the following. That the Trust is prepared to relinquish any claims of legal custodianship of the skull, or of any rights to hold it or keep it, under the following three conditions:

The first condition is the most important condition, in my view, is that Tom Baxter, the current custodian of the object, hands over the skull to reputable and suitably qualified experts who can positively or negatively identify it as Ned’s. So in other words, we need for Tom to hand over the skull to a third party, not to the National Trust, not to our experts, to an agreed group of experts who can take it and look at it, and use genetic and forensic identification techniques which I would assume would be fairly effective to ascertain whether or not it is the bushranger’s. If the skull is identified as the bushranger’s then a process should be established that will lead to a popular and ethical outcome for the artefact. The process should be, we feel, that a group of relevant stakeholders in this whole situation, including Ned’s family, his descendants, the church and I suppose State authorities, should be invited to decide its fate.  other words the National Trust is willing to, in a nutshell, relinquish our claims of ownership under those conditions. So we’re trying to seek a suitable, reasonable outcome for the artefact, for the skull rather than trying to put it back on display which has never been the case to my understanding, but that might have been thought by the wider community, that that’s what our approach has been in the past. That’s definitely not the case now, we don’t really want it back.

Jan Wositzky Richard Berman-Hardman, from the National Trust. And indeed that may be an outcome that could suit Tom Baxter, but if he hands over the skull, is there an answer to this concerns that he may still be open to charges? Barrister Ken Aldis again.
Ken Aldis If Baxter was of the view that he doesn’t want to put his head up in relation to possession of the skull or offer it up for further examination, that a letter of indemnity, in short, could be offered to him, it could be sought. I know very well that there would be any number of legal practitioners in this State that would be quite happy to assist Mr Baxter in regard to representations both to the Chief Commissioner of Police and indeed the Director of Public Prosecutions. If that was his concern, and of course if you have an indemnity from prosecution for, in this instance, handling stolen goods, you’ve got an indemnity. So that could be a resolution that could encompass all the hurdles that Mr Baxter has to jump, and indeed the rest of the Victorian population has to jump in order to see the issue dealt with.
Jan Wositzky Well, so far, so good. But of course Ned Kelly did kill three policemen, and naturally there’s always been a lot of feeling about that. And the police do have a right to demand the skull back if they wish. So I spoke to Senior Constable Wayne Wilson at the Victorian Police Media Unit. Obviously he couldn’t comment about the prospect of an indemnity for Tom Baxter but on the subject of the skull, he gave me an official response to the National Trust proposition:

Wayne Wilson I think under those circumstances we’d be happy to work along those lines and any outcome along those lines, where all the parties involved were happy with it, we would agree to that. Just recently we had a memorial up there in relation to the police and Ned Kelly and our people I think have reconciled with the matter going back a number of years, and I think it’s probably a reasonable resolution under the circumstances.

Jan Wositzky So far nearly all of the Kelly descendents have been reluctant to speak publicly. But Ellen Hollow, the great-granddaughter of Ned’s most famous sister Kate, was happy to offer a personal response to the statement from the National Trust.
Ellen Hollow Well look I think that’s a wonderful outcome. I hadn’t expected the National Trust to be so generous. And I think if it can be proven to be Ned’s skull, everybody in the family would be very pleased to see an end to the matter and to have it rest somewhere.
Jan Wositzky And as you’re only speaking for yourself as one member of a family.
Ellen Hollow Oh certainly, yes.
Jan Wositzky When you say ‘rest somewhere’, do you mean a proper burial?
Ellen Hollow I think that would have to be a matter for discussion within the family members, whether they wanted it cremated or buried. The issue is buried where, would someone come along and dig it up, I think that’s sort of further down the track. I’m just so pleased that the National Trust have taken this line that at least we feel we can get one step further and have the skull tested, and once it’s tested, then its fate can be decided.
Jan Wositzky So with the ground prepared for a return of the skull from the Kimberly to Melbourne, I rang Tom Baxter, to tell him the news, that the National Trust had changed direction, that the police were reconciled, the offer of legal assistance, and that Kate Kelly’s granddaughter was delighted.
Tom Baxter It’s something you’d have to think about. I mean it does seem there’s a bit of contradiction there, the National Trust are asking me to hand back to them something they didn’t want to relinquish. It might be that the proper authority to do the test and go through the authentication process, that’s something I’d have to think about.
Jan Wositzky How long would you have to think about it?
Tom Baxter Oh well, for as long as it takes to become really clear. I’m interested that the National Trust has had to say that.
Jan Wositzky It seems like you’re getting everything you wanted.
Tom Baxter It’s interesting this idea has come up that there wouldn’t be any legal charges against me, but if somehow this could lead, and it could be guaranteed and demonstrated to me that this is going to lead to a simple burial service for Ned, then that would be enough to convince me to hand it over.
Jan Wositzky This is probably everything it seems that you could have wished for, yet you’re reluctant still to say Yes, I’ll give it back. What would you require to hand it over?
Tom Baxter Well I’ve only just become aware of some of these things you’re telling me about now, and I think the devil is in the detail of these things.
Jan Wositzky It seems like your quest is to give it back to the family but the only thing standing in the way of that happening is you.
Tom Baxter Well I don’t believe I’m standing in the way of anything really, and I know Roma Crotty quite well, and she’s aware of everything that I have to say about this. Ellen Hollow’s become aware of her recently, and her immediate suggestion was that I should hand it back to the government without being specific which part of the government I should deliver it to, and of course there’s a variety of opinions.
Jan Wositzky You realise you run the risk of looking like an attention seeker by not responding very positively?
Tom Baxter Well just because you say that, doesn’t mean that it’s true. I don’t think I’m seeking attention at all.
Jan Wositzky You’ve held this skull for a very long time. What does it feel like to be holding any human remains like you have been, for a long period of time?
Tom Baxter Well it’s a burden, if the truth be known, it’s quite a heavy burden. It’s a burden I’m prepared to bear for somebody like Ned. It’s just a position I’ve found myself in, never kind of planned for it to be like this really, this situation that I’m in, that I’ve got to try and deal with the best way I know how. There’s nothing eerie or spooky about it, there’s no ghosts or anything like that associated with it. I’m quite happy to be of some assistance to Ned in this regard, it’s quite a heavy burden if the truth be known.
Jan Wositzky And so the skull who’s ever it was, still rests in the Kimberley. And Kelly descendent Ellen Hollow, who is ready and waiting to provide her DNA to close this chapter, has the last word.
Ellen Hollow The only other thing I would like to say is please Tom, could you do the right thing? Put an end to this saga that has gone on for so long; return the skull, let it rest and be finished with the whole story.

Damien Carrick Kelly clan member, Ellen Hollow, ending that report by Jan Wositzky. That’s it for The Law Report this week. As usual, thanks to Law Report producer, Michael Shirrefs. Also thanks to technical producers this week Carey Dell and Tim Simmonds.

Guests on this program:
Tom Baxter farmer, Kimberley W.A.
John Phillips  Chief Justice of the Victorian Supreme Court
Richard Berman-Hardman The National Trust
Ian Jones Historian
Ron Taylor Victorian Institute of Forensic Medicine
Father Peter Norden Jesuit Social Services
Ken Aldis Barrister
Senior Constable Wayne Wilson Victoria Police

Presenter:
Damien Carrick

Producer:
Michael Shirrefs