A loophole may have saved Ned Kelly from noose
John Huxley
June 28 2005
source smh.com.au

Ned Kelly could have escaped the noose by exploiting a loophole in the very law passed to hunt down and kill him and his gang.

The possibility is raised in a forthcoming book by legal historian Alex Castles that chronicles the last days of the outlaw from his capture at Glenrowan, Victoria, 125 years ago today, to his execution on November 11, 1880. Castles reveals that, unnoticed by all but a few officials who wished to dispose of Kelly as quickly as possible, a key piece of legislation - the Felons Apprehension Act, or "outlawry act", which declared the bushrangers "beyond the law" - had been allowed to lapse.

The revelation coincides with fresh demands, to be presented to the Victorian Coroner this morning, that an inquest be held into the Glenrowan shoot-out to determine whether two gang members, Dan Kelly and Steve Hart, died in the subsequent fire.

Though it was widely assumed they did, their bodies were never formally identified and speculation that they had escaped to Queensland increased in the 1930s when a bushie walked into a Brisbane newspaper office claiming to be the "real Dan Kelly".

Queensland historian Paul Tully wants the Coroner to resolve the mystery by DNA testing at the graves of the two outlaws and the claimant, in Greta, Victoria, and Ipswich, Queensland, respectively.

Mystery also surrounds what happened to Ned's decapitated body, but it was the process by which he was executed that interested the late Alex Castles, whose book was completed by his daughter Jennifer after his sudden death in 2003.

As he points out, the expiry of the so-called outlawry act, which had allowed Kelly to be hunted down and captured "dead or alive", now meant that he could no longer be hanged without trial as an outlaw.

He had to be subjected to the ordinary processes of the legal system for his role, while outlawed, in the killing of police officers at Stringybark. But wait. Because he had effectively been convicted when declared an outlaw, he could no longer be tried, for a second time, in the normal way. Nor, because of his status as an outlaw, could he be held legally accountable for anything said or done subsequently.

Confused? Kelly's prosecutors were. "All in all it was a legal minefield and a potential nightmare for Ned's accusers," wrote Castles. So was Ned Kelly a criminal? Dr John Williams of the law faculty at the Australian National University says: "His murderous actions were, with the assistance of the statutory guidance, perpetrated in a kind of legal vacuum."

Like Castles, he believes that whatever the legal shortcomings at the end of the Kelly hunt, which was characterised by political manoeuvrings, police bungling and official cover-ups, they would have been corrected by retrospective legislation.

In the event it was not needed. Denied early access to legal representation, commanding virtually no support in the community and facing a hostile judge, Kelly was in no position to exploit the loophole. By pleading - not guilty - to the charges, the loophole closed.