The trial of Ned Kelly
The Law Report
ABC
Susanna Lobez
8 August 2000
source: abc.net.au

Summary
This week, a special presentation of highlights of a recent re-enactment of the trial of Ned Kelly, devised and presented by barristers of the Victorian Bar, and a couple of theatre professionals. The original performance was a montage comprising court documents and transcript, Ned's own words in his Jerilderie letter and the scripted reflections of an elderly and ghostly barrister Mr Bindon, who as a young, inexperienced barrister had clumsily defended Ned.

Susanna Lobez Hello. This week, a special event on The Law Report: highlights from the 1880 trial of Ned Kelly. The re-enactment of the trial of Ned Kelly was performed earlier this year by barristers of the Victorian Bar and some theatre professionals. It was a montage of court transcript, Kelly's own words from his Jerilderie letter which the jury never heard, and the reflections of an elderly and ghostly Mr Bindon, who as a grossly inexperienced young barrister, defended Ned. The Presiding Judge was Sir Redmond Barry, and Mr Smythe was prosecuting Ned for the murder of Police Constable Lonigan at Stringy Bark Creek. We pick up proceedings where Prosecutor Smythe is taking evidence in chief from the key Crown witness, Constable McIntyre.

Prosecutor Smythe Your name is Thomas McIntyre, and you are a Constable of Police stationed at Melbourne?
Constable McIntyre Yes, Sir.
Prosecutor Smythe Would you tell the court in your own words the events of the 25th and 26th of October, 1878. You may refer to your notebook, if my learned friend has no objections.
Mr Bindon No, Your Honour.
Prosecutor Smythe Constable?
Constable McIntyre On Friday the 25th of October, whilst stationed at Mansfield, I left with a party in search of Edward Kelly and his brother Daniel, on charges relating to the attempted murder of Constable Fitzpatrick. The party was under the command of Sergeant Kennedy, which also consisted of myself, Constable Scanlon and Constable Lonigan. At six o'clock the next morning, Sergeant Kennedy and Scanlon left on horseback to patrol, leaving Lonigan and myself at the camp. Sergeant Kennedy had with him a Spencer rifle and a revolver, Scanlon a revolver, leaving us at the camp with Lonigan's revolver, my revolver and a fouling piece, both of which were in my tent. This day in question passed without event, until about 5 o'clock in the afternoon. I was unarmed, as I said.
Prosecutor Smythe And Constable Lonigan was armed?
Constable McIntyre He was, but it would not have appeared that way. His revolver was under his coat.
Prosecutor Smythe And about this time in the afternoon, did you hear anything?
Constable McIntyre Yes. From a patch of speargrass, more or less 35 yards away from our fire, more than one voice sang out, 'Bail up! Hold up your hands!'
Prosecutor Smythe What did you do then?
Constable McIntyre I turned around and saw four men, each armed with a gun. They were pointing their firearms at Lonigan and myself.
Prosecutor Smythe Are any of these men present here in court?
Constable McIntyre Yes.
Prosecutor Smythe Where?
Constable McIntyre Over there.
KNOCKING
Redmond Barry The witness has identified the prisoner.
Prosecutor Smythe And where was the man you have identified?
Constable McIntyre To the right of the group. His gun was pointing straight at my chest. Immediately I held out my hands from my sides, like so.
Prosecutor Smythe And where was Constable Lonigan?
Constable McIntyre To my rear and to my left.
Prosecutor Smythe What happened next?
Constable McIntyre I saw the prisoner move his rifle, bringing it in line with Lonigan, and fire.
Prosecutor Smythe And did you see if Constable Lonigan was hit?
Constable McIntyre By glancing quickly, I knew the shot had hit him, and he had fallen. After a few seconds I heard him cry out 'Oh Christ, I'm shot!'
Prosecutor Smythe And what did the four men do?
Constable McIntyre They advanced on me, running with their guns raised. There was 'Keep up your hands!'
Prosecutor Smythe And what did the prisoner then do?
Constable McIntyre The prisoner took my firearms from the tent and from Lonigan, his revolver.
Prosecutor Smythe And was Constable Lonigan alive at this time?
Constable McIntyre No. He had expired.
Prosecutor Smythe And did the prisoner refer to Lonigan?
Constable McIntyre Yes. At one stage he nodded at Lonigan's body and said, 'Who's that?' I said, 'It's Tom Lonigan.' He said, 'No, no, I know Lonigan well.' But later, 'Ha, yes, it is, and I'm glad, for the bugger and his mates gave me a hiding one day at Benalla.' He said that Lonigan had grabbed him by the privates.
Prosecutor Smythe Well can you recall anything else the prisoner said?
Constable McIntyre At one stage he said that the police had come out expressly to shoot him down. I said, 'The police cannot be blamed, as they have to perform their duty, and must come out as ordered.' The prisoner ranted a bit at this, and then he said, 'They are not ordered to go about the country shooting people.'

Susanna Lobez In a letter Ned Kelly wrote before trial, he focuses on the quantity of guns and ammunition carried by police, and what this said about their intentions.
Ned Kelly I asked if what they carried, Spencer rifles and breach-loading fouling pieces, and so much ammunition for, as the police was only supposed to carry one revolver and six cartridges in that revolver. But they had 18 rounds of revolver cartridges each, three dozen for the fouling piece, and 21 Spencer rifle cartridges. And God knows how many more they had away with the rifle. So this looked as if they meant not only to shoot me, but to riddle me. But I said 'I don't know either Kennedy, Scanlon or him, I've got nothing against them.' He said to me that he would get them to lay down their arms when they got back if I would not shoot them, as I could not blame them for doing their honest duty. I said 'I did not blame them their duty, but I could not suffer them blowing me to bits in my own native land.'
Susanna Lobez Meanwhile, back at the 1880 court room, Prosecutor Smythe soldiers on.

Prosecutor Smythe If I could take you now to the return of Constable Scanlon and Sergeant Kennedy.
Constable McIntyre At about half-past-five, Sergeant Kennedy and Scanlon came up. The prisoner and his companions went into the speargrass with their weapons.
Prosecutor Smythe: Was each of them invisible to persons who might approach?
Mr Bindon Your Honour, I really must object to this evidence. It relates to offences other than that with which the prisoner is charged, and is clearly irrelevant and prejudicial.
Judge Redmond Barry Mr Smythe?
Prosecutor Smythe Your Honour, I concur with my learned friend that this court is not concerned with offences with which the prisoner might or might not be charged at some later date. But what I seek to do here is to establish the state of the prisoner's mind at the time of the shooting of Constable Lonigan with regard to the intent with which that first shot was fired.
Judge Redmond Barry Yes Mr Smythe, I quite agree. I will admit evidence on this point.
Prosecutor Smythe As Your Honour pleases. How did the prisoner respond to the arrival of Sergeant Kennedy and Constable Scanlon?
Constable McIntyre He sent me to persuade Kennedy to surrender. So I went to the Sergeant and said, 'Sergeant, we are surrounded. I think you'd be well advised to surrender.' Kennedy smiled, because he thought it was a joke. At that moment the prisoner rose from the speargrass and called out, 'Bail up!'
Prosecutor Smythe And what then occurred?
Constable McIntyre Kennedy reached for his revolver, and as he did so, the prisoner fired at him, but he missed.
Prosecutor Smythe And the others?
Constable McIntyre They came from their hiding places with the guns raised, bellowing 'Bail up! Bail up!'
Prosecutor Smythe And then?
Constable McIntyre Well Scanlon was in the act of dismounting when the first shot was fired at Kennedy, and Scanlon became, well, flurried, and fell to his knees. The whole gang then fired on him and he received the shot here, underneath the right arm, and he fell on his side. So I mounted Kennedy's horse to get away. And the last thing I saw was Kennedy and Scanlon on the ground, and then I got away. I heard shots fired, but I cannot say if they were fired at me. A little farther on, I was thrown from my horse and I stayed put in a wombat hole all night.

Susanna Lobez After Kelly's arrest at Glenrowan, McIntyre spoke to the bruised and battered Kelly. He gives evidence about this conversation.

Prosecutor Smythe Would you tell the court what was said in this conversation with the prisoner?
Constable McIntyre I said to the prisoner, 'Do you remember the last time we met?' He said, 'I do.' I said, 'Tell me now, is it true that when I held up my hands from my side, you moved your rifle and shot Lonigan?' He said, 'Lonigan got behind some logs and pointed his revolver at me.' I said, 'That's only nonsense, and you know it.' I then asked him did I act in a cowardly manner at Stringybark Creek? He said, 'No, you did not.' I asked him, 'Why did you come after us when you could have stayed out of our way?' He said, 'Because we had bad horses and a few guns, and besides, you would have found us before too long and shot us. We wanted to make a rise.'
Prosecutor Smythe Thank you, Constable.

Susanna Lobez The young Bindon, only at the bar nine months, then attempted to cross-examine this key prosecution witness.

Mr Bindon Constable McIntyre, did Sergeant and his party set out with the intention of shooting the prisoner?
Constable McIntyre No, Sir. We set out to arrest him.
Mr Bindon For what offence?
Constable McIntyre Attempted murder.
Mr Bindon For which presumably you had warrants.
Constable McIntyre We had the authority by virtue of their publication in the Police Gazette.
Mr Bindon But they weren't actually in your possession.
Constable McIntyre No, Sir, I cannot swear that any of the party actually had a warrant.
Mr Bindon Were you in uniform, Constable?
Constable McIntyre No, Sir.
Mr Bindon You were dressed up as gold prospectors, were you not?
Constable McIntyre In plain attire, Sir, no attempt at disguise.
Mr Bindon No attempt? Now, how many rounds of ammunition is a trooper supposed to carry whilst on duty?
Constable McIntyre Twelve rounds, Sir.
Mr Bindon Twelve. And how many were you carrying on the 26th October?
Constable McIntyre About thirty rounds, Sir.
Mr Bindon And an amount of shot and powder as well.
Constable McIntyre Yes, Sir.
Mr Bindon And yet you say you did not go out with the intention of shooting the prisoner.
Constable McIntyre We took the extra ammunition Sir, because we thought the prisoner might resist. The powder was for kangaroos.
Mr Bindon You attempted to give a rather exacting account of the events of the 26th October, Constable. This is two years ago. Do you think your memory has served you well?
Constable McIntyre Yes, Sir.
Mr Bindon Can you remember your state of mind at the time? Were you somewhat affrighted by it all?
Constable McIntyre When Lonigan was shot, Sir, I wasn't exactly calm, but after a few seconds I had me fears under control.
Mr Bindon When you caught Sergeant Kennedy's horse, what was your intention?
Constable McIntyre It was spur of the moment.
Mr Bindon Did you not have escape in mind?
Constable McIntyre I had no idea of such a thing, in fact I didn't think I could get away.
Mr Bindon But wasn't Kennedy armed, and in a condition to fight when you so rapidly departed the scene?
Constable McIntyre If I'd known he was going to fight I would never have fled. But they were firing all around us from everywhere, and I was sure none of them would show us any mercy. I didn't think there was an opportunity for us to fight.

Susanna Lobez The elderly and ghostly Bindon looks back on this cross examination with great regret.
Mr Bindon And so I ended. Kelly, needless to say, was dismayed at the progress of events, and made it clear that he wished to cross examine McIntyre himself, but with some effort Mr Gaunson maintained order and propriety. This was the pivotal witness. And I had only managed to muster a handful of questions. Repeated myself, non sequiturs, less than half my questions amounted to anything of significance. Not good, not even for my modest standards of the day. Why hadn't I found out if Kelly and his cohorts had indeed been armed, as McIntyre had claimed? Was McIntyre's fouling piece against the log, or in his tent, or elsewhere? And worst of all, there was one key point, fool that I was, that I failed to pursue. Not once did I query, let alone challenge, McIntyre's account of Lonigan's death.
Susanna Lobez Eighteen prosecution witnesses were called to give evidence of conversations with Kelly in the months after Stringybark Creek. One was George Stephens, a groom, locked up by Kelly and the gang when they held up Faithful Creek station in December, 1878. Young Bindon, in cross examination, makes a terrible boo-boo.

George Stephens While we was passing the time of day, I sez to him, 'How about them police murders?' and Ned Kelly sez to me that he called out 'Throw up your hands!' and that McIntyre did so, but Lonigan made off for a log, trying to pull his revolver out as he went, and that Lonigan got down behind the log and rested his revolver on it, and then he, that is Kelly, fired at Lonigan, but only grazed his temple, and Lonigan disappeared again behind the log, and then rose gradually. And as he did so, Kelly said he fired again, and shot him through the eye.
Mr Bindon Mr Stephens, is it true you were a paid assistant to the police in the hunt for the prisoner after the shootings at Stringybark Creek?
George Stephens Yes, Sir.
Mr Bindon And is it not a fact that you were once a policeman yourself?
George Stephens: It is true, Sir. I left ten years ago.
Mr Bindon You were discharged.
George Stephens I was, Sir, for being absent from duty without permission.
Mr Bindon And is it not true Mr Stephens, that you continue to entertain hopes of rejoining the Victorian Police Force?
George Stephens Yes, it is true.
Mr Bindon Thank you Mr Stephens, that will be all.

Mr Bindon Why, why did I go after him like a terrier after a rat? Well I suppose I thought I must be seen to at least knock one of them down, but some of that could have gone towards self defence. I hadn't learned that not all prosecution witnesses were hostile; some can be used to advantage.
Susanna Lobez Prosecutor Smythe next called James Gloucester, who'd also been locked up at Faithful Creek.

Prosecutor Smythe While you were being held against your will by the prisoner, did anyone bring to the fore the subject of the police murders?
James Gloucester Yes, Sir, they did. And Kelly said, he said, 'I shot that Lonigan, and I shot that poor old Sergeant.' He said, 'That Lonigan ran to a tree, and was going to use it as cover, when I had to shoot him or he would have shot me, sure as I be standing here. I told him to toss down his arms, but he wouldn't.' He said 'A man that kills his enemy, particularly an enemy out to slaughter him, is no murderer, and all police are my enemies.'
KNOCKING
Judge Redmond Barry I think we'll adjourn for the day. However I am quite ready to sit late tomorrow to see this case concluded. Next week is Cup Week, and I am sure that the jury will be keen to be out of their confinement.

Susanna Lobez The jury was sequestered at the Supreme Court Hotel. Next day, bank clerk Edwin Living gave evidence.

Edwin Living I was the clerk at the Bank of New South Wales at Jerilderie. Kelly, that is, the prisoner, took me hostage and forced me to go with him to newspaper office.
Prosecutor Smythe Did you find anyone there?
Edwin Living Mrs Gill, the wife of the proprietor.
Prosecutor Smythe So what happened then?
Edwin Living Kelly produced a bundle of papers and said it was his broadside, his story of his life, and he wanted it printed. I almost laughed. But I was in fear of my life, and Mrs Gill was white as - Mrs Gill refused to take these documents. And Kelly gave them to me. I promised to have them published.
Prosecutor Smythe And what did you do with them later?
Edwin Living I gave them to the police. Yes, these are the documents Kelly referred to.
Prosecutor Smythe If Your Honour pleases, I tender the documents.
Mr Bindon Your Honour, I object.
Judge Redmond Barry What is it exactly, Mr Smythe?
Prosecutor Smythe Well it purports, Your Honour, to be a rationalisation, a protestation. It is an explanation of his actions dealing with the shootings at Stringybark.
Judge Redmond Barry So it would be of a self-serving nature? You know full well the rules of evidence Mr Smythe, it is clearly inadmissible, I cannot allow it.
Prosecutor Smythe: I do not beg the point, Your Honour, but I ask the court to note that the prosecution did attempt to tender these documents.
Judge Redmond Barry Yes, yes. Mr Bindon, your objection is upheld.

Susanna Lobez Old Bindon, looking back, rues his blunder of objecting to Ned's own letter.
Mr Bindon Thought I'd scored a point. The existence of a version of events in Kelly's own words was widely known, but of course never published. It's true that the letter contained Kelly's own admissions of his previous criminal acts, so in a sense I was right to object. But in doing so, I denied our only primary document after so much hearsay, and I denied this strange killer his voice.
Ned Kelly This cannot be called wilful murder, for I was compelled to shoot them, or else lie down and let them shoot me. But I am reckoned a horrid brute because I had not been cowardly enough to lie down for them under such insults to my people. Certainly their wives and children are to be pitied, but they must remember that these men came into the bush with the intention of scattering pieces of me and my brother all over the bush, and yet they know and acknowledge I have been wronged. And is my mother and brothers and sisters not to be pitied also? Who has no alternative, only to put up with the brutal and cowardly conduct of the parcel of big, ugly, fat necked, wombat headed, big bellied, magpie legged, narrow hipped, splay footed sons of Irish bailiffs, or English landlords which is better known as the Victoria Police?

Prosecutor Smythe Your name is Samuel Reynolds?
Dr Reynolds That is correct.
Prosecutor Smythe: On the 29th October, did you perform a post mortem on the body of Thomas Lonigan?
Dr Reynolds I did. I found a gunshot wound near the right eye, and another on the temple, but this was little more than a graze. There was a further wound on the left arm which was caused by a bullet passing through the forearm, and a wound on the thigh, from which I removed a revolver bullet.
Prosecutor Smythe In your opinion, what was the cause of death?
Dr Reynolds The sole cause of death was the wound through the right eye, a revolver bullet.

Susanna Lobez According to evidence, the only person to fire a revolver was Lonigan himself, so he was armed and firing when he was fatally shot.

Prosecutor Smythe If Your Honour pleases, that concludes the case for the prosecution.
Judge Redmond Barry Mr Bindon?
Mr Bindon If it please Your Honour, may I be granted some time to consider the question of whether any witnesses for the defence will be called.
Mr Bindon Of course, calling any witnesses for the defence was the last thing on my mind. I couldn't call Kelly, needless to say, accused may not give sworn evidence, not in the colony of Victoria. Eleven years later, yes; not now. Not an option for my younger self. All I needed was time.
Mr Bindon Your Honour, I submit that the points in evidence, to which IU did take objection, be reserved in a case stated for the Full Court.
Judge Redmond Barry To which points do you allude?
Mr Bindon All transactions which took place after the death of Lonigan, which were detailed in evidence.
Judge Redmond Barry If you mean to suggest that the evidence of the deaths of Scanlon and Kennedy was not relevant, that was put in to show whether or not Lonigan was killed by the prisoner in self defence.
Mr Bindon I should have suggested the only evidence relevant in this prosecution is what took place at the killing of Lonigan.
Judge Redmond Barry Mr Bindon, you have not referred to any authority at all to support this submission, if that is what it can be called. No, the conduct of the prisoner as a whole over the afternoon in question, is relevant. Accordingly, I decline to state a case. We have closing speeches to plough through, and it is now, good heavens, five past one. So, Mr Bindon, what course do you propose to take?
Mr Bindon The defence will call no evidence, Your Honour.
Judge Redmond Barry So be it. So be it. Well, Mr Smythe?
Prosecutor Smythe If Your Honour pleases.

Susanna Lobez Prosecutor Smythe gives his closing address.

Prosecutor Smythe Mr Foreman and gentlemen of the jury, just what were the police doing in the Wombat Ranges on that fateful day? The simple answer is, they were searching for an armed gang and had the full authority of the law to do so. Another simple question: what happened at Stringybark Creek? To that we have an abundance of evidence: first, that of an eyewitness, Constable Nattingcard. I shall not refer in detail to his account of the death of Constable Lonigan, because not only was he not shaken in cross examination, in fact on this point he was not cross examined at all. But remember that eleven witnesses have pledged their oath had stated that he killed Lonigan. Now since motive has been alluded to, let me say this: when a man shoots another in cold blood, do you need to stop and inquire into his motives? This prisoner had but one motive, a malignant hatred of the police. He was living the wild life of an outlaw. Now as far as one's able to ascertain, the defence rests on the notion that the prisoner suffered some real or imagined injustice at the hands of the police some time ago. This apparently entitles him to roam about the colony revenging himself upon whichever of Her Majesty's officers he encounters. In a similar vein, we are told that the failure of Sergeant Kennedy and his party to surrender, entitled Kelly and his band of miscreants to shoot them down. Can such a state of affairs be allowed to exist in this fine colony? Of course not. Let us face the facts: this man revels in his self declared status as an outlaw, and glories in the murder of the police, a constable doing his duty in maintaining the civilised values of this colony, has been slain. Gentlemen, the Crown suggests that there can be only one verdict possible, Guilty! Guilty of murder!
Judge Redmond Barry In your own time, Mr Bindon.
Mr Bindon Gentlemen, may I come directly to the point. Any crimes committed at Jerilderie or Euroa, or Glenrowan are utterly irrelevant to what happened at Stringybark Creek. When it comes to Stringybark Creek, you have but one witness. This man, McIntyre, has given a conveniently well composed account, clearly devised well after the event. I put it to you that McIntyre would have been in such a state that he could not possibly have recalled the events with the degree of accuracy we heard yesterday. I suggest his evidence be taken with suspicion. The prisoner and three colleagues were following their everyday, lawful pursuits, in their own part of the country, when a gang of heavily armed men in disguise came upon them. A fracas occurred, yes, but who fired the fatal shot that killed the man later to be revealed to be Constable Lonigan? No-one can say with any certainty. McIntyre claims he saw the prisoner fire, but there is evidence of other shots being fired, and from that dreadful confusion only two men still walk this earth. One is McIntyre, a prejudiced witness, and the other is the prisoner whose mouth is kept closed. The prisoner is not some Thuggie or assassin, as the Crown attempts to insist. Before and after Stringybark he demonstrated a great respect for human life. He even in some of the alleged incidents in the north, he never once harmed a single soul who crossed his path. You have a solemn and serious duty to discharge. Do not take the life of a man on the prejudiced evidence of a single witness.
Judge Redmond Barry Gentlemen of the jury, a few points for you to consider if you'll forgive me taxing your patience further. Here, gentlemen, four officers representing Her Majesty's laws, went out into the wild to apprehend the prisoner and his brother. It has been suggested by counsel for the prisoner, that their failure to wear uniform in some way clouds the issue. It does not. Regard them, if you like, as civilians. What right did armed men have to stop them and order them to bail up their arms? It matters not one wit the manner of their dress. I repeat, they were officers of the law and no person had any right to stop or question them. Counsel for the prisoner has also stated that Constable McIntyre's evidence is uncorroborated. This is so. But gentlemen, I tell you, the law does not require his evidence to be endorsed or supported. You have been told by counsel for the prisoner that the prisoner is not on trial for the murder of Sergeant Kennedy or Constable Scanlon. This is properly observed. But gentlemen, I have admitted evidence surrounding these other deaths because you may, if you so choose, infer from it the prisoner's motive in shooting Lonigan. You may also take it into account when you consider if the shooting occurred by accident or in self defence. I might remind you, that it is immaterial whether he was the one who actually shot Lonigan. The prisoner was engaged in an unlawful act. He pointed a gun at McIntyre's heart which alone is sufficient to suggest his guilt. Gentlemen, I direct you that on the evidence you cannot bring in a verdict of manslaughter. Your verdict, which must be unanimous, must be either guilty or not guilty of murder. And so, I now ask you to retire and consider your verdict.

Susanna Lobez And they did. And Ned Kelly was executed. And this re-enactment of Kelly's trial by the Victorian Bar was produced by Richard Bourke, written and directed by Nicholas Harrington and Tom Wright. And a full credit list is on our website. Coming soon on The Law Report, the modern-day retrial of Ned Kelly. And do keep an eye out for a TV production based on these Victorian Bar performances later this year. I'm Susanna Lobez, thanks for joining me for The Law Report.

The production team included:
Presenter: Susanna Lobez
Director/Assistant Writer: Nicholas harrington
Producer: Richard Bourke
Writer/Assistant Director: Tom Wright
Musical Composer/Performer: Liz Ingham

The cast included:
Old Bindon: Peter Green (actor)
Gaunson: David O'Brien
Young Bindon: Jim Shaw
Justice Redmond Barry: Simon Wilson QC
Ned Kelly: Bernard Caleo (actor)
Charles Smyth: Paul Elliott QC
Arthur Chomley: Anthony Krohn
Const McIntyre: Michael Rush
George Stephens: Nick Tweedie
James Gloster: Douglas Salek QC
Edwin Living: Mark Robins
Dr Reynolds: Byron Collins

Details or Transcript
While all care is taken with this transcription, 100% accuracy cannot be guaranteed.

The Law Report is grateful to Duncan Allen, Richard Bourke and members of the Victorian Bar Theatre Company.