Royal Commission 1881
Yet Steele and Whelen, men of such proved efficiency and of educational attainments above the average of their rank, were barred by a stupid system of advancement, and dunces were sent to take command over them.
John Sadlier, Recollections of a Victorian Police Officer p. 282.
The incident, however, which seems to have more immediately precipitated the outbreak was the attempt of Constable Fitzpatrick to arrest Dan Kelly, at his mother\’s hut, on the 15th of April 1878. This constable appears to have borne a very indifferent character in the force from which he was ultimately discharged. Mr. Fosberry, the Inspector-General of Police, New South Wales, and Captain Standish express in strong terms their adverse opinions of Fitzpatrick, while the present Acting Commissioner of Police. Mr. Chomley, writes a valedictory memo. On his papers, describing him as a liar and larrikin. To this man was entrusted, in April 1878, the temporary charge of Greta, the very focus of crime in the district. He had been stationed at Benalla, and prior to starting for Greta he appears to have had an interview with Sergeant Whelan, the sub-officer in charge, relative to his duties. Whelan, in his evidence, is somewhat contradictory upon the point as to whether Fitzpatrick was justified in attempting to arrest Dan Kelly under the circumstances. In almost the one breath he states that the constable was wrong in going to the Kelly\’s hut, and then urges that it was his duty to act as he did.
James was born on the 24th July 1829 in Queen’s County Ireland. He was a member of the Royal Irish Constabulary and arrived in Victoria in 1856 at the age of 27. On the 3rd of December of the same year he joined the Victoria Police Force #1305. In 1862 he was promoted to senior constable and Sergeant in 1868. (Justin Corfield Ned Kelly Encyclopaedia) He worked for a time with Robert O’Hara Burke in Beechworth and was later to be transferred to Benalla where he remained for 28 years. Now some of you are most probably asking the question… what the blazes does this bloke have to do with the Kelly Outbreak anyway? Well if we go back to the year of October 1869, we find he had a lot to do with the Kelly family, and especially young Ned.
It was in October of 1869 that Whelan arrested Ned for assault and robbery of a Chinaman by the name of Ah Fook. In May of 1869 he was also involved in the prosecution of Yeoman Gunn, the brother of Alex Gunn, Ned’s brother in law. In October of 1871 Whelan was also involved in the prosecution of Ellen Kelly for furious riding with others in a public place. We can now gather that Mr Whelan had got to know the Kelly family rather intimately over the years. What other connection does Whelan have in the Kelly story? It seems that Sergeant Whelan was the officer the inebriated Constable Fitzpatrick went running to in the early hours of the morning on the 16th April 1878, to report an attempted murder charge committed on him by not only Ned Kelly, but his brother Dan, mother and others. Without too much ado re Fitzpatrick’s questionable claims, I believe that the wheels had now been purposely set in motion by police for the long awaited destruction of Ned Kelly and his family.
Lets now take a look at this outstanding officer of impeccable character, Alexander Wilson Fitzpatrick. He was born on 18th February 1856 at Mount Egerton, Victoria. Just prior to him joining the police force he has an affair with a Jessie McKay who bores him a child. Having to pay maintenance, he joins the police force in April 1877 #2867. In Richmond he then gets involved with another woman, Anna Savage. In September of 1877 he befriends one local larrikin Ned Kelly and invites him for a drink in Benalla. After waking up in the Benalla lock up next morning, Ned finds out he’s been arrested for being drunk and disorderly in a public place and suspects Fitzpatrick of spiking his drink. Fitzpatrick then finds himself on the end of Ned’s fist after trying to handcuff him.
On the evening of 27th September, Ned’s brother Dan and his cousins Tom and Jack Lloyd are accused of break and enter, theft and attempted rape of the wife of a Winton storekeeper. Denying such actions the boys headed for the bush. Inspector Brooke Smith tried to get Ned to turn the boys in but he refused. It was only after Fitzpatrick eventually talked Ned into getting them to turn themselves in by telling him… “he didn’t think there was anything serious against them”. Fitzpatrick promptly arrests the three boys . The trio receive a stiff fine and three months hard labour while Tom gets an additional four months for common assault. Ned had again been deceived by Fitzpatrick.
In May 1878 Fitzpatrick is transferred from Benalla to Beechworth, and by this time Anna is pregnant, and on the 10th July finally marries her after pressure from her solicitor father Theodore Gregory Savage. It’s in April, just three months earlier, we find Fitzpatrick drinking brandy and lemonade at a Winton shanty, and in an inebriated state, riding unsteadily in the direction of the Kelly homestead to arrest a young Dan Kelly for horse stealing. So who set this untrustworthy drunken officer of justice on such a dangerous course? Fitzpatrick was dismissed from the police force on the 27th August 1880 on (the lowest persons, could not be trusted out of sight, and never did his duty). When at Lancefield, Fitzpatrick was described by his superior officer, Senior Constable Joseph Mayes (as a worthless character and the men who recommended him for the police committed a grave offence against the public). Alexander Fitzpatrick died on the 6th May 1924 of, you guessed it, cirrhosis of the liver.
Alexander Brooke Smith
We now need to take a look at another rather questionable player in this conspiracy, Inspector Alexander Brooke Smith. In Corfield’s Ned Kelly Encyclopaedia he describes him as (Inspector with the Victorian Police who bungled the early hunt for the Kelly Gang. He subsequently attempted to illegally keep the Kelly sympathisers in prison after they had been interned in early 1879).
Brook Smith was born in 1834 and joined the Victoria police on the 5th November 1852. He became a sub inspector in 1861 and inspector in 1868. In 1870 he spent a few days in gaol for gambling debts and eight years later is in charge of the Wangaratta police station. During the Kelly outbreak, it is clear that not only Ned Kelly, but many police had very little regard for Brooke Smith’s courage and capabilities as a leader. This inspector was most brave when it came to threatening the lives of the young Kelly siblings in his hunt for the gang, but not when it came to getting too close in pursuit of the outlaws themselves. Ned referred to him as a poodle dog half clipped in the lion fashion. He also said of Brooke Smith…he knows as much about commanding police as Captain Standish does about the mustering of mosquitoes and boiling them down for their fat on the banks of the Lachlan. In 1881,the Royal Commission into the Kelly Outbreak called him incompetent and noted he should be retired. His occupation stated on his death certificate in 1882 was … gentleman?
In the years leading up to the Kelly outbreak, the North East of Victoria was classified by police as more a den of iniquity ruled by murderous thugs and thieves with the Kellys at its very heart. Superintendent Nicholsen wanted the Kellys out of Victoria at almost any cost. His instructions were to charge them on the paltriest of crimes and commit them to a term in prison. He believed it would take, what he called, the flashness out of them, and of course, all of their problems would finally be solved.
So who did set Fitzpatrick on this visit to the Kelly homestead that fateful day on the 15th of April 1878?
It was common knowledge that Fitzpatrick was a philandering drunkard and a liar wrapped in a police uniform, and a character definitely not to be trusted. Even his fellow officers were aware of his poor character. I honestly believe the whole scenario at the Kelly hut on the 15th of April 1878 was one big setup by police long before Fitzpatrick’s arrival at the hut. I believe Sergeant Whelan knew a lot more than what he was telling them at the Royal Commission.
The plan starts with Inspector Brooke Smith sending a telegram to Sergeant Whelan in Benalla to get Constable Fitzpatrick to replace Senior Constable Strahan in Greta while he sends Strahan to N.S.W to look for Ned Kelly (Ian Jones A Short Life). In (Justin Corfield’s The Ned Kelly Encyclopaedia) we are told that Strahan was to be replaced because of illness. Did Strahan in fact go to N.S.W, or did he throw a somewhat convenient sickie. Out of all the capable officers in Victoria at the time, Inspector Brooke Smith happens to choose one of the most incompetent larrikins in the force in the form of Alexander Fitzpatrick. With Fitzpatrick’s shocking reputation and being in the force but one year, why would Brooke Smith choose a bloke like this to take over the most dangerous station in the North East? It could not be through lack of choice. Any officer chosen would have been a better replacement than Fitzpatrick.
Did Brooke Smith and Whelan deliberately misinform Fitzpatrick that they knew Ned Kelly was in N.S.W? By telling Fitzpatrick Ned was in N.S.W, Fitzpatrick would have been filled not only with Dutch Courage, but with a wealth of relief and confidence. A piece in the Police Gazette was all they needed for a reason to stir up the Kelly household. Brooke Smith and Whelan, I believe, had concocted a plan with the aid of Fitzpatrick. But was Dan Kelly the only target, or was it also the Kelly matriarch, Ellen? The police knew how much Ned and his siblings were devoted to their mother. She, after all, was the heart and soul of the formidable clan.
The police now have reason for entering the Kelly hut, an opportunity for Fitzpatrick to start an aggravating confrontation as planned, and a chance to incriminate the senior members of the household with a charge of assault, or what unfortunately turned out to be cries of attempted murder. Fitzpatrick was more than surprised at the unexpected presence of Ned Kelly, but with a wound to his wrist by bullet or door latch, it mattered nought. The plan to draw in and incriminate the senior members of the Kelly family had now come to fruition.
I believe that Alexander Fitzpatrick was simply used by his superiors as their inebriated, gullible, desperate, and quite dispensable sacrificial lamb. There is no way that Fitzpatrick would have gone to that hut if he knew that Ned Kelly was close at hand. He had already felt the fury of Ned Kelly at the end of his fist. The story of Ned Kelly being in N.S.W was simply a ploy by Brooke Smith and Whelan. I wouldn’t be at all surprised if Whelan was in fact waiting patiently for Fitzpatrick to return with his cries of assault, or as it turned out, and better still for the police…. attempted murder!
All of Fitzpatrick’s outrageous claims of course are believed without question by Whelan. The only problem for the police is, concerned with being charged with assaulting a police officer, and unaware of the concocted attempted murder charge, the boys have fled by the time the police return. Ellen, who is aware of what actually took place, innocently remains at home quite unaware of the severe claims that will be brought against her for attempted murder. With Ned’s wholesale and retail horse and cattle dealing being a sharp and irritating thorn in the side of the police, this was one sure way of hitting back at Ned Kelly and his family. Who knows, It might even help the incompetent Brooke Smith and Fitzpatrick to resurrect their flailing careers. Sergeant Whelan could also be up for that long awaited promotion that Sadlier believes he dearly deserves.
The only thing I believe they did not foresee, was the extent of hatred for the police that was surging in Ned Kelly after the eventual three year incarceration of his innocent mother and baby sister, and of course, the ultimate trouble it would eventually deliver to them at Stringybark Creek.
Over thirty years later, a frail and aged Ellen Kelly told a reporter from the Sun newspaper that Fitzpatrick had come to their hut to cause trouble. Ellen Kelly also swore to God that she never hurt or hit him.
From all that I have read Ellen … I, for one, believe you dear lady!
Cookson’s 1912 interview with Ellen Kelly
“People blame my boys for all that has happened. They should blame the police. They were at the bottom of it all. We were all living so happily at the old homestead–that’s about a mile and a half from here, on the other side of the road. We were not getting to rich, but were doing all right. The trouble began over a young constable named Fitzpatrick. That was in April 1878. He came to our place over there and said he was going to arrest Dan. He started the trouble. He tried to kiss my daughter, Kate. He had no business there at all, they tell me–no warrant or anything. If he had, he should have done his business and gone.”
“Why did he want to interfere with my girl? He stayed there to make trouble; and there was trouble. It was said that I hit him. I never did. I never touched him. But they took me away–took me from my children and my home, and put me in prison.”
At the memory of her forcible severance from her family the old woman broke down and wept bitterly. On recovering some-what she proceeded, slowly:
“Oh, you can’t imagine what I suffered. You can’t understand what it means, to us poor people in the bush, to be taken away from all that we have–our children. But they took me away, and I had to stay in prison for years. And for nothing–for nothing at all. Because I never touched that constable–his name was Fitzpatrick–at all. I had no part in his being hurt. That was all his own fault. I declare this to you know, declare it before the God I shall soon see, and by my hope of salvation after a life of dreadful trouble, that I did nothing to Fitzpatrick. It was all untrue. And they tore me away from my children and shut me up in prison for years. Can you wonder at anything happening after that to drag an innocent mother from her home and her people and put her in prison for all those weary years? That was the beginning. The police are to blame for everything that happened afterwards.
“Look at me know.” continued the old woman sadly. “Look what I’ve come to. Old and weak and feeble, and have to stay in this place, where there is no comfort or anything like it. The life is to hard–to hard and tough. I could have stood it once, but not know. I am not strong enough. Look at this miserable place. Could anything be more comfortless?
“Here, in this poor place, with these little children, is this a life for any woman?” continued the mother of the outlaws, sadly. “Is this a fit reward for being a mother? There’s no justice in the country—no such thing as justice. There’s nothing but cruelty and persecution. Think what the police have done to me and mine, and then tell me if you wonder that the boys turned and smote the ones that had so persecuted them.”
The aged head drooped and for a while the voice spoke brokenly, whilst the youngest of the little grandchildren patted the grey hair and prattled childish comfort to the old woman.
“My God! My God! and I was innocent—innocent as this dear little baby here! And I was thrust into prison like a common thief! Justice! No: there’s none on this earth! I swear it again that I never hurt the man. I never hit him. I remember it all as if it were yesterday. He tried to kiss my daughter. She was a fine, good-looking girl, Kate: and the boys tried to stop him. He was a fool. They were only trying to protect their sister. He was drunk and they were sober. But his story was believed. If he’d been badly hurt he would have richly deserved it. But I never hurt him—before God I didn’t. They swore I hit him with a shovel. It was untrue.
Before that black day when Fitzpatrick came we were so happy. It was a lonely life, but we were all together, and we all loved each other so dearly. Dear little Kate! I can see her now, bustling about the place, keeping things tidy, helping outside whenever she got a chance; always bright and cheerful, just like a sunbeam about the house. And they dragged her poor mother away from her and lied, and sent her to prison for six whole years. After that, nothing but misery. And it has been nothing but misery ever since.
And with weary eyes fixed unseeingly upon the wet, drenched landscape, that stretched drearily away from the little cottage, she iterated and reiterated, calling Almighty God to witness that she was innocent of any part in the punishing of Fitzpatrick. Whatever was done, she declared, was done by others, not by her. But she stoutly denied that any of her people shot the imprudent young trooper. What happened, as far as she was able to see, was that his revolver went off accidently and the bullet struck him in the arm or wrist. “And they swore that I hit him with a shovel,” she wailed, again and again; “and they wrecked my life and brought me to this.”
“The girls could have told more about those things than I can,” she said wearily. “They had to suffer. And it was the conduct of the police all through—the brutal ill-usage that we had from them—that made all the trouble. I don’t know much of what happened after Fitzpatrick came that day. But the things that the girls have told me the police used to do were simply brutal and without excuse at all. If they had been trying to provoke the boys to break the law and retaliate they could not have done more than they did, and I firmly believe they were trying.”
Ian Jones A Short Life Lothian Books 2003
Justin Corfield The Ned Kelly Encyclopaedia Lothian Books 2003
Royal Commission 1881
John Sadlier Recollections of a Victorian Police Officer 1913
Cookson Interview 1912 Sun Newspaper