Monday, 24 April 2017

50th Anniversary Lecture : A New View of Ned Kelly

Ian Jones created a vision centred around Ned Kelly that inspired many, but it was fatally flawed.

Ian Jones landmark Lecture, A New View of Ned Kelly, followed Louis Wallers lecture about Ned Kellys trial, which Jones described as ‘brilliant’, saying ‘perhaps it is appropriate that we should follow an examination of a legal judgement on Ned Kelly with what amounts to a moral one. Ned Kelly was found guilty, legally.

Was he guilty morally?”

To answer his question, Jones then proposes in this lecture ‘to look at some important  aspects of the man which perhaps we have not glimpsed yet’ ; to look at the conditions which led up to Ned Kelly’s personal revolt against injustice; to look at the conditions in the north eastern district and in Victoria as a whole, which created a situation in which rebellion could develop’  and ‘at the way in which Kelly’s personal rebellion became associated with a broader rebellion of the selector class in the North east’

Jones decribes his lecture as “an attempt – a first attempt, I believe – to bring some meaning to this mass of material, to reconcile documentary evidence with these frustrating fragments of verbal tradition which have come down to us”

So, to start with he focussed on the person of Ned Kelly, who he said in 1967 was still largely “a faceless inhuman figure. He is almost anonymous behind the plough-steel helmet”. So, figuratively taking off the armour, this is what Jones finds inside, in his own words :
*Physically Ned Kelly was almost superhuman. This sounds an extravagant statement in every way but the man WAS physically remarkable
*He was an outstanding boxer…. Ned Kelly’s boxing prowess was symptomatic of strength and endurance which he displayed to a spectacular degree in his Last Stand”
*Ned Kelly was a crack horseman.
*Ned Kelly was acknowledged to be one of the finest trick riders that the people of his time had seen
* He was also a crack shot
*He emerges as a surprisingly quiet and gentle man…a restraining figure…a man curbing the hotheads among the sympathisers
*a man who, when it was aroused, had tremendous anger
*He possessed a degree of vanity but not without some reason. He was proud of his boxing ability, he was proud of his personal appearance
*He trusted people…Fitzpatrick to an almost ludicrous degree and of course he trusted Curnow
*utterly devoted to his family
*over many of Ned Kelly’s actions we see this paternalism
*Ned Kelly was Irish…. Two hundred years of bitterness and hatred lay behind him. He was the son of an Irish convict

Moving on from his description of the Ned Kelly Ian Jones saw inside the armour, he spoke about the  ‘the conditions which led up to Ned Kelly’s personal revolt against injustice’. Here he discussed the local persecution of the Kelly family by Police, saying of Kenneallys version that ‘perhaps it went too far’ but ‘the fact remains that the Kelly family were persecuted’ He quotes the famous directive of Superintendent Nicholson, ‘to bring them to justice and send them to Pentridge. Even on a paltry sentence’.  Added to this, was the ‘bitter land war being waged by Whitty and other squatters of the district, and the small selectors’. On a much wider scale, there was ‘an economic depression and political ferment’ which led to the ‘notorious Black Wednesday of January 8th 1878’ which saw the wholesale sacking of civil servants including county court justices and police magistrates. This was a desperate means to eke out the dwindling  finances of Government as expenditure drained the last supply vote…..Police expenditure was hacked back. Men who left the force were not replaced and many country stations were broken up” This was ‘a demoralised community, a period of bad debts and bankruptcy  in all levels of society. People in almost every town could see bank managers and officers being charged with embezzling funds or shire secretaries absconding with public money. There were Bank failures, mass meetings of unemployed’

“Victoria was ready for rebellion” he said.

Constable Fitzpatricks response to all this uncertainty, according to Jones  was to attempt to enhance his credentials in the eyes of his superiors, and thereby his prospects of keeping his job, by biting off more than he could chew in attempting to take on the notorious Kellys. Instead, ‘those mysterious events of April 15th at the Kelly homestead’ resulted in Mrs Kelly going to jail for three years, and then three weeks later three police died at the hands of Mrs Kelly’s son at ‘the Stringybark Creek gunfight’. According to Jones, Stringybark Creek was ‘not the act of a gang of bushrangers making their first blow against the police. In point of fact Stringybark Creek was an act of personal rebellion by Ned Kelly. A personal blow against police who had come out after him and his brother…’

Jones says there was no immediate support for the Kellys, other than from relatives and close friends. There was fear and suspicion of the Kellys until after ‘they conducted two brilliantly planned and executed bank robberies, probably the two most immaculate exploits in the history of Australian bushranging’. Now, according to Jones , and especially after the holdup at Jerilderie ‘with its magnificent flair and its many wonderful touches’ suddenly people had a new view of these ‘gentleman bushrangers’. Additionally, the arrests and subsequent release without charges having been laid of a few dozen Kelly sympathisers  between January and April 1879 ‘had swung a huge body of people throughout the North east toward support of the gang’…..The injustice of this stupid manoeuvre was aggravated by the fact that the period of imprisonment straddled the harvest time”

Nevertheless Jones records that ‘One way or another the sympathisers harvests were brought in. It was another bad season and about a quarter of the harvest was destroyed by rust anyway”

The final straw for the poor selectors of the North East, according to Jones was the decision to deny land selections to known Kelly sympathisers. ‘This, I believe was the turning point in the support of the Kelly gang’. Now, Ned Kelly’s previously identified ‘paternalism’ resulted in him feeling responsible for what was happening to his fellow Irish selectors, and so he warned in the Jerilderie letter, that if they did  not receive ‘justice and liberty I will be compelled to show some colonial stratagem that will open the eyes  not only of the Victoria police but also the whole British Army….Fitzpatrick will be the cause of greater slaughter to the Union Jack than St Patrick was to the snakes and toads of Ireland.’

At this point Jones introduces the central revelation of his ‘New View’ saying “I have heard the story from many different people, told usually as a deep and dark piece of information – once or twice referred to as the United States of Australia. Whether this was Ned Kelly’s concept, Joe Byrnes concept; whether it had filtered through from the ideas of American republicanism given to Ned Kelly by his stepfather George King; whether it sprang from some politically minded person among the sympathisers trying to realise in this growing rebellion in the north-east, the great promise of Ned Kelly the figurehead…..we will never know…..But the fact is indisputable that by the beginning of 1880 the rebellion was taking shape”

According to Jones, Ned Kelly then went about raising a ‘selector army’ and making suits of armour from mould boards stolen from nearby farms. Kelly’s plan involved using the murder of former gang associate Aaron Sherritt as bait to lure a special trainload of Police into the district from Melbourne. The train would crash at high speed where the Gang had ripped up the tracks near Glenrowan, the gang in their armour would then act as ‘shock troops’, and ‘mop up’ any survivors from the train wreck, and then in response to the firing of two rockets ‘the sympathisers would ride at the gallop, clutching the guns which had been given them by the gang to follow them in raids on the banks at Benalla, Wangaratta, possibly Beechworth. And then what? The Republic of Victoria? Holding the Governor to ransom? We don’t know”

Jones declared “This was a ruthless and brutal act, but it wasn’t a criminal act. This was an act of war”

Jones then quickly sums up what actually happened at Glenrowan and provides an account, based on eye witness reports which he said are ‘confused and contradictory’ of an ‘extraordinary meeting’ between the seriously wounded Kelly and the Sympathiser army on the shoulder of Mt Glenrowan.  “By some miracle, he had mounted the grey mare Music and met the sympathisers on horseback.” Kelly turned the army back, because the plan had ‘miscarried’ saying to them “This is our fight’ and “I am prepared to die” He then returned to the Inn in ‘his last magnificent possibly futile attempt to rescue the these two young men (Dan and Steve)

‘Ned Kelly had been losing blood for more than five hours in near zero temperatures. He was carrying ninety-seven pounds of armour”. Jones says of this episode: “This seems unbelievable but it is true”

Neds capture, trial and execution are mentioned briefly but Jones devoted the remainder of the lecture to a discussion about the fate of the ‘rebellion’ Oral traditions were that an uprising was still being contemplated but by the end of 1881 ‘the Kelly outbreak was at last over’

Jones concludes by saying that the Kellys were ‘much more than mere criminals’ and we would be justified in saying that “Ned Kelly the man was infinitely greater than his legend, a man of greater nobility and moral courage than anything we have even hinted at in the past” In other words, Jones answer to his own question, “was he guilty morally?” is an emphatic ‘No”.

Much of what Jones delivered in that speech at Wangaratta 50 years ago is familiar to all of us today, but back then, I think it must have been electrifying to hear him draw so many disparate and contradictory elements of the Kelly story into a coherent and magnificent narrative that seemed to make sense of everything. As anyone who has ever heard or seen Jones speak knows very well, he is now and clearly was then a brilliant and accomplished speaker and story teller, and I imagine the audience would have been listening in rapt and amazed silence to his every word. His quiet delivery radiates a beguiling kind of genial professorial modesty and believability that speaks of integrity and a desire for truth.

Jones “New View” became the dominant narrative for much of the next half century, its most radical component being the idea that Ned Kelly was some sort of figurehead for an incipient rebellion in north-east Victoria. In this view, the Glenrowan affair was more to do with a wider political inspiration that merged with Ned Kelly’s personal rebellion. Later, Jones made his view clear that without such a justification Ned Kelly’s plan was ‘madness’.
The other components of the new view were support for Ned Kelly’s declaration that his family was persecuted and treated unfairly by corrupt Police and that he was largely a ‘police made’ criminal, and acceptance of Jones belief that the north-east was in turmoil because of Police behaviour toward Irish-Australian selectors, and the policies of a Government in crisis.

What I found remarkable, reviewing this lecture in detail was how extreme were Jones view of the Kellys. By the time he came to publish his great biography of Ned, “A Short Life’ in  1995 he had toned down much of the rhetoric, but even then it was obvious he regarded the Kellys as ‘much more than mere criminals’ . To Ian Jones Ned Kelly was an almost mythical human being and admirable hero , “a man of greater nobility and moral courage than anything we have even hinted at in the past”.  Kelly, according to Jones was ‘almost superhuman’ a crack shot, a fine rider, an outstanding horseman, a quiet and gentle man, a restraining figure, paternalistic vain and proud but  ‘utterly devoted’ to his family. Theres virtually no suggestion anywhere in this 'new view' of any fault in the man, whose acts we might have thought were criminal but were acts of war, whose robberies were ‘brilliantly planned’… ‘immaculate’ exploits with ‘magnificent flair’ and ‘many wonderful touches’, and whose behaviour at Glenrowan was  ‘magnificent’ a miracle and ‘unbelievable but true’. He barely wastes a sentence on the three murdered Police,  Aaron Sherritt or the horror of mass murder planned for Glenrowan where what the Gang was about to do was, in Ian Jones chilling words “mop up the survivors”. He thus set the tone for the next 50 years in which the police murders, the terrors of being taken hostage by a killer with a gun waving in front of your face, the coldblooded murder of Aaron Sherritt and the planned mass killing at Glenrowan are dismissed as what we now refer to as ‘collateral damage’. In his rush to canonise Ned Kelly, in this lecture  Jones fails to notice the horrors and the brutality of  Kellys deeds, or even of his violent threatening and outrageous boasts in the Jerilderie letter.

In addition to his hyperbolic views about the Kellys and Ned in particular, in this lecture Jones also creates a hyperbolic view of social conditions at the time. He uncritically accepts the view that the Kellys were persecuted, - a view we now realise is completely at odds with the facts -  and paints a picture of a social environment almost at boiling point with the Government at war with itself, people being thrown out of work and widespread ‘economic depression and political ferment’. “Victoria was ready for rebellion’ he declared. 

This view was immediately challenged from the floor of the conference room by Weston Bate, a professional historian who denied there was widespread chaos and unrest, who said there was certainly NOT a depression in the region, and who claimed ‘in many ways this was the best time for selectors in Victoria. The majority of them were on their feet..” he said. ‘Black Friday’ was NOT the great catastrophe painted by Ian Jones – of a population at the time of around 750,000, less than 400 were sacked. Subsequent research by Doug Morrissey for his PhD thesis confirmed Bate was right, but neither then nor since has Ian Jones backed down “We are in happy disagreement ‘ he concluded at the time.

Despite Jones brave hope, evidence of the republic of north-east Victoria in the form of  a fabled ‘declaration’ has not emerged, the person who claimed to have seen it has changed his story and the informants upon whom Jones relied have confessed they gave mischievous information to him and contradictory accounts to other researchers. The idea that the Kellys were persecuted by the Police, the idea that the north-east was in turmoil and the selectors were about to rebel or else go under, the idea that Glenrowan was devised as some sort of political act rather than a mad criminal one – all these pillars of Jones imaginative Kelly narrative have all been eroded and collapsed under the weight of the scholarship that followed. You can read my post that shows that Jones Republic Mythology has absolutely nothing to support it HERE

The “New View’ is not only no longer 'new' it is now a completely discredited theory that had its roots in the lies Ned Kelly told about his background, was made attractive by some of the physical attributes of the man and the inherent glamour of the bushranger on horseback, and came alive in the romantic tale woven by the spellbinding Mr Jones. He took us all for a quite wonderful romantic and exciting ride back into history, but it turns out the colourful hero, near superman, moral crusader and ‘physically remarkable’ Ned Kelly was a fantasy.  The real Ned Kelly we now know was someone altogether different, albeit still fascinating in his own criminal way but someone very much less attractive than Jones Legend.

I suppose we all should say ‘Thanks Ian, it was great while it lasted.’ 

Friday, 21 April 2017

50th Anniversary Lecture : Regina v Edward Kelly

Professor Louis Waller, Oxford graduate and Professor of Law at Monash University gave a long detailed and expert Lecture that was followed by a very long and interesting discussion about Ned Kellys trial. Professor Waller described the trial quite brilliantly, provided fascinating insights into the way trials were  conducted in 1880 and examined Kelly’s defence ‘in some detail’.

If we had been there at the trials he says we wouldn’t  have noticed much that looked any different from trials conducted today – the set-up in the Courtroom, the look of the judge in his red robes and the Lawyers in black with horse-hair wigs. By and large he says the process itself would have been much the same as it is today but with some important differences, the first one being the view of the time that a defendant was always regarded as  an ‘untrustworthy  witness’ and therefore was deemed to be unable to provide sworn evidence on their own behalf. In 1891 that prohibition was lifted so that accused persons could voluntarily give sworn evidence on their own behalf, depriving the defence of the tactic of announcing the defendants lips were sealed and giving the Prosecution the opportunity to cast aspersions on the defendant who refused to submit to cross-examination in the witness box under oath. However a defendant even in 1880 could chose to provide an unsworn statement from the dock, a statement that would not be subject to cross-examination, something which Ned Kelly declined to do.

The second major difference that Waller pointed out was that in 1880 there was no ‘general appellate process in criminal cases’ -  except in some very limited circumstances that were dependant on the trial judges discretion. In other words there was no court of appeal as there is today.

The third difference Waller pointed to was the rule about burden of proof. Nowadays we agree its the Prosecution that has to convince a Jury of its case ‘beyond reasonable doubt’. Back then, this concept was not established in Law and in Ned Kellys case it was the Defence who carried the burden of proof, needing to convince the Jury that perhaps he killed in self defence, or under duress or ‘whatever  other excuse or justification’ they could offer. 

In regard to the trial itself, Waller provides a detailed and clear description of how it proceeded, and recounts in full the unexpected and memorable conversation between the now convicted murderer Ned Kelly and Judge Redmond Barry as he was about to sentence him to death.

Waller next discussed Ned Kellys defence, which was that McIntyres evidence couldn’t be relied on and therefore the identity of Lonigans killer was uncertain. Bindon suggested that the Jury had been influenced by evidence he believed should have been inadmissible. (Waller agreed with Bindon and disagreed with Judge Barrys ruling on that point which related to events that took place AFTER the death of Lonigan). Bindon, Neds Lawyer, didn’t raise the issue of self defence though he hinted at it.

Waller then provided a detailed discussion of how self defence could be a defence, and indeed had already been successfully used elsewhere in the Empire, and cited a case from NSW in 1870. Such a defence is made complicated when the victim was a police officer, because Police had then, and still do have a particular protection, which is two-fold : the first  is that killing a Policeman while resisting arrest, even if the killing is unintentional, is murder. Waller identifies this kind of murder as ‘constructive’ as opposed to ‘express malice’ where in the usual case its necessary to prove ‘malice aforethought’ or an intention to cause grievous body harm. The second component of this protection is that a Policeman is not guilty of murder if he kills a man in the execution of a warrant for arrest, when ‘the object for which death or harm is inflicted cannot be otherwise accomplished’( R v Phelps 1841) This protection only exists where the arrest is Lawful, Waller pointing out that examples existed of Police killers being acquitted or being convicted of manslaughter, on the grounds of Police action being illegal for various reasons. He cites an example of a parish Policeman attempting to make an arrest in a parish over which he had no legal jurisdiction.

Waller believes a credible defence could have been created out of these two components – that Kelly believed on various grounds that the police may have been acting illegally, intending all along to kill Ned Kelly who was merely defending himself. This opened up the possibility of acquittal or at the least, a conviction for manslaughter rather than murder. The important deficiency in Kellys trial that Waller clearly identified 10 years before Justice Phillips wrote an entire book on the same point, was that Judge Barry misdirected the jury when he told them their options were to convict Ned Kelly of murder, or to acquit him. He should have told them finding  him guilty of manslaughter was also possible. Waller said “It would have been the Jurys task to decide a number of difficult questions going to Kellys beliefs about what the Police planned to do, about the necessity of protecting himself by holding up the police and ordering them to surrender, and then about the necessity of shooting at a resisting Lonigan – if they found he  had been about to fire his revolver”

He also said something very important that Kelly sympathisers need to take note of “ It cannot be stated with dogmatic certainty that had the defence which has been outlined above been fairly put to the jury….that Kelly would have been acquitted altogether or only convicted of manslaughter”

In any event, even if Kelly had been found not to be guilty of the murder of Lonigan there was still the matter of Scanlan and of course Kennedy.  Waller wrote It would be impossible to make out a similar argument in respect of Sergeant Kennedy. One way or another, Ned Kelly’s crimes were going to catch up with him and he was destined to hang.

Dees Commentary
In the discussion that followed, Keith Dunstan asked about the duration of the trial Was it a track record?. He was of course  giving voice to the Kelly myth that the trial was rushed and corners were cut so that Justice Barry could attend the Melbourne Cup. Even Peter Fitzsimons in his 2013 Kelly biography  perpetuates this belief, writing in Chapter 17 : “Nothing is to be allowed to interrupt his (Barry’s)  attendance at the Spring Carnival” Wallers reply 50 years earlier? No. By today’s standards it seems brief indeed. By the  standards of the nineteenth century, it was a lengthy trial. There are some instances recorded earlier in the nineteenth century of persons being arraigned  convicted and sentenced within  the space of about a quarter of an hour This example illustrates yet again how ill-informed the Kelly Mythmakers are, ignoring known facts and expert opinion to enable a piece of Kelly Mythology to persist to the present day even though it was exploded nearly half a century ago!

But this is not the only bit of Kelly mythology that was exploded 50 years ago by Professor Waller that modern day Kelly sympathisers ignorantly perpetuate. There is a stupendously stupid Kelly sympathiser who declared once that he has a special interest in the police murders at Stringybark Creek, so he poses as some sort of expert on the subject. He insists there’s only one definition of murder and it involves a necessity to prove malice aforethought. This Kelly buffoon has espoused this ignorant belief of his at every opportunity on every Kelly forum Ive ever seen somewhere or other, sooner or later and not a single Kelly fancier has EVER challenged him, even once. This must mean neither he nor any other Kelly fancier has ever read this book, or if they did they didn’t understand what they were reading because as I’ve pointed out, Waller describes the special protection afforded Police even to this day that it is murder if you kill a Policeman legally carrying out his duty. Malice aforethoughtis not needed. You might even kill the policeman accidently, but it’s still murder.

The fact is that notwithstanding the deficiencies in the trial, Ned Kelly could quite legitimately have been convicted of the murder of Lonigan even if all the arguments about self defence had been put to the Jury, but if he had been acquitted, his killing of Kennedy was even more clearly a murder with malice aforethought. Nobody seriously discussing the Kelly story should ever again argue his trial was rushed or that somehow he could have escaped hanging for murder. Kelly Legend movie makers please take note!