A Talk by ex Chief Justice of Victoria
John H. Phillips.
(Author of 'The Trial of Ned Kelly')
At the Kilmore Mechanics Institute presentation
held at the Kilmore Court House August 10 2003.
A chance phone call by a mate of mine alerted me to this great opportunity
to hear a man who arguably understands the history behind the trial of
Ned Kelly better than anyone. The Kilmore Mechanics Institute group had
organised to have Mr. John Phillips as their guest speaker and seating
was very limited indeed. There was no need to advertise, although I later
promotional information online, tickets were gone in a flash.
Unlike most talks of this nature this one did not cost an arm and a
leg to attend! All that was asked was that people purchase a raffle ticket
or two. A very small price to pay to hear this gentleman talk in such
a special environment. Special because as was told to us at the beginning
of the talk "Ned sat in this court room as an eight year old boy!"
Yes that is right, a young Ned sat here with his mother many, many years
ago. Perhaps he did not sit in the plastic chair I was provided with,
but he was here nonetheless.
Present at the talk were several familiar faces such as Bill Denheld and
the girls from the now defunct Ned the Exhibition. There was also the
odd assortment of Ned addicts wearing their Ned T-shirts and at least
one sporting a 'Ned' beard.
After a brief introduction the guest speaker Mr. Phillips stood elevated
above the crowd and began his talk.
The following is an abbreviated and paraphrased version of what we
heard from Mr. Phillips.
AN IRISH TRAGEDY
Mr. Phillips started by giving us the history of what happened to the
Kelly family, starting with what became known as 'The Fitzpatrick incident'.
Of interest to me at this juncture was how Mr. Phillips broke into an
Irish accent "Billy I never thought you would get a sentence like
that." (Referring to the harsh six-year sentence handed down by Judge
25 Oct 1878 - KILLINGS AT STRINGYBARK CREEK
Only McIntyre remained alive after the killings of the police at Stringybark
Creek. An inquest was held by the local coroner and witnessed by McIntyre;
warrants were issued for willful murder.
Dec 1878 - EUROA BANK ROBBERY
The Euroa bank was robbed of 2,000 pounds.
JAN 1879 - JERILDERIE BANK ROBBERY
The gang now remained on the run for 18 months.
Dec 27th AARON SHERRITT EXECUTED
MOMENTOUS EVENTS AT GLENROWAN
Mrs. Skillion (Ned's sister) requested the services of experienced barrister
Mr. David Gaunson. They sought the services of Mr. Molesworth however
his fees were over 50 guineas and payable in advance. By the end of September
the trial judge was known. Mr. Barry! The family knew Judge Barry from
Judge Barry was a generous man who was often a secret benefactor and founder
of many Melbourne institutions.
Mr. Molesworth sought an adjournment of the trial, but was refused. The
following Monday a knock was made on the door of Mr. Henry Bindon. Mr.
Bindon had been in the legal business for less than a year. He had appeared
in the Supreme Court and had had three attempts at matriculation. Further,
it took him 8 years to pass the Bar exam in London.
They tried for an adjournment, Barry agreed to only 10 days. The afternoon
before the trial they agreed to try again. The trial was to proceed. Ned
was allowed 7 guineas legal aid, he would be defended by the most inexperienced
Barrister in the Colony.
The 28th of October was unseasonably hot.
Ned was arraigned for murder and pleaded not guilty.
Thomas McIntyre was called and took the oath. The prosecution had only
one eyewitness. McIntyre gripped the rail as he described the expedition,
of two men in camp and two on patrol. Four armed men arrived. Smyth asked
if any of those men were here. Yes, said McIntyre, pointing to Ned Kelly.
(Phillips again breaks into an Irish accent) McIntyre said that Ned Kelly
had simply walked up and killed Lonigan. The other two policeman arrived
and exchanged fire, McIntyre escaped.
Of the questions put to McIntyre only half were of any significance and
he was not challenged properly on the deaths at Stringy Bark Creek.
Statements by Ned to people about the shooting reflected the fact that
he shot after Lonigan attempted to fire.
Living - Ned had a manuscript about his life and wanted it printed.
The Crown prosecutor helped by objecting and it (the letter) was not received
in evidence. In law Kelly had adopted it as his own so it was admissible
at his trial - the real reason behind what the Crown prosecutor did was
easy to discover, as it was what Edward Kelly claimed as persecution.
The jury now could not read it.
Dr. Reynolds - 29th of October a Post Mortem was conducted on Lonigan.
"So be it", said Barry.
Smyth said that the police had the full protection of the law, Kelly had
admitted the killing. Smyth said that the motive was a malignant hatred
of the police, he was at war with society.
Bindon had never addressed a jury in his life.
McIntyre was well rehearsed; at Stringy Bark Creek no one could tell who
fired as so many shots were fired.
Bindon said "do not take the life of a man on the evidence of a single
Was Bindon incompetent?
Unable to appreciate the legal notion of self-defence of the statements
by Edward Kelly to witnesses. A case could have been presented. Lonigan
was in danger of death and believed the police had come to shoot them
on good faith and on reasonable grounds, yes self-defence was possible.
Bindon allowed McIntyre to go unchallenged. In 1880 an accused person
was only allowed an unsworn statement. He failed to cross-examine McIntyre,
who a year ago had given his superior officer a different version.
What McIntyre wrote in the wombat hole as he shivered was different to
what he presented in court. Why?
10 July 1880 the account had been substantially changed. Death of Lonigan,
"I instantly held up my arms, no time to draw a revolver", all
reference to a motion to draw a revolver was removed.
Bindon failed to address the jury about Reynolds.
The trial went for two days, the jury was obligated to accept Barry's
Barrys summing up contained significant misdirection's.
The case against Edward Kelly was strong.
Ned Kelly had the right to a fair trial, the trial failed to meet either
of these ideals, after just half an hour Ned was found guilty.
Asked if he had anything to say he chose to record for prosperity a strong
complaint - "Mr Bindon knew nothing of my case".
After a famous discussion between the judge and Ned, Ned said "I'll
meet you where I go".
Within four weeks both would die.
The prophecy was fulfilled.
Edward Kelly, Daniel Kelly, Joseph Byrne, Steve Hart, Aaron Sherritt,
Sgt Kennedy, Const Lonigan, Const Scanlon and finally Judge Barry.
The saddest part of all was that they were all sons of Ireland, except
Bindon walked down the gloomy court room......"Mr Bindon knew nothing
of my case", rang in Bindon's ears over and over. He sat slumped
on a stone seat and wept.
Questions were taken from the audience to the speaker:
Q - Why charged with only one murder?
A - There were no eyewitnesses to the killing of the others.
Q - Were they [the police] in Uniform?
A - No they were not.
Q - Would it have made a difference if the Jerilderie Letter had been
read in court?
A - Yes it would have.
Q - The lawyer knew nothing, could he not appeal?
A - no there was no court of appeal in those days.
Q - What became of Bindon?
A - Believe it or not he took up a practice in Benalla! (Laughter from
Bindon was never a well man in his life.
Q - (By Bill Denheld) The photo taken by Burman at the murder scene, was
there any known impact of this photo?
A - It did show the fallen logs, was of some assistance, not sure.
Q- If you were given the job of defending Ned Kelly, could you have gotten
A - No, the only possible sentence was death. Manslaughter was perhaps
a remote possibility.
Q - Was the bullet in the eye of Lonigan caused by a rifle?
A - No skill to know the answer.
Q - (by Dave White) How log did Ellen Kelly's baby stay with her in prison?
A - All the time.
Q - What was the death of Judge Barry?
A - Pneumonia
A couple of final questions were asked about the body straps and being
unfairly outlawed. Mr. Phillips went on to tell us that the name of the
jury foreman was Lazarus and then answered the last few questions.
After this one-hour talk we were treated to afternoon tea. Scones, complete
with jam and cream, tea and coffee. Biscuits, sandwiches, orange juice
and cans of Coke.
To top it all off one copy each of Keith McMenomy's and Ian Jones' books
were given as prizes from the $1.00 each raffle tickets we purchased to
I managed to gain Mr. Phillips attention and have him sign my two copies
of his book on the Trial of Ned Kelly.
I chatted with Bill Denheld (www.denheldid.com/twohuts),
Nicole Jones, Bruce Johnson and others. After partaking of the scones
and tea it was time to go home.
As I drove home I passed through Wallan, the original home of Ned's family
the Quinns. The Quinn home still stands within this town today. Along
the road still in Wallan I passed a little Free lending library building
built in 1877. I wondered if Ned ever borrowed a book from here?
A few kilometres down the road I passed Beveridge and Ned's boyhood home.
A great day was had by all, thank you to the organisers from the Kilmore
Kelly boxing photo to be auctioned (22nd
A famous photo of Ned in his
boxing attire (taken as Ned took on Wild Wright in a boxing match for
retribution after Ned served 3 years in gaol for having Wild's stolen
horse) is to be auctioned today (Sun) and Monday. The auction is to be
held by the newly formed Ludgrove's International. Mr Ludgrove has now
opened his own auction house after recently leaving Christies auctions.
The photograph of Ned is believed to be the only one of Ned not taken
by the authorities. Back in 1987 this photo was sold for $19,800 at auction
and according to Aussie Post Oct 1999 it dissapeared when the owner moved
from Hong Kong. Nothing had been heard of this photograph until now. This
is a very famous shot of Ned and is on the front cover of Ian Jones's
Ned Kelly A Short Life and is used as the invitation to the opening of
the new Ned exhibition at Southbank. Other Kelly photo's are also being
offered for sale, many are from an action that failed to sell at Christies
(the infamous auction that included the photo of Ned that turned out to
be someone else. ) The expected price is about $50,000.
Helmets, Smoking Guns (First published
2nd February 2003)
The Australian Centre for
the Moving Image is currently presenting a series of bushranging films.
I managed to attend the first nights presentation, along with Ironoutlaw's
Brad Webb and Ben Collins. The two films we saw were Stringybark
Massacre c1960and Captain Thunderbolt c1953, both
in black and white.
The night started off with a laugh as we watched all sorts of images pass
across the screen with what we considered an odd running commentary -
odd because it was all about communism. As it turned out the opinions
were coming from an elderly gentleman in the audience intent on sharing
his views. Fortunately he stopped long enough to allow a woman from the
Centre to introduce the films.
was such a laugh that we were asked to be quiet by a chap in front of
us. The film started with descriptions of each of the main characters,
Ned, Dan, Joe and Steve. It was a short film but well preserved for its
age and enjoyable. The plot was obvious, we knew what was to take place
and it was fairly accurate in its portrayal too, apart from the fact that
the actor who played Ned was old enough to be his grandfather. At the
end Ned fired a shot into Kennedy to save him from the wild animals and
a painful death. Fortunately the plot did not include any of the rubbish
we often hear about, such as Ned making the rest of the gang fire their
guns into the body. I saw a couple of interesting details in the final
credits. Namely that the movie was filmed at Smoky Dawson's ranch, and
that the name listed next to 'guns' was none other than Edgar Penzig.
Mr Penzig is an author of many limited edition bushranging books, mostly
on the topic of NSW bushrangers. He is renown in the Kelly world as the
author who once championed bushrangers like Ned, but who inexplicably
preformed a complete 180 - and now disparages them without mercy.
The second film was Captain
Thunderbolt. It ran for only 69 minutes, but turned out to be a great
film. The well-known Aussie actor Charles 'Bud' Tingwell played one of
the main characters, Alan Blake. (Bud Tingwell is also part of the cast
of the soon to be released blockbuster Kelly film
with Heath Ledger, in which he plays Victorian Premier Berry.) I loved
the theatrical aspect of when Thunderbolt spun his revolver Hollywood
style. It brought to mind the fact that if not for the Government ban
on bushranging films in 1912, Australians would have had many more such
films to watch. The American film industry was built on the Wild West
film genre, and I think it is a pity we were prevented making more films
about our own wild colonial days.
AMCI are to be congratulated
on their Iron Helmets, Smoking Guns
film festival. In it there are 7 sessions of movies, and a presentation
by historian Bill Prout on the last day. Hopefully ACMI will consider
doing another similar bushranger film festival in the future.
Kelly Trial re-enactment (First
published 21st November 2002)
Beechworth Theatre Company,
Inc. in conjunction with The Beechworth Historic Precinct presented a
re-enactment of The Trial of Ned Kelly, which was taken from the original
On the 16th of November,
5 days after the 122 anniversary of Ned's hanging, I visited Beechworth
for a re-enactment of Ned's trial. It was a very warm day and quite
humid inside the Beechworth Courthouse where the re-enactment was held.
Tickets were $12 each and were entirely sold out. It was a busy weekend
in Beechworth as it was also the Celtic festival, so I was glad to have
pre-booked. I sat upstairs at the rear of the courtroom, where I had
a very good view of proceedings.
The re-enactment was written
by Kelly scholar Kevin Passey, author of the 'must have' book, 'In search
of Ned Kelly', and was directed by Ian Sinclair. The play was in parts,
the first of which was Ned's committal hearing that was originally held
in Beechworth's courthouse on the 6th of August 1880, and the following
act was of Ned's trial, during which we imagined ourselves in the Melbourne
I was glad to find that the presentation was accurate historically and
anyone familiar with the text of the trial would not have been surprised.
It was very professionally presented overall and I was impressed with
the acting. The easily ridiculed Constable McIntyre and the evidently
self-important Sgt. Steele were both very well portrayed. Judge Barry
was extremely convincing and the audience all enjoyed hating him. My favourite
part was the well-known exchange between Ned and Judge Barry after the
guilty verdict had been announced. I was a little disappointed that one
of my favourite parts of this exchange was not included, i.e. Ned saying
he feared death 'as little as to drink a cup of tea', but no doubt this
was omitted due to limited time. After all, not everything said over a
few days could be included in one afternoon, and the play did include
most of the best parts of the trial. The actors never missed a beat. The
cast list included; John Hennessy, Peter Jones, Darren Sutton, Robert
(Bob) Down, David Roddock, Peter Morrison, and Shane Douthie.
There is one small technical
detail that I feel I should point out. The narrator, when referring to
the trial of Mrs Ellen Kelly in 1878, claimed that Judge Barry had openly
threatened to give her son Ned 15 years in prison had he been present.
While this now famous quote adds well to the mythology surrounding Ned
Kelly, it has not actually been proven historically, which I think we
should bear in mind. I put its inclusion down to artistic license.
All in all it was well
worth the trip up for the weekend and I enjoyed myself.
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