[Editor: This is a chapter from The Complete Inner History of the Kelly Gang and Their Pursuers (5th edition, 1946) by J. J. Kenneally.]
THE FITZPATRICK EPISODE, APRIL 15, 1878.
Early in 1878 a resident of Chiltern reported to the police that his horse had been stolen by some persons unknown. The police made inquiries, and ascertained that two youths were seen in the vicinity who were about the size of Dan Kelly and one of his cousins. Without any further ado warrants were taken out for the arrest of Dan Kelly and his cousin. The latter was arrested and brought before the court, and had no difficulty in proving his innocence, and was, therefore, discharged. This discharge also cleared Dan Kelly.
Constable Strahan was in charge of Greta, but was away on a week’s leave, whilst his wife and family remained at the Greta police station. Sergeant Whelan, of Benalla, intended to send Constable Alex. Fitzpatrick to Greta to relieve Strahan, who went on leave on Saturday, 13th. But as Fitzpatrick had not yet returned from a visit to Cashel police station the Sergeant sent Constable Healey out on patrol to Greta on Sunday, April 14, with instructions to return to Benalla on Monday, 15th.
Fitzpatrick returned from Cashel on Monday forenoon, and Healey returned from Greta at 1 o’clock in the afternoon. Sergeant Whelan then despatched Fitzpatrick at 2 p.m. on Monday, April 15, with definite instructions to take charge of Greta during the absence of Constable Strahan. Sergeant Whelan, on oath before the Royal Commission, stated:—
“At 1 o’clock on April 15 Healey returned from Greta, and I despatched Constable Fitzpatrick at 2 p.m. He received the direction to remain and take charge of the station. At 2 a.m. the next morning he returned to Benalla and rapped at my quarters, and told me that he had been shot by Ned Kelly and wounded in the arm. That was on the morning of the 16th. I examined his arm and saw a mark like a bullet wound. I sent for Dr. Nicholson, and had him attended to. I took his statement at the time.”
Fitzpatrick left Benalla at 2 p.m. on Monday, April 15, and called at Lindsay’s public-house at Winton, which is five miles from Benalla. He had several drinks there. He drank spirits. He arrived at Mrs. Kelly’s house at 5 p.m. well under the influence of liquor. Fitzpatrick asked Mrs. Kelly if her son Dan was about. In replying, Mrs. Kelly, who received him courteously, said: “He’s not in, but I don’t think he’s far away; he might be up at the stockyard.” Fitzpatrick did not indicate the reason for which he wanted Dan. He rode up to the stockyard, which was about 150 yards from the house, and met Dan there. He told Dan that someone at Chiltern had taken out a warrant for him and one of his cousins for stealing a horse. Dan replied that he had nothing to do with the horse stolen from Chiltern, and added: “All right, I’ll go with you, but I suppose I can have something to eat and change my clothes.”
Fitzpatrick agreed, and they both returned to the house. They went into the kitchen, and Fitzpatrick took a seat in front of the fire, while Dan explained to his mother that he had to go to Greta with Fitzpatrick. Dan’s sister, Kate, in the exercise of her domestic duties, was passing by Fitzpatrick, when the latter seized her and pulled her on to his knee. Kate resented this, and Dan, in defence of his sister, sprang at the constable, and a fierce struggle ensued. Dan Kelly, though only a youth of 17 years, had some knowledge of wrestling, and threw the inebriated constable to the floor. Fitzpatrick, on regaining his feet, drew his revolver just as Ned Kelly appeared at the door. The constable levelled his revolver at Ned Kelly, but Dan Kelly struck him a violent blow as he fired, and the bullet lodged in the roof. The two brothers then seized the constable, and disarmed him. Fitzpatrick, during the struggle, struck his left wrist against the projecting part of the door lock. Finding himself overpowered and disarmed, the constable made the best of his position. He expressed his regret for what had happened, and promised that he would not make any report of the occurrence. The whole party then appears to have become quite friendly, and had tea together. After the meal they were joined by two neighbours, Skillion and Ryan, and at 11 o’clock that night Fitzpatrick left Kelly’s house and set out to return to Benalla instead of going to Greta.
He again called at Lindsay’s public-house, at Winton, and had several drinks of brandy and arrived at the Benalla police station at 2 o’clock next morning, April 16. Dr. John Nicholson, of Benalla, dressed the wound on his wrist, which was only skin deep. Fitzpatrick then reported that the wound on his wrist was inflicted by a revolver bullet which had been fired at him by Ned Kelly. He also asserted that Mrs. Kelly had struck him on the helmet with a fire shovel, and that a splitter named Williamson and Skillion, Mrs. Kelly’s son-in-law, were present at the time and were armed with revolvers. No time was lost in issuing warrants for the arrest of Ned and Dan Kelly, Williamson (a selector), Skillion and Mrs. Kelly.
Although Ned Kelly expected that Fitzpatrick would not report the occurrence, as he had promised, he soon learned that there was a warrant out for the arrest of his brother. He decided that Dan should be kept out of the way of the police, and accordingly made arrangements with Joe Byrne, who knew something about mining, and Steve Hart to accompany Dan and himself to Stringybark Creek to work an abandoned alluvial claim. They collected some mining tools and sufficient rations for two weeks, and set out forthwith on this venture.
Sergeant Steele, of Wangaratta, duly received a report of the “Fitzpatrick episode,” and on Tuesday, April 16, went to Greta with Constable Brown to execute the warrants for the arrest of Ned, Dan and Mrs. Kelly, Skillion and Williamson. When giving evidence before the Royal Commission on May 31, 1881, Sergeant Steele thus described the arrest of the three latter:—
“I started with Constable Brown for the Eleven Mile Creek. We watched Mrs. Kelly’s place for some considerable time from the hill opposite the house. At 9 o’clock in the evening we arrested Williamson. I went to Skillion’s place, but could not find him, so I took Williamson to Greta and returned again at about 1 o’clock in the morning in company with Senior Constables Strahan and Brown, and arrested Skillion. We also arrested Mrs. Kelly. She had not been in her bed at all during that night. I was there on three occasions and she had not been to bed. Jim Quinn, her brother, was in the house.”
By the Commission. — “What was the charge on which they were arrested?” — “For aiding and abetting Ned Kelly with shooting with intent to murder Constable Fitzpatrick.”
By the Commission. — “Had Mrs. Kelly an infant with her when you arrested her?”
Sergeant Steele. — “I do not think so; I think not at the time. I think she had a child in gaol if I recollect rightly.”
Mrs. Kelly was arrested by Steele at 1 o’clock in the morning of April 17, 1878, although he could have arrested her early in the afternoon of April 16 and taken her with her very young baby in her arms to Benalla. He took her in a dray a journey of 15 miles before daylight on a bitterly cold morning. In his evidence, Sergeant Steele said:— “We took Williamson, Skillion and Mrs. Kelly to Greta (four miles), and then brought them on to Benalla (15 miles) in a dray. They were remanded from time to time, and committed for the offence with which they were charged.”
Mr. Frank Harty, a prosperous and well-known farmer, proffered bail for Mrs. Kelly, but immediately bail was refused.
This occurred in the British Colony of Victoria, and not in a foreign country controlled by savages.
Mr. Wm. Williamson, who is still alive and lives at Coolamon, N.S.W., on hearing that Mr. J. J. Kenneally had undertaken to see that, at last, justice should be done to him and others concerned, wrote the following letter, which speaks for itself:—
Mr. J. J. Kenneally.
Dear Sir, — I am sending you under separate cover a photo of myself. I would like it returned as soon as possible; it is the only photo of myself.
I would like to give you an account of my arrest. In the police evidence they said they arrested me at Kelly’s (house). I was arrested at my own selection, after coming in from a hard day’s splitting, fully half a mile from Kelly’s (house). They (the police) only came for information and I refused to give them any. When they could get nothing out of me, Sergeant Steele said, “Put a pair of handcuffs on him.” One of them went inside and turned the hut over looking for firearms. The milking cow was lying down near the hut; they were listening to her chewing her cud. They (the police, Sergeant Steele and Constable Brown) thought it was one of the Kellys. One of them covered me with a revolver, although I was already handcuffed. He told me afterwards that he nearly shot me, as he intended to have one. They arrested us one at a time, although they could have taken us all together.
After we were sentenced, Fitzpatrick was escorting us to the gaol. He had a handkerchief to his eyes, and said, “Well, Billy, I never thought you would get anything like that.” I was released after the Royal Commission; whether Fitzpatrick had anything to do with that, I don’t know.
I had sent a written statement of facts to the Commission. Some time after I was told that I was granted a pardon; that was worse than the sentence. I was granted a pardon for a thing I did not do. You cannot be surprised at anything the police would do, as they were only the offsprings of old “lags.” The judge never read the evidence; he got it all out of the papers before the trial. The papers had us already convicted. When he (Judge Barry) was summing up to the jury, he said, “Well, gentlemen, you all know what this man Kelly is.” But they (the jury) were a long while before they came in with their verdict.
Ned (Kelly) sent word to us to hang something out of the window of the cells we were in, and he would come and stick up the gaol and rescue us. But I did not like the idea of it, and persuaded Skillion not to have anything to do with it. I felt sorry for poor Skillion, as he did not even know what he was arrested for. But I blame myself for Skillion being arrested, as he was mistaken for Burns. I pulled Burns back in the dark, when he was going into Fitzpatrick’s presence at Kelly’s Homestead after the brawl. Had I let Burns go forward, Skillion would not have been in trouble. When arrested, the police gave me a horse to ride which they could not ride themselves. They (the police) put me on it handcuffed. It gave a couple of bucks and then bolted. I was getting away from them (the police), and they threatened me with a revolver if I did not pull the horse up. It was pitch dark. I don’t know if they fired or not; anyhow, they never hit me. They got me to Greta, and I believe they would have let me go then had I given them any evidence. The next one they brought in was Skillion, who said, “They cannot do anything to me, I am innocent.” But they did, all the same. Then they brought two more in — Ned Kelly’s mother and Alice King, the baby — the only one they didn’t lay a charge against. It was then some time near the morning. You may use this as you like, and publish any part you like. — Yours faithfully,
(Signed) WILLIAM WILLIAMSON.
On June 6, about seven weeks after her arrest, the following paragraph appeared in the Beechworth paper:—
“A day or two since Mr. W. H. Foster (police magistrate) attended at the Beechworth Gaol and admitted to bail this woman who had been committed for trial for aiding and abetting in an attempt to murder Constable Fitzpatrick at Greta. It was an act of charity, as the poor woman, though not of the most reputable of characters, had a babe in her arms, and in the cold gaol, without a fire, it is a wonder the poor little child lived so long during this bitter wintry weather.”
The fear that the baby would die in gaol was apparently the motive for now granting bail.
Constable Fitzpatrick, before the Royal Commission on July 6, 1881, said:—
“When I first went to the place (Mrs. Kelly’s) Dan was not there — only Mrs. Kelly and some of the younger children of the place, and I entered into conversation for a while to see if there was any chance of Dan putting in an appearance. Mrs. Kelly knew who I was, and I drew her attention to the sound of someone cutting wood behind the hut on the creek where they lived, and I said: ‘I’ll go up and see who they are.’ I went up there and found Williamson, a man that used to live with them, splitting rails, and asked him had he a licence, and he said, ‘No, he did not require one splitting wood on selected land’; so after I had spent a few moments with him I was heading for Greta. I was going straight there — the station I was en route for; I was on horseback. I had occasion to pass by Kelly’s new hut at the time — the one they were living in at the time. As I was passing I noticed two horsemen entering the slip panels in front of the old hut. I rode round to where they were, and by the time I got round one of the men disappeared, and Skillion was holding one horse by the mane and had the other horse — the one he had been riding with the saddle and bridle on — he was holding that, and third horse he had caught in the panel just after coming in. The horse that had been ridden had the bridle off. I asked Skillion who was riding the horse. He told me he did not know. I examined the mare and saw it was the one Dan Kelly was riding two or three days previous to that, when I had seen him. I said, ‘That is Dan Kelly’s mare,’ and he said, ‘Yes.’ I said, ‘Where is he?’ and he said, ‘Up at the house, I suppose.’ That is the new hut. So I rode up to the place again and called out, ‘Dan.’ He came out, and as soon as I saw him I walked up to him. He had his hat and coat off, and a knife and fork in his hand. I said, ‘I am going to arrest you on a charge of horse stealing, Dan.’ ‘Very well, you will let me have something to eat before you take me?’ I said, ‘All right.’ He said, ‘I have been out riding all day.’ So he went back into the hut, and I followed him in. As soon as I went inside Mrs. Kelly accosted me, calling me ‘a deceitful little ———.’ She said she always thought I was. She said, ‘You will not take him out of this to-night.’ I said it was no use talking that way, that I had to do my duty, and Dan said, ‘Shut up, mother! that is all right.’ I was scarcely in the place three minutes when Ned Kelly rushed in and fired a shot at me and said, ‘Out of this, you ———.’ Dan was sitting down to have something to eat. I was standing up alongside of him with my right side to him. Ned fired a second shot and it lodged in my wrist. With that I turned to draw my revolver, and just as I slewed to the right Dan Kelly had my revolver pointed at me. He had snatched it while my attention was drawn to his mother and Ned.”
Question. — Where was Williamson?
Fitzpatrick. — He had come to the door of the bedroom and Skillion was with him; they both had revolvers in their hands. They were not in the hut when I came in.
Question. — Were they in the hut when you were fired at?
Fitzpatrick. — Yes; just as the third shot went off.
Question. — Was Skillion in the hut?
Fitzpatrick. — He came to the hut as soon as Ned Kelly found out it was me. Williamson came out of the bedroom door and had a revolver in his hand, and Skillion just came to the door while he was forcing himself in where Ned Kelly was standing.
Question. — Then you had three men to fight besides Mrs. Kelly?
Fitzpatrick. — Yes, and Ned Kelly said, “That will do, boys.” If he had known it was Fitzpatrick he would not have fired a —— shot.
Question. — When you left Benalla that morning were you under instructions to do any certain duty?
Fitzpatrick. — Yes.
Question. — Who gave the instructions?
Fitzpatrick. — Sergeant Whelan.
Question. — What were the instructions?
Fitzpatrick. — The instructions came from headquarters.
Question. — What were they?
Fitzpatrick. — To take charge of the Greta station temporarily in the absence of Senior Constable Strahan.
Question. — Was Strahan away from his station?
Fitzpatrick. — He was.
(12824). Question by Commission. — How far (away) was Ned Kelly when he fired?
Fitzpatrick. — About a yard and a half from me; he had just come from the side of the hut door. As soon as he had fired the first shot Mrs. Kelly seized an old shovel that was at the fireplace and rushed at me with it.
(12825). By the Commission. — He missed you the first shot?
Fitzpatrick. — Yes; she rushed at me with this shovel and made a blow at me, and smashed my helmet completely in over my eyes, and as I raised my hand to ward off the shovel Nod Kelly fired a second shot and it lodged in my wrist. With that I turned to draw my revolver, and just as I slewed to the right Dan Kelly had my revolver pointed at me. He had snatched it while my attention was drawn to his mother and Ned Kelly.
Question. — When you left Benalla it was for the purpose of taking Strahan’s duty?
Fitzpatrick. — Yes.
Question. — Did you ever do that duty? Was it your first time of being ordered to do duty of that character — sole charge of a station?
Fitzpatrick. — Yes.
Question. — Would it not have been your duty to have gone direct to take charge of the station where the man was not in charge?
Fitzpatrick. — The sergeant agreed with my suggestion by telling me the complaint against Dan Kelly and telling me to be careful with him.
Question. — Did the officer at Benalla, Sergeant Whelan, know when you left that morning that you were to arrest Dan Kelly if you got the chance?
Fitzpatrick. — Yes, he was aware of it.
Question. — How was he?
Fitzpatrick. — Because I told him if I saw him on my way I would take him to Greta, bring him in to Benalla, and remand him to Chiltern the following day. I suggested that to him.
Question. — Have you read Sergeant Whelan’s evidence on that point?
Fitzpatrick. — No.
Question. — Then you say you had told the official who gave you the instructions that you would arrest Dan Kelly if you got the chance?
Fitzpatrick. — Yes.
Question. — Was it he who told you of the warrant being out, or did you yourself see it in the “Gazette” notice?
Fitzpatrick. — I fancy I saw it.
Question. — Did you go direct from Winton to Greta upon the Greta road that morning?
Fitzpatrick. — Yes.
Question. — Were you at Lindsay’s public house on that occasion on the morning of your being shot?
Fitzpatrick. — No, not in the morning; it was in the afternoon.
Question. — When you left there (Lindsay’s) what road did you go to Greta?
Fitzpatrick. — I turned off to the right by the Eleven Mile Creek.
Question. — When you were fired at that time what occurred?
Fitzpatrick. — Ned Kelly prevented them from doing any more, and I fell down on the floor insensible.
Question. — What really did occur afterwards?
Fitzpatrick. — After I got up Ned Kelly examined my hand, found a bullet in my wrist, and said, “You must have it out of that,” and I asked him to let me go into Benalla to let the doctor take it out and he refused; and I saw he was determined to take out the bullet. He wanted to take it out with a razor, and I took out my penknife and he held my hand and I took it out. It was not very deep in; it was a small-sized ball.
Question. — What did you do after that? Did you leave the house immediately?
Fitzpatrick. — No; I could not leave for some time. They kept me till 11 o’clock, after I came round, and would not let me go.
Question. — Where did you go from there (Greta)?
Fitzpatrick. — To Winton — through Winton to Benalla.
Question. — You said that Williamson and Skillion had revolvers. How do you know they were revolvers?
Fitzpatrick. — I could swear it.
Question. — What position were they in?
Fitzpatrick. — Just coming in. Skillion alongside with Ned Kelly with a revolver in his hand, and Williamson came in out of the bedroom with a revolver.
Question. — How long before that had you seen Williamson chopping wood?
Fitzpatrick. — Fifteen minutes.
Question. — Had he a revolver then?
Fitzpatrick. — No, I did not see one.
Question. — How did he get into the house before you?
Fitzpatrick. — I do not know.
Question. — Were there two doors to the bedroom?
Fitzpatrick. — There was only the one entrance.
Question. — How did he get in before you and Dan Kelly?
Fitzpatrick. — He may have removed a sheet of bark at the back and come in. I did not see him come in.
Question. — You said if Williamson got into the house he might have got through by removing a sheet of bark. Was the house bark or slabs?
Fitzpatrick. — Bark and slabs.
Question. — Where was the bark — on the sides or on the roof?
Fitzpatrick. — I cannot say whether the outside walls were of bark.
Question. — Then they had no particular reason for firing at you?
Fitzpatrick. — Any constable would have been in the same position.
Such was the evidence of Constable Fitzpatrick before the Commission which sat in 1881 to inquire into the cause of the Kelly outbreak and the management of the police during the pursuit. It is noticeable that Fitzpatrick swore to the following:—
(1) Ned Kelly, at a distance of less than five feet, failed to strike Fitzpatrick at the first shot, although Ned Kelly was acknowledged to be an expert marksman.
(2) Ned Kelly, at such close range, failed again to strike Fitzpatrick’s body with his second shot, and struck his wrist, which Fitzpatrick had at the moment raised above his head to shield himself from a threatened blow, which blow was not delivered seeing that the defending left hand was in no way injured by the fire shovel.
(3) Ned Kelly, a clever marksman, missed Fitzpatrick altogether with the third shot at a similar range.
Now although, according to Fitzpatrick, Kelly fired on him at a range of less than five feet, the alleged bullet wound in Fitzpatrick’s wrist was only skin deep! A bullet wound from a revolver used in those days would have smashed right through Fitzpatrick’s wrist at the exceptionally close range of a yard and a half. It appears perfectly clear, therefore, that Fitzpatrick’s statement in evidence was ridiculously false, although it was deemed sufficiently satisfactory to lead to the prompt conviction of Mrs. Kelly, Skillion and Williamson. Fitzpatrick’s injured wrist was attended to by Dr. John Nicholson, who, giving evidence during the trial at the Beechworth Assizes on October 9, 1878, said:—
“On April 16 I was called to the police barracks, Benalla, to see Constable Fitzpatrick. Examined his left wrist, found two wounds, one a ragged one and the other a clean incision. They might have been produced by a bullet — that is, the outside wound. There could not have been much loss of blood.” (In the doctor’s opinion the other wound could not have been caused by a bullet, although Fitzpatrick had sworn that it had been caused by a bullet.)
To Mr. Bowman (for the defence). — “I didn’t probe the wound, so do not know if the two wounds were connected. There was a smell of brandy on him. A constable present said Fitzpatrick had had some drink. It was merely a skin wound.”
Dr. Nicholson met Fitzpatrick afterwards, in the street, and told him frankly that the wound in his wrist could not have been caused by a bullet.
Two farmers — Joseph Ryan, of Lakerowan, and Frank Harty, of Winton — swore that Skillion had been in their company since 2 p.m. on April 15, and that they both had tea at Harty’s at about 5.30 p.m., and that they did not return to Kelly’s house till 7 p.m. The row with Fitzpatrick took place at about 5 p.m. Peace was restored, and the Kelly family and Fitzpatrick had had tea before Joe Ryan and Skillion returned from Frank Harty’s. It was impossible, therefore, for Skillion to have been present when Fitzpatrick was manhandled by Ned Kelly and his brother Dan.
Also it was impossible for Williamson to have been present. He was splitting rails half a mile up the creek when Fitzpatrick entered the Kelly’s house. Williamson would not have had time to cover the distance and reach the house before the third alleged shot was fired.
Furthermore, Fitzpatrick swore that Williamson did not enter the house before him (Fitzpatrick), nor did he see Williamson enter the house after him (Fitzpatrick). When closely questioned by the Commission as to how Williamson, not having entered the house, could come out of the bedroom, Fitzpatrick affirmed that Williamson may have obtained entrance by the removal of a sheet of bark at the rear of the house.
As the house was built of wooden slab sides and a bark roof, it was obviously impossible for Williamson to remove a sheet of bark from the roof in time to be present before the fracas was over.
Therefore it seems clear that Williamson was not present at all, and that Mrs. Kelly, Skillion and Williamson were innocent of the charge on which they were so promptly convicted and severely sentenced.
Ned Kelly strongly objected to his sister’s name being brought into his mother’s defence, although her counsel (Mr. Bowman) considered the attack on Kate Kelly proved ample justification for what had really happened. Ned contended that the evidence of Joe Ryan and Frank Harty would prove that Skillion was not present, and that consequently Fitzpatrick’s evidence was palpably false. Their evidence, Ned contended, was sufficient to secure the acquittal of his mother, Skillion and Williamson, without bringing Kate’s name into the case at all. In deference to Ned’s objection, Kate’s name was not mentioned at Mrs. Kelly’s trial.
Ned Kelly naturally thought that his mother would be tried in a Court of Justice, notwithstanding the fact that he himself, had twice been previously tried in a court of loaded dice.
He did not think it possible that a mother with a very young baby in arms would be denied her inalienable right to be tried in a Court of Justice. Ned was, however, bitterly disappointed. The only evidence produced against his mother was that given by a constable who was well known to be a flash, drunken, immoral blackguard, who was shortly afterwards dismissed in disgrace from the Force on the following charges: “That he (Fitzpatrick) was not fit to be in the Police Force; that he associated with the lowest persons in Lancefield; that he could not be trusted out of sight, and that he never did his duty.”
It would be almost unbelievable, if it were not already an established fact that, at the Supreme Court at Beechworth on 9th October, l878, the evidence given by two highly respectable farmers was rejected with scorn, and the perjured evidence of a constable who “could not be trusted out of sight” accepted as sufficient excuse to send this mother with a baby in her arms to gaol for three years’ hard labor.
But then the Kellys had to be “brought up on any charge no matter how paltry, the object being to take their prestige away from them.”
It was this unique outrageous miscarriage of justice that caused Ned Kelly to offer armed resistance to an administration correctly described as “Loaded Dice.”
(Australian prisoners of war in Germany, in 1944, were granted a holiday to celebrate the birthday of Ned Kelly, King of Australia.)
J. J. Kenneally, The Complete Inner History of the Kelly Gang and Their Pursuers, Melbourne: J. Roy Stevens, 5th edition, 1946 [first published 1929], pages 47-63
ball = a ball of lead (i.e. a bullet, as used with old firearms)
lag = a convict or ex-convict; an “old lag” may refer to an older “lag”, or to someone who has been in jail several times
Wm. = an abbreviation of the name “William”
[Editor: Corrected “afterwars” to “afterwards”; “sh owing Kelly’s Lookout” to “showing Kelly’s Lookout” (graphic caption).]