[Editor: This is a chapter from The Complete Inner History of the Kelly Gang and Their Pursuers (5th edition, 1946) by J. J. Kenneally.]
CHAPTER III.
TRIAL AT BEECHWORTH.
When Wm. Skillion, William Williamson, and Ellen King were called, many looked surprised. It was not known outside Greta that Mrs. Kelly had been married to George King some time after she settled on the Eleven-Mile Creek. The jury consisted of several ex-policemen and others who were prejudiced against the Kellys, and on Fitzpatrick’s unsupported evidence a verdict of guilty was brought in.
JUDGE BARRY’S SENTENCE.
Although Mrs. Kelly, Skillion and Williamson were arrested and brought to Benalla on April 17, 1878, their trial did not take place until October 9, when they were all convicted and duly sentenced by Judge Barry to long terms of imprisonment.
In imposing on Mrs. Kelly a sentence of three years’ hard labour, Judge Barry laid emphasis on the atrocious crime of aiding and abetting in the shooting of a police constable, and added: “If your son Ned were here I would make an example of him for the whole of Australia — I would give him 15 years.”
Ned Kelly was not charged before that court. He was neither charged nor tried; yet was he thus prejudged and condemned.
It has always been an axiom in British communities that the Court must always consider an accused person to be innocent until he has been fairly tried and justly convicted, but the law and the axiom was not only violated, but also strangled by those charged with its administration. This judicial outburst was tantamount to an open declaration of war on the part of authority against the elder of the Kelly youths, and when Ned Kelly, working on the alluvial diggings at Kelly’s Creek, was told of the threatened sentence he understood its significance, and said: “Well, they will have to catch me first, and now that they have put my mother in gaol I will make the name of Ned Kelly ring for generations.”
The hand of the law was against him and his. Sooner or later the authorities would seek him out and crush him. Well, it would be a battle henceforth. He would forsake the peaceful ways of a miner on the Stringybark and Kelly’s Creeks, and live in defiance of the law. The perjured evidence of Fitzpatrick, the terrible sentence passed upon his mother, and the voluntary condemnation of himself by the judge awakened in him all the combative instincts of his race. He abandoned his quiet work, and, with his trusted companions, decided to maintain their liberty at all costs.
Skillion and Williamson strove in vain to prove that they were not present during the scene at the Kelly hut; and so, after being six months in gaol awaiting trial, they were each sentenced to six years’ hard labour.
The sentence on Mrs. Kelly was considered a very savage one by most people in the district, where she was so well known. Even Mr. Alfred Wyatt, police magistrate, whose headquarters were at that time at Benalla, when giving evidence before the Commission, said:— “I thought the sentence upon that old woman, Mrs. Kelly, a very severe one.” Yet he was not even suspected of being a Kelly sympathizer. In fact, he was on the Bench at Beechworth when the Kelly sympathisers were presented, and when the officials applied for one of the numerous remands. In addressing “Wild” Wright, who stated in court that “they would never catch the Kellys until they let their innocent mother out of gaol, put the scoundrel, Fitzpatrick, in,” Mr. Wyatt said:— “I would like to give you fair play if I could.”
Later, in giving evidence before the Royal Commission, the same magistrate said:—
“My view was that the arrest of the Kelly sympathisers was a mistake — all those arrests — and it prolonged itself as a mistake. It caused bad feeling, alienated a number of persons . . . who I had reason to believe might have been relied upon for help before the murders (of Kennedy, Scanlan and Lonigan) and up to the time of the murders. My reason is that an informal offer was made to me to bring the Kellys in if the Government would liberate Kelly’s mother. That was before the murders of Lonigan, Scanlan and Kennedy.”
Question. — Did you make that known to the police authorities?
Witness. — I did.
MR. ENOCH DOWNES.
Mr. Enoch Downes, truant officer, residing at Beechworth, when giving evidence before the Commission on July 20, 1881, said that he called at Mrs. Byrne’s house in reference to a truancy case, and in speaking about the outlaws to Mrs. Byrne, mother of Joe Byrne, said:— “Well, your son had no reason to join the outlaws — the Kellys. There is some excuse for them.”
“In fact, I spoke a little freely about the action of the judge in passing sentence on the Kellys’ mother at the time; I spoke feelingly on the action (of the judge). I did not believe in the sentence, and I told her so freely. I thought if policy had been used or consideration for the mother shown that two or three months would have been ample.”
In August, 1878, Superintendent Sadleir, of Benalla, made some arrangements for a party of picked policemen to go in pursuit of Ned and Dan Kelly. The police believed that the Kellys already had sufficient provocation to show fight if they were attacked. Thus, on August 10, Superintendent Sadleir wrote to Sergeant Kennedy, of Mansfield, as follows:—
“It seems to be certain that Ned Kelly is in the neighbourhood of Greta, or from thence to Connelly’s and the bogs near Wombat. I am very anxious to make some special efforts to have the matter set at rest and his apprehension effected, if possible. I have consulted with the senior constable in charge at Greta, and it appears that there is not much likelihood of him and the constable with him there doing much towards arresting Kelly or even disturbing him for the neighbourhood. It has been proposed to collect, for the purpose of a thorough search, what constables are in the district who know Kelly personally, sending, say, two of them to Mansfield to act with Sergeant Kennedy from that end and the others to act with the Greta police, and to search simultaneously up and down the King River and neighbouring places. I shall be glad to receive any suggestions that Sergeant Kennedy may have to offer on the subject, and whether he is of the opinion that anything might be gained by his coming here for a day or so to consult with the sub-officer taking charge of the party starting from Greta end — that is, supposing the expedition should be determined on.”
“I beg to report for the Superintendent’s information that I am of opinion that the offender Kelly could be routed from his hiding place if the arrangements proposed by the Superintendent were properly carried out.
“The distance from Mansfield to the King River is so great and the country so impenetrable that a party of men from here would, in my opinion, require to establish a kind of depot at some distance beyond the Wombat — say, Stringybark Creek, seven miles beyond Monk’s. By forming a camp there it would enable the party to keep up a continuous search between there and the flat country towards the King River, Fifteen Mile Creek and Holland’s Creek. While the Mansfield men would be doing the ranges and creeks in the neighbourhood, the men forming the Greta party would be operating on the flat country along the rivers and creeks abovementioned. I feel sure that by efficiently carrying cut this plan Kelly would soon be disturbed, if not captured. I believe Kelly has secreted himself in some isolated part of that country lying between Wombat and King River, and in a similar way to which Power (the bushranger) did; and seeing that he was a mate of Power I think it is reasonable to conclude he would imitate his example in this respect, seeing it was the means of keeping Power in comparative safety so long. I am not aware if Mounted Constable Michael Scanlan 2118, of Mooroopna, is personally acquainted with Kelly, but I am sure there is no man who could render more service in the proposed expedition than he could, as he knows every part of that country lying between here and the King River. I am of opinion Constable Scanlan, Constable McIntyre and myself would be quite sufficient to undertake the working of that country without any more assistance. I should like to have a personal interview with the sub-officer taking charge of the party starting from Greta.”
The place where Sergeant Kennedy proposed to establish a depot was where he subsequently met the Kellys in armed encounter.
Superintendent Sadleir was not quite agreeable to send the party of only three suggested by Sergeant Kennedy, as none of them could definitely recognise the wanted men. Hence he selected Constable Lonigan to accompany the party.
The expedition was delayed through several causes, but on October 18 Superintendent Sadleir wrote to Sub-Inspector Pewtress, the officer in charge of Mansfield, as follows:—
“It has been decided to carry out the plan proposed by me on August 10 last, but which has unavoidably been delayed. I wish the party to start work early on Tuesday next (22/10/78) from each end, i.e., from Mansfield and Greta. As I have already informed Sergeant Kennedy by telegraph, he will be required here to consult with the other sub-officers engaged in this matter. Let him come by to-morrow’s coach, bringing a plain saddle with him, as I wish to take back a horse specially fitted for this expedition. Constable McIntyre and Constable Scanlan will also form two of the party from Mansfield end.”
“P.S. — This matter must be dealt with by everyone concerned as strictly confidential.”
On October 21 (Monday) Superintendent Sadleir gave final instructions:—
“A party which will consist of Sergeant Kennedy, Constables McIntyre, Scanlan and Lonigan will start from Mansfield on Friday next, commencing the search for offenders Kelly from the Wombat end.
“Constable Lonigan is ordered to report at Mansfield on Wednesday next (23/10/78), but should he not arrive in time the party must start without him. Both Constables Scanlan and Lonigan can recognise Kelly should they be so successful as to come upon him. The other party start from this end on Friday morning. The men forming it are:— Senior Constables Strahan and Shoobridge and Constables Thom and Ryan.”
On Thursday, October 24, a gold escort from Woods’ Point arrived at Mansfield in charge of Senior-Constable John Kelly, and with Benalla as its destination. Senior-Constable Kelly was met at the coach by Sergeant Kennedy. The latter, in confidence, informed Senior-Constable Kelly that he was going out in search of the Kellys. Kennedy asked Kelly to let him have a Spencer rifle, which Constable Horwood of the escort party had with him. Senior-Constable Kelly replied that as they only had one rifle between them it would be very injudicious to part with it, but after some consideration he said: “Get a second revolver and give it to Horwood and you can have the rifle.” This was the long-range weapon that Constable Scanlan carried and used in the fatal expedition.
The police left Mansfield before daylight as a party of diggers on Friday morning, October 25. The party comprised Sergeant Michael Kennedy and Constables Scanlon, Lonigan and McIntyre, the latter being the cook or rouseabout of the party. They arrived at the spot where Sergeant Kennedy had intended to establish a depot as a base from which to explore that part of the country. They arrived early in the day, and made their camp. The police were attired in civilian clothes, and resembled a party of prospectors, and under ordinary circumstances would doubtless have succeeded in their mission to Stringybark Creek. But the men they sought considered that a state of war existed between them and the police, and knowing that the police were in every way better prepared and better armed they were ever watchful. It is doubtful whether any disguise would have succeeded in passing their scrutiny.
Source:
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 63-71
Editor’s notes:
axiom = a proposition, principle or rule which is commonly accepted as true; a self-evident truth
Wm. = an abbreviation of the name “William”
[Editor: Corrected “murders of Lonergan” to “murders of Lonigan”; “Constables Scanlan” to “Constables Scanlon”.]
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