The Complete Inner History of the KellyGang and their Pursuers (83)

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CHAPTER XXI

continued

Senior constable Kelly and Sergeant Steele were called to prove the capture of Ned Kelly at the “Siege of Glenrowan.”

Constable McIntyre was the only witness who could give any direct evidence in connection with the charge of murdering Constable Lonigan.

The evidence of the following prisoners at Faithful’s Creek - George Stevens, Wm. Fitzgerald, Henry Dudley, Robert McDougall, J Gloster, Frank Beecroft and Robert Scott - could not prove that they knew, of their own knowledge, that Ned Kelly shot Lonigan at Stringybark Creek, and such evidence should not have been admitted at all.

The evidence of Constable Henry Richards, EM Living and JW Tarlton, all of Jerilderie, was intended to prove that they had reliable knowledge that Ned Kelly had shot Lonigan on the banks of Stringybark Creek, although their reliable knowledge was some remarks made by Ned Kelly when at Jerilderie. When Ned Kelly made any remarks which could be used against him these remarks were accepted by the Crown as gospel, but when he made a statement that was strongly in his favour the Crown treated such a statement as a tissue of lies.

Dr S Reynolds, of Mansfield, stated in evidence that there were four wounds on Lonigan’s body. The fatal pellet entering the eye pierced the brain.

This closed the case for the Crown.

Mr Bindon asked that the points in the evidence which he had objected to should be reserved, and a case stated for the full Court.

His Honor: What points do you allude to?

Mr Bindon: All the transactions that took place after the death of Lonigan which were detailed in evidence.

Judge Barry: I think that the whole was put as a part of the proceedings of the day (when Lonigan was shot).

Mr Bindon: There was a period, after the death of Lonigan, when no further evidence was applicable.

Judge Barry: The way the evidence was put was that Lonigan was not killed by the prisoner in self-defence.

Mr Bindon submitted that the only evidence available for the purpose of the prosecution was what had taken place at the killing of Lonigan.

Judge Barry: The point was a perfectly good one if any authority could be shown in support. But he thought the conduct of the prisoner during the whole afternoon after the killing of Lonigan was important to show what his motive was. He must, therefore, decline to state a case. (Argus)

Addressing the jury, Mr Smyth (for the Crown) said that, as the motive of the prisoner had been referred to, he thought that when they found one man shooting down another in cold blood, they need not stop to inquire into his motives. It was one of malignant hatred against the police, because the prisoner had been leading a wild, lawless life, and was at war with society. He had proved abundantly, by the witnesses produced for the Crown, who were practically not cross-examined, that the murder of Lonigan was committed in cold blood. (Age)

So far as he could gather, anything from the cross-examination, the line of defence was that the prisoner considered that in the origin if the Fitzpatrick “case,” as it was called, he and his family were injured, and that the prisoner was therefore justified in going about the country with an armed band to revenge himself upon the police.

Another point in the defence was that because Sergeant Kennedy and his men did not surrender themselves to the prisoner’s gang, this gang was justified in what they called defending themselves and murdering the police. He asked, would the jury allow this state of affairs to exist? Such a thing was not to be tolerated, and he had almost to apologise to the jury for discussing the matter.

The prisoner appeared to glory in his murdering of the police. Even admitting the prisoner’s defence that the charge of attempting to murder Constable Fitzpatrick was an untruthful one, it was perfectly idle to say that this would justify the prisoner in subsequently killing Constable Lonigan because he was engaged upon the duty of searching for the Kelly Gang.

It would not be any defence to say that Lonigan was shot by some other member of the gang, because the whole gang was engaged in an illegal act. He thought it was not an unfair inference to draw that McIntyre was kept alive until his superior officer arrived only to be murdered afterwards, and thus not a living soul would have been left to tell the sad tale of how these unfortunate men met their deaths at the hands of this band of assassins. The prisoner wanted to pose before the country as a hero, but he was nothing less than a petty thief, as was shown by the fact that the gang rifled the pockets of the murdered men.

The murders committed were of a most cowardly character, and the prisoner had shown himself a coward throughout his career. The murders that he and his companions committed were of a most bloodthirsty nature. They never appeared in the open excepting they were fully armed and had great advantage over their victims.

Mr Bindon, in addressing the jury for the defence, said it was his intention, in conducting the case, not to refer to or introduce a variety of matters which had nothing to do with the present trial; but, unfortunately, his intentions were rendered futile by the Crown, who brought forward a number of things foreign to the present case. (Argus)

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