The Complete Inner History of the KellyGang and their Pursuers (16)

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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."

Strange words indeed, from a police magistrate who had sworn to do justice without fear or favour!

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, Scanian 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 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, 1 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 Benalia, 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:-

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This document gives you the text of this book about the KellyGang. The text has been retyped from a copy of the original. We have taken care to reproduce this document but areas of the original text may been damaged. We also apologise for any typographical errors. JJ Kenneally was one of the first authors to tell this story from the KellyGang's point of view