The Complete Inner History of the KellyGang and their Pursuers (84)

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CHAPTER XXI

continued

The question still remained how far this material was to be used in influencing the jury in arriving at a verdict. According to all principles of fairness and justice, these matters should not have been brought forward, because the only thing that the jury was concerned in was the shooting of Lonigan. With the shooting of Kennedy and the proceedings at Glenrowan and at Jerilderie the jury had nothing whatever to do at present, and he therefore requested them to keep these things from their minds.

In McIntyre’s evidence a long account was given of what took place in the Wombat Ranges, but he would point out that he had appeared on the scene, not in uniform, but plain clothes, and armed to the teeth. An unfortunate fracas occurred, which resulted in the shooting of Lonigan. The point to which he wished to draw special attention was that the only account of the affair came from McIntyre, who was a prejudiced witness. He thought that McIntyre was not a witness who, under the peculiar circumstances, could give an accurate account of what occurred. McIntyre said he was as cool as possible, but he must have been in such a state of excitement that it could not be expected of him to distinguish correctly what actually did take place. Because the Kellys were found in the bush, it did not follow that they were secreting themselves; on the contrary, they were following their ordinary occupations in this solitary part of the country, when they fell in with this armed party of men.

The Kellys did not know who these people were, and it was the most dangerous doctrine to rest on the evidence of one man, more especially when the charge was that one man shot another deliberately and in cold blood. The evidence of McIntyre should be received with very great suspicion; and with regard to the confessions of the prisoner made at various times, these were uttered either for the purpose of intimidation or to screen others who were associated with him, and therefore the evidence was of no use whatever in corroboration of McIntyre’s version of the transaction. From that point of view, the conversation was merely illusory in its character. Even assuming McIntyre to be the most virtuous man in the world, it was necessary, under the peculiar circumstances, that the jury should receive his statements with the greatest caution. There were only McIntyre and the prisoner who could now say anything of the affair. The prisoner’s mouth was shut, but if he could be sworn, then he would give a totally different version of the transaction. He asked them not to believe McIntyre’s statement as regarded the death of Lonigan. Of course, it would be nonsense to say that Lonigan was not shot, but the point was by whom was he shot? The deaths of Kennedy and Scanlan were not to be allowed to influence the minds of the jury in arriving at a verdict on the first case. There was no ground for the Crown to say that the police had fallen amongst a lot of assassins. The whole career of the prisoner showed that he was not an assassin, a cold-blooded murderer, or a thief. On the contrary, he had proved himself to have the greatest possible respect for human life. The story of McIntyre was too good to be true. It showed the signs of deliberate and careful preparation, and of being afterwards carefully studied.

He would ask: Would the jury convict a man upon the evidence of a single witness, and that a prejudiced witness? If they had the smallest doubt, he trusted the jury would give a verdict in this case different from that which the Crown expected.

His Honor Judge Barry, in summing up, said that if two or three men made preparations with malice aforethought to murder a man, even if two out of the three did not take part in the murder, all were principals in the first degree and equally guilty of the crime. They aided and abetted, and were as guilty as the man who committed the crime. The fact that the police party were in plain clothes had nothing whatever to do with the case. The murdered men might be regarded as ordinary persons travelling through the country, and they might ask themselves what right had any four men to stop them and ask them to surrender or put up their hands. These men were charged with the discharge of a very responsible and dangerous duty; they were executive officers of the law, in addition to being ordinary constables, and no person had a right to stop or question them. (Age)

The counsel of the defence had also told the jury to receive the evidence of McIntyre with very great caution; but he would go further and hope that the jury would receive and weigh all the evidence with caution. It was not necessary to have McIntyre’s evidence corroborated, and he asked the jury to note the behaviour of McInyre in the witness box, and say whether his conduct was that of a man who wanted to deceive.

It was not necessary for him to go through the evidence, as it was so fresh on the memory of the jury. They were not to suppose that the prisoner was on his trial for the murder of Kennedy and Scanlan. The charge against him was the murder of Lonigan, and the object of admitting the whole of the evidence subsequent to the shooting of Lonigan was to give the jury every opportunity to judge the conduct of the prisoner and his intentions during that particular day. With regard to the other part of the case—the confessions made by the prisoner at various times—they had not alone to consider the confessions themselves, but also the circumstances under which they were made. They were not made under compulsion, but at a time when the prisoner was at liberty, and if he made these confessions in a spirit of vain glory, or with the desire of screening his companions, he had to accept the full responsibility.

Counsel for the defence said that the prisoner’s mouth was closed and that if it was not closed he could tell a different story to the one told by McIntyre.

But the fact was that the prisoner’s mouth was not closed. That he could not give sworn testimony was true, but he could have made a statement which, if consistent with his conduct for the last eighteen months, would have been entitled to consideration; but the prisoner had not done so. As to whether the prisoner shot Lonigan or not, that was an immaterial point. The prisoner was engaged with others in an illegal act; he had pointed a gun at McIntyre’s breast, and that circumstance was sufficient to establish his guilt. The jury would, however, have to regard the evidence as a whole, and accordingly say whether murder had been committed. It could not be manslaughter. The verdict of the jury must either be guilty of murder or an acquittal.

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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