While it is popularly considered that Ned Kelly’s lawless life came effectively to an end upon his capture at Glenrowan – his execution a foregone conclusion and his trial merely a formality – the last burst of Ned’s fighting spirit came forward when given the opportunity to speak after being found guilty by the jury at his trial.in the Melbourne Supreme Court. The transaction between Kelly and Sir Redmond Barry, his judge, has often been considered to be one of the most remarkable occurrences in a trial in Australian history. Ned’s unadulterated and unshakeable belief in his own abilities is displayed brazenly as he asserts that he could have single-handedly changed the result of the trial. Barry, meanwhile, takes the opportunity to bemoan that such lawlessness continues despite the consequence – death – being what a rational person might deem a deterrent. Such a remarkable exchange was this that it was published in full in the press. The following transcript of the argument comes from the Queanbeyan Age.
Queanbeyan Age (NSW : 1867 – 1904), Wednesday 3 November 1880, page 4
TRIAL OF NED KELLY.
The trial of Kelly was resumed on Friday morning. The attendance on the part of the public was much smaller, and there was an absence of all excitement. Prisoner appeared listless at times, but generally paid great attention to the evidence. The witness examined were Frank Beecroft, draper’s assistant; Scott, bank manager at Euroa; Henry Richards, constable at Jerilderie; Edward Living, clerk in the bank of New South Wales, Jerilderie; J. W. Tarleton, senior-constable Kelly, and sergeant Steele. This closed the case for the Crown, and Mr. Bindon addressed the Court for prisoner. When he concluded his speech, Judge Barry summed up, only occupying a few minutes, and the jury brought in a verdict of guilty. The prisoner, having been asked in the usual way if he had any statement to make, said, “Well, it is rather too late for me to me to speak now. I thought of speaking this morning and all day, but there was little use. There is little use blaming anyone now. Nobody knew about my case except myself, and I wish I had insisted on being allowed to examine the witnesses myself. If I had examined them I am confident I would have thrown a different light on the case. It is not that I fear death; I fear it as little as to drink a cup of tea. On the evidence that has been given, no juryman could have given any other verdict that is my opinion. But, as I say, if I had examined the witnesses, I would have shown matters in a different light, because no man understood the case as I do myself. I do not blame anybody, neither Mr Bindon nor Mr Gaunson; but Mr Bindon knew nothing about my case. I lay blame. on myself that I did not get up yesterday and examine the witnesses; but I thought that if I did so it would look like bravado and flashness.”
The Court-crier having called upon all to observe a strict silence whilst the Judge pronounced the awful sentence of death, his Honor then said,— “Edward Kelly, the verdict pronounced by the jury is one which you must have fully expected.”
The prisoner: “Yes, under the circum- stances.”
His Honour: “No circumstances that I can conceive could have altered the result of your trial.”
The prisoner: “Perhaps not from what you now conceive, but if you had heard me examine the witnesses it would have been different.”
His Honor: “I will give you credit for all the skill you appear to desire to assume.”
The prisoner: “No, I don’t wish to assume anything. There is no flashness or bravado about me. It is not that I want to save my life but because I know I should have been capable of clearing myself of the charge, and I could have saved my life in spite of all against me.”
His Honour: “The facts are so numerous and so convincing, not only as regards the original offence with which you are charged, but with respect to a long series of transactions, covering a period of eighteen months, that no rational person would hesitate to arrive at any other conclusion but that the verdict of the jury is irresistable, and that it is right. I have no desire whatever to inflict upon you any personal remarks. It is not becoming that I should endeavor to aggravate the sufferings with which your mind must be sincerely agitated.”
The prisoner: “No; I don’t think that; my mind is as easy as the mind of any man in this world, as I am prepared to show before God and man.”
His Honour: “It is blasphemous for you to say that. You appear to revel in the idea of having put men to death.”
The prisoner: “More men than I have put men to death, but I am the last man in the world that would take a man’s life. Two years ago — even if my own life was at stake — and I am confident, if I thought a man would shoot me — I would give him a chance of keeping his life, and would part rather with my own; but if I knew that through him innocent persons’ lives were at stake, I certainly would have to shoot him if he forced me to do so, but I would want to know that he was really going to take innocent life.”
His Honour: “Your statement involves a cruelly wicked charge of perjury against a phalanx of witnesses.”
The prisoner: “I dare say; but a day will come, at a bigger Court than this, when we shall see which is right and which is wrong. No matter how a man lives he is bound to come to judgment somewhere, and as well here as anywhere. It will be different the next time there is a Kelly trial, for they are not all killed. It would have been for the good of the Crown had I examined the witnesses, and I would have stopped a lot of the reward, I can assure you, and I don’t know but I won’t do it yet if allowed.”
His Honour: “An offence of this kind is of no ordinary character. Murders had been discovered which had been committed under circumstances of great atrocity. They proceeded from motives other than those which actuated you. They had their origin in many sources. Some have been committed from a sordid desire to take from others the property they had acquired; some from jealousy; some from a desire of revenge; but yours is a more aggravated crime, and one of larger proportions; for, with a party of men, you took arms against society, organised as it is for mutual protection and for respect of law.”
The prisoner: “That is how the evidence came out here. It appeared that I deliberately took up arms of my own accord, and induced the other three men to join me for the purpose of doing nothing but shooting down the police.”
His Honour: “In new communities, where the bonds of societies are not so well linked together as in older countries, there is unfortunately a class which disregards the evil consequences of crime. Foolish inconsiderate, ill-conducted, and unprincipled youths unfortunately abound, and unless they are made to consider the consequences of crime, they are led to imitate notorious felons whom they regard as self-made heroes. It is right therefore, that they should be asked to consider, and reflect upon what the life of a felon is. A felon who has cut himself off from all, and who declines all the affections, charities and all the obligations of society is as helpless and as degraded as a wild beast of the field; he has nowhere to lay his head; he has no one to prepare for him the comforts of life; he suspects his friends, and he dreads his enemies. He is in constant alarm lest his pursuers should reach him, and his only hope is that he might lose his life in what he considers a glorious struggle for existence. That is the life of an outlaw or felon; and it would be well for those young men who are so foolish as to consider that it is brave of a man to sacrifice the lives of his fellow-creatures in carrying out his own wild ideas, to see that it is a life to be avoided by every possible means, and to reflect that the unfortunate termination of the felon’s life is a miserable death. New South Wales joined with Victoria in providing ample inducement to persons to assist in having you and your companions apprehended; but by some spell, which I cannot understand — a spell which exists in all lawless communities more or less and which may be attributed either to a sympathy for the outlaws, or a dread of the consequences which would result from the performances of their duty — no persons were found who would be tempted by the reward, or love to country, or the love of order, to give you up. The love of obedience to the law has been set aside, for reasons difficult to explain, and there is something extremely wrong in a country where a lawless band of men are able to live for eighteen months disturbing society. During your short life, you have stolen, according to you own statements, over 200 horses.”
The prisoner: “Who proves that?”
His Honour: “More than one witness has testified that you made that statement on several occasions.”
The prisoner: “That charge has never been proved against me and it is held in English law that a man is innocent until he is found guilty.”
His Honour: “You are self-accused. The statement was made voluntarily by yourself that you and your companions committed attacks on two banks, and appropriated therefrom large sums of money amounting to several thousands of pounds. Further, I cannot conceal from myself the fact that an expenditure of £50,000 has been rendered necessary in consequence of acts which you and your party have been connected in. We have had samples of felons, such as Bradley and O’Connor, Clarke, Gardiner, Melville, Morgan, Scott and Smith, all of whom have come to ignominious deaths. Still the effect expected from their punishment has not been produced. This is much to be deplored. When such examples as these are so often repeated society must be reorganised, or it must soon be seriously affected. Your unfortunate and miserable companions have died a death which probably you might rather envy, but you are not offered the opportunity.”
The prisoner: “I don’t think there is much proof they did die the death.”
His honour: “In your case the law will be carried out by its officers. The gentlemen of the jury have done their duty, and my duty will be to forward to the proper quarter the notes of your trial, and to lay before the Executive all the circumstances connected with your trial that may be required. I can hold out to you no hope, and I do not see that I can entertain the slightest reason for saying that you can expect anything. I desire to spare you any more pain, and I absolve myself from saying anything willingly in any of my utterances that may have unnecessarily increased the agitation of your mind. I have now to pronounce your sentence.” His Honour then sentenced the prisoner to death in the usual form, ending with the usual words, “May the Lord have mercy on your soul.”
The prisoner: “I will go a little further than that, and say I will see you there where I go.”
The court was cleared and the prisoner was removed to the Melbourne gaol. Everything was quiet, and nothing approaching to any scene occured, although some of Kelly’s relatives were in court.