August 13th 2005

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Articles from this issue:

COVER STORY: BRAZIL: The slippery road to communist dictatorship

EDITORIAL: Australia's clean, green image at risk

CANBERRA OBSERVED: Howard Government's industrial relations pain

SCHOOLS: Subverting the English curriculum

NATIONAL SECURITY: Re-thinking Australia's response to terrorism

ECONOMICS: Ethanol and the national interest

CONSTITUTION: What is wrong with a Bill of Rights?

FAMILY LAW: Paternity fraud penalises the innocent

UNITED STATES: John G. Roberts and the US Supreme Court

STRAWS IN THE WIND: How to lose with a royal flush / Hard cases / Another 'bottom of the harbour' scheme? / Waste disposal

CINEMA: 'Vigilante justice' and movie culture

FORTHCOMING TOUR: The 'Mother Teresa of Africa' to tour Australia

Better way to help African poor (letter)

Clinical judgement on treatment of dying (letter)

Serious omission (letter)


BOOKS: NED KELLY'S LAST DAYS: Setting the record straight on the death of an outlaw

Books promotion page

NED KELLY'S LAST DAYS: Setting the record straight on the death of an outlaw

by Michael Daniel (reviewer)

News Weekly, August 13, 2005
Was Ned Kelly convicted justly?

Setting the record straight on the death of an outlaw
by Alex C. Castles and Jennifer Castles

Sydney: Allen & Unwin
Paperback RRP: $26.95

One hundred and twenty-five years after his stand at Glenrowan and his execution, Ned Kelly remains a subject of interest, as the plethora of studies and newspaper articles on him indicates.

This recent posthumous work by Alex Castles - lately emeritus professor of law at the University of Adelaide - focuses on often-neglected aspects of the Kelly story, namely the 137 days from his arrest to his execution.

Although written for the general public, Castles not only explores, in chronological order, the events leading up to Kelly's execution, but also focuses on the legal issues surrounding his status and trial.

It seems that members of the government and police did not expect him to be captured alive. By declaring him an outlaw, it was hoped that he would be shot, rather than captured.

Although an intensive manhunt had been organised, which included careful surveillance of the ports, many had assumed that he had simply escaped to another colony or overseas, particularly when informers who kept a close watch on the local economies of the north-east indicated that the cash reserves from the Euroa and Jerilderie robberies, which had been distributed to Kelly supporters and accomplices, had dried up.

Thus, the news of the murder of Aaron Sherritt, which immediately preceded the stand at Glenrowan, and which signalled the presence of the Kelly gang, came as a surprise to many.

Upon his capture, both the outgoing government and its successor did everything they could to secure a guilty verdict, leading to execution. For example, contrary to protocol, Kelly did not appear in the local court upon his capture, but was transferred to Melbourne.

Similarly, the judge deliberately chosen to preside over the case, Redmond Barry, had a reputation for meting out severe penalties to malefactors.

The most complex aspect of Kelly's plight upon capture was his outlaw status. Being outlawed was the equivalent of being already convicted of a crime, and it was a legal principle that one could not be tried for an offence for which one had already been "convicted".

However, he could not be summarily executed upon capture because of the cessation of the outlaw act just before his capture.

Furthermore, as outlaws were, by the authorities' definition, no longer persons at law, they could not be charged for offences they committed after being declared outlaws. In Ned Kelly's case, this meant any deed committed immediately after the Stringybark killings in 1878.

Thus, he was charged with the murder of Constable Lonigan, being convicted largely upon the eyewitness testimony of Constable McIntyre.

While Kelly had an adroit solicitor, David Gaunson, Kelly's trial was the first in which his barrister, Bindon, had acted as counsel for the defence.

The jury, comprising largely of lower middle-class tradesmen, reached a unanimous verdict after 15 minutes.

Ned Kelly's Last Days is an extremely well-written and interesting account of the Kelly saga, dealing particularly in matters which are often overlooked.

Perhaps the chief strength of this work is that Castles successfully explains the complex political and legal background in a manner that makes it accessible to the general reader.

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