This account by Wangaratta Lawyer John Suta has been available online for several years, but recently it was used as the basis for a FB post that asked “Did Ned Kelly get a fair Trial from Judge Redmond Barry?” Wangaratta Lawyer Mr John Suta doesnt think so and in 2013 presented a paper explaining why to the Australian Law Alliance.
Before reviewing Sutas paper there are a couple of points to make at the commencement: opinions differ among legal experts about the quality of Kellys trial for the murder of Lonigan but nobody seems to doubt that if he had been acquitted of Lonigans murder, he wouldn’t have escaped conviction for killing Kennedy. Nobody has ever argued that Kennedys murder was an act of self-defence, so in the end, Kelly was always going to hang. This reality renders arguments about alleged deficiencies in the Lonigan murder trial more or less irrelevant in regard to Kellys ultimate fate. Interesting to discuss, perhaps, but in the long run, pointless.
Suta revealed his allegiances at the beginning of his paper, and they make it abundantly clear that his perspective is very much that of a partisan, a sympathiser and defender of the Kelly legend. He declared that he has a “passionate interest in the life of Ned Kelly” and that he had been given the ‘privilege’ of acting for Kelly descendants in relation to the reburial of Ned Kellys bones at Greta in 2013. He said that a replica of Kellys green and gold sash given to him by Kelly descendants is one of his “most prized possessions”. He also declared “I make it abundantly clear that I am not a criminal Lawyer”.
The lecture is cleverly written but is a highly subjective and very obvious promotion of standard Kelly mythology, that has not aged well, because many of the assertions that Sutas arguments are based on have been discredited since they were made. For example Suta repeats all the lies that Kelly sympathisers love to spread about what happened when Fitzpatrick went to the Kelly house to arrest Dan Kelly. Suta says Fitzpatrick was “encouraged by brandy” and “full of drink” and “smelt strongly of alcohol”. None of those claims are true, and the person who said Fitzpatrick ‘smelled of alcohol’ ( not smelled STRONGLY of alcohol) then added the vital qualification that Suta left out : “but he was certainly not drunk”. Suta repeats the lie that Fitzpatrick “made a pass at Ned Kellys sister”. There are many other minor falsities and slurs in Sutas article : too many to mention.
Sutas belief is that Kelly didn’t get a fair trial mostly because Kellys Barrister, Henry Bindon was incompetent. Suta repeatedly excoriates Bindon for many failures that Suta claims to have identified in the trial, and in particular singles out his failure to use the plea of self-defence. Sutas argument is that Kelly had a compelling case and if someone competent had been acting for him, such as Kellys preferred barrister Hickman Molesworth, Bindon’s failures wouldn’t have happened, the plea of self-defence would have been properly put and the outcome would have been different. Suta makes no mention of the fact that the reason Kelly ended up with Bindon was because nobody in the alleged legion of Kelly sympathisers supposed to be widely distributed throughout Victoria could spare the money to get him a better one. With Sympathiser support like that Kelly didnt need enemies!
In fact, other legal commentators disagree with Suta on this point, and have argued that the outcome of a retrial, even a legally impeccable retrial may well have arrived at the same conclusion as the original one.
I think there is another important fault in Sutas argument that lays so much of the blame on Bindon for the outcome of the trial, something I don’t recall reading mentioned elsewhere: Bindons involvement in the case was certainly very late in the piece, but he wasn’t acting alone. He was assisted by the much more experienced Lawyer David Gaunson who first met Kelly when he represented him in August 1880 at the Committal trial in Beechworth. Over several days Gaunsons cross examinations and deliberations made no mention of ‘self-defence’ as a possible plea, and subsequently, though Gaunson had many weeks to develop a strategy, and would surely have left no stone unturned in his search to find the best defence for his client, self-defence never became part of the strategy. Even though time was short by the time Bindon arrived on the scene, Gaunson must have already had many thoughts and ideas about strategy and tactics, and he and Bindon would surely have developed their strategy together. Its unthinkable that the self-defence plea wasn’t considered – but neither during the proceedings or at the end in his summing up did either Gaunson at Beechworth or Bindon at Melbourne ever once raise the self-defence plea. Logically, that could only have been for one reason: they didnt believe it would be successful. This fact alone is a powerful argument against the claim by modern Kelly apologists like Suta and Stuart Rowsell that a plea of self-defence would have led to an acquittal or at worst, a conviction for manslaughter.
Various Kelly apologists have suggested Barry prevented Kellys team from using the self-defence plea, and Suta claims in his lecture that Barry should have directed the Jury to consider it. Both those claims are false as others such as Alice Richardson have pointed out. She said it beautifully in her excellent talk at the Greta and Hansonville Hall Kelly symposium on ‘Ned and the Law’ as recently as February 2020 : “In our legal system legal issues to be debated in Court are set by Counsel, by the prosecutor and the defence, NOT by the Judge……if the self-defence ball is never thrown onto the playing field then how can the judge make a ruling on it?”
Never-the-less, at great length, Suta assembles an argument for self-defence that he thinks would have led to an acquittal. In responding to it, the prosecution would likely firstly point out several errors of fact in Sutas argument such as the claim that the police were “armed to the teeth” and carried Spencer repeating “rifles” (plural) No, they were NOT ‘armed to the teeth’ by any measure; what they had between the four of them in addition to their standard issue revolvers was ONE borrowed Spencer rifle, and ONE borrowed shotgun. Suta alludes to the claim that by being dressed in ordinary clothes the police were in disguise – not true – and, he says, they bought “canvas body bags and several long straps”, hinting this could only mean police had plans to take back corpses. The body bags/straps claim is a myth – they took handcuffs for use on the living. Suta says that they should also have brought arrest warrants – no, not true, they did NOT need to bring them, and he says that while hiding in the wombat burrow McIntyre wrote “Lonigan had reached for his gun and been shot” – actually McIntyres note mentions Scanlan not Lonigan.
Sutas ‘self defence’ claim relies largely on the false claim that Ian Jones forcefully promoted about McIntyre, that he committed perjury at trial. This argument relies on three things, the first being that minor variations in the several statements that McIntyre was obliged to make after the incident amounted to ‘perjury’, the purpose of it being to deny Kelly the chance to mount the plea of self-defence.
So, for example, Suta complains (p19) that in an 1878 statement McIntyre said Lonigan “endeavoured to get behind a tree’ but in the July 1880 statement he said Lonigan “had no time to get under cover” . These two statements are actually perfectly compatible, and by any fair minded assessment the variations are a difference without a distinction, with no real or practical implications. Sutas complaint about minor variations is petty and deeply unconvincing.
The second part of the attack on McIntyre’s credibility focusses on the claim made by Ian Jones which says that one of McIntyre’s first accounts very closely matched Ned Kellys, but all the subsequent ones didn’t. The bit Jones and Suta say was purposely omitted in order to weaken any possible self-defence claims, related to Kellys statement that Lonigan got himself behind logs, drew his pistol and was aiming at Kelly when he was shot. Suta: “McIntyre did not say what he had previously said, namely that Lonigan had ran behind a log”.
In fact this claim couldn’t have been made at the time of the trial because a claim that McIntyres early statements were similar to Ned Kellys wasn’t made until 1913 when Sadleir published his “Recollections” which, 35 years after the event were faulty. There is NO document containing a statement from McIntyre that supports Sadleir’s claim : he simply misremembered. Another weak and unconvincing argument from Suta.
The last part of Sutas attack on McIntyre’s credibility is an attempt to show that the forensic evidence proves that Lonigans thigh wound was self-inflicted. For many decades nobody was able to explain why Kelly and McIntyre agreed that Lonigan was shot only once but at his postmortem examination four wounds were identified. Jones said Lonigans corpse, lying in the grass must have been hit during the later gunfight between Kennedy and the Gang. Others said the Gang must have shot his corpse in some sort of bonding ritual before they left. Suta says the thigh wound was self inflicted :
Suta (p17): “Lonigan accidentally shot himself while drawing his revolver or immediately after he had drawn”. This would mean TWO shots were fired and so, according to Suta, McIntyre must have lied in saying Lonigan hadn’t drawn his weapon and that only one shot was fired.
One struggles to imagine how Lonigan could have shot himself in the thigh and then calmly raise his head above the logs to aim at Kelly: I would imagine him collapsing in agony! A point-blank discharge of a powerful Webley revolver into his thigh would have been agonising, it would have left a large powder burn around the entry wound, something that Reynolds would have noticed and reported but didnt, and the bullet would have travelled a long way further than just from one side of Lonigans thigh to the other. These considerations render Sutas self-inflicted wound theory highly implausible .
However, since Suta wrote his article its become clear that Kellys gun wasnt loaded with a single bullet but multiple lead projectiles of some kind, several of which found their target, and one of which entered Lonigans thigh from the side. At Kellys trial Dr Samuel Reynolds testified that the lead fragment he extracted from Lonigans thigh at the post mortem examination was “as of” a revolver, meaning it looked like a revolver bullet…but it was in fact one of the several small lead fragments that hit Lonigan simultaneously, and killed him almost immediately. Sutas claim it had to have been an actual revolver bullet is wrong.
The reality in 2025 is that Sutas 2013 argument that the forensic evidence shows McIntyre lied has been rendered obsolete by the ongoing evolution and deepening understanding of the events at SBC. Lonigan did not shoot himself in the thigh. In fact what the forensic evidence shows is that it was Ned Kelly who lied about Lonigan’s death. Kelly said Lonigan got behind logs and drew his gun : McIntyre consistently said Lonigan never had a chance to draw his gun and was shot out in the open within seconds of the command to “Bail up”. McIntyre’s description is what the forensic evidence overwhelmingly supports.
In summary, Suta has failed to make the case that Kelly would be acquitted in a retrial in which a self-defence plea would be put by a competent Barrister instead of Bindon, and Barry was replaced. His claim that Barry should have advised the Jury to consider a defence that the defence itself hadnt offered is now known to be wrong. The forensic evidence shows Kellys description of how Lonigan died were self-serving lies. McIntyres statements were not perjury but were consistent with the forensic evidence, and the alleged disparities between his various statements were differences without distinction.
Kellys trial may not have been perfect – have any trials ever been perfect ? – but all legal commentators apart from Suta have agreed that if Kelly did get an ideal trial, the outcome may well have been the same. Its hard to imagine a Jury acquitting an accused murderer who had been shown to have lied about what happened.
Hi David, this link might help others find the Suta paper, https://johnsutalegal.com.au/wp-content/uploads/2020/12/Ned-Kelly-Trial-John-Suta.pdf
On p. 3 Suta wrote that in 2013 the Chief Justice of the Victorian Supreme Court was quoted as saying that “Sir Redmond Barry applied the law as it was then to the case of Ned Kelly when he was charged with the murder of Constable Thomas Lonigan.” Suta did not name the 2013 Chief Justice there, but it was Marilyn Warren QC, who held the position from November 2003 to October 2017 and presumably knew a thing or two about the law.
She succeeded John Harber Phillips QC who was Chief Justice from December 1991 to October 2003. Phillips is best known to Kelly nuts from his 1987 book, ‘The Trial of Ned Kelly’. Warren would certainly have read that and clearly rejected any notion that Barry did not act in accordance with the law of the day. So while Suta quoted Warren’s comment it has dripped off him like water from a duck’s back.
Phillips also uncritically followed Jones in giving credence to the ridiculous Kelly Republic myth, in his 2003 Kerferd Oration. Legal eagles aren’t necessarily good historians. Such is life.
Just one quick comment: if Kelly had not been convicted of Lonigan’s murder he would next have been tried for the murder of Scanlon, not Kennedy. The Beechworth committal hearings were for the murders of Lonigan and Scanlon, both of which McIntyre witnessed, not for the murder of Kennedy which he did not witness. Kelly was committed for trial for both murders but only the first trial for Lonigan proceeded.
In the unlikely event that Kelly was to be acquitted of both murders a long list of other charges beckoned, including the two bank robberies and attempted train derailment. He wan’t going anywhere.
Thanks Stuart, as always excellent observations. I was aware that papers had been prepared in regard to Scanlans murder, and I have always wondered why they did that instead of trying him for the killing of Kennedy, which to my untrained eye seems like a better prospect for a conviction. Kelly admitted chasing after Kennedy, shooting and wounding him and then finishing him off.
Does anyone know why Scanlans case was selected and not Kennedys?
Some people – I think Kelly apologists – have said that it was because there was no eye-witness account other than Kellys of Kennedys death, whereas there was of Scanlans – McIntyre saw that as well. These people seem to think that without an eyewitness a conviction cant be obtained but my impression of murders in general is that very often the only witness was the killer..and the killer still gets convicted.
Just wondering…
Eye witness is the answer. Louis Waller covers this in passing in his Regina vs Kelly essay in Man & Myth 1968.
Eye witness is the answer.
On page 23 of his paper Suta wrote, “Sir James Stephens a Justice of the English High Court and an extremely renowned academic and writer on criminal law in 19 Century England, stated the relevant legal principles which should have been applied by Sir Redmond Barry in Ned’s case are as follows: – ‘If a person assaulted in such manner as to put him in immediate and obvious danger of instant death or grievous bodily harm, he may defend himself on the spot and may kill or wound the person by whom he was assaulted’. (A Digest of the Criminal Law 6th Edition 1904) (Page 159).”
This is utter nonsense. I have attached the page from the book to which Suta refers. The section is Article 200, Private Defence, in which a person is defending himself from unlawful violence. Suta didn’t quote the start of the section and so misapplied it. It has nothing to do with a party of men bailing up police officers in a forest. Even if they had not known the men were police – which they did – they had no right whatsoever to bail them up, as Barry corectly pointed out.
Good grief.
Attachment James-Fitzjames-Stephen-A-Digest-of-the-Criminal-Law-6th-edn-1904.pdf
“…Even if they had not known the men were police – which they did – …”
They certainly did know they were stalking police — despite the “trial re-run” brigade usually claiming they didn’t — because Ned in his outlaw years said he realised he was following tracks of POLICE horseshoes !
Hi David, I put this on the previous blog post but it is much more relevant to this topic, so I’m reposting it here.
I saw on Facebook (which I don’t have but can sometimes see some of the most recent comments before the page blocker gets me) that Alice said, “It wasn’t known until 2015, when Alex Castles wrote his book, that Kelly should have never had a trial – Castles said that the Outlaw legislation deemed Kelly guilty and double jeapordy means you can’t try someone for a crime which they’ve already been found guilty).”
This is not correct. Castles got it wrong; there was no “double jeopardy”. Kelly had not been found guilty before his outlawry, which was essentially a greatly expanded warrant to apprehend for trial if he did not surrender himself for trial with the specified time. Australian outlawry was quite different from English outlawry which did amount to the outlawed felon being legally guilty; a wolf’s head. I documented that in my “Ned Kelly Outlawed: The Victorian Felons Apprehension Act 1878”, law&history 8.1 (2021) 134-157. Google the title to find it.
David, if you want to copy this over to Fakebook feel free. I’m never getting that dodgy app.
The claim that Kelly didn’t get a fair trial only makes sense if the context is clearly intended to mean that Kelly didn’t get a fair trial under the law and criminal procedures of his day, i.e. in 1880. This in turn can only mean the claim is that either the established legal process for ciminal trials was not followed correctly in Kelly’s case, and/or that Judge Barry made errors in law in hearing the case, and/or that Barry erred in his instructions to the jury. If there are any other grounds for making a claim that Kelly didn’t get a fair trial I am yet to see them.
None of those three reasons stack up. Trying to blame Bindon for alleged inexperience as a barrister is irrelevant to the unfair trial claim. Gaunson was Bindon’s instructing solicitor and he knew Kelly’s case backwards. Kelly’s claim that Bindon knew nothing of his case is a disingenuously stupid furphy that has led many astray to seek meaning in irrelevancy. John Philips tripped in this hole in his ‘Trial of Ned Kelly’, giving the notion undeserved credence. Many others followed… Time to do better.
It’s been a few days now and I’ve been hoping some visitor or other would put up a couple of other reasons to claim that Kelly didn’t get a fair trial. I’m sure there must be someone who has seen another claim somewhere other than the three I posted. As I said, I can’t think of any more but surely there can’t have been only three arguments about it???
Another blunder in the “experts” treatment of Kelly’s trial: John Phillips QC says in his Trial book p. 16 that Gaunson got McIntyre to agree that a reward had been offered for the two Kelly’s and that it was expressed in terms of dead or alive. This is nonsense, and Phillips gives no reference but has likely followed Jones up the garden path again. Only Kelly had a £100 reward out for his arrest; there was no reward posted for Dan at that point, only a warrant. And it was not for dead or alive. That was only after the SBC murders and subsequent outlawry. It was amateur hour at the Supreme Court bar 🍷 when that was written!
Wasn’t Philips that guy who was giving a presentation on the Kelly Gang, and said that the republic thing would have to be true, because it came from an eminent historian who knew his stuff. ..?
Not a lawyer I would want to be all that keeps me out of jail…!
BTW – sorry my last message (on NK knowing he was stalking police at SBC) a few minutes ago turned out “anonymous,” I fumbled that !
Hi Tomas, yes that’s the same John Phillips, snd the talk of his about the Kelly Republic was in 2003. If you put Kerferd Oration into the search box on this blog, you will go to a long post about it, and you can download Phillips speech from a link at the bottom of the article.
It shows how pernicious Jones Republic crap was.
Another error from Judge Phillips QC in his Trial of Ned Kelly book. On p. 37 he says that the reason only the trial of Kelly for killing Lonigan was proceeded with is clear enough: McIntyre witnessed Lonigan’s death but Scanlon and Kennedy were both still alive when McIntyre escaped from the police camp, thus suggesting that McIntrye had not witnessed Scanlon’s death. The Kelly-loving rabbit is spiltting hares.
In McIntyre’s Memoir p. 25 McIntyre wrote that he witnessed Scanlon shot under the right arm while kneeling on the ground: “I saw a large spot of blood appear on his coat, which was of a light grey colour, simultaneously with hearing a shot fired by Ned Kelly. By Scanlon’s death the aspect of the case had changed from one of surrender to one of extermination…”. His statement of how and where Scanlon was shot was the same as he gave to the Magisterial Inquiry at Mansfield after the recovery of the bodies.
At the Magisterial Inquiry Dr Reynolds gave autopsy evidence that there were four bullet wounds on Scalon’s body: one on the right hip, one on top of the sternum, one on the right shoulder, and one on the right side resting against the inner surface of the sternum. He found that the bullet lodged inside the sternum had entered from the right side and made a big mess of the organs and that death must have rapidly followed from internal haemorrhage (for full description see VPRS Unit 1, Item 23).
In sum, McIntyre saw Scanlon shot in the right chest with blood spurting out and the post mortem later found this was the fatal shot that caused death. McIntyre thus witnessed Scanlon’s death whether or not he hung around to linger on the spectacle. Phillips is not holding to a point of law but simply demonstrating that he hasn’t read all the evidence: he was a lawyer not a historian and did not do due diligence on this matter before opining that McIntyre hadn’t witnessed Scanlon’s death.
The Magisterial Inquiry by H. Kitchen P.M. found that Ned Kelly and others did wilfully kill and murder Scanlon and Lonigan at SBC (same VPRS reference).
McIntyre also said in his memoir that he “had seen Lonigan and Scanlon shot immediately they attempted to seize their firearms”.
Jones’ questionable attempt in Short Life to blame Dan rather than Ned for firing the fatal shot into Scanlon is irrelevant to the fact of McIntyre witnessing Scanlon’s death. Had the trial of Kelly for murdering Lonigan somehow failed to get a conviction, a full brief had been prepared to prosecute him for the death of Scanlon which would equally have succeeded. The learned Judge was once again wrong in his somewhat careless opinions on the Kelly case.
More lazy errors from Justice John Phillips QC. On p. 37 he writes that warrants were issued for Ned and Dan on charges of “wounding Constable Fitzpatrick with intent to murder him”.
This is only true of Ned’s warrant, and Phillips omits some key words from the warrant “in the execution of his duty”. Phillips thus omits the basis for understanding the point he later wants to make in saying that the purpose of having these pieces of evidence produced and sworn to in court was to establish that Lonigan was later acting with the full authority the law bestowed upon on an arresting constable when he met his death (38).
Dan’s warrant was for aiding and abetting Ned’s attempt to murder Fitzpatrick, not for also attempting this himself.
Phillips has done it again on p. 39: “to search for the prisoner and his brother Dan on a charge of attempting to murder Constable Fitzpatrick”. Got a QC, Phillips is very sloppy with his narratives…
Readers may be wondering why I have been picking away at John Phillip’s “Trial of Ned Kelly” book. It is because while re-reading it I have been perplexed by a number of his statements which are factually wrong, and wondering why he has come up with some of the sillier ones. He has been having repeated attacks on Bindon’s competency, most obviously when he writes of the selection of Bindon for Kelly’s defence on p. 33: “Edward Kelly, on trial for his life for murder, would be represented by the most inexperienced barrister in the colony”.
Phillips later berated Bindon over his cross-examination of McIntyre p. 47, that he ” asked no more than twenty questions and, of that meagre number, less than half related to matters of significance”. The counterpoint to this is that no newspaper published a sentence by sentence rendition of the trial evidence, and no court transcripts were taken of Supreme Court trials in those days. All we have is what the newspapers printed, which were journalist’s shorthand copy that was considerably cut down for reasons of column space, and cut down differently by different papers, and Judge Barry’s trial notes, which are summary points. The claim that he asked only 20 questions of McIntyre may or may not be correct, but it seems unlikely as many more cross-examination questions were asked of McIntyre by Gaunson at the Beechworth committal hearing; and Phillips’ opinion that less than half of Bindon’s questions were about matters of significance is no more than a caustic opinion based on his prior view of Bindon’s inadequacy. We must remember that Bindon was instructed by Gaunson who had acted for Kelly at Beechworth and knew Kelly’s case thoroughly.
Phillips there went on to claim that “In particular, Bindon had entirely failed to challenge McIntyre on his description of Lonigan’s death, which description plainly involved Lonigan being killed without him having made a movement of any kind and without drawing, or even attempting to draw the revolver with which he was then armed. The two prosecutors must have felt that the second significant part of teh case had been presented to the jury without challenge.”
Phillips was wrong. His reason for thinking this is that both the Age and the Argus trial articles report that McIntyre said that Lonigan was in his rear and to the left. “He saw the prisoner [Kelly] move his aim and fire. By glancing around he saw the shot had taken effect, for he [Lonigan] fell.” OK, there’s nothing there about Lonigan moving or attempting to draw his revolver. However, and this is what provoked my suspicion, the Age ‘News of the Day’ on p. 2 of the same issue 29 October 1880 says that “the day’s hearing evidence did not in any material point differ from the witnesses who were examined at Beechworth”. Yet at Beechworth McIntyre did state that Lonigan had reached for his revolver…. So did he say something that wasn’t printed in the report of Kelly’s trial in the Age or the Argus?
Yes, he actually did. Phillips didn’t take his research far enough. There were other reports of Kelly’s trial that due diligence should have encouraged him to read. Both the Daily Telegraph 29 October p. 3 and the Herald 28 October p. 2 reported the above lines, and then half a paragraph later also printed that after Kelly retrieved the dead Lonigan’s revolver, Dan said to Kelly that “Lonigan was a plucky fellow. Did you see how he tried to get at his revolver?, and moved his hand to show how it was done”. McIntyre in the first sentence testified correctly to what he had seen, the same as he had in previous statements and at the Beechworth committal hearing. He also stated how he knew that Lonigan had reached for his revolver when it happened behind his back, because Dan subsequently said so and described it to Kelly.
The deficiency was not in Bindon’s defence as Phillips wrongly and stridently maintained on this point. It was in Phillips not doing his homework and seeing that McIntyre did address the point that Phillips is hounding Bindon for ignoring. The law, as they say, is an ass.
Discovering the above documentary evidence of what was said in the trial reports in the Herald and Daily Telegraph proves that Phillip’s harsh words about Bindon’s inadequacy here are completely unwarranted; and they have incorrectly influenced practically everyone who has looked into Kelly’s trial since Phillips’ book was published in 1987. Such is life…