Riding to Disaster - The Police and Stringybark Creek
by Marian Matta

The killings of three Victorian policemen at Stringybark Creek on 26th October 1878 was, and thankfully remains, the worst incident of its kind in this state's history. Ned Kelly, his brother and their mates were unarguably the killers but I'd like to discuss the extent to which the police force itself contributed to the deaths of its members.

The situation leading up to the Fitzpatrick Incident on 15th April 1878 is well known. It's enough to say that the already thorny relationship between the Kelly clan and the police force had been aggravated by Ned's new horse-thieving career. In addition, as Ian Jones describes in Ned Kelly: A Short Life, government budget cuts had put a severe strain on the force. Ian's book also contains the best summary of the Incident. In the context of this article, it doesn't matter what happened then. I'm more concerned with what happened afterwards.

When Constable Alex Fitzpatrick eventually made his way back to Benalla with his tale of shovels, revolvers, gunshots and a potentially murderous attack, his sergeant, James Whelan, undoubtedly recognised a golden opportunity to carry out Supt. Nicolson's 1877 directive to "take the flashness" out of the Kellys and deliver the killer blow to Ned in particular. As Robert Drewe put it in 'Our Sunshine', "Attempted murder of a policeman by the Kellys! The suddenly, blissfully, dead-meat Kellys."

Whelan could have tackled this situation in a number of ways but he chose to go in hard. (It has been suggested that Whelan or his superiors may have seen an opportunity to strengthen their positions at a time when government cutbacks threatened the careers of police officers. It's a possibility.) The warrants issued for Ellen Kelly, Bill Skillion, William 'Brickey' Williamson, and Dan and Ned were for their parts in an "attempted murder" of a policeman, even though it was clear that Fitzpatrick's wound was relatively slight, that his story was a bit far-fetched and that he had been tended to, however roughly, and set on the road back to Benalla after the incident. These warrants, the arrests of Bill, Brickey and Mrs. Kelly and their subsequent remands without bail, and the posting of a reward for Ned would have left him with no illusions about how he and Dan would be treated were they to be arrested.

This approach would also have had the effect of hardening the attitude of individual police members towards Ned. After all, despite Fitzpatrick's dismal reputation and shaky story, he was being portrayed as the victim of a potentially murderous attack. The police attitude was understandable but it was not helpful. It manifested as a number of threats of terminal violence aimed at Ned. Three have come down to us through oral means, those made by Inspector Brooke Smith, Senior Constable Strahan and Constable Lonigan. It should be pointed out that there is no hard evidence for any of these threats. During a raid on the Kelly home, Brooke Smith is supposed to have said, "See all the men I have today. I will have as many more tomorrow and blow him into pieces as small as the paper that is in our guns." The threat might be unsubstantiated but it is fact that after Stringybark Creek, Brooke Smith decided the best place for him was in his bed with a police guard outside his bedroom door and he vigorously avoided any possible contact with Ned. Ned's uncle by marriage, Pat Quinn, swore an affidavit in November 1880 to the effect that Strahan had said he would shoot Ned with one revolver and place another beside his body, then swear that he had killed Ned in self-defence. The following year at the Royal Commission, Chief Commissioner Frederick Standish was more than happy to describe Strahan as "a blathering fellow" and in 1898, Frank James, a policeman of long standing and high reputation, expressed his opinion in a letter to ex-Supt. John Sadleir that Strahan's injudicious comment had been the cause of the whole tragedy. Strahan and Fitzpatrick would be the force's scapegoats for years to come.

It's possible that other troopers harboured murderous intentions. It's also possible that Ned or his informants exaggerated the intensity of the threats - we'd be naive to assume we know the full extent of police feelings.

After the first arrests, the police initially concentrated on searching the area of the Eleven Mile Creek. If Ned is to be believed, raids on the Kelly home had been a feature of their lives for several years but now they had a new intensity. In May 1881, 15-year-old Grace Kelly told the Royal Commissioners (on an impromptu visit to the Eleven Mile), "On one occasion Detective Ward threatened to shoot me if I did not tell him where my brothers were, and he pulled out his revolver. The police used to come here and pull the things about. Mr. Brooke Smith was one of them. He used to chuck our milk, flour and honey on the floor. Once they pulled us in our night clothes out of bed. Sergeant Steele was one of that party." (It was possibly not coincidental that three weeks later, Steele told the commissioners that the time of Ellen's arrest was "the only occasion I visited Mrs. Kelly's place at night or disturbed her in any way at night.") After Grace had spoken, Ellen Kelly added that after she came home from gaol she found "her children's clothes were rotten because of their having been thrown out of doors by the police. The police also had destroyed a clock and a lot of pictures and had threatened to pull down the house over their heads."

In early May, acting on information received, (apparently from Pat Quinn) SC Strahan, Detective Ward and Consts. Mooney, Hayes and Whitty searched the area around Bullock and Ryans Creeks but failed to find anything. Ward conceded later that they "hadn't gone high enough". As far as I know, this party was armed only with standard-issue revolvers. Despite his obvious faults, Ward was a shrewd judge of character and a quite brave man (but with a strong sense of self-preservation!). He said, "I thought [the Kellys] would fight but I never had the remotest idea they would shoot. I knew Ned Kelly would fight. I had a fight with him once before. I would not leave Melbourne with a small revolver if I thought they would shoot." This view of Ward's was later echoed by McIntyre. Ward had also formed the opinion that the local people believed the police were frightened of Ned.

In July Sadleir took over as head of the newly-formed North-East police district. By August he was planning two search parties which he hoped would flush out the Kellys or at least "cause a commotion in their camp." If the plan had been undertaken at this point there's a good chance it would have succeeded, that Ned and Dan would have been apprehended as they made a run for it. We'll never know. Unfortunately, the search had to be delayed for several crucial weeks. Sadleir filled in the time by sending Ward out to gather better information on the Kellys' whereabouts.

In the second week of October, Brickey, Bill and Ellen were tried, found guilty and given prison sentences which many people from all levels of society considered harsh. Back in May, Pat Quinn had advised his nephews to give themselves up, saying that if anyone was giving them contrary advice it was not for Ned and Dan's good. Ned's angry response had been that he would shoot anyone who interfered with him. However, with the three now convicted and locked up, Pat Quinn made an approach to the authorities with a remarkable offer - the Kelly brothers would give themselves up if their mother was released. This offer is usually presented as a direct approach to Police Magistrate Alfred Wyatt by Quinn with a clear offer directly from the Kellys. Wyatt's evidence to the Royal Commission - and his recollection of the event - is somewhat more vague, to put it mildly!

He couldn't directly identify Pat, although his evidence leaves no doubt who made the approach. He wasn't even sure if Pat had spoken to him or to a policeman who had then consulted Wyatt. However, he was utterly certain that both Pat and Wild Wright were prepared to bring Ned and Dan in if their conditions were met. It's hard to believe that such an offer would have been made if the Kellys weren't prepared to play along. Wyatt passed on the offer (to Whelan, he thought) but this one opportunity for dialogue was rejected. Of course the force was in no position to agree to such terms but in retrospect it seems to have been the last chance for a peaceful resolution.

After the trial a flurry of correspondence passed between Sadleir, Supt. Nicolson, Inspector Secretan in Melbourne and Ward, and all agreed it was time for a concentrated search. On 25th October, a scant fortnight after Ned's mother and friends had been gaoled, the search parties set out. As Ian Jones explains in Ned Kelly: A Short Life, a clerical error gave the impression that a total of thirteen men in three parties were departing and the Kellys' excellent bush telegraph may have passed this information on.

After reading all the evidence, I've drawn a few conclusions about the state of play at this point.

• Sadleir did not seriously consider the possible effect the outcome of the trial might have had on Ned's state of mind. Instead, the search parties were sent out at the first possible opportunity. There is a possibility he hadn't heard about the surrender offer conveyed by Wyatt.
• Kennedy believed he had a good idea of where Ned and Dan were but thought they were quite a way east of Stringybark Creek, perhaps near the upper King Valley. His encouragement of parrot-shooting by McIntyre on October 25th and his splitting of the party on the 26th clearly show that he "knew" the Kellys were a safe distance away.
• Sadleir was not aware of what weapons the Kellys possessed. Ward had reported Ned as having a gun and a revolver although he (Ward) was inclined to think he might have only the revolver. They weren't aware of Dan's gun. It appears Sadleir thought only to provide extra ammunition for the standard-issue Webley revolvers, and it was Kennedy's own last-minute decision to supplement his party's weapons with the Spencer repeating rifle and the double barreled shotgun (not the "state of the art Martini Henry rifles", as recently stated.)
• Despite the charge of attempted murder against Ned, many members of the police force, McIntyre and Ward among them, believed he would not shoot. The Royal Commissioners concluded Ned and Dan had "no murderous intent" and Sadleir later came out with the odd comment that he felt safe travelling from Benalla to Mansfield alone after the killings because he "was satisfied that men new to crime of this character would get away from the scene as far and speedily as possible." Bear in mind these same men were supposed to have tried to murder Fitzpatrick.
• Although he was probably aware of the depth of feeling against the Kellys, Sadleir issued no instructions to the members of the search parties as to how they should act if they encountered their quarry. In turn, Kennedy did not discuss anything with his men, even after McIntyre and Lonigan had indicated a preparedness to shoot as they were approaching Stringybark Creek. (When McIntyre described their race to shoot a snake and his cry of "First blood, Lonigan!" he seemed curiously unaware of the implication of this incident.)
• Neither search party set out with the expressed intention of bringing back the bodies of Ned and Dan but there's little doubt that they would have gone this far if it became necessary. The body straps carried by Kennedy's party were a clear indication of that. Julian Burnside QC has written that the straps were possibly included as Kennedy thought there was a chance he'd be bringing back the bodies of his own men. With all due respects to Mr. Burnside, I think this is a somewhat unrealistic view. (Anyone who is interested in the legal position of the police should read Regina v. Edward Kelly by Prof. Louis Waller in Ned Kelly: Man & Myth, and The Trial Of Ned Kelly by the current Chief Justice of Victoria, John Harber Phillips.)

Thirty-five years after the event, Sadleir wrote, "If the Kellys were not such savages, if they were men more confident in their own courage, what kudos they might have earned for themselves! They might have sent these police back to their barracks bound in their own handcuffs. Such an exploit would have largely extenuated all their past misdoings." In reality, carrying out such an amusing stunt was not an option open to the Kellys. Police actions - and Ned's interpretation of those actions - had left them with five choices:

1. They could surrender, a decision that was easier said than done. Either they would have had to make their way to a police station, avoiding the searching troopers, or perhaps they could have sent Joe Byrne or Steve Hart into the police camp with a metaphorical white flag, hoping they didn't get shot by mistake. Assuming Ned and Dan weren't then shot 'in self defence' by an avenging trooper (and let's face it, it wouldn't be the first or last time such a thing had happened) they would have inevitably faced long prison terms or even death.
2. They could sit tight at their camp on Bullock Creek. If they weren't discovered it would just be a temporary respite. If they were discovered, Ned believed the troopers would "shoot us down like dogs at our work". Perhaps this wasn't just paranoid thinking - McIntyre stated to the Royal Commission, "We never expected an attack. We thought they might defend themselves if we attacked them." Four heavily armed troopers attacking two wanted men would, in my opinion, be treading a fine legal line.
3. They could make a run for it, but Ned felt they had "poor horses" and "bad arms" and with the country "woven with police" their chances were slim.
4. They could improve those chances by bailing up the police camp and taking the firearms and horses.
5. They could ambush the camp and kill the troopers.

In consultation with the others, Ned made his choice and the rest, as they say, is history.

In writing this piece I'm not attempting to exonerate Ned Kelly. In his brief life he made some lousy decisions that led to disastrous results, especially the one to add "wholesale and retail horse and cattle dealing" to his CV. Even after the Fitzpatrick Incident, Ned, Dan, Ellen and/or whoever was involved could have accompanied Fitzpatrick back to Benalla, made a clean breast of it and worn the consequences.

Neither am I saying the police actions were illegal or even unusual. If the operation had gone as planned, with the Kelly brothers either arrested or killed, it would have been viewed as a successful strategy. Instead, it went wrong and I believe the reason for that lies partly in the way the police handled matters between April 15th and October 26th. Stringybark Creek was a disaster with unimaginable repercussions, but it was not a disaster of just one man's making.

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First Published 20th August, 2003