~ “may God have mercy on your soul” a criminal courtroom in late 19th century Australia (1) ~

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Legal fashion? Lawyers outfit? Is there such a thing?

Well, yes.

No, I’m not talking about today’s fashion & style, the classy, sassy look that is supposed to make one a successful lawyer.

I’m talking about the original legal fashion, that legal fashion, the great apparel sense required by the legal profession of being properly robed and wigged.

No personal brand about wearing that heavy gear.

Pass the sugar wig please“.

It’s all about custom & tradition.

No room for counsel dressing differently, for standing out, for being fashion conscious.

It’s pretty clear to me there’s not going to be a mass unrobing and unwigging any time soon in most criminal courts in Australia.

In the last couple of years I’ve been creating, or tinkering with, some dialogue for a short mock trial (criminal) set in late 19C South Australia.  Naturally, Australian legal fashion, the lawyers’ costumes, must be as historically accurate as possible.   What did barristers wear in the criminal courts in 19C Australia?

I started out with this well-known historical print (above) depicting the criminal trial of Mr. Edward (Ned) Kelly in the Supreme Court of Melbourne, Victoria, 1880.

The print is from a sketch from the wood engraving originally published in The Illustrated Australian news, Melbourne, David Syme and Co. November 6, 1880 (Source: State Library of Victoria, Illustrated newspaper file).   It’s easily available in books, libraries & on the internet.   I found this large old print,  on the floor, in a secondhand shop in Creswick, Victoria.  Somebody took the time to glue it to a wooden board which helps.

 

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The print shows the presiding Judge at the trial Judge Redmond Barry wearing the gown & thick full-bottomed wig. The gown would have been red as here (right).

A closer look & Judge Barry uses what maybe a feathered quill for notes.  His document rests on a raised lectern.   A bottle of ink is on his right.  No doubt he’s making ‘judicial’ notes about what he sees & hears, the evidence, elicited by the barristers in witness examination, barristers’ submissions & so forth.

Is that a law book or a bible there?

There are sheriffs, bailiffs & court officers.  The jury is not pictured.

 

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A portrait photograph of Redmond Barry (left) robed and wigged (Photograph by Thomas Foster Chuck, 1872) from the State Library of Victoria’s Pictures Collection.

 

 

 

 

 

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Court file, NED KELLY Capital Case 1880 (right)

 

 

 

 

 

 

 

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In looking at the drawing & what was worn by lawyers and Judge at the time, the first thing that struck me was the little, if any, change in Australian legal fashion and court dress today.   Yep, still dressing in the same elaborate, full flowing gowns, same bar jackets, same white wigs & jabots.

The other thing that stuck me was the absence of women. Not a female in sight in any capacity.  Of course it was 1880.

 

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Ned Kelly stands in the dock.

 

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You can counsel is on his feet addressing the Court while other barristers remain seated at the bar table.

While I’m not sure who the barristers are in the image, we know Mr. Henry Bindon, instructed by Mr Gaunson, appeared for Mr. Kelly.  Mr. Smyth announced that he appeared for the Crown to prosecute the case.

 

The sketch is clear in its depiction of court attire.  It affirms that there are no real differences in legal fashion of 19C Australia & today.

 

 

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The historical & archival record of Mr. Kelly’s trial is easily available as well as other primary & secondary sources, not only about the trial but about Ned, his family, his life & times.  For the sake of completeness I include a few snippets of information about Ned & his trial.

Ned Kelly has generated much historical interest & research.  He has been the subject of historical fiction, film, theatre & literature & seems to continue to attract this kind of interest including legal interest like legal research & trial re-enactments.

 

Did Ned get a fair trial? Was the trial a miscarriage of justice?  Ned Kelly Re-Trial – Was it Wilful Murder or Self-Defence?

Would the verdict be upheld by a higher court today?

The general consensus, by criminal lawyers today, is that Kelly did not get a fair trial 7 the guilty verdict would be set aside.

Oh for the Legend of Ned Kelly, Australia’s most famous (infamous) bushranger.

 

Brought to Justice – the Kelly Story

Isolated from family & friends, Ned was appointed a lawyer.

Early in August, requests by family members to see the prisoner were consistently denied.

Under the care of Dr Shields, the gaol’s doctor, Ned’s health was starting to improve & the second day of August was selected for his committal hearing in Beechworth.

Unhappy with the lawyer that was appointed to Ned, Maggie & Tom Lloyd arranged for David Gaunson to take over Ned’s defence.  Gaunson was later succeeded by Henry Bindon.

 

At his committal hearing, Ned was formally charged with the murders of Constables Lonigan & Scanlon.  The case was set to be heard on 14 October at the Beechworth Court of Assize.

In the following days, witnesses from the Euroa & Jerilderie hold-ups also took the stand & gave their accounts.

After the hearing, the prisoner boarded a train back to Melbourne & a summons for a change of venue was granted, as it was felt that the present climate at Beechworth was becoming more dangerous.

 

 

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The trial was Judge Barry’s most famous. He sought to defuse the growing perception of Kelly as a hero for his role in the Stringybark Creek police killings. In court he said that in cases where:

 

… society is not bound together so closely as it should be …’ making heroes of criminals required society to condemn felons as beasts of the field with nowhere to lay their heads.

– Judge Redmond Barry Source: Jones, I 2003, Ned Kelly: a short life, Lothian Books, South Melbourne, Vic.

 

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Constabulary/police/bailiff standing next to the dock. More barristers out back.

 

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Judge Barry was unsympathetic to offenders and developed a reputation for harshness. He once sentenced a man to 12 years hard labour – two of them in irons – for stealing a few trinkets from a travelling salesman.

 

As the media reported at the time:

So convinced is he of the hideousness of having the land overridden with fugitive convicts that he doles out to every bondman (ex-convict) that comes under his lash nearly one-half more punishment than he awards to those who, having come to the country free, have deserted the path of virtue.

 – The Argus, 15 February 1853

 

In 1878, he sentenced Ellen Kelly, Ned’s mother, to three years hard labour for assaulting a police officer, even though the officer’s testimony was dubious and Ellen was a deserted wife with a baby.

 

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“Ned Kelly in the Dock – A Scene from Life” Ned Kelly in the dock during his trial. Wood engraving published in The Illustrated Australian News.

 

Judge Barry directed the jury to rule out the possibility of a conviction on the lesser charge of manslaughter for Mr. Kelly.  The jury then retired, & after deliberating about half-an-hour returned into Court with a verdict of guilty.

On 30 October 1880 Ned Kelly, having been asked in the usual way if he had any statement to make addressed the court:

 

‘Well, it is rather late for me to speak now.   I thought of speaking this morning & all day, but there was little use.  There is little use blaming anyone now.

Nobody knows about my case except myself, & I wish I had insisted on being allowed to examine the witnesses myself.   If I had examined them I am confident I could 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 understands the case as I do myself.

‘I do not blame anybody-neither Mr Bindon nor Mr Gaunson; but Mr Bindon knows nothing about my case.

I lay blame on myself that I did not get up yesterday & examine the witnesses, but I thought that if I did so it would look like bravado & flashness.’

‘For my own part I do not care one straw about my life, nor for the result of the trial; & I know very well from the stories I have been told, of how I am spoken of -that the public at large execrate my name.

The newspapers cannot speak of me with that patient tolerance generally extended to men awaiting trial, & who are assumed, according to the boast of British justice, to be innocent until they are proved to be guilty.

But I don’t mind, for I am the last that curries public favour or dreads the public frown.  Let the hand of the law strike me down if it will; but I ask that my story be heard & considered – not that I wish to avert any decree the law may deem necessary to vindicate justice, or win a word of pity from anyone.

If my lips teach the public that men are made mad by bad treatment, & if the police are taught that they may exasperate to madness men they persecute & ill-treat, my life will not be entirely thrown away.

People who live in large towns have no idea of the tyrannical conduct of the police in country places far removed from the court.

They have no idea of the harsh, overbearing manner in which they execute their duty, how they neglect their duty, & abuse their powers.‘

(Age30/10/80) (Argus30/10/80)

 

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Judge Barry sentenced Mr. Kelly to death by hanging with the traditional:

‘May God have mercy on your soul‘.

Mr. Kelly replied:

‘I will go a little further than that, and say I will see you there when I go.’

 

Consider Your Verdict – Ned Kelly Goes on Trial Ned Kelly was sentenced to hang for killing police officer Thomas Lonigan in the shoot-out at Stringybark Creek. The death penalty was pronounced on October 28, 1880. But was Ned set up? The trial of our most famous bushranger has long been branded a miscarriage of justice. Experts, including the Chief Justice of Victoria, believe his court case was hopelessly unfair. They argue the judge was biased, the jury improperly instructed, and his conviction unsafe. Now, 120 years later, Ned Kelly gets a fair trial. Using original court transcripts, court re-enactments and the services of two eminent QCs, the outlaw Kelly goes back in the dock. The retrial, the highlight of National Law Week, sees Justice John Coldrey presiding. Defending Ned Kelly is Michael Rozenes QC. Julian Burnside QC, star of the Australian Broadcasting Authority’s cash for comment inquiry, is prosecuting. The 60 Minutes  poll gives Australia the chance to answer once and for all whether Ned Kelly died an innocent man. To read the transcript of our online chat with Ned Kelly expert Ian Jones, see below.

 

There is a ton of historical information around about Judge Redmond Barry’s reputation as a harsh judge, a reputation that may have been deserved. He had always lived life by the rule of his own opinions, of which he had many. As the historians says, any early criminal history of Australia and Victoria would not be complete without looking at the role of judge Redmond Barry.

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What was worn by judges and lawyers in the courtrooms of Australia, almost 140 years ago, has not  noticeably changed.

What has changed are the uniforms worn by the constabulary (police) and clothing worn by the defendant and other non lawyers. While we don’t see mutton-chop sideburns and handle-bar moustaches in the local police forces today, the long ‘Ned Kelly’ beards have made a bit of a comeback.

 

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Obituary of Ned Kelly and other links

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