“May God Have Mercy on Your Soul” A criminal courtroom in the late 19th century

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Today’s dispatch is about legal fashion.

I’m contemplating putting together a bit of dialogue suitable for a short mock criminal trial presentation set in late 19C South Australia. Naturally Australian legal fashion is of interest as I want the lawyers’ costumes to be as historically accurate as possible.

Came across this large print depicting the trial of Mr. Edward (Ned) Kelly in the Supreme Court of Melbourne, Victoria, 1880.  It’s been mounted onto a hard wooden backboard for ease of use. It’s 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) and easily available in books, libraries and social media.

The artist captured the court room in detail especially what was worn by those attending.

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We see Judge Redmond Barry, the presiding judge at the trial, wearing the gown and thick full bottomed wig. The gown would have been red as I show here on the right.

Not much, if anything, has changed as the elaborate, detailed and flowing gowns and full bottomed wigs are still worn by Judges for criminal trials in certain higher courts.

Judge Barry uses a quill for writing on the document resting on the raised lectern. We see the bottle of ink on the Judge’s right. No doubt making ‘judicial’ notes about what he sees and hears – witness examination and testimony, defendant’s testimony, barristers’ submissions and so forth. The evidence.

As well as barristers we see sheriffs, bailiffs and court officers. The jury is not pictured in the sketch including Samuel Lazarus the jury foreman.

 

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Portrait photograph of Redmond Barry wearing judge’s wig and robes (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

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Brought to Justice – the Kelly Story

Isolated from family and 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 and the second day of August was selected for his committal hearing in Beechworth. Unhappy with the lawyer that was appointed to Ned, Maggie and 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 and 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 and Jerilderie hold-ups also took the stand and gave their accounts. After the hearing, the prisoner boarded a train back to Melbourne and a summons for a change of venue was granted, as it was felt that the present climate at Beechworth was becoming more dangerous.

 

Three unidentified barristers in the above image one on his feet addressing the court.

The Attorney General of NSW, the Honourable Wisdom and the High Sheriff of NSW, Mr. Cowper joined the Judge on the bench.

Mr. Henry Bindon, instructed by Mr Gaunson, appeared for Mr. Kelly. Mr Smyth announced that he appeared for the Crown to prosecute the case.  He started the case with a long opening address.

Little if anything has changed in Australian legal fashion and court dress. Same full flowing gowns, horsehair wigs and white jabots (white neck ties or bands).

Even the court room bench, witness boxes, bar tables and dock can be found in some courtrooms today much the same. While many of the court houses  have been knocked down, rebuilt and modernised in recent years, we were using courtrooms similar to this up until the last few years in some areas.

What has changed are the uniforms worn by the constabulary (police) and clothing worn by the defendant, Mr. Kelly, and other non lawyers.

And of course, the mutton chop sideburns and handle-bar moustaches are rare these days. Not so sure about the long Ned Kelly beards. They seem to have made a comeback.

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I wont elaborate much on Mr. Kelly‘s trial of 1880 as there are numerous historical and archival records around as well as all sorts of sources on the internet suffice it to say that the trial was Judge Barry’s most famous. This blog post is simply to share the court room setting and what was worn by lawyers and Judge in a criminal trial at the time.

 

Judge Barry sought to defuse the growing perception of Kelly as a hero for his role in the Stringybark Creek police killings years before. 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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Looks like constabulary (police) standing guard or observing. More barristers out back.

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Judge Barry was unsympathetic to offenders and developed a reputation for harshness. He sentenced Mr. Kelly to death by hanging. 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

 

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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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The defendent, Mr. Kelly, in the dock.  Unusually, he spoke directly to the Judge.

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Mr. Ned Kelly

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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’s role in the Stringybark Creek police killings and a guilty verdict was handed down after just over half an hour.

30TH OCTOBER 1880 Ned Kelly’s address to the court 

The jury then retired, and after deliberating about half-an-hour returned into Court with 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 late for 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 knows about my case except myself, and 1 wish 1 had insisted on being allowed to examine the witnesses myself. If 1 had examined them 1 am confident 1 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 and examine the witnesses, but I thought that if I did so it would look like bravado and flashness.’
‘For my own part I do not care one straw about my life, nor for the result of the trial; and 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, and 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 and 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, and if the police are taught that they may exasperate to madness men they persecute and 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, and 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.

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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Counsel on his feet addressing the Court. Other barristers seated at the bar table. Little,  if anything, has changed with respect to court dress and a bar table.

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Police officer/bailiff.

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Mr. Kelly.

Ned Kelly Re-Trial – Wilful Murder or Self-Defence?

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The criminal court room in late 19th century Australia is really not much different to what it is today. What was worn by the judge and criminal lawyers at the time hasn’t noticeably changed.

As I say, there is a wealth of information out there about Ned Kelly, his family, his life and times and his trial. Primary and secondary sources abound as well as historical fiction and literature of all sorts.

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Obituary of Ned Kelly and numerous other links

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