Stringybark Creek Investigation May 2009

Noted Kelly historian, Mr Ian Jones, in 1993, presented at the Beechworth Ned Kelly seminar 0f 13 – 14 November 1993, a paper entitled:

The Killings at Stringybark Creek – New Evidence from a Surviving Witness.

.. . . we were looking for a rise beside the creek offering an acre or so of almost level ground with a steepish, high slope immediately across the creek to the west with the timberline and ridgeline dropping away to the south, as shown in the Burman photos, and with a lower, gently sloping ridge to the east and what James Tompkins [Mansfield Shire President in his account of the expedition to recover Kennedy’s body] called “particularly boggy ground” immediately to the north.. .

We could find no credible site in the vicinity of the Kelly tree. We decided that the camp must have been sited further upstream....

On the eastern bank (we) found an area of slightly less than an acre on an almost level rise ... looking to the south-west, the direction in which I believe the Burman photos were taken, the site produced a vista strikingly similar to the Burman photos – a falling ridge and timberline to the south and a steep, high slope to the west ... to the east across a very slight swampy dip at the edge of the rise was a lower, gentle slope ... closely matching a photo dating from the 1880s. This photo was a bit of a puzzle – Keith McMenomy and I couldn’t really reconcile with the Burman pictures. However ... I realised that the photo was taken looking east – the sun direction aligned with the line of the gully means it has to be.....

Immediately to the north of the rise is a particularly boggy piece of ground. In a sketch or engraving based on the Burman photos and printed in the Illustrated Australasian Sketcher, a rather odd open area with speargrass on it was tacked right on the edge of the clearing...

We had arrived at the area pointed out to me by Jack Healy [the late Jack Healy of Tolmie who owned land up from German’s Creek between Stringybark and Kelly’s Creeks – he even pointed out the site for me] nearly thirtythree years before and rejected by me because of my stubborn conviction that the site was on the opposite bank of the creek and at this point the bank was too steeply sloping to provide the campsite shown in the photos. [Pp 16 – 17] [I have underlined & highlighted this text]

Later Jones would write in his book: Ned Kelly A Short Life – first published 1995, with reference to his earlier paper presented at Beechworth:

“It was a cheerless place, an acre or so of bush half-destroyed by a party of gold diggers who had quarrelled and split up. Several big gums on a low rise had been felled to clear a safe, dry site for a hut. Others were ringbarked and left to die. Along the creek, white gums rose in sombre colonnades among black-plumed speargrass, mossy fallen logs and dense thickets of dead wattle shedding bark.

Forty yards across clear ground, in the centre of the open space, a camp fire was blazing among some fallen timber, set in an angle formed by two big logs. Flood and Strachan were nearby.

Fifteen or 20 yards past them, a tent had been pitched beside a couple of fire-blackened posts – all that remained of the diggers’ hut burnt down some six months before”. [Page 129]
( actually 15 months before, source Mansfield Guardian July 1877)

Shortly before the release of Jones’ book, on the 10 October 1995, John Lahey’s article Ned Kelly revised appeared in The Age:

“This time at Stringybark, Mr Jones, who is 64, is demonstrating his belief that the site that commemorates the battleground is wrong. This is one of many revelations in his new book, Ned Kelly: A Short Life, which will be published on 24 October.

One thing that puzzled him for more than 30 years was that an area set aside for tourists at Stringybark, and generally regarded as the 1878 battleground, does not tally with clues from old photographs, oral history, sworn evidence or logic.

In his new book, Mr Jones gives his pronouncement. The Kellys shot the three policemen not on the western side of the creek as the world believes, but the eastern side; and the battleground was at least 300 metres south of the so-called Kelly tree . . . . . The same man who told Mr Jones about the tree said the real site was further south along the creek and described it. From that day, Mr Jones set out to find it . . . . . He halts us on a small rise on the creek’s eastern bank. To the north is a small swamp.

Everything he mentions makes sense. When the police arrived at Stringybark, they pitched their tent at an abandoned hut on a rise, and here is the only place it could have stood. Looking west from the east bank, you see a hillside uncannily like the one in the old photos from the time. And then there’s the swamp. Constable McIntyre, the only policeman to escape the Kellys’ bullets, galloped off across a swamp immediately to the north”. ( add notes if this is not supported by McIntyre)

There is much like this, and Mr Jones says: ‘I can have absolutely no doubt that this is the place. It is unarguable that the battleground was on the eastern bank’.” End Quote

[A fuller transcript of this article is at Appendix 1]

Then in September 2002, Bill Denheld, a Kelly researcher looking for his own evidence for the true location of police camp site came across two old fireplaces just across the creek from Mr Jones’s East bank scenario. Bill has written a fair amount about the connection of two small huts with the Police camp at Stringybark Creek – see webpages www.ironicon.com.au

Bill can verify that on the eastern bank (across the creek from the two huts site) there have been no important detected metal objects found . There is no detectable fireplace of a hut to be found on the eastern bank even after numerous attempts to find such. This was a mystery as often charcoal layers synonymous with fireplaces easily are detected as well as metals. Bill says the site is basically baron. This may be explained by a layer of gold mining mullock dirt that seems to be spread out beyond the creek bank margin. However, where one would expect to find debris from any old huts this place is negative.

On the western bank however where Bill comes across the site of the two huts, a volume of items have been detected. It should be noted that Ned Kelly wrote in his Jerilderie letter 1879 that the police were camped at the Shingle hut.

In early 1879 the Proprietor of the Mansfield Guardian -G Wilson Hall wrote where the police had camped at Stringybark Ck -. describing it thus-
“The spot where they established their halt, was a small clearing on the rise alongside of the creek near the ruins of two small huts, one of which was burnt down and had been the temporary residence of three prospectors, Reynolds, Bromfield and Lynch who worked the creek for a short time with indifferent success.”

So we know there were two small huts, one of which was burnt down.

It is ironic that to date the only evidence of two small huts at Stringybark Creek are two piles of large moss covered natural rocks obviously gathered from the vicinity and placed in the form of a fireplace. They are about 10 metres apart in an area of flat ground right opposite the accepted East bank Police camp site.

Two huts are also recorded as shepherds huts dating from 1848 built by Messrs Heaps and Grice, the original lease holders of FernHills Station on which Stringybark Creek is situated.

The two fireplaces found by Bill in 2002 certainly re-enforced the east bank scenario as the police camped Near the ruins of two small huts, although Sheila Hutchinson a local historian tells us on her webpage , Valid links with the Past, has some compelling evidence the police camped on the western bank. On the surface, her location this is a robust argument and supported by Public Records archived 1885 maps as to where the surveyor had placed the site of the Police killings on a parish plan - on the western bank. But these records do not add up when careful calculations are checked, placing the police camp site some 360 metres further north from the east bank two huts site scenario.

The question of analysing which is the correct site, and has been the subject of this investigation.

____________________________________

. . . . . Lonigan who had not previous to this carried his revolver, buckled it on, at the same time remarking that as he had to go a considerable distance for the horses he thought it would be wise to take it with him. He evidently placed more importance upon the noise than I did. I was convinced that it was made by a kangaroo or wombat. Now I think differently.

[2]
Sergt. Kennedy had selected a clear place near an old burnt hut as the most suitable for our camping ground as it was out of danger of any timber which might fall from the forest trees. Our tent was pitched near
the north west corner of this clearing which was partly natural and partly caused by human agency. The entrance to the tent was facing east and also the creek which was about seventy yards distant. Standing at the tent entrance and facing the creek there was upon the left from a felled tree nearly 4 ft in diameter, at the thickest part. It lay nearly east and west. About midway this log was joined by another which lay due north and south and terminated where it joined the other. These two logs thus formed two right angles, the point of junction being about 25 years (sic) from the tent. On your right or the south side of the clearing the ground was free of timber and being of a swampy nature there was a luxuriant growth of rushes and other coarse herbage. These together with a slight declivity in the formation in that direction afforded a good cover to within 20 yards of our tent for any party wishing to attack our camp, and it was from this position we were attacked, the south side or up the creek; whilst Kelly’s hut was to the north of our camp and in the direction the men had gone on patrol.

[1] McIntyre’s “yellowed and disintegrating” manuscript was donated to the Victoria Police Historical Unit

[VPHU] by Mr and Mrs Hugh Hookey. Mrs Hookey is McIntyre’s granddaughter and Mr Hookey is a retired Chief Sup’t of Police. (Police History Book, November 1988. ISSN: 0819-3010). It has been transcribed for display on-line). The on-line version (See http://203.25.230.66/content.asp?Document_ID=10583.) omits the many images included by McIntyre in his typescript.

A photocopy is held at the State Library Victoria: Accession Number PA 03/110, Call Number PA BOX 66. Cover Title: A True Narrative of the Kelly Gang. Page 1heading: Reminiscences of a Victorian Mounted Constable. A Narrative of the Kelly Gang and other bushrangers. This copy has all of the images included.

[2]
The State Library Victoria has an original typescript pre-dating the Victoria Police manuscript.

MS6343 (Box 303/9. In this typescript McIntyre describes the location of the tent as being in the North East corner of the clearing.

“. . . . . Kelly then said to his mates ‘that will do lads, take your places’. Byrne and Dan Kelly returned to the rushes. Hart remained in the tent, and Kelly concealed himself at the angle of the logs near our fire. He called me over and directed me to stand in almost the same place I had occupied when first stuck up. Kelly was in one angle formed by the logs, on the creek side, and I was in the angle other, on the tent side….”

Page 23:

“ . . . . . That he had been reconnoitering our position was evident . . . .Kelly was kneeling on one knee behind the log and in looking down the creek he looked over the body of Lonigan which was about 8 yards from him and a couple more from myself. He had the two rifles laid up against the log on his right hand, and I stood upon his left with a log between us. . . . . The sun had sunk behind the tall trees on our left, where the ground was elevated . . . .”

Pages 24 - 25:

“. . . . . I said to him, ‘For God’s sake don’t shoot the men and I will try to get them to surrender’. He said, ‘all right but mind you do so, go and sit upon that log and give no alarm, or I will put a hole in you’. At the same time he covered me with one of the rifles. I went to the place he indicated about 10 yards off and had barely time to sit down when the two men came in sight. Kennedy was in advance about two horses length and Scanlan was carrying the rifle. I stepped towards Kennedy and was about to explain the position . . . . . Immediately he put his hand down he was fired at by Ned Kelly, but as I was in a direct line between him and Kennedy, who was on higher ground, Kelly had to shoot over my head and in doing so fired too high to hit him . . . . . Scanlon who had not lessened the distance between himself and Kennedy . . . . . and further that he saw the body of Lonigan. . . . . I saw a large spot of blood appear upon his coat, which was of a light grey color, simultaneously with hearing a shot fired by Kelly.

. . . . . My attention was taken up with the murder of Scanlon and the advance of Dan Kelly, Byrne and Hart. I had seen Lonigan and Scanlon shot immediately they attempted to seize their firearms, . . . .Probably owing to Kennedy having dismounted on the off side, his horse, which had been frightened by the firing, plunged over in my direction. I caught him by the rein, and as I did so, he swung round, thus placing my back towards Kennedy and had I not restrained him he would have bolted down the creek as Scanlon’s had done. It has been stated that Kennedy dismounted on the off side to form a rampart of his horse, but at no time did Kennedy’s horse form a protection to him from the fire of the three junior members of the gang . . . . . I had to run several paces with him down the creek before I could scramble into the saddle . . . . .”

Page 34: (The search party at the scene of the Police Camp):

“. . . . .At first I did not recognize the place as owing to the darkness the formation of the ground seemed unfamiliar to me. The others commenced looking round the clearing for the bodies, where I thought it possible they might find Sergeant Kennedy, whilst I was looking for some indication of the place in which our tent had stood .. . . . After some further searching Mr. Monk said ‘Here in where you had your fire’, I replied ‘We had no fire in the open’, He said ‘this must have been your tent, it is all burned, here is a number of papers.’ When I had found the position of the tent I could have gone to the bodies blindfolded. Starting from the tent I took a turn to the left between the stump and the log as shown in the accompanying engraving [this engraving is not within the Police on-line document] and then proceeding in the direction of the creek, outside the clearing where they had been searching. I showed them the body of Lonigan . . . . . . Then walking down the creek a little distance and close to the bridle track I pointed to the body of Scanlon.”

The Age, 6 August, reports McIntyre’s statements and examination at the Beechworth committal hearing:

“I am a constable of police at present stationed at the Richmond Depot.

In the month of October 1878 I was stationed at Mansfield. I remember the morning of the 25th of that month. I left Mansfield with Sergeant Kennedy, Constables Thomas Lonigan and Scanlon - in charge of Sergeant Kennedy, we left at about 5 o'clock in the morning. We were going to search for Edward and Daniel Kelly. There were warrants issued against them. The Edward Kelly we were in search of is the prisoner now in the dock. We camped that day at Stringy Bark Creek about 20 miles from Mansfield, we were all four on horseback and armed. When we reached Stringy Bark we found the remains of a hut there and the country thickly timbered - where we camped there was an opening - a few logs being about. The photograph produced represents the place at Stringy Bark where we camped. The open I speak of did not cover more than an acre or two, we camped in a tent a few yards behind the old hut, we stopped there that night, some of our horses were hobbled, and some were tied up, nothing occurred that night.

The following morning the 26th (of October 1878) we were up at daylight - the party breakfasted and after that Sergeant Kennedy and Constable Scanlon left leaving myself and Cons Lonigan in charge of the camp. Sergeant Kennedy when leaving that morning had a Spencer repeating rifle and Cons Scanlon had a revolver, Lonigan and myself had each a revolver and one fowling piece (a double barrelled fowling piece). During the day I was baking bread and fixing up the tent, Lonigan looking after the horses and between times reading a book, the horses were hobbled. We had three horses - two and a brush horse. Sergeant Kennedy and Cons Scanlon left about 6 o'clock in the morning. Between 12 and 1 o'clock that morning Cons Lonigan called my attention to a noise down the creek. I went down the creek with the fowling piece - to search for the noise - I could not find the cause of the noise - thought it was a wombat. Having searched I returned to the tent and returning fired two shots at parrots. I reloaded the gun after firing. When I came back I threw the gun into the tent and left it there. About 4 o'clock in the afternoon Lonigan and I built a large fire. Kennedy and Scanlon had not then returned. The fire was to show Kennedy and Scanlon light to guide them home in the event of their being bushed. We made the fire about 20 yards from the tent where the logs crossed each other. It was nearly 5 o'clock when we finished building up the fire - we had to carry the wood some distance for the fire; about ten minutes to five I went to the tent and got a Billy to make the tea. I had the tea made and Lonigan was standing on the opposite side of the fire. I was standing close to the fire at the time - I suddenly heard some voice crying out, Bail up! Hold up your hands!

I quickly turned round and saw four men, each armed with a gun, and having a gun at his shoulder pointing to Lonigan and myself. I noticed the man on the right of the party particularly I saw his weapon was in fair line with my chest. I immediately put out my arms horizontally, I was unarmed - so soon as I did, I saw the same man, the one on the right of the party move his gun a little to his own right, and fire at Lonigan who had started to run. When I first saw the men, Lonigan was standing at the opposite side of the fire to me and about 10 or 12 feet from me, Lonigan had started to run towards a tree. The man on the right took the gun off my body and fired at Lonigan. When the man on the right fired at Lonigan he was about 40 yards distant from him (Lonigan). The effect of the shot in Lonigan was that he immediately fell - he ran only 4 or 5 yards before he fell, I heard him fall, I did not see him fall. Heard him breathing heavily and stentorously. The man at the right of the four men was the prisoner Edward Kelly - when the prisoner fired at Lonigan - the four men were in a line and two or three yards distant from each other and all the same distance - about 40 yards from us and all in a line, as soon as Lonigan fell I saw the prisoner throw the gun into his left hand - put his right hand behind his back and draw a revolver. He (the prisoner) cried out to me Keep your hands up! Keep you hands up! I raised my hands on a level with my head. I was unarmed at this time, my fowling piece and the revolver were both in the tent. After putting his (prisoners) hand behind his back and drawing the revolver prisoner and the three others rushed up to where I was standing. They stood at a distance of about 3 yards from me and covered my chest with firearms, three of them with guns and the prisoner with a revolver. I kept my hands up all the time. Prisoner said to me 'Have you got any firearms', I replied, I have not, about this time I heard Lonigan cease to struggle and breathe. He had been struggling and plunging along the ground - Lonigan was about 10 yards from me at the time and the prisoner was within hearing distance from him (Lonigan) when I heard him Lonigan (as they were rushing up and two or 3 seconds after the shots were fired) exclaim 'Oh Christ I am shot!'

. . . . . prisoner said 'Take you places lads' prisoner went over and concealed himself close to the fire taking the two guns with him - the fourth man (Hart) remained in the tent - Byrne and Dan Kelly went over to the spear grass…. the spear grass that they first appeared from - I lost sight of Dan Kelly and Byrne in that spear grass - prisoner concealed himself behind a large log near the fire, he knelt down behind the log - having the two guns with him. I remained at the tent outside, till the prisoner called me over, prisoner immediately he concealed himself, called me over, He pointed to the opposite side from where he was concealed, and said 'You stand there'. I went to it, and the log was between me and him, the log was close to three feet high, he was completely concealed on the one side and I was standing up on the other. He, the prisoner then had the guns and the revolver - when the prisoner had a conversation with me, he commenced it by saying 'who showed you this place?' I said 'No person showed it to us - It is well known to all the people about Mansfield - He then said 'How did you come here?' I said 'We crossed Holland's Creek and followed the blazed line' . . . . . He said 'when do you expect these men home? I said 'I didn't think they will be home tonight I think they must have got bushed (and previously he asked me where were the others and immediately after he came from the body of Lonigan. I said they were out. He said then which direction did they go in? I pointed North West in the direction of Benalla - I said over there. . . . .

ON the 7 August, McIntyre continues:

. . . . . I said to the prisoner I will try to get them to surrender if you promise faithfully not to shoot them a moment after, the men Kennedy and Scanlon came about one hundred yards off, down the creek in sight - the prisoner said - Hist lads! here they come - and to me, you go and sit down upon that log and mind you give no alarm or I will put a hole in you' I went to the part of the log he pointed out - about ten or twelve yards off, and scarcely had time to sit down, when the men came to within forty or fifty yards where I was They were on horseback and walking slowly - Sergeant Kennedy came on - from about ten or twelve yards in advance of Scanlon, I don't remember if the prisoner said anything further to me, before he (prisoner) did anything I stepped towards the men coming in. I said to Sergeant Kennedy quite loud, when he was five or six yards from me so that the prisoner could hear me 'Oh Sergeant you had better dismount and surrender for you are surrounded' . . . . . At the same time he did so - there were four shots fired - and Scanlon who had pulled up at about thirty yards from where the prisoner was concealed - and was in the act of dismounting off his horse - when he first heard the voices to bail up - He fell upon his knees in dismounting - he caught at his rifle as if to take it off his shoulder out of the strap - and endeavoured to get upon his feet. He again fell upon his hand and knees and in that position was shot under the right arm. The prisoner covered him and fired but there were three or four shots fired at the same time and any of the others might have struck him. Between the time of calling Bail up! and the shots were fired, scarcely any time elapsed, seeing Scanlon fall I expected no mercy to any of the party - I caught and mounted Kennedy's horse, that was close to me, Before I mounted the horse was restive with the firing, and turned his head north - and moved about a full length of himself while I was struggling to get into the saddle. Having mounted I got the horse to start after a little trouble and I escaped. Kennedy must have seen me when I mounted but he said nothing, when I was riding away a number of shots were fired but at whom I could not say. When Scanlon was shot under the arm I saw a blood spot on his coat and he laid over on his back - I rode away northerly for about a couple of hundred yards till I lost sight of the camp - then I rode westerly . . . . . About two hours after getting to Mansfield I returned with the search party. It was 5 or 6 o'clock when we started. We got back to the scene of the murder about 1 or 2 o'clock on the Monday morning and we found the bodies of Constables Lonigan and Scanlon where I had last seen them both dead - made search for Kennedy but did not succeed in finding him - Our tent was burnt down and what part of our property not destroyed was removed except a tin plate. . . . . .

And to Mr Gaunson McIntyre says:

. . . . . When Kennedy came up prisoner was about 30 yards off, and when he cried 'Hist lads here they come'. When Kennedy came up I walked in the direction of him. Prisoner was about 12 yards from me and I 5 or 6 yards from Kennedy when he (Kennedy) came up, a moment after Kennedy got off the horse - and seeing the horse abandoned I seized the horse and rode off. . . . .

I could not say at what object Dan Kelly fired at. I cannot swear that Dan Kelly fired more than one shot. I did not examine Harts gun closely. I heard a report come from the direction Hart was in. The other men fired as they approached and about twenty yards off and behind me, I was in front of them. . . . .

The Argus of 28 October 1880, reports on McIntyre’s deposition at Ned’s murder trial in Melbourne’s Supreme Court:

[The full transcript of both reports is at Appendix 2]

McIntyre’s sketch, possible other relevant sketches, engravings (yet to be confirmed).

1. Ned Kelly’s letters: – Cameron Letter

“I told my mates and me and my brother went out next morning and found Police camped at the shingle hut with long fire arms”

– Jerilderie Letter

“returning in the evening I came on a different lot of tracks making for the shingle hut I went to our camp and told my brother and his two mates me and my brother went and found their camp at the shingle hut about a mile from my brothers”

2. Other contemporary accounts:

· Burman / E. Monks

· G. Wilson Hall

“The spot where they established their halt was a small clearing on a rise alongside of the creek, near the ruins of two small-huts, one of which was burnt down, and had been the temporary residence of three prospectors, named Reynolds, Bromfield, and Lynch . . . . .

The level space, though pretty well cleared, is surrounded by thick, heavy timber and scrub, and on the right hand side has a patch of very tall spear or sword-grass . . . . .

In front of the tent, and between it and the creek, were two fallen trees, the ends being crossed at right angle; there were also some stumps of trees that had been felled in the clearing.

. . . . . noticed M’Intyre standing near a stump in front of, and about fifty yards from, the tent, where the billy was on a small fire. The constable had his back turned towards them, with Lonigan at his side. In the angle formed by the fallen trees before mentioned there was a large fire. . . . . [The history of the notorious Kelly gang of Victorian bushrangers or the outlaws of the Wombat Ranges. 1879. Pages 38 – 39; Reproduced by Australian History Promotions. 2004. Pages 22 – 23]

· J. J. Kenneally

“. . . . . Dan was deputed to find out exactly where the police were camped... he reported that the police were at the shingled hut on Stringybark Creek, and that their tent was pitched in the open space nearby.” [Page 50. The Inner History of the Kelly Gang. 8^th edition. Page 55 of the 1^st edition]

Ned Kelly then called out, asking McIntyre who was in the hut. The latter replied, “No one”, [Page 52 – 8^th edition. Page 57 – 1^st edition]

· Sub-Inspector Pewtress’ later full report from Mansfield to the Chief Commissioner of Police:

“. . . . . Mr Monk immediately consented to guide us to where the affray took place and I engaged two of his men to accompany us on foot we travelled partly through nearly impossible scrub until 7.30 am when we came to the spot which is situated in the stringy Bark Creek near an old deserted digging & 7 miles from the saw mills in a north eastern direction from Mansfield” [PROV, VPRS 4965, Unit 4, Item 317]

The three “Kelly trees”.

To identify the locality ( Location) of the Police Camp three trees have been marked, two with signage to assist visitors to Stringybark Creek. All three trees were on the Western side of Stringybark Creek.

“On 26^th October 1878 a tall gum tree in the vicinity of Stringybark Creek, Toombullup in the Wombat Ranges was marked by a stray bullet (s), during the encounter between the Kelly Gang and the police troopers. This tall eucalypt became known as the Kelly Tree”. [Mansfield Historical Society Inc. Local Police Commemorative Issue. October 2003. Page 5. Research by Sheila Hutchinson]

The local paper, Mansfield Courier of 25th April 1908 reported that: “Last week a historical tree known as the “Kelly” tree, Toombullup, where Sergeant Kennedy and the other police were shot, was cut down by the employees of the Sawmill Company. Some special timber was required and this tree, being available, was cut down. A portion of it, measuring 26ft. in length, was brought into Benalla last Friday for transhipment to Albury.”

The Mansfield Historical Society article goes on to say: “In the late 1920s Charlie Beasley placed a fingerboard marker on a nearby ringbarked tree. Its upper section had broken off and rot had set in to the exposed section. .... white ants hastened its demise in the early 1940s.

During the mid 1930s Tim Brond, a neighbour of Beasley’s, marked a forked gum close to Stringybark Creek. The location of this tree isn’t far from Beasley’s tree and allows easy access from Stringybark Creek Road.... When Tim carved the name of the three police troopers in the tree it became a living memorial to the policemen who lost their lives there.

In 1985 the tree became officially identified as the Kelly Tree when a local sculpter placed a metal plaque representing Kelly’s armour replaced the names of the police. Only Lonigan’s name remained at this time.

Determining the location of the western bank site:

· Bill Denheld’s work on measurement of distances. See above

Determining the site layout in detail and all features/events there at:

· Linton’s diagrams - to be attached

APPENDIX 1
Ned Kelly revised The Age 10 October 1995

Author Ian Jones has spent more than 30 years attempting to unravel the true story behind Australia’s most famous outlaw, Ned Kelly. His new book dispels some of the myths and reveals some fascination new insights.

" Ian Jones, the Ned Kelly expert is back where he feels most spiritual, at Stringybark Creek, like an eager boy of 14 on a big adventure. It was here in October 1878 that the Kellys’ bullets, having killed three policemen, sped on and lodged in the Australian dreaming.

This time at Stringybark, Mr Jones, who is 64, is demonstrating his belief that the site commemorating the battleground is wrong. This is one of many revelations in his new book, Ned Kelly: A Short Life, which will be published on 24 October.

In his new book, Mr Jones gives his pronouncement. The Kellys shot the three policemen not on the western side of the creek as the world believes, but the eastern side: and the battleground was at least 300 metres south of the so-called Kelly tree, into which, years ago, somebody blazed the words that here Constable Lonigan was shot.

Mr Jones says that in 1960 he learnt that there was once a local man who grew tired of people asking where the battle took place, so he randomly cut a legend into the Kelly tree to put an end to it. Everyone simply accepted that here was the true site. In time, the site became formalised for parking. The tree now carries Ned’s metallic likeness. The same man who told Mr Jones about the tree said that the real site was further south along the creek and described it. From that day, Mr Jones set out to find it.

Stringybark is rough country scarred by gold diggers and strung with undergrowth, but it is worthwhile trudging through all this, listening to Mr Jones’s voice from up ahead, explaining why we are here. He halts on a small rise on the creek’s eastern bank. To the north is a small swamp.

Everything he mentions makes sense. When the police arrived at Stringybark, they pitched their teny at an abandoned hut on a rise, and here is the only place it could have stood. Looking west from the east bank, you see a hillside uncannily like the one in the old photos from the time. And then there’s the swamp. Constable McIntyre, the only policeman to escape the Kellys’ bullets, galloped off across a swamp immediately to the north.

There is much like this, and Mr Jones says:”I can have absolutely no doubt that this is the place. It is unarguable that the battleground was on the eastern bank.” So what will happen now? “I hope nothing happens,” he says. “I know the site and a few others including my family know the site and I hope it stays that way. I don’t want to see millions of people tearing it up.”

This sounds as if he owns it. In a way, he has made it his own, because nobody in the world has his knowledge of the Kellys. I once asked him what color socks Ned wore when he was captured. The answer was: “Flesh-colored. He wasn’t wearing socks,” and after a pause, “But Harry Power (the bushranging companion of Ned’s youth) was captured in his sleep wearing clean worsted stockings.”

This astonishing knowledge of detail helps elevate Mr Jones to a special height among Kelly researchers. He mentions for example, that Sergeant Steele, whose bullets brought Ned down, was a rowing cox who shot at water birds as the crew rowed. (“He was gun-happy.”)

The article goes on to describe other matters Kelly related.

__________________________________________________________________________

APPENDIX 2
The full transcription of the two newspapers – The Age
and The Argus reports. The Age, 6 August, reports on McIntyre’s statements and examination at the Beechworth committal hearing:

“I am a constable of police at present stationed at the Richmond Depot.

I quickly turned round and saw four men, each armed with a gun, and having a gun at his shoulder pointing to Lonigan and myself. I noticed the man on the right of the party particularly I saw his weapon was in fair line with my chest. I immediately put out my arms horizontally, I was unarmed - so soon as I did, I saw the same man, the one on the right of the party move his gun a little to his own right, and fire at Lonigan who had started to run. When I first saw the men, Lonigan was standing at the opposite side of the fire to me and about 10 or 12 feet from me, Lonigan had started to run towards a tree. The man on the right took the gun off my body and fired at Lonigan. When the man on the right fired at Lonigan he was about 40 yards distant from him (Lonigan). The effect of the shot in Lonigan was that he immediately fell - he ran only 4 or 5 yards before he fell, I heard him fall, I did not see him fall. Heard him breathing heavily and stentorously. The man at the right of the four men was the prisoner Edward Kelly - when the prisoner fired at Lonigan - the four men were in a line and two or three yards distant from each other and all the same distance - about 40 yards from us and all in a line, as soon as Lonigan fell I saw the prisoner throw the gun into his left hand - put his right hand behind his back and draw a revolver. He (the prisoner) cried out to me Keep your hands up! Keep your hands up! I raised my hands on a level with my head. I was unarmed at this time, my fowling piece and the revolver were both in the tent. After putting his (prisoners) hand behind his back and drawing the revolver prisoner and the three others rushed up to where I was standing. They stood at a distance of about 3 yards from me and covered my chest with firearms, three of them with guns and the prisoner with a revolver. I kept my hands up all the time. Prisoner said to me 'Have you got any firearms', I replied, I have not, about this time I heard Lonigan cease to struggle and breathe. He had been struggling and plunging along the ground - Lonigan was about 10 yards from me at the time and the prisoner was within hearing distance from him (Lonigan) when I heard him Lonigan (as they were rushing up and two or 3 seconds after the shots were fired) exclaim 'Oh Christ I am shot!'

From the time he was shot till he ceased to struggle about half a minute elapsed all he said was 'Oh Christ I am shot!' a few minutes after that I saw he was dead. Prisoner after I said I had not any firearms, said, where is your revolver? I replied, at the tent. He (the prisoner) said to his mates keep him covered lads and they kept me covered with their guns, and the prisoner himself, then searched me, prisoner felt under my coat and passing his hand over my body under my coat and down my trousers searched me - the prisoner found no firearms upon me. He next jumped across the log and went in the direction where Lonigan was lying. The fire was between us (prisoner & myself) at this time. Prisoner remained away a moment and came back with Lonigans revolver in his hand - I was under cover of the other three men all this time. Prisoner said when he came back. Dear, Oh! Dear! what a pity that man (Lonigan) tried to get away, one of the others said 'He was a plucky fellow - did you see how he caught at his revolver - and the man who spoke was the prisoner's brother (Dan Kelly) moved his right hand spasmodically to his right side and said like that! (Witness describing the position). The prisoner himself went over to the tent - to the mouth of the tent and the whole three remained - but lowered their firearms.

When the prisoner came back from the body of Lonigan the others still having their firearms pointed in the direction of me prisoner went over to the tent and came back. He had my revolver which had been hanging up in the tent. He told his mates to let me go. They did. They left me and the three of them went towards the tent, I remained in the same place. They all went into the tent and Daniel Kelly (the prisoner's brother) came back with a pair of handcuffs, Edward Kelly was present and heard what was said, Dan Kelly said referring to the handcuffs 'We will put these on the B—' I appealed to the prisoner saying what is the use of putting these upon me? How can I get away? and you all armed this way you are. He prisoner said to Dan Kelly 'all right don't put them on him' this tapping his (prisoner's) rifle is better than handcuffs' and said turning to me 'mind you don't try to go away because if you do, I will shoot you, if I had to track you to the police station to shoot you there'. The brother Dan said 'The B—s would soon put them on us if they had us'. The other two were close when Dan said this.

They all went to the tent leaving me standing - the prisoner called me over to the tent -I went over - the whole four were there at the time I knew the prisoner and Dan Kelly at the time - and recognised them from the police description and a photo I had seen of prisoner Edward Kelly. I did not know who the other two men were at the time - when I went over to the tent - the prisoner was sitting down with the gun with which he had shot Lonigan, across his knee - the others were inside the tent. Prisoner referring to the gun he had in his hand said 'that is a curious old gun, for a man to carry about the country with him'. I said 'it is' perhaps it is better than it looks', prisoner said you might say that - I will back it against any gun in the country, I can shoot a kangaroo at 100 yards with every shot from it'. It was an old barrelled gun, from its appearance I took it to be a rifle, the stock and barrel were tied together with a waxed string for about three or four inches in front of the lock - it was spliced at this time I now speak of prisoner had possession of the fowling piece, prisoner said, 'who is that over there? and nodded in the direction of Lonigan's body'. I said 'that is Lonigan' He said No that is not Lonigan 'I know Lonigan well' I said 'Oh yes it is Lonigan' he said 'well I am glad of that for the B—gave me a hiding in Benalla one day'. Prisoner's brother (Dan) remarked that 'he would lock no more poor b—up' and smiled at the time he said it.

The other two men did not refer to Lonigan in any way (since I have heard that one of the other two men was Joseph Byrne - I saw his dead body at Glenrowan and identified him as Joseph Byrne) Byrne having the tea that I had made, handed me a pannikin and said 'Here mate, have some tea! This was before any of the four men had tasted the tea themselves, I drank some of the tea - and they all, after seeing me take some, with the exception of the prisoner, drank some and partook of our provisions. Before they did so, the prisoner said 'Is there any poison about there? I said, No, why should we have poison?

Whilst the other three were having something to eat and some tea, prisoner took our fowling piece and drawing the cartridges out of the fowling piece - he pricked the end of them - extracted the shot, threw the shot away, tore up the cartridges and replaced the charges with two bullets he took from his trousers pocket, one bullet for each cartridge - Having so reloaded the gun - he gave it to Byrne and said 'Here Byrne you take that' handing it to him - give me yours - He took Byrne's gun from him - prisoner said to me 'there is one of these for you if you don't obey me' the prisoner had two guns in his hand at the time the one with the string and the other he gave to Byrne. Byrne said to me 'Do you smoke mate? I said Yes, He said 'well fill your pipe' and have a smoke. I did so. Byrne asked me for tobacco with which I supplied him, Byrne smoked prisoner also asked me for tobacco which I gave him - This all happened from the time they came up to about ten or fifteen minutes.

They (prisoner) kept possession of their guns all the time, at the end of about this time prisoner said 'Take you places lads' prisoner went over and concealed himself close to the fire taking the two guns with him - the fourth man (Hart) remained in the tent - Byrne and Dan Kelly went over to the spear grass…. the spear grass that they first appeared from - I lost sight of Dan Kelly and Byrne in that spear grass - prisoner concealed himself behind a large log near the fire, he knelt down behind the log - having the two guns with him. I remained at the tent outside, till the prisoner called me over, prisoner immediately he concealed himself, called me over, He pointed to the opposite side from where he was concealed, and said 'You stand there'. I went to it, and the log was between me and him, the log was close to three feet high, he was completely concealed on the one side and I was standing up on the other. He, the prisoner then had the guns and the revolver - when the prisoner had a conversation with me, he commenced it by saying 'who showed you this place?' I said 'No person showed it to us - It is well known to all the people about Mansfield - He then said 'How did you come here?' I said 'We crossed Holland's Creek and followed the blazed line' He said 'who are you at all and what brought you here? I said 'you know very well who we are', neither Lonigan nor myself were in uniform at the time, we were in plain clothes. He said 'what brought you here? I suppose you came after me?' I said 'No I don't know that we did come after you' He said 'well you came after Ned Kelly then' I said 'Yes we came after him' he said 'Yes and you B—s came here to shoot me I suppose' I said 'no, we came to apprehend you' He then said 'Why did you bring so much firearms and ammunition?' I said 'we only brought the fowling piece to shoot kangaroo', He said 'who was that shooting down the creek today?' I said 'I was shooting at parrots' He said 'that's very strange didn't you know we were here' I said 'No I did not think you were within ten miles of this place, we thought you were over there and I pointed in the direction of Greta. He said 'when do you expect these men home? I said 'I didn't think they will be home tonight I think they must have got bushed (and previously he asked me where were the others and immediately after he came from the body of Lonigan. I said they were out. He said then which direction did they go in? I pointed North West in the direction of Benalla - I said over there - He said 'That's very strange' well perhaps they will never come back for there is a good man down the creek and if they fall in with him you will never see them again, He said 'what is their names and stations' I said 'Sergeant Kennedy at Mansfield and Constable Scanlon from Benalla. He said I never heard of Kennedy but I believe Scanlon is a flash b—. I said what do you intend doing with the men, surely you don't intend to shoot them down in cold blood, because if you do I would rather be shot a thousand times myself than tell you anything about them' He said 'Well of course, I like to see a brave man, you can depend upon my not shooting them but you must get them to surrender, I will not shoot no man that will hold his hands up and surrender. I said what do you intend doing with me? are you going to shoot me? He said 'No what would I shoot you for? I could have shot you half an hour ago when you were sitting on that log if I wanted to - and pointing to a part of the log which I had been sitting on half an hour previously He said at first I thought you were Flood (who is a constable of police) and it is a good job for you that you are not, because if you had I would not have shot you but roasted you upon that fire. There are four men in the police force and if ever I lay hands upon them. They are Fitzpatrick – Flood - Steele and Strachan, for Strachan has been blowing he will take me single handed. He said 'How are these men armed' I said 'there armed in the usual way'. He said 'what do you mean by that, have they got their revolvers' I said 'yes they have got their revolvers'. He said 'Haven't they got a rifle with them?' I hesitated to reply - and he said come, mind now, tell me the truth - if I find you out in telling me a lie - I will put a hole in you'. I said yes 'they have got a rifle'. He said 'What sort is it? Is it a breechloader? I said 'Yes it is a breechloader' He said 'Well that looks very like as if you came out to shoot me' - I said 'you cannot blame the men - you know they have got their duty to do and they must come out as they are ordered to do'. He said 'they are not ordered to go about the country shooting people, and he continued, what became of the Sydney man (I knew he referred to the murder of Sergeant Wallins) I said, he was shot by the police. He said if they shot him they shot the wrong man, and I suppose some of you B—s will shoot me some day, But before you do, I will make some of you B—s suffer.

ON the 7 August, McIntyre continues:

Ned Kelly said to me, ‘Why I broke out was that b— Fitzpatrick was the cause of all this - those people lagged at Beechworth the other day no more had revolvers in their hands than you have at present - In fact they were not there at all - those are the men that were there - and he nodded towards his mates - they were concealed one in the spear and the other in the tent, I said 'you cannot blame us for what Fitzpatrick has done to you. He said 'No but I almost swore after letting him go that I would never let another go - and if I let you go now you will have to leave the police force. I said 'I will my health has been bad, and I have been thinking of going home for some time - I said - if I get these other two men to surrender, what will you do with us? He said You had better get them to surrender because if they don’t surrender, we will shoot you or if they get away we will shoot you, But we don't want their lives, only their horses and firearms - during this conversation the prisoner was watching the creek occasionally. He had the two guns laid up against the log - the muzzle of them was resting on the log - I thought it might be possible, by a sudden spring - to get over one of the guns in the event of the men coming in sight - I took a short step towards him; to be ready for a spring - and Hart - who was concealed in the tent, cried out excitedly 'Ned look out or that b—r will be on top of you' prisoner addressing me cooly - looked and said 'you had better not mate because if you do you will soon find your match, for you know there are not three men in the police force a match for me'. He said 'Are there any others out? I said 'Yes there is another party to leave Greta'. He also asked me who they were - I said I do not know, but they were under the command of Sergeant Steele - at this time it was getting late - between half past five and six - and I expected the men home shortly - I said to the prisoner I will try to get them to surrender if you promise faithfully not to shoot them a moment after, the men Kennedy and Scanlon came about one hundred yards off, down the creek in sight - the prisoner said - Hist lads! here they come - and to me, you go and sit down upon that log and mind you give no alarm or I will put a hole in you' I went to the part of the log he pointed out - about ten or twelve yards off, and scarcely had time to sit down, when the men came to within forty or fifty yards where I was They were on horseback and walking slowly - Sergeant Kennedy came on - from about ten or twelve yards in advance of Scanlon, I don't remember if the prisoner said anything further to me, before he (prisoner) did anything I stepped towards the men coming in. I said to Sergeant Kennedy quite loud, when he was five or six yards from me so that the prisoner could hear me 'Oh Sergeant you had better dismount and surrender for you are surrounded' At the same time prisoner cried out 'Bail up! hold up your hands! Kennedy smiled and playfully put his hand upon his revolver - which was in the case buckled up - Immediately he did so the prisoner fired at him, and missed him, Kennedy's face assumed a serious aspect and I turned round and looked back at the prisoner and his mates. I saw his three mates then advancing, one out of the tent and two out of the spear grass, they were running with guns in their hands, and crying out 'Bail up! hold up your hands' at the time the prisoner fired at Kennedy, he was behind the log, and kneeling on his right knee - Kennedy must have seen his head and shoulders, before he fired, at the same time the other three men were advancing Kelly (the prisoner) threw down his discharged gun, and picked up the one that was loaded - which he pointed in the direction of Scanlon. I again looked at Kennedy, and saw him throw himself on his face on his horse's neck, and roll off on the off side of his horse -

At the same time he did so - there were four shots fired - and Scanlon who had pulled up at about thirty yards from where the prisoner was concealed - and was in the act of dismounting off his horse - when he first heard the voices to bail up - He fell upon his knees in dismounting - he caught at his rifle as if to take it off his shoulder out of the strap - and endeavoured to get upon his feet. He again fell upon his hand and knees and in that position was shot under the right arm. The prisoner covered him and fired but there were three or four shots fired at the same time and any of the others might have struck him. Between the time of calling Bail up! and the shots were fired, scarcely any time elapsed, seeing Scanlon fall I expected no mercy to any of the party - I caught and mounted Kennedy's horse, that was close to me, Before I mounted the horse was restive with the firing, and turned his head north - and moved about a full length of himself while I was struggling to get into the saddle. Having mounted I got the horse to start after a little trouble and I escaped. Kennedy must have seen me when I mounted but he said nothing, when I was riding away a number of shots were fired but at whom I could not say. When Scanlon was shot under the arm I saw a blood spot on his coat and he laid over on his back - I rode away northerly for about a couple of hundred yards till I lost sight of the camp - then I rode westerly - which would take me to the telegraph line between Benalla and Mansfield - I was torn off the horse by the timber and severely hurt I was in the bush all night, and the following day (Sunday) at three o'clock I got to Mansfield, I made for the Telegraph line but I lost my way - when I got to Mansfield I reported what occurred to Sub Inspector Pewtress - He organised a search party - some police and others, I accompanied them. About two hours after getting to Mansfield I returned with the search party. It was 5 or 6 o'clock when we started. We got back to the scene of the murder about 1 or 2 o'clock on the Monday morning and we found the bodies of Constables Lonigan and Scanlon where I had last seen them both dead - made search for Kennedy but did not succeed in finding him - Our tent was burnt down and what part of our property not destroyed was removed except a tin plate.

Mr. Pewtress came out in command of that search party, Dr Reynolds (the medical gentleman who afterwards made the post mortem examination) arrived at about daylight. I showed the bodies of Lonigan and Scanlon to him - The Doctor examined the bodies merely looked at them, before they were removed. they were that same day (Monday) packed on pack horses and removed to Mansfield arriving there the same day. We took the bodies on the pack horses to Mr Monks (the Wombat Saw Mills) and from that in a waggon to Mansfield. I was present when the magisterial inquiry on the body of Lonigan was held - Dr Reynolds gave evidence, I saw one bullet then. It was pointed out to me by Dr Reynolds, I saw three bullets altogether at the Inquiry. I afterwards saw the dead body of Kennedy on Thursday the 31st of October 1878 at Mansfield. There was a magisterial inquiry also upon Kennedy. Kennedy had a gold watch when he went on patrol with us, when we started at first from Mansfield, I saw it with him the last time in the tent - on the Friday night when he was winding it up. It was a valuable gold watch.

I did not see the prisoner again until I saw him at Glenrowan on Monday the 28th of June last. Since the murders I have been attached to the Detective Department, my health has been pretty good but was not at the time of the murders, I am a bilious subject - when I reached Glenrowan on the Monday, the prisoner had been arrested - I saw the prisoner the following Tuesday at Benalla - I went into the lock up to see him, senior constable Kelly was present and during the whole of the conversation I had with the prisoner - The conversation began thus:- Senior Constable Kelly said 'Ned' pointing to me - do you know this man, prisoner said No its Flood is it not. I said ‘No you took me for Flood the last time we met.’ He (prisoner) said Oh yes its McIntyre. I said ‘So you remember the last time we met’. He said ‘Yes I do’ I said ‘did I not tell you on that occasion that I would much rather be shot than tell you anything that would lead to the death of the other two men’ He turned to Senior Constable Kelly and said Yes he told me he would rather be shot himself than bring the other two men into it (if it was a thing that they were going to be shot) I said 'when I turned suddenly round I saw you had my chest covered. He said, ‘Yes I had’ And when I held out my hands you shot Lonigan. He said No, Lonigan got behind some logs and pointed his revolver at me. Did you not see that. I then said that is only nonsense. I then said did Kennedy fire many shots at you? He said ‘He fired a lot’ He must have fired nearly two rounds of his revolver. I said ‘why did you come near us at all when you knew where we were and you could have kept out of the way’. He said ‘You would soon have found us out and if we did not shoot you would have shot us’ He also said our horses were poor, our firearms were bad, and we want to make a rise. I asked him ‘Did I show any cowardice’. He said ‘No’ That's all the occurred in the cell as far as I recollect - I left him then.

Under cross examination by Mr Gaunson, McIntyre says :

I am an Irishman, my age is thirty five. Since the Wombat affair I have been in Melbourne and connected with the Detective Department. I arrived at the Richmond Depot on Friday the 1st of November 1878 I volunteered to the Chief Commissioner of Police at the Railway Station Spencer Street to go to Glenrowan. I knew a special train was going up, I did not travel in the same carriage with the Chief Commissioner on the way up. On the Monday the 28th June last at Glenrowan I saw the Chief Commissioner of Police - it was about 5 o'clock. I saw the bodies of what I took to be two men, so unrecognisable that they might (have) been women. The Chief Commissioner said to me 'McIntyre can you identify this man, meaning prisoner, prisoner was in a room at the Railway Station, I had seen him previously. Chief Commissioner said 'has Kelly much changed? I don't remember any further conversation - then on the Monday (28th June last) with the Chief Commissioner. On the Tuesday I saw Kelly at the lock-up at Benalla - I heard he had been speaking about me, I went voluntarily to see him Sergeant Whelan was in charge of the station, Senior Constable Kelly might have been in charge of the lock-up that day, I presumed he was for he had the key. I heard from some of the constables that Kelly was talking about me during the night, Senior Const Kelly gave me access to the cell - I went to see the prisoner - I said to Senr Const Kelly in the Bedroom in the Barracks room and asked him (Kelly) to come with me to the lock-up - he did so - I went to the lock-up with Senr Const Kelly. When we got there, there was a guard outside. Senr Const Kelly may have had to ask for the key. It was the duty of the police to visit the prisoner - I need not have gone to the lock-up if I had not liked. When I got there I put the questions I have deposed to - Prisoner was wounded and he was lying down. I knew he was wounded in one of the arms. His mental condition was sane, seemingly, Senior Constable Kelly was inside but not taking notes of the conversation. He (Senr Const Kelly) did not take any written notes in the cell nor in my sight after leaving the cell - after leaving the cell I had no conversation with him for some time, I believe I did not see him, after the next day at Benalla - till seeing him at Beechworth on Thursday the 5^th August inst. I slept in the Beechworth Gaol the night before last, but last night in the Police Barracks (6^th August) I did not report to the Chief Commissioner the result of the conversation with the prisoner in the cell at Benalla. I made out a Brief for Sub Inspector Kennedy and included in it the conversation in the cell - The subject has not since been a matter of conversation with us. I told him (Senr Const Kelly) what my evidence would be - I asked him if it was correct, He said ‘Yes’ There was another man present in the lock-up at Benalla - he was a constable, but only part of the time, I think it was Senr Const Johnston, I am well aware of the fact, that I am the principal witness against the prisoner - A number of statements were taken from me by reporters. It was a matter of great public excitement. I gave my statement to the reporter freely, as I remembered it, I made my first report to Superintendent Sadlier (through Sub Inspector Pewtress) in writing. The report was not supervised by anyone, while I was writing it. Maud is a clerk in Superintendents office.

I have not read all the reports which appeared in the 'Argus'. I read the 'Age' principally. Maude's report was wrong. I said in my report - and should have said it, and I believe I did for I was in an

excited state at the time. I made my report and I cannot say what I wrote two years ago and have not seen since. I never saw the prisoner or Dan Kelly or Byrne or Hart before I saw them at Wombat, to my knowledge - I knew the prisoner from his description in the Police Gazette. He was described as being wanted for attempting to murder Constable Fitzpatrick - I believe never told prisoner that Fitzpatrick had perjured himself. I knew the prisoner from his family likeness and from the resemblance to a photograph.

I had seen his mother and sisters, I saw the prisoner's photograph with Sergeant Kennedy. It was taken in Pentridge and was on a discharged prisoners sheet. He was shaven, I cannot say his age. He is described in the Police Gazette has having been born in the year 1856 - The likeness I refer to was taken 7 or 8 years ago. The man I saw at the Wombat and identify as Kelly had a beard and hair on his face. I was not guided alone by the photograph, in identifying Kelly, I will not swear that the photograph I saw was that of the prisoner Kelly, it was shown to me as such by Serg Kennedy. I recollect a reporter from the 'Argus' interviewing me - while in a state of prostration - at the Depot, I cannot recollect saying that the photograph I saw, was a good one of Edward Kelly. I have read the report I sent first to Superintendent Sadlier and I might have read it at least fifty times.

To the Crown Prosecutor McIntyre says:

I wrote that report a few days after the occurrence and when everything was fresh in my memory. The one I sent to Mr Sadlier I have never seen since.

And to Mr Gaunson McIntyre says:

The photograph Sergeant Kennedy showed me was the only one I saw of the prisoner. I have seen others since that purported to be photographs of the prisoner. We went to the Wombat to arrest 'Ned Kelly' for attempting to murder Constable Fitzpatrick, and Dan Kelly for aiding him. There were also warrants out against each of them for horse stealing. When we started out we expected resistance but not attack. Sergeant Kennedy informed me that Superintendent Sadlier ordered us to go out. I don't know if there was a warrant with us, or that Sergeant Kennedy had one. He may have had one, I had no warrant, I cannot say if any of the others had a warrant, I don't know now whether Sergeant Kennedy had a warrant with him. It was breaking day when we started for the Wombat, we got to the camp on Friday night, I left the camp to have a shot at some kangaroo - but returned without firing a shot, and next day all took place that I have stated.

I was in Court when prisoner's mother was tried, I heard part of the evidence it was early in October (78) I heard part of Fitzpatrick's evidence. Skillion and Williamson were tried with Mrs Kelly. Skillion is the prisoner's brother-in-law. I don't remember being present when they were sentenced but heard they were sentenced to the terms of imprisonment Mrs Kelly to 3 years and Skillion and Williamson to six years each. I believe the infant Mrs Kelly had at the trial went with her to gaol. It was I think the 15th of April of the year 1878 that the attempted murder of Fitzpatrick took place. When we went out there was £100 reward for the arrest of Edward Kelly. It was not for dead or alive. If he resisted with firearms I would shoot him. If he was charged with murder and after being called upon ran away I would shoot him. Constable Fitzpatrick is not now in the police force. I believe he was discharged - I know it, saw it in the Police Gazette. I don’t know where he is now. If Fitzpatrick had possessed the qualities of truthfulness - uprightness and decency he would not be dismissed from the Police force. He may have been dismissed for some indiscretion, even if he had possessed those qualities. I believe a pardon has not been granted to Mrs Kelly. Constable Fitzpatrick was the only witness to the supposed outrage, I never saw Kelly before this outrage at the Wombat. I never was stationed with Fitzpatrick. I only knew him casually. He was a decent young fellow. Knowing there were warrants against prisoner and Dan Kelly made search often for them but had no warrant with me, I accompanied Serg' Kennedy but did not know the whereabouts of the Kellys. When I accompanied him, we were all in plain clothes, clothes something of the same sort as I am in now. When with Lonigan I heard the voices cry 'Bail up! Hold up your hands' I did not hear it said 'we don't want to take your life we only want your arms' not at that time. After Lonigan was dead I had a conversation with prisoner (Kelly) and he said that 'That b—y Fitzpatrick is the cause of all this' I don't remember saying 'I know that' I said 'You cannot blame us for what Fitzpatrick did' I cannot remember using the exact words, I will not swear that I did not say 'I know that' at that conversation about the mother's conviction - If any conversation took place about Serg' Steele giving evidence I cannot recollect what it was. He did give evidence in Mrs Kelly's case but I don't know against which prisoner. After the first moment I was quite cool. A few days after my arrival at the Richmond Depot, noted all down that occurred. When Kennedy came up prisoner was about 30 yards off, and when he cried 'Hist lads here they come'. When Kennedy came up I walked in the direction of him. Prisoner was about 12 yards from me and I 5 or 6 yards from Kennedy when he (Kennedy) came up, a moment after Kennedy got off the horse - and seeing the horse abandoned I seized the horse and rode off. I could not swear that Kennedy saw me when I was mounting on the horse. I would not swear now that Kennedy was not dead at the time I got on the horse. I did not look around. If I had done so I would have rushed against some timber. I have sworn that the prisoner fired at Kennedy but missed him, and from the time a man (prisoner) took up a gun and laid down another other shots were fired. I cannot speak as to the feelings of the other men (the police) against the prisoner. I have spoken to the police about Kelly, to Steele and others. I have not heard any man express a desire that the prisoner should be sentenced to death. Steele has not expressed any opinion to me regarding the prisoner - as to his being sentenced we had no public or private conversation on the subject. I distinguished between the prisoner and his brother by description. I was in a country where I did (not) expect to see any others but them, When I told Kelly 'I don’t know I was looking for you' I thought it injudicious then to say I knew it was Edward Kelly. When I said to Kelly 'we were coming after you' I considered it was giving him an evasive answer. Kelly said to me 'what brings you out here at all'? It is a shame to see fine young strapping fellows like you in a lazy loafing billet like policemen. I believe I stated in evidence today that Kelly said if you get them to surrender I will allow you to go in the morning on foot, as he wanted our horses and firearms. He said also 'we will allow you all to go in the morning' I thought I had said that before, I was close to Kennedy's horse when he abandoned it - as I said, Kennedy dismounted, and threw himself off his horse. I didn't believe Kennedy was shot then Scanlon was shot at that time. Scanlon was on the ground on both knees, I dont think I told a reporter that Scanlon was shot when making for a tree, I was annoyed at the reporters - they would suggest questions to me and take anything for an answer.

I thought too much was published about the whole matter, too much published of his (Kelly's) deeds. There was too much published injurious to a fair trial of these men. There was too much published in the direction of the glorification of the Kelly gang. I had very little conversation with the other men beside the prisoner. I think I have mentioned all they said. It was late when Kennedy came up. In a rangy country it gets darker sooner than in other country. The conversation with prisoner and myself, where the logs were, lasted only about quarter of an hour. The party had four guns - when they first came up - one each besides our fowling piece, my gun had been unloaded and freshly loaded. I believe Hart carried a double barrelled gun. I was thinking most of my own safety, at the time, and noticed particularly what was done. Daniel Kelly carried a common single barrelled fowling piece - a cheap gun - common bore - I don't know at that moment it was loaded, I know it was loaded after but not what with. I heard him discharge it, I don't know that there was anything in it, but powder, I knew he discharged it, saw the smoke and saw the discharge. I was standing in front of them and three of them discharged their firearms besides Edward Kelly. When I say I was concerned for my life, I saw the discharge from the guns. I could not say at what object Dan Kelly fired at. I cannot swear that Dan Kelly fired more than one shot. I did not examine Harts gun closely. I heard a report come from the direction Hart was in. The other men fired as they approached and about twenty yards off and behind me, I was in front of them. Harts gun had powder in it. Byrne had a very old fashioned gun, with a very large bore, more than an ordinary large bore. I am now describing the guns we were attacked with - Byrne's gun was loaded with what I cannot say. I saw the prisoner discharge that gun, the one he got from Byrne. He discharged it at Kennedy. That was when the miss took place, prisoner gave our gun to Byrne, taking Byrne's himself. I heard all the guns discharged - of my own knowledge all the guns were loaded - but I cannot say with what. The one that was loaded in my presence was the one Byrne had in his possession. I cannot say who the shots were directed at, except that the prisoner pointed the gun and fired in the direction of Scanlon, I did not resolve to escape until I saw constable Scanlon shot, from Scanlon being shot to Kennedy dismounting my escape was instantaneous. I heard three shots all together and one after the other. When I saw it was useless for them (Kennedy and Scanlon) to surrender, I made up my mind to escape and to get out of the place as soon as possible. The shots fired afterwards, I don’t know who they were fired at. I have not seen any of these guns since.”

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The Argus of 28 October 1880, reports on McIntyre’s deposition at Ned’s murder trial in Melbourne’s Supreme Court:

“I am a police constable, at present stationed in Melbourne. In October, 1878, I was stationed at Mansfield, and on Friday the 25th of the month, left with Sergeant Kennedy and Constables Lonigan and Scanlon to search for the prisoner and his brother Dan, on a charge of attempting to murder Constable Fitzpatrick. Knew that there were warrants issued. They were notified in the 'Police Gazette'. The party were in plain clothes, and Sergeant Kennedy was in charge. We started at about 5 o'clock in the morning, and camped in the Wombat Ranges, 20 miles from Mansfield, pitching our camp in a small cleared space. There were the remains of a hut there, and some dead logs lying on the ground. On the following morning, the 26th, Sergeant Kennedy and Scanlon left the camp to patrol on horseback, leaving me and Lonigan in charge of the camp. Sergeant Kennedy had a Spencer rifle and revolver, Scanlon a revolver, Lonigan had a revolver, and I a revolver and fowling piece. During the day, in consequence of a noise having been heard down the creek, I searched the place but found no one, and on returning to the camp fired two shots at parrots. I and Lonigan, at about 5 o'clock, lit a fire in the angle formed by two large logs which crossed each other, and proceeded to prepare our tea. We were standing at the fire with one of the logs between us. Lonigan alone was armed, and he only had a revolver in his belt. My revolver and fowling piece were in the tent. There was a quantity of speargrass 5 ft. high about 35 yards from the fire, and on the south side of the clearing, I was standing with my face to the fire and my back to the speargrass, when suddenly a number of voices from the speargrass sang out, 'Bail up, hold up your hands'. Turning quickly round, I saw four men, each armed with a gun, and pointing these weapons at Lonigan and me. The prisoner, who was one of the men, had the right-hand position, and he had his gun pointed at my chest. I, being unarmed at once threw my arms out horizontally. Lonigan was in my rear and to my left. Saw the prisoner move his rifle, bringing it in a line with Lonigan, and fire. By glancing round I saw that the shot had taken effect on Lonigan, for he fell. A few seconds afterwards he exclaimed, 'Oh, Christ, I'm shot'. The four men then advanced on me, running, three of them with their guns lowered, the prisoner drawing a revolver, and all calling out, 'Keep up your hands'. At a distance of three yards they all covered me with their weapons. On ascertaining that his firearms were at the tent, the prisoner took the revolver from Lonigan, who had in the meantime expired, and also secured the firearms in the tent. The four men then went into the tent, leaving me outside. Dan Kelly returned to me with a pair of handcuffs found in the tent, and said he was going to handcuff me. Prisoner, who followed him, said that was unnecessary, as his rifle was better than handcuffs, threatening at the same time to track me, even to the police station. If I tried to escape. In the conversations that followed prisoner called my attention to the gun with which he had shot Lonigan. He said, 'That's a curious old gun to carry about the country.' It was an old weapon with stock and barrel tied or spliced together with a waxed string. The prisoner then took up my fowling piece, drew the charges, abstracted the shot and substituted them with bullets, reloading the gun with the same. He gave the fowling piece to Byrne, whose body I identified at Glenrowan. I recognised prisoner and his brother from their likeness to their mother and sisters. Did not know Hart, the other member of the gang. Prisoner, jerking his head towards Lonigan's body, asked, 'Who is that?' Witness replied, 'Lonigan'. Prisoner at first said, 'No; I know Lonigan well'; but afterwards, 'Oh yes, it is. I am glad of that, for the —once gave me a hiding at Benalla.' Prisoner had now two guns, the one he received from Byrne in exchange for the fowling piece and his own weapon. He remarked that one was for me if I attempted to escape. The prisoner then arranged his men, placing two in the speargrass [Dan and Byrne] and one [Hart] in the tent. The prisoner himself lay down behind a log at the fire, and called me to the log. We had some conversation in which the prisoner expressed a belief that the police had come out to shoot him. The prisoner and his mates were now waiting for the return of Kennedy and Scanlon, and with regard to their absence and probable time of return he closely questioned me. He asked me to request them to surrender, and promised not to shoot them if they did. He stated, however, that there were four men in the police force he intended to roast --viz., Flood, Fitzpatrick, Steele and Strong. He said, 'What gun is it? Is it a breechloader?' I said, 'Yes, it is.' He said, 'That looks very like as if you came out to shoot me.' I said, 'You can't blame the men, they have got their duty to do, and they must come out as they are ordered.' He said, 'They are not ordered to go about the country shooting people'. He then said, 'What became of the Sydney man?' – he referred to a man who murdered Sergeant Walling in New South Wales. I said, 'He was shot by the police.' He said, 'If the police shot him they shot the wrong man. I suppose if you could you would shoot me some day, but before you do it I will make some of you suffer for it. That fellow Fitzpatrick is the cause of all this. Those people lagged at Beechworth the other day no more had revolvers than you have at present – in fact, it was not them who were there at all.' I said, 'You can't blame us for what Fitzpatrick did to you.' He said, 'I have almost sworn to do for Fitzpatrick, and if I let you go now you will have to leave the police force.' I said, 'I would, that my health was rather bad, and I intended to go home.' I asked him what he would do to the men if I got them to surrender. He said, 'You had better get them to surrender, because if they get away we will shoot them and if they don't surrender we will shoot you. We don't want their lives, only their firearms. We will handcuff them all night, and let them go in the morning.' I thought I could possibly get a gun by a sudden spring, and I made a short step towards them. Hart cried out from the tent, 'Ned, look out, or that fellow will be on the top of you.' Prisoner said, 'Don't do that, mate; if you do you will soon find your match, for you know there are not three men in the police force who are a match for me.' About this time (half-past 5 or 6 o'clock) Kennedy and Scanlon came up. Prisoner cried out, 'Listen, lads, here they come.' (This evidence was objected to as relating to another offence, but the objection was overruled on the ground that the evidence was admissible to show the intent with which the first shot was fired.) Kennedy and Scanlon came up on horseback. They were 150 yards from us. The prisoner was still kneeling behind the log. He stooped to pick up a gun. Kennedy was on horseback. Prisoner said, 'You go and sit down on that log' (pointing to one), and added 'Mind you don't give any alarm, or I'll put a hole through you.' The log was about 10 yards distant from the prisoner, in the direction of Kennedy. When they were 40 yards from the camp I went to them and said, 'Sergeant, we are surrounded; I think you had better surrender.' Prisoner at the same time rose and said 'bail up.' Kennedy smiled, and apparently thought it was a joke. He put his hand on his revolver. As he did so prisoner fired at him. The shot did not take effect. The three others came from their hiding place with their guns, and cried out, 'bail up'. Prisoner picked up the other gun. Scanlon, when Kennedy was fired at, was in the act of dismounting. He became somewhat flurried and fell on his knees. The whole party fired at him. Scanlon received a shot under the right arm. He fell on his side. Kennedy threw himself on the horse's neck, and rolled off on the off side, putting the horse between him and the prisoner. I caught Kennedy's horse, and I looked round and saw the others running past. I attempted to mount the horse to get away. The last I saw was Kennedy and Scanlon on the ground. I got away. I heard shots fired. I can't say if they were fired at me. I got thrown off the horse in the timber when I had ridden two miles. I remained in the bush all night, and got to Mansfield next afternoon (Sunday), about 3 p.m. I reported the matter to Inspector Pewtress, and a search party was organised. We started from Mansfield about 6 o'clock. Never saw the prisoner again till after his arrest at Glenrowan. I arrived at Glenrowan on the Monday afternoon. Saw the prisoner at the railway station, and recognised him.

McIntyre is then cross-examined by Mr Bindon:

We went out with Kennedy to arrest the prisoner and his brother. I did not see the warrants for their apprehension. I can't swear that any of our party had a warrant. I knew of the warrants by the 'Police Gazette.' Kennedy did not roll off his horse through being wounded by the prisoner. From the time the sergeant came in sight till Scanlon was shot was about a minute. Kennedy's horse was restive after I caught him. I thought nothing of the horse till I saw Scanlon was shot, and then I did not think I could get away. Scanlon was shot immediately after Kennedy was fired at. When they were firing all round I thought no mercy would be shown to any of us. If I had known Kennedy would have fought I would not have left. I did not consider there was any opportunity for a fight.”