WARNING: Readers please not that this article mentions deceased First Nations people.
When Justice Redmond Barry sentenced Ned Kelly to death on October 29, 1880, Kelly said, “I’ll see you in hell.” Kelly was hanged 12 days later on November 11, and Barry died just 12 days after that, on November 23, apparently eager for the assignation in the netherworld.
Redmond Barry arrived in Sydney in 1839 as a young lawyer, but found that town uncongenial. He had been involved in a scandal on the ship out. He had an affair with a married woman, had been confined to his cabin by the captain, and thus likely was instant persona non grata upon arrival in New South Wales.
He would not be the last person to fall foul of, and be shunned by, the very conservative and exclusive Sydney Bar.
For whatever reason, Barry quickly decamped to the newly established Port Phillip settlement where he set up as a legal practitioner in the infant jurisdiction. One role he established for himself was that of the lawyer who would defend Aborigines. He became almost a one-man Aboriginal Legal Service 150 years before the event.
A legal conundrum had arisen very early at Port Phillip: the difficulty of putting Aboriginal people on trial. There had not been many trials of Aborigines in Van Diemen’s Land and none during the Black War which lasted from roughly 1824 to 1832. Captured Aboriginal warriors had, surprisingly, been generally considered as combatants, not as criminals, and not put to trial. This was not to be the case in Port Phillip, and it certainly was not in the case of the Tasmanian Aboriginal men and women who were on trial for murder in 1840.
The accused had all come across Bass Strait with George Augustus Robinson in 1839. Robinson, an evangelical Christian, had become a hero to settler Tasmania for “bringing in” the “last of the Tasmanians” and had been running an Aboriginal settlement on Flinders Island where the remnant population had been sequestered. He was, now, the “Protector of the Aborigines” of the Port Phillip district, and had brought some of his closest Tasmanian Aboriginal colleagues with him across the Strait, including Truganini, who may also have been his sexual partner at times.
But when Robinson got to Port Phillip, he seems to have become very busy ingratiating himself with the authorities, and to have forgotten his Aboriginal associates. Truganini and some of her friends, two women named Plorenoopner and Maytepueriner, and two men named Peevay and Maulboyheener, left the settlement on the Yarra and went on (in British eyes) something of a crime spree which culminated in the ambush killing of two whalers by gunshot on the Mornington Peninsula.
The whaling men may have had a history of violence against Aboriginal people, and they may also have been mistaken for other men against whom the Tasmanians had a grievance. But the facts were not in dispute: the whalers had been killed in cold blood and in an ambush. If the Aboriginal people were culpable, they had committed murder in British eyes and, by the current law, they must hang.
Difficult questions arose, and Redmond Barry tackled them. Apart from issues with language, there were questions as to whether the Tasmanians could be held culpable. Were these people subjects of the Crown? And, accepting that they were not Christians, were they sentient, moral beings who knew right from wrong?
Barry’s chief witness for the character of the Tasmanians, and for these moral, theological and philosophical questions, was Robinson himself. And Robinson proved the saviour for the women.
However, for the men, Peevay and Maulboyheener (known to the British as Jack and Tommy), Robinson became the person who condemned them. He asserted that the men very well knew right from wrong, and that put the noose around their necks straight away.
The women, he said, were in thrall to their men, and thus not responsible, or culpable. So Truganini, Plorenoopner and Maytepueriner were freed while Peevay and Maulboyheener were hanged, becoming the first people legally executed in the Port Phillip settlement.
In George Augustus Robinson, Redmond Barry had found himself a great character witness for the women but a hostile one for the men.
. . .
From the records, it seems as fair an attempt at a trial as could be possible across such divergent cultures and in the middle of yet another holocaust of the Aboriginal people. The Aboriginal people of Australia did not face genocide only in Tasmania. The death-rate around Sydney Harbour in the late 18th century was extreme, and the expulsion of the local people from Port Phillip in the 1830s was much more swift and rigorous than anything perpetrated in Van Diemen’s Land.
By British standards of justice, the trial seems fair – as fair as Kelly’s was, 40 years later. But of course the desperate circumstances those Tasmanian Aboriginal people found themselves in was not taken into consideration. Kelly’s supporters would assert, likewise, that the oppression by the authorities of the poor Irish settlers gave Ned no options, and he had many more supporters than those Aboriginal people in 1840.
Redmond Barry went on to defend many more Aboriginal people; and then to a distinguished, if conservative, career on the bench in what became Victoria and, after the Gold Rush, “Marvellous Melbourne”.
. . .
It was a different society, and a different man, 40 years later in November 1880, when Redmond Barry, as a judge of the Supreme Court of Victoria, condemned Ned Kelly to hang; and thereby condemned himself to anathema by Kelly’s defenders for years to come.
Is this reputation – of a hanging judge who executed a national hero – justified? Not at all. Whatever romantic rubbish is promulgated about the Kelly “Uprising”, it was nothing of the sort. Ned and his brother Dan went on the run and formed their gang after a Constable Fitzpatrick was shot when trying to arrest Dan for horse-stealing – the family trade. Redmond Barry, now a judge, and a conservative one, sentenced Ned’s mother to three years gaol as an accomplice, and two male associates to six.
The Kelly gang – whilst they came from an oppressed Irish sub-culture in goldfields Victoria – was a criminal gang. At Stringybark Creek, on November 26, 1879, they ambushed a party of police sent in search of them, and in two separate incidents on that day, Ned Kelly shot three policemen dead: Lonigan, Scanlon, and Kennedy. The troopers were as Irish as the poorer settlers.
Any society with the rule of law would convict Kelly of murder, even though there had been an exchange of shots with Scanlon and Kennedy. And the penalty at the time in British law was death, with no alternative. How Redmond Barry can be blamed for Ned Kelly’s execution is beyond comprehension. But this trial, which became the last in Barry’s career, has coloured his reputation and he is perceived as a “hanging judge”.
Redmond Barry was not the monster that his detractors portray him as and, in my opinion, Kelly was not the hero his supporters portray him as.
Given that the Tasmanian Aboriginal people Redmond Barry was defending in 1840 had an ambivalent philosophical/theological position in the eyes of the broader “settler” community, Barry’s recognition of the essential humanity of the people he was legally defending is actually advanced for the times.
He deserves a better legacy than “the judge who hanged Ned Kelly”.
The author would like to acknowledge Ian Macfarlane, who first made him aware of the trial of the Aboriginal people at Port Phillip, and Cassandra Pybus, for her very good account in Truganini (Sydney, 2020).
James Parker is a Tasmanian historian (but with deep connections to Sydney), who writes and talks on mainly colonial subjects – especially convicts, women and the Tasmanian Aboriginal people.
