Despite Fitzpatrick's doctor reporting a strong smell of alcohol on the constable and his inability to confirm the wrist wound was caused by a bullet,  Fitzpatrick's evidence was accepted by the police, the judge, and the jury made up of several ex-police, a shanty keeper who did business with the police,  and according to J. Kenneally, "others who were prejudiced against the Kellys".
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The three were convicted on Fitzpatrick's evidence. Fitzpatrick's evidence would later be corroborated by Williamson when he was interviewed in prison by Captain Frederick Standish.
Barry stated that if Kelly were present he would "give him 15 years". Ellen Kelly's sentence was considered unfair even by people who had no cause to be Kelly sympathizers. Alfred Wyatt, a police magistrate headquartered in Benalla, told the commission later that "I thought the sentence upon that old woman, Mrs Kelly, a very severe one. After the sentences were handed down in Benalla Police Court, both Ned and Dan Kelly doubted that they could convince the police of their story.
The police had received information that the Kelly gang were in the Wombat Ranges, at the head of the King River. On 25 October , two police parties were secretly dispatched—one from Greta, consisting of five men, with Sergeant Steele in command,  and one from Mansfield with four men, with the intention of executing a pincer movement. All were in civilian dress. Early the next day, Kennedy and Scanlon went down to the creek to explore, leaving McIntyre to attend to camp duty.
At about noon Lonigan heard a strange noise down by the creek and McIntyre went to investigate, hoping that it could be some kangaroos that he could shoot for dinner. Instead, he shot and killed some parrots which he cooked for dinner. Unaware at the time, the sound of the shots alerted the bushrangers to their location.
At about 5pm, McIntyre was at the fire making tea, with Lonigan by him, when they were suddenly surprised by the Kelly gang with the cry, "Bail up, hold up your arms". McIntyre testified that Kelly took his fowling piece , and that all the gang members were armed. Having left his revolver at the tent door, McInytre held up his hands as directed.
Lonigan went for cover behind a tree and, at the same time, put his hand on his revolver.
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Kelly shot him in the temple. He died a few seconds later. Kelly remarked, "What a pity; what made the fool run? They took Lonigan and McIntyre's revolvers, and helped themselves to articles from the tent. Kelly talked to McIntyre and expressed his wonder that the police should have been so foolhardy as to look for him in the ranges. It was evident that he knew the exact state of the camp, the number of police and the description of the horses. He asked where the other two were, and told McIntyre he would kill him if he lied.
McIntyre revealed their whereabouts and pleaded for their lives:. I told [Kelly] that they were both countrymen and co-religionists of his own. I thought he might be possessed of some of that patriotic-religious feeling which is such a bond of sympathy amongst the Irish people. My opinion is that he possessed none of this feeling. On the question of religion I believe he was apathetic, and like a great many young bushmen he prided himself more on his Australian birth than he did upon his extraction from any particular race.
A favourite expression of his was: 'I will let them see what one native [native-born Australian] can do. McIntyre asked whether he was to be shot.
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Kelly replied, "No, why should I want to shoot you? Could I not have done it half an hour ago if I had wanted? If you had been, I would have roasted you in the fire". It is a shame to see fine big strapping fellows like you in a lazy loafing billet like policemen". McIntyre asked what they would do if he induced his comrades to surrender.
Kelly stated, "I'll shoot no man if he holds up his hands", and that he would detain them all night, as he wanted a sleep, and let them go next morning without their guns or horses. McIntyre said that he would induce them to surrender if Kelly kept his word, and added that one of the two had many children. Kelly said, "You can depend on us". Kelly stated that Fitzpatrick was the cause of all this; that his mother and the rest had been unjustly "lagged" at Beechworth.
He told McIntyre to leave the police force. McIntyre agreed, saying that he had thought about it for some time due to bad health. Ned asked McIntyre why their search party was carrying so much ammunition. McIntyre replied that it was to shoot kangaroos. At about pm Kelly then heard the approach of Kennedy and Scanlan, and the four gang members concealed themselves, some behind logs, and one in the tent.
They forced McIntyre to sit on a log, and Kelly threatened, "Mind, I have a rifle for you if you give any alarm". Kennedy and Scanlan rode into the camp. McIntyre went forward and said, "Sergeant, I think you had better dismount and surrender, as you are surrounded". Kelly at the same time called out, "Put up your hands". Kennedy appeared to think it was Lonigan who called out, and that a jest was intended, for he smiled and put his hand on his revolver case.
He was instantly fired at,  but not hit. Kennedy then realised the hopelessness of his position, jumped off his horse, and begged for his life, "It's all right, stop it, stop it". Scanlan jumped down and tried to make for a tree, but before he could unsling his rifle, he was shot and killed. This account has been disputed by the great grandson of Sergeant Kennedy, who claims the story has been altered down the years in order to embellish the Kelly myth.
He claims Kennedy was wounded twice in a hopeless fight, captured, and then murdered two hours later. McIntyre, believing that the gang intended to shoot the whole party,  fled on Kennedy's horse. Several shots were fired at McIntyre as he dashed down the creek but none reached him, the rifles apparently being empty by that stage and only the revolvers available.
Ned later wrote that he never intended to kill McIntyre "as I did not like to shoot him after he had surrendered". Suffering from a severe fall during his escape and with his clothes in tatters, McIntyre concealed himself in a wombat hole until dark, taking note of the direction of the setting sun.
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At dark, he set about to strike the Benalla road by trekking west, guided by a star. After crossing a number of streams, his feet became chafed, and had to walk with one of his boots off. After a rest, and using a match to illuminate a small compass, he travelled about 20 miles until he reached a farmhouse outside Mansfield, on Sunday afternoon. He then travelled by buggy to Mansfield and then directly to the residence of Sub-Inspector Pewtress. They had only two rifles.
They reached the camp with the assistance of a guide, Mr. Monk, at 2 am. There they found the bodies of Scanlan and Lonigan, as well as the tent burnt and possessions looted or destroyed.
The post-mortem, by Dr Reynolds, showed that Lonigan had received seven wounds, one through the eyeball. Scanlan's body had four shot-marks with the fatal wound caused by a rifle ball which went clean through the lungs. Additional shots had been fired into the dead bodies so that all of the gang might be equally implicated. No trace had yet been discovered of Kennedy, and the same day as Scanlan and Lonigan's funeral, another failed search party was launched. His body was found a few days later by Henry G.
Sparrow, several hundred metres north-west from the campsite, near Germans Creek. The deadline for their voluntary surrender was set at 12 November An employee named Fitzgerald, who was eating dinner at the time, looked at Ned toying nonchalantly with a revolver, and said, "Well, of course, if the gentlemen want any refreshment they must have it".
No interference was offered to the women. McCauley, returned and was promptly held up. Near sunset, hawker James Gloster arrived at the station to camp for the night. Earlier, he brushed off warnings that the place was held up by the Kelly gang, and when accosted by Ned, responded angrily and attempted to get a revolver from his wagon. Ned threatened to shoot him, saying it would be easy to do so if the hawker "did not keep a civil tongue in his head".
Gloster asked the bushranger who he was. The Kellys stole new suits and a revolver from Gloster's stock as they wanted to look presentable at the bank. They offered the hawker money for them to which he refused. After sunset the hostages were allowed some fresh air.creatoranswers.com/modules/booking/1136.php
The Story Of Ned Kelly, Australia’s Armored Outlaw
McCauley was surrounded by the bushrangers and Kelly said, "You are armed, we have found a lot of ammunition in the house". The following afternoon, leaving Byrne in charge of the hostages, the other three axed the telegraph poles and cut the wires to sever the town's police link to Benalla.
Three or four railway men endeavoured to interfere, but they too were taken hostage. The bushrangers then went to the bank with a small cheque drawn by McCauley.
The bank having closed before their arrival, Ned forced the clerk to open it and cash the cheque. Scott himself invited the outlaws to drink whisky with him, which they did. The whole party went to Younghusband's where the rest of the hostages were. The evening seems to have passed quite pleasantly. McCauley remarked to Kelly that the police might come along, which would mean a fight.
Kelly replied, "I wish they would, for there is plenty of cover here". Just before they left, Kelly noticed that a Mr. McDougall was wearing a watch, and asked for it. McDougall replied that it was a gift from his dead mother.