0:00

Forgotten Australia is written and produced by

0:02

me, Michael Adams, in the Blue Mountains

0:04

of New South Wales on land traditionally

0:06

owned by the Darug and Gunungurra people.

0:09

I pay my respect to Aboriginal elders past

0:11

and present. This podcast

0:13

episode has frequent references

0:15

to sex, homophobia, persecution,

0:17

mental illness and suicide.

0:20

It also includes descriptions of

0:22

murder, corporal and capital punishment

0:24

and post-mortem dissection. Details

0:26

given are not gratuitous, but listener

0:29

discretion is strongly advised. It's

0:36

Saturday 16 March 1872 and Melbourne's draped in

0:38

green, booming with blarney and cheersing

0:43

with beers to celebrate tomorrow's blessed

0:45

St Patrick's Day. The

0:48

main attraction is the monster procession

0:50

of the United Irish Benefits Societies,

0:52

which, with its gorgeous banners and

0:54

military bands, winds all through the

0:56

city's main streets before coming to

0:59

the friendly society's grounds, where a

1:01

festival of sports and entertainments is

1:03

being held. There are

1:05

other smaller processions too, and other

1:07

sporting exhibitions, including the contest for

1:09

championship of the colonies at the

1:12

Melbourne Cricket Ground. Stage

1:14

entertainments also abound, chief among them

1:16

a special Irish entertainment program put

1:19

on by Mr George Coppen at

1:21

his Theatre Royal. This

1:23

comprises the stage production of Faint Heart

1:26

Never Won a Fair Lady, followed by

1:28

Irish music, songs, dances and jigs, a

1:30

trapeze act and tales of Old Ireland

1:33

as told by an old Irishman. But

1:36

young Irishman Ned Feeney won't be doing

1:38

any celebrating this St Patrick's Day. In

1:42

the centre of Melbourne, this son

1:44

of Dublin, who until recently served

1:46

as a soldier in the world-famous

1:48

Royal Irish Regiment, isn't telling tall

1:50

tales, drinking a jug, dancing a

1:53

jig, singing a song or running

1:55

a race. Instead of

1:57

any of that, he's caged inside Melbourne

1:59

jail. It's

2:01

been 11 days now since Ned Feeney

2:03

allegedly shot and killed his close friend

2:06

Charlie Marks in the Treasury Gardens. The

2:09

case is a sensation because it's

2:11

widely believed, with good reason, that

2:13

the crime was a mutual murder

2:15

pact gone wrong. The tragic

2:17

final act in a scandalous love affair

2:20

between two men. Yet

2:22

neither felonious murder nor homosexual

2:24

activity have been proved. Ned

2:27

Feeney isn't saying a word as he

2:29

awaits his trial. Yet

2:31

while he sits silently in his cell,

2:34

out of sight behind the high blue stone

2:36

walls of Melbourne jail, Ned

2:38

is also a popular St Patrick's

2:41

Day tourist attraction, as is his

2:43

mortally wounded alleged lover and victim.

2:46

Today's copy of the Argus

2:48

newspaper, which contains ads for

2:50

Irish themed entertainments and processions,

2:53

also contains this notice. Ned

2:56

Patrick's Day, The Waxworks, 101 Bourke

2:59

Street East, The Treasury Gardens Tragedy,

3:02

Marks and Feeney, just added, as found

3:04

in the above gardens. No

3:06

extra charge. Open from 9am till

3:08

10pm. Admission

3:10

one shilling, children

3:12

half price. I'm

3:17

Michael Adams and you're listening to Forgotten

3:20

Australia. This is The

3:22

Gallows of Gay Hate, the final

3:24

instalment in the miniseries, Murder in

3:26

the Treasury Gardens. Ned

3:31

Feeney would be represented at trial

3:33

by up and coming legal eagle,

3:35

Mr Hickman Molesworth. As

3:37

his Australian dictionary of biography entry

3:40

tells us, he quote, "...built

3:42

up a reputation defending criminal cases,

3:44

and his personal popularity with juries

3:46

was such that some brought in

3:49

verdicts for Mr Molesworth." Mr

3:53

Hickman Molesworth and John Buckley

3:55

Castillo, Governor of Melbourne Jail,

3:57

were on friendly terms. On

4:00

the 15th of March, Mr Castillo

4:02

wrote in his diary of walking

4:04

the Melbourne streets with this rising

4:06

young barrister, quote, We talked

4:08

principally concerning the remarkable case of

4:10

a man named Feeney, who

4:13

is to be defended by Molesworth. It

4:15

is one of the most extraordinary cases on

4:17

record. Mr Castillo

4:20

described the case again briefly, saying,

4:22

Their intimacy was very strongly expected to

4:24

go to the extent of a criminal

4:27

nature. He said the two

4:29

men had determined to die in sensational

4:31

fashion, and described the photograph

4:33

they'd made as effectively being a

4:35

rehearsal pose for the Treasury Gardens.

4:39

Mr Castillo said that why they did

4:41

it wasn't known, nor was

4:43

it known exactly what had happened, beyond

4:45

the fact of Charlie Marks being shot

4:47

and dying. Quote, Whether

4:49

Feeney fired his pistol too quickly for

4:51

his friend, or whether the other lost

4:53

nerve and could not fire, no eye

4:55

saw, and none but Feeney knows. He

4:58

was of course arrested and is to be tried

5:00

for murder. Both he and

5:02

Marks have previously attempted suicide. Mr

5:06

Castillo's conclusion in this entry remains

5:08

as true now as it was

5:10

then. Quote, Here

5:12

is material for a sensational novel.

5:15

Who dare use it? The

5:18

murder trial of Ned Feeney opened

5:20

in the criminal sessions in the

5:22

Old Supreme Courthouse on the 17th

5:24

of April, his honor Mr Justice

5:26

Edward Williams presiding. Judge

5:29

Williams had been on the Supreme Court since July

5:31

1852. Like

5:34

his fellow justices, he would punish

5:36

men convicted of homosexual acts with

5:38

heavy sentences. In

5:40

a July 1855 sodomy case,

5:43

he recorded the sentence of death against

5:45

a man named John Fielder. Recording

5:48

death meant the judge wanted to inflict

5:51

the heaviest punishment, while acknowledging that the

5:53

executive would commute the sentence to life

5:55

in prison. As

5:57

the Argus reported at the time, quote, His

6:00

honour would submit the case for the

6:02

consideration of the executive, but the prisoner

6:04

could never entertain any hopes of regaining

6:06

his liberty. Life

6:08

in jail for John Felder, because

6:11

he'd been convicted of committing sodomy,

6:14

based on the evidence of informers. Ned

6:17

Feeney couldn't hope for much as

6:19

a man facing a murder charge

6:21

with homosexual love believed to be

6:23

his motivation. His

6:26

defender, bright young Mr Molesworth, entered

6:28

Ned's not guilty plea. The

6:31

Crown's prosecutor, future Premier, Mr

6:33

Brian O'Loughlin, argued that the men

6:35

had not gone out together

6:37

to commit suicide. They'd

6:39

gone out to commit what he

6:41

called cross murder. Mr

6:44

O'Loughlin said that any claim the

6:46

defence might make that Charlie had

6:48

shot himself would be ridiculous. One

6:51

only had to look at the photograph to

6:53

see the size of the horse pistols the

6:55

men had used. Charlie could

6:57

not have fired the shot that killed him. Mr

7:01

O'Loughlin hinted at homosexuality when he

7:03

told the jury that Ned Feeney

7:06

had had a motive for murdering

7:08

Charlie Marx. It

7:10

was this. Ned had been

7:12

under Charlie's spell. The

7:14

let's shoot each other with pistols idea?

7:16

This had been his escape plan. For

7:20

it to succeed, Ned had to ensure

7:22

that Charlie didn't fire first. Ned,

7:25

Mr O'Loughlin said, had played along with the

7:27

idea that they were both going to die.

7:30

Until the moment he'd blown Charlie out of

7:32

this world. The

7:35

witnesses, Constable John Balfour, wine

7:37

merchant Mr Abraham Clay, photographer

7:39

Mr Davies and his assistant

7:41

James Stewart, Dr Barker and

7:43

others, repeated their evidence from

7:45

the inquest. A new

7:48

development was the revelation that Ned's mysterious

7:50

letter writing woman known only as A

7:53

was in fact Annie McKenzie, a

7:55

former nurse at Melbourne Hospital. Melbourne

7:58

Hospital's Dr William Bradford had testified

8:00

to confirm this, and also said he'd

8:02

known Ned and Charlie for 11 months.

8:06

Dr Bradford explained to the jury

8:08

that Ned had tried to commit

8:10

suicide with chloroform and that it

8:12

had been very difficult to save

8:14

his life. He also

8:16

said that nurse Annie McKenzie had left

8:19

the hospital shortly after Charlie had been

8:21

killed. Annie was

8:23

now suggested as a motive, and

8:25

her letter to Ned was cited as proof of

8:27

this. What happened

8:30

next would have further convinced Mr Castillo

8:32

that this was the stuff of a

8:34

ripping novel. See, Annie

8:36

had, since leaving the hospital, gone

8:38

to ground. She'd tried

8:40

to evade police, even when

8:42

her letter was in the newspapers and tended

8:44

in evidence at the inquest. But

8:47

Annie had now been found, by

8:49

the police, during the afternoon of the

8:51

trial's first day, and she was

8:53

brought in just minutes before the Crown case

8:55

concluded. In the

8:57

oppressively hot court, Annie confirmed the letter

9:00

was in her handwriting, and that it

9:02

had been addressed to Ned. Then

9:05

she swooned and fainted, and had to

9:07

be carried from the court, where she

9:09

speedily came back to her senses. This

9:13

was described as having happened after

9:15

she'd concluded her evidence. But

9:17

if Annie had said anything else,

9:19

it wasn't reported as confirming any

9:21

intimate relationship with Ned Feeney. So,

9:25

mystery still hung over the why of

9:27

the case. The

9:29

Argus reported, quote, On this

9:31

evidence, the case for the Crown was

9:33

shaped thus, that, for some reason, which

9:35

could not be explained, Marx had a

9:38

holdover Feeney, and that Feeney was for

9:40

some reason desirous of getting Marx out

9:42

of the way. There

9:44

was also probably some jealousy between them about

9:46

the girl Annie. Whatever may have

9:49

been the motive, there was little doubt that it

9:51

was by Feeney's hands that Marx came to his

9:53

death. The Crown

9:55

closed its evidence. Its

9:58

argument was that the law was clear. earlier.

10:00

When parties went out to cross murder

10:03

and only one was killed, the

10:05

survivor was guilty of murder. Mr

10:08

Molesworth was in an almost

10:10

impossible position as Ned Feeney's

10:12

defender. He wanted to

10:14

argue that Ned had been insane at the

10:17

time of the killing. If found

10:19

not guilty by reason of insanity,

10:21

Ned would go to the Yarabend

10:24

Asylum. This was a

10:26

horrific fate, but maybe better than

10:28

hanging. Yet an insanity

10:30

defence would rely on Ned answering

10:32

questions about his mental state, his

10:35

inability to know right from

10:37

wrong, his lack of premeditation,

10:40

ideation, recollection, something, anything. He

10:43

might have done so in an unsworn statement,

10:45

or he could have spoken with doctors who

10:47

could then be called to give evidence. But

10:50

Ned Feeney wouldn't say a word. That

10:54

meant evidence of his mental disturbance would

10:56

be limited to what Mr Clay and

10:58

others had observed. Despite

11:00

Ned refusing to defend himself, Mr Molesworth

11:03

did what he could. He

11:05

said Ned had no motive for killing

11:07

Charlie. It certainly hadn't been for money.

11:09

As one of the letters

11:11

showed, he'd turned down a slice of

11:13

the substantial inheritance Charlie said he was

11:16

going to receive. Mr

11:18

Molesworth argued that Annie had not been a

11:20

motive. Based on what

11:22

the letter said, Mr Molesworth interpreted, quote,

11:24

there had been no jealousy between the

11:26

two at all events on the part

11:28

of Feeney for the girl both seemed

11:30

to have had a regard for him

11:32

and had shown a decided preference for

11:35

him. Mr Molesworth was not

11:37

going to even hint at homosexuality.

11:40

While Mr Molesworth couldn't present direct evidence

11:42

of insanity, he could at least argue

11:44

a case for it. He

11:46

told the jury, quote, quality

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12:32

Australia is proudly sponsored by ancestry.com.au.

12:37

As you know, I use Ancestry all the

12:39

time to tell Australian stories. Now,

12:41

Ancestry wants to help you share

12:43

your family's stories of sacrifice and

12:45

service. So have you

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discovered a military ancestor who should be

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12:52

a forgotten story of heroism? As

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we draw closer to the 25th of April, 2024, Anzac

12:56

Day, Ancestry is on the lookout for new

13:01

case studies that'll help us better

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commemorate everyone who served. So

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do you have a unique story and

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or amazing discovery made through Ancestry that

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could be brought to life? If

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you'd like to share your family's military story

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with Ancestry, they'd love to hear from you

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via this email address. Ancestry

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at webershandwick.com.au. That's

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Ancestry at webershandwick, all one

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word, webershandwick.com

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dot

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au.

13:36

That email address is also in your show notes.

13:39

Please note that if your story is

13:41

featured, you'll need to feel comfortable being

13:43

involved with media interviews. If

13:47

these men had been sane, would they

13:49

have selected such a public spot in

13:51

which to commit suicide and would Feeney

13:53

have remained lying on the ground after

13:55

his friend was shot, calmly

13:57

smoking a cigar, waiting for people to come to him?

14:00

to come up, who he must know if

14:02

he was sane would be attracted to the

14:04

spot by the report of the pistol. Look

14:07

at the manner in which they conducted their

14:09

operations. They did not go

14:11

at an early hour in the morning

14:13

when nobody would be likely to be

14:15

about or to any secluded place, but

14:17

in broad daylight, and at

14:19

an hour when there was certain to be

14:22

considerable traffic through the gardens. Ned,

14:25

he told the jury, would not speak

14:27

about what happened, and only Ned knew

14:29

why. But

14:31

all the evidence produced went to

14:33

show that they were utterly bereft

14:35

of reason, and they were not

14:37

therefore criminally liable. Just look

14:40

at Ned now, Mr. Molesworth urged the

14:42

jury. There he

14:44

stands in the dock, the most unmoved

14:46

person in this court. Was

14:48

that a sane man? To

14:50

convict, the jury would have to have

14:53

no doubts. Perhaps

14:55

Dr. Barker was wrong, and Charlie had

14:57

shot himself. After all, there

14:59

were no eyewitnesses. If

15:02

Charlie had shot himself, there was also

15:04

no direct evidence it had been Ned's

15:06

plan or that Ned had encouraged Charlie.

15:09

The evidence all indicated Charlie had been

15:12

in control that day. Mr.

15:15

Molesworth said the jury had to find

15:17

Ned Feeney not guilty of murder on

15:19

the grounds of insanity. They had to

15:21

spare him from the gallows so he

15:23

could spend the rest of his life

15:25

where he belonged, in a madhouse. His

15:28

honor, Mr. Justice Williams summed up.

15:31

He told the members of the jury they

15:34

were not to consider insanity as a defense.

15:37

No such issue had been duly raised

15:39

in evidence, it had only been raised

15:41

in argument. His honor

15:43

said if the defense had supplied evidence

15:45

or witnesses of insanity then the crown

15:48

could have counted or rebutted and left

15:50

the jury to decide who was right.

15:53

His honor also explained to the jury

15:55

the principle of rejecting the notion that

15:57

because the crime seemed insane that the

15:59

the person committing it must have been

16:02

insane. As for

16:04

motive, the judge told the jury

16:06

he favoured the Crown's theory, that

16:08

Ned had taken the opportunity to

16:10

shoot Charlie to escape his coercive

16:12

control. And

16:14

the judge said even if Charlie

16:16

had shot himself, which he did

16:18

not believe thanks to Dr Barker's

16:20

evidence, and Ned had encouraged, incited

16:22

or assisted, then he could also

16:25

be convicted of willful murder. The

16:27

primary question for the jury to consider was,

16:30

had Ned Feeney fired the pistol that

16:32

killed Charlie Marks? If

16:35

their answer was yes, whatever the

16:37

motive, then he was guilty. If

16:39

the answer was no, and they believed Charlie

16:41

had shot himself, then Ned might still be

16:44

guilty. Yet, his honour

16:46

could have viewed his own version of the

16:48

evidence very differently. If Charlie's

16:50

control over Ned had allowed him to

16:53

order the deadly pistol duel, and

16:55

Ned at the last minute had come to

16:57

his senses and shot first so as not

16:59

to be shot, then this could have

17:01

been argued to be self-defence. More

17:04

crucially, the Crown's theory, and the judge's

17:06

agreement with it, that Ned had planned

17:08

the whole thing to be rid of

17:10

Charlie, didn't make any sense at all.

17:13

Mr Clay had testified that Charlie was

17:15

firmly in control. If

17:17

Ned had plotted murder, why do

17:19

it in the Treasury Gardens, in daylight,

17:21

where there was virtually no chance

17:24

of him evading arrest, charge, trial and

17:26

the gallows? It seemed

17:28

clear that Ned Feeney had expected to

17:30

die. Wasn't that a

17:32

strong suggestion of insanity? Ned

17:35

had recently attempted suicide. If

17:38

he'd succeeded then with a chloroform,

17:40

the coroner would have heard from

17:42

witnesses about his drinking and his

17:44

depression, and almost certainly would have

17:46

sympathetically recorded that Ned had destroyed

17:49

himself while not of sound mind.

17:52

Was what had happened in the Treasury

17:54

Gardens really so different, in terms of

17:56

his mental state? His

17:58

honour could have very re- reasonably allowed

18:00

the jury to consider alternative verdicts

18:02

of insanity and manslaughter based on

18:05

the evidence the jury had heard.

18:08

But he didn't. The 12

18:10

good men weren't to consider insanity

18:12

or self-defense. They also

18:15

weren't supposed to concern themselves with

18:17

questions of motivation. But

18:19

could they really not consider what everyone

18:21

in Melbourne had been talking about for

18:23

weeks? That Ned

18:25

Feeney had been in a criminal homosexual

18:27

relationship that had culminated in a mutual

18:30

murder pact? Remember,

18:32

homosexual men were despised.

18:35

They were hated. Witnesses informed

18:37

on them. Police entrapped

18:39

them. Juries convicted them. Judges tried

18:41

to hang them. Public galleries jeered

18:43

them. And the press commentators called

18:45

them monsters. How firmly

18:48

were the minds of the 12 good men

18:50

of the jury set against Ned Feeney? How

18:53

did they conceive that those very

18:55

attitudes, society's hatred and its persecution,

18:58

might have contributed very significantly to the

19:00

despair that had led him to such

19:03

a desperate act in the Treasury Gardens?

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or sleepnumber.com. The

19:51

jury took 15 minutes to return its

19:53

verdict. Guilty. This

19:57

was the moment in capital cases when the newly appointed judge was the

19:59

one to decide. convicted man's face would be

20:01

described in reports as turning pale

20:03

as his shoulders slumped and fear

20:06

sent twitches through his nerves. But

20:09

Ned Feeney didn't react at all. Asked

20:12

if he had anything to say

20:14

before his honor passed sentence, Ned

20:16

didn't claim innocence or even give

20:18

a choked no. Ned

20:21

didn't say a word. Mr

20:24

Justice Williams though now spoke his

20:26

mind and he felt very comfortable

20:29

dropping the pretence of impartiality and

20:31

civility. His honor began by

20:33

saying he wouldn't say much because he

20:35

doubted Ned would take any notice. Ned

20:38

had been found guilty of murder he said. What

20:41

had happened or what had been planned

20:44

was immaterial except quote, I

20:46

do think that if the statement you made

20:48

is true, that both of you went out

20:50

to die together, it was a cowardly act

20:52

on your part when you found that the

20:55

deceased's life was gone. You did

20:57

not take the pistol and blow your brains out.

21:00

Probably this is the severest thing I could

21:02

say to you, but it was a cowardly

21:04

thing of you not to perform your part

21:06

that you had agreed to do. You

21:08

took his life when he could not return the fire.

21:12

This was a startling opinion from the

21:14

bench. His honor

21:16

had just an hour ago expounded to

21:19

the jury that one of the reasons

21:21

they might find Ned guilty of murder

21:23

was that he had incited or encouraged

21:25

Charlie to suicide. His honor

21:27

had just done something very similar

21:29

saying that Ned had erred by

21:31

not shooting himself. That

21:33

Ned had erred by not committing

21:35

a crime. And this

21:38

comment, he took his life when he

21:40

could not return the fire did not make

21:42

sense at all. They had fired

21:44

simultaneously or at least that had been

21:46

the plan. It wasn't a

21:49

matter of Ned shooting Charlie after he

21:51

was incapable of firing back. His

21:54

honor could not say from the bench that

21:56

Ned was homosexual. The charge had not been

21:58

brought in court despite Dr. Barker's

22:00

evidence, supposedly confirming that Charlie

22:02

had been gay. But

22:05

his honor did hint at it, quote, "'What

22:08

your motives were for going there

22:10

are inscrutable. They are known only

22:12

to you and to him. But

22:14

they must have been powerful motives.' His

22:17

honor said he would comment no further, which

22:19

was comment in itself in the

22:21

suggestion it wasn't the sort of

22:23

thing people talked about, unless absolutely

22:25

necessary." Officer Justice

22:28

Williams then sentenced Ned Feeney to

22:30

hang, and he told him he

22:32

would not recommend mercy to the executive. His

22:35

honor's cruel, extrajudicial outburst was

22:38

roundly criticized. The Argus

22:40

said, quote, "'Suicide is recognized

22:42

by the English law as a punishable crime,

22:44

and for a judge to publicly call a

22:47

man a coward because he did not

22:49

break the law is an indefensible piece of

22:51

folly. But when you remember

22:53

that this judge was at that instant

22:55

addressing a murderer for the purpose of

22:57

sentencing him to death, the folly becomes

22:59

a public scandal which cannot fail to

23:02

bring discredit upon the judicial office.'" Other

23:05

newspapers joined in criticizing the judge.

23:08

And Melbourne jail's Mr Castillo also remarked

23:10

in his diary that while the thought

23:12

that Ned should have shot himself had

23:15

also occurred to him, it had been

23:17

very foolish for the judge to say

23:19

so in court. The

23:21

day after the verdict and sentencing, Mr

23:23

Molesworth made an application to state a

23:25

case before the full court to consider

23:28

a point of law. This

23:30

was that the judge had erred by

23:32

not allowing the jury to consider insanity.

23:35

The problem was, Mr Molesworth had

23:37

to plead this to Justice Williams.

23:41

Unsurprisingly, his honor declined to put the

23:43

matter before the full court. Any

23:46

evidence about Ned's state of mind should

23:48

now be brought before the executive. among

24:00

the cabinet members when they were deciding

24:02

whether Ned should live or die. The

24:05

executive would be able to read transcripts of the

24:07

evidence and the letters. A

24:09

police constable was tasked with summarising Ned's

24:12

life into a memo for this file.

24:14

So, in a few dry paragraphs,

24:16

members of the executive would learn

24:18

Ned had been raised in Dublin,

24:20

fought in New Zealand and had

24:23

sunk into suicidal depression while working

24:25

at Melbourne Hospital. The

24:27

capital case file also contained memos

24:29

about the question of insanity. On

24:32

the 25th of April, Dr William

24:34

McCrae had written to the chief secretary

24:37

to say that, before the trial, the

24:39

Attorney General had appointed him, Dr Paley

24:41

and Dr Harcourt to inquire into

24:43

Ned Feney's mental condition. Remember,

24:46

Dr McCrae had also been on the

24:48

scene within minutes of the shooting at

24:50

the Treasury Gardens. His memo read,

24:53

quote, From the 19th of March

24:55

to the 13th of April, during which

24:57

period the prisoner in question was under

24:59

my observation, he exhibited no sign of

25:02

insanity, nor has he before or since

25:04

his trial shown any symptoms of the

25:06

disease. The other

25:08

two doctors agreed with this assessment. This

25:11

trio of medical men had been available

25:13

during the trial, ready to

25:15

rebut any defence witness called to claim

25:17

that Ned was insane. The

25:20

report they'd been prepared to tender

25:22

in court read simply, quote, We,

25:24

the undersigned, having repeatedly and carefully

25:27

examined the person named in the

25:29

margin, awaiting trial in Her Majesty's

25:31

jail of Melbourne, are of the

25:33

opinion that they are perfectly sane

25:35

and have not, during the period

25:37

they were under our observation, exhibited

25:39

any sign of insanity. Of

25:42

course, it would have been difficult to

25:44

tell with Ned Feney not speaking, which

25:47

in itself could have been seen as

25:49

evidence of insanity. By

25:52

the 20th of April, Ned supporters were circulating

25:54

a petition that was to be presented to

25:57

the governor. It said Ned

25:59

was insane. This petition

26:01

was also included in the capital

26:03

case file. Quote, Your

26:06

petitioners also submit that the conclusion

26:08

seems irresistible that he was subject

26:10

to the will of the deceased,

26:12

Charles Marx, and the fact of

26:14

his laboring under this delusion made

26:17

him incapable of understanding the wickedness

26:19

of the act in question, and

26:21

therefore, under these circumstances, the prisoner

26:23

should be exempt from responsibility. The

26:27

petition criticized Justice Williams' instruction to

26:29

the jury that they could not

26:31

consider insanity. About

26:34

80 people had signed the blue petition

26:36

pages, and at the top

26:38

of the list was wine merchant Mr

26:41

Abraham Clay. Justice

26:43

Williams' handwritten recommendation was in the file

26:45

too. He said that at

26:48

the trial there was no evidence presented of

26:50

insanity, and based on what

26:52

Dr Barker had testified, no reasonable chance

26:54

that Charlie Marx had shot himself. Judge

26:57

Williams also unapologetically admitted he'd told

27:00

Ned he should have shot himself.

27:02

He faced no censure for this. His

27:05

honor went on to say that witness evidence showed

27:07

Ned had been quote, under the

27:10

dominion and control of Marx, whatever

27:12

Marx desired him to do, he

27:14

did, however reluctantly. This

27:16

would seem to indicate that Ned had

27:18

limited culpability. But for his

27:20

honor, it did not absolve him of guilt. Nor

27:23

was it enough mitigation for him to

27:26

recommend mercy. In his

27:28

memo, Judge Williams described Ned and

27:30

Charlie going to enact their plan

27:32

in the Fitzroy Gardens. For

27:35

a man who'd been a Melbourne Supreme

27:37

Court Justice for 20 years, and who'd

27:39

sat in judgment on this case, and

27:42

who'd reviewed the evidence to make this

27:44

recommendation, it was, at least to my

27:46

mind, appalling that he was capable of

27:49

making such a basic mistake, not

27:51

least in a written document that

27:53

was literally life and death. And

27:57

in repeating what seemed the most far-fetched

27:59

theory His honor also saw

28:01

fit to add his own embellishments.

28:03

Quote, The strong impression in

28:05

my own mind is he intended to

28:07

take the life of his companion before

28:09

any shot could take effect upon himself.

28:12

That he had some reason to fear Marx,

28:14

and it may be that Marx had some

28:16

reason to fear the prisoner. Therefore, they agreed

28:19

to die together, to bury the secret with

28:21

them. But that the prisoner

28:23

had no intention himself of carrying out

28:25

that purpose, and, as I before said,

28:28

took advantage of his comrade in the

28:30

way described. To bury

28:32

the secret with them suggested

28:35

homosexuality. Meanwhile, his

28:37

honor's assertion that both men had feared

28:39

one another was not supported by the

28:41

evidence at all. But

28:44

this was what the executive was to read

28:46

and to hear from Judge Williams in person.

28:50

That the men, both fearing the

28:52

other would reveal their terrible secret,

28:54

had agreed to mutual murder, which

28:56

Ned had then cunningly used to

28:58

get free of his controlling friend.

29:01

To me, that is the least likely scenario.

29:05

My opinion is that Ned Fanny

29:07

was depressed for all sorts of

29:09

reasons, persecution likely contributing to his

29:11

melancholy. He wanted to kill

29:14

himself. Charlie, in love with

29:16

Ned and knowing he couldn't stop him,

29:18

decided to join him in death. But

29:21

it had gone wrong. When

29:23

Ned had fired, shooting Charlie, he

29:25

had not shot himself with the

29:28

remaining pistol. Maybe

29:30

it was a failure of nerve. Maybe

29:32

he didn't act because he was in shock. Maybe

29:35

he would have done it had he more

29:37

time, but people were on the scene within

29:39

seconds. In any

29:41

case, Ned survived to face the world's

29:43

wrath. And from his

29:45

silence, it's fair to assume he knew from

29:48

the first to expect the worst. Ned

29:51

knew that mounting any defence would

29:53

open him up to questions whose

29:55

answers would only add shame to

29:57

his death sentence. While

30:00

the executive took its time making up

30:02

its mind, newspaper writers wanted to know

30:05

how the condemned man was holding up

30:07

and whether he had made any confessions.

30:10

Mr. Castillo recorded in his diary on the

30:12

21st of April, quote, A

30:16

couple of reporters interviewed me with regard

30:18

to the goings-on of Feeney under sentence

30:20

of death. I had, however,

30:22

nothing to tell them beyond the facts of

30:24

his being much as the same as he

30:26

was before he received the sentence. They

30:28

can, however, make a paragraph of that,

30:31

and I suppose that is all they

30:33

require, though of course one with a

30:35

little sensation in it would please better

30:37

than one without anything in it to

30:39

make the gentle public raw. While

30:42

reporters did want sensation to make

30:44

their readers raw, they did

30:46

make articles from these little chats with Mr.

30:48

Castillo. On the 27th of

30:50

April, the Herald reported that Ned, still

30:53

in irons, maintained a reserved and taciturn

30:55

manner and, quote, so far has made

30:57

no sign in the way of a

31:00

confession. The papers

31:02

related that he'd been visited by

31:04

clergy, doctors and by Annie McKenzie,

31:06

but he hadn't spoken to any

31:08

of them about the shooting or

31:11

anything else substantial, including

31:13

his likely imminent execution.

31:17

On the 3rd of May, 1872,

31:19

the executive finally met to consider

31:21

his case, with Mr. Justice Williams

31:23

there to guide them through everything. They

31:26

decided the law was to take its

31:29

course. Ned Feeney would hang

31:31

from the neck until he was dead on

31:33

Tuesday week, the 14th of May, 1872. It

31:39

felt in Mr. Castillo to deliver the bad

31:41

news to Ned. He then told

31:43

his reporter friends how the condemned man

31:45

had taken it. The

31:47

Ballarat star characterised it as being, quote,

31:50

with the same marked indifference to his

31:52

fate that he'd demonstrated during

31:54

the inquest and the trial. While

31:56

the age commented, the announcement was

31:58

received by him with the utmost

32:00

unconcern. He has

32:02

since been very quiet and

32:04

uncommunicative." When

32:07

Mr. Castillo had delivered the bad news to

32:09

Ned, he had offered to grant any reasonable

32:11

request such as the use of pens

32:13

and paper. Ned had

32:15

simply said, no thanks, he didn't

32:17

need anything. But Ned's

32:19

demeanor changed after the arrival of a

32:22

letter. It was from his

32:24

mother in Ireland. The timing

32:26

was coincidental. When she had sat down

32:28

to write, she had to no way

32:30

of knowing what was happening with him.

32:32

Ned's case had not then made the

32:35

Dublin newspapers. Melbourne's papers containing

32:37

articles about the Treasury Gardens tragedy

32:39

would take three months or so

32:41

to cross the seas. And it'd

32:43

be mid-May before reports of the

32:45

tragedy started to be published in

32:47

Ireland. Ned reading his

32:49

mother's letter had to be devastating. She

32:52

writing in ignorance. He

32:55

reading knowing he'd be in his

32:57

unmarked murderer's grave by the time she

32:59

read the news about the shooting. Ned

33:02

realized his mother would find out what had been

33:05

said about him. Now he

33:07

requested pen and paper and wrote to

33:09

her. He insisted this

33:11

correspondence remain private, and it did.

33:15

In his last days, Ned refused exercise

33:17

and remained in his cell. He

33:20

had visits from Annie Mackenzie and from a

33:22

former comrade in the Royal Irish. At

33:25

nine o'clock on Monday, execution

33:28

eve, Ned was visited by Mr.

33:30

Castillo. The doomed man

33:32

was quite calm and ready to meet his

33:34

fate. But he had something to

33:36

say. And this was almost

33:38

certainly what he'd also said to his mother

33:41

in that letter. Mr.

33:43

Castillo wrote in his diary, quote, He

33:46

wished, he said, to make a statement.

33:48

And that was to deny the allegation

33:50

that he had been told had been

33:52

published of his having been improperly intimate

33:54

with the murdered man Marx. This

33:57

he solemnly declared to be untrue and

34:00

as a dying man declared there was not

34:02

the slightest grounds for the rumor. Feeney

34:04

wished me to make this statement of his public

34:06

and I agreed to do so. Did

34:09

not go out this evening but was interviewed by

34:11

a reporter of the Argus, to whom I told

34:13

my tale. He of course was

34:15

delighted to get it as it was

34:18

something approaching the sensational. It

34:21

seems to me that Ned Feeney broke

34:23

his silence so his mother might also

34:25

read this in the newspapers that reached

34:27

Dublin and believe that

34:29

her son was not guilty of

34:31

the crime of homosexuality. While

34:34

Mr Castillo's diary entry confirms the

34:36

basics of what Ned said to

34:38

him, Ned had also said more

34:40

which Mr Castillo passed on to

34:42

the newspapers. The Argus reported

34:45

Ned had quote spoke disparagingly of Marx

34:47

and said the latter had professed to

34:49

be very fond of him and was

34:51

very troublesome in consequence. He requested that

34:54

this statement should be made public and

34:56

Mr Castillo promised that it should. Mr

34:59

Castillo, the Argus reported, had said

35:01

that from his experience with condemned

35:04

criminals, especially Catholics, immediately before execution

35:06

and from the solemn manner in

35:08

which Ned spoke, he believed he

35:11

was telling the truth. But

35:14

the Argus was skeptical, quote, this

35:16

statement, it may be observed, even if

35:18

true, does not affect the question of

35:21

the murder, except insofar as it tends

35:23

to remove one motive which has been

35:25

assigned for the crime. On

35:27

Tuesday the 14th of May, not

35:29

long before 10 o'clock in the morning,

35:32

Ned had his iron struck off and

35:34

was readied for hanging by the colony's

35:36

executioner. This was the

35:38

habitual criminal and drunkard William Bamford, who'd

35:40

been in the job 15 years. William

35:44

Bamford was a colorful character, not

35:47

least for his habit of shaking

35:49

his victims' hands before enthusiastically sending

35:51

them off with a happy catchphrase

35:53

that was a variation on that

35:56

makes number 42 best job in the

35:58

country. You can read a lot

36:00

more about him in my book Hanging Ned

36:02

Kelly. Suffice to

36:04

say, William Bamford, like almost all

36:06

executioners, was a bungling brute in

36:09

an age when the so-called science

36:11

of hanging hadn't been developed and

36:13

clean kills weren't much of a

36:15

priority for anyone in power. Ned

36:19

Feeney was taken to the condemned cell

36:21

beside the gallows on the first level

36:24

of Melbourne jail. Reporters

36:26

were down below, watching. When

36:29

the time came, they said he was

36:31

firm and steady and calm. The

36:34

weekly times, quote, The

36:36

culprit displayed as much indifference as a

36:38

man possibly could who knew that in

36:40

another five minutes he would be dangling

36:42

a corpse at the end of a

36:44

few yards of rope. He

36:47

submitted to be bound with as much

36:49

complacence as an ordinary mortal would bear

36:51

the application of the tailor's tape to

36:53

measure him soft a new suit of

36:55

clothes. He mustered the

36:57

responses to the priest's ghostly constellations,

36:59

walked to the middle of the

37:01

drop with a firm step and

37:03

stood there, seemingly as a matter

37:05

of course. This

37:08

was the part of the ghastly process

37:10

where men might say last words or

37:13

where they might display their courage or

37:15

their cowardice. Ned Feeney

37:17

said and showed nothing. William

37:20

Bamford shook his hand, lowered the

37:22

cap over his face, stepped back

37:24

off the platform and pulled the

37:26

bolt. Ned dropped.

37:30

The Herald's reporter was appalled, saying,

37:33

quote, The unfortunate man struggled

37:35

for fully three minutes after the

37:37

fatal rope had extended its length

37:39

so clumsily had the mechanical part

37:41

of the operation been performed by

37:43

the Clement Hangman. Other

37:45

papers also described a botched hanging

37:47

due to William Bamford not having

37:49

adjusted the rope properly, with

37:51

Ned Feeney jerking around for several

37:54

minutes before he was finally still.

37:57

Such horrible spectacles though were common

37:59

enough they only merited real

38:01

outrage when the hangman got it really

38:03

wrong and there was a lot of

38:06

suffering. Ned Feeney jerking

38:08

around on the end of his rope for

38:10

a few minutes wasn't that newsworthy. But

38:13

newspapers did want to discuss Ned's

38:15

last minute comment on what was

38:17

dubbed the filthy accusation of homosexuality

38:19

and the remaining mystery of what

38:21

had really happened in the gardens

38:23

and why. The

38:25

Herald reported, During the last

38:27

few days of his life he has

38:29

been most anxious to leave the impression

38:31

that he is entirely innocent of the

38:33

charges made against him in connection with

38:36

his unfortunate victim and he wished this

38:38

to be understood, although he made no

38:40

actual denial of details in direct terms.

38:42

He never once alluded to the terrible

38:45

tragedy in the Treasury Gardens and he

38:47

remained doggedly reticent to the last. The

38:50

age, quote, The medical evidence

38:52

given at the trial certainly led

38:55

to many surmises of an improper

38:57

intimacy having existed between the two

38:59

men, but to the last moment

39:01

and with his dying breath, Feeney

39:03

denied any grounds existed for such

39:05

a suspicion. Maybe

39:08

it had only been a platonic

39:10

relationship. But

39:12

the age now claimed that in

39:14

his final hours Ned had disparaged

39:16

Charlie, saying, Feeney further

39:18

stated that Marx had continually boasted

39:21

of an intimacy with Park and

39:23

Bolton of London notoriety. Everyone

39:26

knew what this meant. Frederick

39:28

William Park and Thomas Ernest Bolton

39:30

were English homosexual men who wore

39:33

women's clothes in public and for

39:35

photographs. Caught cross-dressing

39:37

in public in 1870, they

39:39

were arrested, subjected to intrusive

39:41

physical examination for evidence, charged

39:43

with conspiring to commit sodomy

39:45

and held in jail for

39:47

two months pending trial. The

39:50

case had been a sensation in the

39:52

Australian press. At the time Ned settled

39:54

into Melbourne after finishing military service in

39:56

New Zealand. Although the two men

39:59

had been acquitted of to be known

40:01

as a park or Bolton, meant to

40:03

be known as an active homosexual. Of

40:06

course, Ned's late-breaking denunciation of Charlie

40:08

begged the question. If he'd been

40:11

so appalled by the man, why

40:13

had they remained so close for

40:15

so long, right up until

40:17

Charlie's death? Why had

40:19

he kept letters in which Charlie professed

40:22

his undying love? Why

40:24

had he stood with them holding hands

40:26

in a photograph made just before they

40:28

went to the Treasury Gardens to shoot

40:30

each other? I think

40:32

this denial and disparagement was for Ned's

40:34

mother's benefit. While

40:37

the newspapers had reported the details

40:39

of Ned's calm before the botched

40:41

hanging, Mr Castillo had a different

40:43

perspective on those terrible moments because

40:45

he'd been up there on the

40:47

platform doing his duty. His

40:49

diary entry from the 14th of May

40:52

records a bad start to a bad

40:54

day. Got

40:56

up this morning feeling very unrefreshed, having

40:59

taken more gin and water last night

41:01

than was good for my complaint. Put

41:03

on my black clothes and went into the

41:06

jail to see things were in readiness for

41:08

the execution of Edward Feeney. At

41:10

10 o'clock, the usual business was

41:12

transacted. Except

41:14

it hadn't quite been business as usual,

41:16

he went on. The sheriff

41:18

and I went to the cell and Feeney came out.

41:21

Old Banford was ready to pinion him and

41:23

did so a little more clumsily than usual.

41:26

In putting the cap on Feeney's head, he had

41:28

a little difficulty getting it over the hair. At

41:31

such a time, a second seems like

41:33

a minute and a minute almost an

41:35

hour. Feeney prayed to

41:37

the last. He was evidently in

41:39

a great state of fear and

41:41

shook a great deal. This I

41:43

could see, being close to him.

41:46

The bystanders some little distance off thought

41:48

he showed little signs of concern. Banford

41:52

did the pulling tight the rope a little

41:54

too hard and when the bolt was drawn,

41:56

the body scarcely fell fairly, the rump catching

41:58

the side of the scaffold, And thus

42:00

breaking the full. Mister.

42:03

Castillo, who'd seen his share of

42:05

executions close up, said. Feeney.

42:07

Seem to struggle much longer

42:10

than men who were hanged

42:12

usually do. Doctor Barca however,

42:14

style the horrible spasmodic movements

42:16

as simply reflex and of

42:18

no consequence. Doctor. Barca could

42:20

not, however, answer my question

42:22

as to was, some when

42:24

executed would troubles with reflex

42:26

movements and others were. Doctor.

42:29

Barca relished a good hanging not just

42:32

for the chance to try out new

42:34

not placements but because as a man

42:36

of science it gave him that prize

42:39

At the age a still warm dead

42:41

body. As. He heard back

42:43

in part One needs childhood home. The

42:45

confectionery shop in Temple Bar, Dublin had

42:48

once been the center of a hoax

42:50

about a kid being snatched said the

42:52

decision table. Now. Need

42:54

Seine was dead on that table.

42:58

As Mr. Cast year right

43:00

with evident disgust quote. Medical.

43:03

Students under the direction of Doctor

43:05

Back Up reveled in the luxury

43:07

of a fresh and healthy corpse.

43:09

Doctor. Back seat and even rarer

43:12

opportunity as Mr. Cast your wrote

43:14

quite. They. Had been some

43:16

strange stories told, the connections that existed

43:19

between Seine and the murdered man. Parker.

43:21

Exposed Phoenix Rectum and both he and

43:24

Doctor you'll said it's told of a

43:26

vicious indulgence. I. Was asked my

43:28

opinion or rather to coincide and

43:30

days. But. I declined as

43:33

I had no experience of what

43:35

a healthy rectum would represent. Mister.

43:38

Test he owes. Droll commentary suggest

43:40

he took a very dim view

43:42

of Doctor Barca and his obsessions.

43:46

Needs. A nice post mortem indignities

43:48

didn't end there. He.

43:50

Also received the attentions of head

43:53

Reading headdress us Joseph Doubleday to

43:55

use Plaster of Paris to make

43:57

his death mask. But.

43:59

this so styled phrenologist did more

44:01

than that. To make the cast

44:03

he had to cut off the hair and beard. Why

44:07

let those go to waste when

44:09

Max Kreutmeyer, owner of the Waxworks,

44:11

would pay handsomely for such one-of-a-kind

44:13

souvenirs? Six

44:16

days later, the age predictably

44:18

reported, The

44:20

cast of Feeney's head, exhibited in the

44:22

window of the Waxworks exhibition, has attracted

44:25

a large number of gazes. It

44:27

is stated that the proprietor had obtained

44:29

the actual hair and beard of Feeney

44:31

to place on his wax model. The

44:36

majority of Melburnians believed that Ned Feeney

44:38

was guilty of murder and that justice

44:40

had been done. Yet not

44:43

everyone was carping. The

44:45

evoker male was among the critics. This

44:49

case, of an exceptional nature, it

44:51

said, had been preceded with by

44:53

the executive rather undue

44:55

haste. The

44:57

paper made excellent legal points, quote,

45:00

It has ever been an admitted

45:02

theory, even from the earliest days

45:04

of lawmaking, that the punishment of

45:06

a crime should depend upon the

45:08

moral responsibility of the person committing

45:10

it. In other words,

45:12

that the will to commit one is the

45:15

test point, the act itself only proving the

45:17

consent of the will. In

45:19

accordance with this theory, it has

45:21

been the practice to extend a

45:23

clemency to those unfortunates who, through

45:26

mental derangement, cannot be held responsible

45:28

for misdeeds, and it is

45:30

the opinion of many the unfortunate man

45:32

alluded to should have been included in

45:35

this class. The evoker male

45:37

went on. Every feature

45:39

of the tragedy points to the

45:41

conclusion that both men were insane,

45:43

at least on the one subject

45:45

of mutual destruction. The strange behavior

45:47

of Feeney at the time, and

45:50

his apparent indifference to his fate,

45:52

are also confirmations of the supposition.

45:55

We Are aware that it is now too

45:57

late to do any good in this particular

45:59

incident. Than that we feel constrained

46:01

to express an opinion that further

46:03

time suit have been allowed in

46:05

which to prove whether the man

46:07

was really signed. We.

46:12

Can't speak with the dead and we caught

46:14

know the truth. We can see

46:16

what Net and Charlie looked like on the

46:18

date that led to the days. With.

46:20

The photos among the most striking

46:22

and haunting in Australian history. We've.

46:25

Got those pictures but we don't have

46:27

the full picture. We.

46:29

Don't know Charlie's background or much about

46:31

him other than he seemed like a

46:34

nice, quiet and dutiful fellows until he

46:36

became what we might thing of as

46:38

manic. We. Do know a

46:40

little more about needs background and we

46:42

can perhaps understand some of the trauma

46:45

that had contributed to his depression. We.

46:48

Don't know for sure that they were

46:50

physically intimate, but the strongest evidence suggests

46:52

that they were. We. Don't

46:55

know the actual extensive fear of

46:57

persecution and hatred contributed to this

46:59

states of mind. Know can we

47:01

say with certainty how much the

47:03

same homophobic hatreds swayed the judge

47:06

and jury. But.

47:08

It's useful I think, to try to

47:10

view everything we've heard through a slightly

47:12

different lens. What? Is need

47:14

Seine and Charlotte Marks had posed

47:16

for photos with pistols, written goodbye,

47:18

lose and then gone to the

47:21

gardens to shoot each other. What?

47:23

Is every other aspect remained the

47:25

same. including. Love Letters and

47:28

which needs of sections seem to

47:30

wax and wane while Charlotte's remained

47:32

passionate and demanding. What?

47:34

If witnesses testified, Charlotte had controlled

47:37

needs and that he'd been drinking

47:39

heavily and was suicidally depressed after

47:41

a previous recent attempt at his

47:43

own laws. What? Is, despite

47:46

all this romantic melodrama, need refused

47:48

to speak on the record, so

47:51

was never exactly clear if need

47:53

and Charlotte's had been physically intimate

47:55

or it just been close friends.

47:58

Or. Sad been another woman involved.

48:01

What? then? I

48:04

don't think it's unreasonable to say

48:06

that Justice Williams would have offered

48:08

the jury the choice between manslaughter,

48:10

insanity, and murder. Or. That

48:12

need would have been regarded much

48:15

more sympathetically by heterosexual identifying twelve

48:17

man juri, even if they also

48:19

privately thought he'd been a romantic

48:22

full enslaved by an unstable woman.

48:24

Not. Wanting to hang a misguided

48:26

tragic romantic he clearly also intended

48:29

to die, they may have spared

48:31

him the murder conviction or at

48:33

least recommended mercy. This

48:35

recommendation might also have been made

48:38

by his honor. And the

48:40

executive lot of commuted the sentenced to

48:42

life. Remember. As.

48:44

Be heard in part one: this was

48:46

a Melbourne in which recently it's a

48:49

man who'd callously caved in his brother's

48:51

skull with a hammer, had served on

48:53

a two thirds of a four year

48:55

sentence or manslaughter, Delaney.

48:58

And seats had been the work of a

49:00

sympathetic judge. Sir. Redmond Barry.

49:03

Could. Also sentenced a man to eight years

49:05

or so to me and said he wished

49:07

he could inflict one hundred and fifty lashes.

49:10

Of. The judges had tried to hang

49:13

at least one homosexual man, and

49:15

I'd sentenced others to life imprisonment

49:17

to decades of hard labor on

49:19

the roads in chains, and some

49:21

had been flogged to within inches

49:23

of their lives. Need.

49:26

Seine might have been convicted in a court

49:28

of law. That. He was hand

49:30

on the gallows of gay height. Or

49:38

Michael Adams and you've been listening to

49:40

Forgotten Australia. I'll be

49:42

back with new episodes very soon. As.

49:45

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