Quirky Cases

The Tale of Biased Beak

By The Hon John McKechnie QC

Charles Barnett Story served with distinction with the AIF in France in World War 1, rising to the rank of Colonel.

In October 1922 he was appointed Government Secretary Northern Territory service. As Government secretary, Story was responsible for every public officer in the NT.

Three years later, his services were dispensed with and he ran unsuccessfully for Parliament as a member of the NT Representatives League. When he died in 1941, still in service as Commandant of Bonegilla army base, he was accorded a funeral with full military honours.

Arthur Quelch claimed to have been educated at Sandhurst and that his father was a King’s Counsel. He served in the Boer War including the siege of Ladysmith; in World War 1; and in the Punjab as an officer in the dragoons.

He travelled through Russia with HG Wells and explored Africa with the adventurer Kaid Sir Harry McLean.

Oh, and he was a British spy as well.

If any of this was true, it would have been quite a comedown in 1924 for Mr Quelch to find himself working as a wharfie and winchman in Darwin.

In 1935 Quelch contracted Hansen’s disease and saw out his days in the Channel Islands leprosarium, declining offers to move back to society. He is buried there.

The paths of these two men from completely different backgrounds were destined to cross once in an altercation that reached the High Court.

It happened this way.

Col Story lived in accommodation provided in a house called Aspendale, colloquially known as the Mud Hut or, as Mr Mallam, defending, described it, Dud Hut.

At all events, one Sunday in May about 8 am, Col Story set off to walk to church. Opposite the police inspector’s house Mr Quelch accosted Col Story, seizing his left arm and shouting “Are you going to fight me?” Shortly afterwards, it was on.

Surprisingly for Mr Quelch, Col Story won hands down. Mr Quelch was arrested looking somewhat worse for the experience.

Mr Quelch gave a different version in court on his trial for assault but the Special Magistrate, Mr Playford, did not accept his evidence and he was convicted of assault.

On behalf of Mr Quelch, Mr Mallam quickly appealed to the Supreme Court whose only judge was Mallam’s old sparring partner now Justice Roberts.

There were several grounds of appeal that were unsuccessful but one ground proved a winner.

Mr Playford was not only a special magistrate but also Director of Lands and Mines. In that latter capacity, his superior officer to whom he was accountable was…. Col Story.

Justice Roberts was satisfied that Mr Playford was not, in fact, biased.

However, continued the judge, there was a real likelihood that the magistrate would have a leaning towards Col Story because of the connection and perhaps, unconsciously, have a tendency to believe him in a case where everything might turn on credibility.

Because of the real likelihood of bias, the Judge determined that the conviction was without jurisdiction and substituted a verdict of acquittal.

So Mr Quelch was acquitted on what some lay persons might regard as a technicality. Certainly Col Story thought so because he engaged eminent King’s Counsel Sir Edward Mitchell to apply for leave to appeal before the High Court. It did not go well. After Sir Edward had been arguing for some time, the acting Chief Justice (Justice Isaacs) said: “we have a very strong opinion about it Sir Edward. We do not of course wish to curtail your argument in any way.” Sir Edward ran up the white flag. “Quite right and kind that you should give me an indication. I have no chance.” The argument was probably over much earlier when Justice Stark remarked that in his opinion Justice Roberts was right in every particular in his law. It was many years before the High Court introduced time limits and lights. Maybe they didn’t ever need them. Adapted from Story v Quelch [1924] NTJ 46