What price honour?

Sometimes, beyond the legal precedents and the leading cases, there is evidence of the human drama that provides a glimpse of a way of life now long departed.

Such was the situation in the Crown versus McKelvey, a 1914 case before the Full Court (Cooper C.J., Lukin and Shand J.J.). The then Attorney-General, John O’Sullivan, and Kingsbury, KC, a barrister who appeared for the Crown in most appellate matters throughout the decade, successfully argued that corroborative evidence under section 218, subsection 2 of the Criminal Code need not be corroborative with respect to every essential element of the offence.

The facts of the case were that McKelvey, a bookmaker, had gone to Warwick for a race meeting and been introduced to Miss Mabel Gerish on the Saturday night. He had taken her for a stroll in the gardens and told her that she was the nicest girl he had ever met and of his love for her and that he wished to see her again on the Sunday. They met; McKelvey declared his love for her yet again and asked her to marry him. They then made secret arrangements to travel to Toowoomba on the Tuesday to be married by Father Denis Fouhy at 2.30pm, McKelvey impressing on Mabel the importance of not telling her parents until the deed was done.

McKelvey left to go to Toowoomba. On Tuesday, Mabel arrived in Toowoomba to be married. Sadly, Fr Fouhy, according to McKelvey’s story, had been consulted and could not marry them that afternoon, but he could perform the ceremony the following morning at 10.30. Mabel protested that McKelvey had placed her in an awkward position. McKelvey said that he had taken a suite at a hotel, then produced rings from his pocket and argued that since they were to be married at 10.30am the next day, there was no problem with them staying together. It was at this time that he was alleged to have had unlawful carnal knowledge of Mabel, having obtained her consent by false pretences – clearly in contravention of section 218, subsection 2 of the Criminal Code. Of course, tomorrow came and went, and so did two more ‘tomorrows’ until Mabel, fed up with McKelvey’s procrastinations and excuses after following him to Brisbane, decamped from his New Farm home and reported him to Acting Sergeant McCarthy.

At his trial McKelvey admitted all the facts, and declared his love for the girl which amounted to, according to the learned judge, ’… statements, which the jury thought, in view of his actions, utterly unworthy of credit’.

An appeal on a point of law went the way of the Crown and McKelvey was returned to the District Court to receive such judgment and sentence as the learned judge deemed proper.

Clearly, it was very much the case, as stated by the Attorney-General and Kingsbury, KC, that ‘section 218 of the Criminal Code was enacted for the protection of females, and in its interpretation that object must be kept prominently in view’.