"TATT'S" TICKET

Evening Post, Volume CXX, Issue 1, 1 July 1935, Page 10

"TATT'S" TICKET

DUNEDIN APPEAL

QUESTION OF SALE

FULL COURT CASE

Consideration is being given by the Full Court today to an appeal by Vivian Simeon Jacobs, a tobacconist, of Dunedin, against a conviction enterjd against him by Mr. H. W. Bundle, 3.M., on a charge of selling to Constable E. J. ,Cuminings a ticket in Cattersall's sweep, a lottery or scheme established in Hobart, Tasmania, by vhich money prizes were drawn by a node of chance. It is contended by the appellant ;hat Mr. Bundle's determination of the :ase is erroneous in point of law and m point of fact, in that he held: (1) rhat a Tattersall's consultation was a lottery or scheme by which prizes of money were drawn for by mode of :hance;- (2) that the appellant was an agent for Tattersall's consultations; (3) that a sale of a ticket by the appellant in such a consultation had been proved. The appeal is being heard by the Chief Justice (Sir Michael Myers), Mr. Justice Herdman, Mr. Justice Blair, Mr. Justice Smith, and Mr. Justice Kennedy. Mr. J. S. Sinclair, with him Mr. Warrington, appears for the appellant, and the Solicitor-General (Mr. H. H. Cornish, K.C.) for the respondent. QUESTIONS AT ISSUE. In, opening, Mr. Sinclair said that the appeal was part heard in Dunedin. The appeal was by way of rehearing—not simply an appeal on point of law —and it had been referred to this: Court. The material questions at issue were: (1) Whether it was lawful or otherwise for a person who was desirous of sending to Tasmania for a ticket in Tattersall's, to send the money himself; (2) in the alternative, if the person did not send himself, was it lawful for him to send through a third party who was his agent. "Assuming the person who sends on behalf of an individual who is desirous'of obtaining a ticket is not the agent, of Tattersall's, but is in law and fact .the agent of the person desirous of.'getting a ticket, is that unlawful?" asked Mr. Sinclair. The Chief Justice: I suppose there is no admission by the Solicitor-Gen-eral that the appellant was the agent of the person sending? 'Mr. Cornish: No, sir. His Honour: You say that he is an agent for Tattersall's, do you? ' Mr.-Cornish: That is one submiS' sion, your Honour. ... This Court will be only concerned with inferences, there will be no fact in dispute. •Mr. Sinclair said that the Crown Prosecutor in Dunedin pressed for a conviction-under several sections of the Gaming Act, but1 it was submitted that the appellant could'not be convicted under any of these sections. SENDING OF MONEY. It was submitted by Mr. Sinclair that the Magistrate was wrong in holding that the appellant had sol* a ticket in a lottery to the constable, and that .he was an agent for a lottery. All the appellant had done VTas to remit the constable's money to Tasmania with a request that a ticket be sent to the constable. The ticket was sent to the constable, and accordingly there was no difference in that position to one in which the constable sent the ticket himself with the same request. Mr. Justice Herdman: He gets commission? .- . .Counsel: He gets a small commission which I will explain later. Mr. Justice Blair: You remit money to, Tattersall's? Counsel: Really no, not directly. There are different names circulating round. They are well known in every community. You can send to A or B or C, and he on receiving the money in Tasmania will pass it on to Tattersall's. The Post Office will not transmit letters to Tattersall's. Counsel said that when the Post • Office became aware of the names it refused to forward letters to the addresses. ~ ~ , The Chief Justice: The population of Tasmania has not yet been exhausted? : Mr. Sinclair: I understand not, your Honour; the lotteries are still continuMr. Justice Blair: Take a man like Jacobs; he might have a friend in Hobart and he might simply, send to his .friend. ■ Mr. Sinclair: He said that when he started he had no association with Tattersall's; that he simply got a private individual ■ ' The Chief Justice: It would not matter, as far as your argument is concerned, whether the person in Tasmania to whom the money is sent is the agent of Jacobs or the agent of Tattersall's. Mr. Sinclair: No, your honour, it does not matter in .the slightest in my argument so long, I submit, as Jacobs is not held in fact or legal presumption to be agent for Tattersall's. Mr. Sinclair said his submission was that, if it was quite legal for a private individual for himself to send to Tasmania to some person there to get him a ticket in Tattersall's, it was quite lawful for his agent to do the same thing for him on his behalf. Mr. Justice Herdman: There is no provision that prevents a person here from purchasing' a ticket1 himself by sending money to Tasmania? Mr. Sinclair: So long as he does not purchase it in New Zealand, there is no provision, I submit. If he bought it in New Zealand then there would be. "My submission at this stage," continued Mr. Sinclair, "is that the appellant is only concerned with the law up till the time he sends the money, because l}e is finished then. The ticket is sent direct to his customer. . . .Assuming that a person sends to Tasmania himself with the help of a third party, until he receives a ticket in New Zealand he is not a member of a lotteryMy submission is that even when he receives a ticket ho docs not commit an'offence according to the law? of New Zealand because he purchased his ticket in Tasmania." Mr. Justice Herdman: You mean the sale takes place in Tasmania? Counsel: Yes, your Honour, the sale takes place in Tasmania. DISCUSSED IN "PUNCH." ■Mr. Justice Blair: I think Mr. A. P. Herbert has discussed this point? Mr. Sinclair: I can give your Honours very high authority on the subject. Mr. Justice Blair: Mr. Herbert has been discussing this topic in "Punch" for some time. Mr. Sinclair: I have not noticed that, your Honour, Counsel contended that the remititng of money to Tasmania did not amount to purchasing a ticket until it was received, because the ticket might never be received. The money might be lost in transit and it was quite possible, but, not probable, that Tattersall's -might refuse to send the ticket or might neglect to do so. The Chief Justice: You say there is no contract in New Zealand? -Counsel: That is so, your Honour. The New Zealand Legislature, said Mr. Sinclair, could not, make it. an offence in New Zealand to sell or purchase a ticket in Tasmania, so that once the applicant for the ticket had successfully got his money out of New Zealand and got it into Tasmania, he

thereafter committed no offence in the eyes of the New Zealand Legislature unless he purchased that ticket in New Zealand. Mr. Sinclair said he was going to submit further that the prize money was not even received in New Zealand. It was received in Tasmania: it was payable in Tasmania. Counsel said he proposed to go to the length of saying that even if prize money was actually later received in New Zealand, that would not amount to taking part In the lottery, because that money was payable, according to the conditions, in Tasmania. The Chief Justice: If it is lawful for a person to send money himself, it cannot be unlawful for an agent to send it for him so long as the agent is not selling the ticket? Mr. Cornish: I think that is right, your Honour, so long as it is not complicated by other interests in the agent. QUESTION OV AGENCY. Mr. Sinclair said that in all the issues that would be discussed before the Court the outstanding question in each case was going to be one of agency. "I do submit, your Honour," said Mr. Sinclair, "that the main reason why the Legislature has failed in its attempt to prevent large sums of money annually leaving New Zealand for the purchase of tickets in these lotteries is because it has not prohibited the sending of money out of New Zealand for these tickets. That is, I submit, what the Legislature should have<done. The Post Office has not even reserved the right to confiscate letters containing money for lottery tickets." Mr. Cornish: The Crown is merciful. "All the Crown has done in its attempt to stop this practice," continued Mr. Sinclair, "is to make it somewhat difficult for people desirous of getting these tickets from Tasmania to do so. But in no way has it prohibited that or made it unlawful, and that, I submit, is the last chance the Legislature had to get at the person who sends his money for a ticket, because the sending of money for a ticket is an act done in New Zealand which would give our Legislature' jurisdiction over the offender. Having failed to do that, then that person,' even if he gets his ticket later, is immune from any penal responsibility under our laws." Legal argument is proceeding.