THE "REFEREE" CASE

Press, Volume XLVIII, Issue 7780, 6 February 1891, Page 2

THE "REFEREE" CASE

j THE OOfmcqaON QTJASHEp, m BANCO, CBefbro his Honor Mr Justice Deu_ Utsa In banco yesterday morning the «««.«* prohibition In co_nwtlon wS ttflSL_s was heard. "*«>««/«*«

BE SB—Q AND niRD, This case was an appeal from the tn* - ment of Mr Beetham, R.M., lv which h?< appellants were flood £50 each, or mi? faulc, to be imprisoned for three monkK for having advertised that fc?„jy*3 receive money for putting on the totS tor, whioh was held to be a breach af *iT Gaming and Lotteries Act. The cagC heard before Mr Beetham, who luIlS the fine as above stated on the twoXi;„ dants, who are proprietors of the SeMyi Mr Gresson, as solicitor for the deW dants in the Court below, had ohUm a rule nwi, calling upon DeteoUtou? sack, the nominal proscutor, to SSI cause wny prohibition should not teamf Mr Martin now appeared to __L. cause: Mr Greason contra, w After some discussion on a point of practice, £ His Honor suggested that it would Ka more convenient to treat the case*** ■ motion, and let Mr Gresson opay \$

Mr Gross on then opened the cas ß sWa said that the grounds upon which Wi* tended to argue the matter were assail* -H) That the information on wffifS said conviction Is based disclosed uZ offences; (2) that one of the o_to__ alleged In the Information was SS agarnst; Phlneaa.Selig and Arthu? iffl Bird jointly, and the other B_alu ß 6ArthS Edward Bird severally; (8) that thjjg dence adduced did not support tha in formation or disclose any o_bS against either or both parties; (4) tli&tthft conviction Is a separate conviction ajraHU? each, while the information alleges alZi offence; (5) that the conviction UjX ! penalty of an excessive amount; (8) $£ the conviction makes each of them tfi said Phlneas Selig aud Arthur WhS liable for the costs of the other of tta' Since the conviction had been drawnm 1 he had abandoned the argument t£ *>&. ■# *. , Ho . SSffiJ read the affidavits filed lv the cT» Affidavits read.] He would first dS the attention of the Court to the nfLi! slons in the Appeals from Justices of tb Peace Act on the suhjecfc of pfcfaftltC [Appeals from Justices of the Peact M part lIL cited.] He would poiafc out in t_J Court that the provision in section 856, m. ferrlng to prohibition, which aflardea to the accused persons the right of caUlce upon the Magistrate (if he made out _ prima facie case of error or mistake mm a judge) co support his conviction wUbqbi finding security. If this were not co thai a .Magistrate need only inflict apenait? sufficiently high to prevent a 'ml son, however unjustly convicted, from being able to And not only tb) costs, but the amount of the peaals? also. The learned counsel then cS Johnston's Justice of the Fittest Begina v Bowen, 1 N.Z. • Jurist, to support his contention that in cososof error or mistake the Court wouldjglveJa fullest interpretation to the words of the Statute, and also cited several cases fro® Victorian Law Report, to show that tea Victorian Act, which was similar to theirs, was so interpreted. The cases cited we» Regina v Panton, 7 Vie., L.R., 801 that prohibition would go if ft wew proved! that ou the evidence before iim they gave an erroneous decision), Eeglos y Hare, 13, Vict., L.Rj to show thai m. hlbltlon was the proper coarse to be taken, and also that the Cous would look at the evidence glrea In the Court below, to see whether tha Justices had drawn the proper leginference .from the facts laid balm them. In New South Wales also t%m were numerous decisions to th.tj same efik& [Case cited in support, Kegim v Collins, 9 N.S.W. Law Reports, % He, therefore, submitted that the course pursued in this case by moving for prohibition was the proper one, because unless this remedy was open a man might ba in the position of being able to floi security to the amount ofa largo peagjtj as well as coses. His Honor said at first sight, aud without giving any. judgment on tho nmiM s he did not think that Mr attention as to the necessity o.f fiedtoa security for the penalty iuflletcd, as wgtt as the costs, was a right one, Mr Gresson said it old .net matter M his argument vety nimrMcmm lieatab was penniless ne could not provide security for the costs, Hs would now &&u with the case as a whole, and hi wguld, submit that on the third -grand -„c evidence adduced did not tilt information or disclose any ofeaoaeg&felf either or both. He would pol~t Otttto h» Honor that there was not ft.ttttis of evidence with referense to Ssllg.in the case. All the evidence with refera&e} to him was that he was the proprietors! the Referee, and that the adVertises-rat had appeared in that papexy At regarded Bird there was the same evideaos plw the fact that he had weelf c* _*». money, and stated that he would m%\% on in accordance with tbe terms ol tha advertisement. Those terras wer« .Wi 10 per cent, would be charged for savtprl money on the totalisator and coUecaog dividends, and this waa stated ®$ Wag an offence under tha Gaming audMfpss Act, and the whole question was«a■ m, . His Honor-But the Magistoits IwM that they did not do what th_it dtato wished them to d<VKlvlag tho totsipw** as the security. What was that Mr Selig and Mr Bird mads tnafflrselves the totalisator, charging**)&««» for winnings The question wM if m client was told that ha b&dUmt entirely on the solvency kMiW Instead of having the tot_J~?6to?beaw bi Mr Gresson said that «Mr BdMjjj} the money the client would get aWW dividend than If it was putou theto» sator, as in that case there would-JW be two tickets on, whilst la Jhs '.ow* case 'there might be three. What gj were charged with was really notaayteg put the money on tbe totalisator, Whica ww an o-oncenot known to the law. BajgjOgU also submit that what tho two dattutfpta were charged with, and,convicted eMf»§ keeping an office open for tha nedffl* money on an undertaking to pay om certain money on a certain evenfc *a order to support tbe conviction It mo» 63 shown that they gave aa undertaking n Eay over money on ft certain ©Y en f«fA« tiey undertook was to eolket certtw money from Hobbs and Goodwin en * certain event. What took place ?•?**__; Marsack and Bird was that tho tottarwi simply to act as the agent of the tonm and that in case tho horse did ao6 sm » charge would be made. . v His Honor—That seems to bo eWW what is done by a person asking anrtw to put the money .on the totalisator J 35 Mr Greseon-Yes, It is, done aoajgf} and thousands of times, The large *J*g of horses hardly ever put the money» the totalisator themselves. 1 His Honor-It is not, I believe, «g sldered desirable that owners. seen putting money on themselves • ' Mr Gresson—lt is hardly eve;* **«**? the totalisator Is legalised by law, it W he would point out, in a betserpoiittw than the mere giving a man money to• nw a bet, though He was a very whether this could be held to be 1-figU; \*l would point out that these were taken under section 13 of cne,2«gg and Lotteries Act. and this was stoOM* the 16 and 17, Victoria, cbap. >9, •{» **g at home. TJnder that section b/|S of Cox v Andrews, 12, Q. 8., Andrews said that this wasau *«yg. suppress betting houses, and ho. «« Gresson) cited that case to show that *»» legUiationwas aimed at the MMWWg of houses where the proprietor too* ®* risk of betting, whereas here no r*s& we* fcß Hfe' Honor-What you contend, J& Gresson, is that Selig and Bird here no risk, and therefore do not come ***r fch M^ C G re Bson-They. might, haw-Jj* charged or convicted for betting »WR tor odds, but they were not. H»JJ| horse In this case won Maraack could sued Selig and Bird for-the moojr»f they not paid it over, and could &«** covered it. All the legislation has In the direction of the suppression J§ those who betted the odds. BW»"l Selig were merely the agents ot™*"3 to cSrry the money to the tot_isatw,«j therefore did not come under the A-jg all. As it was, tbey had beess <**"$ with receivinpt money to pafeon r '?®iAst sator, and convicted for not **\Wg£ so. He would refer bis Honor to the juO| ment of Mr Beetham, from which it ww be seen that the Magistrate that the defendants were proprietors of the totaUsator or the oovv C Hls Honor-But it seems to BM.tJ»jg} swindle was in taking money to *»Jffj, they did not do v « nd # P« tfclD 4SifS!fi their pockets. Therefore, as I have out, the client did not get w*!"* *_S£r gained for, aa he did not get $* ""**

•TTha other individuals who have paid lw_i> money Into the totalisator.. All the was to bet totalisator odds Eah their clients. . ■ 'Mr Gresson—Tes, that may be so; but JTxrere not called upon to answer that !E_Kre. There was no undertaking by SeHgand Bird to , pay totalisator dlvlm* Honor— Was that not an undertaking to bet totalisator odds? H_r Gresson—That might be so, but If if was le«al for Mar&ack to put money on Jta totalizator it was legal for him to give **v- some one to do so. His Honor—l cannot but think that the whole thing resolves itself into betting tnfcalisaior odds. Mr Gresson submitted that this was „„? what tbe defendants had been couSSL_ of. He'would now submit; that Jvi conviction was bad, because the !-£ace was stated as being a joint one, KSLt the penalty was stated and inSSed separately, where the •offence was nfus nature single. Then there coold w he one penalty (authority cued Rex. SaTk " Cowper. 610.) Take tbe case If the atlvertisemenD appearing in the P«___ instead of the Se/erw could it be tended that each of the shareholders .mild be fiued £50 ? I_U Honor—WeU it seems to mc so, imrf do not lay it down. Mr Gresson went on to submit that the -irain- of the office, which was whac the dele-cants were charged with, was a •tnele offence. nms Honor—Then your contention goes ♦/this exten fc, that if four men are charged With a crime, and one is convicted, the 2_«t cannot be convicted. MrGresson—lu some cases yes. There (.Trime I will cite tb your Honor, Regina ■7 Blessdale, 4, Term Reports, bu9, in Ikim, several persons were charged with ___ta- a lnrSier, and the Ju&e held Sfot ¥here could only be one conviction. 1 «»l Ateoeiw "-laley ou Convictions," GOO, V n rf submit that as tbe keeping of a te«herisaeingle offence, so is the keepSSflf a house. If ibis be noc so, then I that there is no evidence against Sn-ataU,and, therefore,he must uedis-h-Sttd. Then I submit also that if part •fS, conviction was abrogated, as ie 0 JiTbe by the discharge of Selig, it Sao longer be good aa againsc Bird, wmb a conviction is good as a whole or "ffi, to the penalty, it appears to have *£. funded on Section 04 of the -Sta-rft- Peace Act. But tbat S,n of the Act only applies where is no other way of recovery of _*__-ltv. In the Gaming and Lotteries ACthowever, in sec. 30, there is provision f_3e for enforcing penalties under tbe |T it is there provided that in case such fTm of money is not paid a distress Mutant is to issue, and then if there is no return imprisonment follows, lhis, however, Is noc what has been done, fender the conviction if a levy was made ao the goods of Selig and Bird aud __>19s lid realised cney would still be liable to three mouths' iuiprisoaraent for Id Now, under the Gaming and lotteries Act they would only be liable to mc month's imprisonment as tbe impnZauient is apportioned under the clause to the balance remaining due. Besides, t_e commitment is bad, because it prot_es for the payment of all costs, whereas met tbe Gaiuiug and Lotteries Act all -Uatcahbe levied is the reasonable costs Sdistress. I submit that as there exists Tmetbod of recovery of the penalties nnioeed under the Gamiu_ and Lotteries Act clause Hi ot he Justices of the Peace Act! under which the commitment is ta-wd, Is out of Court. There U only Sided that the reasonable costs of distress are to be charged, but they have iv tnta conviction added thereto the costs of the commitment and conveyance of the de/end-uts to prison, which, 1 submit, W HiS 3 Ho b uo d r-What is the effect, Mr Martin, uuder section 84, as to the recovery of part of the peuaity by distress? Supposing a man is fined -.10 or a month, distress brings £9, would the man go to gaol for a mouth lor £1? Mr i_artin-Yes, your Honor, I submit that Is the law. Mr Gresson-went on to submit that the Magistrate should put the amount o£ costs ot distress, aud that if he did not the conviction was bad. (Case cited, King V Sjiaous, LE.. Wtf.) __ n . . -Us Honor asked Mr Gresson whether theCpurthalnocpower to amend. Mr Gresson submitted that the Court might have power to amend matter of torn), but not matter of substance. Any suneudr-eut, he submitted, would be an alteration of the pemilty, which the Court had no power to do. His Honor—But if I struck out the 7 of —c It not.come r hack to section 30, which would act automatically as' a consequence of the penalty? ' ; Mr Gresson said it'might be so. He Jtubcuitted tbat no offence bad beeu disclosed, as all they had done for Marsack 'was what he could have done for him--jslf; and was not a breach of the law. r His Honor said tbac this was not what tli* Magistrate had found. The , mere taking of money to the totalisator and hlinKUig it back was not illegal. But this was not what had been done. The MagisSite fouud that the real thing done was c laying of totalisator odds. '■■ Mr Gresson submitted that there was not a tittle of eviueuce to support the Sliding oi the Magistrate that there had been auy undertaking to pay any money. 1 Mr Martin iv reply, submitted on the question of prohibition being the proper method of procedure; that prohibition t was Introduced by a Victorian Act, No. 867 Victoria, aud that it was not applicable to the present case. Though it >was so wide in its terms, ie was held that it was not. applicable to every case, and it was necessary iv the Amending ; act to insert a special clause. The law in Victoria, as to the cases In which prohibition was applicable, was in a very uncertain state, as was proved by the case Regina v Hare exparte Bush 13 Vie. L. tt. 7L He would aiso cite to his Honor RegoaV White exoarte Cowper 12 Vie. Law ©ports 183. He submitted that the remedies given by the Justices Appeals Act must be applied to the cases which they were intended to meet. Though the .rights were made, he submitted that as appeal and rehearing was provided for, • tine Court would limit the application of prohibition to errors of law committed by Magistrates assuming jurisdiction which-they did noc possess, .or from .Which they were ousted by the evidence. His Honor—But you do noc coutend, Mr Martin, that it is necessary to give security for the fine and costs? Mr Martin—No; I think that all the security is given for 1% that the appeal will ;be prosecuted without any undue delay. Coming to the the merits of the Case, the information was laid under sections 11, 12 and 13 of the Gaming and 'Lotteries Act. Now, what were the facts a* shown by the case. He would ask his Honor to read the advertisement as appealing in the Referee. [Read.] The evidence as set out in tbe Magistrates' affidavit— * Bis Honor—The evidence as regarded the transaction with Marsack, that was contended to be perfectly bona fide, because all that was undertaken was the payment Into the totalisator aud collecting tbe dividends. 1 Mr Martin—l submit that the advertise- . Bent and the undertaking with Marsack , **es perfectly consistent with totalisator betting. Another view of the case which &t; Magistrate might reasonably take ... **as that this advertisement was merely a wind to cover the real character of the i house, which w&c to receive bets. ; His Honor—You will not contend that if the advertising and tbe house was an agency, the undertaking with Marsack was ©oe to put money on the totalisator, and SP?* tuss undertaking was violated by Selig or Bird putting the money in their ' Sockets, they would be brought under the Act. ' _Mr Martin—No; but I think if the ' lugistr-te found that Seli« and Bird held ithe money they would be the real v wtalisator, and so would come under the /Acs; because if they put this advertisement iv and kept the house to bet totali- , sator odds they would be keeping a gaming house. T would refer your Honor to Sorter v O'Connor, 5 "N.Z. Law Reports, 59. His Honor—The Court, in dealing with these cases, must see whether the evidence Justified the conclusion arrived at by the Magistrate, which in this case seems to nave been thac the whole affair was a •windle. . Mr Martin—Yes. Mr Beetham held Very stroDgiT that the affair was a swindle. But your Honor is the judge of tue facts, and has to see from the m« 7? nee whether the Magistrate was jusjjpediacoming to the conclusion he did. "Selig and and Bird were bona fide •gents to take the money to Amberley to wvest it on the totalisator, then they do {weenie within the scope of the Act; but «their advertisement and the keeping of icehouse was intended to cover totalisator oettiug by themselves, then they were mi ty of keeping a common gaminghouse, cited In support, Queen v Cook, 13, **•»• Division, 337.) ' mi r 18 „ H °nor—The very heading of the •eyertisement, "Totalisator Eetting" is •raWgious. There are only two items at all in the case, and the . is thafc the Magistrate has *_ond that the whole affair was a swindle, •*» well as a third. He saya " You get

the public money under false pretences," \ bat chat was not what they were charged I with. It seems to mc that if the Court \ upholds the .Magistrate's finding it mast j upset his judgment. I Mr Martin—l submit that tbe money was received for the payment of totalisator odds, and, that being so, the house was a commou gaming house uuder the Act, and that the conviction must be upheld. Mr Martin went on" to .deal with the objection raised by Mr Gresson as to the offence being .one which was not a joint one, submitting that this case was one in which both parties could be Indicted separately. (Cases cited, Regina v Littlechild and Regina v Hfslop, L.8., 6, Q.B. Cases, 233.) After dealing with the other points raised by Mr Gresson, Mr Martin concluded his reply. . Mr Gresson replied shortly. His Honor said. In giving judgment,— There is considerable, difficulty iv this title of the Justices of the Peace Ace, lSd-, relating to prohibition. It is ditticult to see, why ie should be necessary, considering' the full.power of re-hearing and appeal coutained in the previous parts of the Act. There is a good deal of fores in ithe suggestion made by Mi* Martin that it is Intended as a simpler way of obtaining prohibition in those cases where a writ of prohibition would lie at common law. The words, however, are very wide. "If a prima facie case of error or mistake" can be shown on tbe pare of the Justices; and it goes on to oay, that if the Court on considering the evidence given before the Justices thinks that the conviction cannot be sup-po-ted, the order for prohibition should be made absolute' I cannot think that such wide lauguage applies to cases of wane of jurisdiction aud I do not think it is the part of the Court to strain a construction against any remedy which the Act may give to an accused person. Hit were not intended thac the Act shoulo) not have the meaning urged by tbe counsel for the defendants ie lies with the Legislature to alter it. That view is Victorian cases and also tue case orßegina vßowen (N.Z. Jurist), and has also the imprimateurof such an experienced judge as Mr Justice Johnston iv the " New Zealand Justice ot the Peace." I think, therefore, that I cannot put the construction on the statute asked for by Mr Martin, At the'same time it is by no meaua clear—and I should be glad if it were decided by a higher Court. Assuming then that I have co consider the evidence and decide if the conviction can be supported, it really amounts to a re-trial on tne evidence as given before the j R.M. It. is admitted by Mr Martin that unless that evidence shows in effect thaC the defendants either held themselves as keeping or did keep an office in which, uuder color of making investments on the totalisator, they really bet totalisator odds, they cannot be convicted. In other words, that if they chose, after holding out thac they Intended to put money on the machine, to yuc the money in their pockets which they had undertaken to put o.i, that, although this would amount to a swindle, it could hot bring them within the Act. With chat 1 entirely agree. The evidence, consists merely iv tne advertisement, the conversation of Hird with Marsacfe, and the fact that neither of the defendants individually carried out the agreement to , iuvest. The advertisement is equally consistent wLh investment iv the totalisator and biCting totalisator odds, and the conversation is equally consistentwith either. The fact that neither personally put on the money is consistent with their carrying out the advertisement or with their not carrying out the uudertaking. I do hot consider thac the evidence is suthcient to support tho suggestion thac the whole transaction was merely a blind to cover a scheme for layiug totalisator odds. There may be strong grounds for assuming that the mouey wus uoc invested, but went into the poci&ets of the defendants ; which would of course be a fraud. Bub as long as they were solvent this would not in any way affect the pockets of their clients. The view 1 have taken of the evidence appears tb be the view taken by the Resident Magistrate, for if the clients were getting the undertaking tbat Marsack said ne thought he was getting,, there could be no infringemeuc Of tbe Act. I therefore, though with considerable doubt as to the propriety of the mode of procedure by prohibition—order that the rule be made absolute. • i • ; , Order—Rule nisi for prohibition made absolute. . , : ;