CONVICTION QUASHED

Evening Post, Volume CVI, Issue 15, 18 July 1923, Page 9

CONVICTION QUASHED

RECENT" PETONE GAMING CASE

' POLICE EVIDENCE INSUFFICIi ; ••>•; -■-"■..ENT. ■'■■- \}\,':-- l:

; Judgment Was given by. llr. ■Ju»tio«" S.almond- yesterday in the caseof Frit* Franz Dolling "against Arthur iSidney,": Bird, sergeant'of ;police,' an. appeal frontXi, conviction by a iMagistrate; 6n_ a'charga "' of using certain premises in his occupa- . tiqn as a gaming house.- His Honour;jil--lowed-the; appeal,-and set aside the coii'Vyiction.'■■'■■ ■■ -„;':•■■■-. : ;." '£''■'■■-' ■'■".""ZV."'

; The defendant -was; s th&: occupier of ;»_,.'. tobacconist's shop, at Petone. On 7th September, .said "his • Honour, Constable „ a „ Canning] whohad.beenkriowri.to the de- •'. . fendant ,for' some years r and.?whot"K»iti"~' recently joined 'the Police ;Forcf,,thsugh „ his connection therewith was unknown/ to _.-„ theidefendajitjientered the.shop andatlt;-" ed the defendant for a race card-for-thi." Marton races; The card was supplied.to . him.; Two days later Constable Canning again, visited the-shop and told the de- • fendanf that he wanted Ssonthe'race^ ■■"" ', horse,Omahu for the Marton Handicap. The defendant accepted the bet. On 13th. ;'"_ the samecohstable again visited the-shop •-— and asked, the defendant for, a double .V," card for the Wanganui races.; The.dci":/ fondant replied- that he had not such-a" ~ card,,. but that • his'-. "mate Jones", had •'■'' one:at the Working Men's. Club:.\:Ev>Tdence of other, bets was also,give.n.' On..'■" 14th September. Dolling was arrested and ~ his. person and premises were* seatcheeL--" Nothing was. found in the way of. book's; 1^.." cards, documents, or other indicia!of-*-,- ■ : betting, establishment. It was-ascertain- '•• ed, however,.that the deiendant:h'ad"-iei^_. cently made application for connection . with, the Wellington (as opposed to'-th«"-T: Petone) telephone' exchange,. and "inat'Jui'r.T.: ' ■hop had been, fitted with a speeially-ecji; " structed soundproof telephoh«-bor.- J"ur- " ther evidence of a vague chafacter"wii:^. adduced- as to the frequenting of the pre-:~. mises on race-days by. more than the- ' usual number of persons.. The defendant • — did not give or call any evidenceldthe*;'..,',;: : before the Magistrate or on appeal. ■ ' '''■ ■ .His Honour said that'the "defendant ia--"-the present case was admittedly thY 'oo^S: cupier of the premises in, question. What' " the . prosecution had to prove- was-that" ": •" '. he kept or used the premisesfor*the"pur-"-»;----ppso of betting--wijhi other persons. -It " had;been proved that on two occasions - ■ he made .bets .on rthe premises^'ln-onW"-sense, therefore, he"certainly used tHera" " for the purpose of making the bets; That, -; however,;was ; not.the seiise.inwhich.thV : t(j r™.. «s, e ', was employed in section::.!* ;. of the Gaming "Act. Betting was hot-in---iteelf made -illegal; ; :Nor", was {betting 'in -- itself • illegal, although ''the...': bet. was .c. made.m-arouse, office,, room; or place : "■ ln^the ownership,or occupation of the---person"who made the'bet! A.man -had ' the same right to make, abet in"-his own 1 '■ house, shop, or office as to make abet"" anywhere f else., Nor did '■ it .make; any- ■ ' difference that: he'was'in-thehab.it' ofv' " niakine such bets: What Ke could-d«--'-~ lawfully once-he.could do liwfully' re- :""" peatedly ■. . . On - its true interpre-': totionj.ithe -purpose :and> effect-ofsection -- ■36 of-.the Gaming ..Act, was 'to prohibit":"'' netting carried: 911 as a- business, on prel--*P* ce * appropriated :fo'r.that.purpose. ••»-- did not prohibit'betting in. itself.. ~l ...; /. . : After further reference, to the' gaming '" l a^. Mr. Justice. Salmond said that-he-- • had to'determine whether thepolice-tes- ■■'• timpny in the.case under review established..,» pnma facie case against.the de- ' »? ns*s*.- He did not think that'any "such"": case had been established. .He could not' " attach to the\ indefinite and '" unsatisfactory" evidence" as. to the fre- • queiitiijg .of ■ the. defendant's .shop" on ' race days;- nor: could "he treaf theTevi^' jfenceastoth^telephonrand^lephone----- . f?^ .as-;mc-re; .than;an element of gnecWi "• S^ sP'oj?/>-K.,The appealed" ■:' °^'iV^ '^ <fV«<^^e^a s id e^- ■= - [At tlie heariflK 'Mr^ iP' rlVit-i;irt->»■'■••■ withVhim-Mr. if; J"O'LeaU^-;^J- ' ' MaMss^fMih^Croyniv^vn'?v -