THE GAMING AND LOTTERIES ACT.

Otago Daily Times, Issue 11397, 14 April 1899, Page 2

THE GAMING AND LOTTERIES ACT.

CAN JOCKEY CLUBS HAVE TOWN

AGENTS?

William Smith was charged before Mr K. H. Cnrow, S.M., at the City Police Court, yesterday, with having, on the 22nd March last, at Dunedin, acted as agent for Tudor Boddum in the investing of £1 in connection with tho working of the tolalisalor on the Wingatui Racecourse, on the Dunedin Cup,' tho said William Smith not being an authorised agent of a. racing club licensed to use the totalisalor.

Mr .). F. M. Fraser appeared to prosecute, and Mr Solomon to defend, the defendant pleading not miilty.

Mr I'rjser said the prosecution was instituted under the provisions.of "Tho (laming and Lotteries Act, 1881," and "The Gaming! Act,'lß94-," which formed part of the first quoted act; tho two a^'ts being read together. This particular information was laid under section 5 of "The Gaming Act, 189+,"' on 'the- following statement of facts:—Constable Boddam, on the 22nd of March, wont tc tho office of the accused, in Kattray street, and

raid that he- desired to invest £1 on a horse called Djin Djin that was running in the Dnnedin Cup on that day at the D.J.C.'s course. Boddam handed in his £1 to the defendant, and received a ticket marked "284-, Djin Djin, Dunedin Cup, £1," and signed his name to- it. '• • . ■

Mr Solomon said that was scarcely in accordance with the facts, and 2)roduced the ticket. , . ■■

Mr Frascr said tliat he'had not se,en the ticket before. It ran thus: " Dunedin Jockey Club. Please put £1 on Djin Djiti in the Dunedin Cup Raco'.V Uoddairi retained the ticket. Subsequently the horse won, and Boddam called upon the accused and asked for his dividend.. Ho was told by Hie accused that he would bo paid on the club's settling day. However, Boddam happened to be. on the course on the following i\i\y, and was then paid at the club's totalinalor on the course. Ho (Mr Frasor) proposed to contend; that on that statement of facts an offence had been committed, and ho proposed to base that contention on the following construction of the oct. Ab he had said, the nets must be road as one. If his Worship would refer to section 46 of the 1881 act, he would see that it said, "No more than three totalizators shall bo used by the club at one time, and none outside tho race grounds within the control or management of the club."' Then came the definitions of " totalisator " and " racing club." Then, under "Tho Stamp Acts Amendment Act, 1891," the legislature, by section 3 and the following sections, made provision that upon-the'gross takings of every totalisator, there should be payable to tho Queen a duty of IjS per cent. Then tho act of 1094- was passed—passed, he (Mr-Frasor) supposed, probably in consequence of the decision in Paterson v. Campbell. Mr Solomon said it was in consequence of the Selig-Bird case in 1891. It was section i of tho act that was passed in consequence of the decision his learned friend mentioned. ..

Mr Fraser, continuing, said that under see: tion 5 of this 1894 act provision' was made as follows: "Any person who sends or causes to be sent to any person any eirculai, notice, advertisement, letter, telegram, or other document, requesting or inviting any such person to employ him as an agent,' or offering his services as an agent,. in purchasing any ticket or making any bet in connection with the working of tho to.talisator, or investing money in connection with the working of any totalisator, and any person employing any person to act for him as agaut as aforesaid, and any person acting as such agent ; .save any authorised agent of a racing club licensed to use the same, shall bo guilty of an offence," and so on. In reading that section it became apparent that the-words ''save any authorised agent of a racing cJhlj had been interpolated after the section had been drawn, and without referenco to the context, Mr Solomon: The very revenso of that is tho fact. Look at the decision on which it was based. , His Worship paid it 'did not matter how the words came to be put there, so long as they were there.

Mr Fra?er submitted that though the secion was loosely drawn it could not mean

anything else thnn what he was contending for. Under section 46 of the 1881 act. the machine could only bo used inside a club's

grounds, and he proposed 'to argue from that that a club had no authority to delegate to

an agent a powervyyhicli it did not itself pos^ soss—namely, the- power to operate outside the cluVs grounds,—neither was it' eVer intended to have that power.' If the other view of the .section were given' effect to it would be competent for the club to appoint agents in every part of the colony, as well as in Dunedin. ' . . '.' Mr Solomon; Agents t.o do what? Mr Fraser: To receive monoy for investment on the totalisator. .*''.. His Worship: •,.Racing clubs %11 ovnr the colony arc doing that now, are they not? Mr Solomon': For the last 17 years it has been done in every y t6wn in thecolony. Mr Frnjcr: To ma'.cp any bet in connection with the working-of any totalisator—in effect to lay the odde in any part of the colony. That is another result of the reading, of the section. ; ■ ■ His Worship said lie thought there was a difference botween laying tote odds and receiving money for investment on the totalisator. ■ ' I ' Mr Fraser aaid that, he took the section in its common sense meaning. The only' person who escaped the penalty was {lie ■ authorised agent of ' aracing club licensed to use the totalisator. The persons w!io bet with him remained liable. ~ Nothing could be clearer than that. '. •' His Worship: In that case you may have the wrong man in the box. Mr Fraser said that that'was a matter for after consideration. He was pointing out. 'the various phases of the section. Constructing it in its narrowest sense, if one man j asked another to put £t for him on the machine, both were liable to o, penalty not exceeding £20, or to three months' imprisonment. Mr Solomon: What does- the proviso mean? :-' Mr Fraser: I cay it simply refers to an authorised agent of a jockey club authorised to net within Hie powers of the club. Mr Solomon: Well, wliat does that mean? Mr Fraser: To appoint an agent on' their own grounds and nowhere else. Mr Solomon: What, would be the object of that, when the machine is tjiere itself? Mr Fraser: It enables an agent to receive money on the course. Ho could not do so without this, ■ .. Mr Solomon: What would tie *ho uae of doing that when the totalisator is"there?

Mr Fraser: To. receive money and transmit it to the club. Without this proviso it would not be competent for him to receive money for investment on the course.

Mr Solomon: Why could it not bo sent to the club direct? The very object of this proviso is to allow the doing of what has been done. Many of the important race meetings are held on holidays, whan the telegraph offices are closed, and the, very object of the arrangement is to enable money to be sent to the chili the day before.

Mr Fraser: I do not think that affoets the question.

Sir Solomon:. It is a matter of common knowledge-that this has been going on for tho past 17 years, and it is a very late hour of the day to ■ raise- the question now. Mr IVaser: I say that if it bo held otherwise it would practically mean that a club could run totalisators all over the colony on the same day. The license is precise in its terms. It is a license for the course only. His Worship: Ido not think the wording of the license can affect the matter. It cannot add to or diminish from the law.

Mr Frascr: However, it is within the terms of section 46. The use of the tolajisator is slriclly limited to the course. And I would remark that there is no definition of the term "authorised, ogont," so that one ie driven back to interpret'that phrase in the view of the ordinary powers of a body to delegate authority. It comes back to the ordinary law of principal and agont. There is no widening of tho power.! of a jockey club under this section. It might have been very easily amplified if it had been intended that a club should have liberty, to operate outside its course. An agent, can only be authorised to go as far as his principal can Mr Solomon asked what the. authorisation was for except to put money on the machine. It wont nowhere else. What was tho money Mr Eraser: For investment. Mr Solomon: Investment where? On tho course? Mr I'raser: Precisely so. It would be absurd lo contend that this is a gaming house. Mr Solomon : You know it is the Jockey Club* o.'lice it was taken nt. Air Fraser: I presume it is. Mr Solomon: Well, it lias " Duncdin Jockey Club " on the window. Mr Eraser: And the ticket I now see for tho first time is headed " Dunediu Jockey Club," and it has " Sydney James, secretary " upon it. It would he a request addressed to tho club, which, 1 suppose, would be communicated lo the totalisator. His Worship: That would moan to put it on on tho eourso. Mr Solomon :'And that'is what was done, and the man got paid on the course. Mr friisor: That does not affect the power of the Jockey Club to do all these things mentioned in seejion 5 outside the course. Thorn is no definition of the words " Save any authorised agent of a racing club licensed tti use the same," and in defining "authorised agent" you have to turn to section 46 lo see how the license is to lie used. That section is lo be read in its entirely. Tt might lead —I don't say it would, tu*. it might

lead—Lo' very considerable abuse, and it would lead lo very considerable abuse if v, metropolitan club- started agencies all over Ilia.colony in connection with the tolalisator. Tlint, of (course, was novor intended. I" call Tudor Uoddiim. Tudor Boddam, plain-elollios constable, deposed tliat ho went to the Duriedin Jockey Club's office, in Kattray street, on the 22nd March. Win. Smith was behind the counter. Witness said he wanted to put £1 on Djin Djin. Defendant filled -in the slip of paper produced, witness handed him a £1 note, and he naked him to put his signature lo the paper. Witness did so. Ho kept the paper, mid witness left. Djin Djin won the Cup, and paid a dividend of £5 16f. The following morning witness wont to the office and saw defendant, and told him of the transaction, and psked when ho paid out. Defendant replied mout likely on Monday, but said he could not speak with any degree of certainty. On the Saturday witness was paid the dividend at the totalisator, at the racecourse, by Mr Ohas. Roberts. To Mr Solomon: He noticed tho advertisement in tho Otago Daily Times before he went to the. office, calling attention to the fact that money for investment on the totalisator would bo received at the club's office at Dunedin up to one hour before the.'tjino of starting each race, the club having made arrangements for the transmission of money. He had no doubt that tho man in the office was a servant of tho club. If he had had any doubt he would not have givon him his £1. He know the Weekly Press, but could not say he had seen lhi» or similar advertisements in that papors "Canterbury Jockey Club.—Totalisator Investing Department.-—Monday, April 3rd, being a telegraph holiday, investors are advised to send their investments not later than. Saturday, April Ist. Investments must be accompanied by the cash. No notice will be taken of contingent instructions.—W. H. E, Wanklyn, Secretary." Counsel showed witness similar advertisements inserted by .the Poverty Bay, Timaru, and Masterton Clubs. Mr CareiY said 'that' only showed that if it was an offence, it was a very common one. Harry L. James • deposed that Smith had been specially appointed to i receive mpney at the office, and transmit it, with instructions, to the course for investment. Witness read a mtiiuto concerning the appointment of Smith. He was appointed by letter. The resolution in tho minute was an authority for the appoinlment. ' Q . . His Worship: Who appointed him? Witness: The executive. . Mr Solomon: Who are the executive? Witneos: My father and myself. Mr Eraser: You mean you are the executive? " . Witness: We are officers of the club. Mr Fraser: Are these specific instructions to appoint Smith? * Witness: Not beyond that resolution. His Worship:, What is the practice with regard to making appointments?' Witness: We do; my father, myee.lf, and the treasurer (Mr Cnrr). Mr Fraser: Then Mr Carr, and your father, (ind'yourrelf are the executive of the club? Mr Solomon: Mr Carr is only an honorary officer. ' ■

Witness (to Mr Fraser):' This letter was handed to Mr Smith before he started work:—"March 2, 1889.—Copy of resolution of stewards and committee: —'That arrange-1 merits bo made for a man to take charge of club's office in lownduring the race days and telephone and transmit money for investment on the totalisator at Wingatui.'/ In pursuance of the above resolution, Mr Smith is' hereby appointed to take charge of the club's office, and cany out the same on the race days at Wingatui.—Sydney James, See. D.J.C."

To Mr Solomon.: That is the usual way in which ticket-takers and others are. appointed. The committee do not name them. The executive get instructions from the committee to. employ, and I he executive fix on whom they 'think are desirable. There is no telegraphic communication with Wingatui racecourse. This, was done advisedly, with the object of preventing totalisator odds being hid except through the medium of 'the club. The club found it almost impossible to prevent, illegal totalisator batting by.bookmakers so long as there was a telegraph office open,

iincl for the purpose of stopping this betting the club resolved to have no telegraplt office at Wingatiii, This ticket which you show me from a firm of bookmakers to their customers draws attention to the fact that with the telegraph Ihera is facility for communication, and no necessity for bookmakers to be present personally. .

The ticket was as follows: —" As we do not intend havina any agent on the. course, we beg respectfully to draw your attention to the facility with which business can be conducted by telegram. Any commission you may desire to favour us with can be sent lip to the time the bell'rings, 'find-to do away with the formality of a reply, weiguarantee your money on. immediately the message is despatched." Cross-examination continued: For the last ten years the Jockey Club had been in the habit of receiving money at. their office for investment at the racecourse, and for some years this has been advertised. Clubs all over the colony have done that for seven or eight years. The accused was paid so' much per day. His' pay did not vary with the profits of the club any more than mine does.

Mr Fraser: The evidence, your Worship, discloses the fact that there is no authority! agent. The accused was appointed not by the racing club, but by Mr James and his assistants.

Mr Solomon: Who do you say should have appointed lliem?

Mr FniFer: He should, have been appointed by resolution of the club.

His Worship : The club is not a corporate body. They can allow their servants to do it. Mr James has said that these appointments were left to him.

Mr Solomon said the prosecution was so obviously abortive that there wan really no necessity io raise any defence; but lio would like to Bay a word or two with reforonco to tKe matter. Jt certainly seemed jieculiar that at this sta^e of the legislation of thin colony jt should be left to the police of Dunodin to institute such a prosecution as ibis. Hie 'learned friend contended for n. coiißtruelibn of the statute which, if correct, would lead to an obvious absurdity. And that this was so was best testified to by the fact tha* what had been done by the Dunodin Jockey Club liad been.dono openly and publicly for years past to the knowledge of everybody concerned. His, learned friend's contention amounted to this: That all the Dunedin 'Jockey Club could do was to authorise a person to act as its agent, that person being on the racecourse at the time, the totalisntor was being worked. He (Mr Solomon) was somewhat surprised that Mr Fraser should ask the club to adopt so narnow, and, to his (Mr Solomon's) mind, so nonsensical a view of the act. The object with which the section of the act under which the information W(is laid was passed must be obvious to everybody and the history of the legislation to which his learned friend referred showed the? object with which it was passed. In 1891 'the case of Solig and Bird was decided by Mr Justice Denniston, and it was owing to that decision that section 5 of the " Gaminj* and Lotteries Act, 1894" was passed. It was at that time considered an offence against the law to bet totalisator odds; but it was subsequently decided that it was not an offence.' It was made an offenco under the act of 1894, and it was considered to be an offence in the case of Porter v. O'Connor under the act of 1881; but he succeeded in persuading Mr Justice Williams at Dunedin in Domett's case that it. was not an offence. At that date it was considered an offence to bet lotalisator odds—that was, to lay the tame odds as the totalisator. When the police laid a charge of this sort against a bookmaker they were mot with the fact that the bookmakers did not bet totaJisator odds, but simply acted as the agents of those who wished to put money on a race. And the police were continually defeated. Tn order to prevent that sort of tiling the Weekly Press inserted in its adverlisinsj columns this advertisement : —

" TotaKsator betting.—lnvestments made— At the request of a number of subscribers in various parts of the colony, the proprietors of the New Zealand Referee have decided to roopon their totalisator investment department (in connection with their result wire department) for the convonitince of those at a distareo who cannot attend tho various race meetings, .md who wish to make investments. Tho totalisatov investment department will be in charge of a special clerk, for whose services a charge of 10 per cent, will be made to investors on winnings only. Instructions must be accompanied by cash or postal notes, and must bo addressed: ' Totalizator Investment Department, Keferee Office,' Christelmreh.' On no account will any notice be taken of letters or telegrams not'accompanied by cash or postal orders. The first meeting this season for which such investments will bo taken will be the North Canterbury Stee.plechaso meeting-, on Thursday, August 28. Instructions received up to 9 o'clock on tho morning of tho races." Then an information was laid against Scliir nnd Bird for inserting this advertisement. The case was brought before Mr Justice Denniston in February, 1391, when it was decided that this was not an offence against tho Gaming and Lotteries Act. Thereupon, in order to prevent any person froip becoming the agent for another in order to invest money on the totalisator a section was put in the act of 1894. Instead of being slipped into the act inadvertently, it was put there advisedly.

It was put there to enable persons to invest money on the totalisator, provided that they did it through the medium of the Jockey Club, and not in any other way. It frequently happened that races were held on Boxing liay. Ristcr Monday, and the Prince of Wales's Birthday, and mi each of those days tho telograph office, wus closed, except from 9 to 10 "in the morning and from 5 to 6 at night. At all those limps, as his 'Worship know, llio Jockey Club invited persons who wished to invest their money to sond it to "-<• club's office to iuys* on the lotalieator.

If Mr Eraser's view were correct, it would lead to a perfectly ridiculous result. Wiiat could bo the object of appointing "an authorised agent" to do something which, the tolnlisator was there to do for itself? A club could not. of course, bet at-lotalisator odds, any more than anyone' also could, but it could, the very words of the section, authorises a person to act as agent for" " investing any money in connection with the working of any tolalisator," and this club had been particularly careful to see that what was done in this case was regular. Tlio person charged received money and actually invested it on tiie totalisator before the race was run. Kvory £1 put on in this way altered the- result. The objectionable thing aimed at by the Legislature was set forth in the first tw.o lines of section <k A man could not"say to another: " I'll take your £1 and bet you the tamo odds as Die iotiilisator." Tho Legislature had said as plainly na possible that the. totalisator was authorised if worked on a racecourse. To bet had never been an offence against Kuglish law, and it was not intended to make it illegal hero. Betting was only illegal in the sense that the money won at it could not be recovered. The ,offences were, first, to bet in competition with the totalisator—that being an offence in New ..Zealand; and, secondly, to keep a betting house. It was simply unarguable to say that an offence had been made out in this case. To cay that there had been would 1)6 to simply play into tho hands of men who carried on business at the expouso of the clubs. He (Mr Solomon) was sure that his Worship would be glad to find that ho was not bound to arrive at a conclusion so expressly against the wishes of the Legislature. ,

His Worship, (to Mr.Fraser): Do you propose going- on with the other cases?

Mr Fraser: No. The question is one that should be decided, for tlio reasons I have given, but I propose to leave ttie other eases to bo settled by this one. His,' Worship intimated : that ho would give bis decision next Thursday. Mr Solomon: Do I understand that the other eases aro abandoned?

Mr Fraser: They hinge on this. Mr Solomon: What does that mean? Mr Frasor: Tliat if I get a conviction I. will not prosecute. ' ' j ' " Mr Solomon:' And if you do not? Mr Frasor: Then I will riot go on either. Mr Solomon: Then strike them out. His Worship suggested that there, seemed to be .a misunderstanding; He thought the other cases, had better stand over. - After consideration Mr Fraser said that lie would withdraw the other informations. Ho had not seen the ticket before,