THE GAMING AND LOTTERIES ACT.

Otago Witness, Issue 2356, 20 April 1899, Page 40

THE GAMING AND LOTTERIES ACT.

CAN JOCKEY CLUBS HAVE TOWN AGENTS ?

William Smith was charged before Mr E. H. Carew, .5.M.,, at the City Police Court, on Thursday, with having, on the 22nd March jQast, at 'Dunedin, acted as agent for Tudor JBoddam in the investing of £1 in connection .•with* the working of the totalisator on tho 'Wingatui Racecourse, on the Dunedin Cup, the said William Smith not being an authorised agent of a racing club licensed to use the totalisator. Mr J. F. M. Fraser appeared to prosecute, and Mr Solomon to defend, the defendant pleading not puilty. Mr Fraser said the prosecution was instituted under the provisions of " The Gaining and Lotteries Act, 1881,* and " The Gaming Act, 1894," which formed part of the first quoted act, the two acts being read together. This particular information was laid under

section 5 of "The ' Gaming Act, 1894," on - the following statement of" facts: — Constable

Boddam, on the 22nd of. March, went to the office of the accused, in Rattray street, and «aid that he desired, to invest £1 on a horse called Djin Djin that was running 'in the •Dunedin 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 tho facts', and produced the ticket. Mr Fraser said that he had not seen the ticket before. It ran thus: " Dunedin Jockey Club. Please put £1 on Djin Djin in the Dunedin Cup Race." Boddam retained the ticket. Subsequently the horse won, and Boddam called upon, the accused and asked for his dividend. He was told by the accused that ho would be paid on the club's settling day. However, Boddam happened to be on tho course on the following day, and was then paid at the club's totalisator on the course. He (Mr Fraser) proposed to contend that on that statement of facts an offence had been committed, and he proposed to bas=e that contention on the following construction of the act. Ab he had said, the acts must be read as one. If his Worship would refer to section 46 of the 1881 act, ho would see that

it said, "No more than three totalisators shall be used by the club at one time, and none outside the race grounds within the control or management of the club." Then came the definitions of "totalisator" and "racing club." Then,- under "The Stemn Acts Amendment Aaiu 189 V the Legislature,

by section 3 and the following sections, made provision that upon the gross takings of every totalisator there should be payable to the Queen. a duty of 1£ per cent. Then the act oi 1894 was passed — passed, he (Mr Fraser) supposed, probably in consequence of the decision in Paterson v. Campbell.

Mr Solomon Eaid it was in consequence of the Selig-Bird case in 1891. It was section 4 of the act that was passed in consequence of the decision his learned friend mentioned.

Mr Fraser, continuing, said that under section 5 of this 1894 act provision was made as follows : " Any person who sends or causes to be sent to any person any circulai, 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 the totalisator, or investing money in connection with the working of any totalisator, and any person employing any person to act for him as agent as aforeEP.id, and any person acting as such agent^save any authorised agent of a racing club licensed to use the same, shall be guilty of an offence," and so on. In reading that section it became apparent that the" words "save any authorised agent of a racing club had been interpolated after the section had been drawn, and without reference to the context.

Mr Solomon : The 'very reverse of that is the fact. Look at the decision on which it was based. • - - -

' His Worship said it did not matter how the" words came to be put- there,- so long as they were there. , Mr. Fraser submitted that though the section was loosely drawn it could not mean anything else than what he was contending for. Under section 46 of the 1881 act. the machine could only be used inside a club's grounds, and he proposed fco argue from that that a club- had no authority to delegate to an agent a power which it did not itself possess — namely, the power to operate outside the club's 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 to do what? , Mr Fraser: To receive money for investment on the totalisator.

His Worship : Racing clubs all over the colony are doing £hat now, are they not? Mr Solomon: For the last 17 years, it has been done in every town in the colony. Mr Fraeer : To make any bet in connection with the working of any totalisator — in effect to lay the odds in any part of the colony. That is another result .of the reading of the section.

.His Worship said he thought there -was a difference between laying tote odds and receiving money for investment on the totalisator.

Mr Fraser said that he took the section in its common sense meaning. The only person who escaped the penalty was the authorised agent of a racing club licensed to UEe the totalisator. The persons who bet with him remained liable. Nothing could be clearer than that.

His Worship :. In that case you may have tho wrong man in the box.

Mr Fraser said that that was a matter for after consideration. He was pointing out »lhe various plut c es of the section. Constructing it in its narrowest sense, if one man asked another to put £1 for him on the machine, both were liable to a penalty not exceeding £20, or to thre"e months' imprisonment.

Mr Solomon : What does the proviso mean?

Mr Fraser: I say it simply refers to an authorised agent of a jockey club authorised to act within the powers of the club. Mr Solomon: Well, what does that mean? Mn Fraser: To appoint an agent on their own grounds and nowhere else.

Mr Solomon : What would be the object of that, when £he machine is there itself?

Mr Fraeer: It enables an agent to receive money on the course. He could not do so without this.

Mr Solomon: What would be the use "■ of doing that when the tolalisator is there?

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

Mr Solomon: Why could it not be 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, when the telegraph offices are closet}, and the very object of the arrangement is'to enable money to be sent to the club the day before. *Mr Fraser : Ido not think that affects the question.

Mr Solomon : It is a matter of common knowledge that this lias been going on for the past 17 years, and it is a very late hour of tho day to raise the question now. Mr Fraser: I i-ay that if it be held otherwise it would practically mean that a club could run totalizators all over the colony on the same da}'. The license is precise in its terms. It is a license for the coui-fc only. His Worship : I do not think the wording of tho license can affect the matter. It cannot add to or diminish from the law.

Mr Fraser : However, it is within the terms of section 46. The use of tho totalisator is strictly limited to the course. And I would remark that there is no definition of the term, "authorised agent." so that. one is driven back to interpret that phrase in tho view of tho ordinary powers of a body to delegate authority. It comes back to the ordinary law of principal and agent. There is no widening of the powers 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 ajfent can only be authorised to go as far as his principal can go.

Mr Solomon asked what the authorisation was for except to put money on the machine. It wont nowhere else. What was the money received for? Mr Fraser.: For investment. Mr Solomon: Investment where? On the bourse?

Mr Fraser: Precisely bo. It would be absurd to contend that this is a gaming house. Mr Solomon : You know it is the Jockey Club's office it was taken at. Mr Fraser : I presume it is. Mr Solomon : Well, it has " Dunedin Jockey Club " on the window.

Mr Fraser: And the ticket I now see for the first time is headed " Dunedin Jockey Club," and it has "' Sydney James, secretary" upon it. It would be a request addressed to the club, which, I suppose, would be communicated to the totalisator.

His .Worship: -That would mean to put it on on the course.

Mr Solomon : And that is what was done, and the man got paid on the course.

Mr Fraser: That does not affect the power of the, Jockey Club to do all these things mentioned in section 5 outside tho course..

There is no definition of the words " Save any authorised agent of a racing club licensed to use the same," and'in defining "authorised agent " you have to turn to section 46 to see how the license iy to-be used. That section is to be read in its entirety. It might lead — I don't say it would, but it might lead — to very considerable abuse, and it would lead to very considerable abuse if a metropolitan club started agencies, all over the colony in connection with the totalisator. That, of course? was never intended. I call Tudor Boddam.

• Tudor Boddam, plain-clothes constable, deposed that he went to the Dunedin Jockey Club's office, in Rattray 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 asked him to put his signature to the paper. Witness did so. He kept the paper, and wit-, ness left. Djin Djin won the^Cup, and paid a dividend of £5 16s. The. following morning witness went to the office and saw defendant, and told him of the transaction, and asked when he paid out. Defendant replied most likely on Monday, but said he could not speak with any degree of certainty. On the Saturday witness was paid the dividend at the tqtalisator, at' the racecourse, by Mr Chae. Roberts.

To Mr Solomon : He noticed the' advertisement in the Otago Daily Times before he went to the office, .calling attention to the fact that money for investment on the totalisator would be received at the club's office at Dunedin up to* one hour before the time of starting each race, the club having made arrangements for the transmission of money. He had no doubt that the man in the office was a servant of the club. If he had had any doubt he would not have given him his £1. He knew the Weekly Preps, but could not say he had seen this or similar- advertisements 'in that paper: "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 Fhowed witness similar advertisements inserted by the Poverty Bay, Timaru, and Masterton Clubs.

Mr Carew 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 receive money at the office, and transmit it, with instructions, to the course for investment. Witness read a minute concerning the appointment of Smith. He was appointed by letter. The resolution in the minute was an authority for the appointment. His Worship : Who appointed him ? Witness: The executive. Mr Solomon: Who are the executive? Witness: My father and myself. ' Mr Fraser: .You mean you are the executive? Witness : We are officers of the club. Mr Fraser : Are theee specific instructions to appoint Smith? Witness: Not beyond that resolution. Els Worship : What is the practice with regard to making appointments?

Witness : We do ; ni"y father, myself, and the treasurer (Mr Carr).

Mr FraFer : Then Mr Carr, and your father, and yourself are the executive of the club?

Mr Solomon : Mr Carr is only an honorary officer.

WitneeS (to Mr Fraser) : This letter was handed to Mr Smith before he startedwork: — "March 2, 1899. — Copy of resolution of stewards and committee : — 'That arrangements be made for a man to lake charge of club's office in town during 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 carry out the same on tho race days at Wingatui. — Sydney James, Sec. D.J:C."

To Mr Solomon : That is the \isual 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 the 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 laid except through tho medium of the club. The club found it almo3t intpos^ible to prevent illegal totalisator betting by bookmakers so long as there was a telegraph office open, and for the purpose of stopping this betting the club resolved to have no telegraph office at Wingatui. This ticket which you show me from a firm of bookmakers to their customers draws attention to the fact that with the telegraph there is facility for communication, and no necessity for bookmakers to be prepent personally.

The ticket was as follows: — "As we do not intend having 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 bo eenl up to the timo tho bell rings, and to do away with the formality of a reply, we guarantee your money on. immediately the message is despatched."

Cross-examination continued: For the last leu 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 tho colony have done that for seven or eight years. The accused was paid so muck per day. His pay did not vary with the profits of tho club any more than mine does. -

Mr Fraiser : The evidence, your Worship, discloses the fact that there is rio authorial agent. The accused was appointed not by tho racing club, but by Mr James and his assistants.

Mr Solomon: Who do you say shijul(> h;n p appointed them?

Mr Fraser: 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 Eaid the prosecution was so obviously abortive that there was really no necessity to raise any defence ; but he would like to say a word or two with reference to the matter. It certainly seemed peculiar that at this stage of the legislation of this colony it should be left to the police of Dunedin to institute such a prosecution as this. His learned friend contended for a construction of the statute* which, if correct, would lead to an obvious absurdity. And that this was fo was best testified to by the fact that what had been done by the Dunedin Jockey Club had been done openly and publicly for years pa.it to the knowledge of everybody concorned. 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 tolalisator was being worked. He (Ms Solomon) was sqme-

what surprised that Mr Fraser - should Mk the court to adopt so narrow, and, to his (Mr Solomon's) mind, so nonsensical a view of tho act. The object with vrhich the section of, the act under which the information was^ 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 Selig and Bird was decided by Mr Justice Denniston, and it was owing to that decision^ that section 5 of the " Gaming 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 offence 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 Barnett's case that it was not an offence. At that date it was considered an offence to bet totalisator odds — that was, to lay the same odds as tho totalisator. When the police laid a. charge of this sort against a bookmaker they were met with the fact that the bookmakers did not bet totalisator odds, but simply acted as the agents of thdse who wished to put money on a race. And the police were continually defeated. In order to prevent that sort of thing the Weekly Press inserted in its advertising columns this advertisement: — "Totalisator betting. — Investment's- 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 reopen their totalisator. investment department (in connection with their result wire department) for the convenience of those at a distnrco who cannot attend. the various race meetings, and who wish to make investments. The totalisator investment department «ill be in charge of a special clerk, for whose services a charge of 10 per cent, will be made to investors on winnings only. Inptructions must be accompanied by cash or postal notes, and must be addressed : ' Totalizator Investment Department, 'Referee Office, Christchurch. 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 be taken will be the North Canterbury Steeplechase meeting, on Thursday, August 28. Instructions received up to 9 o'clock on the morning of the races." Then an information was laid against Selig and Bird for inserting this advertisement. The case was brought before Mr Justice Denniston in February, 1891, when it was decided that this was not aiV offence against the Gaining and Lotteries Act. Thereupon, in oidor to prevent any person from becoming the agent for another in order to invest money on the totalisator a section was put in tho act of 1894. instead of being slipped into the act inadvertently-, it was put there advisedly. It was put there to enable pcraons to invest money on the tolalisator, 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 Day,Ti!aster Monday, and the Prince of Wales's Birthday, and on each of those days the telegraph office was closed, except from 9 to 10 in the morning and from 5 to 6 at- night. At all those times, an 'us Wor-ship-knew,- the Jockey Club invited persons who wished to invest their money to Fend it to the club's office to invest on the tofcalisator. If Mr Fraser' s view were correct, it would lead to a perfectly ridiculous result. .What could bo tho object of appointing " an authorised agent " to do something which the total isntor was there to do for itself? A club could not, of courde,\ bet at totalizator odds, any more than anyone else could, but it could, within the very words of the section, authorise a person to act as agent for " investing any money in connection with the working of any totalisator," and this club had been particularly careful to see that what M r as done in this case was regular. The person charged received money and actually invested it on the totalisator before the race was run. Every £1 put on in this way altered the result. The objectionable tiling aimed at by the Legislature was set forth in the first two lines of section 4. A man could not say to another: " I'll take your £1 and bet you the same odds as the totalisator." Tho Legislature had said as plainly as possible that the tolalisator was authorised if worked on a lacecourse. To bet had never been an offence 1 against English law, and it was not intended to make it illegal here. 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 tho tolalisator — that being an offence in New Zealand : and, secondly, to keep a betting house. It was simply unarguable to say Hint an offence had been made out in this case. To say that there had been would bo to simply play into the hands of men who carried on business at the expense of .the olubF. He (Mr Solomon) was sure that his Worship would be gJad to find that he was not bound to arrive at a conclusion so expressly against the wishes oT tho Legislature.

His V'or.Viiip (to Mr Fraser) : Do you propose goiri« on with Lho other cases?

Mr fraser: No. The question is one that should be decided, for the reasons I have given, but I propose to leave the other cases to be settled by this one.

His Worship intimated that he would give his decision next Thursday. After consideration Mr Fraeer paid that ho would withdraw the other informations. He had not seen the ticket before.