A TOTALISATOR CASE.

Colonist, Volume LVI, Issue 13418, 16 March 1914, Page 2

A TOTALISATOR CASE.

POST-START REGISTERING

UNLAWFUL

AN IMPORTANT JUDGMENT,

A judgment which will have a farreaching effect on totalisator clubs throughout the Dominion was delivered by Mr. J. S. Evans, S.M., at the Magistrate's Court on Saturday morning in the case in which Harry D. James, totalisator proprietor for the Nelson Trotting Club, was charged with 'unlawfully registering on the totalisator on the Brightwater Handicap the sum of about £15 received for investment in this race, after the time the time notified, viz., approximately

The judgment is as follows:— ' The defendant is charged that contrary to section 32 of "The Gaining Act,' 1908," at Richmond Park, being the- agent of the Nelson Trotting Club, he did as such agent, unlawfully register on the totalisator then used after the time notified, viz., aproximately 4.10 p.m., by the Nelson Trotting Club for the starting of a race, viz., the Brightwater Handicap, certain moneys, viz., fifteen pounds received for investment.

The facts are that the defendant is the owner of a totalisator machine which he works for the Nelson Trotting Club for a commission on the takings. He was so employed by the Club on the date charged. The Club issued programmes of the races in which the starting time of the races are given approximately only. There is attached to the outside of the mafehine an ordinary clock, with a special movable red hand which is used to indicate the starting time of the race, and also the closing time of the totalisator. Attached to the red hand is a mechanical contrivance for ringing a bell. This is fixed so as to ring tlie bell for five minutes "before the time at which the red hand is set.

When the time for starting the race is fixed approximately only • the red hand is fixed for the time mentioned, and if the. time is. extended by the stewards the red hand is moved on accordingly. There is nothing in the Act to make it obligatory on the Club to fix a time for starting a race. The Club, however, in this case, did fix a time by. its programme, and the time so fixed was indicated to the public by the red hand on the clock. They later extended the time for five minutes, and the extended time was likewise indicated iiy the defendant himself by the rod hand. Underneath the clock is a notice that the red hand indicates the time the totalisator will close. It appears, however, that the defendant in fixing the red hand fixed it three minutes earlier than the time fixed by the Club or the stewards for the starting of the race. . - The president was under the impression that the red hand showed the hour fixed for starting the race. That is, that the red hand was fixed'at the starting time. The section creates three offences: — (1) Receiving any money for investment after the time notified for. the starting of the race. (2) Registering

on. the totalisator any money after the time notified for' the starting of the race j and (3) including in .the dividend any money registered on the totalisator contrary to the above provisions. ;- Th© determining feature is the '.'time 'notified for the starting of the race." The defendant's rule is to have the red hand fixed three minutes beforo the time fixed for the starting of therace, bo that after the five minutes bell rings on the mechanical contrivance on the clock he will have three minutes to register all moneys received for investment. The stewards notify the person in charge of the totalisator of any change in the time fixed for the race.

The defendant, after his five minutes warning bell has gone continues to receive money and register it or register money on hand until he hears the starter's bell.

The race in question in this caso was a handicap trot, and the starter's bell did not ring until the last horse started, which must have been at least 20 seconds after the race started, because- the limit horse had 20 seconds. On the evidence for the prosecution, which is not contradicted,; the defendant continued to register money on the machine until the limit horse reached the two-furlong pole, which is calculated to have taken 40-seconds at least.

That is about four minutes after the time indicated by the red hand, and about one minute nearly after the time fixed for the starting of the race. There is no definition in the Act as" to what "notified by the Club" means. It may mean notified to the public, in which ca*se it was understood by the Club to be the time notified by the red. hand on the clock; or it may mean notified to the person in charge of the totalisator or other persons liable to the penalties under the Act.

In my opinion a notification to the defendant of the time or extended time

,v- starting a race would be a notification _witlun the meaning of the section.

"■ is, in my' opinion, immaterial whether the horses get away at the fixed time or not, the defendant must cease operating the totalisator at the time for starting tho race. He is not, \n my opinion, entitled to continue registering investments whether received or not before the time of closing the totalisator until he hears the starter's bell.

I am of opinion that in a handicap !rot,, the i'lace starts when the limit horse goes, and not when the scratch horse starts: in-any event the defendant is not entitled, as the law stands, .0 operate the machine until he hears

■c bell. H© must cease all operations \t the time notified for the starting ■>f the race. In this case lam satisfied that the defendant was notified that the_.race in question would start at 4.15., and ho continued to .register on the totalisator for at least 40 sec-

kls after that time, and after the time the race had actually started. If, however, "the time notified" means the time notified to the public, then that in the present case was 4.12 by the red hand on the clock, and he therefore continued to register for four minutes after the time.

In either event he committed an offence under the section. I quite exonerate the defendant from any moral turpitude in the matter. He was merely following the ordinary practice in common with this matter.

■ Mens rea, in the technical sense, is not necessary in a case of this kind.

The act is no^ "criminal" in the ordinary sense, it is an act forbidden in the public interest in a Statute which imposes very positive restrictions on the carrying on of gaming transactions, and the prohibition is absolute.

It comes, in my opinion, within the class of cases in which raens rea is not necessary.

The defendant'has done the forbidden, act, and he is liable > for the penalty imposed by the section. :\ He knew, what he was doing, he knew the time fixed and notified to him, he had bis watch in front of him, aiid he ought- to have known he was acting in contravention of the section. This would be sufficient evidence of mens rea if that were necessary. The registering of £15 was not such a rush of business as to have prevented him from watching the limits placed on. him by the section, and he must be convicted of a breach of tho Act. Defendant will be convicted and fined 20s, and ordered to pay 11s Court costs. The Magistrate added that he regarded the case as a test case, brought for the first time in- New Zealand, and he had. not imposed a heavy penalty. If Mr. Harley desired to appeal he would grant him leave to do so. Mr. Evans exonerated defendant from anj' moral turpitude. Mr. Harley said he would not appeal as■ the-Act was quito clear. Racing clubs had evidently, got into a lax way, because the same tiling was done everywhere. He had seen very much worse things done on racecourses —had seen investments being registered after a race was .over, but no action liad been taken.