LAW REPORT.

New Zealand Police Gazette, Volume XXXIV, Issue 14, 7 April 1909, Page 133

LAW REPORT.

(“Times Law Reports,” Vol. xxv, pages 239-41.) [K.B. Div. (Lord Alverstone, C.J., Bigham and Walton, JJ.)—2oth January, 1909.] Buxton and Another v. Scott. Gaming — Betting—Hoitse used for betting—Permission of Person assisting in Management of House—Betting Act, 1853 {l6 and 17 Vic., c. 119), ss. 1, 3. A used a publichouse for the purpose of betting with persons resorting thereto. He did this with the knowledge and connivance of B, the licensee’s son, who assisted the licensee in conducting the business of the publichouse. The licensee was present in and managing the publichouse, but the justices were not satisfied upon the evidence that she knew that betting was going on. The justices convicted A of using the publichouse for the purpose of betting with persons resorting thereto, and convicted B of aiding and abetting A to commit the offence. Held, That, as B was in fact assisting in conducting the business of the publichouse, he was a person clothed with the licensee’s authority who could give permission to A to use the premises for the purpose of betting with persons resorting thereto, and that the conviction of A and B was therefore right.

This was a case stated by two justioes for the City of Sheffield. On the 6th June, 1908, an information was preferred by Charles Thomas Scott, Chief Constable of Sheffield (hereinafter called “the respondent”), against Thomas Henry Buxton and Harry Harvey (hereinafter called “the appellants ”), under the Betting Act, 1853 (16 and 17 Viet., c. 119), alleging that the appellant Buxton, on the 20th April, 1908, and on divers other days between that date and the 14th May, 1908, at the City of Sheffield, being a person using a house called the Old Blue Ball there situate, unlawfully used the same for the purpose of betting with persons resorting thereto on certain events and contingencies of and relating to horse-racing; and further that the appellant Harry Harvey did at the same time and place aid and abet the appellant Buxton to commit the said offence. The said information was heard on the 14th July, 1908, and the justices convicted each of the appellants for having on the 28th April, 1908, committed the offences charged against eaoh of them. On the said 6th June, 1908, an information was preferred by the respondent against Hannah Maria Harvey, of the said Old Blue Ball Inn, Sheffield, innkeeper (hereinafter called “the licensee”), alleging that she did on the same days as aforesaid knowingly and wilfully permit the appellant Buxton so to use the said premises as aforesaid contrary to the Betting Act, 1853, which information, together with the information preferred on the 6th June, 1908, against the appellants, was heard and determined on the said 14th July, 1908, and upon such hearing the justices dismissed that information. Upon the hearing of the information against the appellants the following facts were admitted or proved : (a) That the licensee was the tenant and occupier of the Old Blue Ball publichouse; (5) that the appellant Harry Harvey was the son of the licensee, and resided with her and assisted her in the management of the said publichouse ; (c) that the appellant Buxton was a person frequenting and using the said publichouse ; (d) that the appellant Buxton used the said premises for tne purpose of betting with persons resorting thereto upon certain events and contingencies of and relating to horse-racing on nine days between the 20th April and 14th May, 1908—namely, the 20th, 21st, and 28th April, and the 2nd, sth, 6th, 9th, 12th and 13th May ; (e) that the licensee was present in and managing the said publichouse when the appellant Buxton used the same for the purposes of betting on six days between the 20th April and the 14th May,

1908 —namely, the 21st, 25th, and 28th April, and the sth, 9bh, and 12th May ; (/) that the appellant Harry Harvey was present when the appellant Buxton used the said premises for the purpose of betting on eight days between the 20th April and the 14th May, 1908 —namely, the 20th, 25th, and 28th April, and the 2nd, sth, 9th, 12th, and 14th May—and that he saw and knew that the appellant Buxton was betting thereon as aforesaid and permitted him to do so. Further, that he, the appellant Harry Harvey, received bets on horse-races with persons resorting to the said premises for and on behalf of the appellant Buxton, and also messages relating to the betting of the appellant Buxton, and otherwise aided and abetted him to use the said premises for the purpose of betting as charged in respondent’s information; but that on the 28th April, 1908, he, although he was present on the said premises and saw and knew that the appellant Buxton was betting thereon, took no active part in receiving bets or in assisting the appellant Buxton to do so. It was contended on behalf of the appellant Buxton that, inasmuch as the justices had not convicted the licensee of permitting the appellant Buxton to use the said premises for the purpose of betting, they could not in law convict him (Buxton) of the offence charged against him, and on behalf of the appellant Harry Harvey that inasmuch as the justices could not lawfully convict the appellant Buxton they could not convict him (Harry Harvey) of aiding and abetting the appellant Buxton. Although the justices did not consider that there was evidence to justify them in convicting the licensee of the offences charged against her which they held to be a personal offence, they considered that she had, through her servant the appellant Harry Harvey, so permitted the appellant Buxton to use the house for the purpose of betting as to justify them in coming to the conclusion that Buxton had an authorised consent on behalf of the occupier to so use the said premises. It was contended on behalf of the appellant Harry Harvey that there was no evidence upon which they could lawfully find that on the 28th April, he aided and abetted the appellant Buxton in the commission of any offence; but this was (a mere technicality of date, and other dates besides that were charged and proved. The justices were of opinion that the appellant Buxton was guilty of an offence under the said Act in that he did on the 28th April, 1908, use the said premises for the purpose of betting with persons resorting thereto, and that the appellant Harry Harvey was guilty of an offence under the said Act in that he did on the 28th April, 1908, aid and abet the appellant Buxton to commit the said offence. The question for the opinion of the Court was whether, upon the above statement of facts, the justices came to a correct determination in point of law. If they did, the conviction was to stand ; if they did not, the conviction was to be annulled.

Mr. H. T. Waddy, for the appellants, submitted that the conviction was wrong. In order to convict a person under section 3 of the Betting Act, 1853, of using premises for betting, where the user was of the premises generally and not of any particular part of them, there must be evidence of permission from the landlord or some one clothed with the landlord’s authority. In this case, on the material date, the'2Bth April, 1908, as the licensee was present in and was managing the house, there could be no devolution of authority to a servant. Buxton, as he had got no permission from the licensee, got no permission which could legally be given. Counsel referred to “Rex v. Deaville ” (19 The Times L.R., 223; [1903] 1 K. 8., 468); “Commissioner of Police v. Cartman ” (12 The Times L.R., 334 ; [1896] 1 Q. 8., 655); “Somerset v. Hart” (12 Q.8.D., 360); “ Bond v. Evans ” (21 Q.8.D., 249). Mr. Eldon Bankes, K.C. (Mr. S. Fleming with him), for the respondent, was not called upon. The Lord Chief Justice, in giving judgment, said that it was found as a fact that on several days, and in particular on the 28th April, 1908, Buxton resorted to the premises in question for the purpose of betting upon horseracing, and carried on his business there, and that the appellant Harry Harvey received the bets on behalf of Buxton, and otherwise aided and abetted him to use the premises for the purpose of betting. There was abundant evidence that Buxton used the premises for betting, and with the knowledge of Harry Harvey. It was said by Mr. Waddy, however, that in consequence of the justices’ finding as to there not being evidence that the licensee was guilty of the offence charged against her, and their finding that there was no evidence of Harry Harvey having authority from the landlady to permit Buxton to use the house, neither Buxton nor Harry Harvey could be convioted. The real point in Mr. Waddy’s argument rested upon what the justices meant when they said that they found that the licensee was the person managing the publichouse when Buxton used it for the purpose of betting. It had been strenuously contended by Mr. Waddy that that

finding ought to be construed as meaning that the landlady was managing the publichouse to the exclusion of any authority to Harry Harvey and of any license by him to Buxton to use the house. His Lordship could not so construe the justices’ finding. As to the finding that the justices did not consider that there was evidence to justify them in convicting the licensee of the offence charged against her, which they held to be a personal offence, his Lordship understood that to mean that the justices were not satisfied upon the evidence that on the 28th April the licensee knew that betting was going on. As to Harry Harvey, the justices had found that he resided with the landlady, his mother, and assisted her in the management of the publichouse. It seemed to his Lordship that the justices had in their minds the actual words of section 3 of the Betting Act, 1853 : “ . . . any person having the care or management of or in any manner assisting in conducting the business of any house ...” shall be guilty of an offence. Mr. Waddy contended that Buxton did not commit the offence, because the only licence was given to him by Harry Harvey. His Lordship would assume that permission was given to Buxton by Harry Harvey only. But Harry Harvey was a person assisting in the management of the premises which, in fact, were being used by Buxton for the purpose of betting, with the knowledge that the premises were so used on several occasions. There was no case to show that in those circumstances the person was not using the house in contravention of the Act, and that there was not that which amounted to a licence or permission to use the house for betting. Mr. Waddy contended that the contrary of this was practically involved in “Rex v. Deaville.” In that oase there were three persons involved, Albert Deaville, John Deaville, and Simpson. The Court quashed the conviction of Albert Deaville and Simpson, and expressly pointed out that the reason for doing so was because evidence had not been given that the occupier’s servant knew or saw what was going on. In Simpson’s case it was stated that no relationship existed between the defendant and the occupier. As to those two men, the Court thought the case was not distinguishable from casual customers making a bet. But in the case of John Deaville it was proved that he was present on each of the days in question and could see what was going on. The Court held that to be sufficient. He (the Lord Chief Justice) had there used the expression “occupier or his servants,” and Mr. Waddy contended that he went too far in using the words “ or his servants.” His Lordship did not agree that he had gone too far if the word servant was used as meaning a person who was left in charge and assisted in the management, and gave consent to a person coming to the premises to bet. It was abundantly clear by the distinction drawn by Lord Coleridge in “ Somerset v. Hart,” where he said this : “ Where no actual knowledge is shown there must, as it seems to me, be something to show either that the gaming took place with the knowledge of some person clothed

with the landlord’s authority, or that there was something like connivance on his part; that he might have known, but purposely abstained from knowing.” In this case the justices did not convict the licensee because they thought the offence was a personal one, and they found that the son, Harry Harvey, was assisting in the management, and knew all about what was going on, and the case came therefore within Lord Coleridge’s words because there was some one clothed with the landlady’s authority. In “ Bond v. Evans ” gaming had been carried on with the knowledge of the licensee’s servant, who was in charge. It was said by Mr. Waddy that there was a distinction between being in charge and assisting in the management. No such distinction ought to be drawn in the present case. The authorities all seemed to establish that a person who was in fact assisting and connived or aided and abetted the use of the place for betting was liable. The point taken for the appellants, therefore, failed, and the conviction must be affirmed. Mr. Justice Bigham thought that it was sufficient to dispose of the case to look at section 3 of the Betting Act, 1853. The purposes referred to in the section were to be found in section 1, and included using a house for persons resorting thereto making bets. He thought there was clear evidence in the present case that Harry Harvey was assisting in conducting the business of the house in question on the material date, and that he, therefore, came within section 3. He further thought that one of the purposes for which the house was then being used was betting, and that Harry Harvey knew of and permitted it. The only question was whether there was evidence to justify the conclusion arrived at by the justices, and in his Lordship’s opinion there was suoh evidence. Mr. Justice Walton delivered judgment to the same effect. [Solicitors —Chambers and Son and Arthur Neal and Co., for appellants ; Town Clerk, Sheffield, for respondent.]