LAW REPORTS.

New Zealand Police Gazette, Volume XXXVII, Issue 49, 11 December 1912, Page 668

LAW REPORTS.

(“ New Zealand Law Reports,” Vol. xxxi, page 962.) [Election Court. Blenheim (Williams and Chapman, JJ.)— l9th March, 1912.] In re Wairau Election Petition (No. 2). Evidence — Solicitor's Privilege—The Legislature Act, 1908, Section 202 — Application. Section 202 of the Legislature Act, 1908, does not apply to the case of a solicitor claiming his privilege not to divulge information given to him by his client for the purpose of obtaining advice, or the advice given on such information, but refers only to cases where the privilege claimed is strictly a privilege of the witness himself by which he could, if he wished, in an ordinary civil suit divest himself and give evidence. Election petition. During the hearing Mr. Sinclair, counsel for the petitioners, sought to examine George Percival Rogers, barrister and solicitor, with reference to certain matters upon which he had been asked to advise, and relied upon section 202 of the Legislature Act, 1908, as negativing the witness’s claim that the matters were privileged. Skerrett, K.G., for the respondent, objected to the questions. Williams, J., delivered the judgment of the Court (Williams and Chapman, JJ.) as follows : The opinion of the Court is that section 202 of the Legislature Act, 1908, does not apply to this case, Mr. Rogers was consulted by a client, who must, of course, have given information for the purpose of obtaining advice, and Mr. Rogers would, of course, give certain advice. If there is one duty more sacred than another on the part of a solicitor it is that he should not divulge what a client has told him or what he has advised a client. The Legislature and the Courts have always recognized this to be the case. It is not merely the privilege of a solicitor that he should not divulge what took place between his client and himself, it is a solemn obligation on his part. Section 202 of the Act, when it says that a witness should not be excused on the ground of privilege, can only, in our opinion, mean where the privilege is strictly a privilege of the witness himself, of which he could, if he wished, in an ordinary civil suit divest himself and give evidence. But in an ordinary civil suit a solicitor cannot get rid of the obligation of silence. If the remaining provisions of section 202 are looked at, it will be seen that they support the view already stated. Even if the question were admissible, it is doubtful if the evidence is relevant.

In our opinion, therefore, section 202, does not release a solicitor from his duty not to divulge information given to him by his client for the purpose of obtaining advice, or the advice given on such information. The question is therefore disallowed. Solicitor for the petitioners : W. Sinclair (Blenheim). Solicitor for the respondent : G. H. Mills (Blenheim).

(“ New Zealand Law Reports,” Vol. xxxi, page 964.) [S.G. In Banco. Invercargill—(Williams, J.) — 31st May, 1912. J Adamson v. Aitken. Impounding — Cattle depasturing on Roads —“ Unfenced ” The Impounding Act, 1908, Section 17, Subsection 4 (c). The word “unfenced” is used in section 17, subsection 4, paragraph (c), of the Impounding Act, 1908, in a different sense from that in which the words “ fence ” and “fenced” are used in other parts of the Act and in the Fencing Act, 1908. If there is an actual fence which separates a road from the adjoining land, and which is intended to prevent the free passage of cattle from the land to the road, then the road is not unfenced within the meaning of section 17, subsection 4 (c), although the fence may not come to the standard required by law to enable an occupier of land to recover for cattle-trespass. Appeal from the decision of G. Gruickshank, Esq., S.M., at Invercargill. The facts are sufficiently stated in the judgment. W. Macalister for the appellant. Rattray for the respondent. Cur. adv. vult. Williams, J.:— Section 17 of the Impounding Act, 1908, enables persons duly authorized to impound any cattle found wandering at large, or straying in or lying about or tethered in any road. Subsection 4 of section 17, however, enacts that the section is not to apply in the cases there specified. By paragraph (c) of subsection 4 the section is not to apply “ to cattle owned by any person in the lawful occupation of land if they are depasturing on roads which are unfenoed on either or both sides and are bounded on both sides by the land of such ocoupier.” If this paragraph be read by itself without reference to any statutory definition of the word “ unfenced ” the meaning is perfectly clear. If there is no erection which in fact separates the road from the land occupied, so that cattle can pass without hindrance from the land to the road, the road is unfenced. If, on the other hand, there is an actual fence which separates the road from the land, and which was intended to prevent the free passage of cattle from the land to the road, the road is not unfenced, although the fence may not come up to the standard required by law to enable an occupier of land to recover for cattle-trespass. Does, then, the interpretation of the words “fence” and “fenced land” in section 2 of the Act apply to the word “ unfenced ” in paragraph (c), and compel the Court to place a different construction on that paragraph? By section 2, “ ‘Fence’ and ‘fenced land’ respectively mean a sufficient fence, and land enclosed within such a fence, acording to the meaning of any Act for the time being in force relating to fencing.” The main object of the Fencing Act was to enable an occupier to compel the adjoining occupier to join with him in the erection and maintenance of a fence. By the interpretation clause of the Fencing Act, 1908, “fence” means “a sufficient fence of any of the kinds mentioned in the schedule separating the land of different occupiers.” The object of the Impounding Act, so far as relates to the sufficiency of fences, was to give the occupier of land fenced with a sufficient fence as defined by the Fencing Act a higher right in the event of cattle trespassing than he would have had if it were not so fenced. The question of a sufficient fence under the Fencing Act is a matter between adjoining occupiers, and under the Impounding Act between an occupier of land and trespassers. “ Fenced land ” means land enclosed within a fence, and the road does not come within that definition, because a road is not enclosed. The word “unfenced” in the paragraph is used in quite a different connection from that in which the words “fence” and “fenced” are used in the other parts of the Impounding Act and in the Fencing Act. It bears no relation to the rights of the occupier of land as against his neighbour or as against trespassers. There is no reason, therefore, why the word “unfenced” in the paragraph should receive the same construction as it would receive in the cases above mentioned. In my opinion, the natural meaning of the para-

graph, apart from any statutory definition, is as I have stated above. If that be so, the definition is in fact inconsistent with the context, and by section 2 of the Aot the definitions there given apply only where they are not inconsistent with the context. The case of Olsen v. Bailey (6 N.Z. L.R. 713), referred to in the judgment of the Magistrate, is clearly distinguishable from the present case. I think, therefore, that the appeal must be allowed, and the case remitted to the Magistrate with a direction to convict. Costs, £4 4s. Solicitors for the appellant: Macalister Bros. (Invercargill). Solicitors for the respondent: Rattray & McDonald (Invercargill).

(“ New Zealand Law Reports,” Vol. xxxi, page 1003.) [S.C. In Banco. Palmerston North—(Chapman, J.)— 7th and 14th June, 1912.] DudDY V. CoNNOLLEY. Gaming Offences —Bookmaker Betting on Racecourse The Gaming Act, 1910, Section 2, Subsection 2. The Magistrate found with respect to the respondent, upon an information laid under section 2, subsection 2, of the Gaming Act, 1910, charging him with betting on a racecourse, he being a bookmaker, that certain entries in a race-book found in his possession when arrested were entries of bets made by the defendant with persons who had backed particular horses with him against the field. On this evidence he found that the respondent was a bookmaker, but he held that the evidence which proved the status of the respondent could not be looked at to prove the fact of betting upon which the prosecution relied. Held, on appeal to the Supreme Court, That the Magistrate was right in finding that the respondent was a bookmaker, but wrong in law in holding that the evidence could not be relied upon as proof of betting, and that the case must therefore be remitted to the Magistrate with a direction to convict. Appeal by way of case stated from a decision of A. D. Thomson, Esq., S.M., at' Palmerston North. The facts and the substance of the Magistrate’s decision appear from the judgment of Chapman, J. Loughnan for the appellant. Cooper for the respondent. Cur. adv. vult. Chapman, J.: — Appeal by way of case stated from the dismissal by A. D. Thomson, Esq., S.M., of an information laid under section 2, subsection 2, of the Gaming Act, 1910, for that the respondent on the 20th of January, 1912, being a bookmaker, did bet on a racecourse—to wit, the Foxton Racecourse. The Magistrate found it proved that the respondent was a bookmaker, but dismissed the information on the ground that it was not proved that as a bookmaker he had committed the offence of making a bet. By section 2 of the Gaming Act, 1908, “bookmaker” means “ any person who acts or carries on business as a bookmaker or turf commission agent, or who gains or endeavours to gain his livelihood wholly or partly by betting or making wagers, and includes a bookmaker’s clerk or agent.” This was laid down in an Act in which to some extent the calling of a bookmaker was recognized as a lawful calling, as one of the provisions of the Act obliged such persons to take out licenses to enable them to follow their calling upon a racecourse. The Act of 1910 is an amending Act which sweeps away this provision and creates the offence described in the conviction. It is therefore necessary to find two things proved—namely, first that the accused is a bookmaker, and secondly that being a bookmaker he made a bet on a racecourse. In the first place, it is necessary to observe that the interpretation I have set out does not really attempt to define what a bookmaker is. It extends the meaning of the term to persons who are not bookmakers, and it sets out certain indicia by means of which an offender may be proved to be a bookmaker, but it assumes that what ordinarily constitutes a man a bookmaker is a matter of common knowledge. A man who acts as a bookmaker is a bookmaker. A bookmaker, I am assured, is a person who “lays the odds” or “ takes the field,” leaving it to his customer to select the horse he wishes to back at an agreed rate. The Magistrate found that the respondent, being on the racecourse, was seen to give money to one person and receive money from three others. He was arrested, and in his possession was found a race-book or programme. In it were found eight separate entries and a calculation of the totalizator dividend on one race, showing that the respondent had made eight separate bets with seven separate persons

in which he had backed the field against horses selected by those persons. The Magistrate adds, “ I found as a fact that the said entries were all entries of bets made by the defendant with persons who had backed particular horses with him against the field, and that this evidence proved the defendant to be a bookmaker.” In so finding the Magistrate was unquestionably right. He is the proper person to weigh the evidence, and he was fortified by finding that the respondent had falsely stated that these entries were entries of money he had paid away as wages for flax-cutting. The Magistrate further holds that evidence which proved the status of the respondent cannot be looked at to prove the fact of betting on which the prosecution relied. In his written reasons which accompany the case he states that there is no evidence relating to history previous to the making of these bets proving that the respondent was a bookmaker, and expresses the opinion that the statute contemplates the case of a man who bets after having acted in such a way as to constitute him a bookmaker. I think that this is a misapprehension of the effect of the statute. Sets of facts are given which when in evidence prove a man to be a bookmaker. The Magistrate is not asked to consider when he became a bookmaker, and need not encumber himself with such an inquiry. A man may be a bookmaker one day and not a bookmaker the day before or the day after: the sole question is whether he is a bookmaker at the time when the alleged offence was committed. The investigation is somewhat analogous to that which has at times been followed in order to determine whether a man is a hawker requiring a license. In Rex v. Little (1 Burr. 609) it was held that a conviction which found a single act of selling did not find a man to be a hawker, and was bad. It may be that a single instance of acting as a bookmaker would suffice, because of the terms of the statute; but what is to be made out in either case by means of appropriate evidence is the existence of a status at the moment charged. Other cases in which such a status has to be and has been made out by appropriate evidence are The King v. Turner (4 B. & Aid. 510) ; Dean v. King (4 B. & Aid. 517); The King v. Buckle (4 East, 346). In the last case the conviction was for selling silver plate without a license. It was held that the statute only related to selling in the course of trade, not to a single sale. In The King v. Turner (4 B. & Aid. 510) the accused was convicted of “trading” though he had sold nothing. It was found that he had conducted himself in all respects as a trader save that he had not yet sold anything. In this case the only evidence of the respondent acting as a bookmaker was the making of bets and the paying and receiving of money. It seems to me, however, that, though necessary in this particular case, acts of the kind are not necessary in all cases. Evidence must be forthcoming to prove the status, and that is all. It may consist of preparations, acts, or declarations, and even of acts done subsequently to the moment of making the bet charged. When the evidence is sufficient to establish the status, that status is a proved fact not referable exclusively to any particular moment of time. If the prosecutor had been asked to specify the particular bet on which he relied he would probably have specified the last proved to have been made. I do not think, however, that he would have been forced to do so. Having proved the status with reference to the whole time during which the respondent was betting and doing other acts connected with the calling of a bookmaker,

I do not see why he should not have relied on any one of the bets made. If there were any doubts on this point it must be dispelled after a couple of bets have been made, because of the right of the prosecutor to rely on a series of acts forming part of a system continuing after the one relied on in proof of the respondent’s occupation. It was argued that the Magistrate’s decision had found as a fact that no bet had been made after the respondent acquired the status of bookmaker. I do not think that the Magistrate has found any such fact. He has expressed an opinion to that effect as a matter of law, with which I am unable to agree. He has, however, found all the facts upon which a conviction ought to ensue, and for this reason I think that the appeal must be allowed, and the case remitted to the Magistrate with a direction that it is his duty to convict the respondent. Appeal allowed. Costs, £6 6s. Solicitors for the appellant: Tae Crown Law Offioe (Wellington). Solicitors for the respondent: Bell, Gully, & Cooper (Palmerston North).