Supplement to The Queensland Law Reporter, May 12, 1922.

ORDER NISI FOR QUASHING ORDER.

The appellant was convicted of using a common betting house, and was fined (vide The Criminal Code, s. 233, set out on pp. 92, 93).

An order nisi, calling on the Chief Police Magistrate, who heard the case, and the complainant to show cause why the conviction should not be quashed, was granted by Chubb J. on several grounds, but counsel, on the motion to make absolute the order nisi, relied only on the ground that there was no evidence to support the conviction.

The material evidence is set out in the judgment.

H. D. Macrossan moved the order absolute. The Gaming Act of 1850 (14 Vic., No. 9), The Suppression of Gambling Act of 1895 (59 Vic., No. 9), ss. 10, 15; The Criminal Code, s. 233. On construction of the statute, Reid v. Wilson and Ward (1), Dyke v. Elliott (2), Dickenson v. Fletcher (3). As to the meaning of "place," Scott v. Cawsey (4). A right-of-way cannot be a place under s. 233, unless some part of it was appropriated by defendant for himself. The conviction is not consistent with Prior v. Sherwood (5), Wright v. Smith (6), Henretty v. Hart (7), Powell v. Kempton Park Racecourse Co. Ltd. (8), Draper v. Kenneally (9), McCann v. Fitzpatrick (10), McCann v. Morgan (11), R. v. Lannon (12).

Fahey showed cause. The case is governed by R. v. Lannon (13). Prior v. Sherwood (14) was decided on different words in another statute, and is distinguishable. Powell v. Kempton Kempton Park Racecourse Co. Ltd. per Lord Esher (15), per Lord James (16), Shaw v. Morley (17), Bows v. Fenwick (18), Liddel! v. Lofthouse (19), Gallaway v. Maries (20), Brown v. Patch (21), Bell v. Bell (22), R. v. Humphrey (23).

F.C.

BOOKLESS V.

BUCK, Ec

parle BUCK.

F.C.

BOOKLESS v. Buck, Ex parte BUCK.

Shand J.

The judgment of the Court was delivered by

SHAND J. This is a motion to make absolute an order nisi granted under the provisions of s. 209 of The Justices Act of 1886, and calling upon the respondent Bookless and the Chief Police Magistrate to show cause why a decision of the Chief Police Magistrate, whereby the appellant Buck was convicted of using

a common betting house," and was fined £20, and ordered to pay 3 guineas costs, should not be quashed.

Of the grounds upon which the order nisi was granted, Mr. Macrossan, in the argument betore this Court, relied only upon the alleged absence of any evidence to support the conviction.

Now, it appeared from the evidence that a right-of-way, 8 feet wide, leads from Mary Street, Brisbane, into vacant land. This right-of-way is entered from Mary Street by a double gate, which is considerably wider than the right of way, and is bounded thence on the left hand side by some galvanised iron buildings at the corner of May and Albert Streets, and further on by other buildings fronting Albert Street, and having back entrances into the right of way. On the opposite, or right-hand side, the right-of-way is bounded by vacant land.

There is nothing to distinguish the right-of-way from the vacant land into which it leads, or the vacant land by which it is bounded on the right-hand side, and the whole of such vacant lands are themselves surrounded on all sides by buildings or fences.

Of these buildings, a shed, with two doors opening towards the right-of-way, is erected on the right-hand side of the right-of-way some few feet back from the right-of-way and some few feet distant from the gate by which the right-of-way is entered from Mary Street, and in this shed a portion of the wall is specially prepared, so as to enable it to be used as a blackboard on which words and figures can be legibly written.

Now, in our opinion, there was ample evidence that on several days between the 1st and 12th of November, 1921, persons desirous of betting came in by the gate in Mary Street, went into the shed, where they obtained information about the races and horses from announcements on the blackboard or prepared surface of wall, and then went to the right-of-way, where they found the appellant and others standing; that such persons then made bets-in some cases, with the appellant himself, in other cases with one of the others-and when bets were made with

Supplement to The Queensland Law Reporter, May 12, 1922.

one of the others, the appellant gave to the person betting the ticket which would enable him to claim his winnings if he won his bet.

There was also, we think, ample evidence that the appellant and the others who remained standing in the right-of-way were associated with each other in the betting business which was being carried on in this manner, and were using the shed and blackboard therein for the purposes of this business, and there was no evidence that a betting business was being carried on by persons not associated with them.

Counsel for the appellant, Mr. Macrossan, contended that in these circumstances the appellant could not be convicted of using a common betting house within the meaning of s. 233 of The Criminal Code.

As we understood him, his contention was that, even supposing that the shed might have been regarded as a common betting house, if the bets had been made therein, there was no evidence that any bets were made anywhere but in a public right-of-way, and that a public right-of-way cannot be a common betting house or used as such.

Mr. Macrossan relied most strongly upon the New South Wales case of Prior v. Sherwood (1), but that case was decided on the language of a different Act, and upon different facts from those which have to be considered in this case.

Section 4 of The Suppression of Gambling Act of 1895 provides, "In this Act, unless the context otherwise indicates the term 'place' means any house, office, room, tent, resort, or other place in or out of an enclosed building, vessel, or premises, whether upon land or water, whether private property or otherwise."

So far as we are aware, none of the Acts which had to be construed in any of the cases cited to us contained any similarly wide definition of the word "place."

In Part III. of the same Act, which is headed" Betting Houses," s. 15 provides: "It shall be unlawful to open, keep, or use any place for the purpose of the owner, occupier, or keeper thereof, or any person using the same, or any person procured or employed by or acting for or on behalf of such owner, occupier, or keeper, or person using the same, or of any person having the care or management, or in any manner conducting the business thereof, betting with persons resorting thereto; or for the purpose of

(1) 1906, 3 C.L.R. 1054.

F.C.

BOOKLESS v.

BUCK, Ex parte BUCK.

Shand J.

supplement to ine Queensland Law

1922.

F.C.

BOOKLESS v. BUCK, EX parte BUCK.

Shand J.

:

any money or other property being received by or on behalf of such owner, occupier, keeper, or person as aforesaid, as or for the consideration for an assurance, undertaking, promise, or agreement, express or implied, to pay or give thereafter any money or other property on any event or contingency of or relating to any horserace or other race, fight, game, sport, or exercise, or as or for the consideration for securing the paying or giving by some other person of any money or other property on any such event or contingency as aforesaid; and every place opened, kept, or used for the purposes aforesaid, or any of them, is hereby declared to be a common nuisance and contrary to law." Section 16 provides: "Any place opened, kept, or used for the purposes aforesaid, or any of them, shall be a common gaming house within the meaning of the Act of Council passed in the fourteenth year of Her present Majesty, intituled An Act to Amend the Law concerning Games and Wagers." And s. 18 provides "Any person, being the owner or occupier of any place opened, kept, or used for the purposes aforesaid, or either of them, or any person acting for on behalf of any such owner or occupier, or any person having the care and management or in any manner assisting in conducting the business thereof, who shall receive directly or indirectly any money or other property as a deposit on any bet on condition of paying any sum of money or other valuable thing on the happening of any event or contingency of or relating to a horserace or any other race, or any fight, game, sport, or exercise, or as or for the consideration for any assurance, undertaking, promise, or agreement, express or implied, to pay or give thereafter any money or other property on any such event or contingency, and any person giving any acknowledgement, note, security, or draft on the receipt of any money or other property so paid or given as aforesaid, purporting or intended to entitle the bearer or any other person to receive any money or valuable thing on the happening of any such event or contingency as aforesaid, shall be guilty of an offence, and shall be liable upon conviction to imprisonment, with or without hard labour, for any time not exceeding three calendar months, or to a fine not exceeding fifty pounds, or to both imprisonment and fine.

Section 233 of The Criminal Code under which the charge against the appellant was laid provides :

"233. (1) Any house, room, or place, which is used for any of the purposes following, that is to say

(1) For the purpose of bets being made therein between persons resorting to the place and-(a) the owner, occupier, or keeper of the place, or any person using the place; or (b) any person procured or employed by or acting for or on behalf of any such owner, occupier, or keeper, or person using the place; or (c) any person having the care or management or in any manner conducting the business, of the place; or

(2) For the purpose of any money or other property being paid or received therein by or on behalf of any such owner, occupier, or keeper, or person using the place, as or for the consideration-(d) for an assurance, undertaking, promise, or agreement, express or implied, to give thereafter any money or other property on any event or contingency of or relating to any horserace, or other race, fight, game, sport, or exercise, or (e) for securing the paying or giving by some other person of any money or other property on any such event or contingency;

is called a common betting house.

Any person who opens, keeps, or uses, a common betting house is guilty of a misdemeanour, and is liable to imprisonment with hard labour for three years.

"Or he may be summarily convicted before two justices, in which case he is liable to imprisonment, with hard labour, for one year and to a fine of five hundred pounds.

(2) Any person, who, being the owner or occupier of any house, room, or place, knowingly and wilfully permits it to be opened, kept, or used as a common betting house by another person, or who has the use or management, or assists in conducting the business of a common betting house, is guilty of an offence, and is liable on summary conviction to imprisonment, with hard labour, for one year, and to a fine of five hundred pounds."

Now, in our opinion, having regard to the previous enactments in pari materia above quoted, the word "place," in s. 233 of The Criminal Code must receive the same wide interpretation as that which is given to it in s. 16 of The Suppression of Gambling Act of 1895.

We think, therefore, that a specific area of land is none the less capable of being a "place" within the meaning of s. 233 of the Code, and of being used as a common betting house, because a

F.C.

BOOKLESS v.

BUCK, Ex

parte BUCK.

Shand J.