v.

PRIOR.

1905. in a public place with his back against a wall. In the Queen v. SHERWOOD Humphrey ([1898] 1 Q.B. 875) the defendant habitually invited men to bet with him at a gateway opening into a street, and was convicted. In the case of Powell v. Kempton Park Race Co. ([1899] A.C. 143) the bookmakers did not use any one particular spot, and did not localise themselves. The Company owned the land, and allowed men to use it for the purpose of betting inter se, but there was no localisation of any bookmaker's betting business in any portion of the enclosure, and that was the chief reason for the decision: see 1899 A.C. at 161, 195. All the Judges in that case were of opinion that the enclosure was capable of being a "place" within the meaning of the section; see 162 at page 172. Lord Hobhouse shows how a place "is of the same genus or nature as a house, office, or room." He also referred the Court to pages 193, 194, and 196 of that case; to Brown v. Putch ([1899] 1 Q.B. 892); Potter v. Thomas (19 N.S. W.L.R. 170 at 175 and 177), where the Chief Justice says-" Suppose a stranger to Sydney asked where he could find a person with whom he could bet, he would be told if you go to this lane you will find a bookmaker ready to bet with you.' There would be a defined place just as much as a house, room, or office is a defined place." That remark is very pertinent to this case. Further, there is a difference between our Statutes and the English Statutes. The preamble to our Act is much wider than the preamble to the English Act. There is not the same necessity to limit the word " place" in our Act as the Judges thought necessary under the English Act.

Lamb, for the defendant, the respondent. The question is does this Act aim at such a case as this, that is, betting in a street. A public lane or street, as used in this case, cannot be a place" within the Act. "Place" must be a place which is capable from its condition of being used by a person as if it were his house or office: Powell v. Kempton Park Racecourse Co. ([1897] 2 Q.B. 242 at 257). It is not capable of being so used if the person using it has not a right to use it peculiar to himself; Doggett v. Catterms (34 LJ. C.P. 159); Shaw v. Morley (3 L.R. Ex. 137). The respondent is not charged with using a particular

spot, but a "place," to wit, a right-of-way. The Act does not make betting in itself illegal. It is not sufficient to show that the defendant was betting in a "place" to bring him within the Act. The place must be capable of being used as an office. There must be a structure and user. There cannot be a user of a lane so as to constitute it a "place." In Powell v. Kempton Park Racecourse Co. ([1899] A.C. 143 at 193) Lord James of Hereford said, "Something must exist that can at least constructively be regarded as a common gaming house." How could a public street be regarded as a common gaming house. All the cases where it has been held that, if the bookmaker used a box, umbrella or stool, he was using a place, would have been decided the other way if the box or umbrella stool, &c., had not been there: Powell v. Kempton Park ([1897] 2 Q.B. 242 at 268, 278). If Mr. Pickburn's contention that a man who locates himself in one particular spot must be convicted, is right, then the bookmaker who stood betting in one particular spot on a racecourse would be liable under the Act. Whereas, if he carried on his betting walking about he would not be liable. That is absurd. The fact that the bookmaker uses the place frequently is not sufficient: Kempton Park Case ([1899] A.C. 143 at 160, 169.

[THE CHIEF JUSTICE. In the Kempton Park Case ([1899] A.C. at 196) Lord Jumes of Hereford says, " I think the statement of the same learned counsel that 'a place must be a place where a man according to the ordinary usages would be found,' is correct."]

Lamb. If that was the test, then the Kempton Park Case would be wrongly decided, because a bookmaker could always be found at Kempton Park. Kempton Park was held not to be a "place" because the bettor had no dominion or control: see the judgment of Lord Esher, M.R. ([1897] 2 Q.B. at 257); for the same reasons this public lane cannot be a "place," because a man has no right of user peculiar to himself and no control. A racecourse is not within the Act, a fortiori, a public lane is not see also Lord Lindley's judgment at 262. In Bell v. Bell (17 W.N. 177) Cohen, J., drew the distinction between the street being the place" and the place in the street being the "place."

In

1905.

SHERWOOD

V.

PRIOR.

1905.

Potter v. Thomas (19 N.S.W.L.R. 170) the lane was a private lane, SHERWOOD and the defendant had a right to use it as against the public.

V.

PRIOR.

October 27.

The other cases cited by Mr. Pickburn shew clearly that it is the spot localised that is the "place," and not the lane. He also referred to Hawke v. Dunn ([1897] 1 Q.B. 579 at 591); Waters v. Cox (6 N.S.W.L.R. 113). If the Court will refer to the other sections in the Act where the word "place" is used it will be seen that the word cannot apply to a public street. See ss. 4, 6, 10, 15, 16. The case of R. v. Humphrey and McInaney v. Hildreth referred to by Mr. Pickburn were decided before the decision of the House of Lords in Powell v. Kempton Park Racecourse Co., and the case of R. v. Deaville also relied upon by him is in my favour.

Pickburn in reply. In the stool, umbrella, and box cases the Judges said that without these articles the decisions would have been different, because in those cases there were large open areas, and there was no other way to localise them; but in this case there was a small lane a few feet wide, and the defendant always used the corner.

On October 27th,

Cur. ad. vult.

THE CHIEF JUSTICE. This was a special case stated by a Magistrate, and the question raised is whether it is possible by habitual user to fix a spot in a public lane so as to be a "place" within the meaning of ss. 17 and 19 of the Act No. 18 (1902).

The information alleged that the defendant did use a place, to wit a right-of-way off King-street, Sydney, known as Bank Court, for the purpose of money being received by the defendant as and for the consideration for the promise to give thereafter certain money on a contingency relating to a certain horse race called the Warwick Farm Handicap, thereafter to be run. The Magistrate having heard evidence, dismissed the complaint for the avowed reason that the place referred to in the information being a public lane, could not be a "place" within the meaning of s. 19 of the Games, Wagers and Betting Houses Act of 1901.

The evidence showed that Bank Court was a right-of-way off King-street, in this city; that it was a blind lane, i.e., a cul

de sac, about 25 or 26 yards long, and about 12 feet wide. There was a branch off to the right, which branch off was about 10 yards long and 9 feet wide. There was a back entrance in this lane to houses fronting King-street and George-street. One witness (Constable Ward) stated that he knew the place intimately for some months, and had never seen carts passing down the lane, other persons (witnesses for the defence) stated horses and carts did use the lane. Constable Ward stated that he had seen the defendant in the lane continuously for the past two months, standing on a spot which he marked as A upon a plan shown to him. He further stated that opposite to the spot marked A was a flight of steps leading into a room which was described by one of the witnesses for the defence as a "betting shop," and which he stated was there for three or four years. It is quite clear that what took place was as follows:-Persons desirous of betting came up this lane, went into the room, where they obtained all information about the races and horses from persons in the room and from announcements on black boards, &c., and then leaving the room, they found the defendant outside, a few feet from the steps leading to the room, and they made the bet with him, he receiving the money and giving them a ticket showing the amount to which the holders would be entitled should the horse win (copies of these tickets are set out in the special case). This was the course pursued with respect to Ward and to several other persons both on the day Ward betted with him and on other days. The fact that betting was carried on in the way indicated was not denied; the only contention being that the place where the betting took place was not a "place" within the meaning of the Act. Sect. 17 of the Act is worded as follows: "No house, room, or other place shall be opened, kept or used at any time for the purpose of any money or valuable thing being received by or on behalf of the owner, occupier or keeper, or any other person whosoever as or for the consideration for (a) Any assurance, undertaking, promise, or agreement, express or implied, to pay or give thereafter any money or valuable thing on any event or contingency of or relating to any horse race or other race, fight, game, sport or exercise, etc., etc."" Sect. 19 then provides that: "Whosoever opens, keeps, or uses any house, office, room, or other place for

1905.

SHERWOOD

บ.

PRIOR.

The C.J.

1905. any of the purposes mentioned in s. 17, etc., etc., etc., shall be SHERWOOD liable to a penalty," etc., etc., etc. In Powell v. Kempton Park

บ.

PRIOR.

The C.J.

Racecourse Co. ([1899] App. Cas.) Lord James, at p. 191, states the history of the Betting Houses Act of 1853 (16 & 17 Vic. cap. 119). Sects. 1 and 2 of that Act are in effect in the same terms as ss. 17 and 19 of the Act of 1901. He says: "In relation to the origin of the Act, I concur in the statement made by Hawkins, J., in the case of Reg. v. Cook (13 Q.B.D. 377). It appears that shortly before the passing of the Act of 1853 a system of ready money betting had sprung up in the metropolis and the larger provincial towns Houses, offices and rooms were opened for the sole purpose of carry on this betting business; public houses were also utilised for effecting the same object. In these places lists giving the names of horses entered for different races were exposed to view. Against the names of horses in these lists figures were placed showing the odds the betting man or bookmaker carrying on the betting business was willing to lay against each horse. These betting places were open to the public in the same way that a shop is kept open. Anyone wishing to back a horse would have to deposit the sum of money he desired to risk with the person in attendance, receiving a card recording the transaction. Such a course of betting of course represents what is termed ready money betting. These list houses became so numerous, and the betting carried on in them became so extensive that the Government of the period determined to deal rigidly with the evils resulting therefrom, and to suppress, by rendering illegal, those list houses." Now in what particular does the case before the Court differ from the description given by Lord James. We have the list room with all its concomitants. True, the bet is not made in the room, but all information is there furnished, and a few feet from the door of the room is a man habitually standing in the same spot who receives the money manifestly in accordance with the information furnished in the list room, for it does not appear that he affords any information. He receives the money and hands the man making the bet a card recording the transaction.

The question still remains-was the place where the defendant habitually stood a "place" within the meaning of ss. 17 and 19