Bond v Foran - [1934] HCA 53

52 CLR 364

COMPLAINANT, FORAN Gaming-Unlawful gaming-Place used for purpose of unlawful gaming-Meaning

of " used "-Occupier-Mens rea-Lottery and Gaming Act 1917-1930 (S.A.) (No. 1285-No. 1986), sec. 63.*

On a hot New Year's Day holiday a plainclothes policeman, in a very crowded bar room, watched a bookmaker for five minutes. During this time the book. maker stood in the bar room of licensed premises with his back to a door which had been nailed up. Through a small orifice in the door from which the lock had been removed, the bookmaker was able to, and did, communicate with a recorder on the other side of the door. During the period of observation the bookmaker took six bets. It was not established that either the licensee or those in charge of his bar were aware that betting was going on there. The licensee was the "occupier" of the licensed premises within the meaning of the Lottery and Gaming Acts 1917-1930 (S.A.), and was charged with being the occupier of a place used for the purpose of unlawful gaming.

Held that there was no evidence that the premises had been "used 11 for unlawful gaming.

Powell v. Kempton Park Racecourse Co., (1899) A.C. 143, applied. * Sec. 63 of the Lottery and Gaming

(3) No person shall be the occupier of Act 1917-1930 (S.A.) provides :-

any such house, office, room, or place

52 CLR 365

52 C.L.R.]

OF AUSTRALIA. Held, further that mens rea was an essential ingredient of the offence with which the licensee was charged.

Decision of the Supreme Court of South Australia (Full Court): Foran Bond, (1934) S.A.S.R. 323, affirmed.

APPEAL from the Supreme Court of South Australia.

A complaint was laid against John Foran in a Court of Summary Jurisdiction in South Australia. The complaint alleged (inter alia) that the defendant was the occupier of a certain place to wit the premises known as Grange Hotel situate at the corner of Jetty Street and Esplanade at Grange aforesaid which said place was used for the purpose of unlawful gaming. Contrary to the provisions of sec. 63 of the Lottery and Gaming Act, 1917 to 1930." Foran was the licensee of the Grange Hotel, and was the "occupier" thereof within the meaning of the Lottery and Gaming Acts 1917-1930 (S.A.). The evidence against him was that a plainclothes policeman had observed a bookmaker in the bar room of the hotel on a hot New Year's Day holiday. The period of observation was five minutes only, and during that time the bar room was very crowded. The bookmaker was seen to be standing in the bar with his back to a door which had been nailed up. This door had a small orifice from which a Yale lock had been removed, Through the orifice the bookmaker was able to communicate with a confederate on the other side of the door. While watched by the policeman the book- maker took six bets. These were announced through the hole in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bond v Foran

Details

AGLC: Bond v Foran [1934] HCA 53
Case: [1934] HCA 53
Decision Date: 13 December 1934

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of South Australia concerning a charge against John Foran, the licensee of the Grange Hotel, for being the occupier of a place used for unlawful gaming, contrary to section 63 of the Lottery and Gaming Acts 1917-1930 (S.A.). The prosecution's case was based on evidence that a bookmaker had taken six bets in the hotel's bar room over a five-minute period on a busy New Year's Day. The bookmaker communicated bets to a confederate through a small hole in a nailed-up door. The magistrate convicted Foran, finding the hotel to be a "place" and that it had been "used" for unlawful gaming, and holding that mens rea was not an essential element of the offence.

The legal issues before the High Court were whether the hotel premises had been "used" for unlawful gaming within the meaning of section 63, and whether mens rea was a necessary ingredient of the offence charged. The complainant argued that the legislation was intended to prohibit unlawful gaming and that the omission of the word "knowingly" from the relevant section indicated that mens rea was not required. The respondent contended that mens rea was a fundamental element of such offences and that the evidence did not establish the necessary "use" of the premises for unlawful gaming.

The High Court, by majority, dismissed the appeal. The Court applied the principles established in *Powell v. Kempton Park Racecourse Co.*, holding that for a place to be considered "used" for unlawful gaming, there must be a localisation of the betting operations, akin to establishing a pitch or stand for the business. The evidence of a bookmaker taking a few bets in a crowded bar, without any indication of the licensee's knowledge or consent, or the appropriation of a specific area for betting, was insufficient to establish such a use. Furthermore, the Court determined that mens rea was an essential ingredient of the offence. It reasoned that the Act was a consolidating statute and that the omission of the word "knowingly" from the current section, when it was present in earlier legislation, did not indicate an intention to remove the requirement of knowledge. The Court found that making an occupier liable without fault would represent a drastic and unintended alteration of the law.

The appeal was dismissed.

Orders