Bond v Foran

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.