Heyward v Gaming Commission of Western Australia - [1999] WASC 16

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HEYWARD -v- GAMING COMMISSION OF WESTERN AUSTRALIA [1999] WASC 16

CORAM: McKECHNIE J

HEARD: 23 APRIL 1999

DELIVERED : 23 APRIL 1999

PUBLISHED : 13 MAY 1999

FILE NO/S: CIV 2328 of 1998

BETWEEN: BERNARD RICHARD HEYWARD
Plaintiff
AND
GAMING COMMISSION OF WESTERN AUSTRALIA
Defendant

Catchwords:

Declaratory relief - Matters which might amount to a criminal offence - No agreement on facts - Discretion to give declaratory relief - Applicable principles

Legislation:

Gaming Commission Act 1987 s42, s43A

Result:

Declaration refused

Representation:

Counsel:

Plaintiff: Mr P B O'Neal
Defendant: Ms C F Jenkins

Solicitors:

Plaintiff: Zilkens & Co
Defendant: State Crown Solicitor

Case(s) referred to in judgment(s):

Commissioner of Corporate Affairs v Sansom (1981) WAR
Inglis v Moore (1979) 24 ALR 411
Munnich v Godstone Rural District Council (1966) 1 All ER 930
Sankey v Whitlam (1978) 142 CLR 1

Case(s) also cited:

Collins v Cooper (1893) 68 LT 450
Csidei v Anderson [1977] 1 NSWLR 747
Dowling v Bowie (1952) 86 CLR 136
Imperial Tabacco Ltd v A-G (UK) [1981] AC 718
R v Adams (1935) 53 CLR 563
R v Herrod [1974] 3 All ER
R v Herrod, Ex parte Leeds City District Council [1976] 1 All ER 273
Re Mosport Park Ltd v Clarington (Municipality) (1994) 116 DLR (4th) 763, Ont Div Ct
Tahapi Pty Ltd v Avery (1986) 6 NSWLR 138
Vines v Djordevitch (1955) 91 CLR 512
Walker v Leeds City Council [1976] 3 All ER 709
Wyld v Silver [1961] 3 All ER 1014

McKECHNIE J : The plaintiff seeks to invoke the jurisdiction of this court to grant a binding declaration of right. The declaration sought is by way of an originating motion and the declaration is:
(1) A declaration that a laughing clown amusement when used by the plaintiff at the Wanneroo Weekend Mega Markets situated at 33 Prindiville Drive, Wangara while said market is operating and open to the public on its usual trading days is a permitted amusement as defined by the Gaming Commission Act 1987.
The affidavit of the plaintiff sworn on 2 December 1998 in support of the application deposes in paragraph 3 that he is the sole proprietor of the business known as Bernie's Amusements, that he was born in 1938 and from approximately 1956 to 1973 was a member of the West Australian Showmen's Association Incorporated and during that time worked as a showman. In 1973 he moved interstate and his membership lapsed. He deposes further:
"In April 1995 I started operating amusements in a section of the market and in June 1996 I started operated a laughing clown amusement at the market.
The market is open every Saturday and Sunday and on Mondays that are public holidays. All persons who have stalls or other activities at the market are obliged to open on the market days."
Specifically by paragraph 5 he deposes as follows:
"The defendant has alleged that I am contravening the Act by operating the laughing clown amusement at the market. Specifically:
(1)I have been told by Colin Nichol, the manager of the market, that on 22 September 1998 Assistant Gaming Inspector M. Connolly of the Office of Racing, Gaming & Liquor advised Colin Nichol that operation of the laughing clown amusement contravened the Act and prosecution may result.
(2)By a letter dated 10 November 1998 Director D I Halge of the Office of Racing, Gaming & Liquor advised my solicitors, Zilkens & Co, that the laughing clown amusement should be removed from the Market by Sunday, 22 November 1998 or proceedings against me will be initiated."
He has further deposed that the laughing clowns stall at Wanneroo is the mainstay of his business.
On 22 December 1998 White J indicated that he would grant the plaintiff an interlocutory injunction pending the trial. The defendant thereupon gave an undertaking to take no further steps pending this hearing.
The originating summons raises for consideration the construction and interpretation of parts of the Gaming Commission Act 1987 and in particular the expression "pleasure fair" in s43A. There is also raised a question whether the laughing clown amusement operated by the plaintiff is a game of chance under section 42(1)(e)(iii) or a game of chance and skill combined in which skill is the predominant factor, s42(3).
Specifically the Act provides under s42, Unlawful Games:
"(1) Subject to subsection (3) the conduct of gaming by means of or playing of – "
and there is listed a series of games including (1)(e)(iii) -
"(iii)except where subsection (3)(b) applies, any game of chance at any public place to which the public have or are permitted to have access;
is prohibited."
Subsection (3) provides an exception. It states:
"(3) The prohibition declared in subsection (1) shall not have effect in relation to the playing of –
(a)games with prizes being games of chance and skill combined in which skill is the predominant factor where‑
(i)the games are played at an agricultural show, a pleasure fair, a fete, or another like event; and
(ii)the opportunity to win prizes at those games is not the only, or the only substantial, inducement to attend the show, fair, fete, or other event;"
There follow other exceptions with the Act. Subsection (4) provides that any person who is knowingly concerned in the conduct of an unlawful game commits an offence; penalty, $2,500 or imprisonment for 6 months or both. Thus can be seen the two questions which I have described as arising for consideration in the originating summons.
The defendant's outline of submissions raises the question whether the court should decline to exercise its discretion to embark upon a consideration of whether to grant a declaration and as it turns out this matter has been argued as a preliminary point.

Jurisdiction to grant a declaration

The jurisdiction of the court to grant a declaration is not in issue. The court's powers are very wide. In some circumstances the power to make a declaration will advance the law. In Sankey v Whitlam (1978) 142 CLR 1 Gibbs ACJ pointed out at p21 that most of the cases in which declarations have been made in matters which could have been or were the subject of criminal proceedings were cases where the criminal offence consisted of a breach of a regulatory provision such as a failure to comply with an administrative requirement, a planning provision or a by-law.

Principles when declaration is in respect of possible unlawful conduct

It would seem that this issue is the alleged breach of a regulatory provision. Munnich v Godstone Rural District Council (1966) 1 All ER 930 was such a case although in that case the Master of the Rolls, Lord Denning, expressed caution about contested issues of fact when he said at p933:
"The courts have in recent years been ready to use the machinery of declaration far more than they used to do and it has proved most useful; see, for instance …"
and he there cites a number of cases -
"But it must not be carried too far. If this were a case where a defendant was seeking to reverse a finding against him on the facts we should not entertain it for a moment. We should then take guidance from Lord Devlin in Connelly v Director of Public Prosecutions (5):
'… it is absolutely necessary that issues of fact that are substantially the same should whenever practicable, be tried by the same tribunal and at the same time … No system of justice can guarantee that every judgment is right, but it can and should do its best to secure that there are not conflicting judgments in the same matter.'
Those words are specially apt when the issue is one of fact. When property rights, however, come into question, it may be different."
That case was also considered by the full Federal Court in Inglis v Moore (1979) 24 ALR 411. That was a case where Mrs Inglis sought to bring proceedings for a declaration that certain persons had been guilty of conspiracy. St John J at p415 of the report, after dealing with the passage in Munnich v Godstone Rural District Council to which I have just referred said:
"Even if I were wrong as to whether or not such an application would be within the ambit of declaratory relief, I am confident that a court would never exercise its discretion in favour of granting such relief. What, in effect, would happen if such an application were allowed to proceed would be that a defendant in civil proceedings would be found to have committed a crime without having the various advantages which are afforded him in a criminal trial."
At p421 of the report in the joint judgment of Brennan and Davies JJ, after dealing with what was sought by Mrs Inglis, it was said:
"Although it cannot be said that a declaration that conduct constitutes a crime will never be made."
and refers to Sankey v Whitlam –
"the discretion to make declarations of that kind is cautiously exercised. Some of the grounds of caution are referred to in Gouriet v Union of Post Office Workers [1978] AC 435; [1977] 3 All ER 70, where Lord Wilberforce said in reference to the civil remedy of an injunction to restrain the commission of crime (AC at 481; All ER at 83):-
'… where Parliament has (as here in the Post Office Act 1953) provided for trial of offences by indictment before a jury, it may seem wrong that the courts, applying a civil standard of proof, should in effect convict a subject without the prescribed trial. What would happen if, after punishment for contempt, the same man were to be prosecuted in a criminal court? That Lord Eldon LC was much oppressed by these difficulties is shown by the discussions in Attorney-General v Cleaver (1811) 18 Ves Jun 211.
These and other examples which can be given show that this jurisdiction – though proved useful on occasions – is one of great delicacy and is one to be used with caution'."
As I again point out, the situation with the present case is somewhat different because here the plaintiff is seeking to invoke the jurisdiction of this court in order to protect himself from a prosecution. Nevertheless, the result of any declaration will necessarily involve a decision on the balance of probabilities as to the lawfulness or otherwise of conduct which parliament has prescribed as an offence.
In Commissioner of Corporate Affairs v Sansom (1981) WAR Burt CJ said at p36:
"It is now well established that the power of this court to make a declaration of right under O18 r16 is 'a very wide one' and 'it is clear enough that the power of the court is not excluded because the matter as to which a declaration is sought may fall for decision in criminal proceedings'. See Sankey v Whitlam (1978) 21 ALR 505, at 512, per Gibbs J, and the authorities therein referred to. Nevertheless within that area it is a jurisdiction to be exercised with caution: Inglis v Moore (1979) 24 ALR 411 at 421. And in the cases a clear distinction is made between a case in which the plaintiff seeks a declaration that acts not yet done by him but which he wishes to do and has an interest in doing will, if done, not constitute a breach of the criminal law on the one hand and a case in which he seeks a declaration that acts done do not constitute a criminal offence on the other hand. The capacity to make a declaration in the former case 'contributes enormously to the utility of the jurisdiction'. Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 at 305, per Barwick CJ. In the latter case the conduct has taken place and the question whether that conduct offends against the criminal law can as well be litigated in defence of a prosecution and the 'principle that, in general, matters of criminal law should be dealt with at trials for alleged offences' – Commonwealth v Sterling Nicholas Duty Free Pty Ltd, supra, at 311 of the report, per Menzies J – finds a ready application."
In this case the parties have filed a number of affidavits. No application has been made for evidence to be taken orally or for cross‑examination of the deponents.
The plaintiff relies in part on the evidence of Mr Hanslip. Mr Hanslip is a scientific consultant and a mathematician. In an affidavit sworn 29 January 1999 he attached and adopted a report which he has prepared. That report entitled "Laughing Clowns Games" deals, first of all, with the game of probabilities and after dealing with certain aspects of the probability theory states:
"All the above is predicated on pure chance ie, the player has his eyes shut. This is the same as betting on a roulette wheel. Intelligent anticipation is examined below –"
and then he proceeds to explain why that is including the fact that the player is not blind and can devise a strategy based on observation of the time taken by the ball to go from the clown's mouth to the exit and the velocity of the ball at the moment of exit. He then deals with the estimation of velocity and judgment of time noting these are the common features of absolutely all ball games and there is here no difference in kind. He deals with further probabilities and concludes in the last two paragraphs of his report before the graphs:
"If the first ball gets a six instead of a one then the player changes strategy and aims for the six from the other end of the arc. The odds for this latter are the same as aiming for the one from the left-hand end. Case then renders the corresponding odds of:- 1707:1; 3952:1; 4723:1; 441:1; 1565:1; 200:1.
Given a capacity for learning the odds of 160:1 up are far better than Super 66 at 1,000,000:1, Lotto at 8,145,060:1. Littlewoods' Football Pools have the 'Treble Chance' where one has to pick eight draws from about 55 matches so that when there are only eight draws the odds are 450 million to one. As it is customary for all participants to get a prize on the Laughing Clowns I cannot understand what the fuss is about."
I do not take the last comment to be part of his expert opinion.
The defendant in response filed an affidavit of Mr Rowles. That affidavit dated 10 February 1999 annexed a report that he prepared. Specifically at paragraph 1 he says:
"The models proposed in Hanslip's affidavit are approximations to the facts controlling the skill level (strategy) that could improve the players chances from 2 in 59,049 to 1 in 160 approximately.
While I do not necessarily agree with Hanslip's assessment of the exact improvement in the chance of winning a substantial prize, for the sake of examining the argument I assumed that his figures, as calculated, are close to the actual expectations."
Then working on that basis he points out a number of matters which he does not consider to have been taken into account by Mr Hanslip and concludes:
"I conclude that irrespective of the improvement made in any degree of learned skill, (1 in 160 being quoted as the best expectation), the game is predominantly one of chance."
It can be seen at this point there is an issue between the plaintiff and defendant as to whether this game is predominantly one of skill or predominantly one of chance
In response to that affidavit the plaintiff filed a further affidavit of Mr Hanslip sworn 25 February 1999 which referred specifically to Mr Rowles' affidavit and what he referred to as the Rowles' report. He specifically takes issue in paragraph 3 with a number of matters pointed out by Mr Rowles and at paragraph 4 says:
"With respect to Mr Rowles' overall observations I say that no-one would ascribe a bull's eye achieved by a Bisley marksmen - I refer to the Bisley shoot equivalent of the World Cup for shooters - as a matter of chance just because the bullet flies through the air. Similar to firing a bullet, releasing a ball, requires timing and estimation which are essential to the result. Skill becomes the predominant factor."
In response to that affidavit the defendant filed a further affidavit from a Dr Thomas John Dickson who is a subdean and senior lecturer in the Department of Mathematics at the University of Western Australia. Dr Dickson refers to the report of Mr Hanslip. At the third‑last paragraph of the first page he says:
"This means that the probability of five balls all landing in box 3 is – "
and then quotes the number - ie, approximately 1 in 260,00 -
"…as opposed to Mr Hanslip's claim of approximately (1/9) ^5 i.e. approximately 1 in 60,000. While there are clearly other factors still to be considered (eg, probability of the ball bouncing off one of the dividers into a neighbouring box), the most important factor to allow for when calculating probabilities with random release of balls is the basic motion of the pipe which biases towards the end boxes so the probabilities above will be far closer to the truth than Mr Hanslip's simple assumption of 'equally likely outcomes'."
He then deals with Mr Hanslip's models of the probability distribution for a skilled player before concluding:
"It is clear that a player who is able to estimate the optimal release time to achieve a desired outcome and who is able to control that release well can improve the odds of obtaining the major prize to some extent. However, it would take a considerable amount of playing the game to be able to do so and, even then, how much those odds would improve will depend considerably on the variability of the delivery time created by the bouncing of the ball within the delivery pipe and other variables such as bouncing off divider walls etc. Which we have not discussed. I have no observational data to estimate the extent of these effects but I see no reason to disagree with Mr Rowles' comments that these are the factors which would dominate and that any improvement that a skilled player can achieve would be minimal, particularly given that the odds against winning the major prize with a random release are exceptionally high to start with."
In response to that affidavit the plaintiff has filed a further affidavit from Mr Hanslip on 21 April 1999 where he states in paragraph 1:
"The purpose of my various reports filed in my affidavits in this matter has been to answer the question as to whether or not the game of laughing clowns owned and operated by Bernard Heyward is a game of skill or chance or mixed skill and chance, and to what extent if any, skill plays a part in it."
He there follows his observations on two occasions and concludes his opinion at paragraph 12:
"The skills of the game of the laughing clowns are:
(1)to drop the ball cleanly so it doesn't strike the dividers between the boxes;
(2)to drop the ball at the optimal time for the box and score sort; and
(3)to change strategy, that is, the score on the box sort, depending on the total score obtained by previous balls."
He goes on to say at paragraph 13:
"All games have some element of chance. However, there is no difference in kind between the laughing clowns, darts, quoits or marksmanship. In the case of marksmanship, elements such as crosswinds, for which allowance must be made, introduce an element of chance. In the case of the laughing clowns, it is the passage of the ball down the tube, again, for which allowance can be made after observation."
I have cited those affidavits because it is clear to me, contrary to the plaintiff's submissions this morning, that there are very live issues of fact as to whether the laughing clowns amusement game is a game of chance or a game of chance and skill in which skill is the dominant factor; those issues being, it seems to me, essential for determination.
The plaintiff has argued, in effect "Well, in the end those opinions may not carry much weight because it is the opinion of the court". So much is trite, but nevertheless this court can only make a decision on evidence which is put before it and an evaluation of that evidence. It seems to me difficult if not impossible to evaluate the various and competing claims of the expert witnesses on either side just from their reports, untested by cross‑examination, and without elucidation by oral evidence.
The plaintiff has not sought an application for oral evidence.

The application of the principles to this case

The discretion to make a declaration in respect of potentially criminal conduct is always to be exercised with caution. That caution is compounded when the declaration will, as here, cover conduct which is past rather than simply potential conduct. The fact that there are contested issues of fact to be determined makes the caution such that I should exercise a discretion to refuse to make any declaration. The fact that the evidence will not be orally tested is a further factor. It will, as I say, be difficult to resolve the dispute on the papers alone.
I am mindful of the plaintiff's long involvement with the laughing clown amusements, his desire to do what is right and to avoid prosecution. In seeking this originating summons he has taken the honourable step. However, my firm opinion for the reasons I have expressed is that in these circumstances the court, in discretion, should decline to make the declaration sought.