McCann v Butcher [1917] HCA 49

High Court of Australia|1917-07-01|Before: Powers JJ, Cwssen J, Barton J

McCANN Oh 0 e InFoRMANT, AND BUTCHER E s A . i ' . ReEsPon DEFENDANT,

H.C. or A, Gaming and Wagering - Street betting - * Street" - " Enclosed or wnenclosed ta 1917. in city or town - Police Offences Act 1915 (Vict.) (No. 2708), secs. 104, 106. -

ae ee Sec. 104 of the Police Offences Act 1915 (Vict.) provides (inter alia) 'Sept. 17 ee any person being in any street for the purpose of money being received by] Pag the consideration for an undertaking by him to pay themattenanaa Barton, any sporting contingency, shall be liable to a penalty. Sec. 106 p Gavan Duffy and if " Powers JJ. that the word " ' street' includes and applies to every road street thorou

fare highway lane footway or footpath on any public or private pro] and also extends and applies to any enclosed or unenclosed land (not inelu

day of March one thousand eight hundred and ninety-six was a city or to

Held, that the meaning of the words "enclosed or unenclosed land" sec. 106 is not limited by the context, and, therefore, that a person who, f the purpose mentioned in sec. 104, was in enclosed land within a city, wl land was used for foot-races and for admission to which a charge was was liable to the penalty thereby prescribed.

Decision of the Supreme Court of Victoria (Cwssen J.) : McCann v. Butehe (1917) V.LR., 214; 38 ALT, 171, rever

certain enclosed land known as Gurney's Running Ground, situ at the rear of Gurney's Hotel, Mount Alexander Road, within

to pay thereafter money on certain sporting contingencies, to foot-races to be run on the said ground. The evidence showed Gurney's Running Ground was enclosed by a fence and was under sec. 33 of the Police Offences Act 1915 as a running ound ; that on 26th January 1917 foot-races were being run there H "a prepared track in the presence of a large number of persons, being made for admission to the ground; and that the ndant was there making bets upon the foot-races. The inform- 1 was dismissed, the Police Magistrate being of opinion that the ition of " street" in sec. 106 of the Police Offences Act 1915 was intended to apply to a place such as Gurney's Running Ground, t nisi to review this decision was obtained by the informant ground that the Police Magistrate was wrong in holding that y's Running Ground was not a street within the meaning of e Police Offences Act 1915, On the return of the order nisi, Cussen charged it, holding that the words "any enclosed or un- land" in sec. 106 should be limited to places to which

rom that decision the informant now, by special leave, appealed to

, for the appellant. On the plain meaning of the definition "street" in sec. 106 of the Police Offences Act 1915, the place in

tion here is within it. The case of Sheahan v. Jackman (2) It solely with the meaning of "thoroughfare," and was not erned with the meaning of " any enclosed or unenclosed land." fact that the result of giving to those words their plain meaning

e (with him Cussen), for the respondent. The words " any or unenclosed land " in sec. 106 should be restricted to land

" street" and the words " any enclosed or unenclosed land " be limited to land which is used in the same way as a street or which people commonly pass. Division 7 of Part IV. of the / contemplates that betting on sports grounds is lawful, but on wide interpretation of sec. 106 it would be unlawful.

Barton J. In this case an information was laid, following terms of sec. 104 of the Police Offences Act 1915, alleging that defendant "was in a certain street, to wit certain enclosed | known as Gurney's Running Ground . . . within the municip district of the City of Melbourne, for the purpose of money bein received by him as the consideration for an undertaking by the said defendant to pay thereafter money on certain sp contingencies." By sec. 106 the word " street "" used in this info ation "includes and applies to every road street thorou highway lane footway or footpath on any publie or private perty, and also extends and applies to any enclosed or unencl land (not including houses and race-courses) within any municip district which on the sixth day of March one thousand eight hun and ninety-six was a city or town." The locality on which the off is alleged to have been committed is what is called Gurney's Run Ground, and is shown to be within the municipal district alle The question really is whether such a place as Gurney's Run Ground is within the second branch of the definition so as to be within the meaning of the Act a "street." Now, it is very p that fixing an artificial name for the description of a thing whic in common parlance does not answer to that name is a thing very commonly done, especially in Statutes. Cases are numerous which appellations are given to things, persons and circumstanc which they could not in ordinary conversation bear or be supp to bear. Therefore the fact that the word " street " is used to c a multitude of things which do not ordinarily answer to the di tion of a street is a thing very much to be expected, according the common practice of definition. Is this ground enclosed not being a house or race-course, within the City of Melbour That is the short question. If it is, it is a "' street " unless the m ing of the words of the definition has been entirely altered b

ke, and with great force, no doubt. This is a consolidating nd is a collection of enactments passed from time to time to various purposes, and it may very well be that Mr. Starke it in saying that, if the language of sec. 106 is construed strictly, things which it covers, or in some cases offences such as that

ous language of this Act. The words "enclosed or un- land (not including houses and race-courses) within any ipal district which on the sixth day of March one thotisand hundred and ninety-six was a city or town " are so clear as e unmistakable, and it would take an extraordinarily strong xt to show that they do not mean what they say. The

this definition might also be made subject to prosecution another part of the Act, cannot, to my mind, counter- clear language of the section.

m therefore of opinion that the information was erroneously d, and that the appeal should be allowed.

nat liberty to say that my brothers Gavan Duffy and Powers

Appeal allowed. Order appealed from dis- charged. Respondent convicted of the offence charged and fined £20, in default distress. Appellant to pay the costs of this appeal and of the proceedings below.

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Judgment (22 paragraphs)