Alyas v Edgar [2001] ACTSC 58 (15 June 2001)

Last Updated: 29 January 2002

MICHAEL ALYAS v ROY IAN EDGAR [2001] ACTSC 58 (15 June 2001)

CATCHWORDS

APPEAL - criminal law - appeal against conviction for cheating contrary to subs 77(1) of the Casino Control Act 1988- whether evidence capable of establishing elements of offence beyond reasonable doubt - no issue of principle.

Casino Control Act 1988, subs 77(1)

Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588

On appeal from the Magistrates Court

No. SCA 58 of 2000

Judge: Crispin J

Supreme Court of the ACT

Date: 15 June 2001

IN THE SUPREME COURT OF THE )

) No. SCA 58 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MICHAEL ALYAS

Appellant

AND: ROY IAN EDGAR

Respondent

ORDER

Judge: Crispin J

Date: 15 June 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The appellant appeals against a decision of Magistrate Campbell convicting him of an offence of dishonestly by sleight of hand obtaining for himself a benefit contrary to subs 77(1) of the Casino Control Act 1988. He was fined the sum of $400 and ordered to pay court costs and Victims Compensation Levy totalling a further $100. He has also appealed against the severity of that penalty.

2. The offence in question was allegedly committed at the Canberra Casino on 6 March 2000. The appellant was playing Blackjack at a table set aside for that purpose. He had been betting on the hands dealt to him by placing chips in the rectangular "box" on the cover of the table in front of him, and also betting on the hands dealt to two other players sitting beside him by placing chips in the boxes in front of them. The game in question had proceeded to the point where the dealer had dealt two cards to each of the players and one card to himself. The players on either side of the appellant had each been dealt an ace and another royal card. This combination of cards, referred to in the nomenclature of the game as a "Blackjack", was a winning hand. The appellant had been dealt a "9" and a "4" whilst the dealer had been dealt a "7". It was alleged that the appellant then removed one of the two $100 chips which he had placed in the square in front of him prior to the cards being dealt and replaced it with two $25 chips.

3. The learned Magistrate found that the only rational inference was that the defendant had reduced the amount of his bet because, having seen the cards dealt to him, he had concluded that the odds of winning had been tipped further against him. She found that he did so by "sleight of hand at a time when the dealer's attention was diverted" and that he thereby obtained a benefit consisting of the reduction of $50 in the potential loss on the transaction.

4. Ms Fraser, who appeared for the appellant, challenged the significant findings.

5. First, Ms Fraser submitted that the evidence had not been capable of proving to the requisite standard that the appellant had reduced the amount of his debt. She maintained that, whilst it was clear that he had taken a chip from the box and placed two $25 chips on top of the remaining $100 chip, the evidence was not capable of establishing that the chip which was removed had also been a $100 chip.

6. Ms Fraser submitted that the inspector, Mr Warland, would have been unable to see the chips because the dealer was sitting between him and the appellant and would have been in his line of vision. Mr Warland conceded that he was behind and "just off to the left" of the dealer but that did not mean that he was unable to see the chips. Indeed that proposition was not even put to him in cross-examination.

7. Mr Warland's evidence in chief was clear and unequivocal. He said that the appellant had a bet $200 "consisting of two $100 chips which are the black chips in the Casino". In contrast the $25 chips were green. It was not suggested that Mr Warland actually saw the substitution but he gave evidence of noticing that the chips in the box had changed:

"Immediately, straight after the two Blackjacks were paid out, I've realised that the centre bet, which was consisted of two $100 black chips, had gone from two black chips down to one black chip and two $25 chips on top."

8. In cross-examination he gave the following evidence:

"So you say there's the left box, the middle box and the right box? - Yes.

Mr Alyas is in the right box, in the middle box? - - - middle box

And he had bets on the left and right boxes which you believe to be $100. You're not certain of that are you? - - - 99 per cent sure.

Right. And that's because of the colour, was it? - - -Yes

Black? - - - Yes. He was only betting blacks that night.

Only betting blacks? - - - From what I saw until that incident.

And so can you say when whether he was not betting - he was betting any other colours? - - - Not - not what I saw when - I only saw it when it went down to $150, that's when I saw the two 25s go on top but most of the night he was betting $100 chips, black chips.

9. It may be noted that the last answer was given in response to a question about whether the appellant had been betting with chips of any colours other than black. The answer must therefore be understood to mean only that Mr Warland had not seen him use any chips other than black ones until he noticed the two $25 chips left on the single $100 chip.

10. Later in the cross-examination Mr Warland was asked:

And you say that you believed there was two chips and then it changed - or two black chips, then it changed to green chips? - - - One black and two greens.

And you're certain of that? - - - Yes, pretty sure.

How do you recall that? - - - As soon as - I turned around, as soon as I saw it I knew something was wrong. Two - two black chips went down to one black chip and two $25 chips.

Okay. Do you remember giving a statement to the police on 6 March this year? - - - Yes I do.

Do you remember saying to them, "Prior to the debts being paid, I saw that the player had two black chips placed on the bet directly in front of him." Do you further recall saying that, "During the time that the bets have been paid, I noticed that the player's chips had changed in colour from black to green". The player's chips had changed in colour from black to green? - - -

From one black to two greens.

11. Later in the cross-examination he conceded that he had not told the police that two chips had been replaced by three but agreed with the suggestion that he had said that "I saw the player's bet was now placed at 150 and not at $200".

12. In re-examination the following evidence was given:

Now, sir, my friend has asked you about your statement in which you said that you notice that the player's chips had changed in colour from black to green. It's your recollection that the chips changed in number from 2 to 3.

That was from 2 black chips to 1 black chip, and two red (sic) chips? - - - Correct.

And the value of that's $150. - - - Yes."

13. The dealer, Mr Tse, said that the appellant had been consistently betting $200 "on the box that he had control of" and that he had been doing so by means of $100 chips. He gave evidence of the Blackjacks obtained by the people on either side of the appellant and said that "As I was playing the Blackjack on the first box . . . I turned just to see the defendant bringing his hand back from his bet, the bet that was in play". He said that the appellant had decreased his bet.

14. In cross-examination Mr Tse maintained that the appellant had "consistently" bet the same amount on the box that he was controlling. When asked about the meaning of the word "consistently" he explained that he meant "Not every time, most times". He later added "more often than not he had a $200 bet".

15. In cross-examination Mr Tse agreed that he had made a statement to the police on 24 May 2000 and that his memory was then fresher than it was in August 2000 when he gave evidence. In cross-examination on that statement he gave the following evidence:

"On one particular hand I observed him place two $100 chips in front of him and also place chips on the hands either side of him". You then said "I then dealt the cards and the two hands either side of him have turned up Blackjacks". Would you agree with that? - - - I agree.

"I then began to play (sic - pay) these hands. I then observed the male take the chips in front of him and then remove his hands from the chips"?- - - Yes.

And that's the only thing you say to police about the chips isn't it? - - - It appears so.

At no time did you tell the police that when the game was finished there was one black chip and two green chips? - - -

Obviously not.

16. The video tape of the incident shows a hand, presumably that of the appellant, move forward, remove at least one chip from the relevant box and replace it with at least one other chip. However, the colour of the chips cannot be discerned with any clarity.

17. The appellant gave evidence that he had been unable to recall what chips he had placed in any of the boxes at the relevant time and despite the video tape was unable to recall the Blackjacks obtained on his left and right sides. He said that he could not remember why he touched the chips. However he knew that he should not have done so. He confirmed that he was playing mostly with black chips but could not recall how much he had bet on the particular box in front of him. When asked whether he had deliberately replaced a $100 chip with $25 chips he replied "I can't remember doing that, no".

18. In cross-examination the appellant conceded that he knew the rules of Blackjack well and was aware of the rule that he should not touch the chips. Despite that it was put to him that he had said in examination in chief that he had a nervous habit of touching the chips and he answered "I was playing with my chips, yes". He explained, however, that he was referring to the chips next to him rather than those in the box and said that he did not have any habit of touching the chips in the box. During further cross-examination he advanced the hypothesis that he may have put a lucky chip on his bet and/or "swapped the chip to make it a lucky chip probably". He agreed that he should not have done so but maintained that he did not think he would have reduced his bet at any stage during the play.

19. The appellant agreed that the video tape showed him replacing chips but he claimed that he had been doing it very slowly. He added "Yes, because there was no intention of cheating by doing that sort of movement. If somebody wants to cheat they do it quickly or do it somehow and discreet . . .". When the video tape was again played for him he added "See how very, very slow. There wasn't intention there of doing it quickly to cheat, as such". He later said, "Yes, but it's obvious I left my hand there when I change the chip. There's no such like quick movements to avoid being seen. Such - that's what I'm trying to say to you".

20. The learned Magistrate noted that the two prosecution witnesses had been trained to observe and record details of bets placed by players and found that both of them had been honest and frank. She referred to the evidence of the appellant and to the possible explanation that in the confusion of a fast game and the emotion of winning he had touched the chips to replace one with a lucky chip. However, she found this to be an "inherently implausible explanation from a man who considered himself to be a regular and experienced card player". Her Worship also noted that the appellant had given evidence that he had never previously been challenged in relation to any impropriety at a casino and that there was no evidence to the contrary. She indicated that she had taken his evidence of good character into account. Nonetheless, she accepted the evidence of Mr Warland and Mr Tse as to the events of the evening and their observations of the incident in question. She found that the appellant had reduced his bet during the course of the game.

21. Her Worship had the advantage of forming an assessment of the credibility of witnesses not only by reference to such factors as the internal consistency and plausibility of their accounts but also by her observations of their demeanour in the witness box. In Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472, Brennan Gaudron and McHugh JJ observed at 479:

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact . . . the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable"."

22. More recently in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588, Gaudron, Gummow and Hayne JJ cited at 589 the passage which I have quoted and observed that in the same case Deane and Dawson JJ had pointed out that "no short exhaustive formula, such as "glaringly improbable", meets every case". Their Honours noted at 607 that the fact that the trial judge had been heavily influenced by his impression of a witness did not necessarily preclude the Court of Appeal from concluding that, in the light of other evidence, the judge had had "too fragile a base to support a finding that a witness was unreliable". In the same case Kirby J referred at 617 to a "growing understanding . . . of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the . . . courtroom". His Honour suggested at 619 that there was a need for further attention as to precisely what advantages were enjoyed by trial judges over appellate courts.

23. In the present case, no adequate basis has been shown for impugning the findings of the Magistrate based upon the credibility of witnesses, and having regard to the whole of the evidence, I am satisfied that it was open to her Worship to find that the appellant had substituted two $25 chips for one $100 chip.

24. Second, Ms Fraser submitted that even if her Worship had been satisfied that the substitution of chips had led to a reduction in the bet she should not have been satisfied that the appellant had acted dishonestly. There had been unchallenged evidence that the appellant regularly played Blackjack, was familiar with the rules of the Casino and whilst he had lost about $7,000 playing at the Casino on the previous evening he had won over $4,000 on the night of the alleged offence. The appellant had also given evidence that he was aware of intensive surveillance at the Casino. Ms Fraser argued that in those circumstances it was unlikely that his actions were deliberate or accompanied by dishonest intent.

25. Ms Fraser argued that there were reasonable hypotheses consistent with the appellant's innocence. The appellant had been unable to recall why he had done what was recorded on the video tape because the incident had not been drawn to his attention for some time. He had been able to suggest only possible explanations for his conduct. She submitted that his failure to remember the incident was consistent with his innocence and his inability to provide a credible explanation could not be said to have revealed a consciousness of guilt. She also observed that the mere fact that the appellant had breached the rules of the Casino did not establish dishonesty on his part.

26. The incident occurred at about 2.20 am and the appellant had played until 4.00 am the previous night. On both nights he had been drinking free alcohol suppled to him at the Casino. Furthermore, he had been betting on three boxes at a time and this effectively tripled the speed of play which he was obliged to monitor. Preoccupation, the excitement of the game and a spur of the moment decision to substitute a lucky chip from an adjacent box provided alternate hypothesis which had not been excluded to the requisite standard especially when tiredness and the effect of the free alcohol was taken into account.

27. These matters were forcefully and capably argued. However having viewed the video tape several times and considered the evidence carefully I am satisfied that it was open to the Magistrate to find that dishonesty was established. As her Worship observed, the appellant was an experienced card player who was familiar with the game of Blackjack and accustomed to betting substantial sums. The appellant did not claim to have experienced any difficulties in following the game as a result of tiredness, the effect of alcohol or otherwise. The action shown on the video tape appears to have been a deliberate one, which if not carried out particularly quickly, effected the exchange of chips in a smooth and businesslike manner. That action was plainly carried out in breach of the rules of the game. Furthermore, it was carried out at a time when the appellant knew the cards that he had been dealt.

28. Ms Fraser submitted that there had been no evidence that the appellant was likely to lose or that the odds had shifted in favour of the dealer. However, he obviously knew that he had not drawn a Blackjack and that fact alone reduced the odds of winning from those prevailing prior to any cards being dealt.

29. In fact, the cards he had been dealt, "9" and a "4", added up to "13". That may have been significant because if he had drawn a third card and it had proved to be higher than an "8" it would have taken his total above "21" and he would have lost the bet. Conversely, a very low card might have left him with a total score that was too low to give him a substantial chance of winning and reduced the gap below "21" to the point where there was a strong probability that a fourth card would put him over that figure. If he had not taken any further cards his score of "13" would have been unlikely to have been sufficient to enable him to have won. The dealer had a "7" and a further card of "7" or above would have ensured that his total score surpassed "13", whilst a "2, 3 or 4" would have enabled him to take another card with complete safety and to have further improved his prospects. It is true that these matters were not canvassed in evidence but the conclusions seem to flow logically from the explanation by Mr Warford as to the rules of the game and the cards which may be clearly seen on the video tape.

30. In any event, the mere fact that the appellant, who was an experienced player, acted as he did after seeing the cards which he and the dealer had been dealt would have entitled the Magistrate to infer that the appellant, who was an experienced player, had concluded that the odds of winning had been tipped further against him. Her Worship was also entitled to take into account the fact that the substitution did not involve the replacement of one chip with another of equivalent value or with a series of chips having the same total value but rather a reduction in the value of the bet.

31. In short, it was open to her Worship to be satisfied to the requisite standard that the appellant had deliberately committed a breach of the rules of the game by reducing the amount of his bet after he had already seen the two cards dealt to him and knew that the odds of winning had been reduced. In these circumstances, the finding that the act had been committed dishonestly was, not only open on the evidence, but virtually inevitable.

32. Ms Fraser also submitted that the evidence did not establish that the act had involved "sleight of hand". In the context of the statutory definition of the offence I accept that this term means more than manual dexterity and refers to conduct committed in a stealthy manner or a manner calculated to avoid detection. Having viewed the video tape and considered the other evidence in the case, including the fact that neither the dealer nor the inspector actually saw the substitution, the Magistrate was satisfied to the requisite standard that the appellant's conduct fell within this description. Despite Ms Fraser's persuasive arguments to the contrary, I have concluded that it was open to her Worship to be satisfied of that element to the requisite standard.

33. Finally, Ms Fraser argued that the evidence did not establish that the appellant had obtained any benefit. She pointed out the game had not been completed and, at the time the substitution occurred, it was still possible for the appellant to win. However, there can be no doubt that in acting as he did the appellant reduced the potential loss on the bet and, in my view, the reduction of even a contingent liability is capable of constituting a benefit. It is true, of course, that the appellant also incurred a reduction in the potential winnings from the bet though, as I have mentioned, the odds had been tipped against him. However the concept of a benefit is not dependent upon the balance of advantages and disadvantages arising from a particular transaction being tipped in favour of the person concerned. Hence, both the person who buys a house and the person who sells it may be said to have obtained a benefit regardless of whether the house was objectively overpriced or underpriced. In the present case it was open to the Magistrate to be satisfied to the requisite standard that the appellant had obtained a benefit. Indeed, that conclusion was inescapable.

34. The maximum penalty prescribed by subs 77(1) for an offence of this kind is a fine equal to 500 penalty units and/or five years imprisonment. In this context, I see no reason to regard the imposition of a fine of $400 as unduly severe, even for a first offence.

35. For these reasons the appeal must be dismissed.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 15 June 2001

Counsel for the appellant: Ms M Fraser

Solicitor for the appellant: Horowitz & Bilinsky

Counsel for the respondent: Mr J Lundy

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 23 May 2001

Date of judgment: 15 June 2001