Rowe v Davidson [1934] HCA 56; (1934) 52 CLR 321 (13 December 1934)

The respondent Davidson was charged on information that she did on 11th May 1934 at Melbourne sell a ticket in a lottery. The charge was laid under sec. 89 (f) of the Police Offences Act 1928 of Victoria, into which must be read the definition or interpretation of "lottery" and "ticket" contained in sec. 86. Further, a raffle at any bazaar is exempted from the provisions of the Act if the Attorney-General does not prohibit it (see sec. 88 (c)). But the decision of the Supreme Court in Murphy v. Murray[1] narrowly confined the limits of this exemption. It appears that the Mildura Hospital Committee promoted a bazaar in the Mildura Town Hall commencing on the 31st May 1934. It was proposed to raffle a motor car at this bazaar. Notice of the bazaar and proposed raffle was given to the Attorney-General, in acknowledging which, we were informed, he intimated that "unless your proposed raffle is conducted in strict accordance with the conditions laid down in the memorandum" forwarded with the intimation, "it is hereby prohibited." A body called the Mildura Citizens' Charity Trust was minded to assist the Mildura District Hospital Bazaar. It printed and distributed documents in the following form:

I, the undersigned, hereby authorize the Secretary of the Mildura Citizens' Charity Trust to pay the sum of one shilling (which said sum of one shilling the secretary hereby acknowledges to have received) into a trust account in the name of the said Mildura Citizens' Charity Trust On trust to retain same until the 31st day of May 1934, on which day he shall withdraw the said sum of one shilling from the trust account and purchase for me in my name, at the Mildura District Hospital Bazaar, one ticket in the raffle of a Morris Cowley saloon motor car, and I direct that the said ticket shall be held on my behalf by the secretary of the Mildura Citizens' Charity Trust, to be forwarded by him to me should I request him to do so. This authority is revocable at my option, and I am to be at liberty to demand a refund of the said sum of one shilling provided notice of such revocation reaches the secretary by registered letter before he has purchased the said ticket on my behalf.

On 11th May 1934, a constable of police entered premises in Elizabeth Street Melbourne and saw the respondent seated at a table. He also saw exhibited in a window a Morris Cowley saloon motor car, and some placards on one of which were printed the words: "A motor car for one shilling." There was also exhibited a photograph of a motor car, and on it were the words: "In aid of the Mildura District Hospital." The constable tendered a two-shilling piece to the respondent, saying: "I want a ticket in the raffle." She handed him a shilling change, wrote his address on a page in a book before her, and the constable at her request signed his name on the page in a space provided. The respondent then handed to him a carbon duplicate of the page, which was in the form already set out.

It looks, on the face of these facts, as if the Mildura Hospital Committee and the Mildura Citizens' Charity Trust combined together in a scheme for the lottery or raffle of a motor car. And if so, the document handed to the constable may well be a ticket within the interpretation given to that word in sec. 86. Again, sec. 92 provides that in any proceedings under the Act where the informant wishes in support of the charge to rely on the fact that any document or thing is a lottery ticket in a particular lottery, it shall be permissible and sufficient in proof of such fact to prove that such document or thing was bought or accepted under the belief that its possession or production conferred permission or authority on the purchaser holder of or person producing the same to throw or compete or have an interest in such lottery. It is not surprising that the constable who obtained from the respondent the document already set forth, on the payment of one shilling, deposed: "When I received the ticket I did so in the belief that the ticket gave me a chance to win the Morris motor car which was to be raffled at Mildura in aid of the Mildura Hospital." According to the Act, this is sufficient in proof, and the Court may act upon it. But it is not conclusive unless it stands alone (Taylor on Evidence, 11th ed. (1920), par. 1645, p. 1114). And it did not stand alone. The secretary of the Mildura District Hospital deposed as follows:—"There is no connexion between the Mildura Hospital Committee and the Mildura Citizens' Charity Trust, and I have never discussed the activities of the trust with Mr. Drummond the secretary of it. The Mildura Hospital Committee is running a bazaar in the Mildura Town Hall commencing on 31st day of May 1934. The raffle for the motor car is to be held at this bazaar. No tickets for the raffle of the motor car have been printed yet. The numbers on the form of authority would not correspond to the numbers on the raffle tickets. The tickets in the raffle will be sold during the bazaar. The Mildura Citizens' Charity Trust would not receive any commission for what they have done, and all the money the Mildura Citizens' Charity Trust received from the sale of these authorities would be paid to the Mildura Hospital Committee." The witness in cross-examination said that he would not issue a raffle ticket to any person producing one of these forms of authority, but would require payment of one shilling for each ticket issued, and that the holder of one of these forms of authority would have to look to the Mildura Citizens' Charity Trust for his ticket in the raffle. The evidence is not very convincing, and leaves a good deal unexplained. But it was accepted by the magistrates, and in the Supreme Court. It is thus established that the Hospital Committee and the Mildura Citizens' Charity Trust did not combine in any scheme for the lottery or raffle of a motor car. The document issued by the Charity Trust is not, on its face, a ticket which gives or purports to give any right or chance in any lottery or raffle; it is but a mandate to purchase a ticket.

The appeal should be dismissed. But I doubt whether the evil of holding raffles of unlimited extent is, as Martin J. feared, again a possibility. The respondent has been fortunate in the findings of fact, and proper investigation of the true relations of bodies promoting and assisting lotteries may well lead to different conclusions of fact in other cases.

The importance of this case in the administration of the division of the Police Offences Act 1928 devoted to lotteries is not likely to be so great as appears to have been supposed when the informant sought and obtained special leave to appeal from the decision of Martin J. upholding the dismissal of the information[2]. On examination, its proper determination turns out, I think, to depend not so much upon matters of law as upon special findings of fact which the magistrate must be taken to have made and upon evidence which he must be taken to have accepted. All reasonable intendments should be made to support his conclusion, and in view of the evidence we must regard the following state of facts as established. The committee of the Mildura District Hospital decided to hold a bazaar in the Mildura Town Hall, beginning on 31st May 1934, for the purpose of raising money for the hospital. They decided that at the bazaar they would hold a raffle of a Morris Cowley motor car, which, presumably, had been given for the purpose. The raffle was to be confined to the bazaar. All tickets for it were to be sold at the bazaar and it was to be drawn there. On a previous attempt to raise money for the hospital by the raffle of a motor car in connection with a bazaar, tickets had been widely sold before the bazaar, and, upon a prosecution, it had been decided by the Supreme Court that it was not within the exception of a "raffle at a bazaar," but an unlawful lottery (Murphy v. Murray[3]). In the case of the attempt to raise funds on 31st May 1934, the committee were or must be taken to have been unwilling to allow the conduct of the raffle to spread beyond the confines of the bazaar. But a body of citizens, apparently actuated by a desire to promote the welfare of the hospital acting, as it must be assumed, independently of the committee and without their authority or privity, determined to raise funds in advance by subscription in order that tickets in the lottery might be bought at the bazaar when it came to be held in the Mildura Town Hall on 31st May and the following days. To this end they formed a body called the "Mildura Citizens' Charity Trust." This "trust," through its secretary, caused to be printed books of numbered tickets in the following form:—

I, the undersigned, hereby authorize the secretary of the Mildura Citizens' Charity Trust to pay the sum of one shilling (which said sum of one shilling the secretary hereby acknowledges to have received) into a trust account in the name of the said Mildura Citizens' Charity Trust On trust to retain same until the 31st day of May 1934, on which day he shall withdraw the said sum of one shilling from the trust account and purchase for me in my name, at the Mildura District Hospital Bazaar, one ticket in the raffle of a Morris Cowley saloon motor car, and I direct that the said ticket shall be held on my behalf by the secretary of the Mildura Citizens' Charity Trust, to be forwarded by him to me should I request him to do so. This authority is revocable at my option, and I am to be at liberty to demand a refund of the said sum of one shilling provided notice of such revocation reaches the secretary by registered letter before he has purchased the said ticket on my behalf.

The "trust" set up a stand in a busy part of Melbourne where it exhibited a Morris Cowley motor car and invited subscriptions for tickets in the lottery. There it disposed of dockets in exchange for shillings. Each numbered docket consisted of foil and counter-foil separated by a carbon and expressed in identical terms. The subscriber's name was written on the upper one and appeared on the lower which was torn out and given to him.

The magistrate must be taken to have found that the docket was intended to have no other effect or purpose than that expressed on its face. If the raffle of the car fell within no exemption or exception, it would be a lottery within Division I. of Part IV. of the Police Offences Act 1928, and the collection of subscriptions for the purpose described by the docket would amount to an infringement upon sec. 89 (g), which makes it an offence to receive money for the purpose of the same being forwarded directly or indirectly to a person conducting a lottery. But sec. 88 (3) (c) provides that neither the provisions of sec. 88 nor of any other section in the Act shall apply to any raffle at any bazaar, the proceeds whereof are intended to be appropriated exclusively to charitable purposes, of which a notice having the name and address of any of the persons intending to hold such bazaar subscribed thereto has been given to the Attorney-General, if, within one week, the latter does not prohibit such raffle by notice sent to such address. The definition of in sec. 86 excludes raffles such as are referred to in this provision. The required notice was in the present case sent to the Attorney-General, who did not prohibit the raffle. It follows, in my opinion, that, if the raffle, notwithstanding the plan put into execution by the "trust," continued to answer the description "raffle at a bazaar," no prosecution lies. It was said that this criterion was not decisive, for each of two reasons. First, it was suggested that the "trust" disposed of a chance of obtaining the winning ticket, which made its plan an additional lottery engrafted on the raffle. But this suggestion is met by the fact that when the tickets are bought at the bazaar they are all of equal value and all confer an equal chance of winning the motor car. To obtain one ticket rather than another is not to gain a "prize" within the definition of in sec. 86. Secondly, it was contended that sec. 92 (1) supplied a conclusive presumption when proof was offered, as it was, that the document was accepted in the belief that its possession gave an interest in the lottery constituted by the raffle. There are two answers to this contention. Sec. 92 (1) ought not to be read as supplying a conclusive, but only a rebuttable, presumption. In any case its application, like all other provisions of the Act, is excluded when what otherwise would be a lottery is found to be a raffle at a bazaar. The question upon which the matter depends, therefore, is, as I have said, whether the raffle is a raffle at a bazaar. In my opinion, this question is answered when the fact is accepted that the trust acted without the privity of the Hospital Committee which conducted the raffle, or of any of its servants or agents, and that the docket truly expresses the transaction intended to be entered into with the person who takes it and pays his shilling. The transaction amounts to no more than the solicitation and collection of money for the purpose of buying on behalf of the subscribers tickets in a raffle at a bazaar. It might well have been found that the raffle and the collection of money were not operations independently conducted, but were concerted plans, that no motor car would have been raffled unless the plans were put into combined or simultaneous execution, and that neither those who gave nor those who took the dockets actually regarded them as mere authorities having no more significance than they expressed. But no such findings were made and it is not for us to make them.

On the facts which the magistrate's decision must be taken as establishing, I think the prosecution rightly failed.

In my opinion the decision of Martin J. was right and the appeal should be dismissed with costs.

The respondent was charged with the offence specified in sec. 89 (f) of the Police Offences Act 1928 in that she sold a ticket in a lottery to one Constable Casey. The latter paid a shilling to the respondent, and signed and accepted a ticket authorizing the secretary of the Mildura Citizens' Charity Trust to pay the shilling into a trust account on trust to retain it until May 31st, 1934, then to withdraw it and purchase, for Casey and in his name at the Mildura District Hospital bazaar, a ticket in the proposed raffle of a motor car. No relationship was proved between the Charity Trust and those controlling the Hospital bazaar. Under these circumstances it is clear that the true nature of the transaction was a scheme or device on the part of persons who joined together for the purpose, not of selling but of buying tickets in the raffle so soon as the bazaar came to be held. The police magistrate said at the conclusion of the evidence that the "ticket merely authorized an application for a ticket in a raffle which has not yet been held."

I agree with Martin J.'s view that "there is nojustification for holding that the substance of the transaction differs from the form"[4] and that the transaction between Casey and the respondent was not a transaction of sale or purchase at all.

It was contended that, under sec. 92 (1) of the Act, the receipt given to Casey was itself to be regarded as a "lottery ticket in a particular lottery." The sub-section provides that, where the informant wishes to rely on the fact that a document is such a ticket, it shall be

It is clear, and so much was practically conceded by Mr. Latham, that, while sec. 92 (1) gives an authority to prove a certain fact by an unusual method so that, when such proof is given, it shall be regarded as "sufficient" for the stated purpose, the appropriate tribunal is entitled to consider and act upon other evidence bearing on the point. The provision makes the proof not conclusive, but only "sufficient" evidence of the fact, so that here, where all the facts were placed before the Court, it was entitled to make its own findings upon all the points in issue.

In my opinion the judgment of Martin J. was right and the appeal should be dismissed with costs.

In my opinion the appeal should be dismissed. I have read the judgment of my brother Dixon and agree with it.

[1] (1931) V.L.R. 89.

[2] (1934) V.L.R. 237.

[3] (1931) V.L.R. 89.

[4] (1934) V.L.R., at p. 240.

High Court of Australia

Rowe v Davidson [1934] HCA 56; (1934) 52 CLR 321 (13 December 1934)

HIGH COURT OF AUSTRALIA