GAMING AND WAGERING COMMISSION ACT 1987 - SECT 39
GAMING AND WAGERING COMMISSION ACT 1987 - SECT 39
39 . Evidentiary provisions for charges of offences
(1) In any proceedings
under this Act or for an offence under The Criminal Code —
(a) it
shall not be necessary to prove the appointment of the Minister or a member of
the Commission, and all courts and persons acting judicially shall take
judicial notice of a signature attached or appended to a document purporting
to be issued under this Act if the signature purports to be that of a person
who at the relevant time is or was the holder of such an office, unless the
contrary is proved; and
(b) a
document signed by a member of the Commission stating that at the time or
during the period stated in the document —
(i)
a person named in the document was an authorised officer
or an inspector of soccer football pools for the purposes of this Act
generally or for such of those purposes as are specified in the document; or
(ii)
an approval was granted, a permit or certificate was
issued, a requirement was made, or a direction or notice was given, or was in
force or had effect, or had been amended, or was not in force or was of no
effect, in relation to the circumstances specified in the document, or had
been served on any person, under this Act,
shall be evidence of
the facts stated and, in the absence of evidence to the contrary, conclusive
evidence; and
(c) a
document or writing purporting to be a copy of any approval granted or permit
or certificate issued, or of any requirement made or direction or notice
given, under this Act shall be evidence of the approval, permit, certificate,
requirement, direction or notice of which it purports to be a copy and, in the
absence of evidence to the contrary, conclusive evidence; and
(d) an
averment that —
(i)
a person is of a specified age or is under or over a
specified age; or
(ii)
that any premises at which an offence was committed was a
place to which an approval, permit or certificate applies or did not apply; or
(iii)
a specified game is of a kind essentially similar to a
game of another specified kind; or
(iiia) a
specified game is a game that is commonly played in casinos (whether in
Australia or elsewhere) or is a variation or derivative of such a game; or
(iv)
in proceedings against a person in his capacity as the
holder of a permit or certificate, that the person is the holder of a
specified permit or certificate; or
(v)
a person is a person to whom a permit or certificate was
not issued,
shall be evidence of
the facts stated and, in the absence of evidence to the contrary, conclusive
evidence; and
(e)
where an authorised officer, a member of the Police Force, or a person acting
at the request of an authorised officer or member of the Police Force, enters
into any gaming or wager and another person is charged with an offence arising
out of the gaming or wager, on the hearing of the charge the authorised
officer, member of the Police Force or person acting on request —
(i)
is deemed not to be an accomplice of the person charged
and not to be guilty of an offence; and
(ii)
may give evidence,
and his evidence shall
be deemed not to be the evidence of an accomplice; and
(f) a
person may be convicted on the uncorroborated evidence of an accomplice, and
shall not be acquitted by reason only that the only evidence is the
uncorroborated evidence of an accomplice unless the truth of that evidence is
suspect; and
(g) an
act, admission or statement of an employee or agent of a person charged with
an offence is admissible as evidence, whether it is done, made or given in the
presence of that person or not; and
(h)
where an element of an offence is an act or omission on the part of the permit
holder a prosecution for such an offence may be commenced against an
individual approved and appointed as the nominee permit holder on behalf of a
body of persons; and
(j) the
authority of a person to accept service of documents under this Act on behalf
of another shall be presumed in the absence of evidence to the contrary.
(2) For the purposes
of this Act —
(a) in
determining whether a game, which is played otherwise than against one or more
other players, is a game of chance the possibility that superlative skill can
overcome the element of chance shall be disregarded, except for the purposes
of section 42(3)(a); and
(b) it
is immaterial whether a charge or levy is compulsory, customary or voluntary,
and any reference to making a charge or charging a levy shall be construed
accordingly; and
(c) the
public shall be deemed to have or be permitted to have access to a place where
that place is for the time being open to the public whether or not a charge or
levy is made or payment for admittance is required; and
(d) the
playing of a game of chance or participation in any activity which —
(i)
is an authorised game as defined by the Casino Control
Act 1984 played in accordance with rules approved under that Act in a licensed
casino as so defined; or
(ii)
is a game of a kind the playing of which is authorised by
regulations made pursuant to section 42(3)(c), when played in such
circumstances and in accordance with such conditions as are thereby
prescribed; or
(iii)
is conducted under the Lotteries Commission Act 1990 ,
does not constitute
gambling contrary to the provisions of this Act, except in so far as section
44 or 45 applies; and
(e) a
machine shall be taken not to be used for gaming if it is used in premises of
a prescribed kind or class and if it is constructed or adapted or used in such
a way that —
(i)
a person playing it once and successfully receives
nothing except an opportunity, afforded by the automatic action of the
machine, to play again (once or more often) without paying; or
(ii)
where a person plays it once and successfully, that which
he receives is determined by the automatic action of the machine and is either
a money prize not greater than the amount payable to play the machine once or
a token which is, or tokens which in the aggregate are, exchangeable only for
such a money prize.
(3) Where on the
hearing of a prosecution —
(a) for
an offence requiring proof that any premises were kept or used or resorted to
for playing any unlawful game or any game of chance, and a person is found to
have been so playing; or
(b)
relating to —
(i)
gambling in; or
(ii)
opening, keeping or using; or
(iii)
being concerned in the conduct of,
premises being a
common gaming house, and a person is found to have been gambling there,
it shall be presumed,
unless the contrary is proved, that games played at those premises were games
played for money.
(4) Where a person is
found to have been present at any unlawful game or game of chance it shall be
presumed that he was present for the purpose of taking part in the game,
unless he proves that he was present neither for that purpose nor for the
purpose of —
(a)
taking part in the conduct of the game; or
(b)
operating or using any gaming equipment, instrument of gaming, related
furnishings, or any other thing whatsoever used in connection with the game or
any wager; or
(c)
making or receiving wagers, with respect to the game or otherwise.
(5) Gaming pursuant to
a permit shall not be taken to be conducted for the purposes of private gain
by reason only that a person concerned in the conduct of the gaming receives
reasonable remuneration in respect of his services in that capacity.
[Section 39 amended: No. 16 of 1990 s. 33; No. 24
of 1998 s. 46; No. 35 of 2003 s. 140, 166 and 167; No. 84 of 2004 s. 80.]