1. The
D.P.P. issued several summonses against Sports Arena Limited in respect of
alleged offences under Sections 4 and 5 of the Gaming and Lotteries Act, 1956
as amended. The matters came before District Judge Desmond Hogan on the 16th
day of November, 1993 and he convicted the Defendant Company and imposed fines.
2. Upon
motion of Counsel for the Applicant made ex parte on 10th June, 1996 before Mr.
Justice Kelly, the Court having read the statement dated 29th March, 1996, the
verifying affidavit of Terence E. Dixon filed on 29th March, 1996, the Court
ordered that the Applicant do have leave to apply for:-
3. The
action is actually entitled "The Director of Public Prosecutions at the suit of
Garda P.J. Griffin" where it is incorrectly cited in the Court Order. The
matter had come on appeal from the learned District Judge to the Dublin Circuit
Court before His Honour Judge Liam Devally. The matter came before Judge
Devally on the 21st March. Subsequently, on 7th April, 1995 there was an
application for a direction and an application made for a case stated. On 3rd
November, 1995 there was another application for a case stated. All
applications were refused. The learned Circuit Judge made his order on 16th
September, 1995. The Plaintiff did not bring his application in time and by
Order dated 1st July, 1996, Mr. Justice Geoghegan extended the time for
service. The grounds on which relief is sought are set out in the statements
to ground the application for Judicial Review as follows:-
4. The
evidence before this Court is contained in several affidavits. First there is
an affidavit of Terence E. Dixon, a member of the firm of solicitors on record
for the Applicant, which was sworn on 29th March, 1996. He sets out that the
Plaintiff has three summonses under Section 4 and three summonses under Section
5 of the Gaming and Lotteries Act, 1956 as amended. Judge Desmond Hogan
sitting at the District Court convicted and ordered the forfeiture of the
machines then being held at the Sports Arena, 4 Talbot Lane, Dublin 1. An
appeal was lodged which came before the Circuit Judge on 31st March, 1995. At
that time, the Director of Public Prosecutions was represented by Mr. Roy
Pearson, solicitor of the office of the Chief State Solicitor. Gardai Griffin,
O'Shaughnessy and Sergeant O'Connell proceeded to give evidence of the various
alleged breaches by the Plaintiff and each in turn were cross examined by
Senior Counsel for the Plaintiff. On the basis of the evidence advanced both
in direct and leading from cross examination, application was made at the
conclusion of the prosecution case by Senior Counsel for a direction on the
basis that the evidence was short of satisfying the necessary criteria for
proof in criminal matters. In particular, that the summonses in these cases,
the respective number for Talbot Lane and the evidence advanced before the
learned Circuit Judge and expert witnesses disclose that in fact the premises
occupied for the purpose of the prosecution were number 23B Marlborough Place
and 1 Marlborough Place. Certificates of the rateable valuation in respect of
the properties were also tendered. The evidence would appear to confirm that
in fact the Plaintiff or Applicant herein had four properties, that there was
internal communication between them and that in fact there were only small
partitions between portions of them and none of which reached to the roof.
Senior Counsel urged in the Circuit Court and in this Court that the points of
law on which he wanted the opinion of the Supreme Court were of sufficient
magnitude and importance to warrant a case stated. In particular, if he is
convicted, the Applicant is ultimately going to suffer the potential forfeiture
of some thirty machines and in respect of which evidence had only been given in
respect of six such machines. This case came before the Circuit Court on a
number of occasions. A number of times, Senior Counsel submitted his request
for case stated. The Judge throughout refused to state the case and eventually
convicted the Applicant on 15th December, 1995.
5. Basically,
the Applicant is dissatisfied with the way in which the First named Respondent
exercised his discretion pursuant to Section 16 of the Courts of Justice Act,
1947. The reliefs sought amount to orders quashing the convictions imposed and
an order remitting the matter to the Circuit Court and an order that a case
might be stated.
6. The
main affidavit on behalf of the State is that of Roy Pearson of the Chief State
Solicitor's Office sworn on 4th April, 1997. He gives details of some of the
evidence which was before the learned Circuit Judge. He says that the first
witness to give evidence was Garda Griffin. He gave evidence of having worked
as a gaming machine arcade manager and cashier before joining An Garda
Siochana. He is attached to Store Street Garda Station. He was in plain
clothes duty on 30th July, 1992 and investigated complaints of illegal gaming.
In particular, he was investigating poker machines. He was claiming that the
persons who played these machines were being paid more money than they had
invested. He was used to working with machines such as the "noraut poker
machine" and the "kimble poker machine". He dealt extensively with the way the
machines worked. Garda Griffin's statement is that on 30th July, 1992 he
entered an amusement hall by the name of "Barneys" with an entrance at 4 Talbot
Lane and also on its other side at 24 Marlborough Street. He described how he
put £2 in a machine, played the game of poker and that sufficient points
enabled him to get £6 and he thus made a profit of £4. He then went
back to a different machine and put £3 into it and played poker and soon
accumulated his points up to 400. He signed a docket and gave it to the
cashier who in turn gave him £8, thus making a profit of £5.
7. On
7th August, 1992, accompanied by Garda Una O'Shaughnessy he entered the
premises. Both officers were in plain clothes. The two Gardai entered the
enclosed area where the "noraut poker machines" were kept. He inserted two
pounds into a machine and received 100 points. He played the game of poker and
soon accumulated up to 300 points. He went to the cashier and Mr. Forte asked
Garda Griffin to sign a docket and this was handed to the cashier who handed
over £6. Later that evening, Sergeant O'Connell, Garda O'Shaughnessy and
Garda Griffin all entered Barney's amusement arcade and interviewed Mr. Tony
Forte and the two people who had been cashiers at the time of one or other of
the visits by Garda Griffin and who had given him his winnings. It was put to
Garda Griffin that the area on the map with the numeral 4 on it was the room
adjacent to Talbot Lane and it contained video games and no winning machines.
Garda Griffin said that he could not say if that were true. He said that the
entire interior ground floor plan was open plan with no physical separation
between any of the areas marked as individual boxes on the map. An officer of
the Treasurer's Department of Dublin Corporation then gave evidence that the
Applicant was the rated occupier of hereditaments at No.103 Talbot Street
described as "a shop and stores", No.105A Talbot Street described as an
amusement hall, at No.23A Marlborough Street described as an amusement arcade,
at No.23B Marlborough Street described as an amusement arcade, at No.24
Marlborough Street described as an amusement arcade and stores (basement) and
in No.24 Marlborough Street described as offices first and second floor. It
was further stated that for the year 1992 Sports Arena Limited (the Applicant
herein) was the rated occupier of hereditaments at No.4 Talbot Lane, described
as an "amusement arcade". He described how Sports Arena Limited was the rated
occupier for No.4 Talbot Lane from 1989 until the end of 1994. No.4 Talbot
Lane was described as an amusement arcade for those years. Sports Arena
Limited was the rated occupier of all those hereditaments from 1989 until the
end of 1994. No appeal had been lodged by Sports Arena Limited against its
obligation to pay the rates which had in fact been paid. Mr. Forte relied on
the receipts signed by Garda Griffin and he said that he had won no more than
the value of his stakes. The State Solicitor argued that this was an open plan
area and a letter addressed to one entrance or the other would be delivered to
any part of the arcade. A person in the arcade would not have been aware of
the difference of the designated rateable areas. If the learned Circuit Judge
had any problems, the State Solicitor suggested deleting the numeral four from
the District Court Orders.
8. Mr.
Desmond Killeen of Donal O'Buchalla Limited gave evidence on 3rd November,
1995. He had studied maps in the Valuation Office and stated that the machines
in controversy were located in the areas rateably assessed as 23B Marlborough
Street and 1 Marlborough Place neither of which were postal addresses. Judge
Devally gave judgment on 14th December, 1995. Application was then made for
forfeiture of all 53 machines. Judge Devally adjourned the matter to the next
day and on 15th December, 1995, he ordered that 17 of the machines be forfeited
to the Minister for Justice and that the remaining 36 were to be disposed of by
the Applicant inside the Dublin area. Mr. Pearson states that Senior Counsel
on behalf of the Applicant did not formulate any particular points of view
which he wished the Supreme Court to address. He merely indicated that he had
made his five submissions and that if Judge Devally found against him, he
wished that the case should be stated. By replying affidavit of Terence E.
Dixon dated 13th January, 1997, he recites the evidence as he recalls it and it
is substantially the same as that of the State Solicitor. Mr. Dixon stated
that Garda Griffin said there were no poker machines in the area marked 4
Talbot Lane nor in the area marked 24 Marlborough Street. He agreed that the
machines bore a legend on the screen
9. You
cannot under any circumstances win money playing this machine. The rules are
clearly printed in this machine. No agreements (sic.) will be entered into.
You
accept these rules when you play this machine.
10. This
machine does not operate on a timer: This machine operates on a minimum of
£1. Do not, if you wish to continue play, allow your credits to go to
zero.
N.B.
Cheating is deemed an offence under Section 11 of the Gaming and Lotteries
Act, 1956."
11. Mr.
Aidan Mullen of Dublin Corporation Rates Office gave evidence that No.24
Marlborough Street and No.4 Talbot Lane appeared in the records and that the
rated occupiers were Sports Arena Limited. The premises were described as an
amusement arcade. Sports Arena Limited have discharged the rates. In cross
examination, he was asked to identify the premises 1 and 2 Marlborough Place in
the Rate Books but was unable to do so and concluded that they did not appear
there. He was asked how many rateable occupiers they were in 24 Marlborough
Street and he replied that they were two.
12. The
Affidavit then gave the evidence of Mr. Desmond Killeen, a Chartered Surveyor.
On maps produced, he located the area in which the "noraut poker machines" were
situate and he gave evidence that the same were situated entirely within
premises 23B Marlborough Place. No.4 Talbot Lane was separately rated. No.24
Marlborough Street was separately rated. There were no machines within either
of these premises. No.23B Marlborough Street was physically divided by a
wooden partition with swing doors and the remainder of the premises was
occupied by Sports Arena Limited. Finally, there is a statement of opposition
signed by the Chief State Solicitor and dated 26th May, 1997. It states that
the First named Respondent acted within jurisdiction and in accordance with the
principles of natural and constitutional justice and that the Applicant had
failed to particularise the questions of law which the Respondent wrongly
refused to incorporate in a case stated. The Supreme Court papers filed on
behalf of the Applicant still fail to disclose any or any appropriate question
of law. The First named Respondent herein could reasonably from the facts
found by him refer to the Supreme Court for its opinion pursuant to the
provisions of Section 16 of the Courts of Justice Act, 1947.
13. The
Applicant did not move for a Judicial Review of the decision of the
Respondents. The Applicant, under the Act, must apply before the determination
of the appeal for a case stated.
14. The
suggested questions were ten in number and it seems to this Court that they
were questions of fact to be determined by the trial Judge or mixed questions
of law and fact and the main ones were raised of course at the hearing before
the learned Circuit Judge. The Court was referred to
R
-v- Brady
and
R
-v- Ram
[1994] 3 All E.R. 616, decision of the English Court of Criminal Appeal, and to
Counsel's note of the judgment of Ms. Justice Mella Carroll delivered
ex-tempore 5th May, 1994 in
Dermot
Collins -v- His Honour Judge Devally and the Director of Public Prosecutions
which follow the decision by Mr. Justice Lardner in the case of
Austin
McHale -v- Judge Devally and Dublin County Council
.
This latter judgment was delivered ex-tempore on 20th May, 1993. Mr. Justice
Lardner propounded as the test to be applied:-
15. If
the Circuit Court Judge is not satisfied that there is an arguable case or that
the interests of justice in the particular case do not require a case to be
stated, he has a discretion not to grant a case stated. Then there is the
seminal case of
Colm
McKenna -v- His Honour Judge Matthew Deary and the Director of Public
Prosecutions
in which judgment of the High Court was delivered by Morris J. (as he then was)
on 26th day of March, 1996 and subsequently appealed to the Supreme Court.
Lynch J. gave the judgment of the Court on 11th December, 1997. As regards the
points in relation to the police being involved in playing the machines and
therefore being parties to a crime, Lynch J. points out in the case before the
Supreme Court and where the evidence was produced by Customs and Excise
Officers that they (the officers) were engaged in "playing at, or in wagering
on the event of, any game, sport, past-time or exercise":-
16. In
the current case, there were no specific questions put to Judge Devally on
which he could have exercised discretion, therefore, it seems to this Court
that these proceedings were misconceived.
17. As
a matter of fact it is interesting that No.23B had no entrance to it directly
from any road, street or lane.
18. There
is power to amend under Section 49 of the Civil Bill Courts Procedure Amendment
Act (Ireland), 1864 and indeed under the District Court Rules, 1948, Rule 88.
The affidavit of Mr. Pearson recited upon which he was not cross examined a
very clear picture that the Garda evidence as such was not contradicted. The
case was many times adjourned. The Applicant was continuing to trade and
during that period could have sought Mandamus. He tried to get the trial Judge
to state a case; however the trial Judge cannot be forced to state a case if he
can show that he was acting within his discretion. The Court was also referred
to
Roche
-v- Martin
,
[1993] I.L.R.M. 651 and
Lennon
-v- Clifford
,
[1993] I.L.R.M. 77.
19. It
is also argued that there is a new standard since the McKenna case but that
present proceedings predated that decision. Various points were raised by the
D.P.P. in his submissions. It would seem correct for the Court to recite them
during the case and to get the view of the Court on each of them. They are as
follows:-
20. The
Judge was more than entitled so to find on the cases cited and no case stated
could have been sent to the Supreme Court in relation to this issue.
21. It
is contended that the postal address of the location of the offence was No.4
Talbot Lane. The Accused called evidence from a valuer as to valuations of
different portions of the substantial premises owned and managed by Sports
Arena Limited. The evidence of the valuer was that a portion of the premises,
were separated by a partition with a swing door. However, the evidence of
Garda Griffin was that the gambling arcade was an open plan area. If there
were conflicts between these two witnesses, the Circuit Judge was entitled to
accept the evidence of Garda Griffin. However, this issue does not arise. The
Court finds none of the points raised was of such a substantial nature that it
was essential in the interest of justice in the case for them to be submitted
to the Supreme Court. He also finds that there was no essential legal point.
22. It
is submitted that there is a further fundamental problem faced by the Applicant
in these proceedings. The only type of case stated which may arise under
Section 16 of the Act of 1947 is the consultative case stated. Such a case
stated must be applied for during the course of proceedings. It is evident
that Counsel on behalf of the Applicant requested a case stated without
particularising what question of law he was concerned about. The prosecution
case was concluded and Judge Devally gave judgement on his application for
direction on 7th April, 1995. The matter was then adjourned to convenience the
Applicant herein to 25th May, 1995, 30th June, 1995, and 31st July, 1995. On
that date evidence was given by a chartered surveyor which has already being
recited and which evidence it was alleged was of a more substantial nature than
had earlier been indicated on behalf of the Applicant. The case had to be
adjourned again. Ultimately, judgment was delivered by Judge Devally in
relation to the case on 14th December, 1995. As a result, the Applicant had
from the 7th April, 1995 until 14th December, 1995 to apply to the High Court
for leave to seek Judicial Review by way of Mandamus. Such application of
course might not have been successful but it would have been more appropriate
than to apply for Certiorari. Also, probably such an order should have been
sought before final judgment having regard to the specific terms of Section 47
of the 1947 Act.
23. However,
it is not for this Court in these proceedings to deal with these speculative
matters. In its discretion and having regard to the decisions cited,
particularly the judgments of Carroll J., Lardner J., and Lynch J. and for the
reasons given in this judgment, this Court refuses this application for
Judicial Review.