R v Schofield [1838] NSWSupC 87 (22 September 1838)

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[gambling, illegal - reception of English law, gambling - reception of English law, poor laws - penalties, enforcement of - Crown debts]

R. v. Schofield (1838) 1 Legge 97

Supreme Court of New South Wales

Burton J., 14 August 1838

Source: Sydney Gazette, 18 August 1838^[1]

(Before His Honor Mr. Justice Burton, and a

Civil Jury.)

John Schofield was indicted under the statute 18 Geo. II. Cap. 34. Sec. viii. for winning at cards from one Thomas Chasling, a sum exceeding £10, at Windsor, within six months past; he was charged in a further count with winning from the said Thomas Chasling within the space of 24 hours £100, against the statute, &c., and Thomas Henry Hart was indicted for betting on the game, and winning from the said Thomas Chasling the like sums on the day, and at the time above-mentioned.

The Attorney-General, in opening the proceedings, said, that they were of a novel description in this Colony - he believed the first that had taken place. The law relative to gambling had never been brought under the public notice before and to that might be attributed the alarming extent to which the vice of gaming had attained in the Colony, and the prevalence of the practice in public-houses, whereby young men possessed of money were induced to squander it away, and involve themselves in embarrassments from which they frequently never could extricate themselves during the remainder of their lives. Sufficient mischief was to be apprehended from other practices permitted in public-houses without that of gambling being tolerated among the number. The present information was laid under a statute in the 18 Geo. II. Cap. 34. Sec. viii. wherein it is enacted, that if any person loses within 24 hours, or at one time, a sum exceeding of £10, he can be prosecuted under that Act within six months afterwards ensuing, and fined on conviction of the offence five times the amount of money lost. He did not, however, rest upon that statute alone; another made in the reign of Queen Ann, which had not since been repealed, rendered all gambling transactions invalid, and the money lost at play, although paid, recoverable by law. He had learnt through the Police Magistrate that the prosecutor had since endeavoured, and was very anxious to stop the prosecution, and parties like the prisoners, possessed of money, would doubtless be desirous of compromising at any price. The circumstances of the case as they appeared in evidence were simply as follow:--

The prosecutor, who is a settler, had arrived from Portland Head with some money, the proceeds of his industry. He went to the public-house kept by his own grandson (Evringham), and one Earl, and met there the prisoners and others. They commenced drinking and playing about the middle of the day, and continue until three o'clock the following morning. The prosecutor was quite intoxicated during the time. He played the game called ``put" with Schofield until he lost all the money he possessed; he then borrowed from time to time small sums from Earl and Evringham, to enable him to continue his play, until it amounted to £20, for which he passed his note to Evringham. He continued playing until he lost £100, when Scholfield declined playing any more. The prosecutor on tendering his note of hand for the amount, was refused by Schofield, who consented to take Evringham's; Evringham gave his note for the prosecutor, and took his in return. The next morning they called upon the prosecutor for the money, and when he demurred, threatened to put him on the fire for an old --- , and to have him in gaol before five o'clock that evening; Evringham then went to Mr. Beddick, the solicitor, and instructed him to proceed against the prosecutor, which he commenced by sending him a lawyer's letter on the same day. The prosecutor described the whole party as professed gamblers and black legs, forming a confederacy against all they could entrap into the house, which he said was as inaccessible as a Freemason's Lodge upon such occasions. He said he had been thirty-six years in the Colony, and the whole of his earnings during that period were gone.

His Honor observed that it was very disgraceful for an old man like him to get intoxicated.

The Attorney-General asked him if he had yet joined the Temperance Society? He replied he had not previously, but now that he was broke he supposed he must of necessity do so.

Mr. Foster (for Scholfield) had many objections to make to the indictment. The Act 18. Geo. 2nd under which it was framed especially provided for the appropriation of the fine to the poor. Now there were no poor nor any officers to represent them in this Colony. The statute was not at all applicable to the Colony nor could it be applied; there was not machinery sufficient to put it in operation. It would certainly be very desirable that some local enactment should be made to restrain the evils resulting from gaming but he hoped the Court would not assume the power of the Legislative or stretch the meaning of the statute beyond its original sense to meet the exigences [sic] of the case. As regarded his client Schofield, the second count charged him with winning £20 in 24 hours and it had been proved in evidence that a stake not exceeding £3 was the highest at any one time. He referred his Honor to the case Bones against Booth in the 2nd of Blackstone, wherein it was held that it was necessary to prove that the money was lost at one single bet or stake and at one time. There was no evidence that £20 was won by Schofield and if he had he could not be convicted under the indictment, which charged him with winning upwards of £20. In fact there was no money lost at all for the notes passed not being recoverable in law were perfectly innocent and valueless - what was lost and won should be of a specific value.

Mr. Windeyer (for Hart) followed on the same side. He said there was no evidence whatever against Hart.

The Attorney-General replied that if the laws of gaming did not apply to this Colony he could not say what laws did. He referred his Honor to the 24th section of the New South Walea [sic] Act made in 1828, whereby all the laws exextant [sic] in England were put in force here, if applicable to the circumstances of the Colony. The statute of Ann would support the indictment as well as that of Geo. 2nd. His learned friend had said there were no poor to whom the fine under this Act could be appropriated - what he would ask was the Benevolent Asylum for, but the relief of the poor.

(Mr. Foster said it was not legally recognized by the Government.) There was also a branch Asylum at Windsor. At all events there were necessarily poor in all places and the fine levied if placed in the hands of the Police Magistrate or Clergyman of the town for the benefit of the poor of the place in lieu of parish officers the Act would be properly applied and satisfied.

The Jury after ten minutes consideration acquitted Hart ad found a verdict of Guilty against Schofield and fined him £80, which being multiplied five times according to the act amounts to £400.

The prisoner was then admitted to bail in his own recognizance to appear upon the first day of next term to be further dealt with.

Dowling C.J., Burton and Willis JJ, 22 September 1838

Source: Sydney Gazette, 25 September 1838

(Before their Honors in Banco.)

Re John Schofield. - The Court gave judgment in this case. The Chief Justice said the defendant had been convicted of gaming above the sum of £10. He had been indicted by the Attorney General under the Act 18 Geo. 11., No. 24, sec. 8, and had been tried at the last criminal session and found guilty. The prisoner's counsel, on that occasion, moved in arrest of judgment on the ground that the gaming laws were not in force in this colony. His Honor was of opinion, on a mature deliberation of the case, that the Act was inapplicable to the colony on account of want of machinery to carry it into effect. The Act provided that the penalties imposed under that Act should be applied to the use of the poor of the parish or place in which the gaming transaction occurred. Consequently, there was no poor in colony, at least no legally recognised poor, the penalties could not be applied. He was therefore of opinion that judgment should be arrested.

Mr. Justice Burton was of the same opinion.

Mr. Justice Willis observed, that for a long period before the introduction of any measure of legislation for the relief of the poor in Ireland, or of the recognition of any poor in that kingdom, laws of a similar nature had been in force there, and penalies [sic] similar to to [sic] the present had been applied without the legality of the proceeding having been questioned. Yet as there certainly was a doubt in the present case, he thought the defendant was entitled to the benefit of it, and therefore joined with their Honors in the opinion that the judgment should be arrested.

Source: Australian, 25 September 1838^[2]

SATURDAY. - In Banco. - The three Judges took their seats at ten o'clock.

The Queen v. Schofield and another. - This was an information filed against the defendants under the Statute 18 Geo. 2nd. Cap. 34 for gaming, on which information the Jury found them guilty, and they were admitted to bail to appear when called on. It was urged by the Counsel that the Statute was inapplicable to the colony, as the wording of the Act provided that the offender should be fined five times the sum staked, for the benefit of the poor of the parish, and that as there were no legally acknowledged poor in New South Wales, the penalty could not be appropriated as directed by the statute, and that the Court had not the power of appropriating it otherwise. The objections were supported by Messrs Foster and Windeyer on Saturday last, and the Court now gave its decision.

It was of opinion that the Statute 18 Geo. 2nd Cap 34 did not apply to this colony for want of machinery to carry it into effect. The imposition and appropriation of the penalty had not been specifically defined in the Statute, but had been left as a simple penalty, then the appropriation could have been directed for any other purpose. The Court was bound however to take judicial knowledge that there were no legal poor in the colony who could claim support as of right, and the penalty could not be appropriated as directed. It would be highly beneficial for the colony that the local legislature should either modify this Statute so as to make it applicable to the colony, or provide in some other way for this abuse. The Court was therefore of opinion that judgment should be arrested.

Source: Sydney Herald, 24 September 1838

Saturday. - Before the three Judges in Banco.

The Queen v. Schofield. - In this case an information had been filed by the Attorney-General, under the statute 18 Geo. II., cap. 34, sec. 8, against Joseph Schofield and others. The first count in the information charged the defendants with winning at cards above £10 at one time from Thomas Chasling, and a second count with winning above £10 within twenty-four hours. The case was tried before Mr. Justice Burton, and the Jury found the defendant Schofield guilty on the second count. It was contended at the trial that the statute, under which the information was filed, is not in force in this Colony, as it declared that one portion of the fine shall go to the poor of the parish or place, and there are no poor, legally speaking, in this Colony. His Honor was inclined to be of the same opinion, and reserved the point for the decision of the Court. The matter was fully argued on the first day of term, and the Court now delivered its opinion, which was that the statute is inapplicable to this Colony for want of machinery to work it, and being a penal statute it must be construed strictly. Judgment arrested.

Source: 1 Legge's Reports 97

REGINA v. SCHOFIELD^[3]

Gaming - 18 Geo. II, cap. 34, sec. 8.

The Act, 18 Geo. II, cap. 34, sec. 8, is not applicable to this Colony from want of machinery to carry the same into effect.

There are no legally-recognised poor in the Colony.

This was an information filed by the Attorney-General on the stat. 18 Geo. II c. 3I, s. 8, for gaming. The first count charged the defendants with winning money at cards of one Thomas Chasling, above the value of £10 at one time. The second count charged them with winning of the same person above £10 within twenty-four hours, that is to say the sum of £80.

At the trial before Burton J. during the last criminal session the Jury found Schofield guilty of winning £80 within twenty-four hours, and acquitted the other defendant. It was objected on the part of the defendant that the statute in question was not in force in this Colony inasmuch as the fine imposed thereby for the offence contemplated, is directed "to go to the poor of the parish or place where the offence shall be committed," and as there was no legal poor in this Colony, the judgment of the law could not be carried into effect. The learned Judge doubted the applicability o£ the statute to this Colony, conceiving that "the poor of the parish or place" had reference to the poor persons maintained by force of the poor laws of England, and that consequently was local in its application; but he reserved the question for consideration.

Foster, and Windeyer, in support of the objection, contended that the statute was local, and could not be applied to this Colony. The statute enacts that the party convicted "shall be fined five times the value of the sum won or lost; which fine (after such charges as the Court shall judge reasonable, allowed to the prosecutors, and evidence out of the same) shall go to the poor of the parish or place where such offence shall be committed." The sentence thus imposed by the law cannot be executed, inasmuch as there are no poor in this Colony, within the meaning of the statute. The statute means legal poor, that is persons maintained by parochial relief, from a fund compulsorily raised upon the inhabitants of the parish. Here there are no poor laws, and no poor in the legal acceptation of the term. The penalty is directed to be paid to persons not in existence, and therefore the statute is inapplicable, and cannot be enforced. This being a penal statute must be strictly construed. However desirable it may be to discourage the vice of gaming, yet until the local Legislature, by virtue of the statute 9 Geo. IV, c. 83, s. 24, shall declare this statute to be in force in, or modify it to meet the circumstances of the Colony, it cannot be carried into effect. The case of Rex v. Maloney^[4] decided by a majority of this court on 1st February, 1836, is an authority in point, which determined that the English Marriage Act was not in force here, from want of machinery. So in this case there is no machinery to carry out the principle of the law, and it must remain inoperative until adapted by the local Legislature to the actual state of the Colony.

The Attorney-General (Plunket) and Therry, in support of the conviction.

The 24th sec. of the New South Wales Act, enacts that all the laws of England shall be applied in the administration of Justice in the Courts of New South Wales so far as the same can be applied in the Colony. The question is can this Gaming Act be applied to any extent in the Colony so as to put down the vice of gaming? It is not necessary to show that it can be applied in all its provisions. This defendant has been legally convicted of winning £80, and the law says he shall pay a fine five times the value of the sum won. As it respects him it is wholly immaterial what becomes of the fine. There is great distinction between the imposition and the appropriation of the fine. It is not because the fine cannot be applied in the precise manner pointed out by the Statute, that the defendant is to go unpunished. But here the provision of the Statute may be substantially carried into effect, by appropriating it to the benevolent Asylum of Parramatta where the offence was committed. "Poor of the place," does not necessarily mean paupers maintained by compulsory law. These words may be satisfied by showing either that there are any poor persons in the place, or that there are any voluntary charitable institutions established for the relief of the pour where the offence was committed. But even if there are no poor, then the consequence must be, that the fine must be appropriated to the Crown; or it may go as is provided by the Statute to the prosecutors and witnesses. In Rex v. Wyatt^[5], which was a conviction under the Statute 5 Anne c. 14, which appoints half the penalty to tile poor of the parish, where the offence happens to be committed, it was held to be no objection that the offence was alleged to be apud villam de Mottram Andrews, for it was said by the Court, that if there be such a parish as Mottram Asndrews, it shall be intended be coextensive with the vill; but, if the offence was committed in a vill, which was extra parochial, then the informer shall have the whole. Here if there be no legal poor, then the penalty may be applied first in paying the prosecutor and witnesses, such reasonable charges as the Court may allow, and the residue may be appropriated by the Crown.

Foster in reply. The Court can only expound, they cannot make law. Here the law specially appropriates the penalty to a particular fund. If there be no such fund, they cannot appropriate it otherwise without going beyond the law. If there had been no specific mode of appropriation pointed out then the fine must belong to the Crown. The Court would be going out of the Act, if they were to award the penalty in any other manner. If the Court were to adjudge the amount of the penalty, and to award its payment to a different fund from that prescribed by the law, it would be error on the record. A judgment must be good in all its parts. It cannot be good in part and bad in parts. This Act must be capable of being enforced in all its terms or it is inapplicable to the Colony.

Cur. adv. vult.

Judgment was delivered, 22nd September, as follows: -

The chief justice. I am of opinion that the stat. 18 Geo. II, c. 34, s. 8, is inapplicable to this Colony for want of machinery to carry it into effect. This is a penal and not a remedial statute, and therefore upon the well settled principle respecting such statutes, must be construed most strictly. In carrying the sentence prescribed by the Act into effect, it must appear upon the record to follow the terms of the Act in such manner as to leave no part of the judgment or execution liable to uncertainty. The only difficulty I had at first, was, whether there might not be a distinction between the imposition and the appropriation of the penalty, so as to punish the offender, and leave the appropriation of it untouched by out judgment; but I am now satisfied that we could not take that course. The judgment of the law under this Act is an entire thing, - the imposition and the appropriation are not severable, but must form one entire adjudication. The Act directs the amount of the fine, and its mode of appropriation, in a particular manner, - first in allowing such charges as the Court shall judge reasonable to the prosecutors and evidence out of the amount, and secondly in awarding the residue to go to the poor of the parish or place where the offence shall be committed. This appropriation should appear with certainty, and particularity on the record or the record of conviction would be void on the face of it. It is a well settled principle that a conviction must be good in all its parts;^[6] the judgment in particular, being an entire act, cannot be severed, and therefore if it is bad as to part, the whole is thereby vacated, although the several parts may be in their nature distinct. Thus a conviction for not accounting for tolls, and also for not paying over the receipts, being defective as to the latter offence, for not specifying the sums, though correct as to the former was discharged altogether. R. v. Catherall.^[7] In R. v Seale,^[8] where the stat. 42, Geo. III, c. 119, against illegal lotteries directing the penalty to be distributed one-third to the informer and one-third to the person apprehending or securing the offender, a conviction directing the penalty to be distributed as the law directs without ascertaining to whom the last third is to be paid (the person being uncertain) is bad. In adjudicating in this case we are not at liberty to go out of the statute. We must adhere to its terms without deviation. The whole difficulty here arises as to the mode of appropriating the fine as part of the judgment. It is no doubt laid down in Hawk. P. C. 62, c. 26, s. 17, and R. v. Milland^[9] that all fines for offences created by any penal statute, would, if not otherwise appropriated by the Statutes themselves, belong to the Crown. Had this Statute been silent as to the mode of appropriation, then we should have no difficulty; but having, expressly appropriated the fine in a particular manner, we are driven to the inquiry, who are meant by the poor of the parish or place where the offence was committed ? If we were called upon to expound the law in England, there is no doubt we should be constrained to hold that parochial paupers maintained out of parish rates, levied by law, and which are distributed and managed by guardians and overseers appointed by the lay payers, were intended. Can we come to any other conclusion sitting here ? Are there any other poor of the parish or place where this offence was committed, answering the description contemplated by the law ? We must take judicial notice that there are no poor laws in this Colony, and not poor in the legal sense of the word. The mere fact of there being a voluntary association of benevolent subscribers to an institution for affording casual relief to poor or infirm persons, will not satisfy the definition given in the Act; and therefore it appears to me that there is a want of some legislative modification to carry this very salutary law into effect. By the stat. 9 Geo. II, c. 83, s. 24, the duty is imposed on us of adjudging as to the application of any English laws or statutes to the Colony where any doubts arise thereon, in order to enable the local Legislature to declare whether such laws or statutes shall be deemed to extend to the Colony, or to make such modifications thereof, within the same, as may be deemed expedient in that behalf. Having thus adjudicated in the present case it will be for the local Legislature to determine, whether they will so adopt and modify the Act in question, in such a manner as will carry its highly beneficial principles into operation in this Colony. The authority of the case of Rex v. Wyatt^[10] cited in argument is very doubtful, for in Rex v. Priest ^[11], it was decided that an award expressly to the poor of a township, where the statute spoke of a parish was irregular. There have been Acts passed in England to regulate the mode of accounting, for and paying, fines as arise upon convictions before justices, not otherwise provided for. The 3 Geo. IV, c. 46, is a general Act upon this subject, and directs all fines &c. (save and except the same shall by virtue of any Act or Acts of Parliament made, or to be made, be otherwise directed to be levied, recovered, appropriated, or disposed of) shall be disposed of in the particular manner there pointed out. But for the express provision as to the appropriation of the penalty in the present Act, as I said, before, there would have been no difficulty, but from the peculiar terms of it, we are bound to treat it as a local Act, and at present not applicable to New South Wales.

Burton J. concurred.

Willis J. concurred.^[12]

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Notes

^[1]See also Sydney Herald, 15 August 1838. This case was also recorded in Burton, Notes of Criminal Cases, vol. 38, State Records of New South Wales, 2/2438, p. 913, noting that the statute in question was 2 Geo 2 c. 34, s. 8.

^[2]See also Australian, 18 September 1838.

^[3]Legge included the following note: ``From vol. 5 of Sir James Dowling's MS. Notes of select cases, and reported less fully in the Sydney Gazette, 18 Aug. and 25 Sept., 1838, and Australian, 25 Sept., 1838." This volume of the Select Cases is missing from the State Records of New South Wales.

The following footnotes are taken from Legge's Reports.

^[4]Ante, p. 74.

^[5][1790] EngR 1927; 2 Ld. Ray., 1478.

^[6]The King v. Salomons, 1. T.R., 251.

^[7]2 Stra., 900.

^[8] 8 East, 568.

^[9][1758] EngR 45; 1 Burr., 576.

^[10]The King v. Salomons, 1 T.R., 251.

^[11] 6 T.R., 533.

^[12]But "doubted," according to the note of the Chief Justice.