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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V17) 1 CLR 93
1944 February 4
[JACKSON, C.J., AND HALID, J.]
DEMETRIS MICHAEL MITSOS AND OTHERS,
Appellants,
v.
THE POLICE,
Respondents.
(Criminal Appeal No. 1780.)
Gambling-Gaming house-presumption of repeated use-Gambling Laws, 1896 to (No. 2) 1942, Sections 1,2,4,5 and 5A.
The appellants were found gambling in the living room of a house at Anavargos, and were convicted of gambling under section 1 of the Gambling Laws, 1896-1942. The house was the dwelling house of one of the appellants, who lived there with his wife, it was contended that there was no evidence, as required under the section, that the house was kept or used for the purpose of gambling or that the public had access thereto.
Held: if gambling occurs elsewhere than in an open place, as defined in section 1 of the Gambling Laws, 1896 to (No. 2) 1942, it is necessary to prove (a) that the place is kept or used for the purpose of gambling, and (b) that it is a place to which the public have access. Section 5A only creates a presumption of repeated use in respect of a place entered under the provisions of section 2. No power of entry is provided by section 2 of the Gambling Laws for the private premises mentioned in section 4.
Appeal from conviction by the District Court of Paphos.
A. Indianos for the appellants.
P. N. Paschalis, Acting Solicitor-General, for the respondents.
The facts of the case are fully set forth in the judgment of the Court which was delivered by:
JACKSON, C.J.: This is an appeal by five persons who were convicted by the District Court of Paphos, of certain offences against the Gambling Laws, 1896 to 1942.
The evidence established that four of the appellants, with another person who has not appealed, were playing the game of chemin-de-fer in the dwelling house of the first appellant in the village of Anavargos shortly after midnight on the night of the 25th November last. The first appellant did not fake part in the game but sat at the table and from time to time received money from the players. The trial Court found that this money was paid by the player's as a kind of fee charged by the owner of the house to those taking part in the game. The players had their stake-money on the table in front of them and the cards were in a tray on the table.
So much was seen by a police-sergeant and two constables through an open window before they entered the house. As they were about to enter it they were heard, and the light (or kerosene lamp was extinguished and the door was held against them until the voice of the sergeant was recognised. The door was then opened and they entered and found that the cards, 205 of them, and the tray which had held them had been thrown behind a "fire bush" in the room. The players had removed their stake-money from the table and varying sums were found on them and taken from them by the police. Seven persons were found in the room of whom five admitted that they had been playing.
The five appellants were charged with having gambled in the house of the first appellant contrary to section 1 of the Gambling Laws, 1896 to 1942. This section prohibits gambling in certain open places or "in any place or house kept or used for the purpose of gambling to which the public have access". If gambling occurs in an "open place" of the kinds mentioned in the earlier part of the section it is enough to prove the gambling. The existence of public access to the place is self-evident. But if the gambling occurs elsewhere than in such an open place, then two distinct essentials must be proved to sustain a charge, first, that the place or house was kept or used for the purpose of gambling, and, second, that it is a place or house to which the public have access.
In this case, the house where the gambling took place was the dwelling house of the first appellant, a carpenter, who lived there with his wife. The house had two rooms and the gambling took place in the living-room. Quite apart from the question whether or not the house was kept or used for the purpose of gambling, there is no evidence whatever either direct or indirect, that the public had access to the house, and this essential is not even mentioned in the judgment of the trial Court. The learned District Judge seems to have treated the charge as a charge of gambling in what is known in English law as a common gaming house, but that is not the offence which section 1 of the Cyprus Law of 1896 establishes. Under that section it is essential that the place where the gambling occurs must be one to which the public have access, and since there is no evidence, direct or indirect, on this point, the conviction of all the appellants on the first charge must be quashed and their appeal allowed.
The first appellant was also convicted under section 4 of the Gambling Law of 1896 for keeping or using his house for the purpose of gambling therein. There was no evidence that the house had been so used on any other occasion than the one which led to the charge, but the trial Court relied on the presumption created by section 5A of the Gambling Laws. The material part of that section is as follows:-
"5A. If any instruments or appliance for gambling are found in any place entered under the provisions of this law or if any person is found escaping therefrom or if any peace officer is wilfully prevented from, or obstructed or delayed in entering or approaching the same or any part thereof, it shall be presumed, until the contrary is proved-
(a) that such place is kept, held or used for the purpose of gambling therein".
The section thus creates a presumption of repeated use if certain conditions are found, not in any place, but only in a place entered under the provisions of that law. There are two corresponding sections in the English Statutes on this subject, section 8 of the Gaming Act, 1845, and section 2 of the Gaming Houses Act, 1854, and they both restrict the creation of the presumption to the concurrence of certain events in premises entered under powers given by those Acts. Those powers, however, are considerably wider than those given by the Cyprus Gambling Laws. What then are the powers of entry given by the latter? Powers of entry are given only by section 2 of the Law of 1896, as amended by the Gambling Amendment (No. 2) Law, 1942. No power of entry is given by section 1 under which one of the charges in this case was framed. Powers of arrest without warrant are given by that section, but no power of entry seems to have been thought necessary, presumably because all the places mentioned in that section are places which can be entered by anybody. Section 2 is different. In addition to certain places of public resort, the section deals with premises occupied by any club or society. In the absence of special powers, such premises could not be entered without a warrant, and consequently a special power of entry is given.
Section 4 is in some respects complementary to section 1, just as section 5 is complementary to section 2. But section 4 goes further than section 1. It deals not only with places to which the public have access but also with places to which they have not; that is to say, it deals not only with what may be called public gaming houses, but also with what English law would call common gaming houses. One might have expected that for the latter purpose powers of entry would have been provided by the law, as they have been by section 2 for the private premises mentioned there. But they have not been provided by section 4 for the private premises mentioned in that section.
Our conclusion therefore is that the dwelling house of the first appellant in this case was not a place entered by the police under any power given by the Gambling Laws and, consequently, was not a place in relation to which the presumption created by section 5 could be said to have been raised.
The trial Court seems also to have relied on a fact given in evidence to create a presumption that the first appellant's house was a common gaming house; namely, the fact that he took fees from the players. There must have been an occasion on which he did so for the first time and what is there to show that this was not that occasion? It is obviously difficult to prove that a house has been repeatedly used for the purpose of gambling and that is why the law, like the law of England, allows that fact to be presumed in certain circumstances. But it has not, in our opinion, done so in the circumstances of this case.
We think therefore, that the first appellant's appeal against his conviction under section 4 must also be allowed and the conviction quashed.
The order of the trial Court for the forfeiture of certain money found on the appellants and of certain articles found in the house must also be quashed.
Appeal allowed.