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Published: Fri, 02 Feb 2018
Under age gambling
Mr Ian Gamble who is fifteen years of age has been summonsed to appear at the Local Court for an offence against the Gambling Act. Mr Gamble was apprehended by a policeman in a betting shop shortly after having placed a bet. The crucial fact is to identify if Mr Gamble is guilty of the offence when the Act states prosecution applies to persons under eighteen years who are found in the vicinity of a betting shop.
The facts are:
Ian Gamble is fifteen years old.
Mr Gamble entered a suburban betting shop and placed a bet.
Mr Gamble was apprehended by a policeman inside the shop after he had placed the bet.
Mr Gamble was questioned about the matter and the policeman then decided to lay an information.
Mr Gamble received a summons two weeks later to appear at the Local Court for an offence against the Gambling Act.
The issue is whether Mr Gamble is guilty of the offence when he was apprehended ‘in’ the betting shop whereas the Act only prohibits under-age persons being in the ‘vicinity’ of a betting shop. Subsidiary issues may include whether or not the betting shop is liable for actions of staff member’s in allowing Mr Gamble to place the bet.
Mr Gamble should be advised that there are several statutory interpretation methods which the court may consider in order to resolve the legal problem. The statutory interpretation methods are:
Literal Approach This is applied by focusing on the actual words and phrases used and their natural meaning. If the meaning is clear then this is the appropriate approach that a court will use.
Golden Rule If by interpreting the legislation through the literal approach an absurd or inconsistent meaning occurs then this approach allows for the modification of the literal meaning to avoid the absurdity or inconsistency. Words are given their ordinary meaning in this approach.
Mischief Rule If both the literal approach and the golden rule fail to derive a meaning that makes sense then the court may choose to interpret the statute by looking at the law prior to the legislation, analysing the problem and applying legislation remedy. The reasoning behind the legislation must be understood.
Purposive Approach If the literal approach fails to reveal the meaning, then this approach allows for the authors aim when drafting the text to be applied. It allows for the purpose of the statute to be used.
Contextual Approach If the meaning can not be derived from the literal approach then courts may choose to use this approach, where words are taken in context. Noscitur a sociis meaning a word is known by the company it keeps.
Extrinsic Material This is used if there is doubt to the meaning derived from the literal approach, it allows for external sources to be called upon to aid interpretation.
Other Rules Words are presumed to have a consistent meaning and an Act should be read as a whole.
Technical meaning should be applied to technical words.
If two meanings can be interpreted from an Act then the meaning that is in accordance with the Constitution should be applied.
Where two interpretations are likely then the one that leads to a penalty being less likely to be imposed should be used.
Presume legislation is not intended to; override international established law, to apply to irrelevant jurisdictions, to apply to events prior to legislation, contradict common law, bind the crown or deprive persons of their property without fair compensation.
Latimer (2010, p. 1-550) has suggested the basic rule for statutory interpretation is to search for the purpose of the legislation.
The offence is allegedly being committed against the Gambling Act, a rule that states:
‘any person under the age of eighteen years and who is found in the vicinity of a betting shop shall be prosecuted and liable to a maximum fine of $100.’
If the court was to apply the literal approach to this, then the meaning is any person under the age of eighteen and who is found in the vicinity of a betting shop shall be prosecuted and liable therefore this would literally include any person under eighteen in the betting shops vicinity. It would include under-age persons simply walking past the betting shop, or who may have been instructed to wait outside the shop by a parent who has entered the betting shop to place a bet. The word vicinity (nearby, surrounding, adjoining, close proximity) would then also apply to a child playing in the park just down the street. The use of the literal approach to statutory interpretation in this instance becomes absurd and inconsistent with the Gambling Act’s purpose.
I would consider the Golden Rule and the Purposive Approach to be the most appropriate in this situation. By applying both of the approaches it will allow for a common sense interpretation of the rule.
In Mr Gambles defence, counsel has argued that he is not guilty because he was apprehended ‘in’ the betting shop whereas the Act only prohibits under-age persons being in the ‘vicinity’ of a betting shop.
If we consider the New South Wales Parliament wants to prohibit under-age gambling and therefore has purposely established the Gambling Act to enforce this. If the Purposive approach is applied to the legislation then the presumed intention of the legislation is taken into account when interpreting the words. If we consider that the legislator intended to prohibit under-age gambling then the legislation when drafted appears to have been overlooked by the author and parliament inadvertently. The intention of the Act is to apply to under-age persons ‘in’ the vicinity of or ‘on’ the premises of a betting shop and who is participating in gambling.
Reference should be made to the Unlawful Gambling Act (1998) No. 113 s.17 which clearly states that a minor must not participate in any form of gambling. This further enforces that gambling by a minor is prohibited.
Mr Gamble is only fifteen years of age and entered the betting shop of his own accord and placed a bet, he was apprehended inside the betting shop shortly after placing the bet by a policeman. Mr Gamble can be advised it is most likely he will be found guilty of the offence of under-age gambling and therefore be prosecuted and liable to a maximum fine of $100.
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