042-NLR-NLR-V-52-CHARLES-Appellant-and-KANDIAH-Inspector-of-Police-Galle-Respondent.pdf

On the first count the case for the prosecution is that when the appellant■received from William these documents and currency notes he received•(in the words of the police report to the court and the charge) an” ‘ All on ’ bet of Bs. 2.50 on three horses (1) True Love (2) Green Lady
Gul-Jan-al-Iraq proposed to be rim in races in India and Ceylonon August 6, 1949,” or negotiated such a bet.
A clerk of the Ceylon Turf Club who was present on duty at a race-meeting held by that club in Colombo on August 6, 1949, deposedthat a horse named Gul-Jan-al Iraq ran in the fifth race at that meeting.A witness named Wijesekere, who described himself as the acting editor■of a newspaper called the “ Sporting News ”, gave evidence to the■effect that according to his information “ True Love ” and ” GreenLad ” (not “ Green Lady ”) were two horses that were due to run inraces that were to be held in India on August 6, 1949. This wasinformation which, according to him, was contained in telegrams purport-ing to have been sent by his correspondents in India as informationobtained from various racing clubs in that country. Upon this evidencethe learned Magistrate held that “ True Love ” and “ Green Lad ”
were names of horses proposed to be run in races to be held in Indiaon August 6, 1949. He also held that “ Green Lady ” in P 2 wasa mistake for ' ‘ Green Lad ’ ’.
Wijesekere’s evidence was clearly hearsay, and before it was admittedthere was no finding by the learned Magistrate as to the existence ofany circumstances that would bring it within any of the exceptions,to the rule against hearsay. Thus the finding that P 2 contained th&names of two horses that were to run in races to be held in India wasbased on inadmissible evidence.„
Upon another point too the learned Magistrate has based a conclusionon inadmissible evidence. The tw<o police officers stated that theyfound “ betting slips ” in the possession of seven or eight personsother than the appellant who were in the boutique at the time of theirentry, and also some “ betting slips ” and cash in the possession of a,brother of the appellant who too was seated at a table in the boutique,and that all these persons were being charged separately. It is apparentfrom the context that by a “ betting slip ” was meant a documentused or intended to be used as a record of unlawful betting on a horse-race, which would be an “instrument of unlawful betting ” withinthe meaning of the Ordinance. The documents themselves were notproduced for the inspection of the court and no evidence was given offacts that would entitle the prosecution to adduce secondary evidenceof their contents. By referring to them as “ betting slips ” withoutproducing them the witnesses did even more than give inadmissiblesecondary evidence of their contents, for they gave their interpretationof the documents; and it appears from the judgment that the learnedMagistrate accepted that interpretation of documents that he had notseen and the contents of which had not been proved, thereby unwittinglysubstituting the witnesses’ decision for his own. The verdict is in partbased upon this evidence as to the finding of the “ betting slips ” whichthe learned Magistrate refers to as “ incriminating evidence ”. Therecan be no question as to the highly incriminating effect of such evidence ;for by the combined effect of sections 16 and 17, if any instrument ofunlawful betting is found in premises entered under the authority of asearch warrant issued under section 15 (1), then any person who is foundthere “ shall be presumed, until the contrary is proved, to be guiltyof the offence of unlawful betting on a horserace The learnedMagistrate has based on inadmissible evidence a finding of fact thatraises a legal presumption of guilt.
The rest of the evidence on which the conviction is based is evidenceto the effect that on the table at which the appellant was seated werefound two books, P 3 and P 3a, a sheet of paper P 4, and two copies ofthe “ Sporting News ” P 5. The books P 3 and P 3a are described -inthe evidence and the judgment as “ chit books ”. Each had a piece ofcarbon paper inside it, and some of the pages had been written on andthe rest were blank. The writing consists of a series of figures in fourcolumns without any words^ to indicate what they mean. The paper P 4contains some writing on it and is described by the Inspector in hisevidence as “a sheet of paper from an exercise book with names of
horses written in duplicate The learned Magistrate holds that thesedocuments “ prove convincingly that the accused was actively connectedwith the business of betting when the police party raided his shop ”,and that “ P 3 and P 3a indicate to anyone with only a slight knowledgeof racing that the numbers appearing on the used pages were of treblebets He also holds that the documents were instruments of unlawfulbetting.
Section 2 of the Ordinance (as ftmended by Ordinance Ho. 55 of 1943)enacts that—
“ * instrument of unlawful betting ’ means any article or thingused or intended to be used as a subject or me,ans of unlawful bettingon a horse-race, or any document used or intended to be used as aregister or record or evidence of any unlawful betting on a horse-race.”
Neither a list of horses nor a newspaper pm-porting to publish racing newsis necessarily an instrument of unlawful betting, and the learnedMagistrate has not stated why he holds that P 4 and P 5 fall within thisdefinition. He may be right in his view that P 3 and P 3a contain arecord of bets on horse-races but he has omitted to state how that conclu-sion is reached. Moreover, he has apparently omitted to consider whetherthat is the only reasonable interpretation of the documents, and if sowhether they cannot be records of betting that is not unlawful. Inregard to each of the documents P 3, P 3a, P 4 and P 5, the learnedMagistrate should have directed his mind to the question whether ithad been proved beyond reasonable doubt that it was an “ instrumentof unlawful betting ” as defined in the Ordinance. Apparently the needof such a direction was not evident after the learned Magistrate hadarrived at the finding regarding the " betting slips ” that raised a legalpresumption of guilt.
These defects of misdirection and improper admission of evidenceappear to me to be sufficiently serious to vitiate the conviction. Etis therefore unnecessary to consider a further argument urged byMr. Perera that there was no sufficient evidence as to the meaning ofthe writing P 2 which William handed to the appellant.
Appeal alloiuecl.