069-NLR-NLR-V-73-S.-P.-A.-PERERA-Inspector-of-Police-Appellant-and-K.-M.-H.-MOHIDEEN-Respon.pdf
H. K. G. FERXAXDO, C.J.—Perera ». Mohideen –
SS5
1970Present: H. N. G. Fernando, C.J.
S. P. A. PERERA (Inspector of Police), Appellant, and K. M. H.MOHIDEEN, Respondent
S. C. 506/6S—J. M. C. Colombo, 36S14
Betting on Horse-racing Ordinance (Cap. 44)—Section 3 (3) (b)—Prosecution there-under—Quantum of evidence—Newspaper reports—Admissibility in evidence—Evidence Ordinance, s. 114.
Whoro, in o prosocution undor section 3 (3) (6) of tho Bolting on Horse-racingOrdinance for unlawfully bolting on a horso which was expoctod to run at araco moot in England, the oral and documentary evidonco establishes that theaccused entered into a wagOring contract, newspaper reports in'the issues of theTimes of London are admissible evidcnco of the fact that the named horsodid run in the particular race. Such evidence is admissible under section 114 ofthe Evidence Ordinance.
-A.PPEAL from a judgment of the Joint Magistrate’s Court, Colombo.
V. S. A. Pullenayegum, Senior Crown Counsel, with S. C. B. Wadu-rjodapiliya, Crown Counsel, for the complainant-appellant.
G. E. Chitty, Q.C., with T. IF. Bajaratnam, for the accused-respondent.
Cur. adv. vult.
October 3, 1970. H. N. G. Febkando, C.J.—
The accused in this case was charged that he did on 21st April 1967“receive or negotiate a bet on a horso race to wit : an all-on bet onerupee win, one rupee place, on a horse named ’St. Mungo ’ proposed to berun in a race meet (Spring Sleeting Stakes) in England on 21st April1967 from D.L. Tudor Peiris of Walamv, Panndura, other than a taxablebet in breacli of section 3 (3) (L) of the Retting on Horse Racing Ordin-ance, Chapter 41 ”. The learned Magistrate acquitted the accuseddespito the fact that he accepted as true the evidence adduct’d by theprosecution, and this appeal is against the order of acquittal.
The prosecution established the following facts :—
(a) on 21.4.1967, a news sheet (P4) called the Grand Sporting Newspurported to contain the names of horses to run at a RaceMeeting at Thirsk in England, and among these names was“ St. Nuiigo ”, ns being a runner in the 4th race ;
(/.) on that day, a dccov went to the accused’s premises, showed himthe news sheet P4, and asked him whether the horse St. Mungowill run ; the accused then referred to the news sheet and replied' that this horse will run at Thirsk ;
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H. X. O. FERNANDO, C.J.—Pcrera v. Mohidecn
the decoy gave the accused a marked two-rupee note and askedthe accused to place a bet Re. 1 for win and Re. 1 for place ;
the accused then wrote out and handed to the decoy the chit P3which reads as follows :—
" Thirsk (4)
1/- St. Mungo 1/-1729
(2/-)”
the Police subsequently found in the accused’s possession themarked currency note, and a chit book which contained theduplicate of the chit P3.
</) issues.of the London Times of 21.4.1967 published the name“ St. Mungo ” as a “ declared runner ” in tho 4th race at theThirsk Race Meeting of that day, and issues of 22.4.1967announced that St. Mungo ran un-placed in that raco. –
In a careful judgment, the learned Magistrate held that the accusedmust be acquitted becauso the prosecution had failed to prove that “ thehorse St. Mungo was proposed to be run in the race mentioned in thecharge”. This fact in his opinion was not proved by means of thereports in the news sheet P4 and in the issues of the London Times,because those reports would only be hearsay evidence of that fact andwere therefore not admissible to prove it.
The Magistrate relied on the judgment in Charles v. Kandiah 1 decidedby Gunasekara J. The question in that case was whether two names,which appeared on what purported to bo a betting slip, were the namesof horses which were to run at a race meeting in India. The only evi-dence on this point was that of a witness who described himself as theEditor of a newspaper published in Ceylon and called the Sporting Times.This witness stated that he had received information from correspondentsin India, who, so the witness said, in turn had received their informationfrom Racing Clubs in India, to the effect that two horses bearing thenames appearing on the betting slip were due to run in races in India onthe relevant date. With respect, I entirely agree with Gunasekara J.that the evidence of the witness was hearsay and inadmissible as proof ofthe fact in question. The learned Magistrate was therefore right inholding that tho reports in the London Times and in P4 could not belawful proof of the fact that a horse named St. Mungo was a runner in therace referred to in tho charge in the present case. But he wronglythought that a subsequent judgment, on which the prosecution relied,had accepted a newspaper report as proof of a fact stated therein.
In Galahitiyawa v. Joseph *, where the question was whether the nameson two alleged betting slips were the names of horses due to run in racesin England on a particular day, Sansoni, C.J. said that reports in tho
■ * (1950) 52 N. L. R: 212.‘(1966} 69 AT. L. R. 152.
XI. n. Vjr.j.*j .—X'crera v. ju on ween
London Daily Telegraph and Times, which mentioned horses so named asbeing runners in two races, Mere " relevant cvidcnco making it moreprobable, according to common sense and common knowledge, that theraces mentioned were proposed to bo run on that day The learnedChief Justice also cited his own earlier judgment in M ihindukulasuriyav. David1 where he had in a similar context mado the followingobservations:—
"The fact of publication of the race programme containing thenames of the horses mentioned in the betting slips must be consideredin interpreting what those betting slips meant. The only possibleinterpretation, I tliink, is that those betting slips were records ofunlawful betting on horse races. The use of the newspapers for thispurposo docs not depend on the contents of the newspapers in regardto the race programme being true. One is entitled to attach somemeaning to what appeared in the newspapers in order to throw somelight on the meaning of the betting slips.”
Because the reasoning of Sansoni C.J. has been wrongly regarded asbeing in breach of the hearsay rule, I would with respect attempt toexplain that reasoning. A bet on a horse-race is a contract of the classwell known to the law as a “ wagering contract ”, although under thepresent law in Ceylon such a contract is void as being illegal. " What the“ layer ” of such a bet offers is to contract that he will pay a specifiedsum if a horse named by him does not win a contemplated race ; and theconsideration for his offer is that the “ taker ” of the bet contracts thathe will, if the named horse does win the contemplated race, pay a sum ofmoney, the amount of which is cither pre-determined or left to be deter-mined by the “ starting price ” or the Totalizator returns. For such acontract to be effected, there must bo a consensus ad idem between theparties to lay and take the bet. Thus the real question in a case like thepresent one is whether there was such a consensus for a bet on a horseexpected to participate in a race proposed to be run. Once the Magis-trate believed the evidence of the decoy in this case that he intended toplaco a bet of JRo. 1 for win and Re. 1 for place on the horse St. Mungo,and that tho accused agreed to take tho bet and then wrote out the chitP3, it was established that the two parties agreed to enter into a wageringcontract. In other words, the oral evidence and tho chit F3 establishedaccording to common sense that there was a meaningful, and not ameaningless, transaction.
Hence it became the duty of the Court to ascertain the meaning of thetransaction, if the available evidence rendered the meaning clear. Thetrue meaning, according to the decoy, was that the chit P3 recorded theconsensus for a wager on a horse named St. Mungo in a race proposed tobo run in England, and this consensus was reached because both partiesread the news sheet P4 which announced that St. Mungo would run in
(J05C) 57 N. L. it. 3S2.
H. N. O. FERXAXDO, C.J.—Pcrcra v. Alohidccrx
$06
such a race. The probability of such a consensus having been reached,became in my view a certainty when the prosecution produced the twoissues of the London Times.
Under existing English Law, betting on horse-races is legal, whether ona race-courso or in a belting shop, and it is common knowledge thatreputable newspapers publish lists of probable runners and also the resultsof horse races, and that members of the public place bets on horse-racesin reliance upon such lists, and settle belting transactions in relianceupon such published results. Sansoni J. was well aware that the lists donot j>rovo that a particular race is proposed to be run, and I myself donot hold that the results published in the Timcs of 22.4.67 (P17) provethat the race was actually run.
Nevertheless, there is the fact that the London Times announced St..Mungo in its issue of 21st April as a probable runner in the 4th race atThirsk, and the further fact that the Times of 22nd April announced thatSt. Mungo fan un-placed in that same race. In the language of s. 114 ofthe Evidence Ordinance, when regard is had to " the common course ofhuman conduct and private business ” in relation to the practice ofbetting on horse-races, it is surely " likely to have happened ” that St.Mungo did run in the particular race. To think otherwise would be tothink quite unreasonably that the London Times perpetrates on itsreaders either stupid pranks or fraudulent deceptions. Even if Sansoni J.did not intend so to hold, I hold that s. 114 entitled a Court to presumefrom these two reports, in the absence of any evidence or inference to thecontrary, that a horse named St. Mungo did run in a horse-race whichwas actually run at Thirsk on 21st April 1967. That being so, it is anirresistible conclusion, on the evidence which the Magistrate hasaccepted in the instant case, that the accused did receive a bet onthat horse-race.
In view of the conclusion just stated, it is not necessary to consider thecorrectness of an opinion which I tentatively expressed during theargument of this appeal, which is that the writing and delivery of a chitsuch as P3 by an accused, in response to an offer to place a bet on ahorse-race advertised in a news sheet such as P4, may suffice to establishau admission by the accused that the named horse was expected to be arunner in a horse-race ‘‘proposed to be run ”. If that opinion be correct,a bet which is laid and taken upon a consensus ad idem that a namedhorse expected to run in a horse-race is an illegal bet, even if it is notproved that the race was actually run or proposed to be run.
Tha acquittal of the accused is quashed. He is convicted of the offencecharged, and I sentence him to a fine of Rs. 500, in default to a term ofsimple imprisonment of 2 months.
Acquittal quashed.