R v Samuel Gould (Criminal Review Case 1 of 1931) [1931] ZMHCNR 1 (31 December 1931)

[Vol. I R. v. SAMUEL GOULD. A Criminal R eview Case of 1931. Gaming in a public place— 36 and 37 Vict. G. 38 8. 3—meaning of “ Public Place ” . The following review judgment deals not only with the above case but also with another similar case, viz., R. v. O'Connor reported at page 45 post. The note o f the Subordinate Court in the present case reads: “ The facts were not in dispute. Accused produced a Crown and Anchor board and sat with it outside the Mine Club at Nkana. The club in question is on Mine property but is not enclosed and anyone can walk across the ground on which it stands. The club building is only ten or fifteen yards from the road. The evidence was that anyone, Mine employee or not, could have gone up to accused, and put money on the board and I held that accused was gaming in a public place.” The offence of gambling in a public place is now contrary to a Municipal By-law, a Township Regulation or a Mine Township By-law as the case may be. A definition o f the expression “ public place ” is to be found in the respective by-laws or regulations and in each case reads thus public place includes any public way or building and any place or conveyance to which for the time being the public are entitled or permitted to have access, either without any condition or upon condition o f making any payment ” . But see the judgment o f the Federal Supreme Court in Regina v. Mumanga 1956 R. & N. 53 on the interpretation o f the definition o f “ public place ” (which definition appears in By-law 2 o f the Ndola Municipal By-laws) in relation to By-law 240 o f the Ndola Municipal By-laws. It should be noted that the said By-law 240 has now been repealed. G ord on Sm ith, A . J .: Both these cases raise the point as to what is a “ public place In the first case the accused was conducting a “ Crown and Anchor ” board outside the Mine Club, Nkana, the place being on unenclosed Mine property and to which anybody had access. In the other the accused was found lying drunk outside one o f the Cator Huts which constitute the single quarters, similarly on Mine property. Pedestrians and motor cars pass along and between the huts and the passages are in the nature o f thoroughfares. In many Acts, public places are defined. In the Street Betting Act, 1906, “ public place ” is defined as including “ any public park, garden or seabeach and any unenclosed ground to which the public for the time Vol. I] being have unrestricted access and shall include every enclosed place (not being a public park or garden) to which the public have a restricted right o f access whether on payment or otherwise i f at or near every public entrance there is conspicuously exhibited b y the owners or persons having the control o f the place a notice prohibiting betting therein The Act does not apply to Ireland and is restricted in its application to Scotland so, I apprehend, it does not apply here, but I make no ruling o n this point. In Langrish v. Levy, 10 Q. B. D. 44, a railway carriage, on its journey, was held to be “ an open place to which the public have access ” , within the meaning of the section under which the accused Gould was charged. The inside o f a cab standing on a public rank was similarly so held an open and public place. The roof o f a house within the view o f many persons was also held to be a public place in a case o f indecent exposure, although the actual spot where the accused was could not be seen from the street (R. v. Thallman 33 L. J. M. C. 58). I might m ention the fact that the wording o f section 3 o f the Vagrancy A ct Am endm ent A ct, 1873, speaks o f “ any street, road, highway or other open and public place or in any open place to which the public have or are perm itted to have access In section 13 o f Proc. 15/1916 the expression is “ public place ” and not “ open and public place A public place w ould therefore appear to include any place to which the public are accustom ed to resort without being interfered with, though there is no legal right to do so, and it would appear to be immaterial whether the place is enclosed or not. Both convictions are therefore affirmed.