Attorney General (Enright) v Best's Stores Ltd

• Jurisdiction: Ireland
• Judgment Date: 01 January 1970
• Date: 01 January 1970
• Docket Number: [1968. No. 15 SS.]
• Court: High Court

[1968. No. 15 SS.]

[1963. No. 111 SS.]

Attorney General (Enright) v. Best's Stores Ltd.

THE ATTORNEY GENERAL (at the Prosecution of Superintendent M. ENRIGHT)

Complainant

and

BEST'S STORES LIMITED

Defendants.

Attorney General (Enright) v. Best's Stores Ltd.

Bolger

and

Doherty

Criminal Law - Lottery - Shopkeeper - Sales promotion by presentation of prize to one of several customers - Identity of prize-winner obtained by chance - Whether shopkeeper had promoted a lottery - Gaming and Lotteries Act,1956 (No. 2 of 1956), ss. 2, 21.

Case Stated.

The Case was stated by District Justice Hugh C. McGahan on the 6th January, 1968, pursuant to s. 2 of the Summary Jurisdiction Act, 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961, on the application in writing of the complainant.

Section 2 of the Gaming and Lotteries Act, 1956, provides that in the Act "'lottery' includes all competitions for money or money's worth involving guesses or estimates of future events or of past events the results of which are not yet ascertained or not yet generally known."

The Case was stated in the following terms:—

"1. At the sitting of the District Court held at Castlebar on the 17th day of May, 1967, the Attorney General (hereinafter called the appellant) charged the said Best's Stores Limited (hereinafter called the respondent) that the respondent did on the 26th day of November, 1966, at Bridge Street, Castlebar, within the above court area and district, promote a lottery without holding a licence or permit entitling it to do so contrary to s. 21 of the Gaming and Lotteries Act, 1956. At the same sitting of the District Court on a separate summons the appellant charged the respondent with a similar offence on the 3rd day of December, 1966, at Bridge Street, Castlebar aforesaid. The hearing of both charges was adjourned to the sitting of the court at Castlebar on the 21st day of June, 1967, and further adjourned to the sitting of the court at Ballina on the 11th day of July, 1967, when I dismissed both charges on the merits.

2. Evidence for the prosecution was given in respect of both charges by Garda Jerry Henry, Castlebar. In relation to the 26th November, 1966, he said that at 4.25 p.m. on that date he entered respondent's stores at Bridge Street, Castlebar. When he entered he heard an announcement over the stores' public-address system that there would be a free draw for a large turkey at 5.0 p.m. The announcement stated that all that was required was for all customers who purchased goods valued at £1 or over to write their names and addresses on the back of their checking-out slips and to drop them into a box provided at the checking-out counters. The stores were operated as a supermarket and customers, having selected their purchases, brought the goods to a checking-out counter where they were checked by an assistant and enumerated by reference to price on a checking-out slip which also showed the total amount of the purchases, this amount being then paid to the checking-out assistant. Witness remained in the stores for some time and heard the aforementioned announcement repeated over the public-address system about every five minutes. At the checking-out counters he saw a sealed cardboard box with a slit in it and saw customers write their names on the back of their checking-out slips and dropping them into this box. The assistants at the counter wrote the names for some customers. Witness counted 25 slips being dropped into the box. At 5.0 p.m. witness was present when Mr. Higgins, manager of the stores, drew a ticket from the box and announced that the winner of the turkey that week was a Miss Cogger, Ballyvarry, Castlebar. Witness interviewed Mr. Higgins immediately afterwards and told him that he believed the draw constituted an offence under the Gaming and Lotteries Act, 1956. Mr. Higgins replied:— "I don't know. The turkey is a giveaway offer to customers. I will see my directors."He said that there would be a draw every Saturday until Christmas.

In relation to the 3rd December, 1966, witness said that he entered Best's Stores at Bridge Street, Castlebar, and stood near the checking-out counters when he saw customers writing their names and addresses on the back of checking-out slips and dropping them into a cardboard box at the exit from the checking-out counters. Every five minutes approximately Mr. Higgins, manager of the stores, announced over the public-address system that there would be a free draw for a turkey at 5.0 p.m. and that purchasers of goods to the value of £1, or more, were entitled to compete for the turkey by writing their names and addresses on the back of their checking-out slips and dropping them into the box. Witness was pre.sent at 5.0 p.m. when Mr. Higgins shook the box. of tickets and got a customer to draw a ticket from the box. The winner of the turkey was announced as Mr. Willie Ryan, Kilkelly, and witness saw a turkey being presented to him. Witness interviewed Mr. Higgins immediately afterwards and asked him if he had consulted his directors since the previous week, and Mr. Higgins said that his company had sought legal advice on the matter of the draw and had been told that it was legal. In cross-examination, witness agreed that a purchaser of goods to the value of £1 or over who did not participate in the draw would not get any refund or any more goods than a purchaser who did participate.

3. Mr. John McHale, State Solicitor, who appeared for the appellant, submitted that the operation of the "draw" constituted a lottery within the scope of the Gaming and Lotteries Act, 1956. He referred to a judgment1 of the High Court delivered by Mr. Justice Davitt on the 16th December, 1963, in a case of Bolger v.Doherty, the net effect of which was that the proper definition of a lottery as referred to in s. 21 of the Gaming and Lotteries Act, 1956, was not confined to the definition contained in s. 2 of the Act but depended on the ordinary meaning of the word; and in this context the...