State (Rollinson) v Kelly

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: O'HIGGINS C.J.,Henchy J.,GRIFFIN J.,HEDERMAN J.,McCARTHY J.
• Judgment Date: 31 January 1984
• Neutral Citation: 1984 WJSC-SC 741
• Docket Number: [S.C. No. 308 of 1981],(308/81 - 51/82)
• Date: 31 January 1984

1984 WJSC-SC 741

THE SUPREME COURT

O'Higgins C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

(308/81 - 51/82)

State (ROLLINSON) v KELLY & ATTORNEY GENERAL

THE STATE AT THE PROSECUTION OF JOHN DAVID ROLLINSON

Prosecutor/

Respondent

and

DISTRICT JUSTICE JAMES A. KELLY AND THE ATTORNEYGENERAL

Respondents/

Appellants

Subject Headings:

CRIMINAL LAW: offence

CONSTITUTION: trial of offences

STATUTORY INTERPRETATION: mistake

1 JUDGMENT delivered the 31st day of January 1984by O'HIGGINS C.J.

2 These are certiorari proceedings in which the Prosecutor/Respondent is a bookmaker having two bookmaking offices, one at 244 Clontarf Road and the other at 53 Collins Avenue, Dublin. He has been summoned and convicted in the District Court in respect of 28 complaints of breaches of the Betting Duty (Certified Returns) Regulations 1934, in respect of each of his offices. He has been fined a total of £6,750. In these proceedings he challenges the validity of these convictions. The challenge is based on three specific grounds which I will detail later. As the validity of the convictions is challenged it is necessary to refer in some little detail both to theregulations under which the convictions were pronounced and to the statutory provisions under which the regulations were made. The Finance Act 1926provided for the licensing of bookmakers, the registering of their premises and the imposition of an excise duty on bets placed with them. Section 25 of the Act authorised the Revenue Commissioners to make regulations for "securing the payment of the duty on bets and generally for carrying the provisions of this Act in relation to such duty into effect". The Section set out particular purposes for which such regulations could be made and amongst these was thefollowing:

"(c) entering into arrangements with and taking security from bookmakers desiring to pay the duty on bets on the basis of returns furnished by them".

3 The Prosecutor/Respondent is a bookmaker who has entered into an arrangement to pay duty on bets on the basis of returns furnished by him. Accordingly, the Betting Duties (Certified Returns) Regulations 1934 apply to him and these are the regulations now in force and which must be considered in these proceedings.In relation to these regulations, Section 25(2) of the Finance Act 1926provides as follows:

"(2) Every person who contravenes or fails to comply with a regulation made under this Section shall be guilty of an offence under this Section and shall be liable on summary conviction thereon to an excise penalty of £500".

4 The regulations mentioned have been made under Section 25 and accordingly any breach by a bookmaker to whom the regulations apply renders that bookmaker liable to an excise penalty of £500.

5 The regulations provide for the entering into the arrangement to pay duty on the basis of certified returns and on the completion of such an arrangement the bookmaker is armed with a form of authority to pay duty on the basis of such returns and he gives an address to the Revenue Commissioners as his office in respect of which the returns will be made (see regulations 2 and 3). Once such an arrangement has been made certain obligations are imposed with reference to the keeping of records, betting slips and books.In particular he is charged with a statutory obligation to furnish returns of all bets accepted by him. The relevant regulations are as follows. Regulation 8 states:

"Every bet accepted by the bookmaker in the registered bookmaking office shall be included in the returns to be furnished under number 26 of these regulations."

6 And regulation 9 provides:

"Every bet liable to duty, which is accepted by the bookmaker at any place other than his registered bookmaking office, shall be included in the returns to be furnished under number 26 of these regulations from the registered bookmaking office specified for that purpose in the application made under number 2 in the regulations."

7 These two regulations, it will be seen, oblige the bookmaker to make a return of all bets accepted by him whether at his office or elsewhere. In particular it should be noted that these bets must be included in the returns "to be furnished under number 26 of these regulations". Regulation 26 repeats the obligation that all bets must be returned but in addition provides that they shall be returned in a form prescribed by theCommissioners. The regulation is to the following effect:

"26. The bookmaker shall furnish a return in the form prescribed by the Commissioners of all bets to which the arrangement is applicable accepted by him on each day of the week."

8 The arrangement of course refers to bets accepted by the bookmaker either at his office or elsewhere on the course or wherever it may be. Under this regulation, number 26, a return of all such bets must be made in respect of each day of the week on the form prescribed. The next regulation, regulation 27, provides as follows:

"27. The return to be furnished under number 26 of these regulations shall be certified by the bookmaker or by the person authorised by him who has been approved by the Commissioners for thatpurpose."

9 Again, it is to be noted that it is the return "to be furnished under number 26" which is required to be certified by thebookmaker.

10 During the course of the argument in this Court we were furnished with a document which, we have been informed, is the prescribed form referred to in regulation 26 and in other regulationsnot yet mentioned. This form is headed:

"BETTING DUTY"

11 and underneath is:

12 "Daily Returns and Weekly Summary".

13 It provides for the name of the bookmaker and his address and then it states that it is a

"Return of all taxable bets made on each day in the weekcommencingon.................... and ending onSaturday,the..........................,19......and summary of the returns with the total duty payablethereon."

14 There are then six columns. The first column contains the seven days of the week, beginning on Sunday and ending on Saturday. The next column provides for an entry opposite each day of the week, under theheading:

"Gross total of bets received"

15 and then, still opposite each particular weekday, is a column which provides for

"Total of void bets"

16 and then, beside that, is

17 "Total of bets laid off with other bookmakers",

18 and then there is a provision for

19 "Net total on which duty is payable",

20 and the final column, opposite each day of the week is

21 "Amount of duty payable at 20 per cent".

22 Then at the foot of the form, under the column naming each day of the week, are the words

23 "Summary of above returns and total duty payable".

24 It is clear that the summary contains the tot, in pounds, of the entries under each heading and in respect of each column. The form then provides for a certifying of the returns by the authorised person who would either be the bookmaker or his nominee, and the form is addressed to The Collector of Customs and Excise.

25 This being the prescribed form, it seems clear that the returns to be furnished under regulation 26 are to be the total sum of bets received in respect of each day, and must include the amount of duty in respect of that total for the particular day. Also, of course, the weekly summary will consist of the total of the amounts received in bets for the week and will indicate the total amount of duty payable. An examination of theform indicates that particulars of each individual bet could not be furnished as the form does not appear to be appropriate for the inclusion of such particulars. Regulation 30, which is relevant also in this case, provides as follows:

"30. Separate returns, daily and weekly, certified by the bookmaker or by the person authorised by him, who had been approved by the Commissioner for that purpose, and separate remittances of the duty shall be furnished by the bookmaker in respect of each registered bookamking office of which he is the proprietor."

26 The regulations, which I have mentioned, accordingly impose on a bookmaker, who has entered into the relevant arrangement, an obligation to record all bets made by him, to include in a daily return each bet and to furnish such return on the prescribed form giving the total amount in pounds of the bets accepted by him each day. He is obliged to do this in accordance with regulations 8, 9 and 26 and he must fulfil this obligation in respect of each bookmaking office of which he is the proprietor under regulation 30.

27 I now turn to the regulation under which these prosecutions have been brought. This is regulation number 29. It deals with the time by which each weekly return on the prescribed form must be made to the Collector of Customs and Excise. It is obviously the intention of this regulation that the total daily returns and the weekly summary will be entered on the prescribed form and this form, with the appropriate amount of duty, will be forwarded to the Collector of Customs and Excise. The regulation is in the following terms:

"Not later than the Thursday next following the week ending Saturday, to which the daily returns required by number 27 of these regulations relate, the bookmaker shall forward to The Collector of Customs and Excise designated by the Commissioners for that purpose-"

(a) a summary of such daily returns in the form prescribed by the Commissioners, duly certified by him or by the person authorised by him who has been approved by the Commissioners for that purpose,

(b) all such daily returns, and

(c) the amount of the duty in respect of thebets to which the arrangement is applicable accepted by him during the week to which the returns relate."

28 Obviously this regulation is intended to ensure that, by the latest, on Thursday each bookmaker will make the appropriate return on the specified form with the appropriate return on the specified form with the...