Case Dismissed - Victory for Poker.

IN THE MAGISTRATES COURT CRIMINAL DIVISION ADELAIDE BEFORE MR J.M.A. CRAMOND, CHIEF MAGISTRATE POLICE V (name withheld) AND POLICE V (name withheld) Nos. AMC – 96 – 24105 and AMC – 96 – 24108 REASONS FOR DECISION DELIVERED ON THURSDAY 30 JANUARY, 1997 These two complaints were heard together pursuant to s.51(2)(b) of the summary Procedure Act as they arise from the same incident and both involve a determination of whether the game being played was a game of chance. Mr (name withheld)is charged that on 30 June 1996 at Norwood in a public place known as the “Adelaide Bridge Centre”, bet by way of wagering or gaming on a game contrary to s.51 of the Lottery and Gaming Act 1936. (name withheld)is charged that on 30 June 1996 at Norwood in a public place known as the “Adelaide Bridge Center”, by using instruments of wagering or gaming, played a game contrary to s.51 of the Lottery and Gaming Act 1936. The reason for the differing charges is that in the case of (name withheld)it is agreed that her role was confined to dealing the cards and passing the “pot” to the winning player. Each defendant is charged on a 2nd count that on the same day and place they were present at unlawful gaming contrary to s.61(3)(a) of the Lottery and Gaming Act 1936. In my opinion the wording of these charges is defective. It is my view that in the circumstances of the present case, the prosecution must establish as against (name withheld), that in a public place, with a card, he bet by way of wagering or gaming on a game of chance. As against (name withheld)the element of playing replaces the element of betting. I do not agree that the qualification of “chance” applies only to a “pretended game”. It also qualifies the word game. It is a game of chance or a pretended game of chance that is prohibited. Nor do I understand why in (name withheld)case the complainant refers to her use of instruments of wagering or gaming. S.51 refers to the use of …card … or other articles used as an instrument or means of wagering or gaming. In the case the prosecution relies on cards (or perhaps cards and tokens). In the case of (name withheld) no reference is made to cards or indeed of any other instrument of wagering or gaming. No point has been taken in respect of the form of the two complainants and I will thus proceed to give my reasons on the case as argued. I will however hear counsel on the matters just mentioned before determining what course should be followed. The facts are not in dispute. Pursuant to s.34 of the Evidence Act, the defendants admitted that the premises occupied by the Adelaide Bridge Centre at 145 The Parade, Norwood, are a public place within the meaning of the Lottery and Gaming Act. The statements of police officers Ian Hills and Jason Squire were also admitted by the defendants as containing accurate statements of fact. The conversation in each of those statements is evidence only against the defendant with whom the conversation was held. It is not disputed and I find that the defendant (name withheld) (a) with cards, (b) bet by way of wagering and that the defendant (name withheld) played a game with cards. It is common ground that on the occasion in question, the game being played was a card game known as “Pharaoh”. It is agreed that police officer Hills incorrectly spelled the word as “Faro” in recording his conversation with (name withheld)on 30 June 1996. The game Faro is referred to in s.59 of the Lottery and Gaming Act as one of those games specifically designated as being unlawful. I am told that Pharaoh is a quite recently invented game quite different from Faro. I not, however, that as early as 1738, s.3 of 12 George 2, c.28 provided: “that all and every person and persons who shall be adventurers in any of the said games, lottery or lotteries, sale or sales; or shall play, set at stake or punt at either of the said games of the Ace of Hearts, Pharaoh, Bassett and Hazard, and shall be thereof convicted in such manner and form as in and by this Act is prescribed; every such person or persons shall forfeit and lose the sum of £50. to be sued for and recovered as aforesaid. Nothing however turns on that as I must decide the case on the agreed facts and on the basis on which it was conducted by the parties. There is no dispute that Pharaoh is a card game and one of the variants of poker. It is also called Pharaoh High/Low Split. Five cards are dealt from a shuffled deck to each player. Each player conceals the hand dealt to him from the other players. A further five cards are placed by the dealer, face up on the table. Players place their initial bet upon receipt of their concealed hand and may then chose to place an additional bet as each of the tabled cards is dealt. Players, by using a combination of cards from the concealed hand and from the faced cards, may bet either that they have the highest hand or the low hand. To win the high hand the player must use two cards from his concealed hand and nominate three from the exposed cards. A similar procedure applies in respect of low hand except that to be eligible the players final hand must contain no card higher than eight. (name withheld)gave sworn evidence. He described the game as I have set out above. He gave evidence that he has great experience of card games including the various forms of poker and also bridge. He is a former manager of the Poker Room at the Adelaide Casino. The defense also called Dr Crossman. This gentleman is a PhD in Applied Mathematics and has lectured and studied the rules of statistical analysis and probabilities. He also is an experienced and skilled card player. He has played cards as a semi-professional, including poker tournaments in the United States. The evidence of both (name withheld)and Dr Crossman is to be used as evidence in respect of each complaint. The evidence of (name withheld)and Dr Crossman was not seriously challenged by the Prosecution. I accept their evidence. Both witnesses described the skills which were necessary for a person to be a successful player of Pharaoh High/Low Split. Both witnesses stated the skills in similar fashion. They referred to a skilled player’s need to have a detailed knowledge of the rules of the game, the capacity to employ the best strategies as the game develops, a knowledge of the odds/probabilities of various cards or combinations of cards being held in an opposing players concealed hand, the ability to accurately assess the value of the cards in the player’s own hand, the ability to assess the personality of opposing players and the ability to read the significance of other players expressions and actions. Both witnesses expressed the view that in playing Pharaoh High/Low Split successfully the element of skill was significantly greater than the element of chance. Games may broadly speaking be divided into three categories according to the relative levels of skill and chance which they involve. Some games involve only skill, or what in the early cases and statutes is referred to as mere skill. In these games the element of chance is either non existent or insignificant. Examples of this type of game are archery and darts. Other games are games of mere chance. These are games in which the players exercise no, or little, skill or judgment. An example of such a game is roulette. The third category of games involve both an element of skill and an element of chance. Examples of this class of game are poker and bridge. I am satisfied that Pharaoh High/Low Split is a game involving a significant degree of skill. As I have said I accept the evidence which I have heard. I am also satisfied however that the game involves a degree of chance. The cards which a player receives come into his or her possession by chance as a result of them being dealt at random from a shuffled deck. Similarly the cards placed face up on the table are positioned as a result of chance. There is also an element of chance involved in the assessment in a particular game of the probable relative strengths of the player’s hand and the opponent’s hand. I find however that the element of skill is significantly greater than the element of chance. I accept the evidence of the two witnesses that as a result of chance a less skilled player’s hand may outweigh the hand of a more skilled player but that over a period of time the more killed player will inevitably prevail over the player of lesser skills. The Prosecution has called no evidence suggesting the contrary. The issue for decision is whether the game of Pharaoh is a game of chance within the meaning of s.51 of the Lottery and Gaming Act. The Prosecution contends that if a game contains any element of chance then it is a game of chance. Somewhat surprisingly neither the researches of counsel or myself have discovered any South Australian decision in which the interpretation of s.51 is considered. The prosecution relies heavily on a judgment of the U.K. Court of Criminal Appeal– R v Tompson (1943) 2 A11 E.R.130. That case involved a prosecution under the Gaming Houses Act 1854 (U.K.). The defendants were charged with permitting premises to be used for the purpose of unlawful gaming. One of the issues in the case was whether the playing of poker amounted to unlawful gaming. The Court also considered whether poker was a game of chance. In Tompson, the court relied heavily on the earlier decision of Jenkins v Turpin (1884) 13Q.B.D.505. In order to determine what authority to give to these English decisions it is necessary to consider the legislative background against which the judgments were delivered and to compare it with the South Australian legislative background. It appears that at the common law the keeping of a common gaming house was an indictable offence. Games on which people might gamble such as dice and cards were not in themselves unlawful but the playing of them might amount to unlawful gaming if they were played in a common gaming house. A common gaming house was apparently seen as a public nuisance. It would appear that in the time of Henry V111, statute first declared certain specified games to be unlawful per se. It appears to have been thought that the popularity of certain games was resulting in the men neglecting the practice of archery thereby prejudicing the defence of the realm. Act 33 Henry V111, c.9 made certain games unlawful. It referred to bowling, coyting, cloysh-coats, half-bowl, tennis,dicing tables and carding. Other games were later added to the list of those declared unlawful. I have quoted above the 1738 statute of 12 George 11, c.28 In 1845 the Act 8 and 9 Victoria, c.109 repealed so much of the statute of 33 Henry V111, c.9 as related to “any game of mere skill such as bowling, coyting, cloyshcayts, half bowl, tennis or the like” (my emphasis). Other games such as dice, card games and other games not seen to involve “mere skill” remained unlawful. The next English statute of significance was the 1854 Act 17 and 18 Victoria, c.38. Pursuant to that legislation, dice, card games and other games not seen to involve mere skill continued to be unlawful. It was under that statute which the defendants in Jenks v Turpin (supra) were charged. It was in that context that in Jenks v Turpin (supra) and R v Tompson (supra) the test of whether a game involved “mere skill” arose. The legislation in South Australia appears to have followed a quite different course. So far as I can ascertain the first South Australian statute dealing with the topic of betting was Act No.2 of 1859. S.36 of that Act dealt with the fraud relating to the playing of cards, dice and other games and sports. It is the progenitor of s.49 of the Lottery and Gaming Act 1936. The next South Australian Act of significance appears to be No.13 of 1875 the Lottery and Gaming Act of 1875. S.11 of that Act is the progenitor of s.51 of the Lottery and Gaming Act of 1936 S.11 Was repealed by Act 282 of 1983 and replaced by s.2 of that Act. The new section was substantially similar in purpose to the Act which it replaced. S.15 of Act No.685 of 1897 was the progenitor of s.59 of the Lottery and Gaming Act 1936. It appears to have been the first South Australian provision to declare specific games unlawful where ever and by whom ever played. That Act specified only the “purse trick” and the “three card trick”. Act No.943 of 1907 added Faro, Banker, Fantan, Two-up and Hazard. The 1917 Act added the games “pitch and toss” and “symbol rig”. The offence of betting in a public place created by Act 13 of 1875 was further dealt with by Act No.282 of 1883. Act No.812 of 1902 created for the first time the offence of unlawful gaming and defined unlawful gaming to include any contravention of the Act. That Act is the progenitor of s.61 of the current Act (unlawful gaming) and of the definition of unlawful gaming in s.4 of the current Act. The Lottery and Gaming Act of 1917 inter alia consolidated the previous legislation. S.26 of that Act dealt with cheating at cards, dice etc (now dealt with in s.49). S.36 specified the games declared unlawful per se (now dealt with in s.59 of the Act). S.28 and 37 dealt with betting in public places (now dealt with by s.51) AS has been said, Act No812 of 1902 – s.3 had created for the first time and offence of unlawful gaming. Unlawful gaming was defined to include any conduct prohibited by the Act. S.38 of the 1917 Act continued that concept. S.61 of the Lottery and Gaming Act 1936 is not in identical terms. It creates an offence of unlawful gaming but also of playing an unlawful game. The draftsman appear to have appreciated that unlawful gaming might occur when the game being played was not unlawful per se. I conclude that unlike the position in England, card games as a genus have never been made unlawful games by South Australian statute. Fraud and cheating at games has been illegal since 1859. Various restrictions have been imposed on betting in public places since 1875. Since 1897 specified card games and tricks and other games have been declared unlawful per se. In view of the different legislative course adopted in respect of gaming in South Australia I see no reason to imagine that Parliament in 1936 when referring to a “game of chance” or to “ unlawful gaming” had in mind the test set out in Jenks v Turpin (supra) that a game which had any element of chance was thereby a game of chance. I am fortified in this view by the approach taken by the English Courts in respect of games other than card and dice. In R v Tompson (supra) at p.136, Lewis J says – “Since the year 1913 the courts, in automatic machine cases, have taken as a test, not whether the game is one of mere skill, but whether or not the proportion of skill to chance is such as to establish that skill is the dominant or governing factor in the game. That test has never been applied to games of cards, and in our opinion rightly so, because as was pointed out in Turpin’s case by Hawkins, J, there is a distinction between card games which by statute are unlawful unless they are games of mere skilland such games as those players with automatic machines which are not unlawful unless they are games of mere chance and become mere instruments of gaming.” (my emphasis) I am unable to find in South Australian law a distinction of the type to which Lewis J refers as Pharaoh has never been made unlawful per se by statute. Nor in South Australia have card games been declared unlawful unless they are games of mere skill. For that reason I am unable to agree with the submission of the Prosecution that the game of Pharaoh as described in the evidence, is a game of chance solely by virtue of the fact that an element of chance is involved in its playing. Accepting as I do that the predominant feature determining the success of a given player is that player’s skill I am unable to say that the game in question is a game of chance with the meaning of s.51. It follows that against each defendant Count 1 will be dismissed. As against each defendant the case has been conducted on the basis that the defendants were present at unlawful gaming by virtue of paragraph (b) of the definition of unlawful gaming in s.4 of the Act. S.51 of the Act is the provision said to have been contravened. It follows that those counts must also be dismissed.