THE HIGH COURT
		JUDICIAL REVIEW
		1996 No. 116 J.R.

BETWEEN
SPORTS ARENA LIMITED
		PLAINTIFF
AND
HIS HONOUR JUDGE LIAM DEVALLY AND THE DIRECTOR OF PUBLIC
PROSECUTIONS
		DEFENDANTS

Judgment of Mr. Justice Dermot Kinlen delivered on the 30th day of July, 1998.

	The D.P.P. issued several summonses against Sports Arena Limited in respect of alleged offences under Sections 4 and 5 of the Gaming and Lotteries Act, 1956 as amended.  The matters came before District Judge Desmond Hogan on the 16th day of November, 1993 and he convicted the Defendant Company and imposed fines.
	Upon motion of Counsel for the Applicant made ex parte on 10th June, 1996 before Mr. Justice Kelly, the Court having read the statement dated 29th March, 1996, the verifying affidavit of Terence E. Dixon filed on 29th March, 1996, the Court ordered that the Applicant do have leave to apply for:-
(a)	An Order of Certiorari by way of an application for judicial review of the order and conviction of the Applicant made on the 15th day of December, 1995, in a matter entitled Garda Peter Griffin -v- Sports Arena Limited whereby as a result of said proceedings the Applicant was found to have acted in contravention of the Gaming and Lotteries Act, 1956 and in particular Section 4 and 5 thereof.

(b)	In the event of the Court granting the relief at (a) above an Order remitting the action to the said Judge for the purpose of stating a case for the opinion of the Supreme Court on the grounds set forth at paragraph (e)(i) and (vi) inclusive in the aforesaid statement.

	The action is actually entitled "The Director of Public Prosecutions at the suit of Garda P.J. Griffin" where it is incorrectly cited in the Court Order.  The matter had come on appeal from the learned District Judge to the Dublin Circuit Court before His Honour Judge Liam Devally.  The matter came before Judge Devally on the 21st March.  Subsequently, on 7th April, 1995 there was an application for a direction and an application made for a case stated.  On 3rd November, 1995 there was another application for a case stated.  All applications were refused.  The learned Circuit Judge made his order on 16th September, 1995.  The Plaintiff did not bring his application in time and by Order dated 1st July, 1996, Mr. Justice Geoghegan extended the time for service.  The grounds on which relief is sought are set out in the statements to ground the application for Judicial Review as follows:-
	(i)	The First named Respondent (hereinafter referred to as the Judge) erred and acted without jurisdiction or alternatively exceeded his jurisdiction and/or acted otherwise and in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law in refusing to accede to the applications of Senior Counsel and Solicitor for the Applicant for the case to be stated to the Supreme Court.

	(ii)	The Judge erred and acted without jurisdiction or alternatively exceeded his jurisdiction and/or acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law in failing to exercise the discretion granted to him pursuant to Section 16 of the Courts of Justice Act, 1947 in favour of the Applicant in circumstances wherein Senior Counsel and Solicitor acting on behalf of the Applicant had applied to the Judge to state the case on specific points of law and in circumstances wherein the Judge was aware that there was no other avenue open to the Applicant for the purpose of seeking a determination in relation to the said points of law and in consequence of such failure and/or refusal to state the case, the Applicant has been deprived and/or precluded from having a trial of the issues in due process of law and has thereby been deprived of due process and the benefit of the principles of constitutional justice.

	(iii)	The Judge erred and acted without jurisdiction or alternatively exceeded his jurisdiction and/or acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law in and about the application of the proper and correct principles and/or grounds upon which he ought to have exercised his discretion to state the case.

	(iv)	The Judge erred and acted without jurisdiction or alternatively exceeded his jurisdiction and/or acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law in purporting to make findings of fact unsupported by evidence and in consequence of such unsupported findings of fact the Judge erred in proceeding to convict the Applicant.  

	(v)	The Judge erred and acted without jurisdiction or alternatively exceeded his jurisdiction and/or acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law in purporting to take into account matters which were not relevant.

	(vi)	The Judge erred and acted without jurisdiction or alternatively exceeded his jurisdiction and/or acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law in consequence of an incorrect application of the law.
	The evidence before this Court is contained in several affidavits.  First there is an affidavit of Terence E. Dixon, a member of the firm of solicitors on record for the Applicant, which was sworn on 29th March, 1996.  He sets out that the Plaintiff has three summonses under Section 4 and three summonses under Section 5 of the Gaming and Lotteries Act, 1956 as amended.  Judge Desmond Hogan sitting at the District Court convicted and ordered the forfeiture of the machines then being held at the Sports Arena, 4 Talbot Lane, Dublin 1.  An appeal was lodged which came before the Circuit Judge on 31st March, 1995.  At that time, the Director of Public Prosecutions was represented by Mr. Roy Pearson, solicitor of the office of the Chief State Solicitor.  Gardai Griffin, O'Shaughnessy and Sergeant O'Connell proceeded to give evidence of the various alleged breaches by the Plaintiff and each in turn were cross examined by Senior Counsel for the Plaintiff.  On the basis of the evidence advanced both in direct and leading from cross examination, application was made at the conclusion of the prosecution case by Senior Counsel for a direction on the basis that the evidence was short of satisfying the necessary criteria for proof in criminal matters.  In particular, that the summonses in these cases, the respective number for Talbot Lane and the evidence advanced before the learned Circuit Judge and expert witnesses disclose that in fact the premises occupied for the purpose of the prosecution were number 23B Marlborough Place and 1 Marlborough Place.  Certificates of the rateable valuation in respect of the properties were also tendered.  The evidence would appear to confirm that in fact the Plaintiff or Applicant herein had four properties, that there was internal communication between them and that in fact there were only small partitions between portions of them and none of which reached to the roof.  Senior Counsel urged in the Circuit Court and in this Court that the points of law on which he wanted the opinion of the Supreme Court were of sufficient magnitude and importance to warrant a case stated.   In particular, if he is convicted, the Applicant is ultimately going to suffer the potential forfeiture of some thirty machines and in respect of which evidence had only been given in respect of six such machines.  This case came before the Circuit Court on a number of occasions.  A number of times, Senior Counsel submitted his request for case stated.  The Judge throughout refused to state the case and eventually convicted the Applicant on 15th December, 1995.
	Basically, the Applicant is dissatisfied with the way in which the First named Respondent exercised his discretion pursuant to Section 16 of the Courts of Justice Act, 1947.  The reliefs sought amount to orders quashing the convictions imposed and an order remitting the matter to the Circuit Court and an order that a case might be stated.  
	The main affidavit on behalf of the State is that of Roy Pearson of the Chief State Solicitor's Office sworn on 4th April, 1997.  He gives details of some of the evidence which was before the learned Circuit Judge.  He says that the first witness to give evidence was Garda Griffin.  He gave evidence of having worked as a gaming machine arcade manager and cashier before joining An Garda Siochana.  He is attached to Store Street Garda Station.  He was in plain clothes duty on 30th July, 1992 and investigated complaints of illegal gaming.  In particular, he was investigating poker machines.  He was claiming that the persons who played these machines were being paid more money than they had invested.  He was used to working with machines such as the "noraut poker machine" and the "kimble poker machine".  He dealt extensively with the way the machines worked.  Garda Griffin's statement is that on 30th July, 1992 he entered an amusement hall by the name of "Barneys" with an entrance at 4 Talbot Lane and also on its other side at 24 Marlborough Street.  He described how he put £2 in a machine, played the game of poker and that sufficient points enabled him to get £6 and he thus made a profit of £4.  He then went back to a different machine and put £3 into it and played poker and soon accumulated his points up to 400.  He signed a docket and gave it to the cashier who in turn gave him £8, thus making a profit of £5.
	On 7th August, 1992, accompanied by Garda Una O'Shaughnessy he entered the premises.  Both officers were in plain clothes.  The two Gardai entered the enclosed area where the "noraut poker machines" were kept.  He inserted two pounds into a machine and received 100 points.  He played the game of poker and soon accumulated up to 300 points.  He went to the cashier and Mr. Forte asked Garda Griffin to sign a docket and this was handed to the cashier who handed over £6.  Later that evening, Sergeant O'Connell, Garda O'Shaughnessy and Garda Griffin all entered Barney's amusement arcade and interviewed Mr. Tony Forte and the two people who had been cashiers at the time of one or other of the visits by Garda Griffin and who had given him his winnings.  It was put to Garda Griffin that the area on the map with the numeral 4 on it was the room adjacent to Talbot Lane and it contained video games and no winning machines.  Garda Griffin said that he could not say if that were true.  He said that the entire interior ground floor plan was open plan with no physical separation between any of the areas marked as individual boxes on the map.  An officer of the Treasurer's Department of Dublin Corporation then gave evidence that the Applicant was the rated occupier of hereditaments at No.103 Talbot Street described as "a shop and stores", No.105A Talbot Street described as an amusement hall, at No.23A Marlborough Street described as an amusement arcade, at No.23B Marlborough Street described as an amusement arcade, at No.24 Marlborough Street described as an amusement arcade and stores (basement) and in No.24 Marlborough Street described as offices first and second floor.  It was further stated that for the year 1992 Sports Arena Limited (the Applicant herein) was the rated occupier of hereditaments at No.4 Talbot Lane, described as an "amusement arcade".  He described how Sports Arena Limited was the rated occupier for No.4 Talbot Lane from 1989 until the end of 1994.  No.4 Talbot Lane was described as an amusement arcade for those years.  Sports Arena Limited was the rated occupier of all those hereditaments from 1989 until the end of 1994.  No appeal had been lodged by Sports Arena Limited against its obligation to pay the rates which had in fact been paid.  Mr. Forte relied on the receipts signed by Garda Griffin and he said that he had won no more than the value of his stakes.  The State Solicitor argued that this was an open plan area and a letter addressed to one entrance or the other would be delivered to any part of the arcade.  A person in the arcade would not have been aware of the difference of the designated rateable areas.  If the learned Circuit Judge had any problems, the State Solicitor suggested deleting the numeral four from the District Court Orders.
	Mr. Desmond Killeen of Donal O'Buchalla Limited gave evidence on 3rd November, 1995.  He had studied maps in the Valuation Office and stated that the machines in controversy were located in the areas rateably assessed as 23B Marlborough Street and 1 Marlborough Place neither of which were postal addresses.  Judge Devally gave judgment on 14th December, 1995.  Application was then made for forfeiture of all 53 machines.  Judge Devally adjourned the matter to the next day and on 15th December, 1995, he ordered that 17 of the machines be forfeited to the Minister for Justice and that the remaining 36 were to be disposed of by the Applicant inside the Dublin area.  Mr. Pearson states that Senior Counsel on behalf of the Applicant did not formulate any particular points of view which he wished the Supreme Court to address.  He merely indicated that he had made his five submissions and that if Judge Devally found against him, he wished that the case should be stated.  By replying affidavit of Terence E. Dixon dated 13th January, 1997, he recites the evidence as he recalls it and it is substantially the same as that of the State Solicitor.  Mr. Dixon stated that Garda Griffin said there were no poker machines in the area marked 4 Talbot Lane nor in the area marked 24 Marlborough Street.  He agreed that the machines bore a legend on the screen 
informing a player that they could not obtain more money than the money which they put into the machine and that the machine is more for amusement only.  Garda Griffin did not read the receipt which he signed and he agreed that the document signed was untrue.  The guard had signed a statement that he had read the rules, that he understood them and that the amount he was entitled to receive back was not exceeding the amount of money he had inserted in this money back machine.  On the machines appear the following statements:-

"Poker players please note: This is a money back poker machine:  It is a skill game for amusement only.  Since the recession of the Gaming and Lotteries Act, you cannot win money on this machine.  But it is in accordance with the law if you achieve credits on this skill machine to receive back no more than you have put in the machine.  

You cannot under any circumstances win money playing this machine.  The rules are clearly printed in this machine.  No agreements (sic.) will be entered into.  You accept these rules when you play this machine.

This machine does not operate on a timer:  This machine operates on a minimum of £1.  Do not, if you wish to continue play, allow your credits to go to zero.  N.B.  Cheating is deemed an offence under Section 11 of the Gaming and Lotteries Act, 1956."

	Mr. Aidan Mullen of Dublin Corporation Rates Office gave evidence that No.24 Marlborough Street and No.4 Talbot Lane appeared in the records and that the rated occupiers were Sports Arena Limited.  The premises were described as an amusement arcade.  Sports Arena Limited have discharged the rates.  In cross examination, he was asked to identify the premises 1 and 2 Marlborough Place in the Rate Books but was unable to do so and concluded that they did not appear there.  He was asked how many rateable occupiers they were in 24 Marlborough Street and he replied that they were two.
	The Affidavit then gave the evidence of Mr. Desmond Killeen, a Chartered Surveyor.  On maps produced, he located the area in which the "noraut poker machines" were situate and he gave evidence that the same were situated entirely within premises 23B Marlborough Place.  No.4 Talbot Lane was separately rated.  No.24 Marlborough Street was separately rated.  There were no machines within either of these premises.  No.23B Marlborough Street was physically divided by a wooden partition with swing doors and the remainder of the premises was occupied by Sports Arena Limited.  Finally, there is a statement of opposition signed by the Chief State Solicitor and dated 26th May, 1997.  It states that the First named Respondent acted within jurisdiction and in accordance with the principles of natural and constitutional justice and that the Applicant had failed to particularise the questions of law which the Respondent wrongly refused to incorporate in a case stated.  The Supreme Court papers filed on behalf of the Applicant still fail to disclose any or any appropriate question of law.  The First named Respondent herein could reasonably from the facts found by him refer to the Supreme Court for its opinion pursuant to the provisions of Section 16 of the Courts of Justice Act, 1947.  
	The Applicant did not move for a Judicial Review of the decision of the Respondents.  The Applicant, under the Act, must apply before the determination of the appeal for a case stated.
	The suggested questions were ten in number and it seems to this Court that they were questions of fact to be determined by the trial Judge or mixed questions of law and fact and the main ones were raised of course at the hearing before the learned Circuit Judge.  The Court was referred to R -v- Brady and R -v- Ram [1994] 3 All E.R. 616, decision of the English Court of Criminal Appeal, and to Counsel's note of the judgment of Ms. Justice Mella Carroll delivered ex-tempore 5th May, 1994 in Dermot Collins -v- His Honour Judge Devally and the Director of Public Prosecutions which follow the decision by Mr. Justice Lardner in the case of Austin McHale -v- Judge Devally and Dublin County Council.  This latter judgment was delivered ex-tempore on 20th May, 1993.  Mr. Justice Lardner propounded as the test to be applied:-

(a)	whether there is an arguable case of some substance placed before the Judge by the Applicant for the case stated; and
(b)	whether the interests of justice of the parties concerned require the stating of a case for the opinion of the Supreme Court.

If the Circuit Court Judge is not satisfied that there is an arguable case or that the interests of justice in the particular case do not require a case to be stated, he has a discretion not to grant a case stated.  Then there is the seminal case of Colm McKenna -v- His Honour Judge Matthew Deary and the Director of Public Prosecutions in which judgment of the High Court was delivered by Morris J. (as he then was) on 26th day of March, 1996 and subsequently appealed to the Supreme Court.  Lynch J. gave the judgment of the Court on 11th December, 1997.  As regards the points in relation to the police being involved in playing the machines and therefore being parties to a crime, Lynch J. points out in the case before the Supreme Court and where the evidence was produced by Customs and Excise Officers that they (the officers) were engaged in "playing at, or in wagering on the event of, any game, sport, past-time or exercise":-

	"Even so, however, there was no fraud or cheating in the course of such playing at or wagering on the events of the game, sport, past-time or exercise.  The request by the officers for the amount displayed on the machine and the filling up and to signing of the refund claim form are not part of the game, sport, past-time or exercise - these events take place after the game, sport, past-time or exercise has finished.  The officers did not therefore breach Section 11 of the 1956 Act but could it be said that they are paying money with intent to defraud by falsely pretending that they had inserted into the machines more than in fact they had inserted?  The Circuit Judge found that the Applicant and his attendants did not rely on the reclaim forms and that being so, the officers did not obtain the money which was paid to them by the alleged false pretences.  Moreover, it could not reasonably be said that they were acting with intent to defraud or cheat in carrying out, as they were doing, the duties of their offices in relation to the prevention of unlawful gaming.  They went to the arcade not to gamble or win money but to see what in fact was going on there.  In this regard, I accept the decision of the High Court in Dental Board -v- O'Callaghan [1969] I.R. 181 as being sound law and it applies in the circumstances of this case.  Even if it could be said that there was a technical offence to be discerned from the conduct of the officers (which I do not accept), it seems to me that the Circuit Judge was entitled to hold "that in the balancing of the matter of public interest as against any resulting harm against the individual in the getting of such evidence, at all times the public interest must be considered."

	In the current case, there were no specific questions put to Judge Devally on which he could have exercised discretion, therefore, it seems to this Court that these proceedings were misconceived.
	As a matter of fact it is interesting that No.23B had no entrance to it directly from any road, street or lane. 
	There is power to amend under Section 49 of the Civil Bill Courts Procedure Amendment Act (Ireland), 1864 and indeed under the District Court Rules, 1948, Rule 88.  The affidavit of Mr. Pearson recited upon which he was not cross examined a very clear picture that the Garda evidence as such was not contradicted.  The case was many times adjourned.  The Applicant was continuing to trade and during that period could have sought Mandamus.  He tried to get the trial Judge to state a case; however the trial Judge cannot be forced to state a case if he can show that he was acting within his discretion.  The Court was also referred to Roche -v- Martin, [1993] I.L.R.M. 651 and Lennon -v- Clifford, [1993] I.L.R.M. 77.
	It is also argued that there is a new standard since the McKenna case but that present proceedings predated that decision.  Various points were raised by the D.P.P. in his submissions.  It would seem correct for the Court to recite them during the case and to get the view of the Court on each of them.  They are as follows:-

(1)	Counsel on behalf of Sports Arena Limited submitted that no gaming had taken place as for there to be gaming, there must be at least two stakes and at least two players, one of whom could win and one of whom could loose.  Counsel was misconceived in this submission.  Counsel appears to have confused "wagering" with gaming.  An English case of Tote Investors Limited -v- Smoker, [1967] 3 A.E.R. 42 followed in Ireland in Duffy -v- The Irish Racing Board, 1971.  It was held in respect of a wagering contract that it is essential that each party could win or loose.  Since the tote could not loose there was no wagering.  In an appeal before Judge Devally, however, what was at issue was "gaming".  Judge Devally accepted the definition of "hazard" as meaning the risk of loss.

	The Judge was more than entitled so to find on the cases cited and no case stated could have been sent to the Supreme Court in relation to this issue.

(2)	It was submitted that Garda Griffin was an accomplice.  However, in view of the decision in the Dental Board -v- O'Callaghan, [1969] I.R. 181 and in McKenna, Applicant -v- His Honour Matthew Deary and the D.P.P. (Op. cit.). This did not arise.  The fact that the latter cases were decided after these proceedings were commenced does not arise.  The Supreme Court were merely stating the law as it was that at all material times even if it were not retrospective and reciting various principles arising out of the Dental Board -v- O'Callaghan, [1969] I.R. 181 case.

(3)	Counsel for the Accused suggested that the word "keeping" included some element of continuity or persistence.  It was entirely open to Judge Devally to find as a fact that the Accused was "keeping" the premises.  In the light of the evidence of Garda Griffin and of other evidence, it is difficult to see how Judge Devally could have come to any other conclusion.

(4)	Then there was the submission relating to the difference between "keeping a building" and "keeping a room".  It was submitted on behalf of the prosecution that if the trial Judge had any difficulty in relation to the use of the phrase "criticise" it would be appropriate to amend the charge under Section 49 of the 1864 Act but since the Applicant could not possibly have been prejudiced, this probably would not arise.  Judge Devally appears to have had no difficulty in deciding this issue and no substantive issue of law could have arisen on this point.

	It is contended that the postal address of the location of the offence was No.4 Talbot Lane.  The Accused called evidence from a valuer as to valuations of different portions of the substantial premises owned and managed by Sports Arena Limited.  The evidence of the valuer was that a portion of the premises, were separated by a partition with a swing door.  However, the evidence of Garda Griffin was that the gambling arcade was an open plan area.  If there were conflicts between these two witnesses, the Circuit Judge was entitled to accept the evidence of Garda Griffin.  However, this issue does not arise.  The Court finds none of the points raised was of such a substantial nature that it was essential in the interest of justice in the case for them to be submitted to the Supreme Court.  He also finds that there was no essential legal point.  
	It is submitted that there is a further fundamental problem faced by the Applicant in these proceedings.  The only type of case stated which may arise under Section 16 of the Act of 1947 is the consultative case stated.  Such a case stated must be applied for during the course of proceedings.  It is evident that Counsel on behalf of the Applicant requested a case stated without particularising what question of law he was concerned about.  The prosecution case was concluded and Judge Devally gave judgement on his application for direction on 7th April, 1995.  The matter was then adjourned to convenience the Applicant herein to 25th May, 1995, 30th June, 1995, and 31st July, 1995.  On that date evidence was given by a chartered surveyor which has already being recited and which evidence it was alleged was of a more substantial nature than had earlier been indicated on behalf of the Applicant.  The case had to be adjourned again.  Ultimately, judgment was delivered by Judge Devally in relation to the case on 14th December, 1995.  As a result, the Applicant had from the 7th April, 1995 until 14th December, 1995 to apply to the High Court for leave to seek Judicial Review by way of Mandamus.  Such application of course might not have been successful but it would have been more appropriate than to apply for Certiorari.  Also, probably such an order should have been sought before final judgment having regard to the specific terms of Section 47 of the 1947 Act.  	
	However, it is not for this Court in these proceedings to deal with these speculative matters.  In its discretion and having regard to the decisions cited, particularly the judgments of Carroll J., Lardner J., and Lynch J. and for the reasons given in this judgment, this Court refuses this application for Judicial Review.