Control Data Australia Memories compiled by Brian Membrey


David Gaunson's Day In Court

Prelude : David Gaunson is remembered as introduced the first Bill to legalize totalizator betting in Victoria way back in 1880, and later as John Wren's legal adviser for many years. As well as a leading barrister, he was also a prominent politician, it once being said the he would not agree with the Government of the day regardless of which side of the political fence they represented.  He was also something of a thorn in the side of the Establishment, his clients as well as Wren including Ned Kelly.

What is most surprising given John Wren's fame today is that very little was written of him during the times he was conducting his tote in Johnson-street, Collingwood despite ongoing controversy over the totalizator issue.

Most of the cases went through Collingwood Court and were in themselves, fairly trivial affairs - Wren and other tote operators hired "clean skin" clerks to conduct the business at the tote and if they had the misfortune to be arrested and convicted, then as a first offence they were subject to a maximum £5 fine which Wren undoubtedly paid through a golden handshake of some description.

One local newspaper that bucked the trend was the short-lived (1894-1899) Tribune published in Clifton Hill, Collingwood's next-door neighbour to the north (perhaps significantly, the nominal Collingwood local, the Mercury and Weekly Courier rarely mentioned Wren's or any other totalizator operating in the suburb).  

After a case in early May, 1894 which saw one of Wren's clerks, James Ludlow fined the statutory £5 with 18 shillings costs (he also put £2 in the Court Poor Box, a Wren ploy to help present a caring face to the local working population), the police Inspector Coles summed up the difficulties that the law as it then stood presented to police ...

"it is difficult to catch the proprietors of these places. They hired a clerk but kept away themselves, When the accused was caught and put in his place, and although a dozen cases might arise out of one business, each offender could plead a first offence. Thus a low penalty would result, and if the employer had to pay for his servant when fines were ordered, it was still a profitable system".

It was another case arising a month later that showed to what lengths Wren would go to if necessary to protect his interests and how much pressure the police could come under.

The proceedings arose after major raids on the Saturday afternoon of 23 June, 1894, both on Wren's tote and another at Samuel Levy's, nominally a tobacconist at 369-71 Victoria-street.

Rather than "a dozen cases" that Coles had mentioned, there were 96 men taken into custody, 85 at Levy's, but only 11 of an estimated 300 in a somewhat botched raid on Wren's.  The Tribune went on to suggest police were still processing the warrants at 9.30 that night.

"When the second detachment of police reached Wren's shop they found it literally packed with venturesome "plungers," and the numbers of the speculators, together with the fact that they occupied several detached rooms at the rear of the shop as well as  the »hop itself, handicapped the police, and prevented them from making this part of the raid a  success. 'The appearance of the police cab acted magically.  In a moment  the back fences were  alive with clambering youths and men,  and, as the fences were surmounted with barbed wire, the result was ludicrous. Hats innumerable littered the yard,  together  with walking sticks and umbrellas, and the barbed vine displayed many  trophies of its stoutness and penetrative capacity in the shape of pieces of clothing torn from tho coats and tho trousers of the fleeing  multitude".   The Argus, 25 June, 1894

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Nine of the eleven at Wren's faced the relatively minor charge of being on the grounds of a common gaming house, but of the two clerks, Thomas Oldroyd was charged was keeping premises where gambling was carried out and assisting in conducting a gaming house; Ludlow charged with the latter offence. Levy was also charged with occupying and conducting a common gaming house.

All of the men arrested for being on the premises were released on sureties of £10, Ludlow on the assisting charge on a surety of £50, Oldroyd and Levy of £100 each. Reports on the arrests also suggested two plain-clothes police later raided Wren's place and found £150 in notes and gold beneath a pile of rubbish.

The Case Against Oldroyd and Ludlow

Given the number of his customers involved, Wren reacted by having David Gaunson defend the case in Collingwood Court, the Tribune suggesting several hundred people assembled outside the building in Stanton-street "eager to catch a word from the Court as they strained their ears towards the open window and doorway".

Gaunson went immediately on the offensive, complaining of the cases against Oldroyd and Ludlow  being heard together as they were two distinct charges, a move against no objection was raised.

He then moved to strike out the charges on a technicality, declaring the arrests were, in fact, illegal, as the Act under which they were issued used the words "commonly reported", but the hastily-issued warrants, "currently reported"; also that the address of the alleged offences was shown as "136 Johnston" without "street" being specified.

There was also legal argument regarding Oldroyd's charge of "keeping" premises when Gaunson pointed out the bail bond stated "being found" on premises where gambling was being conducted.

All of Gaunson's legal tactics failed at this stage, although he did have a moral victory when police admitted mistakes had been made due to the extraordinary number of warrants issued.

Gaunson : "Yes, too greedy, much too big a haul. The weight of the fish broke the net. I am taken by surprise and must ask for a remission"." Bench (Mr Templeton) : "It will only be worse for them".  Gaunson : "Not for me - I will get a second fee".

The Bench ultimately agreed to remand the cases against Oldroyd and Ludlow until the following Thursday, but proceeded with those against the nine charged with being found in a common gaming house.

Counsel assisting Gaunson, Mr Lyon suggested  one of his clients would plead guilty, but had a lawful excuse, claiming the man had been pushed into the premises when the police first entered.  There was considerable debate as to whether some of the men could be called to give evidence for the Crown and whether in so doing, they were entitled to an indemnity against prosecution.

Gaunson claimed that several of the men were not on the premises nominated on the warrants.

The key police witness was a Constable Cooke who testified that on the wall of a cottage at the back of 136 Johnston-street and between it and a house fronting Sackville-street were "tote papers", and that there were about 300 people in the yard when police entered around three o'clock.

The crucial evidence came from a real estate agent, Mr Foster, who testified that while Wren was the tenant of 136 Johnson-street, there were six distinct properties within the area in which Oldroyd and Ludlow had been operating. The Bench found it impossible to determine whether the men had actually been within the boundaries of 136 as charged and dismissed the charges en masse.

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The Case Against Samuel Levy

The cases of occupying and conducting against Samuel Levy then commenced, but before any evidence could be heard, Levy's counsel, Mr Westley suggested he had a "fatal objection" to the case being heard as the warrant "was not under the hand and seal of the justice who had signed it, as required by the Gaming Act of 1872".

Mr Smyth for the Crown contended that under Section 181 of the earlier Justices of the Peace Act (1865),  no warrant or summons could be rendered defective through any "slight" omission of detail;  the Bench after a brief consultation agreed that the later Gaming Act took precedence and agreed that Westley's objection was in fact “fatal” and dismissed both charges against Levy.

The charges against the other 84 persons of being on the premises of a common gaming house were also dismissed as there was no longer evidence that the Victoria-street premises were, in fact, being used for such purposes.

The following Thursday

The case against Oldroyd provided some revelations as to how the tote operated.

Constable O'Sullivan testified he "took charge" of Oldroyd and took him to a back room where some £3/15 in silver coins was found on a shelf.  "At the watch house, Oldroyd was searched and more money found".   Gaunson immediately objected on the grounds that the Court could only deal with the money actually found on the premises at 136 Johnston-street.  No mention was made of the supposed £150 found following the raid by plain-clothes police following the arrests.

O'Sullivan claimed that Oldroyd had demanded that the money found on his person at the watch house be counted, and then when asked whether he was the keeper of the house, Oldroyd had replied "Yes, I am, I want to see it counted".

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Some £70/2/3d was found on his person, along with betting books and slips.  When asked why he kept so much money on him, Oldroyd replied "We pay out on the result of a race, and I was ready.  They are waiting to be paid out now".

"Why didn’t you get out"?

"Because we have had so many false alarms and when we realised the raid was real and it actually was the police, it was too late to get through the crowd"

Oldroyd was fined £10 (the standard first offence penalty of each of the two charges)  and the Court ordered the £3/15 found on the premises be forfeited, but agreed with Gaunson's argument that money found on Oldroyd at the watch house was not under its jurisdiction and they ordered it and the betting sheets be returned.

(The return of betting sheets was always controversial, even as late as the 1950s when S.P. Betting was again rife - their return allowed illegal bookmakers to maintain faith with their clients by paying out winning wagers).

There is little remaining of the case against Ludlow - in reality, his fate largely rested on whether or not the case against  Oldroyd stood.  Being his second offence within a month, he copped a £15/15 fine with costs.

Oldroyd seemingly did not learn his lesson - he was in court again on 24 July, again charged with betting on premises, this time in Sackville-street after four plain-clothes police placed bets with him on the Grand National Steeple and was fined another £10.  John Murray's 1894 Totalizator Bill had been defeated on its second reading in the Legislative Assembly just over two weeks beforehand.

The Street Betting Suppression Act

In between the two sittings at Collingwood, another took place before the Full Court in what was regarded as a test case as to whether betting in the street - as opposed to on premises and by definition in a common gaming house - was legal.

The case revolved around the dismissal by a magistrate of earlier charges against three men who had set up a totalizator in a shop in Union-lane, off Bourke-street, the difference being that the actual issue of tickets and collection of money took place outside on the footpath and not within the premises themselves.

The case for the Crown's appeal against the dismissal rested on the contention that a street and a house connected with it constituted a "place" within the meaning of the Act which referred only to betting being carried on "in any house, office, room or other place".

The Full Court upheld the earlier dismissal, one Justice suggesting that the streetscape was not privately owned and therefore not a "place" under the Gaming Act; the other quoting as a precedent a ruling in England that a man could not be convicted for walking about a private field making bets, and if that was so, he could not see how he could be convicted for walking about the public streets and betting.

To cover the obvious loophole, a  Street Betting Suppression Bill was passed early in 1896 after being first introduced into the Legislative Assembly in September of the previous year by Mr Cuthbert. It was the introduction of this Bill that caused John Murray to withdraw one of his Totalizator Bills.