9

A David and Goliath story

The 39-seat public gallery in courtroom 8G of the Federal Court of Victoria is nearly full with journalists, gambling-reform advocates, recovering gambling addicts, relatives of gambling addicts who suicided, lawyers, and high-profile gambling-industry representatives and their consultants. It’s probably one of the only occasions — if not the only occasion — that so many different players in the world of poker machines have found themselves in so intimate a space together, face to face, and, in some cases, sitting side by side. A few people whisper amongst themselves, but most sit silently, concealing their feelings about some of those around them with expressionless faces. The air is thick with a mix of awkwardness and anticipation as everybody waits for Her Honour, Justice Debbie Mortimer, to enter the court.

Forty-one-year-old Shonica Guy sits in the front row of the gallery, flanked by her friends and lawyers. She wears a black coat over black trousers, and small gold loops in her ears. A long, silver necklace hangs around her neck, and her long, brown hair flows down over her shoulders. Her hands are cupped in her lap, and her head is lowered. She looks nervous — and understandably so. It is because of her that everyone here is gathered.

Addicted to poker machines for 14 years after she started playing at the age of 17, Guy is now suing industry giants Crown and Aristocrat Leisure. Represented pro bono by law firm Maurice Blackburn, she is alleging that both companies have contravened Australian consumer law by engaging in misleading and deceptive, as well as unconscionable, conduct as a result of respectively operating and manufacturing the Dolphin Treasure poker machine. Today is the opening day of the trial.

Outside court earlier in the morning, Guy delivered a statement to the media. ‘This case isn’t just about me. I want this to stop happening to other people,’ she said. ‘For too long now, we have been told that it’s our fault and we are the only ones to blame for pokies addiction. I want this case to show that the machines are misleading and the industry knows that their machines are addictive and they are designed to get us hooked.’

Jennifer Kanis, Maurice Blackburn’s head of social justice, spoke briefly afterwards. She explained that Guy was not seeking any monetary damages or compensation for her losses, but rather for the court to ‘declare that the machines are misleading and deceptive, and to declare that Crown and Aristocrat have acted unconscionably’. This would ensure, Kanis told the journalists gathered, ‘a fairer and more transparent industry, and an industry that doesn’t take advantage of vulnerable players’. She added that the case, if successful, would have ‘ramifications across the industry’.

In front of Guy in the court, on the other side of a dividing wall, is the bar table. On the right are Crown’s team, headed by barristers Neil Young QC and Nicholas Hopkins QC, and Aristocrat’s team, headed by barristers Peter Jopling QC and Peter Wallis QC. On the left is Guy’s legal team, headed by barristers Peter Gray QC and Ron Merkel QC.

Three knocks echo throughout the courtroom, and the court officer orders everybody to stand. Justice Mortimer appears from a side door at the raised bench at the very front of the court. Dressed in a black robe, she strides towards the leather chair at the middle of the bench, above which on the wooden wall is the Australian coat of arms. She bows, and everyone in the room bows back.

The landmark trial — the first major legal challenge to poker machines in Australia — has officially begun.

The trial, which lasted three weeks, was the culmination of years of preparation from Maurice Blackburn, gambling experts, and gambling-reform advocates. In fact, the origins of the case against Crown and Aristocrat go all the way back to 2012 when Dr Charles Livingstone of Monash University purchased a second-hand model of a Dolphin Treasure poker machine. For some time prior, the industry had obstructed his repeated efforts to acquire ‘probability accounting reports’ — essentially, the blueprints of game design — so he figured that the only way left for him to understand exactly how poker machines are designed, and how their maths are configured, was to buy and reverse-engineer one.

When Maurice Blackburn learnt of Dr Livingstone’s findings in 2015, it believed there was now, for the first time, enough hard evidence to take the industry on in a court of law. If successful, it knew a precedent would be set that would affect all poker machines in Australia, as all those machines essentially use the same design features as Dolphin Treasure. The law firm had recently become associated with the Alliance for Gambling Reform, and Guy — a supporter of the alliance — volunteered herself as the lead plaintiff.

When the lawsuit — which Tim Costello labelled a ‘David and Goliath story’ — was filed in September 2016, it garnered extensive media coverage. There was surprise among journalists about the inclusion of Crown in the case, with some hypothesising that the primary reason for this was to attract more public attention. But Kanis insisted there was no truth in this hypothesis. ‘Because this was a misleading and deceptive conduct case, we needed to have the connection between the machine and the user,’ she told me. ‘It would have been remiss of us if we had not included the biggest provider of the machine that we were complaining about.’

Crown, Aristocrat, and the wider poker machine industry remained relatively quiet in the lead-up to the trial. In a brief statement to shareholders, Aristocrat said it ‘emphatically rejects any suggestion that its games are designed to encourage problem gambling, or in any way fail to comply with all relevant regulations and laws’. It added that it ‘has long supported balanced and fact-based harm minimisation initiatives, recognising that these issues are complex and multi-faceted, and require ongoing collaborative effort on the part of industry, regulators and the broader community’.

The public gallery was fullest on day one of the trial, but there were always at least a few people with no direct involvement in the case observing the proceedings every day. In fact, Justice Mortimer deemed there to be enough public interest in the case for a screen to be erected in the court so the documents referred to throughout the trial — at least those that were not confidential or commercial-in-confidence — could be displayed for those in the public gallery to see. She also ordered these documents to be uploaded onto an online file for anyone around the country who was interested in the case to freely access.

The allegation against Crown and Aristocrat of misleading and deceptive conduct consisted of three parts. The first two concerned the size of the Dolphin Treasure’s reels and the distribution of its symbols.

Guy alleged that the game — because of a number of features, including the uniform size of its symbols, the uniform speed at which the reels spin, the regular ‘ticking’ sound made as each of the reels comes to a stop, and the fact that no two of the same symbols appear on the same reel when the outcome of a spin is displayed — conveyed two false representations to the player: (1) that the reels are evenly sized and: (2) that there is an equal distribution of symbols across the reels. Dr Livingstone, by reverse-engineering the game, had discovered that this is not the case. He found that while the first four reels have thirty symbols each, the fifth is much larger, containing forty-four symbols. He also found that the symbols displayed on Dolphin Treasure were irregularly distributed: some reels were starved of particular symbols, while others were weighted with particular ones.

Lawyers for Guy argued that the starving of some symbols and weighting of others, plus the oversized fifth reel, worked to inflate a player’s hope of winning and increase the likelihood of near misses occurring. They said that while the representations given about evenly sized reels and evenly distributed symbols were ‘somewhat imprecise’ and ‘non-verbal’, there was legal precedent that proved this was irrelevant, as ‘an unconscious or subliminal impression is sufficient’. They acknowledged that a player can access the Player Information Display (PID) to see the different probabilities of each winning outcome — from which it could be deduced that some symbols have to be more abundant than others. However, they argued that this did not remedy the misleading representations conveyed by the game. ‘The bare numerical information furnished by the PID speaks in a different language from the impressions conveyed by the game,’ they said. ‘A loose analogy can be drawn with the fine print in a headline advertising case where the fine print is relatively inaccessible to consumers …’

There was limited evidence submitted from gambling addicts who appeared as lay witnesses in the case that supported this claim. One said in her affidavit that, until she was made aware of how poker machines were designed — which was some time after she first started playing — it ‘never dawned’ on her that ‘the reels might be at all different’.

The third — and ‘verbal’ — part of the misleading and deceptive conduct allegation concerned the information given to players in the PID about the Return to Player percentage (RTP). Guy’s lawyers alleged the information was misleading because it failed to adequately explain what the RTP actually meant, and caused the player to ‘naturally assume’ that the listed percentage referred to the percentage of money wagered in an individual session of play that would be returned. While they accepted that the RTP information was displayed in the way that the government regulator suggested — not ordered — they said this was not a ‘defence’, as there was ‘no impediment’ to providing more detail.

There was some limited evidence given to the court by gambling addicts that supported this claim. At one point during the trial, Justice Mortimer — who had earlier admitted that she knew ‘absolutely nothing about how poker machines work’, drawing laughter from those in the court — even commented that not only was there a ‘level of complexity’ to the information about the RTP, but that even she found it ‘difficult’ to understand and initially thought it referred to the amount of money that would be returned in an individual session.

In its defence, Aristocrat denied that players are misled or deceived about the size of the reels, the configuration of symbols, or the meaning of the RTP. To argue they are, Aristocrat said, was ‘sheer speculation’ with no evidentiary basis, which also ignored the existence of several sources of information, including the PID and government- and industry-supplied brochures explaining — ‘in pretty plain, vanilla language’ — the correct meaning of the RTP and the fact that poker machines have unevenly sized reels and unequally distributed symbols. Any person ‘who showed the least interest and conducted the most basic enquiry’ as to how poker machines work would ‘readily appreciate’ the existence of the impugned features, as well as the impossibility of beating the house in the long run.

This prompted Justice Mortimer to comment in passing during the trial, ‘It does make you wonder why casinos are so full.’

Lawyers for Aristocrat also emphasised the testing regime and the regulatory framework governing poker machines in Victoria. They said that there were ‘no provisions prohibiting the features impugned by the Applicant’, and that ‘all we’ve done is comply with everything that’s been asked of us’.

In response to Aristocrat, lawyers for Guy argued that the availability of information other than the PID about how poker machines work was immaterial to the case. They said the notion that an ordinary and reasonable player would access this information prior to gambling was ‘fanciful’, and that ‘high authority has criticised disclaimers that force consumers to “find their way through to the truth” …’ They added that to assume the degree of diligence urged by Aristocrat would be ‘to impose an even greater burden on consumers’.

Crown defended itself in a similar fashion as Aristocrat against the allegation of misleading and deceptive conduct. It drew the court’s attention to the ‘detailed regulatory regime’ governing the operation of poker machines, noting that the casino ‘only makes available for play EGMs which have been approved by the [Victorian Commission for Gambling and Liquor Regulation]’.

Given the availability of information about poker machines throughout the casino that explained the meaning of the RTP, and that the odds of winning are extremely low, Crown also said that the claim a player would be misled into thinking Dolphin Treasure had regular, even reels was ‘fanciful’ and ‘postulates a player without perception or common sense’. The claim that a player would construe the information about the RTP provided in the PID in the way alleged, it said, ‘beggars belief’.

Even if the court found the Dolphin Treasure machine to be misleading and deceptive, Crown insisted that it would still be innocent of any wrongdoing, as it was a ‘mere conduit’ for information supplied by another company. ‘The equivalent proposition here would be that any venue operator which makes an EGM available on its floor would necessarily be making representations as to the internal workings of that machine, even though the operator has no knowledge concerning those matters’, Crown argued.

Guy’s lawyers said otherwise, pointing to numerous reasons why Crown was not ‘merely conveying information prepared by Aristocrat’. They noted that Crown has obtained licences over Dolphin Treasure machines and made them available to play in order to earn profit for itself, proving that its business is independent from Aristocrat’s. They also noted that Crown has ‘integrated the machines with its gaming operations’ through linked jackpots, and added its own company branding. ‘Although a close inspection of the machine will reveal some Aristocrat branding, an ordinary and reasonable player of the machine would regard the machine as having been provided by Crown,’ Guy’s lawyers said.

The unconscionable conduct case was connected to the misleading and deceptive one, but differed in some important respects.

In the eyes of the law, ‘unconscionable conduct’ is conduct that is isn’t just unfair, but also, as the Australian Competition and Consumer Commission explains, ‘against conscience as judged against the norms of society’. There is no precise legal definition of the concept, and it is determined on a case-by-case basis, but a key factor is the victimisation or exploitation of people who have a special disadvantage or vulnerability.

Guy’s lawyers alleged that both Crown and Aristocrat had behaved unconscionably for several reasons. They said that, ‘absent disclosure’, the oversized fifth reel and uneven distribution of symbols in Dolphin Treasure were ‘unfair’ design tactics, because they made players think they had a better chance of winning and had the material effect of greatly increasing near misses and time spent gambling. Furthermore, it said both businesses were in a ‘particularly powerful position’ compared to gamblers; failed to ‘warn or otherwise specifically inform players’ about LDWs; and knew that there were people for whom ‘gambling can be harmful’, with most harm ‘attributable to EGMs’.

On top of this, and perhaps most significantly, Guy’s lawyers said that Aristocrat and Crown had acted unconscionably, because the impugned features of the Dolphin Treasure machine ‘contribute to cognitive distortions or errors, which in turn contribute to disordered, problem, irresponsible or excessive gambling’. It claimed that both businesses knew this, and that they used this knowledge to their advantage.

Crown defended itself against this allegation by reiterating many of the points from its defence against the claims of misleading and deceptive conduct. But it also made some additional points. It labelled the claim that LDWs are concealed from a gambler as ‘absurd’, saying that the outcome of every spin is ‘spelled out’, since the meter ‘discloses precisely how the amount of the win compares to the aggregate sum outlaid on the spin’. It also said there was no evidence that had been adduced showing it knew gambling addiction existed and took advantage of it in a predatory manner; instead, Crown had simply been ‘doing no more than conducting its business in accordance with the regulatory scheme’.

Adding to this, Crown argued ‘that a player will only come to a casino having made a conscious choice to do so’. Focusing on the playing of a poker machine, it said, ‘loses sight of the numerous voluntary decisions made by the players which took them to the stage at which they play.’ Crown also argued that the allegations of unconscionable conduct ignored evidence about the work it does ‘to ensure that gaming at Crown is undertaken in a responsible manner …’ As examples, it listed the provision of information about the risks of gambling that are available at the casino, the reminders on machines which encourage gamblers to take a break, and the in-venue responsible gambling and self-exclusion program.

Aristocrat echoed Crown in its defence against the claim of unconscionable conduct, which it labelled as ‘untenable both in fact and law’. It reminded the court that the impugned features relating to Dolphin Treasure were ‘endemic’ to all poker machines and ‘have been the subject of repeated and specific consideration by legislatures and regulators.’ Given that all it had done was to conduct a lawful business, it said that its conduct was ‘no more unconscionable than that of a brewery that supplies beer in the knowledge that some people suffer from drinking problems’.

Aristocrat also denied that it knew the specific circumstances of addicted gamblers, or that it sought to take advantage of them. The fact it may have been aware that some people suffer from gambling problems associated with poker machines was ‘manifestly not sufficient’ to prove it had acted unconscionably. It also argued there was no evidence before the court establishing that the impugned features were a cause of persons developing a gambling problem. Even if there was, it said, ‘this would not alter the fact that such persons are performing a voluntary act when deciding to play the [Dolphin Treasure] EGM’.

Crucial to determining especially the unconscionable conduct case was evidence provided to the court by the expert witnesses called by both Guy and Aristocrat. Professor Murat Yücel, clinical neuropsychologist at Monash University, and Dr Russell Deighton, a clinical psychologist from Melbourne specialising in the treatment of trauma, grief, and problem gambling, gave evidence on behalf of Guy that playing a poker machine is not entirely a voluntary act, and that the features being assessed by the court — oversized reels, uneven distribution of symbols, near misses, and LDWs — affect a user’s brain, and do indeed contribute to a person developing a gambling addiction.

Professor Yücel and Dr Deighton were chosen, Kanis told me, because they were available, independent, and ‘for their expertise in the matters’ being examined in the trial. However, neither witness had published extensively either about gambling or poker machines; at the time of the case, Yücel was the author of nearly 300 academic papers, but only five dealt with gambling and only one was specifically about poker machines, while Deighton had authored only one academic paper in the field of gambling studies.

Their evidence was contrasted by that of Emeritus Professor Robert Ladouceur, from the School of Psychology at Quebec’s Laval University, and Professor Lia Nower, director of the Centre for Gambling Studies at Rutgers University in New Jersey — both of whom, readers might remember, are two of the foremost academics in the field of gambling studies who have also regularly accepted industry funding to conduct their research. In their joint report submitted to the court, they gave evidence that ‘the aetiology of gambling disorder is poorly understood’. Because of this, they added, ‘it is impossible to isolate a particular design feature(s) of a gaming machine that leads to a gambling disorder’.

Professor Ladouceur and Professor Nower also gave evidence to the court that ‘individuals suffering from gambling disorder maintain the ability to perform voluntary acts and make judgements in their own best interest when putting themselves in a position to play and playing EGMs’.

As well as submitting individual expert reports and a joint report, all four expert witnesses were cross-examined in court. Professor Ladouceur and Professor Nower came across as credible, qualified, and reliable; they held firm against all challenges to their evidence. It was a different story altogether, however, for Dr Deighton and Professor Yücel.

Under cross-examination, Dr Deighton often had difficulty explaining the scientific evidence supporting his opinion, as well as the basic features of the Dolphin Treasure machine that were under examination in the trial. He regularly repeated questions put to him by Crown’s counsel, in a manner that seemed like he was trying to buy time because he did not have an answer.

But Professor Yücel had much bigger problems than this. During his cross-examination, it emerged that several large blocks of his expert report had been lifted word for word from unattributed sources — including Wikipedia. Aristocrat and Crown labelled him a ‘plagiariser’ and argued that, in failing to adhere to the expert-witness code of conduct — which requires proper attribution of all source material — all his evidence should be dismissed.

Professor Yucel said he was ‘very comfortable’ with the way he had prepared his report. He justified his actions by saying his report wasn’t ‘an academic publication’ and thus he did not think it ‘necessary’ to provide proper citations and attributions to others’ work. He saw his role as an expert witness in a legal case as presenting opinions in an ‘information-sharing educational forum rather than trying to republish in any copyright sense in an academic forum’.

‘I have given myself some freedom of taking things where I felt it was very clearly described and putting them in because I felt that would actually be helpful to your Honour, rather than try to reword them and mess with them. I didn’t really think that was a problem … and the final thing is I stand by everything I’ve said. I feel like I have been absolutely true to what was asked of me.’

His explanation did not seem to satisfy Justice Mortimer, who looked as shocked at his behaviour as everyone else in the court. A professor caught essentially copying and pasting information from sources including Wikipedia in an expert report for the Federal Court of Australia, and being unapologetic about what he had done … it was truly unbelievable, and for Guy’s case, a major blow. Everyone in court that day knew the odds of David defeating Goliath in this battle had taken a dramatic tumble.

Justice Mortimer delivered her long-awaited judgement in February 2018, four months after the completion of the hearing. A large crowd — consisting mainly of gambling-reform advocates — attended court to witness the occasion; by the time the court officer ordered everyone to stand for the arrival of Her Honour, it was standing-room only in the public gallery. Guy was in the front row, wearing all-black and a stoic look on her face.

Justice Mortimer cleared Crown and Aristocrat of all allegations. She ruled that the design features of the Dolphin Treasure machine did not mislead or deceive a gambler into believing all of the machine’s five reels were equally sized, or that the symbols were evenly distributed. In her reasons for judgement, she said there was ‘no evidence about what people who gamble on these machines do expect’, and that a gambler ‘is unlikely to evaluate or interrogate the operation of the machine at all: rather, she or he just plays it’.

Justice Mortimer did accept that the RTP information was ‘confusing’. She said it was ‘likely’ that a gambler who accessed this information would mistakenly believe it referred to the result of their individual gambling session rather than the amount of money the machine returned over a life cycle.

But while the RTP information might be confusing, Justice Mortimer did not accept Guy’s claim that it was misleading or deceptive. Any confusion, she said, would be ‘remedied’ by the gambler accessing information about the RTP available in gambling venues and on the internet, or by simply playing the machine, as ‘the randomness of the operation of the machine and returns become apparent’ even after a short time.

This, Justice Mortimer added, is far from an ideal situation. ‘It is undesirable, even if it is not unlawful, that gamblers be given any message about prospective returns from their gambling which could led [sic] to erroneous expectations, even if fleeting.’ To fix this undesirable situation, she said that there ‘may be merit’ in some examination by the Victorian Commission for Gambling and Liquor Regulation of the current regulations about the RTP information provided to players. She also said that both Crown and Aristocrat ‘should consider’ amending the wording about the RTP in the PID so as to make clear exactly what the RTP means.

Justice Mortimer also ruled that Crown and Aristocrat had not engaged in unconscionable conduct. Accepting the expert evidence of Professor Ladouceur and Professor Nower over that of Dr Deighton and Professor Yucel, she concluded that individuals with a gambling addiction or problem ‘retain a level of control … over their actions which is not consistent with the concept of a “special disadvantage” existing in a gambler.’ She agreed with Crown and Aristocrat that the regulatory framework governing poker machines, the availability of brochures detailing game information, and the gambling-help services which are offered disprove the claim that either company deliberately victimised or exploited gamblers. There was, she said, no evidence before the court to suggest the harm-minimisation efforts of Crown were ‘some kind of facade’.

Regarding LDWs, Justice Mortimer agreed with Crown and Aristocrat, saying there was no ‘concealment’ of a game outcome. ‘Information about the amount bet and the amount won is already displayed to the gambler, and allows the gambler to see easily whether her or his “win” is a net loss or net win.’

Although she dismissed all the allegations against Crown and Aristocrat, Justice Mortimer made clear that ‘the failure of the applicant’s allegations in this case is just that: a failure of the particular allegations made, on the evidence adduced.’ She said that her findings did not ‘diminish the tragedies’ of Guy and the other gambling addicts who gave evidence to the court, nor did they detract from the ‘complex evidentiary and legal issues’ that the case raised. Research into the possible relationship between the design and features of poker machines and the development of addiction to gambling is, she noted, a new field, ‘where some researchers at least have identified justifications for further work exploring this relationship’. She also noted that ‘the intersection between the protections afforded by consumer law, and legislative and other policy choices made to allow, but regulate, the provision of goods or services in a context where some members of the Australian community ultimately suffer harm (smoking and alcohol being two other examples), also gives rise to factual and legal issues of real complexity’.

To comment on — instead of just highlighting — these issues would be unnecessary and beyond the confines of the case, Justice Mortimer said. ‘I emphasise that the Court’s task is to consider the allegations of law and of fact raised by the applicant in the particular circumstances of this case. It is no part of the Court’s task to characterise gambling as a desirable or undesirable activity, nor to engage with policy decisions made by the executive and legislative branches of government about whether those activities should be lawful, and if so, in what circumstances.’

Outside court, after Justice Mortimer delivered her verdict, Guy gave a short statement to a large pack of media. The stoic look on her face from earlier remained. A group of supporters gathered behind her as she spoke.

‘Pokie machines had a hold of my life for 14 years at a significant cost to myself and loved ones,’ Guy said. ‘I managed to get on top of my addiction, but the sad reality is that many people right across Australia can’t do this, and the impacts are devastating. And that’s why I took on this case. Because we need a fairer and more honest pokies industry that doesn’t expose people to addiction.

‘Too often, people like me and others are blamed for being addicted to the pokies. And that’s another reason why I wanted to take on the case: to try to show all Australians that poker machines and the way that they’re designed play a big part in why people become addicted. And that’s why, once they’re hooked, they can’t stop.

‘I’m grateful for the opportunity to have my day in court on behalf of all Australians who have been hurt by the pokies. I hope that this can lead to a better way forward and a better industry so no one has to go through what I’ve gone through. Thank you.’

Her supporters erupted into applause. Many hugged and congratulated her on her courage and bravery. Her stoicism finally broke as she burst into tears.

A short time afterwards, Ross Ferrar of the GTA fronted the media. He showed little sympathy for Guy, and spoke with conviction and aggression — which, it must be said, did seem a little put on. He said the case was ‘a win for facts’, ‘a win for the robust regulatory environment that Australian poker machines operate within,’ and a ‘win for 140,000 Australians who have jobs because of poker machines.’ He said the outcome of the case ‘clears the air about poker machines in Australia. This draws a line in the sand.’

Ferrar also attacked the wider gambling-reform movement. He said the ‘credibility of the Alliance for Gambling Reform and its spokespeople has been shredded, because the evidence that they presented to the court was riddled with hearsay and opinion … If the spokespeople for the Alliance for Gambling Reform make outrageous claims in the future, the first response should be, “That’s not true.” And if anyone else parrots their lines, the first response should be, “That’s not true.”’

At the end of Ferrar’s press conference, many of the gathered journalists and camera operators rolled their eyes and sighed. ‘What a load of bullshit,’ one cameraman said to no one in particular as he walked off. Ferrar’s consultant, however, had a different opinion. Commenting on Ferrar’s performance to a journalist, he said proudly, ‘He spoke well, didn’t he?’

Even though it was unsuccessful, Kanis believes that she and everyone else involved in the case put it ‘at its highest.’ She also believes that there are many positives to take from the case. Chief among them relate to Justice Mortimer’s comments about amending the RTP information so it does not confuse players. ‘For us, that’s an important outcome in this case,’ Kanis explained, ‘in that it does shine a light on that information, and the deficiencies of that information, even if it doesn’t meet the legal threshold for being misleading and deceptive.’

Another positive of the case for Kanis is its de-stigmatising effect for gambling addicts in Australia — especially those who gave evidence to the court. As she explained: ‘The way Her Honour has taken notice of the real impact gambling has on people’s lives, and how she acknowledges the incredible bravery and strength of the witnesses who came forward is really important. It’s not easy for witnesses to come forward and give an account of something which carries such shame around it.’

Added to this is how the case and the judicial scrutiny the industry faced for the first time in Australia has contributed to a growing public awareness and discussion about how poker machines are made and operated. ‘People are much more aware of how the machines work,’ Kanis said. ‘Many players are now saying, “Wow. I didn’t know that’s what went on.”’ This new information, Kanis added, is making even more people see that poker machines, although they are legal, fail the pub test.

Kanis also rejects Ferrar’s claim that the outcome of the case clears the air about poker machines in Australia. In fact, she says it is far from a legal setback in the fight against the poker machine industry. ‘I think it actually presents opportunities for further litigation. It was the first case of its kind, and we now know where some of the gaps are that need to be filled for the next case like it. You don’t always know those things until you try.’