“A SECOND SHOT”

Grey River Argus, 19 February 1932, Page 6

“A SECOND SHOT”

WHITEBAITING CASES Inspector’s Charges DISMISSED AT HOKITIKA. Cases of unusual interest to white bait fishermen in the Hokitika district, were hear I, at the Magistrate’s Court. Hokitika, yesterday, before Mr W. Me’drum, S.M., the Inspector of Fisheries (Police Sergeant C. J. King) charging three local fishermen with breaches of the whitebait fishing regular ons. All three cases were ultimately dismissed. Thomas Spoor, fisherman, of Hokitika. was charged that on October 10th, 1931, he did use a set net. for the purpose of taking whitebait from the Mah’napua Creek, being a tidal stream within the County of Westland, in other than a groyne or trench without first obtaining the approval of an Inspector of Fisheries, or a Collector of Customs. Alexander Kelly was similarly charged, though in his case the date of the offence was set down in the charge ns November 10th. 1931. William Holly, fisherman of Hokitika*was charged “that on November 4th, 1931, in the Mahinapua Creek, being a user of a groyne or trench situated in the aforesaid stream, he did use more than one groyne or trench for the purpose of taking whitebait from the said st ream. ’ ’

Sergeant (’. J. King. Inspector of Fisheries conducted the prosecution, and Mr T. F. Brosnan appeared for the defendants, while Mr J. A. Murdoch watched proceedings on behalf of other interested parties. The cases against Kelly and Spoor were taken together,’ Mr Brosnan pleading not guilty on behalf of the defend

Sergeant King stated that both the defendants were registered owners of trenches in the Mahinapua Creek. On l.“ dates in question he visited the creek, and found the accused fishing from a boat with a set net, using the boat in the manner of a groyne. The boat was moored to the bank out of the current and the net was used over the stern or th 6 side of it. The boat was being used about half a mile from the position of the registered trench. No person had a r’ght to go in a boat away from the position of the trench and use the set net from the boat. Thia was a direct contravention of the Act. The S.M.: Are you charging them with using two groynes? Sergeant King: Yes! More than one. Air Brosnan: No you’re not! Would everything have been all right if you had approved of their using the net from the boat? Sergeant King: No! Mr Brosnp.ii pointed out the wording of The charge, “without obtaining the approval of' the Inspector.” ' ’ Sergeant King said that he would not have given approval at all for the use of a net from a boat. Mr Brosnan: Then your information is all wrong! The S.M.: Under what particular clause are you laying the charges? Sergeant King said defendants were charged that they “did use a set net Com other than a registered trench.” Air Brosnan said His Worship would remember that when the men were charged on the previous occasion he had ruled that there had been no offence. The only difference in the two cases, the previous and the present was that in the former one the Inspector had charged them with using « ' jigger or other appliance. The circumstances were the same. Sergeant King said he was now •barging defendants with using a net from a boat, which latter was being used as a trench. The S.M. said the boat was not a groyne or trench. Sergeant King: But the boat was being used for exactly the same purpose as a trench. The Magistrate asked if there was anything in the Act forbidding whitebait to be taken by nets other than set nets. Sergeant King said that whitebait were not mentioned in the Act. The Magistrate considered, that there had been no offence under the particu lar section quoted by the prosecution. The men were not using more than one groyne or trench. The Sergeant said that if fishermen were allowed to fish as defendants had done, it would not be fair to other registered trench owners, who stayed and fished their own trenches.

The Magistrate said that the regulations did not say that a man could not use a net from his boat. The only difference betwee n using a net from a boat and using an ordinary drag net was that in the one the fisherman used the boat to get out into the stream, whereas in the other case he waded out into the water. Sergeant King said that the drag net and the set net, as used in the Mahinapua Greek, were totally different things. The Magistrate said he could not see that the boat, as allegedly used by the defendants, could be called a groyne. It might be used instead of a. trench, but was certainly not one. Mr Brosnan said he wished to take exception to the manner in which the Sergeant was conducting his case. He was really trying to find out about the regulations at th© estpefise of defendants. Re made application for costs, and quoted the case of J. Doull v. Wi Mihaka, a case fought on similar whitebait regulations. Where costs were allowed against a public officer who had failed in a n appeal. With regard to tho ease against Spoor Mr Brosnan said he felt he must state, with some reluctance, that tne only reason for the present proceedings was to secure a conviction against Spoor. The S.M.: On what grounds? Air Brosnan said that the prosecution had failed last year in charging Spoor with a breach of the regulations on October 10th, 1931, the same date as in the present charge, and now they were having their second shot against the same man on the same set

of facts. 11 was very unfair as no breach was at present being committed, and he submitted that tho present proceedings wore taken not to stop tho breach but to secure a conviction against Spoor. Ho would leave the question of costs to His Worship. ‘He was not concerned with the amount, it was the principle that he was considering.

Sergeant King said it was not the fault of the prosecution that the pro coedings had not been taken until then. He said the Magistrate would remember that he recommended that fresh informations be laid. The S.M.: Did I say that from this Bench fl Sergeant King: Yes! The S.M.: I cannot recall having made such a recommendation. Mr Brosnan: Neither can 1! The Sergeant then went into the box, and, when asked by Mr Brosnan why he was entering the box. Sergeant King said he was going to give him (Mr Brosnan) the chance to cross-ex-amine him. Mr Brosnan said hr did not want to cross-examine the Sergeant and if His Worship allowed the Sergeant to go into the box he wouM ask for costs on all the charges. The S.M. said he did not see that there had been any offence, and it would be no use the Sergeant going into the box. If he insisted on giving evidence the application for costs would have to be considered.

The Sergeant said that they had to accept His Worship’s interpretation, and thereupon left the box. The Sergeant said that there had been no question of ill-feeling between him and the fishermen, when the-infor-mations were laid. He did not take tea with the defendants but neither side would do the other any harm! Mr Brosnan: They fton’t seem to agree with you! Sergeant King (amidst smiles from the Court): They never did! The Magistrate said he would d!x» miss both charges, but would not allow costs. The Inspector was endeavouring to stop tho practice in the interests of the other fishermen, and it was not right that the public officer should be penalised. j CASE AGAINST HOLLY. The case against William Holly was then proceeded with, Mr Brosnan plead, ing not guilty on hig behalf. Sergeant King stated that the de fondant Holly and his wife both had registered trenches in the Mahinapua Creek, the trenches being from five to ten chains apart. He would endeavour to load evidence to show that on the date in question Holly was fishing in both trenches nt the same time. Frederick Howard stated that he was the owner of a registered trench and knew that the defendants had a trench about three and a-half chains down : tream from witness’s. Mrs Holly, wife of the defendant, also had a registered trench about nine.chains from that of witness o n the opposite side of the creek He remembered the date of the alleged offence and saw Holly bu that day fish both his own and his wife’s trench. Holly also fished from a boat in front of the trench owned by witness’s wife. To Mr Brosnan: Witness and bis wife both hud reg ; stered trenches, but witness did not ever fish bis wife’s trench. There were four in his family and on occasions the two children heliJed their parents. All they did was to see when the fish came in. He would swear that he had never lifted a. net from his wife’s trench. Ho had never done wlia| the defendant had done. \\ itness: considered he had a. perfect light, to assist his wife in the trench. If. a man’s wife were away ill, her trench should be lying idle. Witness admitted that there was no justification fur a man fishing- his wife’s trench, but considered there was no harm in it. Ho saw the defendant between ten o’clock and twelve noon on the day i u question. a iid saw him fish from the two trenches. He saw Holly lift the net from his wife’s trench, and empty the net. Syd. Holly came down that morning and was at witness’s trench at about 10.30 a.m. Syd. Holly was not there by arrangement. Witness pointed out to Syd. Holly that the defendant was fishing first his own and then his wife’s trench, and that he was also fishing from the bout. Witness admitted that the defendant had a whare near his (defendant’s) wife’s trench, where he made his headquarters during the season.’ Witness was not employed all the time as a fisherman, and had been -employed on relief work about the time of the offence. When witness was working on the dole his little boy fished his trench. The boy was not a registered holder of the trench.

To Sergeant King: Defendant’s wife was not on the trench at the time of the offence as she was ill. Sydney Holly, brother of the defend, ant, and a rgeistered owner of a trench on the Mahinapua Creek said that h : s brother also had a trench on the creek. He remembered the date in question and saw his brother fish in both the trenches. He went from one trench to the other Tn the boat, from which he also fished. Nets were set at one trench while he was attending to the other. Mrs William Holly was ill about that time and was absent on the day pi question. To Mr Brosnan: Witness was a married man and both he and his wife had registered trenches. To the S.M.: When his wife happened to be away be did not fish her ttench. Witness had assisted his wife as defendant had assisted his. They did not complain about that. The S.M.: Then why do you complatn about William Holly? Witness: Because he was using both trenches at the one time. He was moving between them in a boat and frightening the whitebait. Mr Brosnan: All the fishermen do the same and have done so for the past 40 years. In reply to Sergeant King, witness said that in the event of his going to his wife’s trench he put his own net on the bank and he would thus not be using both trenches at the one time. Mr Brosnan submitted that there was no case to answer. The Magistrate, in giving judgment, said the whole question turned o n who-

ther, defendant was thp owner of the trenches registered in his and in his wife’s name, and whether he fished both trenches himself. If his wife did own one and he the other and if defendant fished his wife’s trench while she was absent through illness he (the Magistrate) could not see that this could be held to be an offence. Both trenches were registered, one in the husband’s name and the other in the wife’s and no more fish would be taken bv the hnsbanj going over to assist at his wife’s trench than if she had remained to fish her own. The witnesses for the prosecution had in their evidence said that defendant’s wife was ill on the day of the alleged offence, and that defendant had fished both trenches a nd had also used a boat. The boat seemed to be the cause of the trouble. The prosecution witnesses had admitted that it was customary for the husband to assist his wife and he (the Magistrate) considered that it would be stretching the regulations unduly to hold that it was an offence for a man, during his wife’s absence through illness, to fish his wife’s trench. There was nothing to prevent him employing an agent or servant during the illness so long as it was not done as a blind to secure two trenches for the one fisherman. The ease would be dismissed.