FISHING " WITH DYNAMITE.

Otago Witness, Issue 2805, 18 December 1907, Page 64

FISHING " WITH DYNAMITE.

A ROXBURGH CONVICTION.

(FBOlC'Otm OWH COHKESPONDENT.) ROXBURGH, December 13. In connection with the prosecution by the Aoolimatitation Sooiety of two men for fishing without a license, the Magistrate {Mr Burgess) delivered the following judgement yesterday. The decision was deferred from the November court for consideration, and consultation of authorities.

" I am satisfied that the defendant's plea of autrefois aetjuit cannot avail in this caee. All authorities agree that the true test to determine' whether or not such a plea is available is whether the evidence necessary to support- the second conviction would have been sufficient to secure a legal conviction in the first. In this caee there cannot be any room to question that the evidence necessary to support a charge of fishing without a licence could not be sufficient to eeoure a conviction on a charge of using dynamite to destroy fish. The latter act is made an offence by ' The Fisheries (Dynamite} Act, 1878,' and the sole purpose of tho statute is to prohibit the use of dynamite for fishing. The offence of fishing without a license is created by regulations made under "The Fisheries Conservation Act, 1884,' and is not framed to meet in any way the mischief sought to be remedied by the Fisheries (Dynamite) Act. It would be absurd, therefore, to argue that the evidence which would sustain a charge of fishing without a license would be sufficient to convict a person of using dynamite for killing fish. The two charges are different in essence, and a conviction or acquittal in one could not, it seems to me, from the very nature of the offences, be pleaded as a bar to an information charging 'the other. With regard to the objection that the facts do not show that the act complained of was ' fishing' within the meaning of the regulations under which the information is laid, I think there is no doubt that in a general way any act that results or is intended to result in the taking or capturing of fish in any way is fishing, and I cannot find anything in the regulations referred to to restrict the meaning of the term 'to fish' or 'fishing' to an act involving one method only. It is true that the holder of a license to fish is prohibited from fishing in any way except ' with natural or artificial fly, insect, or fish only,' and that the license, therefore, only con^ templates such fishing by the licensee. The general effect of this is not, however, to put any new or limited meaning on the words 'to fish' or ,' fishing,' but\to restrict the licensee to one kind of fishing only. If he uses any other means he. renders himself liable as a licensee to penalties under qth&r clauses of the regulations, but not to fishing without a license. If a pereota not licensed to fish catches or attempts to catch fish by any means whatever, whether allowed by a licensed person or not, he is guilty of the offence .of fishing without a license." The magistrate also referred to the evidence and the! facts of the casee. He preferred to take the evidence of the three boys who saw the fish gaffed, and found the two men guilty, and fined them £2 each, and costs. I