Judgment

Southland Times, Issue 19681, 7 October 1905, Page 4

Judgment

THE TROUT CASES. — THE DEFENDANTS CONVICTED AND FINED. At the Magistrate’s Court yesterday, Mr S. E. McCarthy, S.M., delivered the following judgment in the case John Friend V. Larsen Rask and John Rask —an information under the Fisheries Conservation Act, 1884, alleging that defendants had unlawfully had trout in their possession during the citose season.—Mr Eustace Russell appeared for the ranger of the Southland Acclimatisation Society, and Mr W. Y. H. Hall for the defendants, who pleaded not guilty. The case was heard on the 25th September, when judgment was reservedHis Worship said : The informant is an officer duly appointed and gazetted pursuant to "The Fisheries Conservation Act, 1884,” and the information alleges that on the 31st August last at Invercargill in the Southland Acclimatisation District they unlawfully had trout in their possession, the said 31st day of August not being within a period during when it was lawful to haw trout in their possession. The information was laid under " The Fisheries Conservation Act, 1881,” and the regulations made thereunder on the 21st day of September, 1904. Section 5 of the Act empowers the Governor in Council to make, alter, and revoke regulations which shall have’force and' effect only in any waters or places specified therein in respect of any species of fish, and prescribing a close season ” or " close seasons in any year, month, week or day as may be most suitable! for the whole z or any part or parts of the colony during which it shall bo unlawful for any person to take any fish of such species respectively or in any way to injure or disturb the same; and prohibiting the buying, selling or exposing for sale or having in possession any fish in any manner in contravention of the Act.” By the interpretation section, section 4, it vided that “ close season” means “ the time during which it is declared unlawful to take any species of fish, and applies to such season however the same may be varied and extended ; ‘ fish means " and Includes all fish and mammalia inhabiting the waters of the colony whether indigenous or not, thenyoung, or fry, and spawn ” ; whilst the term " this Act ” includes the Acts “incorporated therewith and all regulations made thereunder," and in this connection it is to be noted that all regulations prescribed under the Act shall on theii coming into operation as to an.V waters or place supersede therein all enactments at variance with such regulations in so far as they are so at variance but not further in any way whatsoever. (See section 10 and the concluding paragraph of section -5). By section Sit is provided that it shall be the duty of the " Collectors of Customs within the colony to see that the provisions of the Act and of the several Acts incorporated herewith are duly carried into effect and for that purpose they severally shall have and may exercise all the powers granted by the Act and the. aforesaid Acts in that bjjbalf.” By section 9it is provided that " the Commissioner ol Trade and Customs may from time to time appoint such assistants to the collectors and such other officers, serv ants and other persons as may appear to him to be necessary for the effective admin-

istration of the Act : all of whom shall as well as s the collectors aforesaid be deemed to be officers appointed under this Act." By an Order-in-Council of the 21st September, 1904, certain regulations are made for certain counties therein named (including the County of •Southland) and the boroughs and town districts situated therein. The Borough of Invercargill is surrounded on all sides by the County of Southland, but is not in fact a part of the county. Keeping in view, however, the respective configurations of the county and the borough it would be reasonable to find that that borough is a part of the South Island comprised within the County of Southland and that it is situated therein. The borough indeed forms part of the land within the outside boundaries of the county, and it is sufficiently described in the regulation so as to identify it- Moreover sub-section 4 of section 5 of “1 he Municipal Corporations Act, 1900,” although enacting that boroughs shall not be deemed to form part of a county, yet refers to boroughs as being situate within the boundaries of a county. Regulation No. 7 of the regulations before referred to provides that "no person shall have in his possession any of the salmonidae or trout between the Ist day of May and the 30th day of September in any year, which period is hereby appointed a close season for all such fish. Provided always that this regulation shall not apply to fish caught by the officers of the society for purposes of acclimatisation.” The facts are briefly these. On the filet August last the defendant Larson Rask with some others was fishing in a boat belonging to one Edmund Rask. Ibis boat is licensed under “ The Sea Fisheries Act, 1894,” and Larsen Rask deposes that the place where the fishing took place was at the Half Way Rocks in the passage between the respective depths at low water of 10 and i.2 fathoms. The net used wat a set net end the

suggested locus in quo is at least .'-3 marine miles from' the shore measured from low water mark. Whilst fishing it is admitted the party caught 3 tiout, which although stated to be caught outside the 3 iniij limit, yet were trout inhabiting waters within that limit and situate within the colony. All the fish were brought by the party in a boat from Half Way Rocks past the New River Heads and thence up the New’ River Estuary to tlid wharf in the > .trough of Invercargill erected alongside the estuary. At a point in the estuary letveen the New River Heads and the wharf the fishing party landed at tho -evidence of Earsen Rask. All the country Between the New River Heads and li-e R.:rci:gh of Invercargill is for the most part within the County of Southland. <>:•• reaching Invercargill the boat was moored in about 3 feet of water and Larsen Rnsk came up to Invercargill, and by n's instrurtions a carter named Kail! carted the fish in a barrel from the boat to the s-liop of a fishmonger called Pomeroy situate in the borough. When the fish were emptied out at Pomeroy's the trout were found at the bottom of the barrel under .all the other fish. From this evidence there can be no doubt that the trout were in the possession of Larsen Rask not only in tho borough of Invercargill but in the County of Southland. Cn

these facts the following contentions were raised (1) That the regulations only apply to places within certain counties therein named and no borough by construction can form part -of a county and the trout were found in defendant's possession within a borough ; (2) that subsection 3 of section 5 of "The Fisheries Conservation Act, 1884,” which is the statutory authority for making the regulation on which the information is founded applies only' to a having in possession in contravention of that Act and no such state of facta is made the basis of an offence under the Act, consequently the regulation is ultra vires ; (3) that by section 5 of the Act cited all regulations must specify the waters or places where the same are to take effect and that such waters and places are only set out in the preamble- to the regulations which is no part of the lattei , (4) that the informant is merely an officer appointed under the Act and that the only person competent to take proceedings is the Collector of Customs (see section 8) ; (5) that the trout the subject of the information were caught outside the 3 mile limit and therefore the regulations do not apply. Taking these questions in their order there can be no doubt in the sense already indicated the borough is either compromised or situate within the county. .Assuming, however, this is hot so,

— ■ yet on -defendant’s own admission ho had the trout In possession in the County of

Southland and the information will bo altered accordingly. For this there is ample power (see sections 74 and 75 of "The Justices of the Peace Act, 1882’’). (2) The second contention cannot avail because the term " thit Act ” includes the regulations made thereunder (see section 3). (3) Merely to state the third contention is to answer it. The preamble of a regulation is as much a part of the regulation as the recitals are of a deed. (4) In support of the fourth contention counsel for defendant relied on two cases —Queen v. Cubitt (22 L.R., Q.8.D., 622) and Anderson v. Hamlin (17 Cox’s Crim’. Cases 129). In the first of these cases the statute .provides distinctly ,tbat the Act shall be enforced by sea-fishery officers who are defined, whilst i.t the second in setting out the powers of the Board of Conservators one of these powers is stated to be " to take i-’gal proceedings against persons violating the provisions of the Act." Under our Fisheries Conservation Act even assuming that section 8 amounts to a limitation asjo the persons who shall take proceedings which is exceedingly doubtful, yet officers appointed under section 9aro "as well as the Collector of Customs to be deemed to be officers appointed under this Act,” which is only saying in so many words that these offi-.ors are to have 1 powers co-equail and -(-ordinate with those of Collectors of Customs. (5) As to the last contention it m-ist be observed that if trout of the same! species as those inhabiting the waters of the colony are during a close season found in a defendant’s possession within the 3 mile limit the onut of proving that the fish were caught outside that limit clearly rests on the defendant, mid as the only proof tendered was the uncorroborated testimony of the defendant and the others who were alleged to have been present with him at the tbie the trout were caught were not called, I am unable to say that defendant has discharged that onus. Assuming, lev. ever that the trout were caught outside the 3 mile limit they were caught just outside that limit and admittedly veto trout inhabiting New 'Zealand waters, probably some one or other of. the adjacent rivers. These trout are therefore within the definition offish contained in section 4of the Act. Clearly the cases Guyer v. Queen (16 Cox ~'riin. Cases, 657) and Padney v. Eccles (17 CoX Crim. Cases) do not apply. The gn-ae there referred to was game imported into England from abroad. Here the twr.it, the , subject of the information, we're trout inhabiting New 'Zeafand waters to which the provisions of the Fisheries Conservation Act directly apply. The defendant Larsen Rask must be convicted and fined £5 and ordered to pay the costs. The information is dismissed as to John Rask there having been no proof that the trout were ever in his possession until after he had been discharged from the proceedings. Mr Hall asked the magistrate to increase the fine by -Is. He did not know that there would be an appeal, but it was possible, as the matter was one in which all the fishermen were vitally interested, and they might desire that the regulations should be tested. The Magistrate declined to accede to this request. Counsel had ample power to appeal on all legal questions W.thout the fine being raised. Keeping in view the Chief Justice’s remarks on this question he could not grant the application. Costs were allowed against the defendant amounting to £4 13s Gd.