COURT OF APPEAL

Wairarapa Daily Times, Volume XV, Issue 4354, 25 February 1893, Page 3

COURT OF APPEAL

The Rabbit Act s The Reu. IC. Andrew's Gonuiction Quashed. y Yesterday His Honour Mr Justice if Richmond had before him the case J' Rov. J. C, Andrew v, J. WallaceSmith (Rabbit Inspector for the disc trict) an appeal from a decision ol II Colonel Roberts on nn informationlaid in September last under the 9th bocIi tion of the Rabbit Act of ISB2. J Mr J. Andrew appeared for tho appellant, and Mr E. P. Bunny for the respondent, i Mr And'cv, in opening his argu-. 1 ment in support of tho appeal, said s that tho question involved was purely one of law. It practically involved the point whether any bona fide de--3 fence was possible to an information ) laid undor this section, and thequesi tion was solely one as to tho construction of the Statute, Clause 9 was as follows:—" If, immediately upon the i service of such notico [to destroy rab- ', bitsj, euch onoor more of tho owners i upon whom the same is served do not commence to do all such acts, deeds, matters and things as, in thoopinion of tho inspeo or, amy bo necessary to destroy tho rabbits on tho land mentioned in such notice in tho shortest time possible, and having so commenced, do not continue such action until such rabbits are destroyed, each of tho ' owners upon whom such notico has been served shall bo liable to a penalty of not less than one pound nor more than twenty pounds,' Ono or two amendments had beon made, e.g., tho word 'or' had beon substituted for ' and' in the phrase ' and having so commenced,' and the penalty was also different, Tho ruling of tho Resident Magistrate was that the words 'in tho opinion of the inspector' should bo read as if they came after tho words 'do not.' Appellant claimed that ho transposed tho words, and that if they wero transposed it was impossible for any defence to bo made, whereas if the words wero not transposed the question to bo decidod before the Magistrate remained a question of fact, and proof could be given that certain steps had been taken. Mr Andrew therefore submitted that a change lib this which practically took away a man's', defeuco would not bo lightly made, and also that the intention of tho Act was that iu tho case of an information under clause 9 tho Resident Magistrate and not tho inspector should be tho judge, Otherwise there would not have been any such sudden change of language as in tho case of clause 10 in respect of an information undor which the inspector admittedly becamo absolute, and the Magistrate merely an assessor to impose a fine, The purpose of the Act seemed to bo Ist, that there should he notico to tbo landowner to destroy; 2nd, that if ho did not seem to bo making very successful efforts in that direction the 1 Magistrate should bo the judge as to ' that, and if a conviction followed tho inspector became the judge entirely, . The learned gentleman also raised tho point as to whether there was any evidenco that no commencement had been made with tho means to destroy, Mr Bunny, in reply, took the preliminary objection that appellant's remedy by way of appeal was gone, Clause 6of the oaso stated that fondant called evidenco for tho de- »

fonco and that the Magistrate excluded all evidence intended to convince the Court, except in mitigation of penally, but allowed ovideuco for tho purpose of convincing the Inspector. Clause 287 of the i ustices of tho Peace Act said that no such determination shall bo appealed against on tho ground of the improper admission or rejection of evidence, whether the Magistrate misconstrued the section of tho Babbit Act or not. Mr Bunny submitted that what his learned friend complained of was that tho Magistrate rejected evidence which defendant was desirous of bringing forward for the purpose of convincing him, and if so, ho submitted, his remedy by way of appeal was gone, Ho further submitted, in regard to the section itself, that looking at the itabbit Act and the object which it was intended to achioyo, the only way in which section 9 could reasonably be read for the purposo of effecting that objeot was to make tbe transposition which tho Magistrate did ninko, and which practically the Chief Justice in the case Button v Thompson stated was the right interpretation. The question involved was whether the Inspector was the judge whether the necessary steps to destroy the rabbits bad been commenced. His Honor: He is oortainly tbe judge of the eiciency of the means used, but lam not prepared to say that he is tho judge of when those steps were commeuced to be used. Mr Andrew having roplied, His Honor gave judgment, allowing tho appeal and quashing the conviction, He hold that tho appellant wits right in contending that tho question whothoi'or not tho party had commenced to use means for destroying the rabbits was a question of fact to be determined by the Magistrate and ; not a quostiou which could be loft to the meroopinion of the inspector. The ruling of tbe Magistrate that the inspector's opiaion on this point must necessarily bo decisivo was therefore wrong. Tbe inspector's evidence did not Bhow that ho meant to affirm that tho defendant did not begin to use proper means of destruction within n reasonable timo after tho notice, The conviction would thotcfore bo quashed. Mr Andrew applied for costs, His Honor was not euro thatit was the practice to allow costs against tbe department, and in order that there should bo uniformity of action on this point, bo reserved tho question of coats.—Times.