RESIDENT MAGISTRATE COURT.

Westport Times, Volume VII, Issue 1100, 22 August 1873, Page 2

RESIDENT MAGISTRATE COURT.

(Before Joseph Giles. Ilsq;., R.M.j Tuesday, August 10. BBEACH OF HABB'OR BEGULATtONS. Police v. Campton, Quigley, Kelpj and Bishop. defendants for removing driftwood from the beach between high and low water mark, within the boundaries of the pore of Westport. Mr Shapter for the defence, raised objection, that the locality wherein the offences were alleged to be committed, was not within the limits of the port of Westport, arid that the regulations under which penalty Was sought to be inflicted applied only to ports denned by the Marine Act, 1867, wherein the port of Westport was not included; The Court allowed amendment of plaints to breach of Clause 48 of the Harbor regulations. In the charge against Campkin and Kelp, Sub-Inspector Kiely produced Gazette Notices, and Proclamations defining the limits of the port extending to a radius of two miles from the positionof the old signal staff. Coristable Maloriey gave evidence that he had followed the defendants from town on the 9th instant, arid witnessed them lifting driftwood into a dray. Kelp, on being told by witness that he was committing an offence, removed the wood fromi the dray and stated that he had acted in ignorance of the regulations.

By Mr Shapter: The place wherei this happened was within a radius of two' miles from the present flagstaff, I don't know the exact po'sition where the old flagstaff stood, nor can I swear whether the wood was taken from within two miles of that position, I have never measured the distances, and only know the limits of the port by looking at a map. There are no pegs or lines to mark such bovmdafy. Henry Trent, assistant surveyor.—• Ha'd compiled the map produced from other maps, bttt not from actual survey. It was the official map used in the office. Mr Shapter objected to the map as evidence unless the actual survey was 1 proved. In an information every point should be strictly proved, and nothing presumed against the supposed offender. In admitting the map as evidence, compiled as it might be from other maps wherein errors existed, the Court if convicting on such evidence would be' acting unfairly towards the defendants. The Court thought the opinion of the witness might be taken, and the Court would judge of the weight of evidence thereafter. Examination resumed : The circular' lines on the map were made that morning and defined the limits of the port. Witness had never actually measured the distance from the starting point shown on the map to the place where the offence was said to have beeii committed, but from scaling the niap ho considered it considerably within the two mile radius. The position of the old flagstaff was only marked on the map that morning, just before the map was produced in Count. By Court: On the map the point showing Fleming's house is within! the two mile radius by about ten chains. Mr Shapter pleaded that the information on its merits could not be sustained. Unlawful removal had not been proved. The wood, on the evidence of the informer, had been' merely lifted and then put back again, and such action did not constitute an offence either within the spirit or letter of the statute. The Constable who had actually brought a piece of wood from the beach and produced it in: Court was in point of fact the offender worthy of punishment.

The Court, referring to the regulations,disallowed the objection. Mr Shapter then pleaded that no proof had been given that the land was crown lands, or that it had not been leased to private parties. The' information also set forth that wood had been removed without the "permission of the Harbor Master," but tbte? appointment of such official had not been proved except by a Proclamation, dated IS6B, issued before had been proclaimed aport. No fresh appointment had been made, nor had the Marine Acts any reference thereto. Therefore as no person had been appointed to give such permission it was possible to act without such leave, the law not recognising impossibilities. And further no distinct proof had been adduced that the alleged oifence was committed within the presumed boundaries of the port. The informing Constable had declined making any such averment, and Mr Trent only thought that it might be, but could not distinctly state that it was, founding his opinion on inspection of a map, compiled from other maps, and not from actual survey. He imagined the Court would hardly admit that such maps were necessarily free from errors because made by Government Surveyors. The Court ought not to convict until the evidence had been distinctly proved and sworn to, and the defendants could not be compelled to show that they were outside the boundary until the prosecution had testified in oath that they were inside the defined limits of the port. Again the informatiou had been wrongly laid. Section 30, Marine Act, 1867, expressly defined the powers and duties of authorities, and set forth , that the Superintendent should enforce the fulfilment of Harbor regulations. There had been no evidence produced that the Superintendent had required this information to be laid or had authorised

Constable Malbriey or any one else to tlo so. The Court ruled on this point that any one might lay such information. The objection as to the non-proving of tbe land to be crown lands was disposed of by the evidence that the offence was committed between high and low water marks, and further being comprised Within the Goldfields and unsold was another proof of its crown lands. On the evidence as to distance the Court reserved judgment. Police v. Quigley and Bishop.—The evidence in these cases was similar to the foregoing, but in the case of Quigley, the evidence of the constable, as to his having followed the tracks of a horse and dray to the place where wood had been lifted was uncertain, and the case was dismissed. The evidence against Bishop was that the constable found him lifting wood on his shoulder. This Bishop, through his counsel, denied, stating that when the constable came to him be was standing quietly smoking his .pipe, but producing no corroborative evidence the sworn testimony of the Constable was accepted, and a penalty of 20s and 'costs inflicted. On Wednesday, on the sitting of the Court being resumed, the Magistrate said that, after considering the evidence given against Kelp arid Campkin, as particularly referring to the question of distance, it appeared the offence had been fully proved, aud a fine of 20s and costs in each case would be inflicted. It might however sometimes happen that alleged offences of this nature w J ould occur nearer the line of radius defining the limit of the port, and in such cases similar evidence to that now given would be hardly held as sufficient proof. Some mark should therefore be erected, by the harbor authorities expressly indicating the limits of the port. CIVIL CASES. P. Byrne v. Fitzgerald, —Claim for £4 12s 2d, store account. Judgment confessed. Sheehan v. Abernethy.—Claim for £3 15s 8d for rent. Judgment con- / t e'ssed. London v. "Wilson. —Balance of account £B7 13s. Mr Shapter for defendant. The debt was admitted, and judgment given for amount claimed, with costs and counsel's fee £5. Leslie and Ryan, Trustees in Smith's estate, v. Thompson. Claim for £25 17s lid. Mr Shapter for plaintiffs. Defendant did not appear. Judgment given for plaintiffs with costs, £3 7s. Patterson v* Jones.—£4 5a Bd, balance of account. No appearance of defendant. Judgment for amount claimed and costs 9s. Byrne v. Hogan. —£11 9s, store account. Judgment for plaintiff by default; costs 19s. "Wednesdal, August 20. In the matter of M'Gonegle, Tulley, Poran, O'Kane, and Sheedy v. Patrick Burke.—Application was made by Mr Shapter as counsel* for order under sections 10 and 11 of the Contractors' Lien Act, for retention of money due by the Grovernment to the defendant as contractor, until judgment had been given applicants against him. Order made, subject to production of certificate from overseer of works, verifying the amount of labor performed. Smith and Paris v. same.—ln this case the certificate was produced and order made.