A complaint was made against the respondent for having in his "possession or control" certain flounders less in size than that prescribed. After the evidence for the prosecution had been given, objection was taken that the information disclosed two offences, one having the fish "in his possession" and the other having them "in his control." The magistrate thought that he was bound to give effect to the objection, and dismissed the information. An appeal to the Supreme Court by special case was dismissed, and we are now asked to say that the Supreme Court was wrong.

Although the point seems at first sight to be small and unimportant, a little consideration will show that it is not so.

Up to the end of the first half of last century innumerable objections could be taken in cases before magistrates. Then came the Acts called Jervis's Acts, which did away with many of them. One of those Acts, 11 & 12 Vict. c. 43, which was adopted in Tasmania by 19 Vict. No. 8, provides (sec. 1) that no objection shall be taken or allowed to any information for any alleged defect therein in substance or in form. That apparently means that if objections are taken which really do not go to the merits of the case the magistrate is not to stay his hand, but to proceed to dispose of the case on the merits. A later section (sec. 10) provides that a complaint must be for one matter only, and not for two or more. It was held by the Court of Queen's Bench in the case of Rodgers v. Richards[1], that the joining of two offences in one complaint, although contrary to the Act, is a defect in substance or form within the meaning of sec. 1, and does not justify the magistrate in refusing to give judgment in the case.

The objection to the information has been treated as one of duplicity, but I am not sure that the objection is not rather of uncertainty.

The charge was in form in the alternative, and not in the conjunctive, whereas in Rodgers v. Richards[2] the charge was in the conjunctive. But the objection, however it is described, is equally an objection of a defect in substance or form. I venture to say that I think that decision a most rational one.

That would be enough to dispose of this case, and to justify us in saying that the magistrate should not have dismissed the information, but should have gone on and decided whether the defendant was guilty of having undersized fish in his possession, or of having them in his control, or was not guilty of either charge. I have assumed so far, as the magistrate seems to have assumed, that the information alleged two offences. A little consideration, however, will show that in substance there was only one charge, namely, having the fish in his control, with or without possession. For if the defendant had them in his possession, they were, necessarily, in his control. Possession is a larger term, and involves control; so that the charge of having in possession involves the charge of having in control. I am speaking, of course, of the Fisheries Act, and do not mean that the construction would be the same in a different context. If, therefore, the respondent had been convicted of having fish in his "possession or control," he would, in effect, have been convicted of having them in his control, with or without possession.

If different penalties were attached to possession and control, the result would be different, but under the Statute the penalty is the same in either case.

As, however, this point was apparently not taken before the magistrate or before the Supreme Court, I do not think that it would be proper to allow the appeal on this point only. If there were no more in the case, the leave to appeal should be rescinded.

I should add that, when an information charges two offences, it is the duty of the magistrate, if he thinks so, to tell the informant, and to inform him of his right of election, and ask him on which charge he desires to proceed. But in the case of an illiterate or ignorant complainant (and I suppose there are many such), if he does not know what to do, that would not, in my opinion, relieve the magistrate from his duty to hear the evidence and form his own conclusion as to whether either of the offences charged is proved.

For these reasons I think that the appeal should be allowed, that the question submitted should be answered by saying that the information was not rightly dismissed, and that the case should be remitted to the magistrate for decision upon the merits on the evidence, in accordance with this judgment.

I concur and will not add anything to what has already been said by the learned Chief Justice.

First of all, on the point that was taken in the Supreme Court I agree that the case of Rodgers v. Richards[3] is a good authority to show that on the assumption that two distinct offences were intended by the legislature, one in respect of possession and the other in respect of control, the wrong course was adopted by the magistrate. The words of the first section in the Magistrates Summary Procedure Act are, I think, perfectly plain, and the objection, as a vital objection, was untenable.

The magistrate appears to have held that the contention as to two distinct offences was well founded, and thereupon thought his only course was to dismiss the information. In my opinion that was an erroneous course to adopt, and, on the assumption of distinct offences, he should have asked the prosecutor to elect. If the prosecutor had then refused to elect, I am not prepared at the present moment to say what the magistrate should have done. But that difficulty does not arise, because, as I have already said, it was not his duty to dismiss the information.

As we have to decide this case, and as it is to go back to the magistrate with an intimation of the Court's opinion, I do not see how we can avoid giving our opinion as to whether the words "possession or control" do create two offences or only one offence. It is clear that the legislature had no intention of creating two offences. Sec. 35 creates an offence for buying, an offence for selling, an offence for causing to be bought, and an offence for causing to be sold, an offence for offering, also an offence for exposing for sale. Then come these words "have in his possession or control" any fish. The essence of that is the having, and the words "possession or control" seem to me to be quite subsidiary words, the legislature indicating that it is immaterial to them which it is, so long as the person is shown to "have" the fish.

If secs. 36, 37 and 38 are looked at, where these words "possession or control" are repeated, this view is made quite evident.

Sec. 38 towards the end contains these words, "the fact ... of being in possession or control as aforesaid," which manifestly indicate the unity of the offence, and the immateriality in the mind of the legislature, for the creation of the offence, whether the accused has "possession" or "control."

For these reasons I think that the appeal should be allowed.

Appeal allowed. Order appealed from discharged except as to costs. Case remitted to magistrate with intimation of opinion that he should proceed to adjudicate upon the charge consistently with this judgment. Appellant to pay costs of appeal.

Solicitor, for appellant, L. J. Hobkirk, Crown Solicitor for Tasmania, Hobart.