Hedberg v Woodhall

The High Court heard an appeal from the Supreme Court of Tasmania concerning a charge laid against the respondent under section 36 of the *Fisheries Act 1889* (Tas.). The respondent was accused of unlawfully having in his "possession or control" undersized flounders. The magistrate had dismissed the information, accepting the respondent's objection that the charge disclosed two separate offences. The Supreme Court of Tasmania affirmed this decision, leading to the informant's appeal to the High Court. A preliminary application by the respondent to strike out the appeal due to a delay in providing notice of security for costs was dismissed by the Court.

The primary legal issue before the High Court was whether the phrase "possession or control" in section 36 of the *Fisheries Act* created one offence or two distinct offences. A secondary issue, considered by the magistrate and the Supreme Court, was the proper procedure when an information is alleged to disclose more than one offence. The Court also considered the effect of section 1 of the *Magistrates Summary Procedure Act 1855* (Tas.) on objections to informations.

The High Court allowed the appeal, holding that the charge of having fish in "possession or control" constituted a single offence. The Court reasoned that in the context of the *Fisheries Act*, possession necessarily implies control, and the legislature intended to penalise the act of having the fish, regardless of whether it was through direct possession or mere control. Furthermore, even if the information were considered to disclose two offences, the Court found that the magistrate's dismissal of the information was erroneous. Citing *Rodgers v. Richards*, the Court held that under section 1 of the *Magistrates Summary Procedure Act*, such a defect in substance or form does not justify dismissing the information; rather, the magistrate should have called upon the informant to elect which charge to proceed on.

The Court ordered that the appeal be allowed, the decision of the Supreme Court of Tasmania discharged (except as to costs), and the case remitted to the magistrate to adjudicate upon the charge on its merits. The appellant was ordered to pay the costs of the appeal.