Anderson v Laverock
| Jurisdiction | Scotland |
| Judgment Date | 18 December 1975 |
| Date | 18 December 1975 |
| Docket Number | No. 3. |
| Court | High Court of Justiciary |
JC
L. J.-C. Wheatley, Lords Leechman, Stewart.
Evidence—Statutory Offences—Unlawful possession of salmon—Productions—Articles referred to in complaint—Necessity for their production—Evidence led as to articles not produced—Competency of such evidence—Appeal against conviction—No opportunity given to appellant to inspect salmon before they were sold—Prejudice—Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (cap. 26), sec. 7.
The Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 enacts by sec. 7:—"(1) If any person is found in possession of any salmon … in circumstances which afford reasonable ground for suspecting that he has obtained possession of such salmon … as a result … of his committing an offence against any of the provisions of sections 1 to 4 of this Act, that person may be charged with unlawful possession as aforesaid of such salmon … (2) Where the Court is satisfied that a person charged under the last foregoing subsection obtained possession of salmon … as a result … of his committing an offence against any of the provisions of sections 1 to 4 of this Act, that person may be convicted of unlawful possession as aforesaid …," and by sec. 20 empowers the person seizing fish as liable to forfeiture to sell it.
Police officers found salmon in the possession of a man some time after 11 p.m. on a certain date. The police officers asked him to accompany them to the police station and to bring the fish with him, which he did. At the police station the fish were examined by the police officers and a water bailiff outwith the presence of the man. The fish were impounded and the following day were destroyed, without the man having any opportunity to examine the fish. The accused was convicted in the Sheriff Court of an offence against sec. 7 (1) of the 1951 Act. In the course of the trial, his agent objected to any oral evidence being led about the condition of the fish, on the ground that such evidence was secondary, and therefore inadmissible, the primary evidence being the fish, which were not produced. The defence further argued that the fish should have been kept until they could be examined on behalf Of the accused, or in any event photographs of the salmon should have been produced.
The Sheriff repelled the objection, on the grounds (a) that there was no obligation on the prosecution to produce the salmon, (b) that there would only have been an obligation on the prosecution to preserve the fish if the accused had indicated when the fish were impounded that he wanted them inspected, and (c) that photographs of the salmon would have been of no assistance.
Held (a) that, since the fish were perishable and it was not reasonably practicable and convenient to retain them, and since the Act provided that fish which had been impounded might be sold, secondary evidence as to the description of the fish was competent; (b) that photographs of the fish would themselves be secondary evidence and were not a necessary part of the evidence as to the condition of the fish; but (c) that where it is reasonably practicable a person who has lawfully seized a fish and intends disposing of it in some way should inform the accused that it is to be disposed of and allow him the opportunity of examining it first; and that as that had not been done, and as the appellant had suffered material prejudice thereby, the conviction should be quashed.
Peter Stewart Anderson was charged in the Sheriff Court at Peebles on a summary complaint at the instance of Edward Laverock, Procurator-fiscal, which set forth that "on 23rd December 1974, on the Peebles/Glasgow Road at a part thereof at its junction with the Kirkton Manor Road in the County of Peebles, you were found in possession of 26 salmon in circumstances which afforded reasonable grounds for suspecting that you had obtained said salmon as a result of committing an offence against the provisions of section 1 or 2 of the Act aftermentioned, more particularly in respect that at 11.50p.m. on said date, which date occurs within the annual close times for salmon fishing, you were the sole occupant of a motor car registered number OGE 197M wherein the said 26 salmon were found concealed, and said salmon were cleek marked; contrary to the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951, Section 7 (1)."
On 9th July 1975, the Sheriff (Sinclair), after evidence had been led, convicted the accused, and at his request stated a case for appeal to the High Court of Justiciary.
The stated case set forth inter alia:—"I found the following facts admitted or proved: (1) The appellant who is 49 years of age resides at Kirkintilloch and has, inter alia, a sporting goods shop in Kilsyth. He is a sales engineer and consultant with a firm of fishing-tackle manufacturers and an instructor, under the auspices of the National Tourist Board, in the art of fly-casting in which he has for the past three years held the British and World Championships. Since 1962 he has held classes in casting at Walkerburn which he visits several times a week during the salmon season and where he has many friends and acquaintances. (2) In the course of a normal year the appellant expects to catch between three and four hundred salmon and sea-trout … (8) Shortly after 11 p.m. on Monday 23rd...
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