Maurice Gleeson v Timothy Hurley

• Jurisdiction: Ireland
• Judgment Date: 08 February 1916
• Date: 08 February 1916
• Court: King's Bench Division (Ireland)

Maurice Gleeson,

Appellant

and

Timothy Hurley,

Respondent (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1916.

Justices — Trespass in pursuit of Game — Evidence of Absence of Authority or Permission — Onus of Proof — 27 Geo. III, c. 35.

The appellant, a gamekeeper, as a common informer prosecuted the respondent for trespass in pursuit of game under 27 Geo. 3, c. 35. Evidence was given that the respondent was found on the lands of L, to whom the game rights belonged, with a dog and gun, and that the respondent had shot a pheasant on L's lands. The pheasant was illegally shot, as it was the close season. On being challenged, the respondent stated he had “the right to shoot there,” and would do so again. L. was not called to disprove permission or authority to the respondent to enter the lands. The justices dismissed the complaint, holding that there was no evidence that the respondent had entered L.'s lands without his authority. On a case stated:

Held, that in such prosecutions the whole circumstances might warrant an inference of want of authority from the occupier of the lands, even without direct evidence that such authority had not been given, and that there was evidence in the present case to support the complaint. Amongst other matters it could not be presumed that the occupier of the lands would authorize illegality, and the respondent's act in shooting the pheasant was admittedly illegal.

Quaere, in a prosecution for trespass in pursuit of game, does the onus lie upon the prosecutor to negative the consent of the occupier of the lands, or upon the defendant to prove such consent?

Case Stated, under 20 & 21 Vict. c. 43, by the justices of the peace for the county of Kerry sitting at petty sessions at Killarney on the 23rd November, 1915.

The appellant, a gamekeeper of Lord Kenmare, as a common informer charged the respondent with having on the 30th September, 1915, entered on the lands of Gortroe, in the occupation of John Malier Loughnan, to shoot game thereon, being then and there provided with a dog and gun, and not being authorized to enter by any person entitled to give permission.

The complaint came on for hearing before the justices who

stated the case, on the 23rd November, 1915, at Killarney petty sessions, when, after hearing evidence, the justices dismissed the complaint. The material portions of the evidence and conclusion of the Bench were stated in the case as follows:—

“On behalf of the complainant [the appellant] evidence was given that the...