Duyo John Anic v R Christopher Nicholas Stylianou v R Azmi Suleyman v R No. 4159 Judgment Nos. SCCRM 93/248, 93/245, 93/231 Number of Pages 12 Criminal Law and Procedure (1993) 68 a Crim R 313 (1993) 61 Sasr 223

[1993] SASC 4159

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MOHR(2) AND BOLLEN(3) JJ

CWDS
Criminal law and procedure - particular offences against property - Larceny - whether drugs unlawfully in possession of a person can be the subject of larceny.
Criminal law and procedure - particular offences Housebreaking with intent to steal and assault with intent to rob - whether drugs unlawfully in possession of a person can be the subject of an intent to steal or rob - whether such intent can exist although the property intended to be stolen does not exist.
Criminal law and procedure - evidence - Possession by accused of mobile telephone - admissibility against accused of statement by co-accused to police disclosing knowledge of the telephone number, to prove against accused his association with co-accused.
Criminal law and procedure - jurisdiction, practice and procedure - verdict - Housebreaking with intent to steal and assault with intent to rob - circumstantial evidence - verdicts not unsafe or unsatisfactory.

HRNG ADELAIDE, 17 August 1993 #DATE 8:9:1993
Counsel for appellants Anic and Stylianou:                 Mr D Nyamirandu
Solicitors for appellants:         David Nyamirandu
Counsel for appellant Suleyman     Mr O C Isaachsen
Solicitors for appellant Suleyman: Murray and Cudmore
Counsel for respondent:            Mr J J Doyle QC
   with Ms J R Adcock
Solicitors for respondent:         Director of
   Public Prosecutions (SA)

ORDER
Appeals dismissed.

JUDGE1 KING CJ The appellants were tried in the Supreme Court on an information containing a count of housebreaking with intent to steal and a further count of assault with intent to rob. The case for the prosecution is summarised in the judgment of Mohr J. The appellants did not give evidence. They were each found guilty on each count. They have appealed to this Court against the convictions. 2. An element of each of the crimes of which the appellants were convicted is an intention to steal. It is apparent from their words and actions that the three men who invaded Mrs Hollis's home had the intention of taking drugs, possession of which is prohibited by the Controlled Substances Act. The first argument raised on the appeal by all appellants was that drugs cannot be stolen from a person who is unlawfully in possession of them. Reliance was placed upon a dictum in the judgment of White J, speaking for the Court of Criminal Appeal, in Lenard v R (1992) 57 SASR 164 at 172. In that case the prosecution alleged that the accused had taken various chattels including a quantity of cannabis. Cannabis was not included in the charge. The passage relied upon by counsel was no more than a comment in passing on the omission of the cannabis from the charge. The point as to whether property could be stolen from a person unlawfully in possession of it did not arise because cannabis was not included in the charge. I do not consider, in those circumstances, that weight should be attached to White J's comment in passing. 3. I agree with what has been written by Mohr J and Bollen J on this point. To my mind the point is concluded for this Court by authority which is binding on it. In Waterhouse v The King (1911) 13 CLR 228 the High Court refused special leave to appeal against the judgment of the Court of Criminal Appeal of New South Wales. Griffith CJ, speaking for the Court, said: "All that it is necessary to say is that the decision of the Full Court was clearly right." 4. The Court of Criminal Appeal of New South Wales had held that opium unlawfully in a person's possession could be the subject of larceny from that person. I am unable to distinguish that case in any material respect from the present case. Refusal of special leave to appeal by the High Court will not often amount to a judgment by that Court on the merits of the matter which is binding upon Courts below it in the judicial hierarchy, but in Waterhouse v The King the High Court expressly held that the decision of the Court of Criminal Appeal was correct. I consider that that is a decision of the High Court on the point in issue in the present case and that it is binding upon us. 5. Mr Isaachsen for Suleyman also argued that the convictions could not be supported because on the case for the prosecution Mrs Hollis was not in possession of the property which the three men intended to steal. The relevant element of the crimes of which the appellants were convicted is the intention to steal. That intention may exist whether or not the property which it is intended to steal exists. The charges were not charges of attempts to commit crimes where questions as to the impossibility of the commission of the substantive crime may arise. There is no substance in this point. 6. It was argued on behalf of Stylianou and Anic that their convictions were unsafe and unsatisfactory. As to Stylianou, I agree with Mohr J that the case for the prosecution was strong and I have nothing to add to what His Honour has said on that point. 7. The case of Anic requires closer examination. Anic was found by police at the side of the road near Renmark a few hours after the commission of the subject crimes, in company with Suleyman. Suleyman was identified by Mrs Hollis as one of the three men who invaded her home. Anic told the police that he had been in Suleyman's company throughout the day. He had come to the Riverland district that day with Suleyman to do some fishing. Anic said that Suleyman had no fishing gear as his gear had been caught on a snag. The admission that he had been in Suleyman's company throughout the day was, of course, an admission that he was in Suleyman's company at the time of the commission of the subject crimes. The identification of Suleyman as one of the culprits thereby incriminated Anic. Anic denied that he had travelled with Stylianou and gave no indication of any knowledge of him. 8. The further fact relied upon by the prosecution was that Anic was in possession of a mobile telephone and that Stylianou knew that telephone number. This was put forward as evidence of a connection between Anic and Stylianou and also as evidence that Anic's denial that he had travelled with Stylianou was a false denial. In order to establish the point, it was necessary for the prosecution to rely, as evidence against Anic, upon what Stylianou told the police on the point. Stylianou, according to the police evidence, told the police that there should be a mobile phone in the back seat of his car with his clothes. Asked the number of the telephone, he gave a number which turned out to be the number of the phone in the possession of Anic. 9. The facts stated in Stylianou's interview with the police are not, of course, evidence against Anic. I consider, however, that Stylianou's knowledge of the telephone number is evidence admissible against Anic. A person's state of knowledge may be proved by evidence of statements disclosing that knowledge. I think that Stylianou's knowledge of the telephone number as indicated by his statement to the police was evidence admissible against Anic. Stylianou's answers to the police to the effect that the phone had been in his car were not evidence against Anic but his knowledge of the telephone number was. His knowledge of the number had probative force as tending to prove against Anic that there was some connection between Anic and Stylianou and that Anic had not told the truth about Stylianou. This evidence together with the evidence implicating Stylianou in the crimes intended to link Anic with the crimes. 10. I think that the evidence against Anic was sufficient to provide a safe basis for his conviction. 11. In my opinion the appeals should be dismissed.

JUDGE2 MOHR J On the morning of Monday 29th April 1991 a Mrs Hollis was at her house situated at 13 Streeter Avenue Glossop. Glossop is a small town of about 400 people in the Riverland area of South Australia. While she was under the shower she heard "clanging and banging" which sounded like the screen door. She called out "Who is there?" and a male voice replied "Police Police". Mrs Hollis turned off the shower and took a towel. She was then pulled out of the bathroom by a man and saw another man ransacking a linen press. She was then pulled to her bedroom. The man holding and pulling her was saying "Where's the dope". On the way to her bedroom she saw a third man in her daughter's bedroom searching the contents of the bedroom. She noticed that the man holding her had a paper bag which was covered in plastic and had rope handles. 2. Mrs Hollis told the men in no uncertain terms to leave the house. One asked her if they were at No. 38. She replied "No, this No. 13". The men spoke about the information and one said "We have come to the wrong house". Two men left including the one who had been holding her. One remained in her son's room and she went to that room and told him to get out of her house. He said "Oh, sorry love" and left by the front door. Mrs Hollis described the man who had held her wrist as being about 5'10" in height, olive skin, dark hair, unshaven, unkempt beard and wearing a bone coloured parka. She thought of Greek or Lebanese origin. She described the other two men. One she said had reasonably long dark waving hair to his collar and an olive complexion. The third man had shorter hair, really dark brown eyes and in his 20's. She said each man had a beard. 3. Whilst they were at her house one said "The bloke who owes us this money, he is going to cop it when we catch up to him" or words to that effect. She could not say which. 4. The three appellants were convicted of:- 1. Housebreaking with intent to steal. 2. Assault with intent to rob. Before turning to consider the evidence which led to those convictions I propose to deal with the first submission made and that was that the convictions were bad in law even if there were evidence sufficient to establish that the appellants were the three men who invaded Mrs Hollis' house on that morning. 5. The starting point in the appellants' submissions on this ground is founded on section 31(1) of the Controlled Substances Act 1984 which reads:-
    "(1) a person shall not -
     (a) knowingly have in his possession a drug of dependence
    or a prohibited substance.
     (b) ...
     (c) ...
     (2) a person who contravenes this section shall be guilty
    of an offence and liable to a penalty as follows:-
     (a) in the case of an offence arising out of the
    possession smoking or consumption of a cannabis or cannabis
    resin ... a penalty not exceeding five hundred dollars." 6. Cannabis in its various forms is a prohibited substance and in the vernacular of the day "dope" is one of the common names for cannabis in one form or another. Thus whoever the men may have been who broke into Mrs Hollis' house they were intent on stealing cannabis a prohibited substance. 7. As I understood the argument it was that because the statute in the section set out above created an offence of having in one's possession the prohibited substance cannabis then even if cannabis had been in Mrs Hollis' house the taking of it would not have been larceny because it was a prohibited substance. That is to say Mrs Hollis could not in law be said to have owned or possessed a prohibited substance. 8. Thus it was, in effect, argued that a prohibited substance fell into the same category of abandoned property or a dead body see Doodeward v Spence 6 CLR 406. 9. In my opinion this is not a correct statement of the legal position. A similar submission was made in the case of R v Waterhouse (1911) 11 SR (NSW) 217. In that case the charge was stealing opium. The relevant statutory provision at that time in that State read:- "No person shall unless the holder of a certificate to deal in poisons, issued under the provision of the Poison Act 1902, or any Act amending the same, sell, or have in his possession opium." The court dealt with that provision at p219 in these words:
    "The real meaning of that section is no more than this:,
    Any person found with opium in his possession, unless he be
    the holder of a certificate, shall be liable to the penalty
    provided in the latter part of the section. It in no way
    destroyed property in opium." 10. The judgment then went on to discuss the situation which arose if opium was found in a persons possession. No certificate was forthcoming in these words:
    "If no certificate is produced, the constable may then
    take the opium. Even then there would be no transfer of
    property, until the person in whose possession the opium was
    found had been taken before a magistrate and the opium
    declared to be forfeited. The Act therefore leaves opium
    exactly as it was at common law." 11. Applying the principles to the law in this State under the ControlledSubstances Act reference must be made to section 56 and section 46. 12. Section 56 provides for a permit to be issued to a person named therein "to manufacture, produce, sell, supply or have in his possession a poison prohibited substance etc. ...", while section 46 provides for forfeiture of any substance after conviction. 13. Thus the law is now, although expressed in different words exactly as it was when Waterhouse (supra) was decided. Waterhouse applied to the High Court for leave to appeal. Leave was refused see Waterhouse v The King (1911) 13 CLR
228. 14. I should refer to the passage from the judgment of White J in Lenard v The Queen (1992) 57 SASR 164 at 172 when his Honour said:-
    "It would be incongruous to my mind if the prosecution
    had included the cannabis in the particulars of the goods
    taken as described in the information. Cannabis is a
    prohibited substance. It is unlawful for any person,
    including Marlene Williams, to possess it. A thief could
    hardly be charged with unlawfully taking out of her
    possession something which she unlawfully possessed. It is
    somewhat like a thief being charged with taking stolen goods
    out of the possession of a receiver of stolen goods." 15. In my opinion for the reasons stated above his Honour fell into error in the passage cited above. Although it was contained in a judgment of the Court of Criminal Appeal it was clearly obiter to the decision and not binding to this court. 16. In my opinion this ground of appeal fails. A further variation was introduced in argument and this was that as Mrs Hollis had no cannabis in her house it was impossible to complete the crime. This submission overlooked the substance of the charge laid in the information. Both counts alleged an "intention to commit a felony". Accepting Mrs Hollis' evidence, which was not challenged on this point, there is no room for doubt that the three men who broke into her house had such an intent. 17. The above reasons dispose of the appeal of the appellant Suleyman who raised no other grounds of appeal. In so far as the appellant Stylianou is concerned he raised a similar ground and the forgoing will dispose of that ground. I will in due course deal with his other ground of appeal. Similarly with the appellant Anic. 18. Stylianou appeals further on the ground that the verdicts of the jury are unsafe and unsatisfactory and should not be allowed to stand. 19. The evidence against Stylianou was in my opinion strong. He was stopped by the police driving a car which more or less fitted the description given by a neighbour of Mrs Hollis, a Mrs Baird, who had seen the three men enter Mrs Hollis' house and leave it and depart in a car. In the car was found a tyre lever which had on paint traces which matched in chemical composition and the colour and sequence of larger samples of paint taken from the Hollis house. A paper bag with rope handles was found in the car. It had no plastic cover as described by Mrs Hollis. Fingerprints were found on the gate and the Hollis house which matched the fingerprints of this appellant. He gave an explanation to the police for his activities which the jury clearly did not accept. I have considered the whole of the evidence as well as that set out in brief above. I would dismiss his appeal. 20. Anic's convictions raise other difficulties. He was identified by no one. He was found by the police on that day in company with Suleyman. He gave a false name and address and an explanation for his presence in the town which was to say the least, unconvincing. The evidence most strongly relied on by the prosecution was that in his possession was a portable telephone which matched the description of a similar instrument which according to what Stylianou told the police was missing from the car. This the prosecution argued showed a link between the three men. Anic was found in Suleyman's company and if the evidence of Stylianou could be used against him he was linked to him. I add at this point that there was clearly evidence sufficient to link Suleyman to the offences and his convictions were not challenged on that ground. 21. His Honour in summing up warned the jury that what each of the accused had said in the absence of the others was admissible only against the speaker and could not be used against the others either singly or together. 22. Although not raised specifically by the grounds of appeal the impugned passage in the summing up arose from the finding of the telephone in Anic's possession. The matter was argued on appeal and is clearly before the court for consideration. The impugned passage read:-
    "Ladies and gentlemen, was there then any connection
    between Stylianou and Anic on the day in question? You
    answer that question as you will, of course, but do remember
    this. If you are prepared to accept the correctness of the
    record of interview between the accused Stylianou and
    Detective Flynn, on the one hand, and the correctness of the
    record of interview between the accused Anic and police
    officer Charles, on the other hand, and it is for you of
    course to say whether or not you are prepared to do that,
    you have this situation, don't you; namely, that according
    to Stylianou the telephone in question was supposed to be
    with his clothes on the back seat of the car and with him at
    Renmark when he was apprehended by the police, but it was
    not there at that time. Yet the very same telephone is
    found some hours later in possession of Anic, a total
    stranger, some kilometres away on the causeway at Paringa.
    What does you commonsense and good judgment tell you? You
    rely on each of them and make up your own mind about whether
    or not in you view you are satisfied beyond reasonable doubt
    that there was in fact an association or connection between
    them at that time." 23. As I have said above there had been a clear direction that what one accused had said was not to be used against another. 24. What Stylianou had said was that missing from the car he was driving was a portable telephone which had a number which he gave. The telephone found in Anic's possession was as described by Stylianou. There was one other matter. Stylianou told the police that not only was the number 018350115 but that it was registered in the name of Nick Tinnor. Anic told the police the same number but claimed the telephone as his own but registered in the name of Nick Tinto. 25. Although at first sight it may appear that the process of reasoning involved in linking Anic with Stylianou offends against the exclusion of what was said in the absence of Anic as evidence against him I do not consider it to be so. It is not that Stylianou's statement to the police is used to incriminate Anic but his statement of fact that a telephone with a certain number had been in the car and had disappeared and the further fact that such a telephone is found in Anic's possession which provides the link not only between Anic and the car but also indirectly to Stylianou. The question arose as to how else both could know the number of the telephone? That was, in effect, the question posed by the summing up. Considering all the evidence I would dismiss Anic's appeals. 26. In my opinion the appeals of each appellant should be dismissed.

JUDGE3 BOLLEN J I speak only about the submission by the appellants that a person cannot be convicted for stealing drugs from another person which drugs that other person unlawfully has in his possession. That assumes, of course, that there were "prohibited" drugs in the home of Annette Hollis on 29th April 1991. There can be no suggestion that any drugs there were not prohibited. The intruders demanded to be told where "dope" or "drugs" was. They were intent on seizing drugs which were prohibited. 2. Section 31 of the Controlled Substances Act, 1984 provides, in part, that a person shall not knowingly have in his possession a drug of dependence or a prohibited substance. The various drugs which are prohibited are set out in the relevant copy of the Government Gazette. The submission on the point which I am discussing was put by Mr Isaachsen, for Suleyman, thus: (King CJ had said that it was "unlikely that they were looking for lawful drugs") -
    "That would be my submission, particularly in view of
    the fact that, according to the evidence, they had some
    illegal drugs in the boot of their car. I think it is a
    reasonable assumption that they were looking for unlawful
    drugs. If they were unlawful, if there had been any there,
    they could not have been owned by Mrs Hollis and, therefore,
    there could not have been any larceny or theft of the drugs,
    if there were any there, because they did not in any event
    belong to her. If they were there, they were unlawful and
    did not belong to her or anybody else. They were nobody's
property." 3. Mr Nyamirandu, for the other appellants, made the same submission in his own words. 4. The submissions springs from some remarks made obiter by White J in Lenard v R (1992) 57 SASR 164 at 172. The facts of that case are accurately summarised in the headnote:-
    "The Crown alleged that the accused entered a dwelling
    and took away a television, a video recorder, a leather
    jacket, a camera, and a suitcase. The accused admitted
    taking only the television and a quantity of marijuana
    (which was not charged), but alleged that the owner of the
    goods owed him money to the value of these items and had
    agreed that if she failed to pay by a due date he could
    enter her premises and take her television as collateral.
    While he alleged that he took the goods as 'collateral' he
    made little effort to make the owner redeem the goods and
    sold the television the next day. He was convicted of house
    breaking and larceny." 5. The Court of Appeal dealt with the grounds of appeal advanced in that case for the appellant following his conviction. It will be seen that it was a "claim of right" case. That was the issue that needed decision. White J said:-
    "It would have been incongruous to my mind if the
    prosecution had included the cannabis in the particulars of
    the goods taken as described in the information. Cannabis
    is a prohibited substance. It is unlawful for any person,
    including Marlene Williams, to possess it. A thief could
    hardly be charged with unlawfully taking out of her
    possession something which she unlawfully possessed. It is
    somewhat like a thief being charged with taking stolen goods
    out of the possession of a receiver of stolen goods." 6. In my respectful opinion, the incongruity does not exist. Despite the fact that she had no right in law to have these supposed drugs, Mrs Hollis did have possession of them. The drugs were tangible personal property having some value. The Controlled Substances Act does not make such drugs incapable of being the subject of property rights. That Act makes it an offence for anyone to have prohibited drugs or drugs of dependence in their possession. But that does not, in my opinion, mean that the drugs cannot in law be subject to some proprietary rights by the holder of them. I think that so much was decided by the Full Court of New South Wales and by the High Court in R v Waterhouse
(1911) XI SR (NSW) 217 and (1911) 13 CLR 228 at 230. In the Full Court of New South Wales Pring J delivered the judgment of the court in which the other two members of the court agreed. I set out the whole of the reasons of Pring J:-
    "The question that we have to determine in this case is
    whether opium can be the subject of property, so as to be
    the subject of larceny. Under the common law it undoubtedly
    is the subject of property, and the real question is, has
    the Police Offences Act 1908 destroyed for all purposes
    property in opium? I do not think that it has.
     Sect 19(d) says: 'No person shall, unless the holder of a
    certificate to deal in poisons, issued under the provisions
of the Poisons Act 1902, or any Act amending the same, sell,
    or have in his possession, opium.' The real meaning of that
    section is no more than this: Any person found with opium in
    his possession, unless he be the holder of a certificate,
    shall be liable to the penalty provided in the latter part
    of the section. It in no way destroyed property in opium.
    Then under s20, if opium is found in the possession of any
    person, 'the constable may demand the production of the said
    certificate....from the person in whose possession the opium
    is found, and if such certificate is not produced, may
    forthwith seize the opium, and arrest any person present who
    he has reasonable grounds to suspect is contravening the
    provisions of the last preceding section, and take him
    before a....magistrate and charge him with such offence.'
    And under s20(2): 'The opium so seized shall be forfeited
    and disposed as of the adjudicating magistrate or justices
    may direct.' If, therefore, opium is actually in possession
    of a person - which by s19 is prohibited - a constable has
    no right to immediately take it away from that person. He
    must first of all demand the production of the certificate
    mentioned in s19. If no certificate is produced, the
    constable may then take the opium. Even then there would be
    no transfer of property, until the person in whose
    possession the opium was found had been taken before a
    magistrate and the opium declared to be forfeited. The Act
therefore leaves opium exactly as it was at common law." 7. Application for leave to appeal to the High Court was made. The High Court refused it. Griffiths CJ spoke for the court thus:- "All that it is necessary to say is that the decision of the Full Court was clearly right. Leave to appeal be refused." 8. The case is not quite directly in point. But it is almost so. In my opinion, it is very helpful. There opium was held without a permit. Therefore, it was, or at least we may call it, "prohibited" opium. Here the drugs held were prohibited. The decision in R v Waterhouse recognises that there was some right of property invested in the opium despite the fact that it was prohibited. So, I think, by parity of reasoning we can, and should, here say that Mrs Hollis had some proprietary rights in the drugs of which she had possession. For my part, too, I think that possession was sufficient to found the charges, (see again by parity of reasoning Russell v Wilson (1923) 33 CLR 538). 9. I do not think that the law sees no offence in the taking of drugs, illegally held by one person, by another who intends permanently to deprive the one of those drugs. I do not think that the cry "He has no right to have had them" amounts to an exculpatory answer for the culprit. R v Waterhouse seems to me to justify what I have written. 10. In "The Australian Law of Theft (1977)" by Weinberg and Williams the authors say at p18:-
    "A person may be in possession of property even though,
    he has himself stolen it. If a thief steals property, and
    it is taken from him by a second thief, the second thief is
    guilty of larceny from the first thief. The second thief is
    also guilty of larceny from the owner, since the offence of
larceny now protects ownership as well as possession." 11. In "Criminal Law - South Australia" in his commentary to s131 (Simple Larceny) Judge Lunn says (page 4419 paragraph 5630.6): "Larceny is an offence against possession...." He cites Ilich VR (1987) 162 CLR 110 at 123. That case dealt with matters not relevant here. But Wilson and Dawson JJ did say this:- "Because larceny at common law requires a trespass - it is sometimes described as an offence against possession - a person lawfully in possession of something cannot be guilty of larceny of it." 12. I emphasise the remark that larceny is an "offence against possession". Mrs Hollis was in possession of the drugs. It matters not that she had no absolute ownership nor indeed any title to the drugs. Judge Lunn says in the same note as mentioned above: "Control of property not amounting to possession may be sufficient to make the controller an owner for the purpose of the law of larceny." I would prefer to say that such control may afford sufficient possession for the purpose of the law of larceny. 13. In the nineteenth edition (1966) of "Kennys Outlines of Criminal Law" the author Mr J.W.C. Turner wrote (p267, paragraph 227) -
    "Larceny was always conceived as an offence against
    possession, and naturally so, since English law has never
    recognised in a subject of the realm any absolute right of
    ownership of chattels, our "owner" being merely the person
    who has the best right to possess the thing. It follows
    therefore that a man can be guilty of larceny by stealing a
    thing from another who had himself stolen that thing from
    someone else, for a thief holds possession (albeit mala
fide) of what he has stolen." 14. In the Canadian case of R v Beboning (1908) 13 CCC 405 the Court of Appeal for Ontario considered a conviction for theft where a caretaker of land removed hay cut from that land with the intention of depriving the person for whom he was caretaker 6 of that hay. The person for whom he was caretaker had not good title to the hay. The point directly at issue was not the question of "stealing from a thief". However, two of the Judges (a court of five) made remarks useful here. Osler JA said (p409):-
    "As to these it appears, and is so found by the
    magistrate, that the accused was in charge of the place in
    which the hay was grown, as caretaker for Essibon, who was
    in possession by him. As against him, the hay was her
    property or that of anyone claiming under her, and the
    offence of theft might be committed by him in respect of it.
    'For the purposes of larceny, that man is the owner of goods
    who, as against the taker, is entitled to the possession of
    the goods taken. The taker cannot set up jus tertii against
    such an owner, unless the taking was effect with or in the
    belief that he had the authority of the third person:' Ency.
    of English Law, 2nd ed., vol 8, p51. 'It is quite
    immaterial for purposes of theft whether the possessor of
    goods seized larcenously has or has not any real right to
    them. One thief can steal stolen goods from another:' ibid;
    Roscoe, Criminal Evidence, 13th ed, 1908." 15. Meredith JA said at pp412-413:-
    "And it has long been said that one may be convicted
    of larceny in stealing goods from one who had obtained them
    by theft. As put by Lord Hale, if A steals the horse of B,
    and, after, C steals the same horse from A, C is a felon
    both as to A and B: 1 Hale, P.C. 507; see also 2 East PC
    654...." 16. These remarks were applied by a magistrate in Ontario in 1959 to convict a man who stole guns from a man who had stolen them (R v Jessop (Can) 1959 Crim LQ 487.) 17. For these reasons I think that the appeals based on the suggestion that a person cannot be convicted for stealing prohibited drugs from another person must fail. As to all else I agree with the Chief Justice and Mohr J and have nothing to add. 18. I would dismiss each appeal.