If opium is found
in the possession of any person, the constable may demand the production of the said certificate 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 ground to suspect is contravening the provisions of the last preceding section and take him before a stipendiary or police magistrate, or any two justices of the peace, and there charge him with such offence.
(2) The opium so seized shall be forfeited and disposed of as the adjudi- cating magistrate or justices may direct."
Held, that, notwithstanding those sections, a person who is not the holder of such a certificate may have a right of property in opium, so that if he has opium in his possession it may be the subject of larceny.
Special leave to appeal from the decision of the Supreme Court of New South Wales: Rex v. Waterhouse, 11 S.R. (N.S.W.), 217, refused.
APPLICATION for special leave to appeal.
Oswald Victor Waterhouse was charged on indictment at a Court of Quarter Sessions in New South Wales with assaulting one Chong Lee and robbing him of one bag and nine tins of opium. The evidence showed that Chong Lee had bought the opium from the prisoner and another man, that the money was paid, that the opium was put into a bag and handed to Chong Lee, and that the bag and opium were then forcibly taken from Chong Lee by the appellant and had not been seen since. None of the persons concerned was the holder of a certificate to deal in poisons.
Before the jury returned into Court with their verdict counsel for the prisoner asked the Judge to direct the jury that opium could not be the subject of larceny. The learned Judge refused to SO direct and the jury returned a verdict of guilty.
The learned Judge was asked to take a note of the following point:-"-That his Honor should not have left the question to the jury whether opium had been stolen or not, but should have withdrawn such question from their consideration, and directed them that, under the circumstances of the case, opium could not be the subject of robbery." The Full Court having affirmed the conviction (Rex v. Waterhouse 1 ), application was now made to the High Court on behalf of Waterhouse for special leave to appeal.
111 S.R. (N.S.W.), 217.