Ex parte Emmerson (1898) XV WN (NSW) 101 was an application to set aside a summary conviction for “having stolen certain oysters the property of the trustees of the National Park“.
The issue before the Court was whether or not oysters were wild animals. O’Connor J said (at 102) that this was an “important issue” and went on to find:
“It is clear that at common law oysters cannot before capture (if one may be allowed to use such an expression in reference to an oyster) be the subject of property. In that respect they are in the same position as game or fish, which the law regards as ferae naturae [wild animals]. That is to say, they cannot be the subject of larceny at common law.”
The convictions were set aside. I wonder what his Honour would think about my previous post which posed the question of how one tells if oysters are alive for the purpose of the Personal Properties Security Act?