Mauritius Director of Public Prosecutions v AA Bholah  and the irresistible inference test
The following case and Court Decision is an excellent reminder that:-
- Money laundering may be charged and proved without proof of a particular predicate offence.
It also reinforces previous Comsure postings about the IRRESISTIBLE INFERENCE TEST that has been used in courts around the world, for example, Jersey
- In September 2004, the respondent was convicted of money laundering.
- The magistrate found that the respondent had transferred money, which he had reasonable grounds to suspect was the proceeds of crime, from his company bank account to bank accounts outside Mauritius.
- In the course of the trial the magistrate ruled that the prosecution
- Was not required to specify or to prove the particular crime of which it was alleged the money was the proceeds.
- The magistrate held that
- She was able to infer from the evidence that the monies were the proceeds of criminal activity.
- The Supreme Court held the predicate offence needed to be particularised in order that a charge complies with that article 10(2) of the Constitution.
- This requires that every person charged with a criminal offence “shall be informed as soon as reasonably practicable, in a language that he understands, and in detail, of the nature of the offence”.
- Accordingly, it quashed the conviction.
The Director of Public Prosecutions appealed to the Privy Council.
- The Privy Council held that
- Article 10(2) requires that a person is informed of the details relevant to the elements of the offence with which he is charged,
- In this case, the elements of the offence of money laundering.
- The statutory language was very clear in dispensing with the requirement to prove a predicate offence as an essential element of the offence.
- It, therefore, allowed the appeal and restored the decision of the magistrate.
Points to Note
- The Privy Council held that,
- Although it is not essential to particularise the predicate criminality underlying a money laundering charge,
- Where it is possible to do fairness demands that this information should be supplied.
- Reviewing the Warsaw Convention and the approach in Australia and New Zealand, the Privy Council held that this was by no means an unusual approach to the problems of proof that money laundering offences can present.
- The Privy Council noted that the approach adopted by the magistrate had been applied in England & Wales, where in the case of
- Anwoir  1 WLR 980
- In Anwoir, the Court of Appeal held that “there are two ways in which the Crown can prove the property derives from crime,
- (a) by showing that it derives from conduct of a specific kind or kinds and that conduct of that kind or those kinds is unlawful, or
- (b) by evidence of the circumstances in which the property is handled which are such as to give rise to the irresistible inference that it can only be derived from crime.”
- Attached judgement
Meet the team of industry experts behind ComsureFind out more
Keep up to date with the very latest news from ComsureFind out more
View our latest imagery from our news and workFind out more
Think we can help you and your business? Chat to us todayGet In Touch
As well as owning and publishing Comsure's copyrighted works, Comsure wishes to use the copyright-protected works of others. To do so, Comsure is applying for exemptions in the UK copyright law. There are certain very specific situations where Comsure is permitted to do so without seeking permission from the owner. These exemptions are in the copyright sections of the Copyright, Designs and Patents Act 1988 (as amended)[www.gov.UK/government/publications/copyright-acts-and-related-laws]. Many situations allow for Comsure to apply for exemptions. These include 1] Non-commercial research and private study, 2] Criticism, review and reporting of current events, 3] the copying of works in any medium as long as the use is to illustrate a point. 4] no posting is for commercial purposes [payment]. (for a full list of exemptions, please read here www.gov.uk/guidance/exceptions-to-copyright]. Concerning the exceptions, Comsure will acknowledge the work of the source author by providing a link to the source material. Comsure claims no ownership of non-Comsure content. The non-Comsure articles posted on the Comsure website are deemed important, relevant, and newsworthy to a Comsure audience (e.g. regulated financial services and professional firms [DNFSBs]). Comsure does not wish to take any credit for the publication, and the publication can be read in full in its original form if you click the articles link that always accompanies the news item. Also, Comsure does not seek any payment for highlighting these important articles. If you want any article removed, Comsure will automatically do so on a reasonable request if you email firstname.lastname@example.org.