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Mauritius Director of Public Prosecutions v AA Bholah [2011] 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

Case Summary

  • 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 [2009] 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.”



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