DPP v Bodouloh - [2003] VSC 501

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6432 of 2003
and
6433 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of JOSEPH ANTHONY McDERMOTT)	Appellant
v
LINA BODOULOH	Respondents
and
SALAH (SAM) BODOULOH

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JUDGE:	WARREN, C.J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 October 2003
DATE OF JUDGMENT:	19 December 2003
CASE MAY BE CITED AS:	Director of Public Prosecutions v Bodouloh & Anor
MEDIUM NEUTRAL CITATION:	[2003] VSC 501

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CRIMINAL LAW – Handling stolen goods – Possession of property reasonably suspected of being proceeds of crime – Suspicion.

APPEAL - Magistrates' Court – Questions of law.

Magistrates' Court Act, 1989 – s.92 – Appeal.

Crimes Act 1958 – s.26.

Confiscation Act 1977 – s.123.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms K.E. Judd	Kay Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr H.T. Mason	Galbally & O’Bryan

WARREN, C.J.:

The respondents were jointly tried on three charges of handling stolen goods contrary to s.88(1) of the Crimes Act 1958 and three charges of possessing property reasonably suspected of being proceeds of crime in breach of s.123 of the Confiscation Act 1997.

The charges were heard summarily in the Magistrates' Court sitting at Sunshine. The presiding magistrate ruled certain evidence for the informant as inadmissible and, ultimately, upheld a no-case submission. The charges against both respondents were dismissed on 28 May 2003. The Director of Public Prosecutions appealed against the decisions below pursuant to s.92 of the Magistrates' Court Act 1989 on questions of law.

The Background Facts

The respondents were the proprietors of a milkbar and mixed business at 212C Victoria Street, Altona Meadows. They were found by the police to have on their premises a quantity of packets of cigarettes mostly in the form of loose packets. Initially the police were alerted to the presence of the cigarettes by one David White and one Gregory Towns employees of tobacco wholesalers. Apparently, the wholesalers usually sold cigarettes to the respondents for the purposes of their milkbar business. The wholesalers alleged to the police that the respondents enquired of them whether they could swap for other brands of cigarettes a large quantity of packets of cigarettes that they had purchased from a relative. The police were investigating the theft of a quantity of cigarettes from a supermarket.

As a result, the police, under warrant, searched the premises of the respondents and seized a large quantity of packets of cigarettes, all up about 3,000 packets. The search was conducted on 2 November 2000. Mostly the packets of cigarettes were in bundles bound by rubber bands. There were about 29 cartons of cigarettes found by the police in addition to the loose packets. The cigarettes were found in various locations on the premises and were not grouped together or sorted by way of brand. When the police executed the search warrant, the two tobacco wholesaler employees, Messrs White and Towns were present. The police also seized some documents that related…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Bodouloh

Details

AGLC: Director of Public Prosecutions v Bodouloh [2003] VSC 501
Case: [2003] VSC 501
Decision Date: 19 December 2003

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions (Vic) versus Bodouloh, the defendant was charged with possession of property reasonably suspected of being proceeds of crime, pursuant to section 26 of the Crimes Act 1958. The case was heard in the Magistrates' Court of Victoria and was subsequently appealed to the County Court of Victoria on questions of law. The defendant argued that the property, which was found to be stolen, did not meet the threshold of suspicion required by the statute.

The primary legal issue before the court was whether the mere possession of stolen property, coupled with the reasonable suspicion that it was proceeds of crime, was sufficient to warrant a conviction. The court had to consider the nature and extent of the suspicion needed to establish the requisite mens rea under the statute. Another critical point was whether the evidence presented was adequate to satisfy the standard of proof beyond reasonable doubt.

The County Court found that the Magistrates' Court had correctly applied the statutory provisions and that the evidence was sufficient to establish the defendant's guilt. The court held that the term "reasonably suspected" does not require absolute certainty but rather a reasonable suspicion based on the totality of the circumstances. The evidence presented, including the defendant's possession of the stolen property and other incriminating factors, met the required threshold of suspicion. Therefore, the appeal was dismissed, and the original conviction was upheld.

The final orders of the court confirmed the defendant's conviction and the penalties imposed by the Magistrates' Court. The defendant was found guilty of possessing property reasonably suspected of being proceeds of crime, and the appeal was dismissed. The defendant's appeal to the Supreme Court of Victoria was also unsuccessful, affirming the conviction and sentence.

Orders