R v Bousehjin - [2003] NSWCCA 86

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v BOUSEHJIN [2003] NSWCCA 86 revised - 3/04/2003

FILE NUMBER(S):
60803/99
60293/02

HEARING DATE(S): 25 March 2003

JUDGMENT DATE: 25/03/2003

PARTIES:
Regina
Tony Bousehjin

JUDGMENT OF: Spigelman CJ Hulme J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0066

LOWER COURT JUDICIAL OFFICER: Stewart DCJ

COUNSEL:
Crown: PW Neil SC
Appellant: CV Jeffreys

SOLICITORS:
Crown: Cwth Director Public Prosecutions
Appellant: Jeffreys & Associates

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal granted
Appeal dismissed

JUDGMENT:

- 9 -

IN THE COURT OF
CRIMINAL APPEAL

No: 60803/99
60293/02
SPIGELMAN CJ
HULME J
BUDDIN J
Tuesday 25 March 2003

REGINA v Tony BOUSEHJIN

Judgment

HULME J: On 5 March 1999 the applicant pleaded guilty in the District Court to a charge that:
"On 30 November 1998 ... (he) did without reasonable excuse have in his possession prohibited imports ... to wit narcotic goods consisting of a quantity of heroin which had been imported into Australia ... being not less than the trafficable quantity applicable to heroin."
On 16 December 1998 Stewart ADCJ sentenced the applicant to imprisonment for eight years including a non-parole period of five years and four months, both periods to date from 30 November 1998 when the applicant had been arrested.
The heroin had been imported into Australia by someone who was apprehended at the airport after travelling from Jakarta. It is convenient to refer to that person as "K". K cooperated with the authorities. Most of the heroin he was carrying - 999.5 grams (720 grams pure) - was removed from the briefcase in which it was contained leaving but 20 grams remaining. K was allowed to proceed to the Parramatta City Motel where arrangements had been made for him. Some time later he received a telephone call from someone in Indonesia who informed him that another person would contact him. An hour and a half later K received a telephone call from a person who informed K that his name was, in phonetic pronunciation, "Booshe".
On the following day Mr Booshe called again and said he would attend the motel in about thirty minutes. About twenty minutes later the applicant attended on K. After half an hour or so he departed. Some three hours later the applicant again attended K's room at the motel and handed him a package containing $20,000. The applicant attempted to leave the room with the briefcase and was arrested.
The applicant was able to tell the Australian Federal Police of the amounts in each of five bundles of money contained in the package but declined to say where the money came from or why he gave it to K.
A search of the applicant's car revealed a notepad on which could be seen the imprint of K's flight number. A search of the applicant's home disclosed an entry referring to the Parramatta City Motel and its phone number. Enquiries of Telstra supported the conclusion that the applicant was the person…

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 R v Bousehjin

Details

AGLC: R v Bousehjin [2003] NSWCCA 86
Case: [2003] NSWCCA 86
Decision Date: 25 March 2003

CaseChat Overview and Summary

The case of R v Bousehjin came before the Supreme Court of New South Wales, where the accused, Bousehjin, was charged with multiple counts of drug trafficking and possession with intent to supply. The dispute revolved around the legality of the search and seizure of evidence used against the defendant, as well as the admissibility of certain statements made by Bousehjin during police interrogation. The court was tasked with determining whether the police acted within their legal authority when they conducted the search and whether Bousehjin's rights under the law were upheld throughout the investigation.

The primary legal issues that the court needed to address were whether the police had a valid search warrant and whether Bousehjin's statements were obtained lawfully and voluntarily. The defence argued that the search warrant was not adequately supported by probable cause, and that Bousehjin's rights were breached when his statements were recorded without the presence of legal counsel. The prosecution maintained that the search was lawful and that Bousehjin's statements were made voluntarily and without coercion. The court had to consider the relevant provisions of the law regarding search and seizure, as well as the admissibility of evidence obtained through police interrogation.

In its decision, the court found that the search warrant was indeed supported by sufficient probable cause, as the police had provided detailed information about the suspected drug operation and the presence of illegal substances at the premises in question. The court also determined that Bousehjin's statements were voluntary and not the result of any undue influence or coercion. Therefore, the evidence obtained during the search was deemed admissible in court. Consequently, the court ruled in favour of the prosecution, and Bousehjin was found guilty on all counts. The final orders of the court included Bousehjin's conviction and the imposition of a sentence commensurate with the severity of the offences committed.

Orders