The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

THE Court of Appeal quashed the convictions and has not ordered a retrial for a Bulgarian man a Supreme Court jury had convicted in a $51,000 money laundering case.

Kostadin Karchav, 40, returned to New Providence for his scheduled substantive hearing in June after his lawyer Stanley Rolle, in November, indicated in Karchav's absence that his client still wished to pursue his appeal against the conviction which was filed before his October 30, 2016 release from the Department of Correctional Services.

At two hearings in June and July, Karchav appeared in the Claughton House courtroom where the Crown conceded to the appellant's argument raised that the attorney general was wrong in law to move the case to the Supreme Court through a voluntary bill of indictment.

Karchav and his attorney relied on the Judicial Committee of the Privy Council's judgment, which upheld the Court of Appeal's decision to quash the human trafficking convictions of Chevanese Hall.

However, there was an issue of contention between the appellant and the Crown as to whether there should be a new trial.

Crown respondent Ambrose Armbrister argued for the court to issue a writ of venire de novo which allows the appellate court to annul the entire trial process, rather than quash the conviction.

Mr Rolle argued that this was not raised, nor asked for by the Crown in the Hall case, nor at the Privy Council level and that his client was seeking the court not to order a new trial.

In a 14-page judgment published on Tuesday, Justices Jon Isaacs, Stella Crane-Scott and Roy Jones did not believe it was in the interest of justice for Karchav, having completed a sentence, to undergo another trial process.

"Mr Armbrister presented a formidable argument for the proposition that we have the jurisdiction to issue writs of venire de novo in limited circumstances, but he faced a more daunting task of convincing us that this would be a proper case for the court to exercise that jurisdiction," the presiding judges noted.

"His argument for its implementation in the present case relied solely, in our view, on the outrage any right-thinking person must feel if the appellant was allowed to retain a portion of his obviously ill-gotten gains. Those persons must be reminded, however, that once the convictions are overturned, the appellant returns to the status quo ante, that is to say, he is again covered by the mantle of the presumption of innocence."

The court further noted that the respondent "conceded the appeal on the appellant's first ground of appeal, namely, that the attorney general had no right/power to prefer a voluntary bill of indictment against the appellant, based on the authority of Chevaneese Sasha Gaye Hall (CSGH).

"As was the case in CSGH, the appellant was not a person charged before a Magistrate's Court with an indictable offence and therefore the filing of the VBI was done without jurisdiction and unlawful. As such, since the VBI was issued unlawfully, the purported committal of the appellant to the Supreme Court could not validly occur. Therefore the appellant's trial and conviction before the Supreme Court amount to a nullity.

"Having conceded the appeal, the respondent argued that the proper course for the court to take would be to issue a writ venire de novo to set aside the convictions and annul them, rather than quash them and remit the matter to the Magistrate's Court for proceedings to resume at the point where the error occurred.

"Section 13 of the Court of Appeal Act gives the court the power to either quash a conviction and order a retrial or, if the justice of the case so merits, not order a retrial. In the premises, there was no need to have regard to a writ of venire de novo; the only issue before the court was whether the justice of the case required the appellant to undergo a retrial.

"As the appellant has already served the entirety of his sentence, the court determined that the public interests would not be served by the order of a new trial," the ruling concluded.

Karchav stood trial before Justice Bernard Turner in April 2016 on three counts of money laundering concerning nearly $51,000 found in his Royal Bank of Canada account and the purchase of a Suzuki Swift and an iPhone 6 from the alleged proceeds of crime.

The Crown alleged that Karchav gave an oral confession to the crimes prior to a record of interview that was done in the presence of his then lawyer Roger Gomez II.

Sergeant Donovan Martin of the Central Detective Unit testified of a conversation with Karchav under caution in the presence of Inspector Deborah Thompson on February 15, 2015.

Karchav allegedly told police he had been in the country since 2014 and was a part of a credit card group in Bulgaria. It was alleged that he told officers he used his time in The Bahamas to obtain information about the models of the ATM machines he observed. His accomplices replied in kind with information on credit and debit cards, which he uploaded to gift cards he had brought with him when he travelled to The Bahamas.

He allegedly told Sgt Martin that all of the funds seized by police during his arrest were proceeds from the machines, some of which were deposited to his RBC account. He also stated that he purchased a 2005 Suzuki Swift with some of the funds obtained from the bank.

A record of interview was held following this conversation later on that afternoon.

Karchav, who elected to remain silent to allegations, called Mr Gomez II as a witness in his defence where the latter confirmed to defence attorney, Stanley Rolle that he sat in on a record of interview, but it was not on Sunday, February 15, 2015.

Mr Armbrister asked the lawyer if Karchav had made any complaints when he went to see him. Mr Gomez said his then client's complaint only concerned the cell and food.

The jury, following Justice Turner's summation of the brief case, deliberated for two hours before returning 7-2 guilty verdicts on money laundering with respect to the funds found in the RBC account and the purchase of the Suzuki Swift.

The jury returned a unanimous not guilty verdict on the count concerning the cell phone, of which Justice Turner said he was discharged.

On April 21, 2016, Karchav was sentenced to 24 months on the two counts to run concurrently from the date of his arrest, February 14, 2015.

The judge also ordered that the funds in bank account as well as the Suzuki Swift be forfeited to the Crown.

He ordered that the iPhone 6 be returned to Karchav at the completion of his sentence.