Karchev v R

• Jurisdiction: Bahamas
• Judge: Isaacs, JA,The Honourable Mr. Justice Isaacs, JA,The Honourable Ms. Justice Crane-Scott, JA,The Honourable Mr. Justice Jones, JA
• Judgment Date: 27 July 2017
• Neutral Citation: BS 2017 CA 75
• Docket Number: SCCrApp. No. 111 of 2016
• Court: Court of Appeal (Bahamas)
• Date: 27 July 2017

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Ms. Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

SCCrApp. No. 111 of 2016

Between

Kostadin Karchev

Appellant

and

Regina

Respondent

Appearances:

Mr. Stanley Rolle, Counsel for the Appellant

Mr. Ambrose Armbrister, Counsel for the Respondent

Chevaneese Sasha Gaye Hall v The Attorney General SCCrApp & CAIS No. 179 of 2014 followed

Crane v DPP [1921] 2 A.C. 299 considered

Edwards v Bairstow [1956] AC 14 considered

Juan Velez, et al v The Commissioner of Police Nos. 4, 5, 7 and 8 of 1989 considered

Mohamed Iqbal Callachand and another v The State of Mauritius [2008] UKPC 49 applied

Outten v Ferguson [1990] LRC (Crim) 252 considered

R v Burke [2004] EWCA Crim 2859 considered

Rex v Gee . Rex v Bibby. Rex v Dunscombe [1936] 2 All ER 89 mentioned

R v Gordon Smith [2015] EWCA Crim 1663 mentioned

R v Neely [1997] BHS J. No. 46 mentioned

R v Olivio [1942] 2 All ER 494 mentioned

R v Rose [1982] AC 822 , [1982] 2 All ER 731 HL

Legislation:

Court of Appeal Act ss. 12, 13

Criminal appeal - Money Laundering — Writ of Venire De Novo — Jurisdiction — Section 12 of the Court of Appeal Act — Section 13 of the Court of Appeal Act — Issuance of a voluntary bill of indictment by the Attorney-General — Indictable offence — Summary offence — Hybrid offence — Whether the justice of the case required the issuance of a writ of venire de novo or a retrial?

Criminal Practice and Procedure - Writ — Writ of venire de novo — Retrial — Jurisdiction — Money laundering — Indictable offence — Hybrid offence — Whether attorney-general had power to prefer a voluntary bill of indictment against appellant — Whether justice of case required issuance of writ of venire de novo or retrial — Appeal allowed

The appellant, having been charged with three counts of Money Laundering contrary to section 40 of the Proceeds of Crime Act, appeared before the magistrate's court, pleaded not guilty and elected a summary trial. However, when he subsequently appeared before the magistrate's court he was presented with a Voluntary Bill of Indictment. He, therefore, appeared before the Supreme Court to be arraigned and the matter was set down for trial. Following a trial the appellant was convicted on all counts and sentenced to twenty-four months' imprisonment on each count to run concurrently. He appealed his convictions.

Held: Appeal allowed; convictions quashed.

The respondent conceded the appeal on the appellant's first ground of appeal, namely, that the Attorney-General (AG) had no right/power to prefer a voluntary bill of indictment (VBI) 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 of 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 it, 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 another trial. As the appellant has already served the entirety of his sentence the Court determined that the public interest would not be best served by the order of a new trial.

REASONS FOR DECISION

Isaacs, JA

Judgment delivered by the Honourable Mr. Justice

1 . On 14 July 2017 we heard the submissions of Counsel on this appeal. We allowed the appeal, quashed the convictions and set aside the sentences and orders of Turner, J. We now provide our reasons for doing so.

2 . On 14 July 2015, while serving a sentence for unrelated matters, the appellant was charged with three counts of Money Laundering contrary to section 40(1)(a) and (b) punishable under section 45 (1)(a) of the Proceeds of Crime Act. He appeared before the magistrate's court and pleaded not guilty. He elected a summary trial. However, when the appellant again appeared before the magistrate, he was served with a Voluntary Bill of Indictment (VBI).

3 . On 2 September 2015, the appellant was arraigned before the Supreme Court on the indictment and pleaded, not guilty. The matter was set down for trial.

4 . The appellant applied to the Supreme Court for the VBI to be quashed on the ground that it was an abuse of the process of the court. However, Turner, J. refused his application for reasons given in writing on 30 October 2015.

5 . Consequently, the appellant was tried in the Supreme Court before Turner, J. and a jury for the offence of Money Laundering (3 counts) from 29 March 2016 through 11 April 2016. On the last day of the trial the jury convicted him by a majority of 7 to 2 on the first and second counts, but acquitted him on the third count unanimously. Further, whilst appearing before Turner, J. on 21 April 2016, the appellant was sentenced to imprisonment for a term of twenty-four months on each count to run concurrently from his date of arrest, that is, 14 February 2015. In addition, Turner, J. made the following orders:

All of the money being held in RBC Main branch account number 05625 7806227 is forfeited to the Crown;

The Suzuki Swift automobile, registration number 296786 is forfeited to the Crown; and

The iPhone 6, serial number 354447067199286 is to be returned to the Appellant after he completes his sentence.

6 . Turner, J. recommended that the Department of Immigration consider deporting the appellant and placing him on its stop list after his sentence expired.

7 . The appellant appealed against his conviction on the grounds that, inter alia a serious material irregularity occurred during the trial that significantly affected his right to a fair trial, a serious impropriety occurred in the process that raised a serious concern and the learned Judge erred in law and in principle when he dismissed the appellant's application for a stay of proceedings. Subsequently, he amended his grounds.

8 . When the matter came on for hearing Mr. Armbrister advised the Court that the Crown was conceding that the appeal must succeed on the appellant's amended first ground which was formulated as follows: “The Attorney General had no right/power to prefer a voluntary bill of indictment against the Appellant”. We thought that this concession was quite properly made in light of our decision in Chevaneese Sasha Gaye Hall v The Attorney General SCCrApp & CAIS No. 179 of 2014 and the procedural history of that case being indistinguishable from the one presently under appeal.

9 . In Chevanese Hall, Crane-Scott, JA speaking on behalf of the Court, differently constituted, stated at paragraphs 41 and 42:

• “41. In the result, we are satisfied that as the appellant was not a person who was “charged before a magistrate's court with an indictable offence”, the purported filing by the Attorney-General of the voluntary bill of indictment [No 80/ 3/2013] against the appellant pursuant to section 258 of the CPC was done without jurisdiction and was unlawful.

• 42. The procedure in section 258 of the CPC contemplates that as a precondition to the exercise of the Attorney-General's discretion under subsection 258(1) there must first be before a magistrate a person who is charged with an “indictable offence.” It is only when the precondition is met that a voluntary bill of indictment may lawfully be filed at the instance of the Attorney-General pursuant to subsection (1) to bring the proceedings to the Supreme Court.”

10 . Crane-Scott, JA continued at paragraphs 46 to 48:

• “46. In the circumstances, since the voluntary bill issued unlawfully, we are also satisfied that the purported committal of the appellant to the Supreme Court pursuant to section 258(5) could not validly occur.

• 47. Having regard also to section 36 of the CPC, we are also satisfied that the voluntary bill of indictment [No. 80/ 3/2013] which issued against the appellant was not lawfully brought under the cognizance of the Supreme Court. Accordingly, appellant's subsequent trial and conviction before the Supreme Court amounted to a nullity.

• 48. We would accordingly allow the appeal on this ground and quash the appellant's convictions on Counts 1 to 6 of the Indictment together with the associated sentences and order her immediate release from prison.”

11 . We were satisfied that this appeal must succeed on ground 1 of the appellant's grounds of appeal.

Writ of Venire De Novo

12 . Although we may have been spared the burden of listening to submissions on the merits of the appeal as a result of the Crown's concession, we did not avoid the task of making a determination submission-free altogether as Mr. Armbrister sought to convince the Court that the proper course to be taken in a case such as this is for the Court to set aside the convictions and annul them rather than quash them; and remit the matter back to the magistrates' courts for proceedings to resume at the point where the error occurred.

13 . Mr. Armbrister advanced the argument that given the decision in Chevaneese Hall, the Court should only consider the first ground of appeal raised in the appellant's...