Former bankers Melanie Tapper and Winston McKenzie have lost their appeal against their convictions for conspiracy to defraud Kingston businessman Bentley Rose and his company, Benros Ltd, of millions of dollars.

They will not have to serve time in prison because they were successful in having their 18-month prison terms set aside and suspended sentences substituted. Senior Resident Magistrate Jennifer Straw (now a Supreme Court judge) had convicted Tapper and McKenzie in April 2003.

Tapper, a former manager at Trafalgar Commercial Bank, was convicted under the Larceny Act of one count of fraudulently causing $2 million to be paid out, while McKenzie, who was formerly employed to Workers' Bank (now RBTT), was convicted on several charges. They gave verbal notice of appeal and were on bail pending the outcome of the appeal.

Decision handed down

The notes of evidence in the case were not completed and sent to the Court of Appeal Registry until four years later.

The Court of Appeal, comprising justices Algernon Smith, Karl Harrison and Mahadev Dukharan, heard the appeal in April last year and handed down its decision last Friday.

The court held that there was a breach of the appellants' constitutional rights because the requirement for a hearing within a reasonable time was not met. The court said the post-conviction delay - more than five years - was inordinate. The purpose of the reasonable time guaranteed under the Constitution in respect of appellate proceedings was to prevent a convicted person from remaining too long in a state of uncertainty about his fate, the judges held.

In order to compensate the appellants for the delay, the court reduced the sentences from 18 months to 12 months. The sentences were suspended because the court held that a mitigating factor in the case was the $1.7 million which was paid to the complainant towards restitution.

The court said: "There was credible evidence from which the learned magistrate could reasonably conclude that Mrs Tapper caused the sum of $2 million to be taken out of Mr Rose's account at Trafalgar Commercial Bank and sent to the Canadian Imperial Bank of Commerce (CIBC), representing that Rose had given instruction for the payment to be made."

It was concluded that the RM was correct when she found that McKenzie obtained $1 million by pretending that he was entitled to the proceeds of a cheque dated February 10, 1995, drawn on the account of Benros Ltd at the CIBC. The court found that the RM was correct when she found that McKenzie conspired to defraud Benros Ltd of $357,000 and $198,950, cheques for which sums were drawn on the account of Benros Ltd at the Workers Bank, Tower Street, branch in Kingston.

McKenzie was convicted of 10 counts of fraud, but the Court of Appeal quashed seven of the convictions.

Attorney-at-law Gayle Nelson and Crown Counsel Karen Seymour-Johnson represented the Crown.

barbara.gayle@gleanerjm.com