1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE Appearances: INDICTMENT NO: 0114/2014; 0010/2015; 001112015 THE QUEEN v ROLAND 1'01' IANACU BOGOHAN VUSMAS FLOIUN ROATA MARIANA OPRINoru Ms. Toyin Salako on behalf of the Crown Ms. Amelia Fosnhene of Stenning & Associates for the Defendant 22 Before: Jnstice Michael Mettyear (Actg.) 23 Heard: 27th April to the 1't May 2015 24 25 26 JUDGMENT 27 28 I. The Defendant is Mariana Oprinoiu who faces two Counts. 29 First Count: Conspiracy to Defraud contrary to the Common Law. 30 The particulars of this offence are that Mariana Oprinoiu between the 10th day of 31 December 2014 and the 17th day of December 2014 within the jurisdiction of the 32 Cayman Islands conspired, together with Roland Pop, Ianacu Bogodan Vlismas, 33 Florin Roata and with persons unknown, to defraud local retail banks by 34 dishonestly withdrawing cash from ATM machines with the use of cloned credit 35 cards. Judgment. Ind. No. 114114; 10/15; 11/15. R v. Mariana Oprinoiu. Coram: Mettyear J (Actg.) Dale: 19.05.2015 Page 1 of25 1 2 3 4 5 6 7 8 9 10 11 12 13 27 28 29 30 31 32
Second Count: Money Laundering, contrary to s.135(1)(c) of the Proceeds of Crime Law (2014 Revision). The particulars of this offence are that Mariana Oprinoiu on the 16th day of December 2014 within the jurisdiction of the Cayman Islands, together with Florin Roata, had in her possession criminal property namely approximately US$19,511.00 in cash. I was satisfied that this is not one of those case where the Crown should be forced to make an election as to whether they should proceed with either the conspiracy or the substantive count. Count two is properly on the indictment. Both counsel agreed. The defendant has elected trial by judge alone and I have reminded myself of the approach to be taken by a judge in such cases as described by Quin J. in the case of R v. George Dexter Evans Indictment No 18 of2011 paragraphs 67 to 71. "The Defendant elected to be tried by a Judge Alone, rather than a Judge and Jury, pursuant to s.129 of the Criminal Procedure Code of the Cayman Islands. Our Court of Appeal first dealt with the duties of a Judge in Judge Alone trials in its judgment in K. Richards v. R 2001 CILR 496 when Justice Rowe stated: "When a trial judge sitting alone has advised himself to the applicable principles of law, and given himself any necessary warning, he must indicate clearly in his judgment his reasons for acting as he did, in order to demonstrate that he has acted with the requisite degree of caution in mind and has therejilre heeded his own warning. No specific form of words is necessary for this demonstration, what is necessary is that the Judge's mind upon the matter should.be clearly revealed." In R. v. Dave Kennedy Whittaker Cr. App. R. No. 14 of 2006, the Court of Appeal gave some guidelines regarding the duties of a Judge in Judge Alone trials. In the Judgment of Mottley JA. he adopted the Judgment of the former Lord Chief Justice of Northern Ireland Lord Lowry in R v. Thompson [1977} NI 74 in which he stated at page 83: Judg;,~~~"i:7;;;TN~. 114/14; 10115; 11/15. R v. Mariana Oprinoiu. Coram: Mettyear J (Actg.) Date: 19.05.2015 Page 2 0/25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38
"While on the subject I might say a word on the duty of the judge when givingjudgment in a trial under the 1973 Act. He has nojury to charge and therefore will not err if he does not state every legal proposition and review every fact and argument on either side. His duty is not as in a jury trial to instruct laymen as to every relevant aspect of the law or to give a full and balanced picture of the facts for decision by others. His task is to reach conclusions and to give reasons to support his view and, preferably, to notice any difficult or unusual points of law in order that if there is an Appeal, it may be seen how his view of the law informed his approach to the facts." More recently our Court of Appeal in Randy Martin v. R Crim. App. R. 2 of 2010 delivered their reasons for dismissing the Appeal on the 7''' December 2010. Mottley J.A. again adopting R v. Thompson [1977} NI24 also adopted R v. Thain [1985} NI 457 where Lowry LCJ said at page 478: "Where the trial is conducted and the factual conclusions are reached by the same person, one need not expect every step in the reasoning to be spelled out expressly, nor is the reasoning carried out in sealed compartments with no inter-communication or overlapping, even if the need to arrange a judgment in a logical order may give that impression. It can safely be inferred that, when deliberating on a question of fact with many aspects, even more certainly than when tackling a series of connected legal points, a judge who is himseif the tribunal of fact will (a) recognize the issues and (b) view in its entirety a case where one issue is interwoven with another." Following Lowry LCJ in R v. Thompson and R v. Thain, Mottley J.A. said in Randy Martin v. R at paragraph 31: "From these cases the following guidance may be discerned. A judge sitting in a criminal case without a jury, in rendering his decision and giving his reasons for so concluding, is not required to review every fact and to detail each argument on which the prosecution and defence rely as if he were summing up to a jury. The judge must set out the conclusion reached and make clear the reasons for arriving at that conclusion. He is required to have regard to any difficult or unusual points of law and to show how those points of law have in anyway impacted the conclusion that he has reached."" I have reminded myself that the Crown have brought the case and that they must prove it. The standard of proof that they must achieve is to make me sure of guilt. Judgment. Ind. No. 114114,' 10115; 11115. R v. Mariana Oprinoiu. Coram: Mettyear 1._ (Aetg.) Date: 19.05.2015 Page 3 0/25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 19 20 21 22 23 24
I am aware that three other defendants have pleaded guilty to the conspiracy count. That establishes that the conspiracy existed, but the evidence of that was in any event overwhehning and not disputed. Their guilty pleas go no way to establishing that the defendant is also guilty. Indeed the main thrust of her defence is that she knew nothing at all about their illegal activities. If that is true or might be true she cannot be guilty. I am aware that the other three defendants have also pleaded guilty to Money Laundering offences. The considerations set out in relation to their pleas to conspiracy apply equally to these pleas. They do not help the Crown in any way with their task of proving the Defendant's guilt. [ need to give separate consideration to the two counts faced by the Defendant. It is not necessarily the case that they stand or fall together. The issue of character arose in an unusual way. Nothing had been said about it during the evidence. It was mentioned first in Miss Fosuhene's closing address. She has accepted that it should have been raised by her earlier. It was also canvassed in an unusual way, by Miss F osuhene saying that the Crown had checked and found nothing recorded against the defendant. The Crown have said that they accept this statement. There may be reasons why it was dealt with in that way, but it would not be appropriate for me to enquire into that. It seems to me that [ should simply proceed on the basis that the defendant is of good character and direct myself in the conventional way. [ therefore direct myself that her good character means that I should be prepared to give more weight to her word than would otherwise be the case and that her good character makes it less likely that she would have behaved in the way claimed by the Crown. Judgment. Ind. No. 114114; 10/15; 11/15. Rv. Mariana Oprinoiu. Coram: MettyearJ. (Actg.) Date: 19.05.2015 Page 4 0[25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
. The defendant and her witness do not speak English and have given evidence and answered questions to the police through interpreters. I have borne in mind the possibility that disadvantage can flow from that and I made allowances, in particular so far as police interviews are concerned.
The law concerning the offences alleged has not been in dispute and I can deal with it very briefly.
The defendant is guilty of the conspiracy alleged if she agreed with those named on the indictment, or anyone of them to dishonestly withdraw cash from A 1M machines in Grand Cayman with the use of cloned credit cards. That such a conspiracy existed is not in issue. The question is: Have the Crown proved that the defendant was part of it?
So far as the second count is concerned the law is contained in s.135(l)(c) of the Proceeds of Crime Law (2014 Revision) which reads: "135. (1) A person commits an offence ifhe: (a) acquires criminal property; (b) uses criminal property; or (c) has possession of criminal property."
In practice counsel agree, as do T, that the issues are firstly have the Crown proved that the defendant was in possession of the money recovered, it being agreed that she cannot have been in possession if she did not know it was there. Secondly, was the money, or part of it, criminal property? Thirdly was the defendant aware that the money, or part of it, was criminal property? Judgment.Ind. No. J 14114; 10115; 11115. R v. Mariana Oprinoiu. Coram: MetlyearJ. (Aetg.) Date: 19.05.2015 Page 5 0/25 1 THE FACTS 2
It is clear that in December 2014 there existed a conspiracy in the tenns set out in 3 Count I of the indictment, namely a conspiracy to defraud local retail banks by 4 dishonestly withdrawing cash from A1M machines with the use of cloned credit 5 cards. The evidence of such a conspiracy is overwhelming and three of the 6 defendants have already pleaded guilty to being a part of it. 7
The precise mechanics of how the conspiracy worked is not important for present 8 purposes and it is sufficient to say that fake debit or credit cards with the true 9 information from genuine cards imported on to them, were used in various ATM 10 machines in Grand Cayman. The fraudsters had other necessary information about 11 the genuine cards, e.g., PIN numbers so as to ensure that many of the transactions 12 were successfully completed. 13
The main issue in the present case is whether the Crown have made me sure that the 14 defendant was one of the conspirators. Virtually all the Crowns evidence is 15 undisputed and the case turns on what inferences can properly be drawn from the 16 facts. 17
The Defendant is a Romanian citizen who claims to be living in Switzerland, close 18 to the border with Italy. She is the girlfriend of a co-accused Florin Roata, who 19 gave evidence on her behalf during the trial. His evidence was that he is a 20 Romanian living in Italy close by to the defendant's place of work. They claim to 21 bave known each other a long time and that, nine years ago she had a son who 22 lives with her family in Romania. - ...... -.-----~=_c_c. -~ ___ .---.-... -- Judgment. Ind. No. 114114; 10/15; 11/15. R v. Mariana Oprinotu. Coram: MettyearJ. (Aetg.) Date: 19.05.2015 Page 6 0[25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
She said that Roata was the boy's father, although his name is not on the birth certificate. She said she did not tell Roata that the boy was his son until two years ago. She said that she had not registered Roata on the birth certificate and not told him that he had a son because he was married at the time. Over the last year or so they had, in effect, lived together as man and wife. They both claimed in evidence that Rcata's marriage was coming to an end with the expectation (at the end of last year) of a divorce which would enable the two to marry. They thought that the divorce would be granted in February 2015. In the event, because of their arrest, he is still married. The Defendant is 34 and said she had parents and four sisters living in Romania. They do not work, she claims, and so she does what she can to help them by working as a prostitute iu a Swiss Night Club. This, she said, brings her an income of about 100,000 Swiss Francs per annum. In her evidence I formed the clear view that she is no simple Romanian village woman. She is fluently trilingual and highly intelligent. Roata, at the relevant time, was a barman working in a small tourist bar. There is no easy way of veritying this account, but in any event, that is not necessary as I am content to work on the assumption that it is substantially true. When he was interviewed following his arrest on the 16th December 2014 Roata stated that he had been drawn into the conspiracy whilst he was in Jamaica, shortly before his trip to Grand Cayman. He said that his recruiter was a Russian called Sasha. Judgment. Ind. No. 1141/4; 10/15; J 1/15. R v. Mariana Oprinaill. Coram: MettyearJ. (Actg.) Date: 19.05.2015 Page 7 0/25 I 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23
In evidence before me he said that the suggestion that he be part of the fraud came not from "Sasha" but from Ovidiu Milalache (referred to in evidence as Ovidiu and I will continue to so describe him). Roata said that any reference in the interview to Sasha should be read as a reference to Ovidiu. His reason for the lie to the police was, he said, that he was fearful of the consequences of giving infonnation about Ovidiu. Ovidiu has not been here to meet this allegation and give his side of the story, so I can reach no firm conclusions about him. However, for the purposes of this hearing, his participation in the conspiracy fits into the overall picture given by the evidence and I will work on the assumption that he was part of it. Put in the broadest terms the defendant's case is that she went away with Roata on what she described as a honeymoon. She took a large amount of US$ with her, about 7000, with a view to doing some shopping. She also took a large amount Euros. This she said was to have available when she retnmed to Europe. The trip was intended to be to Jamaica only although the plan changed. She said that she did not know and had never heard of Pop, Vlismas or Ovidiu before she travelled. Further, she never met or heard of them in Jamaica or Grand Cayman. She claims that she had no knowledge of the existence of allY of the incriminating items that were found after the arrest of her and Roata. Judgment. Ind. No. 114/14; 10115; 11/15. R v. Mariana Oprinoiu. Coram: MettyearJ. (Actg.) Date; 19,05.2015 Page 8 0[25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
THE BOOKING OF THE FLIGHT TO JAMAICA The couple began their trip by flying to Belgium. The main pmt of the journey was the leg from Belgium to Jamaica. The booking of that trip is not without interest. The booking infonnation was recovered in the sem'ch of 17 Cobalt Coast where the couple was staying at the time of their arrest. The flight from Belgium to Jamaica was booked through "lastminute.com". Roata said that the booking had actually been made by another, but on his instructions. The documents are in the exhibits bundle beginning at page 157. Those on the booking are the defendant, Roata and avidiu. The three were due to fly out and return on the same dates, namely, out on the 3rd December and back on the 17th December. They did all fly to Jamaica on the 3'd of December. Roata's evidence was that avidiu was a man he had known for only about a year having met him on the Black Sea. He had only seen him on a few occasions thereafter, always at the same place. He said that avidiu was a Romanian who was living in Romania. He said that the joint booking came about because he had told avidiu that he was going to Jamaica on Honeymoon and avidiu had said that he had friends there who he was planning to see. Therefore, the joint booking was made. He claimed that the conspiracy was not the reason for the joint booking or for the same dates and departure points for travel being chosen. He said that he did not tell the defendant that an acquaintance of his was travelling on the same flight and he didn't introduce the defendant to avidiu. He went on to say that they didn't all sit together and he didn't socialise at the airport or on the plane with avidiu. Judgment. Ind. No. J 14114; 10115; 11/15. R v. Mariana Oprinoiu. Coram: Mettyear J. rAe/g.) Date: 19.05.2015 Page 9 0/25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
His attempt to justify or explain this rather peculiar situation represented, in my view, the low point of his evidence. He was throughout a poor, although confident, witness, but in answering questions about this aspect of the case he was hopeless. Asked why he did not introduce the two if this was an innocent trip he said it was because the defendant was shy. In fact she had told us before that how she made her money. It was partly by encouraging those in the club to drink as much champagne as possible to earn a share of the proceeds and partly by the amount she charged the men for having sex with her. The idea that he feared that she was too shy to be introduced to a fellow Romanian acquaintance of his was quiet absurd. It was a deliberate lie. Asked why he hadn't even informed her that there was an acquaintance of his on the plane, he spoke of his masculine ideas that women did not have to know everything and even bizarrely said that there was " .. .. no reason for me to tell a woman who was not my wife". His account was completely false and unreliable. The truth must be that either the defendant knew Ovidiu was travelling with them or that information was deliberately held from her by Roata because he knew that the two of them were going to act dishonestly whilst abroad and didn't wish the defendant to know. I will come back to this later, but for the moment 1 will simply say that so far as Roata is concerned I am sure that an understanding between Roata and Ovidiu that credit card fraud would be committed by them on this trip was reached before they left Europe, I reject Roata's evidence that he was recruited in Jamaica. Judgment. Ind. No. 114114; 101/5; ]]/15. R v. Mariana Oprinoiu. Coram: Mettyear J. (Actg.) Date: 19.05.2015 Page 10 0[25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
JAMAICA According to the defendant very little occurred in Jamaica. The couple checked into their hotel and she remained there throughout the period they were there. According to her she never went out and all meals were taken without leaving the premises. She said that Roata was with her throughout their stay, venturing out only to buy cigarettes, which he did for a short time each day. She said her money remained essentially intact, because the shopping was not good. In fact, according to her she never tried. She said that the weather in Jamaica was poor and Roata told her that they were moving to Grand Cayman where the weather would be better. Roata's evidence that he was recruited in Jamaica I have already rejected. His evidence that in Jamaica he saw Pop, Vlismas and Ovidiu and that plans about what was to be done in Grand Cayman were made and that some practical steps were taken may well be true. GRAND CAYMAN The defendant and Roata arrived in Grand Cayman on a flight from Jamaica on the 11 th December 2014. Pop had arrived here from Jamaica on the 10th December and was due to return on the 14th. Vlismas arrived from Jamaica on the 12th December and was due to depart on the 26th. Ovidiu arrived from Jamaica on the 10th December and departed on the 14th. The prosecution suggests that the staggered arrivals were an attempt by the conspirators to fool the authorities into thinking that they were not connected. That is surely the case. The Defendant and Roata were stopped by customs officials at the airport. They were searched and then released to go on their way. Judgment. lnd. No. 1141/4; 10/15; 11/15. R v. Mariana Oprinoiu. Coram: Mettyeal' 1. (Actg.) Date: 19.05.2015 Page 11 0/25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
Evidence of the search was given by Senior Customs Officer Dudley Dorvic. He was accompanied at the search by Customs Officer Troy Wood. Mr Dorvic said that the object of the search was to check them for credit cards and electronic devices. He said that the contents of all bags was removed until just dregs at the bottom were left and all that was found was one credit card and one electronic device. He said that the only money was some cash in the man's wallet. The sum was not counted but it was he said that it was "not a large amount." In cross examination he was shown a photograph of the red bag that was recovered when 17 Cobalt Coast was searched and which at that stage contained, amongst other things US$ 6000 and 1685 Euros. Mr. Dorvic said that he had no recollection of that bag and so could not say one way or the other whether she had it with her. He added that if she did have it at the time it would have been searched. What was not put to Mr. Dorvic was the defence case on that bag, namely, that she did have it when she arrived at the airport, that it contained the money and that it had been seen by the younger customs officer (presumably Troy Wood) who had made a comment about the amount, but let her go through without further action. That case, which was given in evidence by the defendant and supported by Mr. Roata, should have been put to Mr. Dorvic. Miss Fosuhene's response after the close of evidence when I raised this issue was to say that the Crown should have called Troy Wood. Miss Salako retorted that she would have sought to do so had the defence case on this issue been properly put. Judgment. Ind. No. 114114; 10/15; 11/15. R v. Mariana Oprinoiu. Coram: MettyearJ. (Ae/g.) Date: 19.05.2015 Page 12 0[25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
I do not suggest for one moment that Miss Fosuhene deliberately held back putting her case so as to cause this problem. She may have assumed that because the defendant had mentioned in interview that the money had been shown to customs, that the issue had been raised sufficiently. Be that as it may the absence of the chance for Crown witnesses to deal with that which is asserted is unfortunate. The couple stayed firstly in the ComfOlt Suites Hotel. There the defendant said all was well and, just as in Jamaica, Roata was her near constant companion. On the 13th December they moved to 17 Cobalt Coast because she said Roata had said that Comfort Suites was too expensive. During their time at Cobalt Coast the defendant claimed that things were different. In pmticular Roata was frequently absent and she was left alone for too long. She remained at the resort moving between their room and the beach. Shopping remained elusive. The Defendant said that Roata's long absences caused friction between them and she produced a text exchange which seems to corroborate that. She said that she was suspicious that he was seeing another woman. On the 16th December Sunshine Suites Hotel received a booking via the internet for 8 days in the name of Roata. The credit card used to secure the booking was declined, but Roata and Oprinoiu arrived and paid US$773.80 in cash for the reservation. The defendant said that it was necessary to move from Cobalt Close because the room was required by the hotel which had no other accommodation avalable. Judgment. Ind. No. 114114; 10/15; 11/15. R v. Mariana Oprinoiu. Coram: MettyearJ. (Aetg.) Date: 19.05.2015 Page 13 0/25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
The Crown suggests that the moves were made in the hope of keeping the police off their trail. Why an eight day booking was made on the 16th when the two were due to fly back to Brussels on the 17th was never explained. In the event the booking was not taken up because of the arrest of the defendant and Roata. THE ARRESTS The defendant and Roata were arrested whilst they sat and had coffee outside the Agua Restaurant on the 16th December. They had arrived there in a white Mustang convertible car. The defendant in evidence said that she had never seen or heard about the car before that day. She said that Roata told her that he had hired it for that day to move them from the Cobalt Coast Resort to Sunshine Suites. In fact the history of hire cars is as follows. Pop had hired a different car from Andy's Rent-a-car on the 10th December. He had paid CI$854 in cash for his hotel and US$ 2069.32 in cash for the car. I mention these sums merely to illustrate that there seems to have been a good deal of cash available to those connected with the conspiracy and that it was available before the ATMs on Grand Cayman were attacked. Anyway, the car was returned to Andy's on the 17th December with three gift cards with al6 digit number, a country code and a PIN number written on, left in it. Judgment. Ind. No. 114114; 10/15; 11/15. R v. Mariana Oprinoiu. Coram: MettyearJ. (Actg.) Date: 19.05.2015 Page 14 0125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
In the meantime the white Mnstang was rented from Andy's Rent-a-car on the 14th December when Pop, Vlismas and an unidentified man appeared at the car hire premises. Vlismas hired the car and asked that Roata's name be added to the contract as a "named driver". Vlismas paid US$ 2140 for the hire. When the car was searched on the arrest of the defendant and Roata their passports were inside. At the scene of the arrest the two were searched and the results and the defendant's comment are recorded at paragraphs 12 and 13 of the "Admissions". There was cross examination and submissions about who had the bag and how it was carried or held. I do not need to consider that further as I am content to accept, for present purposes, the defence case that it was in the possession of Roata. Of much more significance is the search of 17 Cobalt Coast. I will not set out here what was found as that would simply repeat paragraph 15 of the "Admissions". Suffice it to say that what was found provided the clearest proof possible that the conspiracy existed and that, at least one of the occupants of that room, was a conspirator. Two suitcases contained the possessions of the couple. The preponderance of prosecution evidence is that male and female clothing was mixed between both cases. That was also the defence evidence and I accept it as accurate. There was considerable cross examination by the defence as to the details of the execution and logging of the search, but on the crucial issues of what was found and where, there was no challenge. No doubt it would have been better to have photographs or notes about exactly where a particular item was located in a suitcase, but such information would not, I am satisfied, have made any difference_"",_~ to my findings. Judgment. fnd. No. 114114; 10/15; J ]/15. R v. Mariana Oprinoiu. Coram; Meltyear J. (Aetg.) Date: 19.05.2015 Page 15 0/25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
The search findings particularly relied on by the Crown as demonstrating that the defendant was a conspirator are: a. US$9,300 and CI$1,700.00 wrapped in the leg of neatly folded jeans belonging to the defendant; b. The red wallet which I have referred to already in paragraphs 35-37. Besides the cash it also contained two credit cards in the defendant's name and identity documents for both of them; c. The black bra containing paper with credit card information on plus memory cards; d. A white mesh bag (variously described as a laundry or lingerie bag) containing female underwear and 23 gift cards 20 of which had genuine credit card information imported into the magnetic strips on the gift cards. The defendant said that she knew nothing of these items (except the red wallet) and had not put any of them where they were found. Roata claimed that he had put them where they were found. --c---c--~------o~-~---c=-~~~.-----.. -- Judgment.Ind. No.l14IU; 10115; 11/15. Rv. Mariana Oprinoiu. Coram: MettyearJ. (Actg) Date: 19.05.2015 Page 16 0/25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
INTERVIEWS Unfortunately I was not supplied with a transcript of the defendant's interview, which took place on the 18th December. A summary appears in paragraph 20 of the "Admissions" and that is all I have been supplied with. She denied, as she has consistently done, that she had any knowledge of or involvement in any conspiracy to steal from A TMs. There is no point in setting out paragraph 20 in this judgment, but I have re-read it and particularly noted the sub-paragraphs dealing with her conduct in Grand Cayman. I have been provided with even less detail of the interview with Roata which took place on the 19th December. That was particularly inconvenient when there arose in his cross examination a dispute as to what he had said in interview about his relationship with Ovidiu. Roata deal with this by saying that he had no precise memory of what he said to the police, but that in any event the translator at the interview was so hopeless that no reliance could be placed on anything recorded as being said. On the information provided it is impossible to come to any conclusion about what was or was not said and I put aside the limited information I have, other than the admission that Roata made about lies he told concerning "Sasha". Vlismas and Pop were arrested on the 17th December. Searches on arrest and at their hotel produced the same sort of items that had been recovered from 17 Cobalt Coast. Details are set out in paragraphs 23 to 25 of the "Admissions". Of particular note there was recovered approximately US$90,000.00 CI$9,536.00, a large quantity of gift cards and a card swipe device. Judgment. lnd. No. 114/14; 10115; llll5. R v. Mariana Oprinoiu. Coram: MettyearJ. (Actg.) Date: 19.05.2015 Page 17 0/25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
DEFENCE EVIDENCE In my review of the evidence I have frequently referred to what the defendant or Roata said about a particular piece of evidence or Crown suggestion. Nevertheless, it is appropriate, in the circumstances of this case, that I now give an overall summary of what the defendant and her witness said in their evidence. I begin by reminding myself not to hold it against them that they come to the witness box from the dock and prison. All witnesses begin their evidence as equals. THE DEFENDANT The defendant gave evidence about her background and life in Switzerland which I have dealt with already. She gave evidence about her trip to Jamaica and who paid for what. She claimed she did not know Ovidiu, did not know he was on the booking or on the plane. She said that she fIrst heard of him two weeks ago from her lawyers. She also said that she knew nothing of Pop or Vlismas. In Jamaica Roata was her constant compamon, leaving her for only 10 to 15 minutes each day to get cigarettes. Otherwise they remained in tlle hotel or on the beach. It was sinlply a holiday which they were regarding as, in effect, an early honeymoon. The weatller in Jamaica was not good and so Roata told her that they would leave for Grand Cayman where the weather would be better. She would rather have gone home and told her friend Roxanne so, but went along with the plan to go to Grand Cayman. Judgment. lnd. No. 114/14; 10115; 11/15. R v. Mariana Oprinoiu. Coram: Mettyear J. (Actg.) Date; 19.05.2015 Page 180/25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
They were searched at the airport ,and she showed the younger customs officer the money she had with her. She had cash, she said, because she always uses cash and she was planning to go shopping whist on the trip. She had packed for both of them for the trip from Jamaica but did not properly unpack. They instead lived from the cases. She gave an account of the two of them arguing in Grand Cayman because he was spending too much time away from her after the first couple of days. She read out a text message exchange which demonstrated that they did argue. By then they had moved to 17 Cobalt Coast and he was out for much of the day whilst she was left on the beach or in the hotel. She said that on the day of the arrest they had argued and he went out. On his return he tried to make up and they went out for coffee. She had asked him where he had been and he told her that it was none of her business. It was whilst they were drinking coffee that they were arrested. The bag that was recovered was on the table at which they were sitting and belonged to Roata, So far as items connected with the conspiracy, found by the police in the search of Cobalt Coast is concerned, she said that she had no connection with any of them and no knowledge of them. In particular she said she was unaware of there being money in the leg of her jeans and did not know the source of it. She only used the jeans for the flight from Europe. She said that the items in her bra had not been put there by her. She said she had two bras with her which she only used for long flights when they helped in some way with the silicone implants that she ha ~ ••.•. ~."._ \\) LO,7':>"" ";1:\ \ , J :~~~,i i t.;~ j Judgment. Ind. No. 114114,. 10/15; J ]/15. R v. Mariana Oprinolt!. Coram: Mettyear J. (Actg.) Date: 19.05.2015 Page 19 0/25 1 2 3 4 5 6 7 8 9 13 14 15 16 17 18 19 20 21 22 23 24 The bra in question had been used by her for the flight to Jamaica and would not be used by her again during the trip. She claimed that in Jamaica she had told Roata this when he had asked her about her not wearing a bra. She said that the white mesh bag was hers and was for keeping her and sometimes his used underwear. She had no idea the cards were in there and had never seen them before the arrest.
I have already dealt in some detail with what she said about the money in the red purse and will not repeat it. She added that she has substantial savings. She was cross examined about the writing on the various pieces of paper recovered and said that they was not hers and that she did not recognise the writing, which was somewhat curious as we heard from Roata that much of the writing was his. ROATA
Roata gave an account very similar to that given by the defendant. The trip was a honeymoon before what was intended to be their wedding in the New Year. The intention was to go to Jamaica only. He gave the account of Ovidiu being included on the booking and said that there was no connection between the defendant and Ovidiu on the day of the flight or at any other time. He gave his account, which I have already rejected, of being recruited into the conspiracy in Jamaica.
He said that in Jamaica Ovidiu, Pop and Vlismas were in different hotels from his and there was no contact between any of them and the defendant. Ovidiu suggested they move to Grand Cayman and he persuaded the defendant that the weather would be better. He gave a similar account to the defendants about the search at the airport and supported her evidence that she had brought the money with her from Europe. He admitted dishonestly withdrawing money from ATMs. Judgment. lnd. No. 114/14: 10115; 11/15. R v. Mariana Oprinoiu. Coram: Mettyear J. (Actg.) Date: 19.05.2015 Page 20 0/25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
He said that the defendant knew nothing about the conspiracy and was not part of it. He said that he had hidden the money in the leg of the jeans, the cards in the white mesh bag and the list and memory card showing video recordings of ATM machines, etc., in the bra. He said that he had chosen these places having ascertained that the jeans and the bra would not be used by her. The purpose of hiding these and other items was to keep them out of the sight of the defendant. He said that he feared that if she found them she would go to the police. He insisted that the defendant knew nothing about what was going on and is completely innocent. He produced a letter that he had written to the Governor of the Cayman Islands saying as much. Curiously that is also signed by Pop and Vlismas, who it is claimed, do not know the defendant. Judgment. ind. No. 114114; 10/J 5; 11/15. R v. Mariana Oprinoiu. Coram: Mettyear J. (Aetg.) Date: 19.05.2015 Page 210/25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
My CONCLUSIONS In paragraph 30, I concluded that the agreement involving Ovidiu and Roata had been reached in Europe and that they flew to Jamaica pursuant to that agreement. I left over until now my conclusions concerning the defendant. My conclusion is that she too knew what was going to happen in the Caribbean. I reject her evidence that this trip was an early honeymoon. The conspiracy was a well organised and carefully planned international crime. Its execution was detennined. I cannot believe that other conspirators would be content for Roata to take with him a girlfriend who knew nothing. It would be far too risky. At any moment she might discover the truth and how she would react wonld be unpredictable. In truth, they were, at least, content for her to go becanse she already knew what was to take place. I conclude that she knew the flight booking included Ovidiu and that he was on the plane with them. I have already dealt with the booking and the evidence of the flight to Jamaica. I rejected Roata's evidence on these subjects and I reject the defendant's. The evidence, simply, does not make sense. No sensible innocent reason has been put forward for why Ovidiu was on the booking, why he flew from the same airp011, why he planned to be in Jamaica for the same dates or why there was no contact between him and the couple at the airpml or on the plane. I am wholly unconvinced by the argument put forward by Roata that as Ovidiu was sitting away from them on the plane that was some indication that they were travelling separately. Judgment. lnd. No. 114114; 10115; 11//5. R v. Mariana Oprinoiu. Coram: MettyearJ (Actg.) Date: 19.05.2015 Page 22 0[25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
If Ovidiu did sit apart from them it was almost certainly another attempt to fool anyone taking an interest in them into believing they were not connected. In the absence of any sensible innocent explanation I believe that the obvious conclusion is that they were travelling together with the knowledge of all three. I am unsure of the situation concerning the money in the red handbag. In particular, whether it was brought into Grand Cayman by the defendant on the 11th December. I think it most likely that the money was not brought in on that flight. I doubt that it came from Europe and if it was I reject the evidence of the defendant that it was cash for shopping. She never showed a moments interest in shopping even when in Grand Cayman where the opportunities are plentiful. However, I hesitate on the question of the money, because of the evidential gap described in paragraphs 36 to 38, because the focus of the search at the airport was credit cards and electrical devices rather than cash and because it is an odd feature that a considerable amount of Euros were found in the bag. I accept the Crowns submission that Euros can be obtained in Grand Cayman, but it seems unlikely that the defendant would seek to do so. So although I think it likely that the dollars in the red handbag were acquired in Grand Cayman I cannot be sure. Even if I believed that the money in the red handbag legitimately belonged to the defendant and that she had brought it into Grand Cayman it would not have changed my view of the case against the defendant. As can be seen from paragraph 44 to 45, others involved in the dishonesty had large sums of cash available to them prior to the ATMs being attacked. Judgment. Ind. No. 114114; 10/15; 11/15. R v. Mariana Oprinoill. Coram: MettyearJ (Actg.) Date: 19.05.2015 Page 23 0/25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
I conclude that the Defendant knew that the items and money connected with the fraud found at 17 Cobalt Coast were there, and she knew where the money had come from. 17 Cobalt Coast was described as having a living room, bathroom, kitchen and bedroom. Their personal items were in two suitcases to which they had equal access. The defendant is an intelligent woman who on her own account was left for much of her time alone at the resort. So much so that she started to think that Roata was seeing another woman. The money and other items were there to be easily seen or felt. I do not accept that she was unaware of their existence on the contrary she knew exactly what was going on. I reject Roata's evidence that he was hiding the money and items from the Defendant. The money and cards were hidden not from her but placed where they were less likely to be observed by for instance a maid who was tidying the room. It is difficult to think of worst places to hide things from a woman than her own jeans, her bra and a mesh bag holding her used underwear, even if, as claimed, he had reason to think she was not planning to use those items in the immediate future. The accounts of both of them on this topic are, in my judgment, complete fiction. The defendant knew what was happening, knew where the money and items were being kept and knew the money was criminal property. She had either put the items, where they were found, herself, or, she knew that Roata put them there and was content with the situation. These findings lead me to he sure that the ingredients of the offence in Count 2 have heen proved hy the Crown. The defendant had joint possession of at least the money found in her jeans and she was aware that it was criminal property. Judgment. Ind. No. 114114; J0115; 11/15. R v. Mariana Oprinoiu. Coram: MettyearJ. (Actg.) Date: 19.05.2015 Page 24 0[25 1
I now tum to the important question as to whether it has been proven that the 2 defendant was a conspirator. The findings that I have made already are a string 3 pointer to her being such. However, there is no direct evidence that she played any 4 active role pursuant to the conspiracy at any stage. There is no fingerprint evidence, 5 no CCTV evidence, no observation evidence, no forensic evidence and no 6 admissions. To this I add the Defendant's good character in finding that the Crown 7 have not made me sure on Count 1. 8
Stand up Mariana Oprinoiu. 9
On count 1, I find you Not Guilty. On count 2, I find you Guilty. 10
You are remanded in custody to come for sentence with the others on Count 2 on 11 the 21" May 2015. 12 13 14 Dated this the 19th May 2015 15 16 17 18 Honourable Justice Michael Mettyear (Actg.) Acting Judge of the Grand Court Judgment. lnd. No. J 14114; 10115; 11115. R v. Mariana Oprinoill, Coram: Mettyear J. (Aetg.) Date: 19.05.io15 Page 25 0/25