By NEIL HARTNELL
Tribune Business Editor
FML web shop boss, Craig Flowers, yesterday saw a potential obstacle to obtaining a gaming licence eliminated when the Court of Appeal quashed his prior criminal conviction.
The three appeal judges, in a unanimous verdict, found there was “no evidence” that Mr Flowers “knowingly permitted” his FML web shop on Wulff Road to be used for promoting or conducting an illegal lottery.
And, while ordering that Mr Flowers’ conviction and sentence for violating the former Lotteries and Gaming Act be set aside, the Court of Appeal also ordered the Crown to return $834,639 that was seized from the Wulff Road web shop by the Royal Bahamas Police Force.
Alfred Sears QC, the lead attorney for Mr Flowers, yesterday agreed that the Court of Appeal ruling had removed a potential impediment to his client’s business obtaining a licence under the new Gaming Act.
FML was among the 10 groups that applied to the Gaming Board to be licensed as ‘domestic gaming operators’ under the new Act.
But, had the conviction been upheld, it may have complicated both Mr Flowers’ continued ownership and FML’s licence bid, as all those holding equity interests in web shops will have to pass a ‘fit and proper person’ test. Criminal convictions are often a major obstacle to passing such tests.
Agreeing that the Court of Appeal’s verdict had lifted this potential burden. Mr Sears told Tribune Business: “Other than this particular matter, he would meet the Know Your Customer (KYC) requirements, and the other requirements of the Gaming Act and regulations.
“You’d have to ask him [Mr Flowers] about how he feels, but from an objective standpoint it removes a disability that existed with respect to his application for a licence.”
The Gaming Board has yet to announce the successful web shop (domestic gaming) licence applicants. Obie Wilchcombe, minister of tourism, effectively said the Government is willing for the Gaming Board to take as long as necessary, so that it can complete effective scrutiny and due diligence.
Yesterday’s developments, and the protracted application process, mean that Mr Flowers’ prior Magistrates Court conviction - now quashed - will no longer be a factor in the Gaming Board’s deliberations.
Mr Sears said the unanimous Court of Appeal verdict showed Mr Flowers had a strong case for the conviction, by Magistrate Derrence Rolle, to be quashed.
“That shows the basis on which he was convicted was faulty,” Mr Sears told Tribune Business. “In the course of the appeal, each of the judges present had different concerns in terms of the basis of their questions.
“For there to be a unanimous decision clearly affirms the grounds we advanced. I’m really quite impressed that they gave it the kind of intellectual rigour that is reflected in the ruling.”
He added that the Attorney General’s Office, represented by deputy director of public prosecutions, Franklyn Williams, gave no indication yesterday as to whether it would seek to appeal the Court of Appeal verdict.
Mr Sears, though, said an application would be made to restore the appeal of the 13 FML staff who were also convicted as a result of the Wulff Road web shop raid.
The Court of Appeal dismissed their appeal earlier this year, after the employees did not appear and their attorney, Terel Butler, said she was unable to contact them.
“We indicated to them [the Court of Appeal] that our client was really concerned about his employees, and an application will be made to restore the appeal on behalf of the employees,” Mr Sears said.
Court of Appeal president, Justice Anita Allen, yesterday ruled that Mr Flowers’ appeal had to be allowed because the Crown “singularly failed to adduce any admissible evidence” that could prove he knew, and allowed, FML’s web shop to be used for promoting/holding a lottery.
She found that “out of court” statements by some of the FML employees had been wrongly admitted by Magistrate Rolle, and used to convict Mr Flowers.
Justice Allen said no evidence was presented to show Mr Flowers was present at the Wulff Road web shop between April 23 and April 28, 2009, when the police conducted their ‘numbers’ investigation.
“Similarly, there was no evidence of any arrangement between [Mr Flowers] and any of the persons found to have been promoting or conducting a lottery on the premises, and no evidence from which it may be reasonably inferred that he ought to have known but turned a blind eye to what was going on,” Justice Allen found.
“In essence, there was no evidence that the appellant knowingly permitted the premises at Wulff Road to be used for any purpose connected to promoting or conducting of a lottery.
“I am therefore satisfied that an essential element of the offence under section 11 [of the former Lotteries and Gaming Act] was not established; that the conviction was not supported by evidence and is, in the circumstances, unsafe.”
As for the $834,241 seized from the FML Wulff Road web shop, the $768,382 in cash was taken to the Central Bank, and the remaining sum - in coins - placed with the Central Detective Unit (CDU).
But Inspector Omar Bullard, during testimony in the Magistrate’s Court, said the amount of cash seized was higher than previously stated, placing the figure at $786,831 - a more than $18,000 discrepancy.
Justice Allen found that Magistrate Rolle failed to comply with section 72 of the Lotteries and Gaming Act, because he both failed to sign an Order for the money to be forfeited and did not demonstrate how the $834,241 was connected to the alleged offence.
She thus ordered that the money be returned to FML and Mr Flowers.