The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Appeal Court’s president has branded the two-year prison sentence for a veteran attorney, who stole $100,000 from Fidelity Bank (Bahamas) in a mortgage transaction, as “indeed a sad case”.

Dame Anita Allen said Alpin Russell Jnr had to be “appropriately punished” by the reimposition of a custodial sentence, notwithstanding the “outstanding public service” he and his family had given to the Bahamas.

Mr Russell, who is now in his late 60s, and worked from the Shirley Street law firm that bears his name, had appealed against the Supreme Court jury verdict that found him guilty of stealing by reason of service.

The Court of Appeal judgment upholding that verdict, and released last week, details how Mr Russell gave a variety of explanations for what happened to the missing $100,000 - ranging from his law firm being robbed to using the funds as security for a prior debt owed to him by one of the participants in the mortgage transaction.

Dame Anita, delivering the Appeal Court’s verdict, said Fidelity Bank (Bahamas) had hired Mr Russell in early 2006 to represent it in a real estate transaction that it was providing mortgage financing for.

Mr Russell was charged by the BISX-listed bank with preparing the mortgage documents and providing a title opinion on the property that was being purchased from Emmanuel Tsakkos by Amanda McKenzie.

To complete the deal, Fidelity Bank (Bahamas) transferred some $328,575 on Ms McKenzie’s behalf to Mr Russell’s firm.

From that sum, $200,000 was to be paid to Mr Tsakkos for the property’s purchase, with a further $100,000 used to pay-off a promissory note that Ms McKenzie owed to him. The remaining $28,575 was intended to cover Mr Russell’s legal fees.

“The evidence further showed, and it was not disputed, that the amount received by [Mr Russell] from Fidelity to complete the transfer of the property was disbursed to Tsakkos, but not the $100,000 he received in satisfaction of the promissory note,” Dame Anita wrote.

“[Mr Russell’s] defence in the court below, and his claim on appeal, was that he still had the money, which could not be seriously asserted.”

During the Supreme Court trial, it was revealed that Ms McKenzie was a former client of Mr Russell, and that he had performed some legal work for her in 2005.

Mr Russell alleged that she still owed him $95,000 for that work and, as a result, had a “solicitor’s lien” that he attached to the $100,000 paid to him by Fidelity Bank (Bahamas).

Ms McKenzie, though, produced a bill from Mr Russell that showed the fees were not equivalent to the $95,000 that he was claiming.

And, moreover, Mr Russell only “raised the issue of the lien for the unpaid work for the first time” in a November 21, 2008, letter - more than two-and-a-half years after he was hired by Fidelity Bank (Bahamas) for this particular transaction.

Ms McKenzie said she only became aware of that letter in 2010, when the police staged “a confrontation” between herself and Mr Russell.

And, further undermining the attorney’s case, Mr Russell was shown to have written to Fidelity Bank (Bahamas) soon after receiving the $328,575, in which he “acknowledged his understanding” that the $100,000 was also to be given to Mr Tsakkos.

“This evidence totally contradicted the appellant’s assertion of a claim of right, and evidenced that the appellant [Mr Russell] knew the funds were paid by Fidelity Bank to the order of Tsakkos, and that he did not have the bank’s consent to retain them,” Dame Anita found.

Shelly Shackleford, secretary at the law firm which represented Ms Tsakkos in the purchase, said she was given “several explanations” for the failure to disburse the $100,000 to her client, having made “numerous inquiries” to discover the monies’ fate.

One explanation from Mr Russell was that he was waiting for the cheque from Fidelity Bank (Bahamas) to clear, which ignored the fact the $328,575 was sent as one sum.

“Ms Shackleford’s further evidence was that at one point, she was told the firm had been robbed, and that as soon as the insurance paid the claim, it [the funds] would be forwarded,” Dame Anita said of another explanation from Mr Russell.

She added that this, again, showed the veteran attorney “knew he had no claim of right to the funds”, and that Fidelity Bank (Bahamas) did not agree to their appropriation by him”.

Mr Russell and his attorneys appealed the jury verdict on the grounds that Justice Ian Winder had erred in rejecting their ‘no case’ submission, and had also made mistakes in his directions to the jury. They also claimed that the sentence was “unduly severe”.

Dame Anita, though, said there was sufficient evidence to show that Mr Russell was in possession of the monies he was alleged to have stolen, acting as a trustee or escrow agent for Fidelity Bank (Bahamas).

She agreed that the Crown had made out “a prima facie case” against the veteran attorney, and shown that his claim to a right or ‘solicitor’s lien’ over the $100,000 was “a recent invention and a fabrication”, given that Mr Russell did not raise this until two-four years after appropriating the funds.

Describing Justice Winder’s jury directions as “adequate”, Dame Anita said: “We found that the learned judge’s directions, though simple, succinctly pointed them [the jury] to the receipt of the funds from Fidelity Bank, and the bank’ s instructions as to the disbursement of the funds”, balanced by Mr Russell’s counter-claim regarding the ‘solicitor’s lien’.

The Court of Appeal reaffirmed Mr Russell’s two-year sentence, doing away with the suspension of 18 months. He was ordered to serve one year and 11 months from May 2, 2016, and repay the $100,000 to Fidelity Bank (Bahamas).