R. v. Djambazov Date:, 2011 BCPC 261

Citation: R. v. Djambazov Date: 20110713 2011 BCPC 0261 File No: 210283-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARIO ELIEV DJAMBAZOV EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE F. E. HOWARD Counsel for the Crown: P. Stabler Counsel for the Defendant: M. Bozic Place of Hearing: Vancouver , B.C. Date of Judgment: July 13, 2011 [ 1 ] THE COURT: This accused, Mario Eliev Djambazov, is charged with a variety of offences relating to debit card fraud. The Information alleges that the offences were committed from June 1st, 2009, to August 8th, 2009.

There is a co-accused who is not before me. [ 2 ] The evidence reveals a fraudulent debit card operation involving at least three men. The operation ran as follows. One, sometimes two, of these men would attend at a Coast Capital Savings ATM machine in the Lower Mainland. That individual would attach a pinhole camera and a card reader onto the machine. This has been referred to as the "install." As customers came in to use the ATM machine, they would insert their debit cards into the appropriate slot.

The card reader or skimmer would capture the customers' personal data that is embedded in magnetic strips on the back of the debit cards. The pinhole camera would then capture their PIN numbers as the customers punched those numbers on the number pad. Approximately an hour later, one of the suspects, sometimes the same man, sometimes one of the other men, would come back to the ATM and remove the camera and the skimmer.

This latter process has been referred to as the "removal." [ 3 ] The personal data that was collected, including the debit card numbers and the related PIN numbers, was then used by someone, unidentified at this trial, to create forged debit cards bearing other legitimate debit card numbers. Then the same three suspects would

take turns using the forged cards along with the related PIN numbers at various ATM machines in the Lower Mainland to withdraw cashfrom the personal accounts of the debit card holders. These activities have been referred to as "fraud-spends." On occasion, the debitcards were also used to make small purchases from retail stores. A large number of the fraud-spends occurred in Bulgaria. [4] The camera and the skimmer were installed and removed from a variety of ATM machines all owned by Coast Capital Savings. The timeframes for the installs and removals ran from June 1st, 2009, to June 26th, 2009.

The fraud-spends appeared to have begun onJuly 1st, 2009, and they continued up until July 21st, 2009. [5] All of the debit cards used by legitimate Coast Capital customers during the install period were compromised, 2,161 in total. Once Coast Capital discovered the illegal operation, the debit cards belonging to these 2,161 customers had to be cancelled. [6] Of the thousands of cards that were compromised, the data from 72 of them was used to produce forged debit cards that wereultimately used in fraud-spends or attempted fraud-spends. Forty of those 72 forged cards made their way to Bulgaria.

The fraud-spendstotalled $53,757.80. This was the loss suffered by Coast Capital Savings during this criminal operation. [7] I do not propose to spend a lot of time on how Coast Capital Savings uncovered the fraud and collected the evidence that is nowbefore me. Suffice it to say that this was an immensely painstaking and time-consuming project for the staff of this institution. Theevidence includes many, many pages of banking data and, where available, videos of the installs, the removals, and the fraud-spends. These videos came from the surveillance cameras at the ATMs in question.

There are no videos available for the fraud-spends inBulgaria or at the retail stores. [8] The information contained in the banking data, including dates, times, debit card numbers, and the amount of cash withdrawnduring the fraud-spends, has all been coordinated with customer complaints and the videos to create an overwhelming body of evidencethat establishes beyond a reasonable doubt that the offences set out in the Information were committed.

The only remaining issue iswhether the accused was one of the three culprits who participated in this criminal enterprise. [9] The various videos before me clearly establish that three men were involved in this operation. Although they rarely appeartogether in any of the videos, it is certainly the same three men who keep reappearing at various times during the install, removal, andfraud spend operations. They are readily identifiable save for the odd occasion when their faces are partially obscured.

On these fewoccasions, the identification is greatly assisted by the fact that the culprits often wear the same clothing, especially t-shirts and jacketsand sometimes jewellery. [10] Vis-à-vis each other, the three suspects are distinct in appearance. One is tall and much slimmer than the other two. A second isa large man, a heavy man, with a distinctive grey moustache and a balding head. The third is also a heavy man with dark brown or blackhair and no facial hair.

It is the Crown's position that this third man is the accused. [11] Detective Nichol purported to identify the accused before me as the third man in the video clips. Ms. Keeper, a corporatesecurity investigator for Coast Capital Savings also used the accused's name, Djambazov, when referring to the parties whom she wasobserving in the videos that she uncovered during her investigation. Obviously, this name was provided to her by someone else, likelyDetective Nichol.

I have not found this type of testimony from either of these two witnesses to be helpful or necessary when consideringthe issue of identification. [12] I propose to rely upon my own review of the videos coupled with my view of the accused in court in order to determine whetherthe accused is the third man. In doing so, I am mindful of the many concerns that arise in relation to such a process; see R. v. Nikolovski, (SCC), [1996] S.C.J. No. 122; R. v. Cook, 2002 BCSC 847; R. v. J.E., [2011] N.J. No. 38; R. v. Leaney, (SCC), [1989] S.C.J.

No. 90. [13] I begin by noting that there is no physical evidence linking the accused to the crimes before me and it is common ground that theaccused was arrested in Toronto. There is no independent evidence before me that places him in Vancouver or the Lower Mainland atthe time that the offences were committed.

The only evidence available to the Crown to establish the identity of the third man and thatman's presence in Vancouver at the material time comes from the video surveillance tapes taken at the various ATMs where the offenceswere committed. [14] The videotape depicting the robbery that was the subject of the Nikolovski decision was created in 1991.

The trial judge in thatcase found the video to be "very clear." I can say without hesitation that the videotapes in the present case created in 2009 are"remarkably clear". [15] I agree with defence counsel that in some instances the lighting in the videotapes was less than ideal, but this was a rareproblem. Defence counsel has also pointed out that in a number of the videos there is some obvious distortion of the images. In theseinstances, one can see that the background is somewhat curved.

For example, dividers and the security gates in the background, whichshould run straight up and down, have a slightly curved, fishbowl appearance. Although it is not quite so obvious, there is clearly a riskthat the images of the persons directly in front of the camera may also be distorted to some extent.

However, in reviewing the tapes andafter keeping this factor in mind, I am more than satisfied that any impairment that might exist in this regard is not enough to underminean identification based on the images in the videotapes. [16] In the present case, the third man is depicted in numerous streaming live videos, including more than 20 relating to installs andremovals, and at least 15 relating to fraud-spends. Most of the install and removal videos are short, in the range of five to 20 seconds. Afew were longer, closer to a minute or more.

The Ocean Park video, for example, on June 18th, 2009, is in excess of two minutes. TheWest Vancouver video on June 18th, 2009, is close to one-and-a-half minutes. The fraud-spends videos tend to be longer. Quite a fewof them are in excess of a minute. [17] The multiplicity of videos is an added bonus. I can see the build of the third man as he walks up to and away from the ATMs. One can see his face from a variety of angles as he moves his head about.

[ 18 ] The accused has been sitting in front of me for many hours, over several days of trial. I have had a very good opportunity to view his face from a number of different angles. I was alerted to the fact that identity was an issue in this case. As I watched the videos during the trial, I had an excellent opportunity to compare the face of the accused to that of the third man depicted in the videos. In my view, these were ideal circumstances in which to make a determination as to whether the accused and the third man are one and the same person. [ 19 ] My conclusions are as follows.

The third man has a beefy build with a plump belly. The accused has the same build. The third man has a large head with fleshy cheeks and jowls and a small double chin. The shape of the head and the face of the accused is identical to that of the third man in this regard. The third man has ears that are normal in size and lie flat to his head, as does the accused. The eyebrows of the third man, his nose, and his lips are identical in size and shape to those of the accused. From a side angle, the nose of the third man runs sharply down from the bridge to the tip.

There are no bumps close to the bridge and the tip of the nose does not turn up or down. The accused's nose is identical in this respect. [ 20 ] While observing the accused in court, I noted that there are plump or fleshy ridges that run across the top of his cheekbones under his eyes. These fleshy ridges actually create small triangular shadows just below the ridges. Depending on the lighting, the same triangular shadows can be seen on the face of the third man in some of the videos.

For example, see the following videos: June 21st, 2009, at the West Vancouver branch ATM at 17:31; June 22nd, 2009, at the West Broadway branch ATM at 18:40; June 23rd, 2009, at the West Vancouver branch ATM at 20:03. [ 21 ] I have looked hard for differences between the accused and the third man in the video. I can find none, save for the hair. Both men have dark hair, dark brown or black. However, the hair of the third man is longer than that of the accused as he sits before me. Even with longer hair, the hairline of the third man at the top of the forehead is easily visible in a number of the videos.

That hairline is identical to that of the accused. In the end, I am satisfied beyond a reasonable doubt that the accused is the third man participating in the crimes depicted in the videos. [ 22 ] There are several video clips showing the accused at the ATMs in the company of one of both of the other two culprits at the time that the skimming equipment was installed or removed or at the time of the fraud-spends.

The banking documents also reveal that this accused often engaged in fraud-spends using a forged credit card that was obviously created using credit card data obtained as a result of an install or removal of the skimming equipment by either the tall man or the man with the grey moustache. Given the totality of the evidence before me, I am satisfied beyond a reasonable doubt that all three men including the accused were parties to this criminal enterprise. [ 23 ] The above conclusion is qualified by the following observation. It is common ground that the total amount of the fraud was $53,757.80.

It is also common ground that this accused was not seen on any of the skim videos prior to June 15th, 2009. The fraud- spends associated to cards that were skimmed prior to this date total $17,624.19. All of these fraud-spends occurred in Bulgaria. There is no video evidence or any other evidence, circumstantial or otherwise, to link this accused to these fraud-spends. However, I am satisfied beyond a reasonable doubt that the accused was a party to the fraudulent operation described above from June 15th, 2009, to July 21st, 2009.

The fraud-spends associated to the debit cards skimmed during this period of time total $42,133.61. Conclusion [ 24 ] I find the accused guilty of all of the charges set out in the Information, including the forgery charge in Count 4. [ 25 ] With respect to the forgery, I acknowledge that there is no direct evidence of who forged the cards and under what circumstances. However, the circumstantial evidence before me leaves, in my view, only one reasonable inference which is that the accused was a party to that forgery.

I am not concluding that he actually committed the forgery, but I am satisfied that the evidence is sufficient to conclude beyond a reasonable doubt that he was at least a party to that forgery. The forgery could not have occurred without the forger being in possession of the credit card data from legitimate cards. This accused and his cohorts were the people that collected that data using the skimmer and the pinhole camera. Those activities, the skimming activities, occurred in the latter part of June.

By early July, July 1st, the accused and his cohorts were in possession of forged cards that contained data from the earlier skimming operation. In my view, this evidence supports only one reasonable conclusion which is that the accused, when he passed on the stolen data to somebody else, he did so with the knowledge that that data would be used to create forged credit cards.

The fact that this accused and the other two suspects were in possession of forged cards using that data, in my view, completes what I will refer to as the circle of the crime and can lead to only one conclusion, which is that he was a party to the forgery. [ 26 ] I will also note in this conclusion that the total amount of the fraud for which the accused is responsible is $42,133.61. [ 27 ] Applying the principles of Kienapple , there are findings of guilt on all six counts; however, there will be conditional stays entered on Counts 2, 3, 4, and 6. [REASONS FOR JUDGMENT CONCLUDED]