By LAMECH JOHNSON
Tribune Staff Reporter
THE first day of Andre Birbal’s unnatural sex case was an emotional one for the 24-year-old alleged victim who told the jury that he didn’t want to return, having recalled the alleged sexual encounters with his former teacher a second time.
While the then-12-year-old cried, appeared to be shaken and timidly recalled the experiences during questioning by the prosecution, in cross-examination, the virtual complainant appeared fustrated and angry at the suggestions of defence counsel that he was making up his testimony to the point where he made a death threat against Birbal’s attorney.
Birbal, meanwhile, sat in the prisoner’s dock slightly crouched and head down focusing on the confines of the dock.
Birbal, a 48-year-old former arts and computer design instructor at Eight Mile Rock High School, is alleged to have sexually assaulted a student of his between January 2002 and June 2007.
The complainant, according to law, could not have given consent at the time of the alleged offences.
A week ago, Birbal filed a constitutional motion on the grounds that he had not been tried within a reasonable time. He also claimed that he was not likely to get a fair hearing as guaranteed by Article 20(1) of the Constitution.
He sought an indefinite stay on the matter after arguing that his retrial for the matter occurred outside the three years of his arrest and that there were adverse reports in the media following the Court of Appeal’s ruling that painted his character in a negative light, despite his conviction being squashed.
In response, prosecutor Darell Taylor said that the amended law for trial within a reasonable time does not apply to Birbal because the matter was ordered for a retrial by the appellate court less than a year ago. She said there had been no unreasonable delay. She further noted that Birbal had provided no evidence to support his claim of adverse reports.
The prosecutor said that even taking the reports into account, the judge had the authority to warn the jury to ignore anything they may have seen and read in the media regarding this case.
On Tuesday, Justice Jones dismissed the application on the grounds that there had been no unreasonable delay in the case and there was no reason to believe that he could not get a fair trial, notwithstanding the publicity the case had attracted.
‘I was scared’
In yesterday’s commencement of trial, prosecutor Darell Taylor began questioning the virtual complainant of his tenure at the high school and the first time the alleged assault occurred.
The 24-year-old, who admitted that he liked Art and had gotten good grades in Birbal’s class located at the back of the school campus, said the first incident occurred in the seventh grade in Birbal’s classroom where the windows were never open.
“Standing outside the class, were you able to see inside?” the prosecutor asked.
“No” the alleged victim answered.
“Were you ever alone with him in his classroom?” the prosecutor then asked.
The shaken-complainant said he was not alone until a classmate of his had finished an assigmnet before he had and left. He claimed it was then that Birbal called him over to the teachers desk.
“I get up and came to him. I stand up just like this” he said, giving a demonstration for the jury through use of the witness box.
The complainant said Birbal came around the desk and before he knew it, “he was holding my face, asking me about my teeth.”
“I didn’t really know what to say” the 24-year-old said, before explaining to the jury that his teeth were a part of the reason he was often teased and bullied while in high school. “I was excited when he told me he was going to do something about it,” the jury heard.
The complainant said Birbal left the classroom to go to his car and returned with a bag in hand and produced a camera before instructiing him to sit on the table and beganing snapping the camera. It was at this point, the man claimed, that Birbal “came up to me between my legs and started to unbutton me.”
The 24-year-old said he resisted his teacher’s actions but it was futile, as the instructor continued unbuttoning him. “I was out of my mind, I didn’t what was going on” the man said, while holding his head.
He said by the time all of his clothes was off, “I was scared and I didn’t know what to do.”
There was silence for a minute before the complainant continued his evidence, refusing the offer by Justice Roy Jones to take a break and collect himself.
“He put his hand down on my penis and was playing up with it, putting his mouth on it” the jury heard from the key witness. “I couldn’t do nothing, ok? I was scared” he told the court.
The man again refused the offer to collect himself and claimed that he was bent over the desk, held by the neck and had fingers inserted into his anus before Birbal put his penis inside him and violated him. Following the encounter, the complainant said he quickly put on his clothes and was let out of the locked classroom by the accused.
He made his way to the boy’s restroom where he pulled down his pants and wiped away a wet substance.
“I started crying and I was in a lot of pain. I was scared and I didn’t know what to do.”
The alleged victim said that when walking through the block corridor, Birbal quickly approached him and stuffed money into his shirt pocket when he threatened to tell of what took place.
The 24-year-old claimed that between that incident, up to the day he graduated, Birbal had constantly sought him out and abused him sexually, either while dropping him to the dentist office, on the way to church, and at Birbal’s house at Maurice Moore Close.
The man recalled a particular incident on a track road at Deadman’s Reef where he was pushed back in the passengers seat and molested by his teacher.
The complainant said he never reported the abuse because his mother was abusive and his father wasn’t around and he didn’t want to ruin his life, though it still ended up happening. He said that because of this, he could barely be around men and didn’t know how to communicate with them.
In cross-examination, Birbal’s attorney, Romona Farquharson-Seymour asked the complainant if it was true that students of all ages frequented Birbal’s class because there were computers in the room.
The 24-year-old said “yes.”
The attorney further suggested that to the complainant that he was among students who left their bags in the art class and left for the outside. “No,” the man said.
When ask if he gave and signed a statement to police on January 15, 2009, the complainant said he did but did not look over the statement because he “couldn’t read it”.
Mrs Farquharson-Seymour then suggested to the witness that he knew of Birbal’s two son, which the man said he did and acknowledged they also attended Eight Mile Rock High School.
However, he denied knowing that every break, they went to their father’s classroom.
“When you had your breaks, you always found your way to his class, even afterschool” the attorney suggested.
“I don’t know how to use the computer because I can not read” the witness replied.
“You told the officer you couldn’t read?” the attorney asked. When the complainant said yes, the attorney suggested he was lying.
“I’m not lying,” the jury heard from the appearant-fustrated complainant.
The attorney began to make another suggestion but was interrupted by the complainant who swore at him.
Justice Jones, however, scolded the complainant about his choice of language and told him to listen for the question.
Mrs Farquharson-Seymour suggested to the complainant that at the eighth grade, “you had the option not to take up art if you wanted”, based on the alleged sexual encounters he experienced.
The complainant disagreed and said that he was never given an option to choose what he wanted.
“I’m suggesting that your lying, you had the option like every student in this country and you chose art” the attorney said. “No,” the complainant said.
The attorney further suggested that in his statement to police, he never told police what he was attempting to tell the court, not even in the first trial in January 2011.
The complainant disagreed with her suggestion.
“Are you ok?” Farquharson-Seymour asked, telling the complainant to calm down. The man replied “Do I look ok?”
“It’s not there because it didn’t happen. That’s why you didn’t tell the female police officer,” the attorney suggested. The complainant, again, disagreed with her suggestion.
“You got to be f joking” he said, while shaking his head.
Justice Jones again chastised the witness about his choice of languag.
Mrs Farquharson-Seymour suggested to the witness that the art classroom was located in the vacinity where janitors and security and students had direct view and access to. The complainant disagreed.
The attorney further suggested to the 24-year-old that he would come to Birbal’s class, put his head on the desk and cry before her client would come to him and ask him what was wrong.
“Don’t f come with that man! I don’t talk to that man! That’s lies!” the complainant said.
“I suggest you would’ve asked Mr Birbal if he could help you get braces because, as your story is, your dad wasn’t around and your mother wasn’t checking” the attorney said.
When asked if he would either agree or disagree to her suggestion, he said “the only thing I wanna do is kill you”.
“Why don’t you bring real evidence?” the man asked, adding “I can’t take this, I never asked for anything.”
The attorney further suggested to the complainant that Birbal and other instructors reffered him to guidance counselors about a groin problem he complained of. The complainant denied this.
“You claimed you were being touched at home,” the attorney suggested.
“Who gone do that besides him?” the witness answered.
“It was discovered that you had gonorrhea,” the attorney suggested. The complainant said he didn’t know what that was. “Why y’all doing this?” he asked the attorney, who then questioned him about his complaint to the EMRH principal in January 2009 of Birbal’s sexual assaults that may have given him HIV.
“Three weeks later, you went back and said you were lying and that a female student gave you HIV, an 11th grader,” the attorney suggested.
“I never had sex in my life until I meet my baby mother,” he said.
The attorney suggested that his timid, shy behaviour previously was all an act and that the court was now seeing his real side.
“I have to be like this! Y’all ain’t protecting us! After I than do this case, y’all put me in a s* hole” the complainant said.
The judge adjourned court briefly after the complainant asked the attorney if she was stupid.
Following the break, the complainant denied calling Birbal and telling him that he was being pressured to lie on him.
“When you went to see the principal a second time, you said it was a lie,” the attorney suggested.
“Yes I did, and I have a reason for it,” the complainant said.
“From quite early on in high school, you latched onto Mr Birbal,” the attorney suggested, adding that he constantly told Birbal he didn’t have anyone to support him.
The complainant laughed at the suggestion and asked “you really believe that now?”
“You’ve been at Sandilands?” the attorney asked.
“Yes, y’all send me there,” the witness said.
When Mrs Farquharson suggested that Birbal never sexually assaulted him, the complainant made open-handed gestures to the attorney who said she was not fazed by the threat but suggested he was showing his true colours.
“F what you say,” the complainant said.
“I wish you had a child and wish it was him. Then you would not be saying that s*,” he said.
The attorney again suggested that his behaviour of timidness earleir was all an act and the witness laughed at her and said “you f crazy” before explaining that he had to be tough for his children “so no one could run over them”.
“Have you been diagnosed with a personality disorder?” the attorney asked, but the question went unanswered.
“When you approached Mr Birbal in October 2009, he told you to stop coming to him and to get on with your life,” the attorney suggested.
“Batelco doesn’t have these records?! Y’all supposed to get it,” the witness answered.
“He (Birbal) got firm with you and that’s when all this anger and these accusations came out” the attorney suggested.
The virtual complainant, fustrated at this point, only shook his head when Justice Jones said he would adjourn court until the following day.
“I don’t want to come back here no more,” he said.
“I ain’t coming back, I finish ya know?!” the jury heard before court was adjourned.