The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

ANDRE Birbal faces up to 20 years in prison after being unanimously convicted yesterday of two of the six unnatural sexual intercourse charges he faced concerning his former student.

The 51-year-old former arts and computer design instructor at Eight Mile Rock High School had no visible reaction to the forewoman’s announcement through their verdict that they believed he molested a male student in his class.

However, according to his lawyer Romona Farquharson-Seymour, he is “shaken up” by the outcome.

“He was charged with six and was acquitted of four, but he was found guilty of two of those charges.

“Whereby he has expressed his gratitude in terms of that, he’s still obviously still shaken by it that he would’ve been convicted on those two counts,” the court-appointed lawyer said.

When asked if Birbal intended to appeal, she said, “I’ve not had a chance to canvas that issue with him as yet as I will make efforts to go to the prison and see him and then go from there.”

“But I think right now our primary concern is to deal with sentencing. He would’ve been remanded for some period of time, I think since 2009 or 2010, in custody. And because these are sexual offence matters, we have to look at the law and be in a good position to address the judge in terms of what sentence ought to be passed.”

When asked to comment on the possible sentence her client could face, she said: “With the changes that have come in place now, certainly there will be a custodial sentence.”

“That’s why I’m saying I certainly have to look at the report that the probation officer from Social Services will prepare, and then look at the time he’s already served and obviously plead with the judge to give him as little time as he possibly can.”

Prosecutors Darell Taylor and Aaron Johnson offered no comment on the trial or its outcome. However, Taylor did note that on the charges on which Birbal was convicted, he faces up to a maximum of 20 years imprisonment.

Birbal was initially accused of six counts of unnatural sexual intercourse with the minor between January 2002 and June 2007.

However, four of the six counts were dismissed following legal submissions and Justice Roy Jones directed the jury to acquit Birbal of those four counts on the day of the deliberation.

The jury had heard evidence from the complainant who recollected the alleged sexual abuse from Birbal from the seventh grade up to the day he was graduated.

However, Birbal’s lawyer, Romona Farquharson-Seymour, suggested to the complainant that Birbal had never sexually assaulted him and that the accusations only came about when Birbal had told him to move on with his life. The complainant disagreed.

On Monday, the jury heard closing arguments from Birbal’s defence lawyer and the prosecution.

Mrs Farquharson-Seymour submitted to the jury that the complainant’s evidence was “wholly unreliable” as he gave the police a version of what he said happened and another version to the court.

Referring to the alleged assault in the classroom, the lawyer noted the complainant’s testimony in court: “He said I left the class, but I forgot I hadn’t completed my work, so I went back”.

“Is that something you’re likely to forget?” she asked, questioning why this wasn’t in the police statement.

“He said Birbal placed his penis up his hip and I suggested that he didn’t mention a penis going in the hip to the police, but a finger,” the lawyer added.

“The height of their (prosecution’s) case are the words of this man. Do you believe him considering all of the inconsistencies we’ve seen?” the lawyer asked the jury.

She further questioned why the Crown had produced no evidence of a search concerning the complainant’s claim that Birbal had taken him to Deadman’s Reef in bushes to molest him.

The lawyer noted that in Birbal’s situation as an instructor, it’s difficult to defend himself against an allegation having to come in contact with children on a daily basis.

The lawyer asked the jury to note the contradiction between the complainant and his mother regarding who was contacted by the dental office regarding appointments for the boy’s teeth. The mother claimed she received these calls while the complainant said Birbal was called.

Mrs Farquharson-Seymour said the Crown did not produce any witnesses from this dentist’s office to assist the court concerning these.

“If this man is sexually abusing you, why tell him when is your dental appointments?” the lawyer asked.

She further asked the jury if they believed that someone who was in a position to leave art, remains in the subject through high school if they are being molested.

“Do you believe that? I don’t, it’s all lies,” the lawyer said before asking the jury to recall the complainant’s own admission that he was diagnosed with a personality disorder.

She also asked the jury if they found the mother’s claim of Birbal telling her he molested her son, but didn’t give him HIV.

“She didn’t even report this to police,” the lawyer submitted, adding that her claim was not true because “Birbal confronted her and told her ‘I didn’t do anything to your son and I certainly didn’t give him HIV.”

The lawyer asked the jury to look at the entirety of the case and said that if they weren’t convinced that Birbal did the alleged crimes, they should acquit him.

In response, prosecutor Darell Taylor reminded the jury what the case was about.

“This case is not about Mr Birbal not giving him HIV,” she submitted to the jury.

“That evidence that you heard, that’s a smoking mirror. This case is about unnatural sexual intercourse with an 11-year-old young boy in grade seven,” the prosecutor added.

The prosecutor told the jury that the defence “never put to the complainant whether he had HIV”.

The prosecutor recalled an old saying her grandmother used often, “if you ain’t been there, you don’t have nothing to answer to.”

“The question should not arise if you were not there,” she added.

She also said the defendant went out of his way not to directly answer certain questions during his record of interview with the investigating officer in the case.

The prosecutor noted the question as to why the complainant remained in art and referred to scripture where Jesus rebuked his disciples for not allowing children to approach him.

“Children are vulnerable, they are trusting, they are open,” the prosecutor submitted.

She noted that much has been made about the number of charges being reduced to two. However, she informed the jury that “if there wasn’t any evidence that these crimes happened, the other two charges wouldn’t even be here”.

The prosecutor further noted that much “was made about the complainant’s demeanour”.

“If you believe his story that he was molested for such a long period of time, what then would you expect the reaction to be when he has been traumatised for so long?” she asked.

She asked the jury if they believed his demeanour to be sincere and believed his story, they should find Birbal guilty of the charges.

Justice Jones began his summation of the evidence yesterday at 10am before excusing the jury at 11:40am to deliberate on their verdicts.

The seven woman-two man jury returned at 2:45pm with unanimous guilty on the two remaining counts that were not dismissed.

The judge told Birbal he would be sentenced on May 9 and a probation report was ordered to be done.