The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

A CONVICTED paedophile told the Court of Appeal yesterday that the presiding judge in his trial failed to be clear in his warning to the jury about the capability of corroborated evidence in the case.

Justices Anita Allen, Christopher Blackman and Stanley John acknowledged Andre Birbal’s point and asked the Crown to explain its position on the matter.

Director of Public Prosecutions Vinette Graham-Allen conceded that Justice Hartman Longley should have been more explicit in his direction to the jury considering the evidences and the circumstances of the case.

Birbal, who is defending himself, is a former arts and computer design instructor convicted in January 2011 of having sex with two of his male students in Eight Mile Rock.

He was sentenced to 35 years in prison by Justice Longley.

Since then, Birbal has appeared before the appellate court on more than five occasions.

On March 12 this year, during the start of his substantive appeal, Birbal fired court-appointed attorney Craig Butler because, he said, Mr Butler did not argue the case according to the points he was asked to.

At Birbal’s request, Mr Butler asked to be removed from the case.

When he was provided with Jiaram Mangra on May 21, Birbal expressed his dissatisfaction, asking for Wayne Munroe.

He nonetheless accepted Mr Mangra’s services and the case was adjourned to June 7.

However, Mr Mangra also withdrew because he too could not agree with his client on how to proceed.

The judges then told Birbal to be prepared to represent himself on July 26 as there would be no more delays.

Yesterday, Mr Birbal began his quest to be acquitted, starting the proceedings with the ground of appeal given to him by Mr Mangra.

He argued that although Justice Longley warned the jury about how to consider the evidence, he should have been more explicit.

Despite similarities in the alleged circumstances – the incidents involving both alleged victims are said to have happened in an apartment – the matters were not only separate, but allegedly took place at different times and locations, he argued. 

Birbal said the judge’s failure to be clear about this, left the jury with the impression that the testimony of one boy validated the allegations involving the other.

When Birbal read from the transcripts, the justices initially saw no fault in the judge’s directions.

However, when Birbal emphasised that the incidents were separate, they reconsidered and asked Mrs Graham-Allen, accompanied by Raquel Whymms, if the direction by the judge was correct.

The DDP admitted that it was an incorrect direction and an error on the part of the presiding judge.

Justice John asked: “What is the effect of that error in this case?”

Justice Allen said it was significant because “that’s the only evidence, the evidence of the boys. 

“If it is fatal error, this court should allow the appeal and order a retrial,” the DPP submitted.

Justice Blackman asked her when the offence was committed and she replied that it occurred between 2002 and 2007.

Justice John asked the DPP if a retrial would be fair to the appellant, acknowledging that, “Society wants to see justice done but on the other hand, fairness is the cornerstone of justice.”

In light of court’s concern regarding the issue, and admitting that there was a misdirection on the judge’s part,  Mrs Graham-Allen asked the court to consider ordering a retrial of the matter, this time to take place in New Providence, instead of Grand Bahama.

Justice Allen said the court would reserve its decision on the matter and adjourned until a date is announced concerning their decision.