The Tribune

FORMER teacher and convicted paedophile Andre Birbal appeared in the Court of Appeal yesterday morning in an effort to have the January 2011 ruling of having unnatural sex with two juvenile boys reversed.

Appearing before Justices Christopher Blackman, Stanley John, and President Anita Allen, Birbal argued on his own behalf that the ruling should be overturned or his sentence lightened based on potential collusion and “innocent corruption of evidence”. He claimed that his defence was not properly explained to the jury, and asked that they note the publicity that surrounded his trial.

He told the court that the two victims, both attending the same school in Eight Mile Rock, potentially had the opportunity to talk to each other prior to testifying in court. He also said that Justice Hartman Longley, who presided over the trial, did not adequately explain that to the jury.

“There’s also evidence they attended the same classes,” Birbal told the court, explaining that this “risk of collaboration” ought to have been explained in court prior to the jury’s deliberations.

He claimed the victims even spoke to a third party who could have potentially exchanged information relating to the case.

“Someone may have innocently told a piece of evidence without malicious intent,” Birbal said. “There was no direction given on the possibility of innocent contamination... It was not addressed at all by the judge in his summaries.”

The Justices agreed risk of collaboration should have been adequately explained to the jury.

Birbal also argued that Justice Longley “narrowed the defence” to only the denial of the charges.

“It was much more than that,” he said. “I provided a reason why they were making false claims against me and he didn’t remind the jury of that.”

Lastly, Birbal argued the publicity surrounding his trial did not allow for the jury to make a fair decision, despite an adjournment of his trial to accommodate that fact.

“He (Justice Longley) warned the jury not to pay attention to the press, but that was not enough because the publicity was so intense. (The trial) should have been put off longer,” he said.

Responding, the Justices told Birbal that the jury was competent enough to heed the warnings of Justice Longley and did just that. They also explained publicity would have followed the trial regardless of where or when it took place.

Speaking of his sentence, Birbal stated the penalty is “disproportionate” to the offences.

He said it was too “severe” and was comparable to a sentence for murder, nor, he said, did the judge take into consideration that he had no prior convictions. He asked the Justices to quash his conviction and consider a retrial.

Justice Blackman reminded Birbal that Justice Longley did take note “upfront” that he had no prior convictions and Justice Allen asked Birbal what if they don’t agree to quash his convictions, and instead upheld them.

Birbal said he would ask instead for his sentence to be reduced to something that’s “appropriate for similar offences”.

Justice Allen asked what is appropriate and Birbal said anywhere between six to 10 years. He then questioned why his sentences did not run concurrently rather than him having to serve 15 years and then another 20 years.

The Justices took note of the latter point and Justice Allen also questioned the difference between the sentences.

Speaking on behalf of the Crown, Director of Public Prosecutions Vinette Graham-Allen conceded that Justice Longley should have adequately explained the risk of collaboration to the jury, but maintained the judge adequately put Birbal’s defence to the jury, She maintained that the conviction and sentences should stand.