The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

A MISTRIAL yesterday was the result of a “misrepresentation” to a judge that all of the jurors sworn to fairly hear and try Andre Birbal’s unnatural sex case were on this year’s official jury list.

In yesterday’s proceedings when the evidence of the complainant and two remaining witnesses were expected to be heard, Justice Roy Jones told the jury that “two of your numbers are not persons who are presently on the jury list for 2013.”

“And this arose because of a misrepresentation made to this court that all persons on the panel of jurors were on the 2013 list of jurors.”

Pointing out that his decision was in the interest of justice, the judge discharged the entire panel and started the trial anew on another date to be determined.

When The Tribune spoke with Chief Supreme Court Bailiff, Jack Davis, for comment as to how this occurred, he said: “I don’t know about that.”

“I don’t know why they weren’t on the list, I know nothing about that. I really can’t speak to it...I don’t know what to tell you... I really don’t know.”

Attempts to reach Donna Newton, Registrar of the Supreme Court, were unsuccessful up to press time.

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, because of his age, could not have given consent at the time of the alleged offences.

Days prior to his retrial, 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.

Last week, 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.

The jury had heard evidence from the 24-year-old complainant who claimed that between the first incident and 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 passenger’s 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.

However, when cross-examined, the complainant while saying he had a reason, admitted that he initially lied to his former high school principal in 2009 that Birbal had sexually assaulted and possibly gave him HIV.

He did not deny being admitted to Sandilands, however, he never answered whether or not he was diagnosed with a personality disorder.

Yesterday’s discharging of the jury occurred minutes after noon, where discussions between counsel and the judge had taken place in the absence of the jury.

When the jury returned, Justice Jones told them of the issue that came to his attention, the “misrepresentation made to this court that all persons on the panel of jurors were on the 2013 list of jurors.”

“Ordinarily, if I had known, they would have been subject to challenge. It is not clear from what has occurred whether the persons were placed there for some improper purpose, okay?” the judge said.

“But the rule is, randomness is fairness. In other words, when members of the jury are selected in a random manner, the rule is it tends to be fair, if persons are placed on the jury list for any other reason, it reduces that principle.”

“The question is whether or not, if I were to remove two of those jurors, you would be reduced to seven, which brings me below the number needed to conduct a case. In any event, if the person I don’t know were placed on for an improper purpose, it could render some contamination or taint for the rest of the jurors.”

“Accordingly in the interest of justice, I have taken the decision to discharge the entire panel and start this trial anew on another date,” the judge ruled before discharging the jury with a “thank you very much” for their services, and a request for the two persons in question to remain behind.