The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

ANDRE Birbal is expected to learn his fate today when the jury in his unnatural sex case is expected to deliberate on a verdict concerning the allegations that he molested a male student.

The jury heard closing arguments yesterday from Birbal’s defence lawyer and the prosecution in the case involving the former art instructor.

They previously 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 never sexually assaulted him and the accusations only came about when Birbal had told him to move on with his life. The complainant disagreed.

Birbal, a 48-year-old former arts and computer design instructor at Eight Mile Rock High School, 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.

Justice Roy Jones said Birbal still had a case to answer on two of the charges.

Birbal, in his defence, remained silent and called a physician who testified that Birbal had tested negative for HIV upon his admission to Her Majesty’s Prison.

However, in cross-examination, the physician admitted they could not say whether or not he molested his student.

Yesterday, 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 prosecuted 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.

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.

Referencing the alleged assault in the classroom, the lawyer noted his testimony in court, “he said I left the class, but I forgot I hadn’t complete 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 place 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) 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 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.

Justice Roy Jones is expected to begin his summation of the evidence at 10am today.