The Tribune

TEACHER Andre Birbal has won his appeal against his conviction and sentence for sex offences against a boy at his Grand Bahama school.

But in a ruling released yesterday, the Court of Appeal ordered Birbal to now stand trial for a third time to allow a new jury to decide his guilt or innocence.

Birbal was first convicted in 2011 on eight counts of unlawful sexual intercourse with two boys and was jailed for a total of 35 years. He appealed the conviction and at a retrial in 2014 - when he faced charges against just one of the boys - he was again found guilty and jailed for 28 years.

In 2015, he began the appeal process again and in their ruling yesterday Court of Appeal justices Dame Anita Allen, Stella Crane-Scott and Jon Isaacs upheld his case on the grounds that at his last trial the judge hearing the case should have directed the jury to Birbal’s previous good character and absence of any criminal convictions.

In her judgment yesterday, Justice Crane-Scott noted: “The appellant elected not to give evidence in his defence at the trial and relied on the denials contained in his pre-trial statements to police. This was therefore a case which involved... the classic ‘clash of credibility’ between the prosecution and the defendant in the sense that the truthfulness and honesty of the witnesses on either side was directly in issue and where the need for a good character direction was acute.

“... The judge correctly told the jury that the central issue in the case was (the boy’s) credibility and that the question for them was whether they accepted him as a witness of truth. The judge further reminded the jury that it was the burden of the prosecution to prove the case so that they felt sure of the appellant’s guilt and that the accused had no obligation to prove anything.

“Even though the appellant elected not to testify and relied on his pre-trial statements to police, had the jury been told that the appellant had no previous convictions and that he must be regarded on that account as being more readily to be believed than a person who has been previously convicted, due to the nature of the case, it is impossible to say whether the jury would inevitably have reached the same verdict.”

In considering whether Birbal should now be freed or face a third trial for the same offences, the Court of Appeal judgment said: “Having determined that this appeal should be allowed and the appellant’s convictions quashed, we are required... to balance the relevant factors and the competing interests and to exercise judgment in determining... whether the interests of justice require a new trial to be ordered.

“In this jurisdiction, the offences for which the appellant was charged and convicted are undoubtedly very serious offences. The abhorrence with which Bahamians view the act of sexual intercourse between an adult male and another male who is a minor is reflected in the... Sexual Offences and Domestic Violence Act, which stipulates that the maximum punishment for such an offence is life imprisonment.

“An added feature of the evidence in this particular case was the fact that the appellant taught at the child’s school and held a position of trust and authority over the young persons in his charge. The Bahamian public, accordingly have an interest in being assured that the justice system works and that those persons who.... are guilty of such crimes do not escape justice merely because of some technicality or other error which occurred during the trial.

“As to the strength of the case... While not in any way discounting the evidence of the complainant, it must be said that the Crown’s case against the appellant was not an overwhelmingly strong one. Nonetheless, as the trial judge found, it was sufficient to be placed before the jury. It is obvious from his testimony... that even in 2014 (some 11 or 12 years later) the complainant still gave a vivid and emotional account about what the appellant allegedly did to him so many years before.

“The complainant’s interest in seeking justice and in telling his story to a jury once again on a re-trial cannot be ignored in arriving at our decision.

“ . . . I am mindful of the fact that if a new trial were ordered the appellant will be condemned to undergo in due course the ordeal of a third trial. However, given the nature of this particular case... it is in the appellant’s interest to have the clash of credibility between himself and the complainant, finally determined, as the law demands, by a jury of his peers.”

The decision was supported by Dame Anita and Justice Isaacs.

The case will now go to the Supreme Court for retrial.