|DPP concedes ‘fatal error’ in Birbal case|
Guardian Senior Reporter
Published: Jul 27, 2012
Director of Public Prosecutions Vinette Graham-Allen yesterday conceded that a judge made a “fatal” error in directing the jury in the case of convicted pedophile Andre Birbal.
In arguments before the Court of Appeal, Graham-Allen initially defended the judge’s direction on the issue of corroboration. However, she resiled from that position almost immediately and asked the Court to allow Birbal’s appeal and order a retrial.
The former teacher at the Eight Mile Rock High School was convicted in 2011 of having unnatural sexual intercourse with two male students.
The sex acts allegedly took place from 2002 to 2006 with one student and from 2002 to 2007 with the other.
Birbal, who represented himself, argued that the trial judge, Senior Justice Hartman Longley, did not correctly direct the jury on corroboration. Birbal said the judge did not specify which evidence was capable of corroboration.
He said that the jurors should have been told that they needed to look for similarities in those acts to amount to corroboration.
However, Birbal said that all the circumstances of the sex acts alleged by each complainant were different as they did not occur at the same time or place.
Court President Anita Allen asked Graham-Allen to respond to Birbal’s submission. First she said, “I do not believe the judge is wrong.”
The Court asked Graham-Allen for her view on whether the judge should have said that one accuser’s evidence could corroborate that of the other.
She replied, “These are separate incidences. It is not a correct direction. The direction could have been more explicit.”
Justice of Appeal Stanley John asked, “Would you therefore agree that it was open to the jury to use the evidence of one boy to corroborate?”
Graham-Allen said, “It was open to the jury. The judge fell into error in the way he directed the jury.”
John pressed, “What is the effect of that error in directions?”
The DPP replied, “It is fatal.” She then asked the court to allow the appeal and order a new trial.
Justice of Appeal Christopher Blackman asked where the new trial should be held.
The DPP replied, “It would be prudent, even though it would incur some expense, that the trial be held in Nassau.”
The Court has reserved its decision.