Director of Public Prosecutions Vinette Graham-Allen said that Andre Birbal’s appeal against his convictions for molesting two male students should be dismissed.
This position is at odds with her submission on July 26 that the court should allow the appeal and order a new trial.
Graham-Allen told the Court of Appeal that there was overwhelming evidence to support the convictions, despite conceding that the trial judge misdirected the jury on the issue of corroboration.
Birbal, 50, was convicted of having unnatural sexual intercourse with his art students at the Eight Mile Rock High School during a period that spanned from 2002 to 2007. He was sentenced to 35 years in prison.
The chief prosecutor got the opportunity to make further submissions when the appellate tribunal recalled the matter so Birbal could argue all of his grounds of appeal.
Last week, the court decided it did not need to hear any more arguments after Birbal pointed out the flaws in the judge’s direction on corroboration.
In his submissions yesterday, Birbal said that the judge erred when he failed to warn the jury of the risk of collusion between the complainants, who attended the same school and lived in the same settlement.
One of the complainants admitted to talking to the other accuser about the matter when he was cross- examined during the trial.
Birbal also said there was a risk that their accounts were influenced by community activist Troy Garvey, who had contact with the complainants and their families. Garvey advised both parties in lodging a civil suit against the Ministry of Education.
Birbal claimed that the judge “undermined” his defense by saying he had only denied the accusations. Birbal said he provided a possible motivation for the complaints when he testified about an argument that he had with one of the men.
Birbal said that his sentence was unduly severe and amounted to a life sentence, given his age. He said the judge was wrong not to make the 15- and 20-year sentences run concurrently.
He asked the court to quash the convictions and not order a new trial. If the court upholds the convictions, Birbal said his sentence should be reduced to a range of six to 10 years.
In response, Graham-Allen agreed that the judge misdirected the jury on corroboration by saying one boy’s evidence could support the others, although the acts happened at different times and in different places.
However, she submitted that the judge’s omission “inured to the benefit of the appellant.”
Justice Stanley John said, “Madam DPP, I fail to see how that could inure to the benefit of the appellant. It was open to the jury to take what the judge said about corroboration and convict him. The law is he must go into those details.”
Graham-Allen said the judge addressed Birbal’s defense “fairly and adequately” during his summation.
In justifying the sentence, Graham-Allen said it was appropriate and not unduly severe as Birbal had alleged.
However, she acknowledged that the judge gave no reason for imposing a sentence of 15 years on one count and 20 years on the other.
The DPP asked the Bench to dismiss the appeal because the jury would have convicted Birbal even if the judge had not made any errors.
Court President Anita Allen and Justices of Appeal Christopher Blackman and Stanley John have adjourned to consider their decision.
By: Artesia Davis
Source: The Nassau Guardian
