HGP Nightly News – The decision to charge three men with murder over the MV Barima disaster was premature because the required maritime investigation had not first established how the vessel capsized, defence attorney Dexter Todd has argued.
Todd said the tragedy constituted a marine casualty and should be investigated under the Guyana Shipping Act and related maritime legislation before criminal liability is determined.
“This capsizing of the MV Barima fits under a marine casualty,” he said during a press conference.
Captain Kevin Price, known as “KP,” Chief Mate Rondell Dwayne Roberts and Transport and Harbours Department Goods Superintendent Delon Granderson are facing 72 counts of murder.
They have been remanded to prison and are presumed innocent unless the prosecution proves the charges beyond a reasonable doubt.
Todd said legislation specifically governing maritime casualties should take priority over a move directly to common-law murder charges.
“Our legal architecture does not permit, without an inquiry being held, a jump into any other piece of legislation,” he contended.
That represents the defence’s interpretation of Guyanese law and has not yet been accepted by a court.
Director of Public Prosecutions Shalimar Ali-Hack SC has taken the opposite position.
Her office said the murder charges followed an independent review of the police investigation file, applicable legislation, public-policy considerations and judicial decisions from the United Kingdom, Commonwealth jurisdictions and the European Court of Human Rights.
The DPP maintains that the prosecution can proceed alongside the five-member international Commission of Inquiry sworn in on Thursday.
She has pointed to the 2018 Berbice piracy case and prosecutions arising from the 2020 elections as examples of criminal proceedings running concurrently with public investigative processes.
Todd described that position as legally untenable in the context of deaths at sea.
He said the Commission of Inquiry and criminal case would inevitably examine many of the same facts, including the ferry’s loading, passenger records, command structure and crew conduct.
“We have been given instructions to challenge that position in the court,” Todd announced.
The defence has not yet decided whether the three accused will testify before the commission.
Todd said that decision would depend on whether the criminal case was paused, whether the commission intended to investigate his clients’ conduct and what protections would govern their evidence.
“What will stand down? Will the COI stand down or will the criminal court stand down?” he asked. “We can’t have it on both sides.”
The inquiry’s mandate includes the actions, qualifications and training of the captain and crew. It will also examine the vessel’s maintenance, seaworthiness, loading, cargo distribution, safety equipment and regulatory oversight.
Todd questioned whether testimony given under oath before the commission could later be used against his clients in the murder case.
The accused have a constitutional right against self-incrimination and may invoke it if asked to answer questions that could prejudice their defence, he said.
Todd also raised the sub judice principle, arguing that no tribunal or commission should interfere with matters already under consideration by a criminal court.
The exact relationship between that principle and a Commission of Inquiry will be among the issues the proposed court challenge must resolve.
A commission does not determine criminal guilt, but its hearings and findings could overlap significantly with the prosecution’s case.
Todd said his team was awaiting the commission’s formal legal instruments and procedural rules before deciding whether Price, Roberts and Granderson would participate.
