APNU parliamentarian and attorney Dr Dexter Todd yesterday described the murder charges against three crew members of the ill-fated MV Barima as unacceptable and premature and said their lawyers were considering legal challenges to both the prosecution and the Commission of Inquiry (COI).
Todd, who represents Captain Kevin Price and Goods Superintendent Delon Granderson, made the statements during a virtual press conference. He was joined by attorney Eden Corbin, who is also appearing in the matter.
Price, Granderson and Chief Mate Rondell Dwayne Roberts have been jointly charged with murder over the deaths of passengers when the ferry sunk on its journey from Georgetown to Port Kaituma on July 18.
“The charge of murder in relation to the three crew members is not only unacceptable, it is very premature,” Todd said.
He also rejected statements attributed to Attorney General Anil Nandlall SC that two of the accused had been drunk aboard the vessel.
The statement was made by Nandlall during his Issues in the News Facebook live video.
“We hold that as an irresponsible statement,” Todd said. “We hold that as bearing no evidential truth.”
According to the particulars of the charge, Price, Granderson and Roberts allegedly murdered Kevin Wilson, Claymont King, Oxwell John, Roma Mendonca, Nathaniel Matabheek, Nathalia Matabheek, Rachel Wells Matabheek, Ezekiel Matabheek, Cheriannys Valenzuela, Orin Clarke, Edith Gordon, Omar Harris, Paul Seapersaud, Andriel Bautisa, Youlanda Marks, Gwenette Marks, Shenira Smith, Cleiveliz Fraser, Vivianna Saddurddin, Argelys Kelly Williams, Devon Mars, Robina Hernandez, Tendhi Standford, Adans Williams, Ranaldo Poon, Aarave Daniels, Marcia Beharry, Leonard Persaud, Mariam Bernard, Ravindra Singh, Shivana LaCruz Ramsindo, Christiani Rodrigues, Annalisa Murray, Owen Arthur, Loveisa Bovell, Joshua Arthur, Ranaldo Pickering, Bibi Mohamed, Sylvester Peters, Shawn John, Akelah Rodrigues, Vishawn Ramjattan, Nelly Duesberry, Samara Manoharlall, Sherlon Joseph, Timar Manoharlall, Dellon Gaskin, Percy France, Alicia Atkinson, Dwyane Forbes, Orin Europe, Orwin Europe, Justin Mury, Odessa Mury, Reshana David, Kishana Sam, Tiona Sam, Elizebeth Bowin, Argany Williams, Omarions Europe, Jacob Jerome, Mark Abrams, Ashleena Bovel, Kyle Thomas, Carlton Bennett, Navessa Bovell, Martin Ishmael and Jason Headley, along with other persons unknown.
The charge alleges that the murders occurred on July 18 at a point 9.3 nautical miles offshore, bearing 040 degrees from Devonshire Castle on the Essequibo Coast, in the Essequibo Magisterial District.
Todd argued that the sinking was a marine casualty which should first have been investigated under the Guyana Shipping Act. He said that legislation provides for a preliminary inquiry and a formal investigation into the loss of a ship or lives aboard a vessel.
“Our position, therefore, is clear that the treatment of this matter falls squarely under the guidelines of the Guyana Shipping Act and all other subsidiary legislation,” he said.
Todd contended that the procedure set out in the shipping legislation should have been followed before the authorities resorted to criminal charges under common law.
He also questioned the holding of a criminal prosecution and the COI at the same time, saying the accused could be asked to testify about matters directly connected to the case against them.
“What will stand down? Will the COI stand down or will the criminal court stand down? We can’t have it on both sides,” he said.
Todd noted that testimony given to the commission could potentially be used in the criminal proceedings. He also cited the constitutional right of the accused not to incriminate themselves.
He said the lawyers had not yet decided whether their clients would participate in the inquiry because they had not seen its terms of reference.
“There are a number of considerations that we will have to make before there is a definitive decision as to whether they can appear before the COI or not,” he said.
Among the questions to be examined, Todd said, was whether the COI’s terms of reference complied with the Shipping Act and whether the commission intended to examine the conduct of the crew members.
He also questioned whether President Irfaan Ali could appoint the inquiry instead of the responsible minister. Todd said the legal team would examine whether the composition and appointment of the commission met the requirements of the Shipping Act.
The attorney declined to disclose the instructions received from his clients about the vessel’s condition or the events leading to the sinking.
“You will not get out of us the exact words or us paraphrasing the instructions of our client, because this matter is before a court,” he told a reporter.
Todd nevertheless said Roberts, the chief mate, had not been steering the vessel when the incident occurred. He said the person who had been steering had not been found.
“At the time, the mate is not the person steering the vessel,” he said, while adding that Roberts had a supervisory role.
Todd also argued that none of the three accused was responsible for certifying the vessel as seaworthy. That responsibility, he said, rested with the Maritime Administration Department (MARAD) and the subject minister.
“None of the parties charged are to determine seaworthiness of that vessel,” he said.
Todd further said that Roberts was aboard the vessel to complete the practical component of a four-month course and was not yet certified for the duties assigned to him. He said the regulations required a shift system for a voyage of approximately 27 hours and said Price was not on duty when the vessel capsized.
The attorney said those issues—including who had control of the vessel, whether that person was qualified and who was responsible for assigning the crew—should be examined during a marine inquiry before any decision on criminal liability.
“You don’t even get down to the issue of criminal liability yet without dealing with those specific issues which the Act contemplated,” he maintained.
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