We agree with the view expressed by the learned Coroner in her analysis of the conclusion of the forensic pathologist in the ongoing inquiry into the unfortunate death of Shemar Clarke as reported on Page 2 of this newspaper for August 25, 2016.
We are, of course, fully aware that the matter is still sub judice and we do not purport to offer any opinion on the evidence adduced so far or to presume the ultimate conclusion of Her Honour the Coroner. However, it should be a cautionary tale to all expert witnesses that while their opinions may weigh heavily in the court’s determination of the matter, the law on the matter remains within the exclusive preserve of the presiding judicial officer.
So that in this case, for instance, while the facts surrounding the cause of death were peculiarly a matter for the forensic pathologist who examined the deceased. However, the legal classification of how that death eventuated is left to the determiner of the admissible facts and applicable law, the judicial officer.
Hence for the pathologist to state, as has occurred in this matter, that the deceased’s death was occasioned by suicide oversteps the limited jurisdiction of the forensic pathologist who is not competent to make such a determination of mixed law and fact in that manner.
Whether the death occurred through suicide, culpable negligence or homicide or as happened in one case, through a disfiguring injury at work, is clearly a matter for the coroner alone based on the evidence before her.
And while suicide or felo de se is no longer a criminal offence in Barbados, having been replaced under the Offences Against the Person Act Cap. 141 with the offences of aiding suicide and being that a participant in a suicide pact where another person dies, Her Honour was right to assert the mere presence of a noose and death from asphyxiation do not lead inexorably to the conclusion that the death was a suicide. As she put it, “To be suicide you must have intended to kill yourself. So suicide requires intention…”
Indeed, according to the report, she went further and outlined some circumstances in which there could be the presence of both of these elements and no legal case of homicide. First, where the noose is placed around the head of a deep sleeper before he or she realises it; second, where a person puts a noose around their own neck during some sexual game and third, where the person puts a noose around his or her neck but has a reasonable expectation of intervention or to be saved before death occurs.
In each of these situations, she rightly concluded, there would have been no intention on the part of the perpetrator to kill himself or to die and hence the absence of any criminal intent, were suicide still criminal.
Death is the fact; the manner of its causation is a matter of evidence. In this latter determination, the circumstances surrounding the state of mind of the deceased are of critical importance.