Re Oliver, inquest into death of Ojo Moyo

• Jurisdiction: Trinidad & Tobago
• Judge: Singh, J.
• Judgment Date: 22 April 2009
• Neutral Citation: TT 2009 HC 76
• Docket Number: INQ 10 of 2008
• Court: High Court (Trinidad and Tobago)
• Date: 22 April 2009

High Court

Singh, J.

INQ 10 of 2008

Oliver, inquest into death of Ojo Moyo, Re:

Appearances:

Police Corporal Samuel appeared to assist the Coroner.

Ms. Geeta Maraj appeared for Home Construction Limited (HCL).

Ms. Natasha Dean appeared for the Water and Sewerage Authority (WASA).

Mr. Ashook Balroop appeared for the Environmental Management Authority (EMA).

Criminal law - Death of trespasser — Cause and circumstances of death — Deceased trespassing on HCL's property — Deceased drowning in unsecured pond on property — Finding of gross negligence amounting to criminal omission on part of HCL — Finding that corporation can be charged with manslaughter — Coroner directing Commissioner of Police to institute proceedings against HCL for manslaughter.

PREFACE

1 On the 28th January 2009 an inquest was formerly opened into the death of Ojo Moyo Oliver. He died from asphyxia associated with drowning on the 15April 2007 at a pond located on the HCL Quarry premises Morne Coco Road, Petit Valley.

2 These are the findings of that inquest. They are divided into five parts.

3 Part 1 contains an introduction and sets out the extent of a coroner's jurisdiction in relation to such matters. This part also describes the inquest proceedings.

4 Part 2 deals with the law as it relates to the findings of this inquest.

5 Part 3 contains a summary of my findings as Coroner in relation to Ojo Moyo Oliver's death.

6 Part 4 contains my observations about the need in our jurisdiction for safety regulations governing landowners with artificial bodies on water on their premises.

7 Recommendations have been made in this regard in an attempt to avoid future deaths from occurring by drowning in unsecured artificial bodies of water.

8 Part 5 contains my concluding remarks in this inquest and a formal conclusion of same.

PART 1

INTRODUCTION

1. THE PRELIMINARY INVESTIGATION AND THE INQUEST

9 I conducted a preliminary investigation into this matter as per section 10(2) of the Coroners Act Chap 6:04 (hereinafter referred to as “the Act”). I did this by perusing all the material relating to this matter which was forwarded to the Coroner's office. I then decided to conduct an inquest in relation to this matter and same commenced on the 28th January 2009.

10 During the course of this inquest evidence was taken from a number of witnesses and exhibits have been tendered into evidence as well. Additionally, the court made a site visit in this matter and this was done after being invited onto the HCL Quarry premises by HCL employees.

11 It is against this background that the following facts have emerged.

12 Sometime around 6:30PM on Sunday the 15th April 2007 the deceased 20 year old Ojo Moyo Oliver along with his friends Kern Thompson and Leo Hamilton trespassed onto the HCL Quarry premises in Morne Coco Road Petit Valley. They made their way to the pond area and were bathing in same when Ojo Moyo Oliver got into some difficulty and drowned. After the HCL staff was alerted to this fact, a search was made to recover the body of Ojo Moyo Oliver but this proved unsuccessful due to the lighting conditions at the time. Ojo Moyo Oliver's body was recovered on Monday 16th April 2007 when it was observed to be bareback, and clad only in red boxers. The body itself bore no marks of violence. The body was lifeless and its face was covered entirely in mud. Ojo Moyo Oliver was pronounced dead by the District Medical Officer and his body was taken to the Port of Spain Mortuary where, on Tuesday 17th April 2007 he was identified by his mother Ida Oliver. An autopsy was then performed under Dr. Jankey's supervision. The cause of death was found to be asphyxia associated with drowning. The body was later disposed of by burial under Spiritual Baptist Rites on Friday 20th April 2007 at the Mucurapo Cemetary Port of Spain.

13 This incident clearly demonstrates that the manner in which artificial bodies of water are secured is something which must be strictly controlled and scrutinized. Citizens are conferred with the right to the enjoyment of their property. This right is tempered by the fact that trespassers must be treated with ordinary humanity and if a trespasser is killed because an artificial body of water is not properly secured, the landowner of such premises will be held accountable for this grave omission.

14 Tragic incidents such as this are traumatic for the deceased person's family as well as the landowners involved but at the end of the day, the deceased person's family members are entitled to a thorough and impartial examination of the circumstances of the death to determine whether there is evidence of the commission of a criminal offence. In fact the community needs to be satisfied as to whether or not the landowner took such steps as common sense or common humanity would dictate to exclude or warn or otherwise within reasonable practicable limits, so as to reduce or avert danger -if it is to maintain its trust and confidence in our legal system. And so, if the death was avoidable, the public is entitled to expect that those responsible will be held accountable and that changes will be made to reduce the likelihood of similar deaths occurring in future.

15 It is also in the interests of the landowners involved that these maters be scrupulously and independently investigated and publicly reported on so that there can be no suggestion of a “cover up.”

16 The Act recognises and responds to this need for public scrutiny and accountability by requiring deaths in custody for instance, to be brought to the attention of the Coroner (Section 4 (3) states that “The Keeper of any prison within which a prisoner dies shall forthwith give notice of the death to the Coroner and the District Medical Officer within whose respective districts the prison is situated”.) and by mandating that an inquest be held into all such deaths. (Section 11 states that “A Coroner, where there is in his district the body of any person who died in any prison or as to whose death an inquest is prescribed, shall hold an inquest as to the cause and circumstances of the death, whether the District Medical Officer does or does not make a report thereon”.)

JURISDICTION

17 1. The scope of the Coroner's inquest and findings A Coroner has jurisdiction to inquire into the cause and the circumstances of a reportable death (Section 10(1) states that “A Coroner having received the report of the District Medical Officer as to the cause of death of any person, shall carry out a preliminary investigation as to the cause and circumstances of the death”.). I understand this to mean that if it is possible, a Coroner is required to find:

• • whether a death in fact happened;

• • the identity of the deceased;

• • when, where and how the death occurred; and

• • what caused the person to die.

18 Ojo Moyo Oliver's death was reportable because it was unnatural in that it occurred in an unnatural manner. (Section 2 defines an unnatural death as including “every case of death of any person (a) which occurs in a sudden, violent, or unnatural manner”. Additionally, section 4(1) states that “Every person who becomes aware of an unnatural death shall forthwith give notice thereof to the District Medical Officer of the district in which the body is or to a constable, and the constable shall forthwith cause information to be given to the Medical Officer”.)

19 As required by the relevant legislation, I have made findings in relation to the particulars of this death. This is out in Part Three of these findings.

20 I have also thought it best to make some comments on existing legislation because they relate to public safety, the administration of justice and ways to prevent deaths from happening in similar circumstances in the future. These recommendations can be found in Part Four of these findings.

21 An inquest is not a trial between opposing parties but an inquiry into the death. In R v. South London Coroner; ex parte Thompson (1982) 126 S.J. 625 it was described in this way:

“It is an inquisitorial process, a process of investigation quite unlike a criminal trial where the prosecutor accuses and the accused defends… The function of an inquest is to seek out and record as many of the facts concerning the death as the public interest requires”.

22 The focus of an inquest is on discovering what happened, but in the process of doing this, the Act authorises a Coroner to issue a warrant for the apprehension of any person once the Coroner is of the opinion that sufficient grounds are disclosed for making a charge on indictment against that person (Section 28 states that “If, during the course or at the close of any inquest, the Coroner is of opinion that sufficient grounds are disclosed for making a charge on indictment against any person, he may issue his warrant for the apprehension of the person and taking him before a Magistrate, and may bind over any witness who has been examined by or before him in a recognisance with or without surety to appear and give evidence before the Magistrate”.).

23 2. The standard of proof Before arriving at such a finding, the Coroner must be satisfied on the necessary facts to the required standard of proof. For a finding of unlawful killing the standard is the same level set in a criminal court, that is to say “beyond reasonable doubt” as was made clear in R v. Wolverhampton Coroner ex parte McCurbin [1990] 1 W.L.R. 719.

24 Accordingly, the findings I have made in this case have been made after being satisfied of the necessary facts beyond reasonable doubt.

25 It is also clear that a Coroner is obliged to comply with the rules of natural justice and to act judicially. This is set out at page 994 in Harmsworth v. State Coroner [1989] VR 989. This means that no findings adverse to the interest of any party may be made without that party first being given an...