Instructor sentenced after diver's death

[clownfishsydney]

Well, once again people are quoting information from the media about the Gabe and Tina Watson case believing that the media reports are correct. As pointed out, I was the defence's main scuba diving expert witness. No, I did not end up testifying at the Alabama murder trial, mainly because the work I did with the legal team and the other (Australian) expert witness meant we were able to pull apart the prosecution's witnesses evidence. My role went way past just intending to appear, I worked up questions to ask the prosecution witnesses and more.

I will just comment on a couple of things from the above few posts.

1. Gabe was not an experienced diver by any consideration. The fatal dive was, as far as I can ascertain, the first one he had ever done in the ocean without an instructor present. It was certainly Tina's first dive in the ocean and only her second outside the open water course.
2. Gabe never said Tina knocked his mask off. He said she knocked it askew. The police when re-enacting did it as though the mask came right off and fell to the bottom and that Gabe had to recover etc. Never happened. Police said it was impossible to do this, so Gabe was lying. Clearing a mask is totally different to finding, putting it back on and clearing (and also recovering his reg which by the way, he also never claimed to have done). By the way, my wife and I easily repeated what the police claimed Gabe said happened and which they said was impossible to do.
3. The "guide" was not prosecuted at all.
4. Gabe Watson was never charged with murder in Australia.
   
5. The guilty plea in Australia was to a charge that no longer exists and only ever existed in Queensland. In any other state of Australia he could not have been prosecuted based on the evidence and reasons.
6. Adiron's "quote" is total rubbish. I have no idea where he got it from, but it is not correct in the most part.

Please read my web site to get the real information, not the rubbish that the police in Australia told the coroner's inquest and media nor the even worse stuff the prosecution in Alabama claimed happened.

Once again, I am happy to answer any questions about what really happened based on the actual evidence.

 

[Celt]

Well, once again people are quoting information from the media about the Gabe and Tina Watson case believing that the media reports are correct. As pointed out, I was the defence's main scuba diving expert witness. No, I did not end up testifying at the Alabama murder trial, mainly because the work I did with the legal team and the other (Australian) expert witness meant we were able to pull apart the prosecution's witnesses evidence. My role went way past just intending to appear, I worked up questions to ask the prosecution witnesses and more.

I will just comment on a couple of things from the above few posts.

1. Gabe was not an experienced diver by any consideration. The fatal dive was, as far as I can ascertain, the first one he had ever done in the ocean without an instructor present. It was certainly Tina's first dive in the ocean and only her second outside the open water course.
2. Gabe never said Tina knocked his mask off. He said she knocked it askew. The police when re-enacting did it as though the mask came right off and fell to the bottom and that Gabe had to recover etc. Never happened. Police said it was impossible to do this, so Gabe was lying. Clearing a mask is totally different to finding, putting it back on and clearing (and also recovering his reg which by the way, he also never claimed to have done). By the way, my wife and I easily repeated what the police claimed Gabe said happened and which they said was impossible to do.
3. The "guide" was not prosecuted at all.
4. Gabe Watson was never charged with murder in Australia.
   
5. The guilty plea in Australia was to a charge that no longer exists and only ever existed in Queensland. In any other state of Australia he could not have been prosecuted based on the evidence and reasons.
6. Adiron's "quote" is total rubbish. I have no idea where he got it from, but it is not correct in the most part.

Please read my web site to get the real information, not the rubbish that the police in Australia told the coroner's inquest and media nor the even worse stuff the prosecution in Alabama claimed happened.

Once again, I am happy to answer any questions about what really happened based on the actual evidence.

Did he plead guilty or not?

 

[Dan]

Did he plead guilty or not?

Guilty of?

Again, you may want to read:
Michael McFadyen's Scuba Diving Web Site

Quote from the report:
....
“At his second appearance in court on 5 June 2009, Gabe pleaded not guilty to murder but guilty to manslaughter. The basis of that plea was criminal negligence under s 290 of the Criminal Code, which provides:
"When a person undertakes to do any act the omission to do which is or may be dangerous to human life or health, it is the person's duty to do that act, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty."....

Comments made in the Court of Appeal judgement:

• "It must be emphasized that the respondent did not plead guilty to any intentional inflicting of harm" and "he was not to be sentenced on the basis of any malevolent intent" - Chief Justice de Jersey - point 47

• "The task in this appeal is even harder because no case to which we have been referred is anything like it. It is not an exaggeration to describe the circumstances as unique." - Justice Chesterman - point 80

• "I think likely that the respondent left his wife because when confronted with a novel, difficult and dangerous situation he lacked the qualities of character, and the skills, to deal with it" - Justice Chesterman - point 98

• "There are no truly comparable cases to help in the selection of an appropriate punishment." - Justice Chesterman - point 99

• "the charge of murder was given up as having no substance" - Justice Chesterman - point 106iii

• "the respondent [was] wrongly accused in the public eye of murder" - Justice Chesterman - point 106iv”...

 

[Celt]

Guilty of?

Again, you may want to read:
Michael McFadyen's Scuba Diving Web Site

Quote from the report:
....
“At his second appearance in court on 5 June 2009, Gabe pleaded not guilty to murder but guilty to manslaughter. The basis of that plea was criminal negligence under s 290 of the Criminal Code, which provides:
"When a person undertakes to do any act the omission to do which is or may be dangerous to human life or health, it is the person's duty to do that act, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty."....

Comments made in the Court of Appeal judgement:

• "It must be emphasized that the respondent did not plead guilty to any intentional inflicting of harm" and "he was not to be sentenced on the basis of any malevolent intent" - Chief Justice de Jersey - point 47

• "The task in this appeal is even harder because no case to which we have been referred is anything like it. It is not an exaggeration to describe the circumstances as unique." - Justice Chesterman - point 80

• "I think likely that the respondent left his wife because when confronted with a novel, difficult and dangerous situation he lacked the qualities of character, and the skills, to deal with it" - Justice Chesterman - point 98

• "There are no truly comparable cases to help in the selection of an appropriate punishment." - Justice Chesterman - point 99

• "the charge of murder was given up as having no substance" - Justice Chesterman - point 106iii

• "the respondent [was] wrongly accused in the public eye of murder" - Justice Chesterman - point 106iv”...

The problem with a guilty plea to manalaughter is you end up with a conviction that you can’t argue against afterwords. Only two people know what happened and unfortunately one died and the other entered a guilt plea albeit to a much lesser offense. Only a declaration of a miscarriage of justice can now find him innocent

 

[Dan]

Gabe Watson was charged with murder and pleaded guilty of manslaughter that wasn’t an accident, the guide tried to help and got a conviction for his efforts

That was an accident.

There was no guide either, which was against the Mike Ball’s policy for those rookies to be diving in Yongala without a guide.

From: Michael McFadyen's Scuba Diving Web Site

...“Mike Ball Expeditions was prosecuted under Section 28(3) Workplace Health and Safety Act 1995 for breaching their own code of conduct. This breach related to the fact that the code said for dives that are difficult for a person's level of experience, Mike Ball Expeditions was supposed make sure that the diver was accompanied on 'orientation dives' by qualified [presumably divemasters or better] divers. No orientation dive was conducted for either Tina or Gabe and they were not supervised in the water by a qualified diver [at least of divemaster level].

In the Cairns Industrial Magistrates Court, Mike Ball Expeditions pleaded guilty on 9 May 2007 before Magistrate Suzette Coates and was fined $6,500. It seems to me that this was a pretty good result for the company, as the fine was considerably less than the fares of $7,718 paid by Tina and Gabe. It was also considerably less than fines for workplace accidents where people were only injured.”...

 

[Dan]

The problem with a guilty plea to manalaughter is you end up with a conviction that you can’t argue against afterwords. Only two people know what happened and unfortunately one died and the other entered a guilt plea albeit to a much lesser offense. Only a declaration of a miscarriage of justice can now find him innocent

Accident happens. Each person’s response to the accident varies. In Gabe’s case, he responded poorly as a rookie diver diving beyond his level of competence / experience without a guide.

He accepted the consequences for being guilty of fleeing the scene instead of chasing after her & rendering help, but not for murdering her.

 

[Celt]

That was an accident.

There was no guide either, which was against the Mike Ball’s policy for those rookies to be diving in Yongala without a guide.

From: Michael McFadyen's Scuba Diving Web Site

...“Mike Ball Expeditions was prosecuted under Section 28(3) Workplace Health and Safety Act 1995 for breaching their own code of conduct. This breach related to the fact that the code said for dives that are difficult for a person's level of experience, Mike Ball Expeditions was supposed make sure that the diver was accompanied on 'orientation dives' by qualified [presumably divemasters or better] divers. No orientation dive was conducted for either Tina or Gabe and they were not supervised in the water by a qualified diver [at least of divemaster level].

In the Cairns Industrial Magistrates Court, Mike Ball Expeditions pleaded guilty on 9 May 2007 before Magistrate Suzette Coates and was fined $6,500. It seems to me that this was a pretty good result for the company, as the fine was considerably less than the fares of $7,718 paid by Tina and Gabe. It was also considerably less than fines for workplace accidents where people were only injured.”...

Sorry the guide I was referring to was the 27 year old in the original post, If it’s the case where two adults in their mid thirties totally disregarded their own safety on the assumption that a 27 year old would save them should things go wrong simply because they paid him, then the wrong message is going out to tourist divers.

 

[Dan]

Sorry the guide I was referring to was the 27 year old in the original post, If it’s the case where two adults in their mid thirties totally disregarded their own safety on the assumption that a 27 year old would save them should things go wrong simply because they paid him, then the wrong message is going out to tourist divers.

Ya, it’s a bit confusing when you mentioned 2 separate accidents in 1 sentence.

As discussed in the earlier posts, the rookie divers were not totally disregarded their own safety. They consulted the guide / dive shop for diving in freezing water at high altitude, which totally new to them. The shop & the guide provided them with only 5mm wetsuits & 10L tanks with lead equivalent to diving with 7mm wetsuit + ice vest for diving in 5C water to 30m depth at 800m altitude. Being newbies with this kind of diving, they accepted the “professional” dive instructor recommendation.

Now, back to the “guide”. Once the threesome going diving together, they are, to me, becoming like dive buddies. Abandoning your dive buddy at 36m, which you knew previous that the fully inflated BCD would still be capable of lifting the victim up to the surface. How difficult is it for the “guide” to chase him down, inflate the victim BCD & let him ascend? If the victim were OOA, how difficult is it to remove the dive weight off the victim?

This case, to me, would be similar to Gabe Watson’s case. The guide is guilty of manslaughter.

As I mentioned previously too, if I see a diver freak out & zoom to the surface like Polaris missile, I’d led him / her be. I’d rather see the diver floating with possible AGE / DCS than drown.

 

[Celt]

Ya, it’s a bit confusing when you mentioned 2 separate accidents in 1 sentence.

As discussed in the earlier posts, the rookie divers were not totally disregarded their own safety. They consulted the guide / dive shop for diving in freezing water at high altitude, which totally new to them. The shop & the guide provided them with only 5mm wetsuits & 10L tanks with lead equivalent to diving with 7mm wetsuit + ice vest for diving in 5C water to 30m depth at 800m altitude. Being newbies with this kind of diving, they accepted the “professional” dive instructor recommendation.

Now, back to the “guide”. Once the threesome going diving together, they are, to me, becoming like dive buddies. Abandoning your dive buddy at 36m, which you knew previous that the fully inflated BCD would still be capable of lifting the victim up to the surface. How difficult is it for the “guide” to chase him down, inflate the victim BCD & let him ascend? If the victim were OOA, how difficult is it to remove the dive weight off the victim?

This case, to me, would be similar to Gabe Watson’s case. The guide is guilty of manslaughter.

As I mentioned previously too, if I see a diver freak out & zoom to the surface like Polaris missile, I’d led him / her be. I’d rather see the diver floating with possible AGE / DCS than drown.

They were adults not children, they put on to much weight, they did not dress correctly for the dive, they did not carry enough air and when they got in trouble they panicked and headed for the surface, none of that is someone else’s fault.

 

[Dan]

They were adults not children, they put on to much weight, they did not dress correctly for the dive, they did not carry enough air and when they got in trouble they panicked and headed for the surface, none of that is someone else’s fault.

Let me put it this way. If your buddy were sinking, flapping his arms & needing help, would you just watch him, just swim up to the surface & let him drown?