Watson Murder Case - Discussion

[Under-Exposed]

For what it is worth I have shown those sentencing remarks to a number of colleagues of mine who do Criminal Law and all of them have said that they thought the custodial sentence was harsh.

 

[boulderjohn]

For what it is worth I have shown those sentencing remarks to a number of colleagues of mine who do Criminal Law and all of them have said that they thought the custodial sentence was harsh.

I'm not surprised. I really feel mystified, to be honest. From what is described in the sentencing remarks, it does seem harsh. From what we have all seen from following this for years, it seems lenient.

 

[bowlofpetunias]

For what it is worth I have shown those sentencing remarks to a number of colleagues of mine who do Criminal Law and all of them have said that they thought the custodial sentence was harsh.

That is very interesting indeed!

I also find the sentencing remarks to be very interesting and revealing. Considering the Judge has access to more information than any of us, the requirement to be impartial and not let emotions get in the way of decision making I find myself more and more inclined to defend the decision rather than condemn it.

It is interesting that the judge accepted that Gab's mask was and reg were "dislodged". I trust he came to that conclusion with some justification. The comment about Gabe's dive history not being in current prone areas.... that is something I don't remember anyone else mentioning but in fairness to Gabe it seems he was in a situation he was not terribly experienced in either! As mentioned before obviously not all "evidence" was released (nor should it have been)

Thanks Liv for posting that information so we can look at facts rather than wild speculation. I like a number of others here have tried to withhold judgment until more information was available.

Underexposed I would really appreciate it if you wouldn't mind answering another question........ In your opinion; after reading the "remarks" how do you think this case will impact (if at all) future decisions regarding Duty of Care issues with regards to "Dive Buddies"?

 

[boulderjohn]

Underexposed I would really appreciate it if you wouldn't mind answering another question........ In your opinion; after reading the "remarks" how do you think this case will impact (if at all) future decisions regarding Duty of Care issues with regards to "Dive Buddies"?

Excellent question. I posted an earlier response to this same question that was somewhat dismissive, but I have less confidence in my answer having read these remarks.

 

[Dadvocate]

It is a good question Bowlofpetunias.

The dive at the Yongala was a significant challenge for a diver of the level of experience and competence of the deceased. On the other hand, you were a diver with substantial experience, although it is pointed out that much of your experience was not in open waters where significant currents could be encountered. You had a number of qualifications, including a rescue diver certificate which you had obtained some four and a half years before these events.

Okay, someone please remind me of what happened to the dive op than organized the trip. There seems to be some blame levied there in between the lines.

This statement about difficulty level is important, especially if the judge acknowledges that Gabe had little experience in “significant currents”. I assume then Gabe’s statements about there being currents have been corroborated or at least accepted. Some others had also commented on the dive site being easy. This seems to be disputed based on the judge’s opinion (which I also assume came about as a result of expert input).

If a rescue diver “fails” another diver who happens to be a buddy, does that mean that the liability becomes more profound if the buddy has less experience? Are we now saying that the long-accepted concept about one being responsible for oneself while diving is not that absolute anymore? If this was a challenging dive for Tina, wouldn’t the first line of self defense start with her knowing her own limitations?

I also find it amazing that it is acknowledged that Gabe’s mask was knocked off but that he was able to put it back into place. The operative assumption by the judge is that a diver would naturally go back toward the diver that did this and try to rescue them once the mask is replaced. That is a huge assumption in my opinion. There could have been a significant survival override that kicked in after his mask was knocked off that told Gabe to stay the heck away from her. Granted, his training should have told him how to deal with that. In the long run, training doesn't always come through in the end, and now there are consequences for that it seems.

This is very, very interesting. Can this judgment be used in his defense in the US if it comes to that?

Cheers!

 

[Under-Exposed]

Excellent question. I posted an earlier response to this same question that was somewhat dismissive, but I have less confidence in my answer having read these remarks.

I really don't know the answer to that question. It is the difficulty with this question that underlies my doubt about whether this was in fact unlawful homicide at all.

One needs to keep carefully in mind the distinction between what I will call obligation and what I will call duty. By the former, I mean moral obligation, in a good samaritan sense. By the latter, I mean a legal obligation.

In general, the law (at least in Australia, and perhaps subject to a qualification in the case of medical practitioners in certain circumstances, and perhaps for professional rescuers whilst engaged in their profession) does not impose any obligation to rescue another (ie the embark upon a rescue...once commenced, there may be some obligation to continue, and subject to recent statutory modifications some obligation to exercise due care in doing so). If I see someone drowning at the beach, and I do not make any effort to rescue them, even if it is within my capability to do so and could be done without danger to myself, I am not liable for standing there and doing nothing. Morally, I may be obliged to, but legally, I am not duty-bound to do so.

The question then arises, was there something about the relationship between Gabe and his wife (by which I mean, their relationship as buddies) that changes that position. I have some doubts that that relationship changes anything at all. Again, while there may be a moral obligation to assist, I doubt there is a legal obligation created. One of the reasons for that is that in practical terms, for many of us, we have little or no choice in who is our buddy, at least in some circumstances (I am think about going out on a boat on your own and being paired up with someone unknown by the DM, for example). And we certainly do not have the capacity to, for example, assess their capability beforehand. Importantly, for example, we have no ability to assess their ability to self-rescue, no capacity to assess the likelihood of uncontrolled panic, no knowledge of their level of fitness and other health-related aspects of diving. Those factors I think militate against the imposition of legal duty upon a buddy. On the other hand, of course, one of the things that the law of negligence cares deeply about is vulnerability, and one could argue that one's buddy is vulnerable in the sense that they will be looking to you to act in the event that they get into trouble. That, after all, is one of the primary purposes of diving in buddies I would have thought. I am not suggesting they have an expectation that you will be able to act competently so as to effect rescue, but at least act appropriately in trying to assist and if unable to do so to raise the alarm. However, in my view the law in Australia would likely come down on the side of obligation but no duty.

Assuming there is a duty, however, what then? It is then necessary to determine what the appropriate response in a given set of circumstances is. And one of the greatest difficulties here is that while the law tries to assess the reasonableness of your response objectively, one of the factors that will be relevant to that will be factors subjective to the putative rescuer. We are trained, even as rescue divers, not to attempt rescue unless it is reasonably safe to do so. That will involve a very personal judgment in each case, and depend upon subjective feelings of comfort and self-assessment of ability. This will change from diver to diver, and from time to time and place to place for any particular diver. The point I am trying to make is that it is very difficult to be able to say a priori what reasonable conduct requires of us, and that is usually a good indication that there is no legal duty to act. So while we might like to think the law would impose a duty on our buddy to try and help us, we might at the same time be reluctant to allow the law to look through the retrospectoscope and critically analyse our conduct as a rescuer.

I think it would be a sad day when the law imposed a legal obligation to rescue with consequences on the rescuer for failing to do so, or failing to do so adequately. There would be nothing more disasterous than a rescuer feeling pressured by legal obligation to attempt or continue an attempt at rescue, and thereby falling victim themselves (that is not to say that some would not feel such pressure from a moral obligation, but I would rather die trying to rescue someone because I thought it was the right thing to do, than because I was afraid that the victim might sue me, or worried that my liability insurance may not cover me etc).

Rest assured that this case has sufficiently troubled me to prompt me to do some more research on rescue, which I hope to turn into an article for our local sports law journal. So any insights or comments (polite ones of course) would be welcomed.

 

[Under-Exposed]

FROM THE BRISBANE TIMES

The father of Tina Watson believes Queensland's Director of Public Prosecutions (DPP) did not pursue a murder charge against the dead woman's husband to avoid the costly process of a trial by jury.

Tommy Thomas, who met with Queensland Attorney-General Cameron Dick today, described the actions of the DPP as "totally deplorable", accusing the department of striking a deal with Watson, as part of a "business, budget decision".

A Coronial inquest found reasonable grounds to charge Gabe Watson, 32, with murder, but Crown prosecutors on Friday accepted his guilty plea to the lesser charge of manslaughter after he argued he had panicked and failed to assist Tina when she became distressed in the water.

"I personally think ...that it was really more about money than anything else," Mr Thomas told reporters.

"Just take a look at the fact that we've got 65-plus witnesses all over the world...

"When you look at the expense of bringing each and everyone of those witnesses back to Australia to testify in a criminal trial and the expense of the criminal trial itself, which would have proved to be a very lengthy ordeal I think that we're easily looking at $1 million or $2 million or more," he said.

"I think it was more of a good, business, budget decision."

Queensland's Director of Public Prosecutions this week defended a decision to drop a murder charge against Watson, insisting Crown lawyers had little chance of proving he deliberately drowned his bride of 11 days.

Mr Thomas said he had taken that on face value, but was now convinced a deal, "or discussions of a deal", had been made.

Attorney-General Cameron Dick has responded to calls to appeal Watson's lenient sentance, following a meeting with Mr Thomas and his daughter Alanda this morning, and is in the process of the reviewing the case.

Meanwhile, authorities in Watson's home state of Alabama, in the US, have revealed plans to charge Watson with murder upon his release from a Queensland jail next year.

Chief of the Alabama attorney-general's violent crime office, Don Valeska, told The Birmingham News the department believed Watson may have plotted to murder Tina before leaving the US for the couple's Australian honeymoon.

The Thomas' are due to return to the United States tomorrow.

 

[thanksforallthefish]

I was of the opinion that once you were buddied with someone you had a legal responsibility to help them to the best of your ability and level of training providing that it did not put you or anyone else in danger.

This comes from the understanding that if you have first aid training and begin to render first aid to a casualty then you are obliged to continue to help to the limit of your training, until such time that someone with greater training is available to help, on the proviso that it does not put you or anyone else in danger.

If you do not render any help then you are under no obligation.

 

[livinoz]

FROM THE BRISBANE TIMES

The father of Tina Watson believes Queensland's Director of Public Prosecutions (DPP) did not pursue a murder charge against the dead woman's husband to avoid the costly process of a trial by jury.

Tommy Thomas, who met with Queensland Attorney-General Cameron Dick today, described the actions of the DPP as "totally deplorable", accusing the department of striking a deal with Watson, as part of a "business, budget decision".

A Coronial inquest found reasonable grounds to charge Gabe Watson, 32, with murder, but Crown prosecutors on Friday accepted his guilty plea to the lesser charge of manslaughter after he argued he had panicked and failed to assist Tina when she became distressed in the water.

"I personally think ...that it was really more about money than anything else," Mr Thomas told reporters.

"Just take a look at the fact that we've got 65-plus witnesses all over the world...

"When you look at the expense of bringing each and everyone of those witnesses back to Australia to testify in a criminal trial and the expense of the criminal trial itself, which would have proved to be a very lengthy ordeal I think that we're easily looking at $1 million or $2 million or more," he said.

"I think it was more of a good, business, budget decision."

Queensland's Director of Public Prosecutions this week defended a decision to drop a murder charge against Watson, insisting Crown lawyers had little chance of proving he deliberately drowned his bride of 11 days.

Mr Thomas said he had taken that on face value, but was now convinced a deal, "or discussions of a deal", had been made.

Attorney-General Cameron Dick has responded to calls to appeal Watson's lenient sentance, following a meeting with Mr Thomas and his daughter Alanda this morning, and is in the process of the reviewing the case.

Meanwhile, authorities in Watson's home state of Alabama, in the US, have revealed plans to charge Watson with murder upon his release from a Queensland jail next year.

Chief of the Alabama attorney-general's violent crime office, Don Valeska, told The Birmingham News the department believed Watson may have plotted to murder Tina before leaving the US for the couple's Australian honeymoon.

The Thomas' are due to return to the United States tomorrow.

To be honest, in my opinion I don't think the family will be satisfied by anything other than a life sentence. I think the Judge's sentencing remarks were rather telling when he said:

"I have read the victim impact statements. They demonstrate that she and her family were very close and that she was very close to her friend. They demonstrate how deeply her loss is felt by all of them. Her family, obviously and naturally, take a very serious view of your conduct and that, not surprisingly, appears in their statements. However, there is much in those statements from which I do not gain assistance in determining your sentence." (emphasis added)

 

[thanksforallthefish]

To be honest, in my opinion I don't think they family will be satisfied by anything other than a life sentence. I think the Judge's sentencing remarks were rather telling when he said:

"I have read the victim impact statements. They demonstrate that she and her family were very close and that she was very close to her friend. They demonstrate how deeply her loss is felt by all of them. Her family, obviously and naturally, take a very serious view of your conduct and that, not surprisingly, appears in their statements. However, there is much in those statements from
which I do not gain assistance in determining your sentence." (emphasis added)

..

I agree ... only a life sentence would appease them.

I have thought from the start that the family did not particularly like Gabe and there was a great deal of animosity between them. (probably even before the death of their daughter)