Under the English Common Law, which is the basis of the legal system in Australia, the U.S. and many other places, "legal precedent" is created when an appellate court publishes an opinion after reviewing a decision by a lower court. When there is such an opinion, it is binding on lower courts within the jurisdiction. It may have persuasive value to other courts, but it is not binding. In addition, an opinion is only as good as its analysis of how existing law relates to the facts of a particular case. Thus, other courts may distinguish even a published opinion by pointing to differences in the facts. For example, IF the Watson case resulted in a published opinion saying that Watson was guilty of manslaughter, another court might distinguish it away by noting that Watson and Tina were married while divers in a case before it were not. Additionally, other appellate courts may criticize the reasoning if they find it unsound or not really supported by the facts.
I do not think that the Watson matter sets any sort of precedent that any divers will have to worry about.
Since Australia severed legal and constitutional ties with the English Privy Council the role of English precedent has been diminishing and there has been a move towards statute law. Australian law now depends almost exclusively on Australian precedent, with recourse to the High Court of Australia. The Supreme Courts in each state are bound
strictly to decisions made by the High Court of Australia, even if they believe those decisions are wrong. The only court able to overturn those decisions is the High Court itself, although it is of course reluctant to do that. The lower courts in Australia are also not bound by everything that is said in a judicial decision or by all of the judicial observations of a higher court; rather it is not the
case that binds a lower court, but the
rationes decidendi, according to Justice Michael Kirby, (
Precedent Law, Practice and Trends in Australia, Australian Bar Review, December 2006). I therefore don't believe a legal precedent is solely due to an appellate court publishing an opinion "after reviewing a decision by a lower court"; binding precedents are just that, but persuasive precedents are not. A precedent given by a court to which there is a right of appeal from the court in which the precedent is cited is binding. Therefore a decision by the High Court of Australia is binding on the Supreme Court of each state. But all other decisions are said to be persuasive, for example a decision of the Court of Appeal in Queensland is not binding on the Supreme Court of Victoria. I also noted that Superior court decisions which contribute to the body of precedent are those dealing with a
new set of circumstances that are sufficiently different from past cases such that they warrant a
new reason for a judicial decision; such cases contributing to the common law are of course recorded in recognised law reports. I would argue that this case does meet the criteria, being sufficiently different from preceding cases, and therefore setting a precedent. Whether that is upheld is another matter, as persuasive precedents are not mandatory or binding
until adopted by a higher court.
We have the same system in the USA. We are taught that from day one. "Innocent until proven gulity". It is human nature that some people will draw conclusions before the trial. But, we all hope and pray the jury of peers will follow the law and make their decisions based on instructions given to them by the court. And we know they are hearing or sometimes not hearing things in the day to day courtroom proceedings that the rest of us are not privy to. (or that we heard that should not have been admissible)
However, a trial of peers did not happen in Gabe Watson case. So, many do now scratch their head wondering what was intended by the judges statements. I do not go around thinking that judges are all knowing and infallible people. It is nice to know we now have an appeal process pending, even if it means to exonerate Gabe Watson. Or, at the very least, to clarify, legally, just what the real intent of this sentence truly was/is.
As for the innocent until proven guilty. I thought Gabe Watson agreed he was guilty of manslaugher. I, for one, am not sure what crime Gabe Watson was proven to be guilty of at this point that would warrant a 4 and 1/2 year sentence by this judge. Are you saying he is really innocent and not guilty of anything? So, you should be quite upset by him being in jail.
I found the judges statements to be of concern. (I need to review them again) and at first I was willing to take his judgement as much more knowledgeable than my own. But on better review, statements such as, saving the taxpayers money, sparing the family a trial, not to mention the statements about Gabe's failure to save his wife or letting her drown. Even if not one other person were to be tried in an Australian court for "lack of saving" another diver...that does not justify the judge using that excuse as a reason to sentence this man to prison. IMHO.
So basically we've gone from "he's guilty of murder" to "he's guilty of manslaughter", to we're not sure what crime he's committed and therefore the sentence isn't warranted? That's quite a shift in attitude. In my opinion as he pleaded guilty to manslaughter
of his own volition, and that is the conviction that has been recorded against his name, I'll live with the Court's decision. My other remarks were regarding K_girl's questions as to my own concerns regarding any precedent in this case being used against another diver (see above), and had nothing to do with my view of Watson's guilt or innocence. I still believe the Judge had access to
all the information necessary to sentence after reading his remarks and other information from various sources, and until someone can prove otherwise I'll continue to believe he made an informed decision.
May I add that the Court of Appeal is only looking at this case to ascertain whether the length of his sentence was appropriate, and
not to overturn the decision.
