Watson Murder Case - Discussion

[Under-Exposed]

Not that I want to equivocate, but "yes" and "no." On the one hand, if he is only guilty of failing to rescue or letting his wife drown, I think he is being overly punished and that is a travesty. On the other hand, I also think that in as much as Watson pled guilty to manslaughter to avoid the risk of being found guilty of murder, the judge can't just let Watson go.

I mostly agree.

 

[Under-Exposed]

I do not believe there will be any precedent that should be of concern to the dive community that is not of equal concern to every other corner of society.

Beyond that, I'm going to take a wild guess here. It is wild because I know nothing of Australian appellate procedure. BUT, my guess is that the appellate court will say that the sentence is up to the trial judge.

There will certainly be an element of restraint exercised, particularly as it is a Crown Appeal. But if the Court finds that he placed too much weight on one factor or failed to give sufficient weight to some other factor then they are well within their rights, exercising suitable restraint (ie not changing simply because they would impose a different sentence, but changing it because the trial judge has not considered the matter properly) to impose a different sentence.

I suppose that different sentence could be a change to the head sentence but no change to the suspended period, or leave the head sentence as is and lengthen the time until it becomes suspended. As I understand it it is an appeal solely by the Crown, so I don't think it would be within their remit to shorten either the head sentence or the period after which the sentence is suspended, or indeed to impose some form of non-custodial sentence (or even record "no conviction").

 

[alohagal]

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.




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.

Whoa Nellie, quite a shift in attitude? I never said he was guilty of murder. Do I think he may have been guilty of murder based on what he had to say to police. Yes, it was definitely leaning that way. I, like many others here were waiting for the trial and what evidence would come forth. I never, once, pronounced him guilty of murder. Please do not propose to speak for me.

 

[alohagal]

from LIVINOZ: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.

Yes, I am aware of that. Which is why if this man is guilty only of failing to rescue his lovely, new bride of only a week, I hope his sentence is overturned. Do you see the point here?
This sentence was too harsh for the reasons set forth.

 

[K_girl]

So ItsBruce says that there is no real legal precendent set here other than a prosecutorial mindset that "If I got it once, I could get it again." However, most divers are not going to distinguish between a prosecutorial mindset and a legal precedent when they put themselves at risk to rescue. Isn't that what we are really talking about here?

The other concern I have is opening up a "mindset" in the civil litigation arena. If there is no real expectations of buddy performance established by the legal community, perhaps it should be better defined by the scuba diving certifying agencies. Currently, it is very loosely defined as - you should not leave your buddy and you should not risk harm to yourself. There are cases where these are competing directives. Maybe this should be done anyway since I've heard that because Dive Masters carry insurance they are often targeted for civil suits. I personally know of one such incident.

Means, opportunity, mental capacity and personal safety. These are the elements that should be defined somewhere by someone.

 

[alohagal]

For the record...when this story was being dissected ad nauseum, I looked with a skeptical eye towards the family and how much their grief was taking over their sensibilities and their attitude towards Gabe Watson. I felt that Gabe removing flowers from Tina's grave could easily be explained by the fact that her family was more or less calling him a murderer and calling for him to be found guilty of murder. I think that would make me bitter to be labeled a murderer if I wasn't. And, possibly bitter enough to remove family flowers from a grave.
Certainly no love lost between the two families at that point.

The insurance being changed claim came directly from Tina's father. His pushing for investigations based on conversations from other divers on the boat with Gabe accounted for a lot of the momentum in this case...and it still is. I found all of that problematic.
I have discussed these things and many other specifics on many occassion with K-girl in conversations not on her thread. I like to play devils advocate. So, now I do it again.
I just get irritated when people are told to stop talking and move on and deal with it. That serves no purpose.

And, now, we have the priviledge of lawyers on this thread...who by their own admission find the judges statements problematic and ergo the sentence and "plea" or whatever you would like to call it...just as problematic. I do as well. If we want to follow the letter of the law. It needs to be followed in every sense of the word, whether we like it or not.

Now, if I have a family member who is hurt/killed/maimed and I am personally affected, I may not be so reasonable in the face of what I feel is true, versus what the system finds as true.

OJ Simpson trial left a lot of scales of justice upturned and unbalanced for many who followed that saga. It changed peoples attitudes towards skepticism more than any other trial I can think of since walking this planet. OJ got his day in court. Doesn't mean we had to LIKE the result. But, do we as a civilized society try to improve our system in a lawful manner, you betcha. Each crime, trial, exercise of appeal is there for those checks and balances. It is all we have and we have to abide by it.
Sometimes we don't always like the result.

 

[Under-Exposed]

As one of the lawyers on the thread, I am hopefully going to make my position clear:
1. I am troubled by there being a duty (in terms of legal obligation, punishable by some criminal or civil sanction) upon one diver to rescue their buddy when their buddy gets into trouble. The High Court of Australia has on many occasions said that the very fact that it is difficult to articulate what the duty requires and the circumstances in which it is required itself is a powerful indicator there is in fact no duty.
2. As a result of 1, I would be troubled if a trial had gone ahead and if findings had been made such as those recounted in the sentencing remarks (ie failure to come to Tina's aid), that those findings would result in a verdict of guilt of manslaughter by reason of criminal negligence. MY own view is that those findings ought not result in such a verdict.
3. Having said that, as the man pleaded guilty to the alternate charge of manslaughter, and subject to the exercise of some discretion to reject the plea (not lightly exercised), then he has to be sentenced on the basis that he is guilty of that offence.
4. Nonetheless, the sentence must reflect the gravity of the offence, and for the reasons articulated in 1, in my view the existing sentence is already a harsh one in the context where, as we know from our own experiences, split second decisions need to be made which may not always turn out to be the right ones in hindsight.
5. Despite what i said in 4, I do not think that the sentence was so harsh as to fall outside of the judge's sentencing discretion.
6. I am not so troubled by the judge's comments (other than the reference to there being a failure to act, which I address in 1, but which is a necessary element of the offence of which he pleaded guilty and therefore has to be assumed for the purposes of sentencing). In particular, like it or not, those factors that seem to trouble others such as sparing the community the expense of a trial etc, ARE relevant factors that AS A MATTER OF LAW MUST be taken into account.
7. In mt experience trials of any kind (criminal or civil) are traumatic experiences, which many frequently regret being involved in, and whether or not it is a good or bad experience is something that is rarely capable of prediction beforehand, which is why in my own view, based on my experience, little weight should be given to the desire of family members of victims to proceed to a trial.

 

[livinoz]

Whoa Nellie, quite a shift in attitude? I never said he was guilty of murder. Do I think he may have been guilty of murder based on what he had to say to police. Yes, it was definitely leaning that way. I, like many others here were waiting for the trial and what evidence would come forth. I never, once, pronounced him guilty of murder. Please do not propose to speak for me.

I wasn't "speaking for you" there. If you read my post I said "we've", meaning more than one, so please afford me the same privilege. I was talking generally, as there have been many opinions on here, on two threads, ranging from he's guilty no matter what the evidence, and he should be hung/retried in the US/jailed for much longer than he has been, to he's not guilty of the offence and the sentence is a travesty/wrong/harsh/ sets a precedent/ he's being overly punished for the manslaughter conviction, take your pick.

But if you want specifics, you did say elsewhere in regard to the sentencing remarks: "[This] gives a lot of insight into the decision rendered. I prefer to think the judge knew best under the circumstances." And yet you say above, ".. it makes the Guilty plea of Manslaughter and the judges statements seem that much more off kilter" Is that not quite a shift though? Everyone is allowed to change their mind, but for myself I would prefer to have it reasoned out than what appears to me to be an about-face.

You have also stated: "The prosecution has said, there was not enough evidence to prove murder (which means they probably thought he was guilty, just couldn't prove it)", again a supposition and yet now you are arguing that he is being unjustly punished for manslaughter. I don't get it. You say also," This sentence was too harsh for the reasons set forth," but again, you initially said that the Judge knew best. I would be horrified if the Judge did not have access to all the evidence, and reading his remarks I personally believe that is so; he thoroughly reviewed this case before sentencing. The rest of the legal argument regarding the appropriateness of that I'll leave to the lawyers and barristers because to me that's all this is getting down to, a legal argument. As a member of this society, I have no reason to distrust the Judiciary here in Australia. I'll therefore now leave it to them to review this case and I will accept their decision.

And on that note I'm leaving this thread, you'll be pleased to know.

 

[ItsBruce]

For the record...when this story was being dissected ad nauseum, I looked with a skeptical eye towards the family and how much their grief was taking over their sensibilities and their attitude towards Gabe Watson. I felt that Gabe removing flowers from Tina's grave could easily be explained by the fact that her family was more or less calling him a murderer and calling for him to be found guilty of murder. I think that would make me bitter to be labeled a murderer if I wasn't. And, possibly bitter enough to remove family flowers from a grave.
Certainly no love lost between the two families at that point.

Very well put. I like the way you frame it as "grief taking over sensibilities." (I expect to add that to my arsenal of sound bites and I will think of you every time I use it.) That is so often the case -- and it is so often completely self-destructive.

I like to play devils advocate. So, now I do it again. ...

I'm a bit confused by this. Where are you playing "devils advocate"?

And, as far as playing "devil's advocate," personally, I do not like the idea of someone being a "devil's advocate." I do not believe the devil deserves an advocate ... unless he is paying by the hour and has paid a sufficient retainer.

 

[ItsBruce]

I know that the following is somewhat of a digression from the real theme of this thread, but since the thread has taken a turn toward the topic of buddy duties / liabilities, I will make the following comment.

Note: This is not legal advice or a legal opinion and no one with any sense will rely on it. Rather, it is a starting point for anyone who might want to do legal research and analysis on the matter.

The general rule in most places that follow the English Common law, i.e. England, U.S., Canada, Australia, etc., is that you do not have a duty to come to the aid of another unless (1) you create the need for that aid, or (2) you are in what the law calls a "special relationship." A special relationship is not like a husband and wife. Rather, it is like a teacher and student or, in diving, perhaps a DM who was hired to act as a buddy and the buddy.

Thus, the California Supreme Court, in one case, remarked that someone on shore who sees a drowning swimmer generally has no duty to either aid the swimmer or even call for help and that in the absence of a duty, there can be no liability. In another case, the California Court of Appeal held that paramedics had no duty to treat a gunshot victim. The victim had been shot in the neck and died because the paramedics refused to treat him until the police had secured the area. The court reasoned that the paramedics had not created the peril and were not in a special relationship with the decedent that required them to render aid.

On the other hand, there is a case decided by the federal court that covers Hawaii, where a dive operator and dive master were held liable for a diver's death for, among other things, failing to assign the diver a dive buddy. The court's comment on the dive buddy, while not precedent, is certainly quotable: "A 'buddy' assumes the responsibility for monitoring and assisting the other member of the 'buddy' team at all times during a dive." (It is not precedent because the court was considering the operator and DMs' liability, not that of a dive buddy.)

I did not find any cases specifically addressing dive buddies.

Take this for what it is worth. For me, I'm not really worried that there is precedent that could render me liable if I simply fail to render aid to a dive buddy, especially an insta-buddy.

(There is no need for anyone to discuss insta-buddies.)