Watson Murder Case - Discussion

[K_girl]

Beyond the issues of justiciability, courts hate to make rulings that are any broader than they must be. This drives lawyers who are looking for guidance crazy. However, it gives the courts great flexibility..

So, I would not be a bit surprised if the appellate court extends Watson's sentence and says it is because he and Tina were on their honeymoon. Thus, the sentence would not be precedent for old-married couples or other dive buddies..

Bruce, for what it is worth I don't think I agree. In order to determine the appropriate degree of punishment the Court still has to make a determination about the criminality of the conduct.

Here we see a major potential difference between U.S. practice (Bruce) and Australian practice (Underexposed)? Another thing I did not mention about the latest article is that the Solicitor General described the manslaughter charge as negligent manslaughter. Let me try and describe in layman's terms what I think negligence is: doing something stupid or just not caring enough to pay attention.

So, in the U.S., let's say you have a guy who shot someone and it is not disputed that he shot the person. It started off as a first degree murder charge. You would think the least the guy might get would be voluntary manslaughter (unplanned rage killing), but it is pled all the way down to involuntary manslaughter (negligent) because this guy rolls on another guy. However, the facts of the case can in no way fit negligence as he pointed the gun at a guy and fired. The only way negligence could fit was if he thought the gun didn't have any bullets, but that was never a fact in the case. So where is the negligence? It does not exist in reallity.

I think Bruce has a point here in one sense in that I have had a difficult time in trying to determine exactly what Watson was negligent of because negligence does not seem to fit anywhere with Watson's own statements. Even the prosecutor who accepted Watson's guilty manslaughter plea said that he deliberately left Tina to die. So where is the negligence? It does not exist in reality.

Bruce said that he really didn't think there was much of a chance that the sentencing appeal would have a shot. The Solicitor General has brought forth the sentencing appeal with an element of "deterrence." I also think under-exposed is right in that if the Solicitor General wins the appeal, there will have to be a description of the criminality in the case, which to-date has not really been done. They really would need that description of criminality in order to impose some kind of "deterrence." The other element that the Solicitor General brought forth was the level of punishment needs to fit the crime. Well, if you are going to win on that argument, isn't under-exposed right that the criminality must be defined? However, Bruce may turn out to be right about the outcome of the appeal because the judge may not want to define the criminality because it does not fit the description of negligence and you can't establish "deterrence" without it.

So in the long run, I think both under-exposed and Bruce may be right, as they are approaching from different viewpoints.

 

[Under-Exposed]

Sorry, but I think you will find that "jail" is the American variant spelling of "gaol", rather than "gaol" being the British and Australian variant of "jail"!

 

[livinoz]

Sorry, but I think you will find that "jail" is the American variant spelling of "gaol", rather than "gaol" being the British and Australian variant of "jail"!

Okay, okay, it was late and I wrongly quoted the first source I found, bad me!

If we want to discuss semantics, then let's go to the definitive source, the OED. This states that gaol is in official use, gaol and and jail are in literary use and jail is found in the US. As it is Middle English, derived from Old Northern French "ga(i)ole" and Old French "jaiole" or "jeole" then it could be argued both the British and the US spellings are appropriate when the sources are considered!

Enough?

We now return you to your regular programming!

 

[alohagal]

Sorry, but I think you will find that "jail" is the American variant spelling of "gaol", rather than "gaol" being the British and Australian variant of "jail"!

But, he is likely in PRISON. Jail is for overnight varmits! Not for convicts given long sentences like 12 months.

 

[bowlofpetunias]

Sorry, but I think you will find that "jail" is the American variant spelling of "gaol", rather than "gaol" being the British and Australian variant of "jail"!

I can't resist. The correct Canadian spelling is still "gaol" but pronounced the same way as most Americans from the northern states. UE is correct the American spelling is the variant!

 

[livinoz]

I can't resist. The correct Canadian spelling is still "gaol" but pronounced the same way as most Americans from the northern states. UE is correct the American spelling is the variant!

The OED disagrees as both are right depending on which source you use. Middle English has a number of variances, so if you want to see one particular spelling as "more correct" than the other, that's fine; I prefer to think both are correct.

 

[bowlofpetunias]

In the first aid classes I teach we talk about Negligence and how to avoid negligence claims. I am told the lesson plans are vetted by the authorities in the topics we cover.

Simplified version

Duty of care must exist (by relationship eg Teacher/Student employed First Aider/fellow worker Parent/Child ) or be assumed (by commencing first aid).

They must prove you failed to exercise your Duty of Care by refusing to assist or abandoning your casualty.

You must do what a reasonable prudent person would do in a similar situation with your training and ability. You must stay within your training protocols.

They must be able to prove the person suffered additional harm as a result of your actions or inaction.

Danger to the First Aider extinguishes Duty of Care.

If that information is applied here. If they can prove that the Dive operator offered the orientation dive and the Watsons jointly declined it based on Gabe's assertions that he could take care of Tina because of his qualification and Ability as a Rescue diver I believe that establishes a Duty of Care beyond a "normal buddy pairing".

He failed to exercise his Duty Of Care by failing to follow the protocols in the way a reasonable and prudent person with his training would/should do. Tina suffered harm as a result of his action/inaction. There is no indication of significant danger to Gabe at the time he left Tina.

Based on that information I believe Gabe was negligent. It would be interesting to hear your view on that UE.

While we are confessing positions. Based on the information I have seen with consideration for the sensationalistic media reports, interview tapes and transcripts I would not be able to convict him of Murder. As I said earlier I don't think the man is bright enough to plan something so complex and convoluted as this. Someone posted that his parents are very well off so money is a less convincing motive.

I think he was negligent and it contributed to Tina's death and therefor have no problem with him doing time for Manslaughter. Like everyone else here I hope the reasons for the ruling are more clearly laid out for future reference.

Of course as I have said before... my opinion of his guilt or innocence is irrelevant and I would not be able to sit on the jury because it would be difficult to set aside my previous knowledge and bias.

 

[livinoz]

In the first aid classes I teach we talk about Negligence and how to avoid negligence claims. I am told the lesson plans are vetted by the authorities in the topics we cover.

Simplified version

Duty of care must exist (by relationship eg Teacher/Student employed First Aider/fellow worker Parent/Child ) or be assumed (by commencing first aid).

They must prove you failed to exercise your Duty of Care by refusing to assist or abandoning your casualty.

You must do what a reasonable prudent person would do in a similar situation with your training and ability. You must stay within your training protocols.

They must be able to prove the person suffered additional harm as a result of your actions or inaction.

Danger to the First Aider extinguishes Duty of Care.

If that information is applied here. If they can prove that the Dive operator offered the orientation dive and the Watsons jointly declined it based on Gabe's assertions that he could take care of Tina because of his qualification and Ability as a Rescue diver I believe that establishes a Duty of Care beyond a "normal buddy pairing".

He failed to exercise his Duty Of Care by failing to follow the protocols in the way a reasonable and prudent person with his training would/should do. Tina suffered harm as a result of his action/inaction. There is no indication of significant danger to Gabe at the time he left Tina.

Based on that information I believe Gabe was negligent. It would be interesting to hear your view on that UE.

While we are confessing positions. Based on the information I have seen with consideration for the sensationalistic media reports, interview tapes and transcripts I would not be able to convict him of Murder. As I said earlier I don't think the man is bright enough to plan something so complex and convoluted as this. Someone posted that his parents are very well off so money is a less convincing motive.

I think he was negligent and it contributed to Tina's death and therefor have no problem with him doing time for Manslaughter. Like everyone else here I hope the reasons for the ruling are more clearly laid out for future reference.

Of course as I have said before... my opinion of his guilt or innocence is irrelevant and I would not be able to sit on the jury because it would be difficult to set aside my previous knowledge and bias.

Good points. So if he was designated as a "rescue diver" and failed in his duty of care in that regard, does that mean that anyone with a rescue diver certification would be guilty of manslaughter if they attempted but failed to rescue someone? They would have therefore "contributed" to that person's death as they "abandoned" their responsibility, but surely that does not take into account an individual's reaction to an emergency situation, any panic they may have suffered, or their own abilities even with a rescue certification.

 

[bowlofpetunias]

Good points. So if he was designated as a "rescue diver" and failed in his duty of care in that regard, does that mean that anyone with a rescue diver certification would be guilty of manslaughter if they attempted but failed to rescue someone? They would have therefore "contributed" to that person's death as they "abandoned" their responsibility, but surely that does not take into account an individual's reaction to an emergency situation, any panic they may have suffered, or their own abilities even with a rescue certification.

That is where the "reasonably Prudent" comes in. The point I am making is that it could be argued that Gabe assumed a significant Duty of Care if he convinced the Dive Op that his determination, skills and training were such that they justified Tina missing the Orientation dive.

example

Someone has a first aid certificate but declines to be designated first aid at work.. is not paid to be first aid. They have no Duty of Care to co-workers.. moral issues aside but if they are designated first aid.. accept that role as part of their work duties... they have a Duty of Care to their co-workers.

I am not sure how this would parallel Gabe's case.

The other issue is when he attempted to rescue Tina and then abandoned her he also assumed the Duty to see the rescue through baring danger to himself of course.

I would be very interested in your thoughts on this UE

 

[ItsBruce]

What would like me to send you consider adequate to prove I am and Australian appellate judge?

If you have to ask ... you're not one.