Gabe Watson pleads guilty to diving wife death

[livinoz]

How could I do otherwise ;)

I thought Barristers were noted for their..argumentative...streak? Or should I say debating skills?

Best get his thread back on topic I think or it will be closed down!


As I said above would you please let us read your article when it's completed? I'm sure it will give us food for thought.

[thanksforallthefish]

Quote:
Originally Posted by thanksforallthefish http://www.scubaboard.com/forums/images/pxnavyblue/buttons/viewpost.gif (http://www.scubaboard.com/forums/accidents-incidents/288089-gabe-watson-pleads-guilty-diving-wife-death-post4478812.html#post4478812)
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.


Simply being a buddy does not mean you have commenced to rescue. So I agree with what you say in the second and third paragraphs, but I don't think that is inconsistent with there not being a legal duty impose don a buddy to in fact commence rendering aid.

I agree simply being a buddy does not mean you have commenced to rescue, but it does imply you have accepted some responsibility toward the well being of your buddy and have agreed that you will help if the necessity arises.

This is the purpose of a buddy as defined by all teaching agencies, to be close enough to render assistance if needed.



BTW ... thank you very much for your input on this thread it has been very illuminating.

[Under-Exposed]

I thought Barristers were noted for their..argumentative...streak? Or should I say debating skills?

Best get his thread back on topic I think or it will be closed down!


As I said above would you please let us read your article when it's completed? I'm sure it will give us food for thought.

Did you say above? Must have missed it.

[Under-Exposed]

I thought Barristers were noted for their..argumentative...streak? Or should I say debating skills?

Best get his thread back on topic I think or it will be closed down!


As I said above would you please let us read your article when it's completed? I'm sure it will give us food for thought.

I see now. You must have added it after I had started my antepunultimate reply.

[Under-Exposed]

I agree simply being a buddy does not mean you have commenced to rescue, but it does imply you have accepted some responsibility toward the well being of your buddy and have agreed that you will help if the necessity arises.

This is the purpose of a buddy as defined by all teaching agencies, to be close enough to render assistance if needed.



I don't disagree with this, but I still think it creates a moral obligation rather than a legal duty.

[livinoz]

I agree simply being a buddy does not mean you have commenced to rescue, but it does imply you have accepted some responsibility toward the well being of your buddy and have agreed that you will help if the necessity arises.

This is the purpose of a buddy as defined by all teaching agencies, to be close enough to render assistance if needed.



BTW ... thank you very much for your input on this thread it has been very illuminating.

I guess it's subjective though isn't it? And the assistance might be anything from sharing air to dealing with someone who was "narced". IMHO, I think some people would be capable of rescuing another no matter what the circumstances, even if they were risking their own life, and others would not, no matter what training they'd had. I have a belief that mindset has much to do with it. I do like to think I'd attempt to rescue someone I was diving with but that would depend on the circumstances, the danger and my own abilities. I mean what is it that makes a good buddy? Don't you have to be aware of your own limitations?

[livinoz]

I see now. You must have added it after I had started my antepunultimate reply.

Sorry, edits are a nuisance.

[thanksforallthefish]

:hijack: Sorry ... for me edits are a necessity

[bowlofpetunias]

I can only relate this to Duty of Care as it applies to First Aid. I have been instructed that certain relationships establish a Duty of Care. Examples stated are: People employed for the purpose of first aid, teachers and students, coaches and players, parent and child have a Duty of Care or responsibility to Care due to their relationship. Duty of Care is stated to be extinguished by danger to the first aider (I would assume you could insert rescuer). If you are walking down the street and someone collapses in front of you.... you do not have a Duty of Care until you begin to take care of them at which point you assume the Duty of Care.

I would think that since you have no control or input into the "instabuddy" relationship that would be equivalent to the stranger walking down the street as above.

I would suggest that the relationship between the Watsons does not fit this situation and there would be a Duty of Care.

My reasoning is that there is evidence that Gabe commited to a Duty of Care by assuring Tina and her parents of his willingness and ability to take care of her due to his experience and training. Gabe had influence and probably some control over Tina's decisision to go on that particular dive at that particular time. Gabe was aware of Tina's experience level and still CHOSE to be her buddy.

Based on the above I would suggest that there is a significant difference between liability of an "instabuddy" pairing and a pre established Buddy pairing. Would you mind commenting on this for me Underexposed?

No matter how badly I feel for Tina's loved ones their pain should not determine how the Laws of the Land are administered. I don't think they will be able to accept anything less than a finding of Murder punishment commusurate with that. The unfortunate thing is that anger, rage and seeking revenge can be self destroying.

Liv I think that this thread continues to be of significant value and is not in danger of being shut down because it is addressing issues related to divers and diver's responsibilities and there is no flaming occuring.

[bowlofpetunias]

I guess it's subjective though isn't it? And the assistance might be anything from sharing air to dealing with someone who was "narced". IMHO, I think some people would be capable of rescuing another no matter what the circumstances, even if they were risking their own life, and others would not, no matter what training they'd had. I have a belief that mindset has much to do with it. I do like to think I'd attempt to rescue someone I was diving with but that would depend on the circumstances, the danger and my own abilities. I mean what is it that makes a good buddy? Don't you have to be aware of your own limitations?

I would agree with this Liv and I would suggest that the "mindset" changes with knowledge and experience. For good or bad, I have to acknowledge that my "mindset" changed after working in the Ambulance service for a while.

[livinoz]

I can only relate this to Duty of Care as it applies to First Aid. I have been instructed that certain relationships establish a Duty of Care. Examples stated are: People employed for the purpose of first aid, teachers and students, coaches and players, parent and child have a Duty of Care or responsibility to Care due to their relationship. Duty of Care is stated to be extinguished by danger to the first aider (I would assume you could insert rescuer). If you are walking down the street and someone collapses in front of you.... you do not have a Duty of Care until you begin to take care of them at which point you assume the Duty of Care.

I would think that since you have no control or input into the "instabuddy" relationship that would be equivalent to the stranger walking down the street as above.

I would suggest that the relationship between the Watsons does not fit this situation and there would be a Duty of Care.

My reasoning is that there is evidence that Gabe commited to a Duty of Care by assuring Tina and her parents of his willingness and ability to take care of her due to his experience and training. Gabe had influence and probably some control over Tina's decisision to go on that particular dive at that particular time. Gabe was aware of Tina's experience level and still CHOSE to be her buddy.

Based on the above I would suggest that there is a significant difference between liability of an "instabuddy" pairing and a pre established Buddy pairing. Would you mind commenting on this for me Underexposed?

No matter how badly I feel for Tina's loved ones their pain should not determine how the Laws of the Land are administered. I don't think they will be able to accept anything less than a finding of Murder punishment commusurate with that. The unfortunate thing is that anger, rage and seeking revenge can be self destroying.

Liv I think that this thread continues to be of significant value and is not in danger of being shut down because it is addressing issues related to divers and diver's responsibilities and there is no flaming occuring.

Petunia I didn't think it would be shut down as such; I was being sarcastic as we'd got off topic a bit that's all! :)

As for duty of care, did Watson actually know his own limitations on that particular dive? Did he have a false sense of security in his own abilities as a "rescue diver"? What about the duty of care of the dive operator? Watson certainly was guilty of negligence and he admitted that, but was he also guilty of overconfidence?

[thanksforallthefish]

I can only relate this to Duty of Care as it applies to First Aid. I have been instructed that certain relationships establish a Duty of Care. Examples stated are: People employed for the purpose of first aid, teachers and students, coaches and players, parent and child have a Duty of Care or responsibility to Care due to their relationship. Duty of Care is stated to be extinguished by danger to the first aider (I would assume you could insert rescuer). If you are walking down the street and someone collapses in front of you.... you do not have a Duty of Care until you begin to take care of them at which point you assume the Duty of Care.

I would think that since you have no control or input into the "instabuddy" relationship that would be equivalent to the stranger walking down the street as above.

I would suggest that the relationship between the Watsons does not fit this situation and there would be a Duty of Care.

My reasoning is that there is evidence that Gabe commited to a Duty of Care by assuring Tina and her parents of his willingness and ability to take care of her due to his experience and training. Gabe had influence and probably some control over Tina's decisision to go on that particular dive at that particular time. Gabe was aware of Tina's experience level and still CHOSE to be her buddy.

Based on the above I would suggest that there is a significant difference between liability of an "instabuddy" pairing and a pre established Buddy pairing. Would you mind commenting on this for me Underexposed?




The way I see it is you do have a say over an insta buddy ... you can decline to be their buddy.

By agreeing to be their buddy, you establish a relationship that by the certifying agencies definition means you will aid them if necessary.

That is to my way of thinking very different to a stranger collapsing in the street to whom you have no commitment.

[livinoz]

The way I see it is you do have a say over an insta buddy ... you can decline to be their buddy.

By agreeing to be their buddy, you establish a relationship that by the certifying agencies definition means you will aid them if necessary.

That is to my way of thinking very different to a stranger collapsing in the street to whom you have no commitment.

If you agree to be a "buddy" though, as Under-Exposed has said, to render aid is more a moral than a legal obligation. Not that most reasonable people wouldn't, I'm just trying to make a distinction between the legalities and ethical responsibilities.

[bowlofpetunias]

Petunia I didn't think it would be shut down as such; I was being sarcastic as we'd got off topic a bit that's all! :)

As for duty of care, did Watson actually know his own limitations on that particular dive? Did he have a false sense of security in his own abilities as a "rescue diver"? What about the duty of care of the dive operator? Watson certainly was guilty of negligence and he admitted that, but was he also guilty of overconfidence?

interesting questions... It was published that the dive OP did not breach any legal requirements but did not follow their own Standard Operations Procedures which were more restrictive than the Law required. It is the breaching of their SOP that resulted in their being fined. I suspect.. but it was not published that it related to not insisting Gabe and Tina stay with a DM since this was their first dive with the Op they had not established their competence to dive alone.

The way I see it is you do have a say over an insta buddy ... you can decline to be their buddy.

By agreeing to be their buddy, you establish a relationship that by the certifying agencies definition means you will aid them if necessary.

That is to my way of thinking very different to a stranger collapsing in the street to whom you have no commitment.

I think you are right to a degree... but not everyone is comfortable enough to refuse to be buddied with someone. They may not feel they have that luxury..... "If I don't accept this buddy I will have to miss this dive.... I have paid a lot of money for this dive.... I don't want to look like I am biased, discriminatory... (you name it)."

Honestly ... when was the last time we went anywhere that we did not have an available buddy that we knew and were comfortable diving with? Last time I refused to buddy with someone was a few years back and I insisted on diving with two others I knew. I made it awkward for the Operator... because there was an even number which I stuffed up:depressed: and they were NOT impressed with me because of it. I would not have been comfortable doing that earlier in my diving "career" especially since the "incompetent" I refused to buddy with was a certified DM:doh2:

[bowlofpetunias]

If you agree to be a "buddy" though, as Under-Exposed has said, to render aid is more a moral than a legal obligation. Not that most reasonable people wouldn't, I'm just trying to make a distinction between the legalities and ethical responsibilities.


That is the distinction I am trying to work out as well. I know the lesson plan I am given to teach is vetted by the "authorities" in each topic so I am trying to work out those differences here as well.

[thanksforallthefish]

Apologies for the length.

These sentencing remarks can also be accessed as a PDF file at Sentencing Remarks - Queensland Judgments - Supreme Court Library (http://www.sclqld.org.au/qjudgment/sentencing-remarks)

SENTENCE R v WATSON

(P Lyons J)

HIS HONOUR: Stand up, please, Mr Watson. You stand convicted
on your plea of guilty of the offence of manslaughter causing
the death of your wife. The offence occurred when you had
both been diving in the vicinity of the historical shipwreck
Yongala some 48 nautical miles east of Townsville.

The deceased experienced difficulties during the dive. You
made some attempts to assist her but these were unsuccessful.
In the course of this, your face mask and deregulator were
dislodged. However, you were able to replace your face mask
and to get an alternative oxygen supply from what is referred
to as a "safe second". When this happened, you could see that
the deceased was sinking but you formed the view that there was nothing
you could do and you swam away with a view to getting assistance.

There are circumstances beyond those I have just described
which are relevant to determining your sentence. You were
clearly a far more experienced diver than the deceased was.
The deceased had what is called an open-water certification,
which I understand to be a basic diving qualification and
which she had attained some months previously. 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.


The dive was carried out using the buddy system. As your
wife's buddy for the dive, you took responsibility for
providing her with assistance if she encountered difficulty.
The Crown alleges against you that you failed to carry out
your duty to her in a number of significant ways. I accept
that you failed to do so in the following respects: you
failed to ensure that when the deceased had encountered
difficulties she had a supply of oxygen available to her, and,
in particular, you failed to share your oxygen supply with
her; having released the deceased to recover your face mask
and oxygen supply, you did not then take hold of her again or
stay with her, or follow her as she sank; you did not attempt
at any time to inflate her buoyancy control device or remove
the weights which divers often carry to assist them to descend.
It follows from these matters, that you failed to make any
reasonable attempt to take the deceased to the surface. I
therefore accept that you are guilty of a very serious
departure from the standard of care which was incumbent upon
you with the result that your conduct is deserving of criminal
punishment.

An offence such as manslaughter which involves the loss of a
human life is obviously a very serious matter. The deceased
was 26 years old. You were recently married. She had every
reason to look forward to a long and happy life. Her death is also
a great tragedy for her family. 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.

I propose to say something about the course of proceedings
which have led to today's hearing. The events which led to
the charge against you occurred in October 2003. You were
interviewed by the police on that day and on some occasions
subsequently. A coronial inquest was conducted in late 2007
and in 2008 resulting in your being committed in June 2008
and a warrant then issuing for your arrest. An indictment
charging you with murder was presented on the
28th of November 2008.

You have voluntarily returned from the United States and have
surrendered yourself into custody in Australia. In my view,
it is quite significant that at the time of your return you
did not know that the Crown would not persist in charging you
with murder, which carries a mandatory sentence of life
imprisonment. You no doubt expected that you would be
sentenced to a term of imprisonment for a substantial period
in what for you is a foreign country. You have, in fact,
acknowledged that you are guilty of manslaughter. You do
not seek to pretend that your actions were other than what
they were. In doing so, you have spared the deceased's family
the agony of a trial.

While in the context of the loss of the deceased's life it may
not be of great significance, it must also be recognised that
you have saved the community the expense of conducting a
trial. I regard your conduct as a recognition by you of your
wrongdoing and an expression of remorse. I am conscious
that you have no criminal history. There is, naturally, no
suggestion of a risk of reoffending.

You have provided a number of references from people who
appear to be quite reputable and to know you well. They
confirm that you are of good character. They also reveal that
you are a person who is known to help others and that you
loved your wife and were devastated by her loss.

I have referred to the delay in the prosecution of the case
against you. It is plainly considerable delay. When there is
delay in the prosecution of a criminal charge, a major
consideration which often works in reduction of the sentence
is the fact that rehabilitation may have occurred in the
period since the offence. That is not a relevant consideration
in this case. However, you have carried the burden of these
events for a substantial period. That is a matter to which I am
prepared to give weight. I consider that that burden has been
increased by the very extensive publicity which these events
have occasioned. That is demonstrated, to some extent, by
the obvious presence of a significant number of representatives
of the media in the court today. I also accept that in that period
you have been subject to accusations of matters of which you
are not guilty.

In addition to the admission constituted by your plea, I
accept that you cooperated with the police at an early stage
and that, generally, the essential matters relied on now for
acceptance of a plea of manslaughter were communicated by you
to the police in about October of 2003. In fact, a
significant number of them appear in the statement you gave to
the police on that day, including your certification as a
rescue diver, the fact that you and the deceased were on this
dive diving as dive buddies, and the circumstances in which
you left the deceased.

There have been, in some of your statements, some
inconsistencies and some attempts to put blame on other
people. There does not seem to be any persistence in your
attempt to put blame on anyone else and I accept that the
responsibility for this loss is yours alone. The
inconsistencies and those attempts, to me, while they do not
speak particularly well of you, should be looked at in the
circumstances in which they occurred. That is, they occurred
shortly after the dive and at a time when you, no doubt, were
deeply upset by the events which have occurred.

I have been referred to a number of authorities. I do not
propose to refer to all of them. There is always a difficulty
in finding authorities which are strongly analogous to the
circumstances of a particular case in which a sentence is to
be given. I do, however, note the submissions made by your
Counsel in relation to the case of Pesnak [2000] QCA 245.
That was a case where the accused had a significant period of
time, a matter of days, in which to identify the worsening
condition of the person who ultimately died.

Your case is quite different. The precise time is unclear,
but it can only have been of the order of two minutes from the
time that the deceased first started to encounter difficulties
until you surfaced, and the time within which you made your
initial decision to leave her was obviously significantly
less. I suspect that once you had made that decision and
decided to go to seek other assistance, there would have been
difficulty in reversing your decision and turning back again
to try to assist her. I accept, nevertheless, that there is a
very serious departure in your case from the requirements
of the duty of care which you had undertaken in the course
of this dive.

The seriousness of the matter, notwithstanding the factors
which I take into account in mitigation, means that it is
necessary to impose a penalty which provides for a substantial
period of imprisonment. I therefore propose to impose a head
sentence of four and a half years.

Because of the mitigating factors which I have identified and
because I accept that for you in Australia time in prison will
be harder than it will be for people who serve a sentence of
imprisonment in their own country, I intend to fix a
suspension date a little earlier than might otherwise have
been the case.

Accordingly, I order that you be imprisoned for a period of
four and a half years. I declare that the period of 23 days
from the 13th of May 2009 until the 5th of June 2009 be deemed
time already served under the sentence.

I order that the term of imprisonment be suspended after a
period of 12 months' imprisonment which will take into account
that 23 day period.

I am required to inform you that you must not commit another
offence punishable by imprisonment within a period of four and
a half years to avoid being dealt with for the suspended term
of imprisonment. For the avoidance of any doubt, I order that
a conviction be recorded.



There is no mention of any prior relationship affecting the decision, just that they were buddys.

Obviously there was a prior duty of care between Gabe and Tina, but what I was wondering was how tenuous a link there would need to be before this duty of care could be deemed to be established.

[bowlofpetunias]

There is no mention of any prior relationship affecting the decision, just that they were buddys.

Obviously there was a prior duty of care between Gabe and Tina, but what I was wondering was how tenuous a link there would need to be before this duty of care could be deemed to be established.

Excellent point and we seem to have lost the most knowledgeable person posting here...

Underexposed has been an incredible asset and that is very much appreciated!

[livinoz]

Excellent point and we seem to have lost the most knowledgeable person posting here...

Underexposed has been an incredible asset and that is very much appreciated!

I guess he does have other responsibilities as well as answering all our legal questions! ;)

Yes I'm not sure how you would deem that there had been a breach of duty of care in these circumstances.

[thanksforallthefish]

I guess he does have other responsibilities as well as answering all our legal questions! ;)

Yes I'm not sure how you would deem that there had been a breach of duty of care in these circumstances.

:hijack:

Yes ... just wait till we get the bill ... you know what Lawyers are like, Barristers are probably ten times worse ;)

[livinoz]

:hijack:

Yes ... just wait till we get the bill ... you know what Lawyers are like, Barristers are probably ten times worse ;)

Maybe we could offer him dives in exchange for information!

Hey wasn't that thread closed? :confused:

[ScubaSteve]

So did I read that correctly that Gabe will only have to serve 12 months less 23 days in jail?

[Under-Exposed]

I have been doing some more background reading, and it never ceases to amaze me how inaccurate media reporting of legal proceedings is. For example, an MNBC report on the coronial inquest said: "The Coroner concluded that during the dive, Watson held his 26-year-old wife in a bear hug while he cut off her air supply until she was dead or nearly dead, then turned the air back on and let her sink to the bottom while he surfaced and called for help." But if you reads the Coroner's report, it contains no such finding. In fact, it contains no finding whatever as to the mechanism of her drowning, other that to record that he is satisfied that is sufficient evidence to satisfy him that a properly instructed jury "could" (ie low threshold) find Watson guilty of murder. That's it.

[Dadvocate]

Well, the affect that the media has played in this case has been a hot topic indeed. Thanks for pinpointing one glaring example of where this lack of integrity is. One has to wonder how much further this bias goes in this case.

Cheers!

[livinoz]

I have been doing some more background reading, and it never ceases to amaze me how inaccurate media reporting of legal proceedings is. For example, an MNBC report on the coronial inquest said: "The Coroner concluded that during the dive, Watson held his 26-year-old wife in a bear hug while he cut off her air supply until she was dead or nearly dead, then turned the air back on and let her sink to the bottom while he surfaced and called for help." But if you reads the Coroner's report, it contains no such finding. In fact, it contains no finding whatever as to the mechanism of her drowning, other that to record that he is satisfied that is sufficient evidence to satisfy him that a properly instructed jury "could" (ie low threshold) find Watson guilty of murder. That's it.

Yes, in fact the Judge made reference to the impact of the media in his sentencing remarks:

"....you have carried the burden of these events for a substantial period. That is a matter to which I am prepared to give weight. I consider that that burden has been increased by the very extensive publicity which these events have occasioned. That is demonstrated, to some extent, by the obvious presence of a significant number of representatives of the media in the court today. I also accept that in that period you have been subject to accusations of matters of which you are not guilty. "

[Dadvocate]

Bowlofpetunias

The way I see it is you do have a say over an insta buddy ... you can decline to be their buddy.

By agreeing to be their buddy, you establish a relationship that by the certifying agencies definition means you will aid them if necessary.

It is hard to say that on the one hand we are a social sport, and thus we are meant to be supportive of new members to our fold and then turn around and say that one has the right to decline to dive with someone based on their low level of experience. How does one reconcile the inclusiveness of diving with the burdensome worry that liability is always looming on each dive with a newbie? This is a scary way to look at our sport, and like it or not attaching this kind of liability to these otherwise social situations is a dangerous precedence in my opinion.

And this isn’t really the whole scope of the issue as I see it. If you take a passionate diver who has become avid enough to want to improve her skills, she might look to the rescue diver course as a way to go about doing that. This is a logical course for someone to consider when time and experience warrant such an improvement in skills. This is something our sport benefits from in the long run.

If liability in this “insta-buddy” scenario can be codified in terms of the training each diver brings to each diving situation, this buddy relationship becomes more of an issue the more training someone has. So if I, as new rescue diver, am “buddied up” with a novice OW diver, the liability is more mine than his in the buddy relationship because he is not as “qualified” as I am. And what if my insta-buddy is also a rescue diver but has loads more experience than I do, does the qualification mean the same thing in the end? As Under Exposed said earlier, clouding the issue between obligation and duty only makes things worse for a person who is driven by a moral instinct to help but then is held responsible in a way that should only be considered for professionals.

That kind of scenario sends a resounding message in my opinion that people who tend to dive with strangers and buddy up at the shop are better off in a legal sense not getting “too certified” in this sport. This would be an unfortunate consequence if a court decision like this had that effect.

Livinoz
Yes, in fact the Judge made reference to the impact of the media in his sentencing remarks:

"....you have carried the burden of these events for a substantial period. That is a matter to which I am prepared to give weight. I consider that that burden has been increased by the very extensive publicity which these events have occasioned. That is demonstrated, to some extent, by the obvious presence of a significant number of representatives of the media in the court today. I also accept that in that period you have been subject to accusations of matters of which you are not guilty. "


Indeed. In looking at that statement again, the judge seems to be somewhat critical of the dog and pony show that has taken place in the media, and he seems to feel that Gabe's choosing to come to Australia despite this smear campaign and despite not having any guarantees from the authorities that his word would be believed are mitigating circumstances in his sentencing, lenient by many people’s standards, harsh by others.

What is it that the prosecutors/ judge heard in those tapes that others didn’t?

What took place when Gabe returned that made this case seem less “slam dunk” than the media portrayed everything to be?

There is so much we still don’t know, including the scope of what this decision means for diving in Australia.

Cheers!

[Under-Exposed]

Bowlofpetunias



It is hard to say that on the one hand we are a social sport, and thus we are meant to be supportive of new members to our fold and then turn around and say that one has the right to decline to dive with someone based on their low level of experience. How does one reconcile the inclusiveness of diving with the burdensome worry that liability is always looming on each dive with a newbie? This is a scary way to look at our sport, and like it or not attaching this kind of liability to these otherwise social situations is a dangerous precedence in my opinion.

And this isnÃÕ really the whole scope of the issue as I see it. If you take a passionate diver who has become avid enough to want to improve her skills, she might look to the rescue diver course as a way to go about doing that. This is a logical course for someone to consider when time and experience warrant such an improvement in skills. This is something our sport benefits from in the long run.

If liability in this ÅÊnsta-buddy scenario can be codified in terms of the training each diver brings to each diving situation, this buddy relationship becomes more of an issue the more training someone has. So if I, as new rescue diver, am ÅÃuddied up with a novice OW diver, the liability is more mine than his in the buddy relationship because he is not as ÅÒualified as I am. And what if my insta-buddy is also a rescue diver but has loads more experience than I do, does the qualification mean the same thing in the end? As Under Exposed said earlier, clouding the issue between obligation and duty only makes things worse for a person who is driven by a moral instinct to help but then is held responsible in a way that should only be considered for professionals.

That kind of scenario sends a resounding message in my opinion that people who tend to dive with strangers and buddy up at the shop are better off in a legal sense not getting ÅÕoo certified in this sport. This would be an unfortunate consequence if a court decision like this had that effect.

Livinoz



[COLOR=black] [/SIZE]

Cheers!

Excellently well-made points (if I may respectfully say so) and very good reasons why there should not be a legal duty to rescue simply because you are certified to do so.

[Dadvocate]

This makes sense on so many levels. Where it is easy to make clear lines of distinction in terms of how we look at liability (moral vs duty-bound) in discussions on SB or in legal thought experiments, the line is cloudy when dangerous situations come up in reality. It isn’t as though a person who must decide to try a rescue has the time or the inclination to weigh all of these factors in before taking some course of action to save a life.

It is entirely possible that she might well vacillate just a bit or completely stall if she thinks that her actions could come to her being held liable in some sense later on. This consideration would become just another added stress to what would already be a scary situation. I, for one, already feel unsure of my skills. I passed the PADI rescue course back in August 2008. I reviewed some skills in December in Thailand but haven’t really looked back since then (too much work and no diving).

I’ll get back to the business of recalling my skills training before we do the live-aboard trip in Cairns in July, but I know that I am nowhere near the ideal rescue diver that so many other people are, not by a long shot. Would that reality check, coupled with the notion that any mistake I make, panic I undergo, or indecisiveness I display be enough to make me fear a rescue attempt that I might otherwise try?

I hope not, and I hope never to have to find out. I’d hate to think that I would fail someone in need because I feared consequences later on, that as opposed to risking danger for myself.

Cheers!

[alohagal]

Story posted today. STRICTLY FYI
Dive killer Gabe Watson's empty look haunts witness
http://www.news.com.au/couriermail/story/0,20797,25626922-3102,00.html?from=public_rss

[alohagal]

http://www.news.com.au/couriermail/story/0,20797,25622849-3102,00.html?from=public_rss (http://www.news.com.au/couriermail/story/0,20797,25622849-3102,00.html?from=public_rss)
By Melanie Christiansen (http://www.news.com.au/couriermail/author/0,23829,5002440-3102,00.html)
June 12, 2009 12:00am
QUEENSLAND prosecutors negotiated a manslaughter plea for American honeymooner Gabe Watson to avoid the cost of pursuing a murder trial, the victim's father has claimed.
Watson will spend less than a year in jail, after last week pleading guilty to the manslaughter of his wife of 11 days, Tina, during a honeymoon diving trip on the Great Barrier Reef in 2003.
After a public outcry over the sentence, the Queensland Director of Public Prosecutions Tony Moynihan, SC, said his office did not pursue a murder charge against Watson because it was a "complex circumstantial" case with "no reasonable prospect" of proving the charge.
Pictures: Dive-trip death horror (http://www.news.com.au/couriermail/gallery/0,23816,5057589-17382,00.html)

Gabe Watson's police interview (http://www.townsvillebulletin.com.au/article/2008/01/23/10038_hpnews.html)
But preparing to leave Brisbane yesterday, Tina's bitterly disappointed father Tommy Thomas said the decision to accept a plea to the lesser charge of manslaughter was driven by financial considerations.
Editorial view (http://www.news.com.au/couriermail/story/0,23739,25622343-13360,00.html)
"That was based on . . . making a good business budget decision," Mr Watson said. "It was . . . about money."
Mr Thomas said he only learned prosecutor Brendan Campbell planned to accept a manslaughter plea from Watson two days before his court appearance.
But he said that at that same meeting, Mr Campbell had admitted he had provided information to Watson's defence about how any manslaughter plea might be structured, even before Watson's voluntary return to Australia to face court.
"They can say they didn't make a deal. They may not have firmed it up, accepted it, but it was discussed," he said.
Barrister and former judge Angelo Vasta yesterday backed the family's concerns.
"From what I can gather, there was a fair amount of money associated with the prosecution of this matter and it may well be that that was one of the considerations," he said.
Mr Vasta said the lack of transparency in the prosecution's handling of the case was also a concern.
He said Watson's sentencing took into account his voluntary return to Australia, so the court should have been told if his appearance in court was the result of a deal to drop the murder charge.
The Thomas family is awaiting a decision from Queensland Attorney-General Cameron Dick on a possible appeal against the sentence.
Mr Moynihan yesterday declined to comment further on the case.

[bsee65]

What does Australia care? They're going to feed him for 11 months and then kick him out of the country for good. Why should they pay to fix what will apparently be the US's problem? Even if they appeal the sentence, what is the most severe thing they can do to him at this point? Do they throw out the plea, or give him the max sentence for what he pled to?

Also, I was dismayed when the judge referred to Tina's "deregulator" in the sentencing comments. It would seem that maybe he knows nothing of diving and is therefore in under-qualified to judge the likelihood of Watson's panic defense.

[bowlofpetunias]

What does Australia care? They're going to feed him for 11 months and then kick him out of the country for good. Why should they pay to fix what will apparently be the US's problem? Even if they appeal the sentence, what is the most severe thing they can do to him at this point? Do they throw out the plea, or give him the max sentence for what he pled to?

Also, I was dismayed when the judge referred to Tina's "deregulator" in the sentencing comments. It would seem that maybe he knows nothing of diving and is therefore in under-qualified to judge the likelihood of Watson's panic defense.

What does Australia care? Enough to try to do justice for all involved rather than allow a trial by media and pressure from people whose decisions are based primarily on emotion to pressure the Judicial System into compromising it's purpose. A case based on Circumstantial evidence in Australia is probably viewed differently than in the USA.

Judges make decisions based on law with access to experts where needed/appropriate on technical matters. If it were otherwise no decisions could be made ... how could a Judge decide if someone was really dead/cause of death unless they did the post mortum themselves?

[Under-Exposed]

I suspect the reference to the "deregulator" is more likely an error in transcription.

[Under-Exposed]

From today's news:

Queensland Attorney-General Cameron Dick says the state will appeal the sentence of wife-killer Gabe Watson.

Alabama bubble-wrap salesman David Gabriel Watson, 32, was sentenced to four-and-a-half years jail in a Queensland court on June 5 after he pleaded not guilty to his wife's murder and the crown accepted his plea of guilty to manslaughter.

Tina Watson died during a scuba diving trip on the Great Barrier Reef in October 2003 - just 11 days after the pair married.

Watson will be required to serve only 12 months of the sentence.

Mr Dick told state parliament on Thursday he would appeal the sentence, saying it was inadequate.

[almitywife]

linky: Appeal over David Watson&squo;s &squo;inadequate&squo; sentence | The Daily Telegraph (http://www.news.com.au/dailytelegraph/story/0,22049,25653975-5001028,00.html)

[BlueSun]

Another ariticle here: Honeymoon death: A-G to appeal sentence - ABC News (Australian Broadcasting Corporation) (http://www.abc.net.au/news/stories/2009/06/18/2601522.htm)

Honeymoon death: A-G to appeal sentence

Queensland Attorney-General Cameron Dick has announced an appeal against the sentence of an US man who pleaded guilty to the manslaughter of his wife during their honeymoon.
David Gabriel 'Gabe' Watson, 32, was jailed for 12 months for manslaughter on June 5, after pleading guilty in the Supreme Court in Brisbane.
The court found he allowed his wife, Tina Watson, 26, to drown during a diving trip to Yongala wreck off Townsville in north Queensland in 2003.
Mr Dick has told State Parliament that Queensland will lodge the appeal today.
"I have noted the significant community interest in this case, and for this reason, I am outlining this decision to the House this morning," he said.
"Mr Watson was this month convicted of manslaughter and sentenced to four-and-a-half-years' imprisonment, to be suspended after 12 months.
"I have formed the view that this sentence is manifestly inadequate and the state will therefore lodge an appeal against the sentence in the Queensland Court of Appeal."

[bowlofpetunias]

Another ariticle here: Honeymoon death: A-G to appeal sentence - ABC News (Australian Broadcasting Corporation) (http://www.abc.net.au/news/stories/2009/06/18/2601522.htm)

Honeymoon death: A-G to appeal sentence

Queensland Attorney-General Cameron Dick has announced an appeal against the sentence of an US man who pleaded guilty to the manslaughter of his wife during their honeymoon.
David Gabriel 'Gabe' Watson, 32, was jailed for 12 months for manslaughter on June 5, after pleading guilty in the Supreme Court in Brisbane.
The court found he allowed his wife, Tina Watson, 26, to drown during a diving trip to Yongala wreck off Townsville in north Queensland in 2003.
Mr Dick has told State Parliament that Queensland will lodge the appeal today.
"I have noted the significant community interest in this case, and for this reason, I am outlining this decision to the House this morning," he said.
"Mr Watson was this month convicted of manslaughter and sentenced to four-and-a-half-years' imprisonment, to be suspended after 12 months.
"I have formed the view that this sentence is manifestly inadequate and the state will therefore lodge an appeal against the sentence in the Queensland Court of Appeal."

I find this statement alarming. I hope the significant community interest is why he is outlining the decision to the House and not why the decision was made! I hate to think that Community (Media) interest determines how the Judicial System is conducted. Trial by Media is not a good thing....

[BlueSun]

More media:

Qld A-G says Watson judge too lenient - ABC News (Australian Broadcasting Corporation) (http://www.abc.net.au/news/stories/2009/06/22/2604564.htm?section=justin)
Qld A-G says Watson judge too lenient

By Jason Rawlins

Queensland Attorney-General Cameron Dick says the judge who sentenced an American man for killing his wife on their north Queensland honeymoon was too lenient.
David Gabriel 'Gabe' Watson, 32, pleaded guilty to manslaughter earlier this month.
He admitted to letting his 26-year-old wife Tina Watson drown while they were on a scuba diving trip at Yongala wrecks off Townsville in 2003.
Supreme Court Justice Peter Lyons sentenced Watson to four-and-a-half-years in jail, to be suspended after 12 months, sparking outcry from Tina Watson's family.
Mr Dick filed a notice of appeal against the sentence on Friday but it was not publicly available until this morning.
It says Watson's sentence fails to reflect the gravity of his offence, fails to take into account the aspect of general deterrence, and that Justice Lyons gave too much weight to mitigating factors.

[catherine96821]

I find this statement alarming. I hope the significant community interest is why he is outlining the decision to the House and not why the decision was made! I hate to think that Community (Media) interest determines how the Judicial System is conducted. Trial by Media is not a good thing....

No Kidding

the entire thing has been insane

mob rule, wild gueses

Dive solo (with your partner out of eyeshot)

[K_girl]

What I find even more frightening is the A-G's statement:

"It says Watson's sentence fails to reflect the gravity of his offence, fails to take into account the aspect of general deterrence.."

Just how many scuba divers are "letting" other scuba divers drown that need to be prosecuted?

As I have brought-up this concern before, some others said - you're worrying about nothing, they aren't going to go after scuba divers for not trying to save other scuba divers and that the only reason this deal was struck was because it was all they could get him on. Really? Just what does this statement mean to you?

[ScubaSteve]

Just how many scuba divers are "letting" other scuba divers drown that need to be prosecuted?

Fine line to walk there....

The way that I interperet your statement, would likely push everybody into full defence mode and have most "would be saviours" look the other way out of fear of persecution if they fail.

[catherine96821]

y e s

[Under-Exposed]

What I find even more frightening is the A-G's statement:

"It says Watson's sentence fails to reflect the gravity of his offence, fails to take into account the aspect of general deterrence.."



It does seem a little odd. The general principle is that a court should consider imposing a punishment that will both deter the offender from committing further crimes (specific deterrence) and deter others who may contemplate committing similar offences (general deterrence). General deterrence will be an important relevant consideration where the offence is prevalent in the community either generally, in a particular location, or in a particular part of the community. None of those would seem to be relevant here (particularly, as I have said previously, there must be considerable doubt about whether the elements could properly have been satisfied for manslaughter by criminal negligence).

The classic statement in Australia about the role of deterrence comes from a decision of the NZ Court of Appeal, approved many times over in Australian jurisdictions, which said:

“… one of the main purposes of punishment, … is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilised countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment?”

This is hardly a situation where people generally have impulses that they might yield to if the Court does not impose a hefty sentence...indeed, quite the opposite may be true.

[alohagal]

Quote from Under-exposed: This is hardly a situation where people generally have impulses that they might yield to if the Court does not impose a hefty sentence...indeed, quite the opposite may be true.

Can you clarify your statement above for me please? As a layperson I am really lost now. Is the crime he was charged with: Allowing her to drown or not saving her, which caused her to drown? It is not really clear to me from the judges statements what exactly he WAS guilty of. Seems the essence was that a reasonably prudent person with his experience and training could have done a better job and if he had acted on that experience his wife would still be alive. I guess my question is what is the general deterrence in this case?

So, which impulse are you saying is the opposite?

I am also diving in Cozumel this week. Mind is on vacation. Met a fellow from Alabama today (yes, same state Gabe Watson is from)who dove the Yongala last year. He said the waves on the top were several feet high. Very difficult to gather your composure to begin descent. If you didn't make it to the line to get yourself down, you were swept away. According to him two expert divers had to be retrieved with a zodiac and aborted the dive altogether.

Mary

[Under-Exposed]

I agree it is not clear precisely what it is that he was guilty of. The sentencing remarks reveal that the trial judge thought he had failed to take certain steps that could have prevented her from drowning, including (this is taken from the sentencing remarks):

“failed to do so in the following respects: you failed to ensure that when the deceased had encountered difficulties she had a supply of oxygen available to her, and, in particular, you failed to share your oxygen supply with her; having released the deceased to recover your face mask and oxygen supply, you did not then take hold of her again or stay with her, or follow her as she sank; you did not attempt at any time to inflate her buoyancy control device or remove the weights which divers often carry to assist them to descend.”

There are pages and pages of this thread where I have described my difficulties with the verdict in this case. But what I meant about the impulses was this: ordinarily one would assume that if you had the experience and training and felt comfortable coming to someone's assistance, then you would do so whether or not there was a legal sanction hanging over you. If you did not feel comfortable so doing (whether because of lack of training, lack of faith in your ability despite having training, or because of adverse conditions, including the state of the diver) then one ought not feel pressured to do so because there may be a criminal sanction hanging over you.

The judge seems to have accepted that he tried to assist but did not do enough, so it is difficult to see how there is any significant deterrence element (whether specific or general) at all.

[K_girl]

I see the difficulty in this sentencing having to do with the idea of "negligence" as the basis of the manslaughter plea. This is known as involuntary manslaughter in the U.S. The typical case goes like this: someone gets drunk, gets behind the wheel, is temporarily mentally impaired hits someone and causes someone to die.

The only way to apply some kind of mental impairment here would be panic or or bad decision-making. In the underwater world, it is bad decision-making that leads to panic. And panic escalates and often becomes a matter of extremely strong sense of self-preservation. I can't think of any other sport that is situationally similar, making it difficult for non-divers to comprehend.

Watson did not describe his own actions as his own panic, but as Tina's panic. He claims got away from her as she knocked his mask and regulator from his face. Many divers, even the most experienced ones would probably head straight to the surface at this point, but he says he managed to take care of the problem. So he was not so temporarily mentally impaired with panic at this point, as he was able to save himself.

As he described, once he took care of this problem, he saw that Tina was sinking too fast for him to catch her. He described his heroic efforts to swim down after her, but made a conscious decision to leave Tina to go to the surface for help. So now, at this point, after making the right decisions to successfully self-rescue, he is suddenly temporarily mentally impaired enough to not make the right decision for Tina and it becomes negligent manslaughter.

In the vast majority of dive accidents where a diver deliberately leaves their dive buddy, the situation occurs out of their own panic and their own strong sense of self-preservation- or they have to leave the buddy because they are low on air or having their own equipment malfunctions - or perhaps they had some kind of underwater disagreement and split on purpose. None of these is what Watson described.

It's basically saying - well, you could have saved your wife, but you deliberately decided not to and that's why we are punishing you, but the reason why is not under consideration. The law gets so wrapped up in technicalities that it seems to lose common sense. And this just makes no sense to me.

[alohagal]

I agree it is not clear precisely what it is that he was guilty of. The sentencing remarks reveal that the trial judge thought he had failed to take certain steps that could have prevented her from drowning, including (this is taken from the sentencing remarks):

“failed to do so in the following respects: you failed to ensure that when the deceased had encountered difficulties she had a supply of oxygen available to her, and, in particular, you failed to share your oxygen supply with her; having released the deceased to recover your face mask and oxygen supply, you did not then take hold of her again or stay with her, or follow her as she sank; you did not attempt at any time to inflate her buoyancy control device or remove the weights which divers often carry to assist them to descend.”

There are pages and pages of this thread where I have described my difficulties with the verdict in this case. But what I meant about the impulses was this: ordinarily one would assume that if you had the experience and training and felt comfortable coming to someone's assistance, then you would do so whether or not there was a legal sanction hanging over you. If you did not feel comfortable so doing (whether because of lack of training, lack of faith in your ability despite having training, or because of adverse conditions, including the state of the diver) then one ought not feel pressured to do so because there may be a criminal sanction hanging over you.

The judge seems to have accepted that he tried to assist but did not do enough, so it is difficult to see how there is any significant deterrence element (whether specific or general) at all.

Yes, and it is greatly appreciated. Keep up the good work.

Seems the judgement is vague enough to cause us this conundrum. Us being Scuba Divers, barristers, and those needing more substantial findings.
Which continues to make it an interesting case to follow.

[ItsBruce]

I’ve been away from this forum for a bit, so I will respond to some older posts.

All along I’ve questioned how anyone could prove Watson turned off Tina’s air. I’ve said that apart from her having died, there is no evidence Watson turned off her air. And, as far as Tina having died, there are other explanations than that her air was shut off. Those factors combined with Watson’s apparent explanation that he panicked and did not properly render assistance to Tina could certainly lead to reasonable doubt.

IMHO, it was a brilliant move for Watson to accept a degree of blame in the form of acknowledging that he panicked and did not properly render assistance to Tina. That would explain away a lot of what happened afterward. Since what happened afterward are circumstantial evidence of guilt, explaining them away diminishes their impact.

As far as whether Watson acted reasonably under water. I do not believe he did. I think most divers do not think he did. However, that is not the test for murder. In fact, that is why the prosecutor was able to get a plea to manslaughter. If Watson had acted reasonably, then the prosecutor probably could not have even gotten that.

A note on plea bargains.

On Monday, I had a hearing in the United States District Court for the Central District of California. Several matters that were on the court’s calendar before my case were criminal cases in which defendants were pleading guilty. I was amazed by how much time the Judge spent ensuring that each defendant knew what he or she was doing, that each knew he or she did not need to plead guilty, and that there was a factual basis for the plea. After going through the litany with each defendant, the Judge questioned the defense attorneys about whether they believed there was evidence that would support a finding of guilt and whether they believed their clients knew and understood the consequences of their pleas, etc. Quite simply the Judge seemed quite unwilling to allow a defendant to plead guilty just for expediency.

Regarding duty of care.

For tort purposes, Watson’s assurances to Tina and her family may be a basis for finding a duty of care. I do not think they do so for criminal liability.

As far as tort liability and professional rescuers, the California Supreme Court, which is considered to be very liberal, has held that even a professional rescuer does not have a duty of care to initiate a rescue. That was in the context of paramedics who stood by and watched someone “bleed out” and were then sued by the decedent’s family. Fascinating.

Another comment based on several posts:

Having read the Judge’s statements at the sentencing, I believe the whole thing to be a bit “contrived.” That is, I think the Judge does not actually believe Watson was guilty of any crime, but was unwilling to refuse the plea. When the Judge listed the factors that supported a finding of guilt, he commented about Watson not ensuring Tina had enough air and about Watson not sharing his air. It is true he didn’t. But, was there any evidence of any need to share air? Tina’s regulator was functioning properly and she had plenty of gas … according to the reports. I think the good Judge was forced to come up with some factors to support acceptance of the plea and might otherwise have been willing to dismiss all charges.

As far as Watson returning voluntarily, I think that is also contrived. Perhaps he did so because he planned on going to trial on a murder charge and on beating it by showing there was reasonable doubt. However, the Judge took this as a showing of remorse.

I am not certain I would have accepted the guilty plea. I’m glad I wasn’t the judge.

[saramiller]

can´t believe he almost got away with that

[Under-Exposed]

Sara, I suspect he probably thinks he did!

[cincidiver]

He could still face a wrongful death suit from the parents of his wife... hopefully he does!

[Dwag766]

I can not imagine how Tina's family must be tormented by not only her death but the horrific manner in which she died. There just has to be something else in store for him.....

[Chris Tauzin]

Great - makes you wonder what people think. How can someone kill another human for their own gain?? That is messed up.

[Under-Exposed]

US A-G backing appeal in Aussie case
July 14, 2009 - 8:09AM

Alabama's attorney-general has sent a letter formally supporting an appeal to increase the one-year sentence given to Alabama man Gabe Watson over the death of his wife while on a diving honeymoon in Queensland.

Troy King, attorney-general for the US southern state of Alabama, sent the letter to Queensland authorities on Monday arguing that Watson should spend more than a year in prison for the death of his newlywed wife, Tina Watson, on the Great Barrier Reef in 2003.

Queensland Attorney-General Cameron Dick last month lodged an appeal against the sentence on the grounds the term was "manifestly inadequate".

The state of Alabama is supporting that appeal, but it can't officially join in the case.

Tina Watson died during a scuba diving trip on the Great Barrier Reef in October 2003 - just 11 days after the pair married.

In June, her 32-year-old husband pleaded guilty to manslaughter in the Queensland Supreme Court, and was sentenced to serve one year in jail after he pleaded not guilty to her murder and the crown accepted his plea of guilty to manslaughter.

He was sentenced to a maximum of four-and-a-half years.

[K_girl]

Appeal hearing set in Australia for Hoover man sentenced in wife's drowning death

Posted by Marienne Thomas-Ogle -- Birmingham News July 07, 2009 2:46 PM (http://blog.al.com/spotnews/2009/07/sentencing_appeal_hearing_set.html)

An Australian appeals hearing on the sentence of a Hoover man set to serve 12 months for the drowning death of his wife has been scheduled for July 17.

A spokesman for Alabama Attorney General Troy King said his office was contacted by Australian officials last night to alert King that the hearing on Gabe Watson's sentence for the death of Christina "Tina" Thomas Watson was scheduled.

Queensland Attorney General Cameron Dick said on June 18 he found Watson's sentence "manifestly inadequate" and that he would file an appeal.

According to Chris Bence, Troy King's chief-of-staff, a brief outlining the Queensland attorney general's appeal and request for a stronger sentence for Watson will be filed in the Queensland Court of Appeals Wednesday. (July 8 here, actually tonight there, but date is same).

A response from Watson's attorneys is due July 15, Bence said.

Watson's American attorney Bob Austin, had no comment today.

[K_girl]

Alabama AG: Australia doesn't want reputation of the new Aruba

Posted by Marienne Thomas-Ogle -- Birmingham News July 13, 2009 4:40 PM (http://blog.al.com/spotnews/2009/07/alabama_ag_australia_doesnt_wa.html)

Alabama Attorney General Troy King has sent a legal brief to Australian prosecutors citing several reasons why a Hoover man sentenced to 12 months in prison in the death of wife should receive more jail time.

"If we don't file anything and sit home and do nothing, the Australians will never hear Alabama's perspective on this case," King said. "I do not believe the Australians are unjust people and I know the country doesn't want the reputation of the new Aruba."

hearing on the sentence for Gabe Watson, 32, is scheduled for Friday in the Queensland Court of Appeals.

In the 5-page brief, King cites examples of Austrailan manslaugher cases where greater sentences were rendered.

Watson received a 4 1/2 year sentence, reduced to 12 months, in the October 2003 drowning death of Christina "Tina" Thomas Watson of Helena while the two were on a honeymoon scuba diving expedition off the coast of Queensland.

In a June 5 court appearance, Watson pleaded not guilty to murder and guilty to manslaughter in Tina Watson's death. A certified rescue diver, he admitted he did not fulfill his obligation to his wife as her diving buddy.

King's brief says "the value of 26-year-old Tina Watson's life is worth more than 12 months" and points at Watson's sentence as having a poor deterrence impact. "Levying a 12-month suspended sentence on Watson sends a terrible message to foreigners: 'If you desire to kill your spouse, Queensland should be your homicide destination' ", the brief states.

Watson's Birmingham attorney, Bob Austin, declined to comment.

[K_girl]

I have started a Watson Case blog. For now, it is just a resource to find the reference sources in one convenient location. The blog does not attempt to discuss the issues. I have included a Cast of Characters, links to all the major documents such as Watson's statements, video, and I have indexed major news stories. If you have a news story or other resource you would like me to index or provide a link to, please leave a comment on the blog. You do not have to register to leave a comment.

Here is the link: Tina Watson Dies While Scuba Diving with Her Husband (http://watson-case.livejournal.com)

[diving queen]

I'm new to this board but I was just reading about another incident from last week on the Great Barrier Reef and I'm curious if the precedence set by the Watson case is going to affect the dive buddy of this fellow too.

Go to CDNN and do a search for "Fatal diving accident prompts calls for strict government regulation of dive industry" (this board will not allow me to post a URL until I've made 5 posts...go figure).

It sounds like to me that QLD is going to have certify or re-certify (if people were certified elsewhere) everyone that comes to dive in that state if they ever want people to dive there again. Especially now that the precedence has been set that if you inadequately perform your duties as "dive buddy", you could be held legally responsible and spend time in jail. I mean, how many people could potentially try to save a panicking diver because they feel "legally" responsible to do so and then end up perishing themselves?

Just something to think about...

[boulderjohn]

Go to CDNN and do a search for "Fatal diving accident prompts calls for strict government regulation of dive industry" (this board will not allow me to post a URL until I've made 5 posts...go figure).



CDNN :: Fatal Diving Accident Prompts Calls for Government Regulation (http://www.cdnn.info/news/safety/s090710.html)

[Under-Exposed]

I can't believe I will be out of radio range (as co-incidence would have it, I will be on the SpoilSport on the Osprey Reef!) while the appeal is being heard...I hope they reserve their decision, otherwise if they announce it straight away it will be FOUR DAYS before I can comment!!!

[K_girl]

Under-Exposed - I think I can speak for many of us here, you will be SORELY missed and we will be anxiously awaiting your return. You have always provided great insight.

[livinoz]

The Court of Appeal in Brisbane has heard the sentence handed to American Gabe Watson should be increased over the honeymoon manslaughter of his wife.

In June, Supreme Court Justice Peter Lyons sentenced 32-year-old David Gabriel 'Gabe' Watson to four-and-a-half-years in jail, to be suspended after 12 months, after Watson pleaded guilty to manslaughter.

Gabe Watson admitted to letting his 26-year-old wife Tina Mae Watson drown while on a scuba diving trip at Yongala wrecks off Townsville in north Queensland in 2003.

The sentence sparked outcry from her family and Queensland Attorney-General Cameron Dick announced earlier last month he would appeal against it.

The notice filed in June said the judge gave too much weight to mitigating factors, and failed to take into account general deterrence and the gravity of the offence.

Walter Sofronoff QC, for the Queensland Attorney-General, told the court the sentencing Judge Peter Lyons did not take into account the gravity of the offence.

He said the sentence should reflect the gravity of Watson's abandonment of his duty as a diver, as well as to his wife.

The defence has argued the increased sentence is too high and inappropriate.

The Court of Appeal has reserved its decision.

Watson sentence should increase, court told - ABC News (Australian Broadcasting Corporation) (http://www.abc.net.au/news/stories/2009/07/17/2628856.htm)

There should therefore be a judgment in writing at some stage, probably next week, but the A-G's department is asking for the maximum 7 years with a minimum of 2 1/2 to be served.

[ItsBruce]

I am perplexed.

There is another threat in the forums regarding a woman who died while diving in the Bahamas. Based on witness statements, it could be argued that the victim's dive buddy, a DM, abandoned her or at least failed to fulfill her duties as the victim's dive buddy. How long a prison sentence do people on this forum believe the buddy should receive?

Keep in mind that Watson pled guilty and therefore was convicted only of manslaughter based on the theory he failed to fulfill his duties as his wife's dive buddy. I recognize that there are any number of people who, though not witnesses or forensics experts firmly believe that Watson somehow turned off his wife's air long enough for her to die and then turned it back on before letting her sink to the bottom. However, Watson was sentenced based on manslaughter, not on murder.

Therefore, anyone who believes Watson should face a stiffer sentence should advocate a stiff sentence for the DM in the Bahamas.

And, for those who want to see Watson receive a stiffer sentence on the manslaughter charge because you think he murdered his wife, I do not have adequate words to express my disdain for you. Yours is the mentality of a lynch mob. Whether Watson murdered his wife or not, his conviction was for failing to execute his duties as a dive buddy and the sentence should be based on that plus appropriate mitigating factors, not on a crime for which he was not convicted.

Now, personally, I would like to see the appellate court rule that the trial court abused its discretion in accepting the plea and order that Watson be tried on a single count of murder in the first degree, on the theory he killed his wife by intentionally turning off her air. Let the State then try to prove its case. Either it will or it won't. If it does, then a sentence commensurate with a first degree murder charge is appropriate. If it doesn't, he walks.

Let's see what the ADMISSIBLE evidence shows and what a jury charged with making a finding of BEYOND A REASONABLE DOUBT comes up with!

But, to impose a long sentence on a manslaughter charge because people (who are not jurors and who have not heard admissible evidence in a duly constituted trial) think Watson is guilty of murder is contrary to the rule of law and I would hope that no court in a civilized society would do so.

Note: I have no axe to grind here. I really do not care if Watson is convicted of murder or not. In fact, while I do not think it likely, I'd be just fine if a jury, considering the admissible evidence and applying the proper burden of proof convicted him of murder. My only axe is that I want to see that the rule of law is applied. (Further note: following the law and getting justice are not necessarily the same thing. I go with the law, because in making laws, lawmakers decide what s just.)

[K_girl]

ItsBruce - actually I agree with you for the most part. I would have preferred to see a fair trial and not this crazy manslaughter conviction for the very reasons you state. Even as rescue divers, we are taught to stay away from divers who are panicking because they can cause the diver attempting rescue to drown by grabbing at regulators and masks. The manslaughter conviction is confusing because the sentencing judge seemed to believe that Tina knocked-off Watson's face mask and knocked his reg out of his mouth. Although it was not articulated, you have to make the assumption that Watson could have rescued her without harm to himself in order to get any kind of conviction, manslaughter or otherwise. So none of it, as far as I am concerned, makes any sense whatsoever.

The appeal of the sentencing in the manslaughter charges are not being brought-up on the premisis that Watson murdered Tina. It is being brought on the basis that it was the lightest sentence possible and that other manslaughter cases have brought higher sentences. Clearly, I think the sentencing judge believed Watson, that he was endangered by his wife's panic and gave the lightest sentence possible. However, if it is true that Watson had plenty of opportunity to rescue his wife with no harm to himself, especially after successfully managing his own "dire" situation with his reg and his mask being knocked off his face, which, by his own admission, he was able to do, then perhaps the manslaughter maximum should be imposed.

It doesn't matter what anyone else says - it only matters how the justice system handles it. I don't see law enforcement going after the DM in the Bahamas. The woman diver was clearly combative, symptoms of a stroke, which had only a month before. I think the people who are trying to say differently do not represent the majority and therefore do not constitute a "mob mentality."

I know there is a lot of hateful speech against Watson, not so much on this board, but I think the majority of us would have preferred to see a trial and let a jury decide. A "mob mentality" moves to appoint themselves as judge, jury and executioner - I am not seeing that here. If someone argues a point that they believe shows guilt, that does not make them part of some "mob mentality." I just hope you can distinguish the difference.

[livinoz]

K_girl, so you believe that the comments here and elsewhere on the 'net that state Watson is guilty of murder no matter what the court has decided based on the evidence, and the fact the Alabama Governor has said that he will try Watson for murder when he returns to the US, after serving his sentence I might add, plus the fact extensive and negative publicity has placed pressure on the Queensland A-G to appeal the sentence, is not evidence of a mob mentality? I beg to differ. Appeals can also be politically motivated, and are not necessarily based solely on legal argument. I seem to remember that the judge's comments in sentencing Watson stated that he considered:

"the burden [Watson carried] has been increased by the very extensive publicity which these events have occasioned. That is demonstrated, to some extent, by the obvious presence of a significant number of representatives of the media in the court today. I also accept that in that period [Watson has] been subject to accusations of matters of which [he is] not guilty." (emphasis added).

Making statements like "crazy manslaughter conviction" also demonstrate bias; no matter what the outcome has been, obviously some people would have only been satisfied with Watson being found guilty of murder and sentenced accordingly. But Watson was not convicted of murder and the appeal is to increase his sentence for manslaughter of which he was found guilty. Don't forget that the Court of Appeal can also decrease his sentence, not that I personally believe they will. As for the statement "arguing a point that shows guilt" may I say again, he has been found guilty of manslaughter, so any further arguments and assumptions regarding "murder" are purely specious.

Please, let's move on. The man has been found guilty of manslaughter, he is in jail, and the sentence appeal is before the courts; what more do you want?

[Docc]

Please, let's move on. The man has been found guilty of manslaughter, he is in jail, and the sentence appeal is before the courts; what more do you want?

If it had been MY daughter he married and then killed/let drown/failed to attempt to save......... I'd want his sorry ass hung from the closet available tree.

[livinoz]

If it had been MY daughter he married and then killed/let drown/failed to attempt to save......... I'd want his sorry ass hung from the closet available tree.

So failure "to attempt to save" means you deserve death?

Great.

That has serious connotations for us all as divers then doesn't it?

[Docc]

So failure "to attempt to save" means you deserve death?

Great.

That has serious connotations for us all as divers then doesn't it?

I only gave my humble opinion in regards to if MY family had been involved in the situation. Notice in my post I said MY daughter. I in no way expect the rest of the world to agree with me. Obama getting elected already showed that the United States populace doesn't agree me.

[NJ to FLA]

I only gave my humble opinion in regards to if MY family had been involved in the situation. Notice in my post I said MY daughter. I in no way expect the rest of the world to agree with me. Obama getting elected already showed that the United States populace doesn't agree me.
Well I, and my family, (and many people I know) agree with you! :) On both issues.

[burnsfamily382]

there is a significant difference between the two cases quoted however and that is that none of us is yet aware of the comments of the dm in the bahamas case whereas we have all been able to read and re-read Watson's comments and reactions to the events in his case.

Watson has, rightly or wrongly, been tried in the court of public opinion but the only court that really matters is the one that he looked like avoiding. if the public reaction to his plea bargain is that he is forced to stand before 12 jurors i am good with that.

if he walks after due process people will still have their opinions but justice WILL have been served and we will all have to accept the outcome.....whatever that may be.

[ItsBruce]

IMHO, the manslaughter plea makes no sense. Assuming Watson did not actively imperil Tina, even if he decided not to effectuate a rescue that he could have performed, I do not see that as rising as high as manslaughter. So, why would the prosecutor offer manslaughter? And, why would Watson plead guilty to it? And, why did the judge accept the plea and impose the sentence he did?

Based on my knowledge, experience and training, my opinion is that the prosecutor suspected Watson of murder, as do many people, but the prosecutor recognized that he could not prove it beyond a reasonable doubt. Therefore, he was willing to make a deal that would at least guarantee some jail time. (I've seen it many times.)

Based on my knowledge, experience and training, my opinion is that Watson pled guilty to manslaughter because he wanted to avoid the risk of being found guilty of murder. (I've seen that even more times.)

Based on my knowledge, experience and training, my opinion is that the judge had doubts about criminal liability based on Watson's failure to effect a rescue, but was unwilling to disregard both the prosecutor's desire to be sure of at least some jail time and Watson's desire to avoid a possible murder conviction. As a result, the judge imposed the minimum possible sentence. I suspect that if given the opportunity to do so, the judge would have set even a shorter sentence.

A final thought: I suspect that even if there was uncontrovertable evidence that Tina died of natural causes, wholly unrelated to anything having to do with Watson, there would be many people, including some on SB, that would not let go of their belief that he was guilty of murder.

[Under-Exposed]

Bruce...what exactly is your "knowledge, experience and training"?

[ItsBruce]

I still fail to see why some people think that even if all Watson did was fail to effect a rescue, he is guilty of a crime, but do not feel the same way about the DM in the Bahamas who also failed to effect a rescue.

Note, Watson may have had a "rescue" certification. But, heaven knows, that does not mean he was REALLY qualified to effect a rescue. In contrast, the DM in the Bahamas was a DM and while that does not mean she was qualified to effect a rescue, there is a better be of it.

[ItsBruce]

Bruce...what exactly is your "knowledge, experience and training"?

I am an attorney and litigator. I spent time as a legal assistant (law clerk) to a United States Magistrate Judge in Federal Court. where I assisted the Magistrate Judge in deciding cases. I have also served as a Judge Pro Tem in the Los Angeles Superior Court. And, I act as a mediator for the Court of Appeal. In those capacities, I have personal experience in how deals are made and decisions are rendered.

As a litigator who actually tries cases, if I were the prosecutor in the Watson case, and if I had nothing better than the evidence that was available to the public (big "ifs"), I would have taken the case against Watson to trial ONLY if I had no other choice, i.e. he would not plead guilty to anything more serious than peeing in the ocean.

And, if I were Watson's defense attorney, I would have recommended against pleading to manslaughter ONLY if I had evidence Watson was with the Judge at the time of Tina's death.

As far as the sentence, I have seen many instances where the judge does not think the defendant is guilty of a crime, but is unwilling to reject a guilty plea (and I have had the good fortune to be able to discuss the matter with the judge.) All the judge can do is impose the minimum sentence.

I hope that answers your question.

[Under-Exposed]

It certainly does. I don't know whether you've followed my posts on this topic, but you will see that I am broadly in agreement with much of what you say.

[ItsBruce]

It certainly does. I don't know whether you've followed my posts on this topic, but you will see that I am broadly in agreement with much of what you say.

I am following your posts rather intently. You have good insight on the matter.

[catherine96821]

I am an attorney and litigator. I spent time as a legal assistant (law clerk) to a United States Magistrate Judge in Federal Court. where I assisted the Magistrate Judge in deciding cases. I have also served as a Judge Pro Tem in the Los Angeles Superior Court. And, I act as a mediator for the Court of Appeal. In those capacities, I have personal experience in how deals are made and decisions are rendered.

As a litigator who actually tries cases, if I were the prosecutor in the Watson case, and if I had nothing better than the evidence that was available to the public (big "ifs"), I would have taken the case against Watson to trial ONLY if I had no other choice, i.e. he would not plead guilty to anything more serious than peeing in the ocean.

And, if I were Watson's defense attorney, I would have recommended against pleading to manslaughter ONLY if I had evidence Watson was with the Judge at the time of Tina's death.

As far as the sentence, I have seen many instances where the judge does not think the defendant is guilty of a crime, but is unwilling to reject a guilty plea (and I have had the good fortune to be able to discuss the matter with the judge.) All the judge can do is impose the minimum sentence.

I hope that answers your question.

...and a very smart, honest guy.:D

[K_girl]

K_girl, so you believe that the comments here and elsewhere on the 'net that state Watson is guilty of murder no matter what the court has decided based on the evidence, and the fact the Alabama Governor has said that he will try Watson for murder when he returns to the US, after serving his sentence I might add, plus the fact extensive and negative publicity has placed pressure on the Queensland A-G to appeal the sentence, is not evidence of a mob mentality? I beg to differ. Appeals can also be politically motivated, and are not necessarily based solely on legal argument. I seem to remember that the judge's comments in sentencing Watson stated that he considered:

"the burden [Watson carried] has been increased by the very extensive publicity which these events have occasioned. That is demonstrated, to some extent, by the obvious presence of a significant number of representatives of the media in the court today. I also accept that in that period [Watson has] been subject to accusations of matters of which [he is] not guilty." (emphasis added).

Making statements like "crazy manslaughter conviction" also demonstrate bias; no matter what the outcome has been, obviously some people would have only been satisfied with Watson being found guilty of murder and sentenced accordingly. But Watson was not convicted of murder and the appeal is to increase his sentence for manslaughter of which he was found guilty. Don't forget that the Court of Appeal can also decrease his sentence, not that I personally believe they will. As for the statement "arguing a point that shows guilt" may I say again, he has been found guilty of manslaughter, so any further arguments and assumptions regarding "murder" are purely specious.

Please, let's move on. The man has been found guilty of manslaughter, he is in jail, and the sentence appeal is before the courts; what more do you want?

Agreed that there has been a lot of opinion expressed as to guilt, but to me, a mob mentality goes further than that and takes justice into their own hands. I don't think that will happen here as it never happened in the O.J. case - that had far more publicity than this case will ever have. You cannot stop people from forming opinions, but that doesn't mean they are all going to band together and take justice into their own hands. If you want to define people having the opinion that he could be guilty as a mob mentality, then that is your right. As far as I am concerned the judge made a mistake in saying that to Watson "for which you are not guilty", when he should have said "for which you have not been found guilty." Without a trial to try the facts, I don't think the judge should say that. Without a trial to try the facts, even the judge cannot be "the trier of fact."

You did not read what I said about the "crazy manslaughter conviction." I did NOT talk about this in terms of trying to say Watson was guilty of murder, I talked about it in terms of this plea setting precedence to expose divers to criminal liability. Many others on this board the same point I have - that the manslaughter conviction makes no sense. I don't understand why you are trying to make what I said mean something completely different in a totally different context.

[livinoz]

Mob mentality is not just taking things into your own hands; then it is not "justice" but a lynch mob and far from what we perceive as just. It is also a mindset, an assumption that you, as a group, are right and everyone else is wrong no matter what the evidence.

I don't think I've said anywhere that the manslaughter conviction makes no sense. If others have a different opinion, fine, that's their prerogative but I don't have to concur. To me, not having access to the thought processes of Watson's legal team or the Judge or the whole plea bargaining process that occurred means you are groping in the dark. I am aware there are people here who have legal expertise and I won't dispute their knowledge; all the same I am yet to be convinced by their arguments. What I have said, in agreement with you, is that a manslaughter conviction for Watson leaving his dive buddy sets a precedent that also concerns me.

[K_girl]

livinoz - I'm glad we could find something to agree upon.

I do think he was guilty of something and indeed he did plea guilty to manslaughter, so I do believe he had culpability in her death. Defining exactly what that culpability was is tricky and not very well defined by the manslaughter conviction.

I understand this manslaughter conviction to mean that:

Watson had the means, the opportunity and mental capacity to rescue Tina without harm to himself and simply chose not to do so.

Means = enough air, equipment working properly. Opportunity = victim is visible and accessible. Mental capacity = capable of correctly evaluating the situation to make a correct decision, even in an emergency. Without harm to self = victim is not panicking and combative, victim has not entered into an area that presents a danger to the buddy.

I think these elements needed to be presented by the prosecution as part of the plea deal and stated during the sentencing to establish the legal precedence of convicting someone for the first time of not fulfilling a dive buddy's obligation to rescue. This afterall, does affect all of us as divers and we have a right to know how our actions could be interpreted in the future. So the thought processes by the prosecution and the judge that brought this case to the manslaughter plea are indeed very important to us and I don't think we should just let it go.

The Australian authorities only said a few things like, he left her, he didn't drop her weights, he didn't share air with her - all with no recognition of his means, opportunity, mental capacity or harm to self. Horrible way to leave this case open for so much future interpretation and potential for abuse, most especially in civil cases, just horrible.

[alohagal]

IMHO, the manslaughter plea makes no sense. Assuming Watson did not actively imperil Tina, even if he decided not to effectuate a rescue that he could have performed, I do not see that as rising as high as manslaughter. So, why would the prosecutor offer manslaughter? And, why would Watson plead guilty to it? And, why did the judge accept the plea and impose the sentence he did?

Based on my knowledge, experience and training, my opinion is that the prosecutor suspected Watson of murder, as do many people, but the prosecutor recognized that he could not prove it beyond a reasonable doubt. Therefore, he was willing to make a deal that would at least guarantee some jail time. (I've seen it many times.)

Based on my knowledge, experience and training, my opinion is that Watson pled guilty to manslaughter because he wanted to avoid the risk of being found guilty of murder. (I've seen that even more times.)

Based on my knowledge, experience and training, my opinion is that the judge had doubts about criminal liability based on Watson's failure to effect a rescue, but was unwilling to disregard both the prosecutor's desire to be sure of at least some jail time and Watson's desire to avoid a possible murder conviction. As a result, the judge imposed the minimum possible sentence. I suspect that if given the opportunity to do so, the judge would have set even a shorter sentence.

A final thought: I suspect that even if there was uncontrovertable evidence that Tina died of natural causes, wholly unrelated to anything having to do with Watson, there would be many people, including some on SB, that would not let go of their belief that he was guilty of murder.

Your statements above hit the nail on the head. Well stated. However your last paragraph...not so much. I think there are many people who do think that if there was enough cause in the first place to charge someone with murder...and then there is NO trial...it just leaves a lot of unanswered questions. I do feel that Gabe Watson's interview with the police was a big part of questioning his truthfullness and that cannot be denied. It is on tape. Batteries in backwards yet computer beeping at him, is just one example. There are so many other examples to go along with that one that make people doubt his truthfullness altogether. HIS WORDS. Not the media or the "mob"

[ShakaZulu]

Maybe he wanted to get away from his current wife, since the previous trick didn't work too well, pleading guilty will do the job :)

[livinoz]

K_girl, I don't disagree with your intentions; as I've stated before everyone is entitled to their opinion, but that's all it is, an opinion, based on incomplete information. None of us can know what happened to make Watson decide to plead guilty to manslaughter, none of us can know what evidence was available to the prosecution or the Judge when he sentenced Watson, as we aren't privy to any of that. All I'm saying is that people are surmising about this and making up their minds without recourse to the facts of the case. It's okay to have an opinion, but let's not presume that the entire legal system has failed because we don't agree with the decision made.

And unlike alohagal, I have to agree with Its Bruce there. I think that even if Watson had been sent to trial, found guilty and jailed for say 10 years, some people will still have found that unacceptable. Let me ask a question; if he was sent to trial and found not guilty, would that have satisfied everyone? I think not. If you look at some of the comments even on here, people have already long ago decided on his guilt based on nothing more than media reports. That's what I have a problem with and always will have. For myself personally, I'll leave it up to the Judicial system to decide the best course of action, imperfect as it can be, but without it all we would have is anarchy.

I agree that Watson made conflicting statements at times, but the Judge in his sentencing remarks stated that though there were:

inconsistencies and some attempts to put blame on other people....[t]here does not seem to be any persistence in your attempt to put blame on anyone else and I accept that the responsibility for this loss is yours alone. The inconsistencies and those attempts, to me, while they do not speak particularly well of you, should be looked at in the circumstances in which they occurred. That is, they occurred
shortly after the dive and at a time when you, no doubt, were deeply upset by the events which have occurred.

The Judge has given him benefit of the doubt in this situation because of Watson's distress. Can we not do the same?

As I've said, Watson is guilty of manslaughter, he's in jail and an appeal is before the courts to increase the length of his sentence; for myself, I'll accept the court's decision.

[alohagal]

K_girl, I don't disagree with your intentions; as I've stated before everyone is entitled to their opinion, but that's all it is, an opinion, based on incomplete information. None of us can know what happened to make Watson decide to plead guilty to manslaughter, none of us can know what evidence was available to the prosecution or the Judge when he sentenced Watson, as we aren't privy to any of that. All I'm saying is that people are surmising about this and making up their minds without recourse to the facts of the case. It's okay to have an opinion, but let's not presume that the entire legal system has failed because we don't agree with the decision made.

And unlike alohagal, I have to agree with Its Bruce there. I think that even if Watson had been sent to trial, found guilty and jailed for say 10 years, some people will still have found that unacceptable. Let me ask a question; if he was sent to trial and found not guilty, would that have satisfied everyone? I think not. If you look at some of the comments even on here, people have already long ago decided on his guilt based on nothing more than media reports. That's what I have a problem with and always will have. For myself personally, I'll leave it up to the Judicial system to decide the best course of action, imperfect as it can be, but without it all we would have is anarchy.

I agree that Watson made conflicting statements at times, but the Judge in his sentencing remarks stated that though there were:

inconsistencies and some attempts to put blame on other people....[t]here does not seem to be any persistence in your attempt to put blame on anyone else and I accept that the responsibility for this loss is yours alone. The inconsistencies and those attempts, to me, while they do not speak particularly well of you, should be looked at in the circumstances in which they occurred. That is, they occurred
shortly after the dive and at a time when you, no doubt, were deeply upset by the events which have occurred.

The Judge has given him benefit of the doubt in this situation because of Watson's distress. Can we not do the same?

As I've said, Watson is guilty of manslaughter, he's in jail and an appeal is before the courts to increase the length of his sentence; for myself, I'll accept the court's decision.
I should have qualified my statement, certainly there are always going to be some people who think he is guilty for whatever reason. I don't think there is a MOB here on this thread that thinks so. When I read the words MOB and MEDIA and EVERYONE and MOST, I find it to be a little much sometimes.

I think all of us agree that we would rather see the wheels of justice turn in the direction of following law. So, I think we can dispense with the MOB and MEDIA rhetoric here.

I don't think the media would have given one sniff to this story if it wasn't for the fact that the investigators were going after an indictment and got one.

But, none of that explains the possible precedent being set with this case and conviction and now argued on this thread that RESCUE divers or mere diving buddies may now be held liable due to this case. I think most reasonable people on this thread think it is very unreasonalbe for Gabe Watson to spend one minute in prison based on the judges statements. I personally don't think he should.

[livinoz]

I should have qualified my statement, certainly there are always going to be some people who think he is guilty for whatever reason. I don't think there is a MOB here on this thread that thinks so. When I read the words MOB and MEDIA and EVERYONE and MOST, I find it to be a little much sometimes.

I think all of us agree that we would rather see the wheels of justice turn in the direction of following law. So, I think we can dispense with the MOB and MEDIA rhetoric here.

I don't think the media would have given one sniff to this story if it wasn't for the fact that the investigators were going after an indictment and got one.

But, none of that explains the precedent being set and argued on this thread that RESCUE divers or mere diving buddies may now be held liable due to this case. I think most reasonable people on this thread think it is very unreasonalbe for Gabe Watson to spend one minute in prison based on the judges statements. I personally don't think he should.

I certainly was not just referring to this forum; this type of "rhetoric" as you call it is all over the internet, on various sites set up by people who have an axe to grind. He was tried and convicted long before he returned to Australia. And by the way I wasn't the first person to use the word "mob".

And as I have said many times, I totally agree that this judgment has serious connotations for us all as divers, I have never disputed that. But when I read all the suppositions I think we need to step back and look at the facts, not the "media" hype. And the truth is we don't have any "evidence" other than the (incomplete) Coroner's report and the Judge's sentencing remarks.

As I said, I'll await the appeal decision and I for one am happy to leave it with the courts. I have nothing further to add until that day.

[K_girl]

K_girl, I don't disagree with your intentions; as I've stated before everyone is entitled to their opinion, but that's all it is, an opinion, based on incomplete information. None of us can know what happened to make Watson decide to plead guilty to manslaughter, none of us can know what evidence was available to the prosecution or the Judge when he sentenced Watson, as we aren't privy to any of that. All I'm saying is that people are surmising about this and making up their minds without recourse to the facts of the case. It's okay to have an opinion, but let's not presume that the entire legal system has failed because we don't agree with the decision made.

I still strongly believe that the prosecution and the judge in this case owe divers who could potentially be prosecuted in the future under the precedence in this case, exactly what about this case constitutes the obligation of a dive buddy to rescue. The judge and prosecution in this case have left a huge gaping hole and the Australian legal system has failed to give a proper opinion in either the prosecution's acceptance of the plea nor the judge's sentencing remarks to provide future guidance. I'm saying those elements should have included an examination of means, opportunity, mental capacity and potential harm to self. The way this case is left now leaves too much open for interpretation when trying to apply this case to any future case. If you disagree that this was a failure and believe the legal system worked properly, then why have you expressed concerned with the outcome? I don't understand your logic. Exactly what is your concern and how do you think your concern should be addressed? And don't you think your concern is shared by other divers and therefore should be addressed?

And unlike alohagal, I have to agree with Its Bruce there. I think that even if Watson had been sent to trial, found guilty and jailed for say 10 years, some people will still have found that unacceptable. Let me ask a question; if he was sent to trial and found not guilty, would that have satisfied everyone? I think not. If you look at some of the comments even on here, people have already long ago decided on his guilt based on nothing more than media reports. That's what I have a problem with and always will have. For myself personally, I'll leave it up to the Judicial system to decide the best course of action, imperfect as it can be, but without it all we would have is anarchy.

If there had been a trial and Watson was found not guilty, I would have been satisfied that justice had been served. Even though I discussed what elements I thought could potentially lead to a guilty verdict, I would never advocate for anarchy. I would never advocate that anyone take the law into their own hands either as an individual or as a group. Any actions taken in the future should all be done within the purview of the law. I would never advocate for anything else.

I agree with Alohagal in that based on the judge's statements, it really sounded like Watson was completely innocent in his eyes and I don't understand why he accepted any kind of guilty plea. I think the judge must have been worried about what kind of precendent they are setting here. He really should not have accepted the plea and I think some of his statements expresses his reluctance. Getting Watson to serve some kind of time took priority over the potential future consequences. Maybe the prosecution thought some time was better than no time, but I don't think they thought this through.

[K_girl]

And as I have said many times, I totally agree that this judgment has serious connotations for us all as divers, I have never disputed that. But when I read all the suppositions I think we need to step back and look at the facts, not the "media" hype. And the truth is we don't have any "evidence" other than the (incomplete) Coroner's report and the Judge's sentencing remarks.

A judge's sentencing remarks is not "evidence" in a case. Since there was no trial, there were no facts argued and presented. There was no "trier of fact" either by judge or jury. There was no advocate for the victim to argue that side of the case. There were no witnesses that testified in front of this judge. There was no physical evidence presented at a trial. Plea deals are usually quick, short and to the point. The judge is not going to take the time to pour over months of transcripts of the Coroner's Inquest to determine Watson's guilt or innocence. The judge will rely on what the prosecution decides to include in their plea agreement. It makes no sense that the plea agreement would argue elements of guilt for a murder case when that is not its purpose. Basically, the judge is going to do what the prosecution wants. If they don't want to go to trial, they aren't going to go to trial.

The evidence would be more than just the Coroner's Report, it would have been Watson's statements and the complete transcript of the Coroner's Inquest which included the testimony of more than 65 prosecution witnesses over a period of months. All we have access to is the Coroner's Report which is a relatively very short conclusion of the Coroner.

[livinoz]

A judge's sentencing remarks is not "evidence" in a case. Since there was no trial, there were no facts argued and presented. There was no "trier of fact" either by judge or jury. There was no advocate for the victim to argue that side of the case. There were no witnesses that testified in front of this judge. There was no physical evidence presented at a trial. Plea deals are usually quick, short and to the point. The judge is not going to take the time to pour over months of transcripts of the Coroner's Inquest to determine Watson's guilt or innocence. The judge will rely on what the prosecution decides to include in their plea agreement. It makes no sense that the plea agreement would argue elements of guilt for a murder case when that is not its purpose. Basically, the judge is going to do what the prosecution wants. If they don't want to go to trial, they aren't going to go to trial.

The evidence would be more than just the Coroner's Report, it would have been Watson's statements and the complete transcript of the Coroner's Inquest which included the testimony of more than 65 prosecution witnesses over a period of months. All we have access to is the Coroner's Report which is a relatively very short conclusion of the Coroner.

That's why I used "evidence" in quotation marks; I know it is not evidence per se. What I am saying is that we are not privy to everything so we are making assumptions based on not very much in my opinion. I don't want to say anymore at present. I need a break from this.

[K_girl]

Livinoz - I understand what you are saying, but I think you also made some assumptions that the judge made a thorough review of all the existing evidence in the case and I don't believe that happened. The plea agreement was struck without any legal argument being presented on behalf of the victim for the murder charge that the Coroner had determined. The prosecutors and law enforcement involved in presenting the evidence at the Coroner's Inquest for a murder charge had no say in this plea agreement. So I don't think you can make the argument that the judge knew everything there was to know about the case.

[bowlofpetunias]

Livinoz - I understand what you are saying, but I think you also made some assumptions that the judge made a thorough review of all the existing evidence in the case and I don't believe that happened. The plea agreement was struck without any legal argument being presented on behalf of the victim for the murder charge that the Coroner had determined. The prosecutors and law enforcement involved in presenting the evidence at the Coroner's Inquest for a murder charge had no say in this plea agreement. So I don't think you can make the argument that the judge knew everything there was to know about the case.

Interesting. On what do you base this conclusion? UnderExposed is this the process? Would the Judge spend time reviewing information before rendering his decision on the sentence? I don't know the procedures here .... this would be very interesting to know..

[livinoz]

Livinoz - I understand what you are saying, but I think you also made some assumptions that the judge made a thorough review of all the existing evidence in the case and I don't believe that happened. The plea agreement was struck without any legal argument being presented on behalf of the victim for the murder charge that the Coroner had determined. The prosecutors and law enforcement involved in presenting the evidence at the Coroner's Inquest for a murder charge had no say in this plea agreement. So I don't think you can make the argument that the judge knew everything there was to know about the case.

But in that case doesn't that mean you are presuming all the Judge knew was basically whatever the Crown wanted him to know?

Watson was in Australia for three weeks, in custody, before he made his guilty plea, or should I say his guilty plea was made public. The Judge had access not only to the complete Coroner's report but to all the witness statements, the tapes recorded by the police and every report from the protracted investigation. He would also have had a pre-sentence report which can include victim statements (or family in this case) as well as any other relevant information. From your post, are you suggesting he would have made up his mind basically on the spot regarding the sentence? Reading through his sentencing remarks I think not; he had obviously read and prepared his statement and then sentenced accordingly. Yes, there was no trial and no chance to cross-examine the witnesses but do you think after six years they would have had much to add, other than what was in their original statements?

Yes, I agree that the guilty plea and sentencing remarks pose a problem for divers. Until that precedent is tested though we have no way of knowing how it will impact on us all. Bear in mind that many other cases also set precedents, and as far as I'm aware it doesn't necessarily follow that people will be found guilty on precedent alone. Speaking personally I have no real problem with the way this particular case has been handled by the Judiciary here, and any concerns I have can be addressed by recourse to the legal system itself. We have an adversarial system which presumes innocence until proven otherwise, and I have to believe that will be sufficient. Some may view that as naive, I do not.

[ItsBruce]

... As far as I am concerned the judge made a mistake in saying that to Watson "for which you are not guilty", when he should have said "for which you have not been found guilty."

I wholeheartedly agree, though I expect the Judge really meant the "for which you have not been found guilty."

... I did NOT talk about this in terms of trying to say Watson was guilty of murder, I talked about it in terms of this plea setting precedence to expose divers to criminal liability. Many others on this board the same point I have - that the manslaughter conviction makes no sense.

As I've noted, manslaughter makes little or no sense and though it does not set a legal precedent and is not binding on any future court, it sets a bad precedent in terms of prosecutorial mindset, e.g. "If I got it once, I can get it again."

Since the plea is to manslaughter, the Judge cannot take into account his or others' feelings that Watson was really guilty of murder.

[ItsBruce]

... I do feel that Gabe Watson's interview with the police was a big part of questioning his truthfullness and that cannot be denied. It is on tape. Batteries in backwards yet computer beeping at him, is just one example. There are so many other examples to go along with that one that make people doubt his truthfullness altogether. HIS WORDS. Not the media or the "mob"

You, too, have hit the nail on the head. As a result, I am compelled to once again post the following for consideration:

Disloyal Opposition: Eight reasons even the innocent shouldn't talk to the police (http://www.tuccille.com/blog/2008/07/eight-reasons-even-innocent-shouldnt.html)

[ItsBruce]

My final post for the day (I think):

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.

[K_girl]

Livinoz - I'm sure the judge would have access to anything he wanted, but it really would have been a waste of his time to second guess what the prosecutor presented in the plea agreement. One motive that the judge clearly stated in his sentencing remarks was his praise for Watson in saving the government money. Apparently, he paid little to no attention to the "feelings" of Tina's family as he also praised Watson for sparing the family the heartache and pain of a trial. The family fought for years for a trial and it brought severe anguish for them that the trial had been denied. The judge clearly made an error in judgement on that. Any statements by the family in a pre-sentence report would be limited to the impact of Tina's death on them. The family would not have an opportunity to present any facts regarding Watson's statements to them that led them to believe that he was guilty of murder.

I am sure that it is extremely rare that a judge will tell a prosecutor, "no - I want you to find the evidence you need and go to trial." The judge is basically going to do what the prosecutor wants. And I think that the statements the judge made regarding Tina's family clearly told me that he was out of touch regarding them. Makes me wonder just how out of touch he was with everything else.

[K_girl]

As I've noted, manslaughter makes little or no sense and though it does not set a legal precedent and is not binding on any future court, it sets a bad precedent in terms of prosecutorial mindset, e.g. "If I got it once, I can get it again."

However, the appeal of the sentence has put forth an argument of "deterrence" as a reason for lengthening his sentence. I believe that you mentioned that precedence is not set until it is heard by an appeals court and they render an opinion. If the "deterrence" argument is accepted at this appeal and Watson's sentence is lengthened, will this set the precedence that so many of us are concerned about?

[alohagal]

My final post for the day (I think):

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.

I couldn't agree more. And because of that...it makes the Guilty plea of Manslaughter and the judges statements seem that much more off kilter. It has not been explained to me, to my satisfaction, why Gabe Watson is behind bars. If he did not murder his wife, just what did he do or not do? There is no clarity for me in the statements. If he is only guilty of failing to rescue or letting his wife drown (whatever that means) and that equates to manslaughter. I think he is being overly punished and that is a travesty.

Do I think the "evidence" (big quotation marks) points to an innocent man? No, I don't. But, based on the findings of the court and the reasons set forth for the findings, based on that alone, this punishment is unjust.

And, if as you say, they were trying to get some kind of sentence meeted out here...then why are the prosecuters and judge allowed to have that kind of mindset? Sounds like they wanted to exact some type of punishment and this is their best case scenario to do so. That doesn't pass the smell test right along with all the others who still want more severe punishment for this guy without iron-clad evidence, IMHO.

[alohagal]

But in that case doesn't that mean you are presuming all the Judge knew was basically whatever the Crown wanted him to know?

Watson was in Australia for three weeks, in custody, before he made his guilty plea, or should I say his guilty plea was made public. The Judge had access not only to the complete Coroner's report but to all the witness statements, the tapes recorded by the police and every report from the protracted investigation. He would also have had a pre-sentence report which can include victim statements (or family in this case) as well as any other relevant information. From your post, are you suggesting he would have made up his mind basically on the spot regarding the sentence? Reading through his sentencing remarks I think not; he had obviously read and prepared his statement and then sentenced accordingly. Yes, there was no trial and no chance to cross-examine the witnesses but do you think after six years they would have had much to add, other than what was in their original statements?

Yes, I agree that the guilty plea and sentencing remarks pose a problem for divers. Until that precedent is tested though we have no way of knowing how it will impact on us all. Bear in mind that many other cases also set precedents, and as far as I'm aware it doesn't necessarily follow that people will be found guilty on precedent alone. Speaking personally I have no real problem with the way this particular case has been handled by the Judiciary here, and any concerns I have can be addressed by recourse to the legal system itself. We have an adversarial system which presumes innocence until proven otherwise, and I have to believe that will be sufficient. Some may view that as naive, I do not.

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.

[livinoz]

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.

[ItsBruce]

However, the appeal of the sentence has put forth an argument of "deterrence" as a reason for lengthening his sentence. I believe that you mentioned that precedence is not set until it is heard by an appeals court and they render an opinion. If the "deterrence" argument is accepted at this appeal and Watson's sentence is lengthened, will this set the precedence that so many of us are concerned about?

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.

[ItsBruce]

I couldn't agree more. And because of that...it makes the Guilty plea of Manslaughter and the judges statements seem that much more off kilter. It has not been explained to me, to my satisfaction, why Gabe Watson is behind bars. If he did not murder his wife, just what did he do or not do? There is no clarity for me in the statements. If he is only guilty of failing to rescue or letting his wife drown (whatever that means) and that equates to manslaughter. I think he is being overly punished and that is a travesty.

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.

[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.)

[alohagal]

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.

All your points are well taken. As to the remarks by the judge. I am not sure if this only rubs us as Americans as incongruous and insincere. To remark for the record that he recognizes sparing the family a trial a magnanomous consideration by Gabe Watson...to me seems an illegitmate proposal.

Rightly or wrongly, we are taught that to have our day in court is our utmost right whether victim or accused. It has been drummed into our beings that enduring the course of trial in court is the ultimate due process for both sides of the issue and is sacred to upholding justice, no matter the end result. We have learned to live with "plea barganing" but, for most victims and/or families that is often not the best result, but understood to often be the quickest and easiest solution to resolve overburdened courts and still satisfying a sense of "retribution" in the end.
However, the judge, from my experience, usually has the presence of mind not to mention this as a reason for the agreement unless it is a true concern of the familly.

There are many people on this thread who have chimed in, about the family's vendeta against Gabe Watson and are adamant in feeling the family should not have any sway in this case...so in the same respect those chimers should now agree that the judges remarks about Gabe Watson sparing the family a trial ( as if doing them a favor), when that is far from their wishes, should neither want to condone the judges remark about sparing the family a trial, as a legitimate part of the sentencing record? Why should the judge make the statement at all if the familys thoughts, feelings, or desires have no bearing here. I would prefer that he leave the family out of this thing altogether, especially when it is completely contrary to reality.

That statement alone only helps to undermine the judges credibility to many "lay" persons in this emotional case.

[catherine96821]

All this is a huge argument for always stating loudly on the boat, within earshot of everyone, that you are a solo diver. (and then dive "around" whomever you like) The entire buddy system is frought with danger for many, many reasons, including being subjected to being judged by any persons in the vicinity that have an opinion about any duties and responsibibilities, which may or may not make any sense at all.

Unless you are working for a fee, of course.

[Dan Ziegner]

From the first post of this thread:

In mid-2008, coroner David Glasgow found that it was likely Mr Watson killed his 26-year-old wife by holding her under water and turning off her air supply.

[alohagal]

All this is a huge argument for always stating loudly on the boat, within earshot of everyone, that you are a solo diver. (and then dive "around" whomever you like) The entire buddy system is frought with danger for many, many reasons, including being subjected to being judged by any persons in the vicinity that have an opinion about any duties and responsibibilities, which may or may not make any sense at all.

Unless you are working for a fee, of course.
Truer words never spoken. I just spent 4 weeks, as a single, alone, by myself, diver, on many boats with many others. Depending on the DM, sometimes a buddy was assigned to me and sometimes not. It was a total crapshoot. And even when I had an insta buddy...that relationship was so ill-defined it might as well have meant "see you at the dinner buffett for margaritas at the resort later this evening"

[Under-Exposed]

From the first post of this thread:

Quote:
In mid-2008, coroner David Glasgow found that it was likely Mr Watson killed his 26-year-old wife by holding her under water and turning off her air supply.



I'm sorry, but the Coroner made no such finding at all. In fact he is precluded from making any such finding. That is just media nonsense. I am not being critical of others for perpetuating it, but it is simply not the fact.

[Under-Exposed]

Alohagal, the simple fact is that as a matter of law the judge HAD to take that into account as a relevant consideration, and is therefore required as part of his sentencing remarks to demonstrate that he has taken it into account. May I also add that there is nothing more devastating to a family, hell-bent on seeing someone go to jail for the death of their loved one, discover that a panel of their peers do not agree with them that the loved one has been murdered. For better or for worse, sometimes the system, through long experience, knows what's best more often than not.

[Under-Exposed]

Truer words never spoken. I just spent 4 weeks, as a single, alone, by myself, diver, on many boats with many others. Depending on the DM, sometimes a buddy was assigned to me and sometimes not. It was a total crapshoot. And even when I had an insta buddy...that relationship was so ill-defined it might as well have meant "see you at the dinner buffett for margaritas at the resort later this evening"
And that is why the very nature of being guilty of criminally negligent homicide is so fraught, in my view.

[alohagal]

From the first post of this thread:

Quote:
In mid-2008, coroner David Glasgow found that it was likely Mr Watson killed his 26-year-old wife by holding her under water and turning off her air supply.



I'm sorry, but the Coroner made no such finding at all. In fact he is precluded from making any such finding. That is just media nonsense. I am not being critical of others for perpetuating it, but it is simply not the fact.

When you first pointed that out many, many posts ago on this thread...I went back, right then and there, to look and was shocked to find, indeed, the coroner never did make that statement. Real eye opener indeed.

[ItsBruce]

From the first post of this thread: "In mid-2008, coroner David Glasgow found that it was likely Mr Watson killed his 26-year-old wife by holding her under water and turning off her air supply."

Even if this were true, it is essentially meaningless. So what if it is likely. The standard is beyond a reasonable doubt. And, as I've said so many times: "Where is there evidence he turned off her air?" And, I'll add how does the coroner then explain that her air was on when her body was found?

I'm sorry, but this bit is getting tiresome.

[Ayisha]

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."

Bruce, There is another relevant aspect of emergency first response in Ontario that may apply to other areas as well. Once anyone BEGINS first aid, even those without a duty of care, they are required to continue until a more qualified person takes over. If they become extremely exhausted in their efforts and take a little break or the situation becomes dangerous for the responder, that will mitigate the requirement, as long as they don't "abandon" the patient, flee the scene or be unavailable for information. In Ontario, we are protected by the Good Samaritan Act as long as we act reasonably in accordance with our knowledge and circumstances. No one to date has been successfully sued in Canada for offering first aid assistance.

[ItsBruce]

Having been through many trials, both as counsel, a witness and as a judge, and has having attended many mediations as counsel for a litigant and also as the Court's designated mediator, my take is that a settlement without the need for a trial is almost always better for everyone than a trial.

In my view, nearly all cases that go to trial do so because one side or the other has made a mistake of some sort. On the civil side, either one side or the other has overrated their chance of winning or the plaintiff has overrated the recoverable damages or even the defendant's ability to pay them or the defendant has underrated the recoverable damages. Sometimes it is the lawyer who has misevaluated his or her client's reasonableness. On the criminal side, either the prosecutor has overrated the chances of a conviction and has not offered a deal with which the defendant can live or the defendant has overrated the chance of a defense verdict and is not satisfied with the prosecutor's deal.

Had the case against Watson gone to trial, Tina's family would have been put through the ringer. For example, does anyone think the defense would have just laid down for testimony about Watson wanting Tina's insurance to be changed? My recollection is that her father would have testified that that's what Watson wanted. I'm pretty sure the defense would have challenged him for being biased. The defense would likely have questioned him about the apparent vendetta on which the family went. I could imagine some of the following:

* You despise Gabe, don't you?
* You despise him because you think he murdered your daughter, don't you?
* You think that, even though you don't have any real evidence, don't you?
* If Gabe is found guilty, that gives you an edge in suing him civilly, right?
* If he is found guilty, you may get a lot of money in a civil case, right?
* Whether you're lying or not, wouldn't you agree you have an incentive to lie?

How about the bit about Watson taking flowers from the grave:

* Given the way you were treating Gabe, do you blame him for disposing of your flowers?
* Assuming he was innocent and had lost his beloved wife in a diving accident and then had you trying to destroy him with what he felt were lies, wouldn't you have lashed out at you?

(And this is without giving the examination much thought.)

It would not have been pretty. Whether Tina's family thinks it or not, they would have gone through a lot of stress and trauma. And, if then Watson had been acquitted, they would have had to second guess their testimony and worry that something they said or didn't say led to his acquittal.

To anyone who has not gone through a major trial, either as a litigant, witness or counsel, it is hard to imagine what it does to you.

I think the Judge made a good point about the plea saving Tina's family going through a trial.

[ItsBruce]

Bruce, There is another relevant aspect of emergency first response in Ontario that may apply to other areas as well. Once anyone BEGINS first aid, even those without a duty of care, they are required to continue until a more qualified person takes over. If they become extremely exhausted in their efforts and take a little break or the situation becomes dangerous for the responder, that will mitigate the requirement, as long as they don't "abandon" the patient, flee the scene or be unavailable for information. In Ontario, we are protected by the Good Samaritan Act as long as we act reasonably in accordance with our knowledge and circumstances. No one to date has been successfully sued in Canada for offering first aid assistance.

I absolutely agree that once you begin to act, you are on the hook.

I can't comment on how much your Good Samaritan Act may protect you.

In California, we were recently surprised to find that our Good Samaritan Act did not necessarily protect a motorist who pulled another motorist from a car that she thought was about to catch fire after a crash. Our court said the Act applied to the rendering of emergency medical care, not to pulling someone from a burning car. The court did not say the motorist was negligent or liable, it simply said that it was for a jury to decide.

[K_girl]

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.

This is why we need to define means, opportunity, mental capacity and personal safety when it comes to the underwater environment, which is completely unique than any other situation. There is no other risk sport that relys on a buddy system for safety.


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.

That is because the jury would have to accept that the situation started as an accident, but turned into something else, but exactly what and at what point did it stop becoming an accident and an intentional walk-away to form negligence? The sentencing remarks did not address this at all.

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.

Although I have mentioned that the court did take the cost into account, as well as it was one of their movitves for the plea agreement, I would not say that they did not have the right to do so. In my discussion with Livinoz, she was stressing the point that the judge reviewed all the evidence, proclaimed Watson not guilty and made his ruling based on that. I would disagree with that assertion.

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.

I understand what you are saying, that the judge probably knows what is better for the family in the long-run. And in most cases, you may be right. However, in this particular case, the family had already endured months of testimony of 65 witnesses for the Coroner's Inquest. I would say they had a pretty good idea of what to expect at a trial and were prepared for it.

Caveat - after reading ItsBruce's post on this matter regarding cross-examination of Tina's father, he makes a good point. However, the family's testimony in this case would have really been minimal. Just the inurance point and the flowers point, I don't think that would have been enough to put them over the edge compared to all the other testimony that would have been presented in the case.

[K_girl]

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.

I took alohagal's meaning to be more like "I would like to believe that the judge knew best.." - not that she necessarily did.

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 think Alohagal was simply stating how she thought it happened, and many others on this board have said the same thing. It does not necessarily mean that she endorsed what the prosecution did. Fact is, Watson would not have entered any kind of guilty plea, manslaughter or otherwise if he did not think there was a chance to convict on the murder charge. I think that is an assumption you can safely make here. Otherwise it would make no sense for Watson to accept the plea.

[K_girl]

From the first post of this thread:

Quote:
In mid-2008, coroner David Glasgow found that it was likely Mr Watson killed his 26-year-old wife by holding her under water and turning off her air supply.



I'm sorry, but the Coroner made no such finding at all. In fact he is precluded from making any such finding. That is just media nonsense. I am not being critical of others for perpetuating it, but it is simply not the fact.

The only thing we know is that there was a video presentation by police diving experts at the inquest that was a re-enactment of how Watson could have turned Tina's air off. So there was probably some reference to it in the transcripts of the Coroner's Inquest which was never produced to the public and lasted over a period of months. Under-Exposed is correct in that this theory was never discussed in the Coroner's report which was made public.

There is another potential theory, that to my knowledge was never discussed, that perhaps Watson could have removed the regulator from Tina's mouth, which, if somehow proved, would have resulted in a murder charge as well. Why this theory was never presented intrigues me. I'm thinking that it is because several people, including Watson, described Tina as having the regulator in her mouth at the last moment he saw her.

Seeing how there was not an alternate theory presented at the inquest, the media took the liberty of assuming that the Coroner based his decision to arrest Watson for murder was the theory that was presented at the inquest. I have a link to a few seconds of the police re-enactment video, but really, this is a moot point because there will be no trial. At least not at this point.

[Dan Ziegner]

The point is: this man deliberately killed his wife.

[Under-Exposed]

This is why we need to define means, opportunity, mental capacity and personal safety when it comes to the underwater environment, which is completely unique than any other situation. There is no other risk sport that relys on a buddy system for safety.



That is because the jury would have to accept that the situation started as an accident, but turned into something else, but exactly what and at what point did it stop becoming an accident and an intentional walk-away to form negligence? The sentencing remarks did not address this at all.



Although I have mentioned that the court did take the cost into account, as well as it was one of their movitves for the plea agreement, I would not say that they did not have the right to do so. In my discussion with Livinoz, she was stressing the point that the judge reviewed all the evidence, proclaimed Watson not guilty and made his ruling based on that. I would disagree with that assertion.



I understand what you are saying, that the judge probably knows what is better for the family in the long-run. And in most cases, you may be right. However, in this particular case, the family had already endured months of testimony of 65 witnesses for the Coroner's Inquest. I would say they had a pretty good idea of what to expect at a trial and were prepared for it.

Caveat - after reading ItsBruce's post on this matter regarding cross-examination of Tina's father, he makes a good point. However, the family's testimony in this case would have really been minimal. Just the inurance point and the flowers point, I don't think that would have been enough to put them over the edge compared to all the other testimony that would have been presented in the case.
For what its worth, in Australia a coronial inquest is a rather more gentle affair than a criminal trial. I don't knew whether Tina's father was xx in the inquest, but I agree wholeheartedly with Bruce...it would not have been a pretty sight.

[Under-Exposed]

The point is: this man deliberately killed his wife.
I forgot you were there Dan!

[Under-Exposed]

The only thing we know is that there was a video presentation by police diving experts at the inquest that was a re-enactment of how Watson could have turned Tina's air off. So there was probably some reference to it in the transcripts of the Coroner's Inquest which was never produced to the public and lasted over a period of months. Under-Exposed is correct in that this theory was never discussed in the Coroner's report which was made public.



The purpose of this re-enactment was to demonstrate how the "embrace" that Dr stutz (the only witness) says he saw could have enabled Watson to turn off (and then presumably back on) Tina's air. It is highly problematic. First, it was done in a vertical position whereas Dr Stutz said they were both horizontal. Second, he was xx by video which in my experience (and I'm sure Bruce will agree) is far from ideal in terms of testing the veracity of the evidence, particularly where it is evidence about the physical position of two objects (in this case, Gabe and Tina). Thirdly, there was no testing by xx of alternative physical scenarios consistent with Gabe's version of events that may have looked the same or similar to Dr Stutz as the "embrace" that he described. As I understand it, Dr Stutz's various versions were not entirely consistent with each other, and no doubt under full xx in person those inconsistencies could have been well exploited.

[Dan Ziegner]

"veracity of the evidence"

Woman dies scuba diving; can one infer from the "evidence" that she died accidentally? No. Well...

[catherine96821]

Oh boy.

[Under-Exposed]

...and puh-lease!!!

[Under-Exposed]

Woman dies scuba diving; can one infer from the "evidence" that she died accidentally? No. Well...

That's the $64 question...at least one of them. As someone who spends their lief inferring things from evidence, it is not apparent to me why this question is so obviously answered "no".

Perhaps I am due for a career change anyway :-)

[Dan Ziegner]

As someone who spends their lief (sic) inferring things from evidence, it is not apparent to me why this question is so obviously answered "no".



Fair enough.

But, I also infer for a living (trained scientist), and I have been scuba diving for 35 years. In this case: what can be inferred from the evidence at hand? What could be inferred from the evidence that might be admitted in a trial is another issue.

In my mind, the fact that Mr. Watson admitted guilt to manslaughter (whether with, or without, malice aforethought) adds support the to "the evidence at hand" that he, did in fact, kill his wife. I fully understand that his plea of "guilty of manslaughter" (and hence no trial) for a one-year sentence in prison may mitgate the chance of ever knowing what actually happened.

[Under-Exposed]

Fair enough.

But, I also infer for a living (trained scientist), and I have been scuba diving for 35 years. In this case: what can be inferred from the evidence at hand? What could be inferred from the evidence that might be admitted in a trial is another issue.

In my mind, the fact that Mr. Watson admitted guilt to manslaughter (whether with, or without, malice aforethought) adds support the to "the evidence at hand" that he, did in fact, kill his wife. I fully understand that his plea of "guilty of manslaughter" (and hence no trial) for a one-year sentence in prison may mitgate the chance of ever knowing what actually happened.
But you can only infer he deliberately killed her if you infer from the fact of there being a witnessed "embrace" (the ONLY direct evidence)that the embrace was him turning off her air, and ignore myriad other possible ways that people get into trouble underwater and drown. That's how the earth was the centre of the universe, was only 90,000 years old, and electrons studded atoms like a christmas pudding!

[bowlofpetunias]

Fair enough.

But, I also infer for a living (trained scientist), and I have been scuba diving for 35 years. In this case: what can be inferred from the evidence at hand? What could be inferred from the evidence that might be admitted in a trial is another issue.

In my mind, the fact that Mr. Watson admitted guilt to manslaughter (whether with, or without, malice aforethought) adds support the to "the evidence at hand" that he, did in fact, kill his wife. I fully understand that his plea of "guilty of manslaughter" (and hence no trial) for a one-year sentence in prison may mitgate the chance of ever knowing what actually happened.

Here I thought The Law and Science were different studies. It amazes me how many people feel qualified to argue with Barristers, Lawyers and Judges on points of Law! Perhaps we should reconsider education requirements and award the qualifications to any who claim them?

[bsee65]

Here I thought The Law and Science were different studies. It amazes me how many people feel qualified to argue with Barristers, Lawyers and Judges on points of Law! Perhaps we should reconsider education requirements and award the qualifications to any who claim them?

Law tends to be full of technicalities intended to protect us from excess zeal on the part of the authorities. These can also make it more of a challenge to find the truth. I have no problem with analytical persons arguing the facts. Lawyers et al may know how it would likely turn out in a courtroom, but they are no better judges of the truth than the rest of us. As far as protecting the family goes, I think that call should have been up to them. If the father was willing to endure the abuse to say what he felt needed saying, then protecting him gives him no justice.

From my perspective, his answer would have been that he hd no meaningfujl financial incentive to lie. Watson is not, to my knowledge, a wealthy man. What money might be seen in a wrongful death case? Probably not much, and even less if Watson spends years behind bars rather than earning moneys that could be paid toward a settlement. He stands a better chance of a larger financial award with this outcome as responsibility for her death has already been admitted and Watson will still have earning capacity, no?

[alohagal]

Law tends to be full of technicalities intended to protect us from excess zeal on the part of the authorities. These can also make it more of a challenge to find the truth. I have no problem with analytical persons arguing the facts. Lawyers et al may know how it would likely turn out in a courtroom, but they are no better judges of the truth than the rest of us. As far as protecting the family goes, I think that call should have been up to them. If the father was willing to endure the abuse to say what he felt needed saying, then protecting him gives him no justice.

From my perspective, his answer would have been that he hd no meaningfujl financial incentive to lie. Watson is not, to my knowledge, a wealthy man. What money might be seen in a wrongful death case? Probably not much, and even less if Watson spends years behind bars rather than earning moneys that could be paid toward a settlement. He stands a better chance of a larger financial award with this outcome as responsibility for her death has already been admitted and Watson will still have earning capacity, no?
Agreed...none of us in our chosen profession are infallable or necessarily the grand authorities. Oftentimes, we may become complacent, jaded or incapable of seeing through a different set of eyes.

Law, medicine, diving what have you. No one is immune from being taught new things. I have a real problem in our court system with so called "paid experts" seems it can have an intrinsic result of gearing the so called "expert" testimony to whomever the payer may be. One time the expert is siding with the prosecution. In another case with the defense.

In medicine we have long ago abandoned the practice of being the expert in deciding what the patient should be told. We now practice informed consent...no matter how bleak and harrowing the news may be. The patient has a right to decide for themselves. And why should the "family" be spared the horrors of court if that is their only recourse to hear the 'evidence' that they felt was going to be forthcoming. It is paternalistic to spare the family this pain, by bringing it forth in the sentencing statements. It still rubs me the wrong way and I am not a family member.

The family likely retained a lawyer who would have been just as capable of advising them of upcoming events in the court just as ItsBruce was so aptly able to do a few posts ago.

[Tricia]

From my perspective, his answer would have been that he hd no meaningfujl financial incentive to lie. Watson is not, to my knowledge, a wealthy man. What money might be seen in a wrongful death case? Probably not much, and even less if Watson spends years behind bars rather than earning moneys that could be paid toward a settlement. He stands a better chance of a larger financial award with this outcome as responsibility for her death has already been admitted and Watson will still have earning capacity, no?

If you have read (and been able to remember - fair enough!) all the posts here and on the other thread, you would remember that Gabe Watson was a controlling S.O.B. with his wife (remember the engagement ring he kept in the box on top of the TV for six months, telling her if she touched it, he wouldn't ask her to marry him?). Money was not likely the motive here. What irritates me with this case (and it has never been answered) is what happened during the first 4 days of their honeymoon in Sydney. I suspect the police didn't have the resources to do a thorough check of the events there. Because this is the kind of man for whom all it takes is his wife chatting with another man to set him off. And in that case, this poorly executed murder would make sense because it would be a "crime of passion", hastily carried out while in anger.

Trish

[bsee65]

If you have read (and been able to remember - fair enough!) all the posts here and on the other thread, you would remember that Gabe Watson was a controlling S.O.B. with his wife (remember the engagement ring he kept in the box on top of the TV for six months, telling her if she touched it, he wouldn't ask her to marry him?). Money was not likely the motive here. What irritates me with this case (and it has never been answered) is what happened during the first 4 days of their honeymoon in Sydney. I suspect the police didn't have the resources to do a thorough check of the events there. Because this is the kind of man for whom all it takes is his wife chatting with another man to set him off. And in that case, this poorly executed murder would make sense because it would be a "crime of passion", hastily carried out while in anger.

Trish

The comments relate to what might have happened during Tina's father's testimony, not to Watson's motives.

[alohagal]

If you have read (and been able to remember - fair enough!) all the posts here and on the other thread, you would remember that Gabe Watson was a controlling S.O.B. with his wife (remember the engagement ring he kept in the box on top of the TV for six months, telling her if she touched it, he wouldn't ask her to marry him?). Money was not likely the motive here. What irritates me with this case (and it has never been answered) is what happened during the first 4 days of their honeymoon in Sydney. I suspect the police didn't have the resources to do a thorough check of the events there. Because this is the kind of man for whom all it takes is his wife chatting with another man to set him off. And in that case, this poorly executed murder would make sense because it would be a "crime of passion", hastily carried out while in anger.

Trish
Trish,

Hello to France!


I think most of us on this thread are debating whether we should be concerned with the precedent that could come forth for divers, rescue certified or otherwise, based on the sentencing remarks by the judge in the manslaughter agreement.
For me, I would like it more clearly defined whether Gabe was found guilty of manslaughter because he "let his wife drown" (which implies a purposeful action) or "failed to rescue" which in my mind seems a more passive action. I guess I am thinking in terms of voluntary manslaughter versus non-voluntary manslaughter.

I believe this thread is continuing...only due to the fact that there is an appeal pending for the sentencing portion of Gabe Watson's charge of manslaughter.

When and if there are ever charges leveled in the USA, which I find doubtful, (unless it is a civil trial) there will certainly be torrid and heated debate on those matters, once again.

In the meantime, I believe many of us are waiting to hear what comes from the appeal of the actual sentence.

I must say, I do enjoy a forum that can bring together people from the USA, Australia and France, among others, to discuss this topic.

Note: To the professionals here...barristers and lawyers...forgive me for sounding like such a layman.

Best wishes,
Mary

[Under-Exposed]

Mary, we love laypeople. IT is only through the involvement of laypeople, and confidence in the system by laypeople, that enables it to work in the first place! And of course the perspective of laypeople is always a useful reality check on the health of the system, often indicating that it is not meeting expectations OR (more commonly, in my experience) that it is not adequately communicating the way it operates and the various (often conflicting) ends it is designed to achieve.

Particularly is that so in this case, where both criminal and civil (if any) liability are firmly grounded in notions of reasonableness.

[alohagal]

Mary, we love laypeople. IT is only through the involvement of laypeople, and confidence in the system by laypeople, that enables it to work in the first place! And of course the perspective of laypeople is always a useful reality check on the health of the system, often indicating that it is not meeting expectations OR (more commonly, in my experience) that it is not adequately communicating the way it operates and the various (often conflicting) ends it is designed to achieve.

Particularly is that so in this case, where both criminal and civil (if any) liability are firmly grounded in notions of reasonableness.

Yes, the bolded part of your statement is key for me in this case. I never really did understand what was being communicated in the sentencing remarks...and therefore as a layperson, decided to accept that the judge knows best. Based on further commentary on this thread I have developed questions about that assumption. But, really just seeking more clarity. I would love to sit and have tea with the judge and get his thoughts directly.

I have noticed that your comments, as barrister in Australia, and the judges sentencing remarks, appear much more formal and couched in a type of legalease that I am not used to. Certainly American jurisprudence has its own language as well...but it is language I am certainly more familiar with (yet, still difficult at times to understand) than Australian legal jargon and phraseology! Makes it that much harder to work out.

Mary

[Under-Exposed]

I suspect that whatever the outcome of the appeal we will get a more detailed analysis of the facts before the court and the relevant factors to be taken into account in sentencing.

I am sorry about my legalese...my only excuse (then, not even) is that I do civil trials only, and we do not really have many juries in civil trials in Australia (certainly in NSW) and so I am generally trying to explain myself to judges and other legal practitioners. But perhaps that is why my clients look at me so quizzically when I am explaining the merits of their case to them!

[jester1226]

Here I thought The Law and Science were different studies. It amazes me how many people feel qualified to argue with Barristers, Lawyers and Judges on points of Law!

This is due to the fact that laws are always open to interpretation. Think about it, you get two opposing sides, both using attorneys that see the same case as being completely different. THis is futher left to the interpretation of a judge who may or may not see it exactly the same as one of the attorneys. He may see it a completely different way.

[ItsBruce]

For everyone who thinks that Watson's decision to plead guilty to manslaughter is evidence he is actually guilty of murder, answer me this: Why isn't the prosecution's offer to accept a plea to anything less than murder evidence that the prosecutor knows it wasn't murder?

And for that same group, would you be willing to agree that if you are ever in a civil case, if you offer to settle, it proves you have no case; i.e. if you are a defendant, you are at fault, and if you are a plaintiff, that you really are not entitled to anything?

There are lots of reasons to offer to compromise, whether in a civil or criminal case. Most have very little to do with guilt.

While I cannot think of any specific example at the moment, I know there are lots of instances in which people were wrongly convicted of murder and spent many years in prison only to be vindicated by DNA evidence. So, we know those people were NOT guilty. But, does anyone think that if any of them knew what would happen and had the opportunity to plead guilty to manslaughter and served only a few years, they wouldn't have done so?

[Under-Exposed]

This is due to the fact that laws are always open to interpretation. Think about it, you get two opposing sides, both using attorneys that see the same case as being completely different. THis is futher left to the interpretation of a judge who may or may not see it exactly the same as one of the attorneys. He may see it a completely different way.
The difficulty in this case is not so much the laws, which are fairly clear, but their application to the facts, and of course the determination of the facts to which the laws in this case are to be applied. The determination of the facts is a matter of inference. Certainly, there is a significant degree of correspondence between the processes of inferential reasoning in law and in science. But in both there are impermissible reasoning processes, some of which have been evident in some of the posts in this thread.

[bsee65]

For everyone who thinks that Watson's decision to plead guilty to manslaughter is evidence he is actually guilty of murder, answer me this: Why isn't the prosecution's offer to accept a plea to anything less than murder evidence that the prosecutor knows it wasn't murder?

And for that same group, would you be willing to agree that if you are ever in a civil case, if you offer to settle, it proves you have no case; i.e. if you are a defendant, you are at fault, and if you are a plaintiff, that you really are not entitled to anything?

There are lots of reasons to offer to compromise, whether in a civil or criminal case. Most have very little to do with guilt.

While I cannot think of any specific example at the moment, I know there are lots of instances in which people were wrongly convicted of murder and spent many years in prison only to be vindicated by DNA evidence. So, we know those people were NOT guilty. But, does anyone think that if any of them knew what would happen and had the opportunity to plead guilty to manslaughter and served only a few years, they wouldn't have done so?

It seems like you're arguing both sides of this question here, I can't figure out from this context which you are promoting. I'll answer you anyway...

With regard to the first question, I believe that an honorable prosecution that didn't believe this was a murder wouldn't file a case at all. They wouldn't (shouldn't?) want a manslaughter conviction for a man who failed to save his wife when he should have been able to. There have been a few theories posed for why the prosecution offered and accepted the plea. One is that there was significant risk of a "Not Guilty" verdict at trial, a second was that they didn't want to bear the high cost of an international trial, and third was this concept of protecting the family from all the evils of a trial. If there was no evidence of foul play, this would have been written off as a mishap in which a rescuer failed to save the victim and there would be no criminal case.

With regard to your second question, an offer to settle is always based upon some evaluation of costs, effort, time, publicity, precedent, and likelihood of success.

As you seem to be pointing out, no agreement, and in fact no trial, can actually tell us where fault lies with 100% accuracy. I'd like to believe that, almost always, the outcome represents the truth, or at least some approximation of justice.

With regard to Watson's plea, I don't believe that it tells us he absolutely killed his wife as a matter of pure truth. However, in the world of law, I do believe it should have some impact on the ability of the family to win a wrongful death suit. When one pleads to a crime, doesn't the law require them to admit that they did it, and thereafter act as though they had?

There are too many arenas involved here, and it can confuse discussion at times. We have the truth, the perception, the criminal outcome and the civil outcome. In an ideal world, they'd all be in agreement.

[K_girl]

Mary, we love laypeople. IT is only through the involvement of laypeople, and confidence in the system by laypeople, that enables it to work in the first place! And of course the perspective of laypeople is always a useful reality check on the health of the system, often indicating that it is not meeting expectations OR (more commonly, in my experience) that it is not adequately communicating the way it operates and the various (often conflicting) ends it is designed to achieve.

Particularly is that so in this case, where both criminal and civil (if any) liability are firmly grounded in notions of reasonableness.

In other words, laypeople tend to think like jurors which lawyers seem to forget how, simply because they have been taught to think differently and things you would think should be simple become incredibly complex. I sometimes participate as a potential juror for mock criminal trials in my office. Lawyers seem to always find it an enlightening process.

[K_girl]

For everyone who thinks that Watson's decision to plead guilty to manslaughter is evidence he is actually guilty of murder, answer me this: Why isn't the prosecution's offer to accept a plea to anything less than murder evidence that the prosecutor knows it wasn't murder?

I would just ignore those people who come on here and say he's guilty of murder due to the manslaughter conviction. As far as many of us here are concerned, the deal is done and you can't change it. The question now is the sentencing appeal. If there happens to be a civil or criminal trial in the U.S., perhaps we can take up those issues once again at that time. But to do so now really serves no purpose. And I have to be honest, I have no idea what it is you are trying to ask. I'm a bit confused by the double negatives.

Regarding the settlement of civil cases. I think it would depend on the settlement amount, which I am no expert at. But we know a lot of cases are settled as "nuisance" cases because the cost of settling is lower than going to trial, even if you win. However, if it is a large amount with a no-talk, non-disclosure agreement, it would certain raise an more of an eyebrow and would make the defendant possibly more vulnerable to future lawsuits, whether they were liable or not. You're right, "guilt" is not the word that applies in civil cases, the more appropriate word would be "liable."

[diving queen]

With regard to the first question, I believe that an honorable prosecution that didn't believe this was a murder wouldn't file a case at all. They wouldn't (shouldn't?) want a manslaughter conviction for a man who failed to save his wife when he should have been able to.

Bsee65, the fact is that Tina's parents and their persistence are the only reason this case has gotten as far as it has. How many divers have died since October 2003, and how many of THOSE "dive buddies" were guilty of not doing enough to save their buddy? How many of them could have (and probably wish they would have) done more to save their buddy and based on a split-second decision, didn't? The only reason this case has gotten the media attention it has and suddenly, three years after the fact, went from being classified as a terrible, terrible accident to warranting a Coronial Inquest and a subsequent murder charge is that the Thomas family is angry, they are in pain, and they have decided to lash out and make wild accusations against the person they hold personally responsible for the death of their daughter. No, the prosecution shouldn't want to convict an innocent man of manslaughter, but they also didn’t want a couple of Americans running around screaming that their justice system is defunct...oh, wait, that happened anyway.

[alohagal]

Bsee65, the fact is that Tina's parents and their persistence are the only reason this case has gotten as far as it has. How many divers have died since October 2003, and how many of THOSE "dive buddies" were guilty of not doing enough to save their buddy? How many of them could have (and probably wish they would have) done more to save their buddy and based on a split-second decision, didn't? The only reason this case has gotten the media attention it has and suddenly, three years after the fact, went from being classified as a terrible, terrible accident to warranting a Coronial Inquest and a subsequent murder charge is that the Thomas family is angry, they are in pain, and they have decided to lash out and make wild accusations against the person they hold personally responsible for the death of their daughter. No, the prosecution shouldn't want to convict an innocent man of manslaughter, but they also didn’t want a couple of Americans running around screaming that their justice system is defunct...oh, wait, that happened anyway.

Forgive me...but you sound like a disgruntled Watson family member...or at the very least someone close to him. I don't think Tina's family holds that much sway in Australia. I think there were red flags from the beginning based on witness statements, police interview of Gabe Watson and the series of events as reported by those who were there that day of the incident. I think the family was incited to react by divers who were on the trip with Gabe and Tina Watson, who contacted the family first because they felt his story did not add up.

I do think the family did use the momentum of the investigation and Gabes behaviors and their own viewpoints in hindsight of his relationship with their daughter to help drive the investigation that much harder. But, to say, they alone, could hold Australian justice system hostage is a bit of overstatement. IMHO

[boulderjohn]

While I cannot think of any specific example at the moment, I know there are lots of instances in which people were wrongly convicted of murder and spent many years in prison only to be vindicated by DNA evidence. So, we know those people were NOT guilty. But, does anyone think that if any of them knew what would happen and had the opportunity to plead guilty to manslaughter and served only a few years, they wouldn't have done so?

A few years ago the governor of Illinois put a moratorium on the death sentence when 50% of the prisoners on death row were proven to be not guilty via DNA evidence.

John Grisham, normally a novelist, wrote a documentary titled The Innocent Man which chronicles the real life conviction and very near execution (his execution was stayed at the last hour when his last appeal was read by someone who uncharacteristically decided to work over the weekend) of a man who was obviously innocent but who had somehow been convicted of murder. DNA evidence later freed him and put the real killer (who was just as obviously guilty in the first place) in jail. The book also shows that the same police and DA convicted other people who are also obviously innocent but are still serving life sentences because there was no DNA involved to free them.

BTW, it turns out the real killer in that case was not investigated because he was the person who supplied the police department with cocaine.

[K_girl]

Bsee65, the fact is that Tina's parents and their persistence are the only reason this case has gotten as far as it has. How many divers have died since October 2003, and how many of THOSE "dive buddies" were guilty of not doing enough to save their buddy? How many of them could have (and probably wish they would have) done more to save their buddy and based on a split-second decision, didn't? The only reason this case has gotten the media attention it has and suddenly, three years after the fact, went from being classified as a terrible, terrible accident to warranting a Coronial Inquest and a subsequent murder charge is that the Thomas family is angry, they are in pain, and they have decided to lash out and make wild accusations against the person they hold personally responsible for the death of their daughter. No, the prosecution shouldn't want to convict an innocent man of manslaughter, but they also didn’t want a couple of Americans running around screaming that their justice system is defunct...oh, wait, that happened anyway.

The fact is, the police investigators thought there was something wrong about Watson's statements right from the start and that was not something they initially shared with Tina's family. Tina's family did not have their suspicions until months later when divers who were present began raising red flags directly to the family. I can't imagine a family who would not push any justice system to find out what happened to their daughter in light of what they learned.

[K_girl]

A few years ago the governor of Illinois put a moratorium on the death sentence when 50% of the prisoners on death row were proven to be not guilty via DNA evidence.

John Grisham, normally a novelist, wrote a documentary titled The Innocent Man which chronicles the real life conviction and very near execution (his execution was stayed at the last hour when his last appeal was read by someone who uncharacteristically decided to work over the weekend) of a man who was obviously innocent but who had somehow been convicted of murder. DNA evidence later freed him and put the real killer (who was just as obviously guilty in the first place) in jail. The book also shows that the same police and DA convicted other people who are also obviously innocent but are still serving life sentences because there was no DNA involved to free them.

BTW, it turns out the real killer in that case was not investigated because he was the person who supplied the police department with cocaine.

I read "The Innocent Man" about a man whose only crime was being mentally ill. Did you know the prosecutor in that case is still a prosecutor? Talk about prosecutorial misconduct! He should have been charged and sent to jail for what he did. It was proven in the appeal, that he actually fabricated false witness testimony and yet, no charges were ever filed. Not only that, but he has done it more than once, there was another book written about this very same prosecutor regarding two other cases.

But that aside, how does prosecutorial misconduct equate in this case? I have not seen nor heard of any charges of prosecutorial misconduct here. So why are we talking about this?

[diving queen]

Forgive me but because I have not made 5 posts, I can't include links yet, so here are a few bogus posts to get me to five so I can post some links.

[diving queen]

Forgive me but because I have not made 5 posts, I can't include links yet, so here are a few bogus posts to get me to five so I can post some links. Just be patient!

[diving queen]

one more and this should make five...sorry again!

[diving queen]

Forgive me...but you sound like a disgruntled Watson family member...or at the very least someone close to him. I don't think Tina's family holds that much sway in Australia. I think there were red flags from the beginning based on witness statements, police interview of Gabe Watson and the series of events as reported by those who were there that day of the incident. I think the family was incited to react by divers who were on the trip with Gabe and Tina Watson, who contacted the family first because they felt his story did not add up.

I do think the family did use the momentum of the investigation and Gabes behaviors and their own viewpoints in hindsight of his relationship with their daughter to help drive the investigation that much harder. But, to say, they alone, could hold Australian justice system hostage is a bit of overstatement. IMHO

Well, alohagal, you are forgiven. And so sorry to disappoint but I don’t know any of the people involved in this. It amuses me though; I’ve read several articles on this story and the comments people post afterwards and it seems like any time someone is of the opinion that this guy might not have done what everyone is saying he did, everyone else starts posting stuff saying this must be Gabe Watson, or this must be a friend of his, or this must be his dad, or this must be his new wife. Why is it that when anyone is of the opinion that this guy is some psychopathic killer they are not accused of being Tina’s dad, sister, or friend? Just something to think about… Any way, in response to what you say, I am not, in fact, “a disgruntled Watson family member” or even someone close to him. I’ve never met the guy and know as much about this as I’ve read in the papers and on forums…same as you. It’s just that in reading all of this some things popped out at me. While I find K_girl’s website to have the most information located in one place, most of her articles seem to come from the Townsville Bulletin (which seems to be a little slanted toward the Thomas’ IMHO) and they don’t have any archived articles past early 2007 available on their site so you can’t really go back and look at the early information about this incident. I have found CDNN’s website to be much more useful since you can research articles back to the day this was first reported. And since I have nothing better to do and have read just about everything published on this, I’d like to point out a few things.

First, I’d like to back up what I said about her family pushing this investigation on. The day of the incident, the first article CDNN posted about it stated this: “Detectives last night interviewed 50 people -- all of the passengers and crew -- from the dive boat. Police communications co-ordinator Sergeant Nick Sellars said there were no suspicious circumstances with the death and a report would be prepared by water police for the coroner. The incident was the second death from the Spoil Sport in less than a year.” (CDNN :: Mike Ball Spoil Sport Liveaboard Diver Dies Diving Near Yongala Wreck (http://www.cdnn.info/safety/s031023/s031023.html)) Here is where I question your comment about “I think there were red flags from the beginning based on witness statements, police interview of Gabe Watson and the series of events as reported by those who were there that day of the incident.” No one said ANYTHING that day based on everything that I have read. It was being reported as what I said, a terrible, terrible accident. Now, I’m getting all of this from the media, and since we are believing EVERYTHING they say, it must be true (I hope you are all picking up on my sarcasm there!). There’s another article the next day (CDNN :: Mike Ball Spoil Sport Guest Died On Her Honeymoon (http://www.cdnn.info/safety/s031024/s031024.html)) which stated “Police and workplace health and safety officers will investigate the death. The woman is the fourth American to die in north or central Queensland waters in the past 12 months: three were divers and one was a snorkeler.” Still no mention of foul play, murder, suspicious circumstances, nothing. There’s one more article at the end of that month (CDNN :: Mike Ball Manager Denies Negligence in Spoil Sport Death (http://www.cdnn.info/safety/s031031/s031031.html)) with still no mention of anything out of the ordinary where the husband was concerned but continued concerns about possible negligence on the part of Mike Ball’s Spoil Sport crew, something that never got a whole lot of press from what I can tell. Almost TWO FULL YEARS pass without a word from him, from her family, from anyone as far as my research shows and then end of October 2005, BAM!!, there are articles with phrases like “And the family's frustration and ongoing grief finally erupted this week, with parents Tom and Cindy lashing out at the slowness of the investigation, calling on Australian police to explain why the investigation was not yet final and had yielded no results.” CDNN :: Cover Up Down Under? Still No Answers in Mike Ball Spoil Sport Death (http://www.cdnn.info/news/safety/s051009.html) “The family's frustration first surfaced last October on the second anniversary of their daughter's death, when they lashed out at the slowness of the investigation, and called on Australian police to explain why the investigation was not yet finalized and had yielded no results.” CDNN :: Parents seek answers to daughter’s death on Mike Ball 'Spoil Sport' dive (http://www.cdnn.info/news/safety/s060328.html) “And Tommy Thomas says enough time has passed and he wants this investigation concluded.” CDNN :: Investigation into Mike Ball Spoil Sport Death Drags On (http://www.cdnn.info/news/safety/s060419.html) and finally “Mr. Watson has avoided media attention since the event, however Tina's parents Tom and Cindy Thomas, who have had little contact with their son-in-law since the accident, were in Townsville last month demanding to know why an investigation into their daughter's death had stalled.” (CDNN :: Gabe Watson: 'I tried to save Tina' (http://www.cdnn.info/news/safety/s060506.html)). And it was that last article that finally had some interesting stuff in it. It was dated May 6, 2006. Here is where that pesky “negligence on the part of the Spoil Sport crew” thing that kind of got washed to the way side came up again and low and behold, “It has been confirmed that a Workplace Health and Safety report was undertaken following the incident, and that charges were laid against Mike Ball Dive Expeditions for breaches under the Workplace Health and Safety Act, to be heard in the Townsville Industrial Magistrates Court on May 16.” The other thing that I found really interesting in that article was this quote from Watson’s attorney, “Mr. Austin said his client was told before he left Australia in October 2003 that the investigation would take six months to a year before a report was placed before the coroner, and that timeframe had now been well and truly exceeded. "But no one has tried to contact Gabe in the past two-and-a-half years. He has tried to ring and email Townsville investigators about where things stand, but has had no luck, so we have contacted a Townsville lawyer to keep us up to date.”” Seems to me that the Queensland police were not investigating anything because they didn’t think there was anything to investigate, i.e. accident. The family didn’t “use the momentum of the investigation”, as you say; they WERE the momentum of the investigation. It was non-existent until they got involved. That is why I made the comment that they have pushed this thing from the beginning. The investigation never picked up any steam until the locomotive named Tommy Thomas got behind it. Just my opinion based on what I have read. And I just have to add this comment from one of the CDNN scuba forums about Mike Ball Spoil Sport and negligence because it amuses me - “Has anyone else noticed that whenever a dive operator in Queensland screws up and kills or nearly kills a customer, within 24 hours the Aussie press starts publishing reports attacking the credibility of the victim? That's what they did to Tom and Eileen Lonergan, that's what they did to Gabe and Tina Watson and that's what they did to Richard Neely and Alison Dalton. You wonder how much Dive Queensland has to pay to keep the local media on retainer and smear the reputation of foreigners who make the mistake of going scuba diving in Australia.”

The second comment I made was about people making split-second decisions while diving and wishing they had made different decisions or could go back and change something. From some of the comments that I read from the same scuba forum on CDNN, looks like some folks don’t necessarily disagree with the decision Watson made – (1)“Gabe had more experience, and he did the 'right thing' (textbook answer) on how he responded, and what he did that day. Overconfidence is what kills scuba divers. Becoming separated from a "dive buddy" is a violation of safety procedures for recreational diving. I'm afraid Tina died "as a result of a diving accident for which she was solely responsible." I know that may not sit well with the family, but such is life. No one put a gun to her head to do it.” (2) “First let's consider the Rescue Diver certification. Being certified to the Rescue Diver level does not automatically mean you can save divers who encounter problems, especially in strong currents, which significantly increase the inherent risks of scuba diving. The sea is boss and if the divers were separated by strong currents, there is little if anything the husband could have done to reach his wife. Second, divers are trained to ascend to the surface after one minute if they lose contact with their buddy. Isn't that what the husband did? Finally, most enthusiastic divers encourage their partners to take up the sport. So unless there is something you are not telling us about the relationship, your accusations that Gabe Watson killed his wife seem more malicious than true.” and (3) “Also, the rule of diving is not to go down to come up. Thats crazy. If you get separated from your buddy or they get into trouble, you give them 1 minute and you surface. And from the way it sounds that is what he did after she knocked his mask off. I know if I was trying to help someone and they even touched my mask or regulator I would be outta there!”

Lastly, you say that you don’t think it is possible for the Thomas’ alone to “hold [the] Australian justice system hostage”, but I beg to differ. When you’ve got articles titled “Father furious with sentence” being posted everywhere, people screaming things like “This is in no way, shape or form a beginning to get justice for my daughter. We are in total shock at what has transpired. What has happened is ludicrous . . . and an embarrassment." (Father furious at sentence for Gabe Watson over dive death | The Courier-Mail (http://www.news.com.au/couriermail/story/0,23739,25594452-3102,00.html)) and personally meeting with the QLD A-G office to implore him to appeal the sentence, you kind of have to do something or look stupid, don’t you? And then the A-G from the state of Alabama gets involved and says “"I do not believe the Australians are unjust people and I know the country doesn't want the reputation of the new Aruba," King said.” Can you really NOT respond with all that going on?

Is it possible that he murdered his wife? Yes. Is it probable? Not really. What I see is terrible accident and a distraught family trying to make it into something it is not. And the fact is that after all of this is said and done, their daughter will still be gone, they’ll still be sad and more people will be left suffering all because one man made one decision and it didn’t turn out the way he hoped it would. And all of THAT bring me back to the original question that I posted on this board. Based on the precedence that the Watson case has set, how many people will potentially try to save a panicking diver because they feel "legally" responsible to do so and then end up perishing themselves? Or how many won’t and will end up in jail too because of a “bad decision”? Like I said before, something to think about…

[livinoz]

Hi Diving Queen. I read your post above differently and certainly didn't think you were related somehow to the families involved. Just to let you know CDNN has a pretty bad reputation around here with quite a few people for poor reporting. Also the fact that most of our information regarding this case comes from media reports, etc, has been dealt with in an earlier thread on Watson as well as posts in this thread. The Judge's sentencing remarks are posted here http://www.scubaboard.com/forums/4477334-post229.html and we are awaiting the Appeal results.

[alohagal]

Well, alohagal, you are forgiven. And so sorry to disappoint but I don’t know any of the people involved in this. It amuses me though; I’ve read several articles on this story and the comments people post afterwards and it seems like any time someone is of the opinion that this guy might not have done what everyone is saying he did, everyone else starts posting stuff saying this must be Gabe Watson, or this must be a friend of his, or this must be his dad, or this must be his new wife. Why is it that when anyone is of the opinion that this guy is some psychopathic killer they are not accused of being Tina’s dad, sister, or friend? Just something to think about… Any way, in response to what you say, I am not, in fact, “a disgruntled Watson family member” or even someone close to him. I’ve never met the guy and know as much about this as I’ve read in the papers and on forums…same as you. It’s just that in reading all of this some things popped out at me. While I find K_girl’s website to have the most information located in one place, most of her articles seem to come from the Townsville Bulletin (which seems to be a little slanted toward the Thomas’ IMHO) and they don’t have any archived articles past early 2007 available on their site so you can’t really go back and look at the early information about this incident. I have found CDNN’s website to be much more useful since you can research articles back to the day this was first reported. And since I have nothing better to do and have read just about everything published on this, I’d like to point out a few things.

First, I’d like to back up what I said about her family pushing this investigation on. The day of the incident, the first article CDNN posted about it stated this: “Detectives last night interviewed 50 people -- all of the passengers and crew -- from the dive boat. Police communications co-ordinator Sergeant Nick Sellars said there were no suspicious circumstances with the death and a report would be prepared by water police for the coroner. The incident was the second death from the Spoil Sport in less than a year.” (CDNN :: Mike Ball Spoil Sport Liveaboard Diver Dies Diving Near Yongala Wreck (http://www.cdnn.info/safety/s031023/s031023.html)) Here is where I question your comment about “I think there were red flags from the beginning based on witness statements, police interview of Gabe Watson and the series of events as reported by those who were there that day of the incident.” No one said ANYTHING that day based on everything that I have read. It was being reported as what I said, a terrible, terrible accident. Now, I’m getting all of this from the media, and since we are believing EVERYTHING they say, it must be true (I hope you are all picking up on my sarcasm there!). There’s another article the next day (CDNN :: Mike Ball Spoil Sport Guest Died On Her Honeymoon (http://www.cdnn.info/safety/s031024/s031024.html)) which stated “Police and workplace health and safety officers will investigate the death. The woman is the fourth American to die in north or central Queensland waters in the past 12 months: three were divers and one was a snorkeler.” Still no mention of foul play, murder, suspicious circumstances, nothing. There’s one more article at the end of that month (CDNN :: Mike Ball Manager Denies Negligence in Spoil Sport Death (http://www.cdnn.info/safety/s031031/s031031.html)) with still no mention of anything out of the ordinary where the husband was concerned but continued concerns about possible negligence on the part of Mike Ball’s Spoil Sport crew, something that never got a whole lot of press from what I can tell. Almost TWO FULL YEARS pass without a word from him, from her family, from anyone as far as my research shows and then end of October 2005, BAM!!, there are articles with phrases like “And the family's frustration and ongoing grief finally erupted this week, with parents Tom and Cindy lashing out at the slowness of the investigation, calling on Australian police to explain why the investigation was not yet final and had yielded no results.” CDNN :: Cover Up Down Under? Still No Answers in Mike Ball Spoil Sport Death (http://www.cdnn.info/news/safety/s051009.html) “The family's frustration first surfaced last October on the second anniversary of their daughter's death, when they lashed out at the slowness of the investigation, and called on Australian police to explain why the investigation was not yet finalized and had yielded no results.” CDNN :: Parents seek answers to daughter’s death on Mike Ball 'Spoil Sport' dive (http://www.cdnn.info/news/safety/s060328.html) “And Tommy Thomas says enough time has passed and he wants this investigation concluded.” CDNN :: Investigation into Mike Ball Spoil Sport Death Drags On (http://www.cdnn.info/news/safety/s060419.html) and finally “Mr. Watson has avoided media attention since the event, however Tina's parents Tom and Cindy Thomas, who have had little contact with their son-in-law since the accident, were in Townsville last month demanding to know why an investigation into their daughter's death had stalled.” (CDNN :: Gabe Watson: 'I tried to save Tina' (http://www.cdnn.info/news/safety/s060506.html)). And it was that last article that finally had some interesting stuff in it. It was dated May 6, 2006. Here is where that pesky “negligence on the part of the Spoil Sport crew” thing that kind of got washed to the way side came up again and low and behold, “It has been confirmed that a Workplace Health and Safety report was undertaken following the incident, and that charges were laid against Mike Ball Dive Expeditions for breaches under the Workplace Health and Safety Act, to be heard in the Townsville Industrial Magistrates Court on May 16.” The other thing that I found really interesting in that article was this quote from Watson’s attorney, “Mr. Austin said his client was told before he left Australia in October 2003 that the investigation would take six months to a year before a report was placed before the coroner, and that timeframe had now been well and truly exceeded. "But no one has tried to contact Gabe in the past two-and-a-half years. He has tried to ring and email Townsville investigators about where things stand, but has had no luck, so we have contacted a Townsville lawyer to keep us up to date.”” Seems to me that the Queensland police were not investigating anything because they didn’t think there was anything to investigate, i.e. accident. The family didn’t “use the momentum of the investigation”, as you say; they WERE the momentum of the investigation. It was non-existent until they got involved. That is why I made the comment that they have pushed this thing from the beginning. The investigation never picked up any steam until the locomotive named Tommy Thomas got behind it. Just my opinion based on what I have read. And I just have to add this comment from one of the CDNN scuba forums about Mike Ball Spoil Sport and negligence because it amuses me - “Has anyone else noticed that whenever a dive operator in Queensland screws up and kills or nearly kills a customer, within 24 hours the Aussie press starts publishing reports attacking the credibility of the victim? That's what they did to Tom and Eileen Lonergan, that's what they did to Gabe and Tina Watson and that's what they did to Richard Neely and Alison Dalton. You wonder how much Dive Queensland has to pay to keep the local media on retainer and smear the reputation of foreigners who make the mistake of going scuba diving in Australia.”

The second comment I made was about people making split-second decisions while diving and wishing they had made different decisions or could go back and change something. From some of the comments that I read from the same scuba forum on CDNN, looks like some folks don’t necessarily disagree with the decision Watson made – (1)“Gabe had more experience, and he did the 'right thing' (textbook answer) on how he responded, and what he did that day. Overconfidence is what kills scuba divers. Becoming separated from a "dive buddy" is a violation of safety procedures for recreational diving. I'm afraid Tina died "as a result of a diving accident for which she was solely responsible." I know that may not sit well with the family, but such is life. No one put a gun to her head to do it.” (2) “First let's consider the Rescue Diver certification. Being certified to the Rescue Diver level does not automatically mean you can save divers who encounter problems, especially in strong currents, which significantly increase the inherent risks of scuba diving. The sea is boss and if the divers were separated by strong currents, there is little if anything the husband could have done to reach his wife. Second, divers are trained to ascend to the surface after one minute if they lose contact with their buddy. Isn't that what the husband did? Finally, most enthusiastic divers encourage their partners to take up the sport. So unless there is something you are not telling us about the relationship, your accusations that Gabe Watson killed his wife seem more malicious than true.” and (3) “Also, the rule of diving is not to go down to come up. Thats crazy. If you get separated from your buddy or they get into trouble, you give them 1 minute and you surface. And from the way it sounds that is what he did after she knocked his mask off. I know if I was trying to help someone and they even touched my mask or regulator I would be outta there!”

Lastly, you say that you don’t think it is possible for the Thomas’ alone to “hold [the] Australian justice system hostage”, but I beg to differ. When you’ve got articles titled “Father furious with sentence” being posted everywhere, people screaming things like “This is in no way, shape or form a beginning to get justice for my daughter. We are in total shock at what has transpired. What has happened is ludicrous . . . and an embarrassment." (Father furious at sentence for Gabe Watson over dive death | The Courier-Mail (http://www.news.com.au/couriermail/story/0,23739,25594452-3102,00.html)) and personally meeting with the QLD A-G office to implore him to appeal the sentence, you kind of have to do something or look stupid, don’t you? And then the A-G from the state of Alabama gets involved and says “"I do not believe the Australians are unjust people and I know the country doesn't want the reputation of the new Aruba," King said.” Can you really NOT respond with all that going on?

Is it possible that he murdered his wife? Yes. Is it probable? Not really. What I see is terrible accident and a distraught family trying to make it into something it is not. And the fact is that after all of this is said and done, their daughter will still be gone, they’ll still be sad and more people will be left suffering all because one man made one decision and it didn’t turn out the way he hoped it would. And all of THAT bring me back to the original question that I posted on this board. Based on the precedence that the Watson case has set, how many people will potentially try to save a panicking diver because they feel "legally" responsible to do so and then end up perishing themselves? Or how many won’t and will end up in jail too because of a “bad decision”? Like I said before, something to think about…
Diving Queen,

I think some of the synical attitude of Scuba board incidents and accidents have rubbed off on me. Only because you had two posts and no real profile. But that does not mean you do not have legitimate points.

You are obviously passionate about which way you lean with this and certainly have spent a tremendous amount of time pouring over this story and CDNN. They are known for adding their on flourishes and embellishments to spin their stories. (although it does make for fun reading) However, all of this has been hashed out long before on other threads. This thread is on another level of discussion here. I know BSEE65 was very involved in the discussion...and wisely so...with K-girl and Bowl of Petunias and Livinoz among others, prior to the manslaughter agreement. It was always a great and lively discussion.

Didn't mean to offend...or retry the circumstances of this case. We may have that opportunity again in the future if this goes to trial in the states. Now most of us are waiting to hear about the results of sentencing appeal. However, I still feel it is an overstatement to say that Tina Watson's family are the major force and directors of this pending matter, as if they hold the strings on a puppet referring to Queensland prosecution. I hold the judicial system in higher regard than that. But, maybe I am just naive. Maybe the squeaky wheel did get the grease, but don't think they drove away with the whole car!

I know stupid analogy. Forgive me. I do like different points of view and look forward to hearing more of your viewpoints. Welcome. And it is refreshing to look back on what really did start this whole thing. It has been a while since I really reviewed how it all came out. And we did not get the proper perspective by any means. It certainly was media driven no doubt about it. Makes a darn good media story...and we know how perverted the media can be. Believe me I am no fan of that entity.

That is why so many of us looked forward to the trial that never happened. It feels like a rip off to tell you the truth. If Gabe Watson is truly innocent of only failing to rescue his bride...he will have to live with the fact that so many people will think he is guilty of pre-meditated murder no matter what the courts rulings say. He will likely never be able to live it down, especially in his own hometown.

Glad to have you on board. And enjoyed your clever way to get your "links" in!

[boulderjohn]

But that aside, how does prosecutorial misconduct equate in this case? I have not seen nor heard of any charges of prosecutorial misconduct here. So why are we talking about this?

Th point was not prosecutorial misconduct. I was replying to another post in which the poster said he did not have specific incidents at hand but knew that people had been convicted of crimes of which they were not guilty and would have jumped at the chance to plead guilty to a lesser charge (of which they were also not guilty) if they had had the chance.

[diving queen]

Hi Diving Queen. I read your post above differently and certainly didn't think you were related somehow to the families involved. Just to let you know CDNN has a pretty bad reputation around here with quite a few people for poor reporting. Also the fact that most of our information regarding this case comes from media reports, etc, has been dealt with in an earlier thread on Watson as well as posts in this thread. The Judge's sentencing remarks are posted here http://www.scubaboard.com/forums/4477334-post229.html and we are awaiting the Appeal results.

livinoz, as you might imagine from the book I posted on here last night ;), I am well aware of where this case currently stands. I, as all of you, am anxiously awaiting the appellate court's decision. As I said before, I'm new to this board and was responding to someone else’s recent post when it was mentioned that I must know or be a part of the Watson family. I was just defending my position in my last, very long post. Apparently, I'm in the minority with the way I'm leaning on this case. As far as CDNN's reputation, I don't find them to be any worse than any of the rest of them. There are inconsistencies and flat out lies in just about every media report out there today. Sorry if I'm rehashing old stuff...

[bsee65]

livinoz, as you might imagine from the book I posted on here last night ;), I am well aware of where this case currently stands. I, as all of you, am anxiously awaiting the appellate court's decision. As I said before, I'm new to this board and was responding to someone else’s recent post when it was mentioned that I must know or be a part of the Watson family. I was just defending my position in my last, very long post. Apparently, I'm in the minority with the way I'm leaning on this case. As far as CDNN's reputation, I don't find them to be any worse than any of the rest of them. There are inconsistencies and flat out lies in just about every media report out there today. Sorry if I'm rehashing old stuff...

Without quoting your entire book from a previous post, a rescue diver with his hands on his buddy diver in distress should be able to do something. At a minimium, there should be some attempt to reach the surface. It sounded from Watson's description that he lost his grip on her because she got too heavy, and then decided to run off for help. A number of experienced divers addressed the concept of "too heavy" under water, and there was no "buddy separation" in the traditional sense. The visibility that day was much greater than the separation of the divers ever became before he actively left the scene.

I have seen several discussions here start out reviewing an incident and then float toward hypothetical and generic practices. Often it's the case of someone coming into a discussion late and not reading the majority of the thread. Any concept of buddy separation applied to this seems like it would have come from this arena. To give Watson the benefit of the doubt, Tina was in distress and, once he let go of her, sinking. He never lost sight of her, she just got out of his reach. There's no reason in the world why he shouldn't have been able to vent some air and get down to her for another attempt to assist or bring her to the surface. He was not in any trouble or low on gas. He was accounted an able swimmer and trained at least through rescue.

Since he was observed in close contact with Tina for some period of time, the "bear hug", he should have been able to attempt some sort of action to assist her. It was observed that there was no attempt to share air, if breathing was her problem. Since she asphyxiated with her regulator still in her mouth and a full tank of gas, it's hard to understand how she wasn't able to be made bouyant during the contact and no air was shared. If she was really in respiratory distress at that point, she could have had some sort of bad mix that was the source of her problems. At least, Watson should have thought so.

Could he be that incompetent? It's possible. It's also possible that he chose a path that would lead to Tina's death. For your comment that he was "probably not" a murderer, I can't see where you could draw that conclusion based upon the provided evidence. Maybe, in a legal sense, there isn't beyond-a-reasonable-doubt evidence that he killed her, but there is more than just a rant from half a world away to suggest it was possible. In fact, I'd say it was more than just possible, but a reasonable explanation for the events as they are known. Objectively, it's at least as reasonable an explanation as the one that the courts accepted.

Factually, I don't see us getting any closer to "the truth". If it was an accident, we'll never know more. If it wasn't, Watson could admit that he killed her at some point in the future. Other than that, I don't see any more facts coming to light.

[bowlofpetunias]

Thanks for the links Diving Queen. It was interesting to revisit the beginning as alohagal pointed out it has been a long and interesting topic of discussion.

I haven't been saying much here recently as I don't really feel I would be doing anything but repeating myself.

No matter what the outcome:

There will be no "Justice" for Tina. Her life will still be tragically short.

There will be no "Justice" for Tina's loved ones. They will still be angry. Anger is one of the 5 stages of Grief according to Elizabet Kubla-Ross's Pioneering work on Death/Dying and Grief/Grieving. IMHO their natural anger can not be resolved by legal profession but by another profession entirely. I hope they will find the help they need... Anger can turn to hate that destroys from the inside.

There will be no "Justice" for Gabe's loved ones. They are victims as well. They will live with the 'stigma" and the emotional trauma of this event.

There will be no "Justice" for Gabe. His role in Tina's death was it a result of a bad decision based on incompetence, panic or an opportunistic murder? He will never escape the whispers and stares that will trigger memories. I would not want to live in his skin!

The Judicial System can only apply laws in an effort to deter antisocial behavior and lock up those who are dangers to society. There is no perfect judicial system, political system or society. There never will be. We still need to do our best to develop, enforce and uphold what we have. I will let those more knowledgeable than I am in these areas do their job until it is clear to me that I can/should be doing more. *puts away soap box*

Thanks everyone for a very interesting and mind expanding discussion.

[Under-Exposed]

livinoz, as you might imagine from the book I posted on here last night ;), I am well aware of where this case currently stands. I, as all of you, am anxiously awaiting the appellate court's decision. As I said before, I'm new to this board and was responding to someone else’s recent post when it was mentioned that I must know or be a part of the Watson family. I was just defending my position in my last, very long post. Apparently, I'm in the minority with the way I'm leaning on this case. As far as CDNN's reputation, I don't find them to be any worse than any of the rest of them. There are inconsistencies and flat out lies in just about every media report out there today. Sorry if I'm rehashing old stuff...
I liked your book!

[ItsBruce]

Diving Queen: I, too, liked your book. Very impressive job of research.

As I see it, there were some "red flags" in the information developed during the initial investigation. I think the authorities would have been remiss if they had not investigated further. Now, the fact that there were "red flags" does not mean there was actually a case. And, I would guess that the authorities ultimately concluded that they did not have sufficient evidence to charge Watson with murder or take the case to trial. However, it seems to me that Tina's family may have kept the authorities from closing it. Often, a case will take on a life of its own and I'm guessing that when the prosecution was faces with actually having to put on a case, it decided discretion was the better part of valor and accepted a plea to manslaughter. Do I have evidence of this? Not really. It is my instinct ... and I know how often instinct is wrong and how it can often cloud one's judgment.

[K_girl]

Diving Queen - Livinoz and I are on the same page here. CDNN's reporting is highly questionable and has a poor reputation on this forum long before this case. And because of that, I avoided using them as a reference on my blog. Police investigations sometimes do take years. It is not surprising that the case was initially thought to be an accident as murder-by-scuba is an extremely rare occurrence. But I would say by the police questioning in the Watson statements within days of Tina's death, did indicate to me that they had suspicions. And the more he talked, the worse it got. As to what other witnesses on the scene witnessed on that particular date and told the police, I don't believe anyone has that information. I saw a program about the solving of a cold case where the police had a suspect for years, but not the evidence. It was the mother of the victim who persisted with the case and gathered the evidence they needed. And the evidence was definitive with DNA. I can't fault a family who tries to pursue justice in the face of an investigation that is so complex, that the police and prosecution don't seem to want to deal with it. The years to me, seem to indicate that this family was patiently waiting for the police to do their job. I don't know why you have such harsh feelings for Tina's family, it seems to go overboard and I suspect there is some personal reason behind it.

[K_girl]

First, I’d like to back up what I said about her family pushing this investigation on. The day of the incident, the first article CDNN posted about it stated this: “Detectives last night interviewed 50 people -- all of the passengers and crew -- from the dive boat. Police communications co-ordinator Sergeant Nick Sellars said there were no suspicious circumstances with the death and a report would be prepared by water police for the coroner. The incident was the second death from the Spoil Sport in less than a year.”

If I were the police, I would give absolutely no indication of any suspicion of Watson to the media for two reasons: 1) this was the day of the incident and you do not make decisions that quickly, you start with an assumption of an accident; and 2) if the other divers on the boat gave me reason to suspect him, I would want him to talk. Therefore, I would want him to believe that I thought it was an accident. Would seem that strategy worked exceedingly well and these kinds of strategies are used all the time.

[diving queen]

Diving Queen: I, too, liked your book. Very impressive job of research.

As I see it, there were some "red flags" in the information developed during the initial investigation. I think the authorities would have been remiss if they had not investigated further. Now, the fact that there were "red flags" does not mean there was actually a case. And, I would guess that the authorities ultimately concluded that they did not have sufficient evidence to charge Watson with murder or take the case to trial. However, it seems to me that Tina's family may have kept the authorities from closing it. Often, a case will take on a life of its own and I'm guessing that when the prosecution was faces with actually having to put on a case, it decided discretion was the better part of valor and accepted a plea to manslaughter. Do I have evidence of this? Not really. It is my instinct ... and I know how often instinct is wrong and how it can often cloud one's judgment.

ItsBruce, you took the words RIGHT OUT OF MY MOUTH! I think you said what I was wanting to say better than I said it. Bravo!

I've read the Coroner’s Findings and Decision http://www.courts.qld.gov.au/Watson20080620.pdf and from what I've read, it really looks like the information obtained from the 65 + "witnesses" contained very little hard evidence, and most of that was circumstantial. The problem with the Coronial Inquest (any coronial inquest, really) is that a huge amount of hearsay is allowed to be admitted; so basically, the majority of the testimony provided during the inquest that ultimately gained the murder charge would not have been admissible during the actual trial. The only thing they would have been able to present at that time was hard evidence and as far as I can see, there never was a "smoking gun" in this case. Looks like to me the DPP's office decided something was better than nothing and hoped to make everyone happy by accepting the manslaughter plea. Unfortunately, it looks like it didn't make anyone happy. That's why we are still discussing it today and continue to patiently wait for the appellate judges’ decision.

[K_girl]

The second comment I made was about people making split-second decisions while diving and wishing they had made different decisions or could go back and change something. From some of the comments that I read from the same scuba forum on CDNN, looks like some folks don’t necessarily disagree with the decision Watson made – (1)“Gabe had more experience, and he did the 'right thing' (textbook answer) on how he responded, and what he did that day. Overconfidence is what kills scuba divers. Becoming separated from a "dive buddy" is a violation of safety procedures for recreational diving. I'm afraid Tina died "as a result of a diving accident for which she was solely responsible." I know that may not sit well with the family, but such is life. No one put a gun to her head to do it.”

You appear to be stating that the outcome was not the outcome which was Watson pleaded guilty to manslaughter and did take responsibility for her death.

[diving queen]

I don't know why you have such harsh feelings for Tina's family, it seems to go overboard and I suspect there is some personal reason behind it.

K_girl, as I've stated before, the only "personal reasons" I have behind anything I've written are that I have taken an interest in this case and seem to see it from a different perspective than most other people do. Maybe I just enjoy playing devil's advocate, I don't know. As far as me having "harsh feelings" towards Tina's family, that is not the case. Most of what I have written was quotes from the media, many of which came directly from their mouths. If it was "harsh", it's just how it was reported. And again, as far as CDNN not being reputable is concerned, I'd like to point something out to you. Many of the articles that I quoted from CDNN's website were contributions from Andy Toulson. She is a writer for the Townsville Bulletin...the same Townsville Bulletin that you have referenced SEVERAL times on your web page. So does that mean that their information is "highly questionable" as well? As a matter of fact, most of the articles they print say “Powered by CDNN”, which means they didn’t even write them. At the beginning or end of the article, you can see who wrote it and what other media outlet they work for i.e. “source – Townsville Bulletin” or “by Marienne Thomas-Ogle” who it appears writes for al.com. I’m not saying they are better or worse than anyone else…personally, I think most all of them are full of crap, but I keep referencing them because they seem to have the most archived information on this particular subject.

[diving queen]

You appear to be stating that the outcome was not the outcome which was Watson pleaded guilty to manslaughter and did take responsibility for her death.

All I was trying to say is that many people don't think Watson made the wrong decision. And I'm still not convinced that Watson thinks he made the wrong decision. I mean, do you honestly believe this guy fought for as long as he did, saying he was innocent and going to fight extradition, etc and then just gave up and returned to face trial because he finally believed he was guilty? Not likely...it seems more likely to me that he decided 7 years, or 5 years, or 18 months or whatever he finally gets, sounded better than life in prison i.e. 25 years. It's been said on here before...innocent people go to jail all the time. All I'm saying is that maybe the guy wasn't willing to roll the dice...

[K_girl]

diving_queen - reality is - he did not face trial. It was also reported that manslaughter deal was discussed ahead of his return to Australia. Although the prosecution would not guarantee Watson a manslaughter deal, the report was that it was discussed in terms of - if there was a manslaughter deal, how it would be structured. And indeed - that is exactly what happened shortly after his return. I believe the only reason he pleaded to manslaughter was because there was enough evidence to cause him and his attorney concern that he could be conivicted. As to what was going on his Watson's head as to his own guilt, I would not presume to guess. Certainly, his statements to police was great cause for concern. You speak of only one moment in time, his decision to leave Tina, however there are many other aspects of the case that raised suspicion, one of which was the computer beeping with the battery in backwards causing them to abort the first dive attempt.

I also have discussed that moment in time where Watson left his wife. The point I made there was if he had his reg knocked out of his mouth and his mask knocked askew, for most divers, that would cause them to head straight for the surface in a full-blown panic. However, according to Watson, that is not what he did. He managed to get his own situation under control and avoid his own panic and doing the wrong thing. Then Tina is too heavy, then Tina is out of reach and is sinking. By Watson's account, she is only 10 feet below him and her arms outstretched reaching for him, no kicking, no attempt to try and save herself, just sinking. I've measured my distance in kicks - takes me only two kicks to go 10 feet. He says he left her because he was afraid for his own safety of going too deep and getting DCI, but he told police he's been much deeper than that before and he had a full tank of air and no nitrogen loading because it was the first dive of the trip. If he said he had panicked and gone to the surface because of his mask and reg being knocked off - I think that would have been an acceptable explanation. But instead, he described his own heroic, but lame effort to save Tina that doesn't make any sense. To top it off, he says he rushed to the surface so fast to get help for Tina, he thought he might get the bends. However, his computer says it took him 2 minutes and 30 seconds to go 45 feet. That is a snail's pace. Sorry, but not understandable in my book when you really look at the detail of Watson's statements, which I have reviewed in great depth.

I would challenge you to take a very close look at the detail in Watson's statements surrounding that moment and try and make it make sense instead of making such a general statement that you and many other divers can understand how it could happen. Measure out 45 feet and walk that distance in 2 minutes and 30 seconds, let me know just how fast and reasonable you think that is. I did it - and I don't think he was in any great rush to get help for Tina.

I am not familiar with CDNN writers, so I'll have to take your word on that one. I will take a second look at the links you provided and it may make sense to add them to my blog.

[bsee65]

K_girl, as I've stated before, the only "personal reasons" I have behind anything I've written are that I have taken an interest in this case and seem to see it from a different perspective than most other people do. Maybe I just enjoy playing devil's advocate, I don't know.

Devil's advocate? Hardly. Feels more like a bad take on a Monty Pythin skit to me.

Many of the comments you made or quoted sound like they came from people who weren't actually aquainted with the story. Put forth any fact you like and let's discuss it. Your shotgun approach makes it hard to address anything and move toward consensus.

How about this. You have a scenario with visibility where you haven't lost sight of your buddy, she has fallen a few meters below you, and she is in distress and sinking. You are at the start of your dive with a full tank and no issues of your own. Is it the right thing to let her sink, lose sight of her, and swim for help, or to vent some air and get down to her? Remember, you're rescue certified.

If, for some insane reason, you decide that leaving your buddy to go for help makes more sense, where exactly do you plan to send the help? Now that you've lost contact in current and she probably won't be anywhere near where you last saw her, where do you look? If Watson were also a new diver, was in some distress himself, saw her dropping into a depth he couldn't handle, or lost sight of Tina, then searching out assistance was probably the right thing.

If Tina was having breathing difficulties, it would most likely have been related to panic or hyperventilation. She had a full tank of air and her regulator never left her mouth. Give me any other reason why she might have been unable to breath without having her tank valve closed for a minute or two that also would not have shown up in a post mortem investigation. A panicking diver could definitely be dangerous up to the point where she lost consciousness. A hyperventilating person is typically just about incapacitated and should be easy to control from the start.

All this discussion assumes that Watson actually wanted to save Tina, who was having some problem that he did not cause. If one wants to believe that to be true, then all of the actions and facts have to support that. While it is possible, I don't believe it to be true. Among the tipping points for me is the dive computer battery story.

Among the pieces of information I have been hoping to hear from the start of this is just how capable a diver Watson was. We know he was rescue certified, but not if he had any more advanced certs or what his diving history was. At least, I don't recall that ever coming out. If it turns out that he had the minimum dive count required for his certifications and wasn't really capable, I would be more likely to believe he was incompetent rather than a murderer.

Also, with the facts in play, I can't see how anyone could say that Tina died "as a result of a diving accident for which she was solely responsible." This woman was apparently heavily pressured into diving at all by her fiance/husband and then taken, by him, on an inappropriate dive for a beginning diver. In a vacuum, we would all put blame on her for even getting into the water, but it would be quite hard to name her as "solely responsible" under any circumstance. A statement like that is purely inflammatory and has nothing to do with the concept of "devil's advocate". If I were to name her as solely responsible, it would be for trusting her safety to a man who either wasn't as competent as he claimed, or who actually intended her harm, not for her actions in the water.

Also, as far as your question about why he would go back to Australia if he were guilty, there are a couple answers to that. One is that there was some discussion ahead of time that he would be allowed to plea the case out and get off with a short sentence. For a man who was actually guilty, taking a year to erase any possibility of a future finding against him seems a good deal. It effectively brings an end to any investigation. Second, with extradition proceedings continuing, it could have reached the point where his return to Australia was inevitable. At that point, a cooperative defendant stands a better chance than one dragged back kicking and screaming. This is proven out in the judge's comments on the case.

[diving queen]

Devil's advocate? Hardly. Feels more like a bad take on a Monty Pythin skit to me.

Many of the comments you made or quoted sound like they came from people who weren't actually aquainted with the story. Put forth any fact you like and let's discuss it. Your shotgun approach makes it hard to address anything and move toward consensus.

Also, with the facts in play, I can't see how anyone could say that Tina died "as a result of a diving accident for which she was solely responsible." This woman was apparently heavily pressured into diving at all by her fiance/husband and then taken, by him, on an inappropriate dive for a beginning diver. In a vacuum, we would all put blame on her for even getting into the water, but it would be quite hard to name her as "solely responsible" under any circumstance. A statement like that is purely inflammatory and has nothing to do with the concept of "devil's advocate". If I were to name her as solely responsible, it would be for trusting her safety to a man who either wasn't as competent as he claimed, or who actually intended her harm, not for her actions in the water.

Also, as far as your question about why he would go back to Australia if he were guilty, there are a couple answers to that. One is that there was some discussion ahead of time that he would be allowed to plea the case out and get off with a short sentence. For a man who was actually guilty, taking a year to erase any possibility of a future finding against him seems a good deal. It effectively brings an end to any investigation. Second, with extradition proceedings continuing, it could have reached the point where his return to Australia was inevitable. At that point, a cooperative defendant stands a better chance than one dragged back kicking and screaming. This is proven out in the judge's comments on the case.

Well, I'm going to respond to this and then I think I'm done for a while. You guys are getting decidedly more worked up over this whole thing than I am. Am I sad that a young lady died...absolutely! Do I believe that the outcome of this is going to affect my life one way or the other…not so much! I feel like I’m being attacked because I choose to view this case in a little different light than the rest of you. Being called “inflammatory” and told that I have a “shotgun approach” to discussing this is kind of insulting, as I’m certain it was meant to be. I was simply looking for a little “light sparring” over the matter…a friendly discussion with varying opinions, but it appears that K_girl and bsee65 allow for only one opinion on the matter and that is theirs.

I would like to clear one thing up though. The following comment from the scuba forum that I included earlier - “Gabe had more experience, and he did the 'right thing' (textbook answer) on how he responded, and what he did that day. Overconfidence is what kills scuba divers. Becoming separated from a "dive buddy" is a violation of safety procedures for recreational diving. I'm afraid Tina died "as a result of a diving accident for which she was solely responsible. I know that may not sit well with the family, but such is life. No one put a gun to her head to do it.” - WAS NOT my comment. I found in on another forum and only included it as proof that there are others that don’t feel that Gabe Watson made the wrong decision that day. I DO NOT agree that Tina was responsible for her own death and in hindsight should have included only the bolded sentences of that comment as they were the only portion relevant to my argument. I was not trying to “insight” anyone and I apologize if I did so. Sorry to have stirred up the hive; I hope you guys enjoy agreeing with each other until you finally get sick of talking about it.

[K_girl]

If, for some insane reason, you decide that leaving your buddy to go for help makes more sense, where exactly do you plan to send the help? Now that you've lost contact in current and she probably won't be anywhere near where you last saw her, where do you look? If Watson were also a new diver, was in some distress himself, saw her dropping into a depth he couldn't handle, or lost sight of Tina, then searching out assistance was probably the right thing.

And Tina, who is simply reaching up, just 10 short feet away, apparently hoping Watson will grab her hand, sinking and not kicking - as Watson described, seems to be a diver who is pretty willing to be rescued and doesn't appear to be struggling at the moment Watson decided to leave her. The reasons he gave for leaving? Include: 1) she was sinking quickly and he was afraid of the bends because of depth; 2) ear problems; and 3) wouldn't know how to retrieve her off the bottom other than taking off her equipment because he was never trained to do so. That's a lot of different levels of thinking for a split-second decision. So, I would have to say that Watson is capable of thinking through a tough situation, look at all the things he said he was thinking about.

It would have been better for him to say something like this: 1) I was not thinking, I was just reacting and I wanted to get help; 2) I know I'm a trained rescue diver, but I just forgot all my training and completely freaked out.

How does he handle the question of the slow 2-minute and 30-second ascent? He did say: I was swimming around looking for help and actually shook one Asian diver to get his attention. But this creates conflicts with this statement he made: I rushed to the surface so fast I'm surprised I didn't get the bends. The second problem: all divers on the three boats in the area that day were located and interviewed, not one of them said that any diver came up to them and shook them.

[K_girl]

WAS NOT my comment. I found in on another forum and only included it as proof that there are others that don’t feel that Gabe Watson made the wrong decision that day. I DO NOT agree that Tina was responsible for her own death and in hindsight should have included only the bolded sentences of that comment as they were the only portion relevant to my argument. I was not trying to “insight” anyone and I apologize if I did so. Sorry to have stirred up the hive; I hope you guys enjoy agreeing with each other until you finally get sick of talking about it.

But including it in the manner you did certainly made it appear that you endorsed the comment as you seemed to be endorsing many other comments in that post as well.

However, many of us who have been here for a while have not always agreed on everything, believe me. There was another thread before this one that was active for a couple of years and it got very emotional and was shut down because of it. But I think some of us, including myself, became a little too personally invested in the discussion. And among those of us who did get too personally invested and are still here, we finally let go from trying to convice everyone that we are "right" about everything and have started looking for common ground. But still, we don't always agree, but certainly, it has become more civil. If you do a poor job of trying to make your point, your faulty reasoning will not be overlooked. I have found myself on the receiving end of that more than once. However, I still think the majority of discussions have remained very lively and incredibly insightful and valuable. There are people who really pissed me off to no end at one time that I have since thanked for their insight. There are several of us who have said "goodbye" on this thread at one time or another, but like you, this case intrigues us. It is, afterall one of the few scuba-related deaths that we have so much information on, albeit imperfect.

For instance, examine the significance of several reports that Tina still had the regulator in her mouth when she was found. As Watson also seemed to describe her reaching up for him as she sank would indicate that as well. There are so many small details to examine when looking at this case and if you really have the intense interest in this case that you say you have, you should look at everything and try to put the puzzle together. You will find yourself looking at this for countless hours, perhaps over a period of more than a year. Trust me. Hint: You can really put the biggest part of the puzzle together based on Watson's statements alone. If your point is to say you can understand Watson's actions, then you need to put that into context of what he said happened and make them fit together to make sense. If you do that - then I think we can have the kind of discussion you mentioned. Otherwise, if it is based on a bunch of opinions of people who have not taken the time I have to examine the details of his statements, then I am not going to be easily persuaded.

As for discussion as to whether or not Watson is guilty of murder, to me it's moot because there will be no trial with no trier of fact, no evidence presented and I'm doubtful that there will be one here in the U.S. The discussion has now turned to the more timely subject of the manslaughter plea, conviction and sentencing.

[alohagal]

I am enjoying each and every post here the last two days. I am off to work the night shift now in the ER and look forward to more of this lively discussion when I get back in the morning. I have had no time to really peruse each post as thoroughly as I would like. But, it will get my undivided attention this weekend. And I am going to go back and reveiw eachof those CDNN articles. So thanks again for the links.

Keep up the good work all of you. Each poster has something refreshing to add and I hope they stay. Livinoz...get back in here! You are missed.

Respectfully,
Mary

[livinoz]

Devil's advocate? Hardly. Feels more like a bad take on a Monty Pythin skit to me.

Many of the comments you made or quoted sound like they came from people who weren't actually aquainted with the story. Put forth any fact you like and let's discuss it. Your shotgun approach makes it hard to address anything and move toward consensus.



The quotes you allude to in Diving Queen's post were from various media sources and have been used many times by people in two threads to argue for and against this case. However I think the debate as to whether the media is the correct place to be gathering "evidence" is long over.

Please, let's not resort to personal attacks though and ruin a reasonably good debate; that's unnecessary and does you no credit as some of your arguments have been thought-provoking.

I am enjoying each and every post here the last two days. I am off to work the night shift now in the ER and look forward to more of this lively discussion when I get back in the morning. I have had no time to really peruse each post as thoroughly as I would like. But, it will get my undivided attention this weekend. And I am going to go back and reveiw eachof those CDNN articles. So thanks again for the links.

Keep up the good work all of you. Each poster has something refreshing to add and I hope they stay. Livinoz...get back in here! You are missed.

Respectfully,
Mary


Mary I haven't really anything to add, so I've stayed out of here, but thanks. When we have access to the results of the Appeal I may have more to say; then again, maybe not!

[bsee65]

Well, I'm going to respond to this and then I think I'm done for a while. You guys are getting decidedly more worked up over this whole thing than I am. Am I sad that a young lady died...absolutely! Do I believe that the outcome of this is going to affect my life one way or the other…not so much! I feel like I’m being attacked because I choose to view this case in a little different light than the rest of you. Being called “inflammatory” and told that I have a “shotgun approach” to discussing this is kind of insulting, as I’m certain it was meant to be. I was simply looking for a little “light sparring” over the matter…a friendly discussion with varying opinions, but it appears that K_girl and bsee65 allow for only one opinion on the matter and that is theirs.

I would like to clear one thing up though. The following comment from the scuba forum that I included earlier - “Gabe had more experience, and he did the 'right thing' (textbook answer) on how he responded, and what he did that day. Overconfidence is what kills scuba divers. Becoming separated from a "dive buddy" is a violation of safety procedures for recreational diving. I'm afraid Tina died "as a result of a diving accident for which she was solely responsible. I know that may not sit well with the family, but such is life. No one put a gun to her head to do it.” - WAS NOT my comment. I found in on another forum and only included it as proof that there are others that don’t feel that Gabe Watson made the wrong decision that day. I DO NOT agree that Tina was responsible for her own death and in hindsight should have included only the bolded sentences of that comment as they were the only portion relevant to my argument. I was not trying to “insight” anyone and I apologize if I did so. Sorry to have stirred up the hive; I hope you guys enjoy agreeing with each other until you finally get sick of talking about it.

The fact and manner in which you brought in the quote suggests that you accept or support it. You certainly didn't refute it as you presented it. It was obvious by the way it was presented that they weren't your words. As far as calling them inflammatory, I stand by that. I would have a hard time believing that anyone who has participated in this discussion would agree that "Tina died as a result of a diving accident for which she was solely responsible."

This site is not here for "light sparring". We're here to analyze incidents and learn from them. If you want to raise an issue or question an item go for it but, do it for the purpose of getting closer to the truth or some valuable lesson to keep divers safer in the future. Don't do it just for giggles or to generate some enjoyable controversy.

Where this case stands is that there are two explanations for what occurred, a murder or an accident. There are a several circumstantial things that point toward Watson's guilt, mostly from his questionable testimony on the matter, but there's no real hard evidence either way. The eye-witness testimony doesn't clear it up nor did the post mortem. There's talk of Watson's attempts to increase his insurance benefit in the event of Tina's death, and I do consider that against him. There's also a lot of anti-Watson publicity relating to his relationship with Tina's parents, especially after the fact, but that doesn't factor into my opinion.

If there are any additional facts out there, or alternate explanations for any of the events, by all means let's discuss them. If there are any facts that prove or disprove the statements that anyone has made, likewise.

In any case, I think this incident has run its course as a discussion of a diving incident. That was probably the case by the time this thread was even started. It now only exists as a curiosity for those who invested enough time in the original discussion to care about the final outcome.

[bsee65]

The quotes you allude to in Diving Queen's post were from various media sources and have been used many times by people in two threads to argue for and against this case. However I think the debate as to whether the media is the correct place to be gathering "evidence" is long over.

Please, let's not resort to personal attacks though and ruin a reasonably good debate; that's unnecessary and does you no credit as some of your arguments have been thought-provoking.

You can read what I just posted in terms of attribution of the quote. Where it came from doesn't matter to me. It's hard to repeat a quote without either disagreeing with it or supporting it. Diving Queen brought the quote into the discussion to support a position that Watson wasn't guilty which suggests some level of agreement with it.

As far as personal attacks go, I didn't make any and I stand by my comments. To come late into a discussion like this and throw everything at the wall is a shotgun approach. Diving Queen admits that she posted in order to engage in some "light sparring" which is awfully close to the definition of trolling.

You're not going to make any progress arguing the entire case as a whole, just create controversy. If you want to get closer from here, you'll have to take a fact or statement and see if it fits into the whole. If you find a piece or two that you can't make fit with the rest, then you have to question the validity of the things that don't fit. When everyone sees a thing in one way, there's great value in someone taking a contrary position to question theories. I appreciate the value of a "devil's advocate" in such a discussion. It's taking a contrary position with the intent to get somwhere, not just for the sake of a good argument.

[diving queen]

This site is not here for "light sparring". We're here to analyze incidents and learn from them.

In any case, I think this incident has run its course as a discussion of a diving incident. That was probably the case by the time this thread was even started. It now only exists as a curiosity for those who invested enough time in the original discussion to care about the final outcome.

I'm so sorry...I had no idea we were solving the problems of the world on the Scuba Board Accidents and Incidents thread. If Gabe Watson did or did not kill his wife, what life lesson exactly are we supposed to gain from the discussion of it? And if the discussion of this incident has run its course, why do you continue to have an opinion on this thread either way? You say yourself there is nothing left to discuss, so sit back and wait for the judges to render their decision.

As far as "trolling" goes, I'm not even sure I know what that is or means. And you have no idea how much time I have or have not invested in this matter OR how much I do or do not care about the outcome to say whether I should or should not be taking part in this thread.

I originally entered this thread with what I thought was a very important question AND concern for divers based on the outcome of this matter but no one seemed interested in it until another poster (a "regular member") on this thread had an opinion on it. So I'll leave you with my original question which neither you or K_girl bothered to answer the first time.

I'm curious if the precedence set by Gabe Watson pleading guilty to "leaving his dive buddy" is going to affect the dive buddy of this fellow, too.

CDNN :: Fatal Diving Accident Prompts Calls for Government Regulation (http://www.cdnn.info/news/safety/s090710.html)

It sounds like to me that QLD is going to have certify or re-certify (if people were certified elsewhere) everyone that comes to dive in that state if they ever want people to dive there again. Especially now that the precedence has been set that if you inadequately perform your duties as "dive buddy", you could be held legally responsible and spend time in jail. I mean, how many people could potentially try to save a panicking diver because they feel "legally" responsible to do so and then end up perishing themselves?

Then, after my post another incident that occurred on the Tunnel Wall in Nassau in June of this year was brought up which is also relevant to my original question -

CDNN :: Search On for Missing Bahamas Scuba Diving Course Participant (http://www.cdnn.info/news/safety/s090603a.html) There have been SEVERAL discussions about this incident on the ScubaBoard website as well.

Could their dive buddies possibly have the same fate as Gabe Watson if they are held to the new standard that has been set by his plea of guilty to the offense of leaving his dive buddy which resulted in her death?

That was my original question on this thread and I'd be interested to know what your opinions are on that or if you have an opinion on it.

[livinoz]

I originally entered this thread with what I thought was a very important question AND concern for divers based on the outcome of this matter but no one seemed interested in it until another poster (a "regular member") on this thread had an opinion on it. So I'll leave you with my original question which neither you or K_girl bothered to answer the first time.

I'm curious if the precedence set by Gabe Watson pleading guilty to "leaving his dive buddy"...

There have been numerous posts within this thread on that very topic, both from "lay people" and from those with legal expertise. I think it has yet to be decided if a legal precedent has been set by the Watson case.

It sounds like to me that QLD is going to have certify or re-certify (if people were certified elsewhere) everyone that comes to dive in that state if they ever want people to dive there again. Especially now that the precedence has been set that if you inadequately perform your duties as "dive buddy", you could be held legally responsible and spend time in jail. I mean, how many people could potentially try to save a panicking diver because they feel "legally" responsible to do so and then end up perishing themselves?

Could their dive buddies possibly have the same fate as Gabe Watson if they are held to the new standard that has been set by his plea of guilty to the offense of leaving his dive buddy which resulted in her death?

That was my original question on this thread and I'd be interested to know what your opinions are on that or if you have an opinion on it.

Again, there have been many answers to this type of question within this thread, dealing with legal and moral issues regarding the role of a "dive buddy", and perhaps that's why you didn't receive many answers to your original question. Also despite some vocal posturing by various groups in Queensland there has been no consensus about what changes the dive industry needs to make, if any, nor what the legal ramifications will be from the case you cited. The diving fraternity has always been self-regulating and I don't know whether Government interference would be of benefit. But as it is a multi-million dollar tourist industry I'm sure there will be some stance taken to protect that, if nothing else. I just hope it is a consultative process and those of us who love diving get some say.

[bowlofpetunias]

I originally entered this thread with what I thought was a very important question AND concern for divers based on the outcome of this matter but no one seemed interested in it until another poster (a "regular member") on this thread had an opinion on it. So I'll leave you with my original question which neither you or K_girl bothered to answer the first time.

Please do not take this in a negative way but I have discovered that often what we see as very important questions are not considered to be all that important to others... it is the nature of the beast here. It is easy for people to get the wrong idea, feel slighted or question motivation without the benefit of physical communication tags.


I'm curious if the precedence set by Gabe Watson pleading guilty to "leaving his dive buddy" is going to affect the dive buddy of this fellow, too.

CDNN :: Fatal Diving Accident Prompts Calls for Government Regulation (http://www.cdnn.info/news/safety/s090710.html)

It sounds like to me that QLD is going to have certify or re-certify (if people were certified elsewhere) everyone that comes to dive in that state if they ever want people to dive there again. Especially now that the precedence has been set that if you inadequately perform your duties as "dive buddy", you could be held legally responsible and spend time in jail. I mean, how many people could potentially try to save a panicking diver because they feel "legally" responsible to do so and then end up perishing themselves?

There has been significant discussion here about the impact of this case on the judicial system in Australia and whether or not this creates a true legal precedent. I put the most weight behind UnderExposed's posts on this issue as he is a Barrister in Australia familiar with Australian laws. It'sBruce is a lawyer to so I think even tho he is not a specialist in Australian Law his insights are very significant as well. I do not feel qualified to argue points of law so I am waiting on more information to be revealed before I comment further in that area.

I won't be worrying about Queensland imposing recertification requirements on those wishing to dive there until a see something more than a media beat up on the issue. The Cynic in me says Col McKenzie's statements likely a result of political opportunism.

I have not heard any alarm bells ringing in the dive industry here yet. Changes in Queensland may be seen as leading the way for changes elsewhere in the country. I don't see attempts to over regulate the industry being ignored without some significant reaction within the dive community here.

I also can not see Queensland doing anything that could significantly compromise the tourism industry in the State. I think saner heads will prevail. This is a topic in the news right now and good for political headlining value. I would also suggest that if Tina was a 58 year old male and not an attractive young lady on her honeymoon that case would not have go the press coverage it has. They do love a "human interest" heart wrenching story!


Then, after my post another incident that occurred on the Tunnel Wall in Nassau in June of this year was brought up which is also relevant to my original question -

CDNN :: Search On for Missing Bahamas Scuba Diving Course Participant (http://www.cdnn.info/news/safety/s090603a.html) There have been SEVERAL discussions about this incident on the ScubaBoard website as well.

Could their dive buddies possibly have the same fate as Gabe Watson if they are held to the new standard that has been set by his plea of guilty to the offense of leaving his dive buddy which resulted in her death?


That was my original question on this thread and I'd be interested to know what your opinions are on that or if you have an opinion on it.


I am not convinced that even if a precedent where set in Australian Law (which does not necessarily seem to be the case at this time) the precident would not be binding on a court in another country.

I Think there are some significant differences in these two stories. I personally think we can learn more from the Woods case to improve our own diving than we can in the Watson case. I certainly have.

[bowlofpetunias]

Interesting Liv you basicly said what I said but quicker :worship:

[livinoz]

Interesting Liv you basicly said what I said but quicker :worship:


Great minds think alike! ;)

[bowlofpetunias]

:hijack: I believe we met on this topic didn't we? I have certainly gained more insight into the legal system here and some friends as well.

[livinoz]

:hijack: I believe we met on this topic didn't we? I have certainly gained more insight into the legal system here and some friends as well.

I think you're right!

I don't mind a debate, but (nb, this is my own opinion) I think we've beaten this topic to a pulp and now have to wait for the Appeal decision to see if that brings anything new.

[bowlofpetunias]

Yes I agree with you (again) on that. I have kept reading in case something turns up and especially to see if the legal minds have any new insights

[Under-Exposed]

OK... Inhale everyone...now breeeeeathe......

Now, for what it is worth, I suspect we are unlikely to get any new insights into what ACTUALLY happened from the Court of Appeal judgment. We ARE likely to get some more publicly-disclosed detail about the basis upon which he was sentenced/is to be re-sentenced (if the appeal is successful). I have seen (on a confidential basis) the Statement of Facts ( a misnomer, as pat of it was really submission) that was presented to the sentencing judge. I suspect it will re-enliven the debate when its details are disclosed, but I don't think it will assist in determining what went wrong.

For me, however, the more interesting aspect of the appeal will be (hopefully) a discussion of the criminality of the conduct, and a clearer statement as to what the delinquency was for which he should be sentenced. While it will not bind any court into the future (either civil or criminal) it may provide a firmer basis for discussing the obligations of a dive buddy.

I think there have been very few winners in this case, other than the ISPs raking in cash from the bandwidth being devoted to the topic!

[livinoz]

OK... Inhale everyone...now breeeeeathe......

Now, for what it is worth, I suspect we are unlikely to get any new insights into what ACTUALLY happened from the Court of Appeal judgment. We ARE likely to get some more publicly-disclosed detail about the basis upon which he was sentenced/is to be re-sentenced (if the appeal is successful). I have seen (on a confidential basis) the Statement of Facts ( a misnomer, as pat of it was really submission) that was presented to the sentencing judge. I suspect it will re-enliven the debate when its details are disclosed, but I don't think it will assist in determining what went wrong.

For me, however, the more interesting aspect of the appeal will be (hopefully) a discussion of the criminality of the conduct, and a clearer statement as to what the delinquency was for which he should be sentenced. While it will not bind any court into the future (either civil or criminal) it may provide a firmer basis for discussing the obligations of a dive buddy.

I think there have been very few winners in this case, other than the ISPs raking in cash from the bandwidth being devoted to the topic!

I'm breathing, I'm breathing! :)

I look forward to further discussion too, when we have that information. All we are doing at the moment, in my opinion, is going around in circles and rehashing what we've said before, and other than the legal argument re precedence there has been nothing new bought up for some time.

[alohagal]

Well, I'm going to respond to this and then I think I'm done for a while. You guys are getting decidedly more worked up over this whole thing than I am. Am I sad that a young lady died...absolutely! Do I believe that the outcome of this is going to affect my life one way or the other…not so much! I feel like I’m being attacked because I choose to view this case in a little different light than the rest of you. Being called “inflammatory” and told that I have a “shotgun approach” to discussing this is kind of insulting, as I’m certain it was meant to be. I was simply looking for a little “light sparring” over the matter…a friendly discussion with varying opinions, but it appears that K_girl and bsee65 allow for only one opinion on the matter and that is theirs.

I would like to clear one thing up though. The following comment from the scuba forum that I included earlier - “Gabe had more experience, and he did the 'right thing' (textbook answer) on how he responded, and what he did that day. Overconfidence is what kills scuba divers. Becoming separated from a "dive buddy" is a violation of safety procedures for recreational diving. I'm afraid Tina died "as a result of a diving accident for which she was solely responsible. I know that may not sit well with the family, but such is life. No one put a gun to her head to do it.” - WAS NOT my comment. I found in on another forum and only included it as proof that there are others that don’t feel that Gabe Watson made the wrong decision that day. I DO NOT agree that Tina was responsible for her own death and in hindsight should have included only the bolded sentences of that comment as they were the only portion relevant to my argument. I was not trying to “insight” anyone and I apologize if I did so. Sorry to have stirred up the hive; I hope you guys enjoy agreeing with each other until you finally get sick of talking about it.

I think I may have led you astray. None of us agree with each other on all matters of this case, not even close. Everyone on this thread comes from different points of view. EACH and EVERYONE of us. That is what makes it a darn good viable, intelligent, thoughtful thread.

This is not by any means an anti-Gabe Watson/pro Tina thread or visa versa. And you do many a diservice by stating such. Yes, some think he is likely guilty, others probably not. Yet, still others are concerned with the matter of law only and how it is meeted out in an equitable and just manner. You may want to go back and read the thread from the beginning to get a real feel for where people stand.

Mary

[alohagal]

OK... Inhale everyone...now breeeeeathe......

Now, for what it is worth, I suspect we are unlikely to get any new insights into what ACTUALLY happened from the Court of Appeal judgment. We ARE likely to get some more publicly-disclosed detail about the basis upon which he was sentenced/is to be re-sentenced (if the appeal is successful). I have seen (on a confidential basis) the Statement of Facts ( a misnomer, as pat of it was really submission) that was presented to the sentencing judge. I suspect it will re-enliven the debate when its details are disclosed, but I don't think it will assist in determining what went wrong.

For me, however, the more interesting aspect of the appeal will be (hopefully) a discussion of the criminality of the conduct, and a clearer statement as to what the delinquency was for which he should be sentenced. While it will not bind any court into the future (either civil or criminal) it may provide a firmer basis for discussing the obligations of a dive buddy.

I think there have been very few winners in this case, other than the ISPs raking in cash from the bandwidth being devoted to the topic!

Well...isn't that interesting? I hope so! And I too, want to know about the criminality of the conduct and the clearer statement of such. Thank you for your post.

Mary

[ItsBruce]

You appear to be stating that the outcome was not the outcome which was Watson pleaded guilty to manslaughter and did take responsibility for her death.

I am responding to this statement without having read all of the new posts. If I missed something or am being redundant, sorry. ...

He made a deal. I do not think that equates with taking responsibility. I think pretty much everyone concurs that failing to effectuate a rescue is not manslaughter.

[ItsBruce]

Here is a further insight on the guilty plea:

Had the case gone to trial, it would most likely have been a jury trial. After hearing the evidence, the jurors would have started deliberations. What would those have been like?

Think about the debate that has been going on on SB. I'm not going to try to recite it or analyze it, but just think about it.

Now, take into consideration that those who have been engaged in the discussion on SB are really interested and really care. IMHO, everyone is above the curve on intelligence, wisdom and common sense.

I do not know about the system in Australia, but in the US, jurors for the jury pool are selected at random from the general population. By and large, people whose names come up for jury service don't want to be there. The first thing most people do is try to find a way out of it. The really bright ones often find a way out. Then while selecting the jury panel itself, the lawyers tend to filter out the really bright ones. I've seen it happen many times.

So, considering the potential jurors and the nature of the debate, if you REALLY weren't guilty would you want the jurors debating like we have been and deciding whether you spend the rest of your life in prison if you could plead to manslaughter?

[boulderjohn]

Here is a further insight on the guilty plea:

Had the case gone to trial, it would most likely have been a jury trial. After hearing the evidence, the jurors would have started deliberations. What would those have been like?

Think about the debate that has been going on on SB. I'm not going to try to recite it or analyze it, but just think about it.

Now, take into consideration that those who have been engaged in the discussion on SB are really interested and really care. IMHO, everyone is above the curve on intelligence, wisdom and common sense.

I do not know about the system in Australia, but in the US, jurors for the jury pool are selected at random from the general population. By and large, people whose names come up for jury service don't want to be there. The first thing most people do is try to find a way out of it. The really bright ones often find a way out. Then while selecting the jury panel itself, the lawyers tend to filter out the really bright ones. I've seen it happen many times.

So, considering the potential jurors and the nature of the debate, if you REALLY weren't guilty would you want the jurors debating like we have been and deciding whether you spend the rest of your life in prison if you could plead to manslaughter?

Am I wrong in assuming that people who are knowledgeable about scuba would also be excluded?

[K_girl]

I originally entered this thread with what I thought was a very important question AND concern for divers based on the outcome of this matter but no one seemed interested in it until another poster (a "regular member") on this thread had an opinion on it. So I'll leave you with my original question which neither you or K_girl bothered to answer the first time.

If you go back in this thread you will see that I have covered this subject extensively and was the first one to bring it up. I see no need to repeat myself.

Here is something new on this subject that I have to add. I have written to the Queensland District Attorney asking that the responsibilities of a diver to a buddy to rescue needs to be better defined in order to prevent divers from putting themselves at risk in order to rescue a dive buddy. I pointed out to him the elements that need to be better defined: means, opportunity, mental capacity and personal safety.

Go back in the thread - you will see that I defined each of these elements even further.

[K_girl]

Here is the letter I sent to Cameron Dick, Queensland District Attorney who is appealing the sentence. I sent it on July 22nd and I have not received a reply. I found his e-mail address on the Internet, it is: cameron.dick@queenslandlabor.org

Dear Mr. Dick:

I am a certified rescue diver and there has been much discussion amongst my fellow divers about the Gabe Watson case and the guilty manslaughter plea. First, let me say, I respect and understand your efforts on behalf of Tina Watson's family. However, many divers have expressed a concern over the manslaughter plea in this case setting a precedence to establish an obligation for a dive buddy to rescue. Rescue divers and beginning divers are taught to keep their distance from a panicking diver for their own safety. We are constantly reminded not to allow ourselves to become a second victim.

We feel that an attempt to lengthen the sentence on the basis of "deterrence" needs to be better defined for divers, so that we understand our obligation to rescue fully. I have attempted to come up with a definition that fits this case which is: Watson had the means, the opportunity and mental capacity to rescue Tina without harm to himself and simply chose not to do so.

Means = enough air, equipment working properly. Opportunity = victim is visible and accessible. Mental capacity = capable of correctly evaluating the situation to make a correct decision, even in an emergency. Without harm to self = victim is not panicking and combative, victim has not entered into an area that presents a danger to the buddy.

It would be much appreciated if you could clarify for the diving community, what level of expectation that Australian law enforcement will have for divers to rescue by establishing a "deterrence" with this case.

Thank you,

K.S.
PADI Rescue Diver

[scubadude79]

Wrong case, never mind.

[K_girl]

So, considering the potential jurors and the nature of the debate, if you REALLY weren't guilty would you want the jurors debating like we have been and deciding whether you spend the rest of your life in prison if you could plead to manslaughter?

I conceded to you at one point that you could wind-up with jurors who would be unable to convict without either physical evidence or a witness who saw Watson turn Tina's air off - and that was a point you stressed over and over again. Now you seem to be saying that there was no chance to have those kind of jurors and that he more likely would have been found guilty and can't blame him for pleading manslaughter? In a previous post, you seemed to advocate for a manslaughter plea based on other criteria? (But I'm not sure what.) But here is is the link to your previous post: http://www.scubaboard.com/forums/accidents-incidents/288089-gabe-watson-pleads-guilty-diving-wife-death-33.html#post4570523

You also said that because Watson pleaded to manslaughter, that doesn't mean that he took responsibility for Tina's death. Is this just a matter of symantecs for you? In other words, he is serving time for manslaughter, the law sees him as responsible for Tina's death, but that doesn't mean that he has personally taken responsibility - is that what you mean? And if there is no responsibility at all, either in the eyes of the law or in Watson's - why is he serving time?

By the way - I love your avatar - it is my favorite. Sometimes I have to get in my pool with my scuba gear because I want to have that "feeling," but I am able to use the excuse of "testing" out gear. But in a spa - uh.. I don't think that excuse will work, but I can definitely relate!

[K_girl]

A little more information in this article regarding the Solicitor General's appeal of the sentencing. What's new: they claim that Tina had been offered orientation dives due to her inexperience but it was denied because of Gabe's rescue certification, experience and his taking responsibility for her. Actually, I recall in the updated version of the Dateline NBC story that the SpoilSport had a requirement that beginning divers like Tina do the orientation dive, but they allowed her to opt out because of Watson's rescue certification. The Solicitor General also made the point I've made many times that there was no evidence that Gabe Watson panicked. Watson's attorney argues that Watson did panic and the fact that he went to the surface for help instead of staying to help Tina was evidence of Watson's panic. Watson's attorney argues that Watson should be sentenced on the basis that he did panic when he should have done more.

Judge too soft in Gabe Watson sentencing, says solicitor-general | The Courier-Mail (http://www.news.com.au/couriermail/story/0,,25795543-3102,00.html)

These are some of the arguments I focused on just a few posts ago.

So if Watson's attorney's argument is accepted, we can now be liable if we are unable to overcome our panic in order to rescue someone. How stupid is that?

ItsBruce is right - Watson is not taking responsibility for Tina's death, he is still trying to say it was nothing but an accident.

[ItsBruce]

Boulderjohn:

Yes, people with knowledge about scuba will probably not be permitted to serve on a jury. That is because they may be inclined to rely on their own knowledge and experience rather than the admissible evidence and opinions of “experts.” The point I was making was the way debate goes on among jurors. I have attended focus groups designed to test the way potential jurors would look at elements of a case. The moderator explained to the panel that the study was about group dynamics and decision making and that to perform the study, we wanted to put it in the context of a jury deliberating. He then told the panel the “facts” and then instructed them on the law, much as a judge would instruct a jury. Then he let them deliberate. From time to time, he would enter the room and debrief the panel. The remarkable thing is that the dynamic was much like what I’m seeing on SB.

K_girl:

I maintain that if the prosecution did not have a great deal more evidence than what was in the public domain, it is unlikely the jurors would have convicted Watson. However, unlikely does not mean impossible.

The point I was making in my post is that just looking at the dynamics here, who would want their fate decided by people who debated in the style we are seeing here. And, keep in mind that in jury deliberations, there are no moderators who will lock the thread.

As far as responsibility, it is one thing to say: “I made a mistake, I take responsibility for it.” It is another thing to say: “I’m tired of fighting, do what you want.” I cannot count the number of times that my clients have settled civil lawsuits in which they have been sued because it is more expensive in terms of attorney’s fees and disruption to their businesses to fight than just to pay some money and be done with the thing.

I am reminded of the fellow who spent his fortune and many years fighting criminal charges stemming from some allegedly improper banking transactions. The government eventually dropped the charges, but his health was wrecked and he was left pretty well impoverished. I remember an Assistant US Attorney commenting that had he just pled guilty, he would have gotten out of prison long before the charges were dropped, would have had his health and most of his fortune.

I could well see Watson, with the aid of his attorneys, making the cost benefit analysis and pleading guilty.

Keep in mind that in the first OJ criminal case, OJ spent more than a year in jail before being acquitted. And, there is no telling how much money he spent on legal fees. If he had been given the option of pleading guilty to manslaughter and serving a year in jail, wouldn’t he have been better off? (Anyone who feels compelled to start discussing OJ’s guilt or innocence, don’t bother. It is irrelevant.)

BTW: Wait until you see my new cave diving avatar … I got a new cover for the spa!

[ItsBruce]

I have another thought about precedent and whether the Watson case sets some sort of precedent, as distinct from a "mindset."

One common theme in almost all legal systems that are based on the English Common Law is that, with few exceptions, the courts will only rule on what are termed "justiciable controversies." That is, the opposing sides must really be adversaries. The courts will generally not entertain "collusive" lawsuits that are brought just to establish a precedent or lawsuits to establish abstract principles.

Since Watson has pleaded guilty to manslaughter and is only involved id a dispute over the level of punishment, he and the prosecution are not really adversarial relative to a dive buddy's duties. Thus, the court is not going to get the kind of vigorous advocacy I think it would require for it to be willing to announce a standard for dive buddies.

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.

I've mentioned in prior posts how subsequent courts may distinguish prior rulings so that they are not compelled to follow them. Often, when making a particular ruling, a court will set its ruling up so that it can be distinguished. Again, it gives the courts flexibility.

Note: I am not saying that courts never make sweeping rulings or draw "bright lines." They do. But, in my experience and based on my studies of the cases decided by various court, they prefer not to do so.

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.

Were I one of the involved judges, I would want to wait for a case in which a dive buddy was being prosecuted for manslaughter based on the failure to rescue a buddy before announcing any sort of a general rule of law. I would want to see the best arguments and counter-arguments with analysis of all of the available precedent before I formulated any sort of rule.

(For anyone who feels I am unclear or contradict myself -- tough -- I spent a lot of time trying to be articulate here and I'm not inclined to spend more time than I have.)

BTW-1: My username is "ItsBruce," but my given name is "Bruce" and you are all free to refer to me that way.

BTW-2: Australian appellate judges who seek my input on legal theory, PM me and be sure to provide adequate authentication of your identities.

[bowlofpetunias]

A little more information in this article regarding the Solicitor General's appeal of the sentencing. What's new: they claim that Tina had been offered orientation dives due to her inexperience but it was denied because of Gabe's rescue certification, experience and his taking responsibility for her. Actually, I recall in the updated version of the Dateline NBC story that the SpoilSport had a requirement that beginning divers like Tina do the orientation dive, but they allowed her to opt out because of Watson's rescue certification. The Solicitor General also made the point I've made many times that there was no evidence that Gabe Watson panicked. Watson's attorney argues that Watson did panic and the fact that he went to the surface for help instead of staying to help Tina was evidence of Watson's panic. Watson's attorney argues that Watson should be sentenced on the basis that he did panic when he should have done more.

Judge too soft in Gabe Watson sentencing, says solicitor-general | The Courier-Mail (http://www.news.com.au/couriermail/story/0,,25795543-3102,00.html)

These are some of the arguments I focused on just a few posts ago.

So if Watson's attorney's argument is accepted, we can now be liable if we are unable to overcome our panic in order to rescue someone. How stupid is that?

ItsBruce is right - Watson is not taking responsibility for Tina's death, he is still trying to say it was nothing but an accident.



I have another thought about precedent and whether the Watson case sets some sort of precedent, as distinct from a "mindset."

One common theme in almost all legal systems that are based on the English Common Law is that, with few exceptions, the courts will only rule on what are termed "justiciable controversies." That is, the opposing sides must really be adversaries. The courts will generally not entertain "collusive" lawsuits that are brought just to establish a precedent or lawsuits to establish abstract principles.

Since Watson has pleaded guilty to manslaughter and is only involved id a dispute over the level of punishment, he and the prosecution are not really adversarial relative to a dive buddy's duties. Thus, the court is not going to get the kind of vigorous advocacy I think it would require for it to be willing to announce a standard for dive buddies.

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.

Were I one of the involved judges, I would want to wait for a case in which a dive buddy was being prosecuted for manslaughter based on the failure to rescue a buddy before announcing any sort of a general rule of law. I would want to see the best arguments and counter-arguments with analysis of all of the available precedent before I formulated any sort of rule.

(For anyone who feels I am unclear or contradict myself -- tough -- I spent a lot of time trying to be articulate here and I'm not inclined to spend more time than I have.)

BTW-1: My username is "ItsBruce," but my given name is "Bruce" and you are all free to refer to me that way.

BTW-2: Australian appellate judges who seek my input on legal theory, PM me and be sure to provide adequate authentication of your identities.

Interesting points as usual Bruce. If they can prove what I have bolded in K-girls's post that Gabe played a role in Tina's declining the "orientation" dive based on his ability to take care of her.. that would reasonably establish a greater responsibility than the average buddy relationship.

:rofl3:What would like me to send you consider adequate to prove I am and Australian appellate judge? :popcorn:

[livinoz]

As far as responsibility, it is one thing to say: “I made a mistake, I take responsibility for it.” It is another thing to say: “I’m tired of fighting, do what you want.” I cannot count the number of times that my clients have settled civil lawsuits in which they have been sued because it is more expensive in terms of attorney’s fees and disruption to their businesses to fight than just to pay some money and be done with the thing.



But surely Bruce a civil suit, where someone is sued, and going to gaol with a manslaughter conviction against your name are a bit different? Or have I read your post wrongly.

[Under-Exposed]

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. So, while I accept that it does not need to engage in a debate about the obligation of one buddy to another in the particular circumstances for the purpose of determining whether criminal liability should attach, it DOES need to consider what those obligations are, in order to determine the extent to which they were departed from by Watson, and thereby determine the criminality of his behaviour.

Agreed, this will not create a binding precedent...but it will provide some guidance as to the kind of analysis a Court might undertake in a future case, particularly given that this is a relatively novel case.

Livvy, I think the point Bruce is making is that court proceedings (whether they be civil or criminal) are taxing on the participants in terms of time, money and emotional energy. And many civil cases that I deal with are professional negligence cases where reputation is significantly important for the professional as is liberty for the non-professional. Sure, they are different, but they are both emotionally taxing things to have to defend, and if that can be avoided or minimised and people get on with their lives then settlement (whether by compromise of civil proceedings or pleading guilty to a significantly lesser criminal charge) is a powerful incentive to accept a finding in relation to something you don't accept to be the truth.

[livinoz]

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. So, while I accept that it does not need to engage in a debate about the obligation of one buddy to another in the particular circumstances for the purpose of determining whether criminal liability should attach, it DOES need to consider what those obligations are, in order to determine the extent to which they were departed from by Watson, and thereby determine the criminality of his behaviour.

Agreed, this will not create a binding precedent...but it will provide some guidance as to the kind of analysis a Court might undertake in a future case, particularly given that this is a relatively novel case.

Livvy, I think the point Bruce is making is that court proceedings (whether they be civil or criminal) are taxing on the participants in terms of time, money and emotional energy. And many civil cases that I deal with are professional negligence cases where reputation is significantly important for the professional as is liberty for the non-professional. Sure, they are different, but they are both emotionally taxing things to have to defend, and if that can be avoided or minimised and people get on with their lives then settlement (whether by compromise of civil proceedings or pleading guilty to a significantly lesser criminal charge) is a powerful incentive to accept a finding in relation to something you don't accept to be the truth.

Okay, thanks UE; I guess looking at it from a lay person's POV (or maybe just mine!) I see gaol time as significantly more damaging, but I agree that ruining a professional ( or personal) reputation can be just as bad.

It's rather an indictment don't you think, that we have to "accept" guilt, where maybe there is none, in order to basically save a reputation or indeed plead to a lesser charge and serve time in gaol because we perhaps may have otherwise gotten a longer sentence?

[alohagal]

Okay, thanks UE; I guess looking at it from a lay person's POV (or maybe just mine!) I see gaol time as significantly more damaging, but I agree that ruining a professional ( or personal) reputation can be just as bad.

It's rather an indictment don't you think, that we have to "accept" guilt, where maybe there is none, in order to basically save a reputation or indeed plead to a lesser charge and serve time in gaol because we perhaps may have otherwise gotten a longer sentence?


I think it happens more often than we would like to know. I am not sure what the fix would be. In an ideal world only guilty people would be convicted. And the punishment would always fit the crime.

It is heart breaking when you hear those stories of people spending decades in prison only to be exonerated, usually by DNA. How do you get your life back? Impossible.

More than ever, I am so curious, like Underexposed, as to the criminality of the act that Gabe was sentenced for.

[alohagal]

BTW: what is gaol? Did I miss an acronym somewhere? I have been working 13 hours shifts and feeling punch drunk right now.

Thanks in advance,
Mary

[Steve50]

BTW: what is gaol? Did I miss an acronym somewhere? I have been working 13 hours shifts and feeling punch drunk right now.

Thanks in advance,
Mary

Is it derived from the English jail ? :D

[alohagal]

Questions for Under Exposed:

What argument of criminality do you feel would suffice for Watsons orginal sentence of 4 and 1/2 years? Have you heard any argument in the latest, yet brief, article recently posted by K-Girl that still warrants 4 and 1/2 years or even more? Still seems flimsy to me.

And for the record, in case no one could notice...I do lean towards Gabe as being not an innocent man...but, that is neither here nor there at this point.
I certainly could be convinced otherwise and as a juror, I would refuse to sit on a case if I could not do so without prejudice. But, at this point I could not tell you how much of the media version of events...versus statements and eyewitness reports have played into my bias. I really wanted that trial to happen, dangit.

[boulderjohn]

Is it derived from the English jail ? :D

gaol = jail, and the two words are pronounced about the same.

[livinoz]

Is it derived from the English jail ? :D

Gaol (plural gaols) noun:

1. (British) Alternative spelling of jail.

2. (Australian, New Zealand) preferred alternative spelling of jail.

Sorry to have confused people! ;)

[alohagal]

Gaol (plural gaols) noun:

1. (British) Alternative spelling of jail.

2. (Australian, New Zealand) preferred alternative spelling of jail.

Sorry to have confused people! ;)

Oh, no, that is cool. I am learning Aussie now! So, Gabe Watson is in gaol over there in Australia. And it is pronounced the same? Of course with an awesome Aussie accent I am sure it sounds different...and better.

Thanks.

[livinoz]

Oh, no, that is cool. I am learning Aussie now! So, Gabe Watson is in gaol over there in Australia. And it is pronounced the same? Of course with an awesome Aussie accent I am sure it sounds different...and better.

Thanks.

Ga-ol, (hard g, as in jump, o as in ole! ) as opposed to ja-il? (Jay- ill, as in will) ;)

I'm not sure people quite appreciate the intricacies of the Aussie accent!

But I best not hijack the thread! ;)

Still nothing on the Queensland Courts site re the Appeal. I asked UE how long it could take and he said, "How long is a piece of string"? So I'm guessing, whenever!

[alohagal]

Yes...gaol is much better. Okay...Appeal long as piece of string. Patience I guess.

In the meantime I am sitting here trying to pronounce gaol as you provided and not sure I am doing it right. It is hard to do...at least for me. Where is an Aussie around here, in the flesh, when I need one.

[livinoz]

Yes...gaol is much better. Okay...Appeal long as piece of string. Patience I guess.

In the meantime I am sitting here trying to pronounce gaol as you provided and not sure I am doing it right. It is hard to do...at least for me. Where is an Aussie around here, in the flesh, when I need one.

The link is here if people want to check it any time for themselves:

Welcome to Queensland Courts : (http://www.courts.qld.gov.au/)

You can go to Daily Law lists upper left then Brisbane Supreme and District Courts, to see if the case is listed under the Court of Appeal, or Judgments > Supreme Court, Court of Appeal.

Aussies have flattened vowels, not many people can "do" an Aussie accent. It usually sounds either Cockney or South African! :rofl3:

[alohagal]

Okay...thank you for that link to Brisbane Supreme Court concerning the Gabe Watson Case (keeping thread on task)

I just have to say...I know one non-Aussie who can do a great Aussie accent (at least I think she can?) Meryl Streep in "A Cry in the Dark" (you know..."Maybe the Dingo ate your baby"...)
One of my all time favorite movies...and look how the "mob" and the media had her convicted, based on her non-emotional demeanor. Love that movie.

[livinoz]

Okay...thank you for that link to Brisbane Supreme Court concerning the Gabe Watson Case (keeping thread on task)

I just have to say...I know one non-Aussie who can do a great Aussie accent (at least I think she can?) Meryl Streep in "A Cry in the Dark" (you know..."Maybe the Dingo ate your baby"...)
One of my all time favorite movies...and look how the "mob" and the media had her convicted, based on her non-emotional demeanor. Love that movie.

NW's

Erm, most here thought it pretty laughable I'm afraid :shakehead:

Yes, and there's another case where later and better DNA testing freed an innocent person.

[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]

:rofl3:What would like me to send you consider adequate to prove I am and Australian appellate judge? :popcorn:

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

[ItsBruce]

And, now I will really throw a wrench into the proverbial works: There is also the issue of "proximate cause." There are whole treatises on what exactly what that entails. In very simplistic terms, it means "but for A, would you have had B?" or alternatively, "would it have happened anyway?"

I am reminded of the guy who was threatening his wife with a gun. He shot at her, but missed. The bullet went out the window of his apartment, where it hit and killed a man who had just jumped off the roof and was plummeting toward the ground and certain death. Was there a crime vis-a-vis the man who died from the bullet? If so, what?

So, back to Watson: Can anyone say that had he stuck with Tina and done everything by the numbers, she would not have died from whatever it was that she died of?

Wow, I just realized why I never get invited to parties!

[bowlofpetunias]

And, now I will really throw a wrench into the proverbial works: There is also the issue of "proximate cause." There are whole treatises on what exactly what that entails. In very simplistic terms, it means "but for A, would you have had B?" or alternatively, "would it have happened anyway?"

I am reminded of the guy who was threatening his wife with a gun. He shot at her, but missed. The bullet went out the window of his apartment, where it hit and killed a man who had just jumped off the roof and was plummeting toward the ground and certain death. Was there a crime vis-a-vis the man who died from the bullet? If so, what?

So, back to Watson: Can anyone say that had he stuck with Tina and done everything by the numbers, she would not have died from whatever it was that she died of?

Wow, I just realized why I never get invited to parties!

Wasn't that one in the Darwin awards.. turned out to be suicide... the guy who jumped off the roof was the son of the guy with the gun who was in the habit of threatening his wife with an unloaded gun. The sun put a bullet in the gun in an effort to have the old man shoot the old lady so he could claim their money. When it didn't work... he jumped off the roof and got shot by the bullet he loaded.......

You don't get invited to parties?

[Under-Exposed]

Bruce you are now just teasing...you KNOW that there is no clear legal or philosophical answer to your question :-)

As for negligence, that is something that i know a fair bit about. It is a little complicated because the various states and territories have different good samaritan legislation, so I am going to assume there is no such legislation for the time being.

Assuming non-professional rescuers (who have their own peculiar difficulties), there is ordinarily no duty to rescue. That is the main problem with this case. Let me say again, there is ordinarily no duty to rescue. So no matter what your qualification, if you saw someone drowning in a swimming pool or the ocean, you have absolutely NO obligation (legal anyway) to do anything to assist.

Now, the question is whether there is something inherent in the nature of the buddy system that changes that. That is not a question that could be confidently answered in the absence of some case that decides it one way or the other (and I am not aware of any). But in my view there is nothing in the nature of the buddy system that imposes such an obligation. Now, it might be that in certain circumstances there is some super-added factor whereby responsibility is assumed by the buddy...perhaps in the circumstances postulated where an orientation dive was refused on the basis that Gabe had assumed responsibility for Tina's welfare. But ordinarily, I would think no duty of care.

I do not think it is clear in Australia whether or not there is an obligation to continue to rescue once you have commenced. It seems an odd position to me...if you don't have to start why can't you stop? One reason might be because having started others may not have come to assist. But if there were just a victim and rescuer, then that could not be a factor.

Anyway, it seems to be generally accepted in the text books (based, from memory, only on some North American cases) that there is a duty to continue.

Noe, of course the standard of care is one of reasonableness. I don't think danger to the rescuer removes the duty of care. It simply changes what is required in order to act reasonably. In other words, if there is danger then you can reasonably cease the rescue (or change the course of the rescue).

Now, one needs ot be careful in characterising Gabe's decision as an abandonment of the rescue. On his version of events, he was in fact continuing his rescue efforts by trying to get help. Now, I don't want to debate whether that was good practice etc but simply point out that there are many different ways to render assistance.

Finally, and again at the risk of being flamed, I don't think that the fact you are certified as a Rescue Diver necessarily means that you have the skills necessary and the wherewithall to use them in every situation. While one hopes that having been through the training you won't panic when someone gets into trouble, I think it is unrealistic to expect otherwise in all cases.

[alohagal]

Orginally posted by that Its'Bruce dude:
So, back to Watson: Can anyone say that had he stuck with Tina and done everything by the numbers, she would not have died from whatever it was that she died of?

Whatever it is she died of? Sheesh! Okay...hypothetical here. Is it possible that Gabe could have bear hugged her to death without turning off and on her oxygen as put forth by the investigators? In other words, how do we explain her full tank of air and regulator in her mouth? Panicked divers don't hang on to their regulators and just submit to death.

I only bring this up...because you presented the opening! Party tomorrow at 8pm...You are invitited. Dog the Bounty Hunter and Bobby Brown will be there. They are aquaintances of mine whether I like it or not.

[K_girl]

A little something new I did not catch before. MSNBC reported in their June 5th update of their Dateline story:

"Tina's autopsy suggested that she might have suffered oxygen deprivation prior to drowning.."

Source: Mystery in the deep blue sea - Crime reports- msnbc.com (http://www.msnbc.msn.com/id/24713499/page/6/)

Wasn't in the Coroner's report, so I'm wondering how MSNBC got a hold of this information. I would like to know exactly what in an autopsy report could potentially have this finding. Small amount of water in the lungs? We need a an expert on drowning.

[K_girl]

Found a web site that teaches investigators about drowning:

"Experts consider some individuals who drown as victims of dry drowning. In these cases, the fatal cerebral cerebral hypoxia or oxygen deprivation, does not result from water occluding the airway but, rather, from a spasm of the larynx. Water never enters the lungs. These instances constitute 10 to 15 percent of all drownings.

When people sink beneath the surface of the water, they initially react by holding their breath. This continues until they have to breathe, thereby involuntarily inhaling a large volume of water, which either enters the lungs (in most instances) or reaches the larynx -- producing a larygeal spasm that results in dry drowning. In both cases, this gasping for air may continue for several minutes until respiration ceases. Cerebral hypoxia will progress until it becomes irreversible and death occurs..

Investigators can look for some distinctive signs to determine cases of drowning. Officers must recognize these indicators and then articulate them to the medical examiner. Presently, no known and proven pathological test exists to determine drowning as the cause of death, so, by itself, an autopsy usually proves insufficient. Authorities can make this diagnosis only with a knowledge of the circumstances and exclusion of other causes..

Over the years, experts have developed and tried a number of tests to determine conclusively whether a person drowned. All have proven unreliable on their own. No morphologic findings diagnostic of drowning exist. Although an autopsy usually is not sufficient by itself, it can exclude other possible causes of death.."

Source: Drowning investigations. - Free Online Library (http://www.thefreelibrary.com/Drowning+investigations-a0143342211)

----------------

The Coroner's Report stated that Tina suffered a laryngeal spasm, which as it states above causes a "dry drowning." So if Tina still had the reg in her mouth as was reported by multiple people, including Watson, at the moment he left her - she may have attempted to tightly breathe through the reg until she suffocated rather than breathing in water. Still, at least a small amount of water may have entered her lungs. My personal opinion - if she drowned because she had panicked, the reg probably would have been out of her mouth because she would have taken in a large volume of water as described above in the 85-90% percentile of drowning cases. Seeing how only 10 to 15% of drownings are "dry drownings" such as Tina's - I would say that the reg held tightly in her mouth as she "drowned" increases the likelihood as the reason for the finding of laryngeal spasm, otherwise known as "dry drowning."

So to answer Bruce's question of even if Gabe Watson hadn't left her, would she still have died from whatever it was that she died from? I think she would have survived if she had gone diving with anyone else but him because I think there would have been air provided to the reg she so desparately hung onto in her mouth and she would have kicked to the surface, as was her initial panic reaction during her cert dives.

[livinoz]

Found a web site that teaches investigators about drowning:

"Experts consider some individuals who drown as victims of dry drowning. In these cases, the fatal cerebral cerebral hypoxia or oxygen deprivation, does not result from water occluding the airway but, rather, from a spasm of the larynx. Water never enters the lungs. These instances constitute 10 to 15 percent of all drownings.

When people sink beneath the surface of the water, they initially react by holding their breath. This continues until they have to breathe, thereby involuntarily inhaling a large volume of water, which either enters the lungs (in most instances) or reaches the larynx -- producing a larygeal spasm that results in dry drowning. In both cases, this gasping for air may continue for several minutes until respiration ceases. Cerebral hypoxia will progress until it becomes irreversible and death occurs..

Investigators can look for some distinctive signs to determine cases of drowning. Officers must recognize these indicators and then articulate them to the medical examiner. Presently, no known and proven pathological test exists to determine drowning as the cause of death, so, by itself, an autopsy usually proves insufficient. Authorities can make this diagnosis only with a knowledge of the circumstances and exclusion of other causes..

Over the years, experts have developed and tried a number of tests to determine conclusively whether a person drowned. All have proven unreliable on their own. No morphologic findings diagnostic of drowning exist. Although an autopsy usually is not sufficient by itself, it can exclude other possible causes of death.."

Source: Drowning investigations. - Free Online Library (http://www.thefreelibrary.com/Drowning+investigations-a0143342211)

----------------

The Coroner's Report stated that Tina suffered a laryngeal spasm, which as it states above causes a "dry drowning." So if Tina still had the reg in her mouth as was reported by multiple people, including Watson, at the moment he left her - she may have attempted to tightly breathe through the reg until she suffocated rather than breathing in water. Still, at least a small amount of water may have entered her lungs. My personal opinion - if she drowned because she had panicked, the reg probably would have been out of her mouth because she would have taken in a large volume of water as described above in the 85-90% percentile of drowning cases. Seeing how only 10 to 15% of drownings are "dry drownings" such as Tina's - I would say that the reg held tightly in her mouth as she "drowned" increases the likelihood as the reason for the finding of laryngeal spasm, otherwise known as "dry drowning."

So to answer Bruce's question of even if Gabe Watson hadn't left her, would she still have died from whatever it was that she died from? I think she would have survived if she had gone diving with anyone else but him because I think there would have been air provided to the reg she so desparately hung onto in her mouth and she would have kicked to the surface, as was her initial panic reaction during her cert dives.

Let's say again that the Coroner's report the public has available to it is not the full report. As stated by the Queensland Courts, "Access to coronial documents is regulated by the Coroners Act 2003. During investigations these documents are excluded from the freedom of information process and can only be obtained with the coroner's consent. Most of the material contained on a coronial file is highly sensitive and may be graphic and distressing in nature. Therefore, information is only made available to those who have sufficient interest in the investigation, such as the immediate family of the deceased."

So I too would just love to know how MSNBC got hold of this so-called "information", or are they just in the pursuit of a good story like every other media outlet? What we have again is trial by media or by various persons with an axe to grind or a particular point to make. Watson is in gaol and serving a sentence for manslaughter, and the length of the sentence is being appealed. So the point is? That he is guilty of murder no matter what the courts, who have had access to all the information, have said?

I also have a problem with your statement that you "think she would have survived if she had gone diving with anyone else but him". You can prove that? The Yongala is rated from an intermediate to an advanced dive, as stated in Scuba Diving, as the wreck lies from approximately 14-33m and has moderate to strong currents. Indeed people have died diving there or suffered from DCI. A Canadian woman was air-lifted to Townsville in 2008. This is what happened to her, described by a person on the dive that day on this very board:

When we returned to the boat two of the crew and a customer were performing CPR on Erin. They told us she had completed the deep dive training at 30m, returned to the group at 20m, and then "freaked out". They said she removed the reg from her mouth and acted strangely. The instructor tried to replaced the reg but she removed it again and fought the instructor, eventually swallowing water and drowning..

And also in this forum a Townsville diver who has experience of the Yongala dive has said:

I could imagine an inexperienced diver would find the Yongala a daunting dive even in good conditions. High swells make getting back on board extremely dangerous and generally cause the trip to be cancelled. Strong currents can rip your mask off and poor visibility can make for a scary decent and poor dive experience.

So despite that inexperienced diver being buddied with an instructor, she still drowned. Would Watson, a less experienced diver have therefore been able to "save" Tina anyway? Just throwing that question into the pot.

Therefore I believe it was most likely beyond Tina's capabilities because she had little diving experience, as for that matter did Watson despite his "rescue" certification. I think it was probably beyond both their capabilities and panic ensued, which Tina had previously suffered from, and this caused a lethal series of mistakes. I also wonder at the crew of the dive boat allowing an inexperienced diver to dive a site noted for its difficulty with anyone other than an instructor, and that again is despite Watson's "certification"; they certainly insisted on an instructor with the inexperienced Canadian diver mentioned above. But that's a whole other issue I think.

You also cite that, " Presently, no known and proven pathological test exists to determine drowning as the cause of death, so, by itself, an autopsy usually proves insufficient. Authorities can make this diagnosis only with a knowledge of the circumstances and exclusion of other causes". From that article those other causes may include whether the person had drowned, whether the victim was conscious when submerged, whether they could swim well, if they had consumed any alcohol or drugs, what they were doing at the time, and if anyone witnessed the incident. I'm sure all these points were considered carefully by the Pathologist, the Coroner, the other legal professionals and the law enforcement people involved in this case. The outcome was manslaughter, not murder, and despite all our opinions and suppositions on here, that is still the outcome of this case at this time. If more "evidence" comes to light no doubt it will be made public when the Appeal is published.

[Ayisha]

K-girl, I had posted a couple of times waaaay back in the previous Watson thread that one of your American news shows (MSNBC? Dateline? 20/20?) had an unrelated coroner speaking about the findings of the Watson case and he said that there was NO water in her lungs. I had been surprised since that was the first time I heard that. He said that is why they believed her tank was turned off until she was dead/nearly dead, and then turned back on. He also said that the "bear hug" was important because the pressure on the chest area could speed up the asphyxiation process.

Each time I wrote the above in regard to someone asking about water in her lungs, you discounted the information because it wasn't "in the coroner's report", whatever became public anyway. I think that the possible oxygen deprivation information you are now noticing is more information relating to what I had seen on one of the news shows a couple of years ago. We obviously do not have all the information that is available to investigators.

[ItsBruce]

K_Girl:

You sure do your homework. I'm really impressed. If anything should happen to me and there is any suspicion of foul play, please do me the honor of being lead investigator. Either you will find the culprit or clear the suspect. But, I am quite sure no one will do a better job than you.

That being said...

We now have some evidence that could support the hypothesis that Tina's air was turned off.

But, at the same time, I am troubled. First, the air was on when she was recovered - could Watson have turned it back on without being observed?. Second, if her air had been turned off, was it off long enough to have killed her or at least made her death a certainty? And, as a corollary, would Watson have known how long to leave it off to be effective?

You may recall Shakybrainsurgeon (sp?) told us that to be fatal, the air has to be off for a long time. I forget how long, but I was surprised by it. If Watson had turned Tina's air off until he thought she was dead, unless he knew how long that had to be, he might have turned it back on in time for her to not to have died. (I know that had it been me, I would have figured a few minutes ... and been wrong.)

One more point: If Watson had planned on killing Tina, wouldn't it have been easier to have waited until they were on the wreck and then released her weight belt and let her shoot to the surface and embolize?

[Under-Exposed]

Bruce, I'm shocked...surely you have been around the law long enough to know that media reporting rarely reflects the reality of what goes in in the legal system, whether the courts or the investigation side of things. Perhaps things are different in the Us, but in Oz, unfortunately, it is appalling. I for one would not even bother speculating based upon a news outlet's report of something that may or may not be in the actual autopsy report. I certainly wouldn't do it without knowing that they in fact had a copy of the autopsy report, and would prefer not to do it without knowing what else was in that report.

[K_girl]

K_Girl:

Second, if her air had been turned off, was it off long enough to have killed her or at least made her death a certainty?..

You may recall Shakybrainsurgeon (sp?) told us that to be fatal, the air has to be off for a long time. I forget how long, but I was surprised by it. If Watson had turned Tina's air off until he thought she was dead, unless he knew how long that had to be, he might have turned it back on in time for her to not to have died. (I know that had it been me, I would have figured a few minutes ... and been wrong.)

Of the questions you asked, this is the only one I can find some kind of an answer to, this quote comes from the same source I quoted above:

"..The point at which a person dies depends largely on the age of the victim and the temperature of the water--if warm, somewhere between 3 and 10 minutes.."

Source: Drowning investigations. - Free Online Library (http://www.thefreelibrary.com/Drowning+investigations-a0143342211)

However, the way they describe the drowning process, I believe the person becomes incapacitated and unconscious before they actually die. This explains how some people who are pulled from the water completely limp may still be revived. For instance, if you took a lung full of water while underwater, I think you might become incapacitated and unconscious quite quickly and may not be able to survive unless someone gets you out of the water and gets the water out of your lungs.

Thanks for the compliment, just wish I had more information to look at - and then a better understanding of whatever it is I was looking at.

[K_girl]

K-girl, I had posted a couple of times waaaay back in the previous Watson thread that one of your American news shows (MSNBC? Dateline? 20/20?) had an unrelated coroner speaking about the findings of the Watson case and he said that there was NO water in her lungs. I had been surprised since that was the first time I heard that. He said that is why they believed her tank was turned off until she was dead/nearly dead, and then turned back on. He also said that the "bear hug" was important because the pressure on the chest area could speed up the asphyxiation process.

Each time I wrote the above in regard to someone asking about water in her lungs, you discounted the information because it wasn't "in the coroner's report", whatever became public anyway. I think that the possible oxygen deprivation information you are now noticing is more information relating to what I had seen on one of the news shows a couple of years ago. We obviously do not have all the information that is available to investigators.

I have the June 5th replay on my TIVO, I will take second look and see if they kept that segment. What was in the Coroner's Report however, was that they ruled out unconsciousness as causing the laryngeal spasm. What I did not know at the time of your postings was that laryngeal spasm blocks water from entering the lungs. I errantly discounted what you said because I could not imagine that Tina would have a such a tight grip with her lips on the reg that no water at all would get in. My medical ignorance, so sorry.

However, since "dry drowning" occurs in 10-15% of the time in all drowning cases, they could not conclude that a small amount of water touching the larynx did not cause the laryngeal spasm. We don't know why the coroner concluded that unconsciousness did not cause the spasm. I'm left to guess that it was ruled out because Tina still had the reg in her mouth. If she had gone unconscious first, she probably would have lost the reg and inhaled large amounts of water.

[livinoz]

Bruce, I'm shocked...surely you have been around the law long enough to know that media reporting rarely reflects the reality of what goes in in the legal system, whether the courts or the investigation side of things. Perhaps things are different in the Us, but in Oz, unfortunately, it is appalling. I for one would not even bother speculating based upon a news outlet's report of something that may or may not be in the actual autopsy report. I certainly wouldn't do it without knowing that they in fact had a copy of the autopsy report, and would prefer not to do it without knowing what else was in that report.

Here, here! I am so tired of the reliance on the media for "evidence" in this case.

[TaiHei]

Bruce, I'm shocked...surely you have been around the law long enough to know that media reporting rarely reflects the reality of what goes in in the legal system, whether the courts or the investigation side of things. Perhaps things are different in the Us, but in Oz, unfortunately, it is appalling. I for one would not even bother speculating based upon a news outlet's report of something that may or may not be in the actual autopsy report. I certainly wouldn't do it without knowing that they in fact had a copy of the autopsy report, and would prefer not to do it without knowing what else was in that report.

I agree

We should take MSNBC, 20/20 and the other media sources with a grain of salt. However, it doesn't mean everything they report is false.

What source would you believe, other than the coroner's report?

How about the Office of the Townsville Coroner?

In their "Finding of Inquest", they give four possible explanations which may support a finding of accidental drowning. One of them is Laryngospasm.

Also it accepts unconsciousness was possible following a Laryngospasm, but discounted this as the cause of death.

A diver experiencing Laryngospasm would not be able to breathe, and I think would have a tendancy to bolt to the surface. The symptoms usually last 45-60 sec, but the victim could be at the surface in maybe 10 secs from 40 feet. Their must have been some reason Tina could not make it to the surface. This assumes that the Laryngospasm attack happened on its own. It seems to me Laryngospasm would prevent drowning in a lot of cases by preventing water from entering the lungs. The big problem comes when the victim cannot get air after the attack is over.

The report concluded that a properly instructed jury, could make a finding
of guilt against David Gabriel Watson on a charge of Murder.

I can see enough in the report on the Laryngospasm theory to support the prosecution and defense. It explains how the victim could drown and not have water in the lungs. Maybe it is enough to cause reasonable doubt in the jurors, and the trial could go either way. I understand the plea bargain more now.

It looks like the Aussies were way ahead of us.

[livinoz]

I agree

We should take MSNBC, 20/20 and the other media sources with a grain of salt. However, it doesn't mean everything they report is false.

What source would you believe, other than the coroner's report?

How about the Office of the Townsville Coroner?

In their "Finding of Inquest", they give four possible explanations which may support a finding of accidental drowning. One of them is Laryngospasm.

Also it accepts unconsciousness was possible following a Laryngospasm, but discounted this as the cause of death.

A diver experiencing Laryngospasm would not be able to breathe, and I think would have a tendancy to bolt to the surface. The symptoms usually last 45-60 sec, but the victim could be at the surface in maybe 10 secs from 40 feet. Their must have been some reason Tina could not make it to the surface. This assumes that the Laryngospasm attack happened on its own. It seems to me Laryngospasm would prevent drowning in a lot of cases by preventing water from entering the lungs. The big problem comes when the victim cannot get air after the attack is over.

The report concluded that a properly instructed jury, could make a finding
of guilt against David Gabriel Watson on a charge of Murder.

I can see enough in the report on the Laryngospasm theory to support the prosecution and defense. It explains how the victim could drown and not have water in the lungs. Maybe it is enough to cause reasonable doubt in the jurors, and the trial could go either way. I understand the plea bargain more now.

It looks like the Aussies were way ahead of us.

The full Coroner's Report is not available to the public, unless you meet the criteria for obtaining a copy from the Townsville Coroner's Office?

There are very few media people here who thinking Australians would consider to be objective in their journalism. The findings of the Coroner (which has been discussed in another thread on this case I believe) aren't freely available in their entirety. So as U-E was saying, if we don't have the full copy of the autopsy report with its many addenda, then we don't have the full picture.

[ItsBruce]

Don't flame me. People obviously misunderstood my reference to "evidence" that could support a "hypothesis." I intended only to compliment K_girl for finding some statistics on dry drowning.

[bowlofpetunias]

Don't flame me. People obviously misunderstood my reference to "evidence" that could support a "hypothesis." I intended only to compliment K_girl for finding some statistics on dry drowning.

While I may not always agree with K-girl I agree that her effort on providing information and stats on Dry drowning was helpful! Your contributions have also been worthwhile to me.

The information I have on "dry drowning" and Laryngospasm are based on training and information that may not be the most current. I wanted to wait till I have some time to do a bit more research before getting into any detail on it.

Simply put a spasm is a muscular contraction of the Laynx. Muscular contractions tend to relax when a person goes unconscious. Most often the water is ingested... swallowed into the stomach which is what makes people vomit when they are rescued from the water.

The body shuts down access to the lungs with a Laryngospasm to protect us from inhaling things into the lungs that damage them. You are familiar with this occurrance. Think of when you have been eating or more often drinking and "it goes down the wrong hole" if you try to talk you cough and your voice sounds strange. You are experiencing a "very minor laryngospasm". Your voice box it spasming but not blocking totally. Some people are more prone to have these than others which I am sure most of you are aware of as well.

I really want to do some more research into current info before I comment further.. but I hope this simplified explanation is helpful

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Bruce...my tongue was planted in my cheek a little...wasn't intending the "flame".

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While I may not always agree with K-girl I agree that her effort on providing information and stats on Dry drowning was helpful! Your contributions have also been worthwhile to me.

The information I have on "dry drowning" and Laryngospasm are based on training and information that may not be the most current. I wanted to wait till I have some time to do a bit more research before getting into any detail on it.

Simply put a spasm is a muscular contraction of the Laynx. Muscular contractions tend to relax when a person goes unconscious. Most often the water is ingested... swallowed into the stomach which is what makes people vomit when they are rescued from the water.

The body shuts down access to the lungs with a Laryngospasm to protect us from inhaling things into the lungs that damage them. You are familiar with this occurrance. Think of when you have been eating or more often drinking and "it goes down the wrong hole" if you try to talk you cough and your voice sounds strange. You are experiencing a "very minor laryngospasm". Your voice box it spasming but not blocking totally. Some people are more prone to have these than others which I am sure most of you are aware of as well.

I really want to do some more research into current info before I comment further.. but I hope this simplified explanation is helpful
Well, according to the Australian bible on dive medicine, it is unlikely there is such a thing as true "dry drowning" (ie drowning with no aspirant) because once the body reaches a certain level of hypoxia or hypercapnia, the spasm relaxes spontaneously, thereby allowing the entry of water. So "dry drownings" are likely initiated by laryngospasm resulting in acute asphyxia, and then one the spasm relaxes allowing the entry of water, true drowning occurs. The explanation for autopsy findings failing to reveal water in the lungs is that it is rapidly absorbed.

[K_girl]

Well, according to the Australian bible on dive medicine, it is unlikely there is such a thing as true "dry drowning" (ie drowning with no aspirant) because once the body reaches a certain level of hypoxia or hypercapnia, the spasm relaxes spontaneously, thereby allowing the entry of water. So "dry drownings" are likely initiated by laryngospasm resulting in acute asphyxia, and then one the spasm relaxes allowing the entry of water, true drowning occurs. The explanation for autopsy findings failing to reveal water in the lungs is that it is rapidly absorbed.

I would be curious to know what the dive bible says about those drowning autopsies that find a lot of water in the lungs and what that means as opposed to those where little water is found in the lungs. I think a good comparison to Tina's case would be to cases where divers have been trapped, run out of air and found with the reg still in their mouth and those divers who panicked, the reg out of their mouth, indicating they had breathed water directly into their lungs.

It would be much appreciated if you could directly quote the information you've sited.