Watson Murder Case - Discussion

[Foxfish]

Itsbruce, it has been interesting to read the insights into the legal aspects of the case posted by yourself and others here.

There is still a lot of uncertainty about what happened in the final moments. The judges objective was to establish if there was a case to answer, not to satisfy our curiosity. He decided after listening to the main witnesses and evidence that there wasn't. It seems to me that was the right decision to make but I suspect Gabe is going have trouble finding dive buddies.

 

[bowlofpetunias]

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!

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.

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.

I can not resist bringing a few posts forward from UnderExposed regarding the Negligence issue. I wanted to do this in recognition of his contribution to our understanding regarding the law in Australia and the impact this case may have on other dive buddies here. I won't apologize for the hijack since that would not be honest

 

[Foxfish]

In summing up on the case, Judge Nail said the following: the state might have proven a civil negligence death case, but evidence of murder was "solely lacking."

"I don't think anyone knows what happens in the waters down there and they probably will never know," he said.

Judge Tommy Nail has dimissed the case against Gabe Watson | The Courier-Mail

One person knew better than anyone else what happened 'down there' and that was Gabe Watson. I'm inclined to think his testimony is more reliable than many give credit. Now that he has been acquitted of murder in the courts maybe people will be more inclined to give more consideration to his observations.

 

[bowlofpetunias]

{Quote from post 515 if you want to read previous discussion about drowning}
I thought it was also interesting the Edmonds et al state in Diving Medicine for Scuba Divers in discussion the Physiology of Drowning state:

"If the diver is totally deprived of his air supply for some reason, he initially breath-holds until the "break point" is reached and then takes an involuntary breath. The resulting inhalation of a bolus of water usually provokes coughing and closure of the larynx producing involuntary breath-holding followed by unconsciousness. It is unusual for large amounts of water to enter the lungs after the victim loses consciousness as the tongue and loose tissues in the throat tend to close the airway"

There is no reason that I can see why having a reg in your mouth would stop inhalation of water. I have certainly had the experience of my reg "breathing wet". There is also the chance that water would come in around the mouthpiece if it isn't held in your mouth well enough.

Divedoggie,

Thanks for your responses and I agree with much of what you are saying. You sound like a conscientious instructor. Your conclusions on how to prevent this kind of accident happening are along the same lines as McFadyen's and I suspect others on the forum.

As mentioned previously, I thought your comment about breathing around the regulator when students are panicked was a breakthrough in my own thinking on the topic and sounded a plausible explanation. I was interested to hear from McFadyen if that came up in the discussions with the defense team and other alternative explanations that surfaced.

Oh and have to say that your perspective from the point of view of an instructor was helpful in gaining a lot more insight into what happened. So again thanks.

I have to agree with you that Divedoggie has added a massive amount of insight as have many other instructors and REAL experienced divers. Thanks to all of you:worship:

 

[bowlofpetunias]

In summing up on the case, Judge Nail said the following: the state might have proven a civil negligence death case, but evidence of murder was "solely lacking."

"I don't think anyone knows what happens in the waters down there and they probably will never know," he said.

Judge Tommy Nail has dimissed the case against Gabe Watson | The Courier-Mail

One person knew better than anyone else what happened 'sown there' and that was Gabe Watson. I'm inclined to think his testimony is more reliable than many give credit. Now that he has been acquitted of murder in the courts maybe people will be more inclined to give more consideration to his observations.

I certainly wouldn't hold my breath on that one Foxfish! I am afraid it has already been made clear that some will always see the Judge Nail's decision as circumventing justice rather than supporting justice No surprise to some of us in that!

 

[Foxfish]

Got to say that I've been impressed with the tone of the discussion on this thread. It was open, friendly, mature and thoughtful. I thought the regulars on here like Bowlsofpetunia helped to keep the tone healthy the discussion on track. I've enjoyed posting comments on the thread and have learned a lot about this case by participating. Thanks again.

 

[MX727]

Michael, I believe this is the new link to your page: Michael McFadyen's Scuba Diving Web Site

 

[mike_s]

There was some discussion yesterday on whether the charges were "Dismissed" or he was "acquitted"


I saw nothing of the "acquittal". but did see the video footage this morning of the attorney motioning that the prosecution did not have a case and the judge replied with the word "dismissed" on the charges.


Anyone have further information?

 

[ItsBruce]

In another thread Ken Kurtis posted:

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Oh. My. God. I am stunned. Not so much that he was acquitted had the jury found him not guilty (it was probably going to be tough to prove beyond a resonable doubt anyhow) but that the trial was stopped by the JUDGE who directed a verdict of acquittal because the State failed to prove it's case.

I'm not a lawyer (and maybe Bruce or others can weigh in) but it seems to me that the State blew it in their presetnation of the case. I've followed news reports as closely as a I can and, as far as I can tell, the State offered NO expert testimony from someone like Bill Oliver, Glen Egstrom, Brett Gilliam, me or others who do this regularly as to why just looking at the scuba circumstances and facts of the case, you can make (IMHO) a pretty strong argument that this was not an accident.

FTR, I don't believe the turned-off-her-air story nor do I think the Australian re-creation was representative of what really happened. To me, the damming action is the bearhug that was observed by another diver in another gropup and who testified at trial. Watson says he was holding Tina by the shoulders to prevent her from doing a panicked ascent. But think about it: When someone panics, they bolt for the surface and they bolt quickly, strongly, and usually without warning. (As a side note Watson has presetned himself as not all that experienced enough to save Tina yet he was clever enough to recognize early sings of panic????)

So even if you want to accept Watson's story that Tina had panicked and he was just trying to help her, how did he get his arms around her shoulders? Because when a panicky diver starts going up and you go to grab them you're LUCKY if you're able to get them by the . . . ANKLES. How did he manage to get her by the shoulders?????

As far as turning off the tank, you don't need to do that. Wait for her to exhale, pull her reg out, grab her sholders to pin her arms so she can't get the reg back in, hold on for 30 seconds or so, let her drop to the bottom, and then concoct your story on ther way up. (Don't forget your safety stop.)

Anyhow, it would be one thing had Watson presented a defense and the jury didn't buy the prosecution's version. But to have the judge just say "We're done" feels like nothing short of prosecutorial incompetence (in my humble not-legally-based opinion). Oh. My. God.

- Ken

I can't say it was incompetence by the prosecutor in the presentation of the case;maybe in the decision to prosecute, but not in the presentation.

As ive said repeatedly, there are any number of theories as ho how Watson might have killed Tina, however other than that Tina died and Watson was nearby, there was no actual evidence supporting any of them. Nor was there evidence negating alternative theories of how Tina died. Just because Watson's story does not add up, that is not strong enough to change this.

If Watson had turned off Tina's air or taken her regulator from her, that would have evidenced an intent to harm. But lacking that, there was no evidence of intent. Again, just because Watson's story does not add up, that is not strong enough to change this.

To compound this the Alabama court assumed jurisdiction because the prosecution asserted there was evidence Watson formed the plan while in Alabama. Apparently, the prosecution did not make good on its promise of such evidence. That could not have won any points with the Court.

While it is true that the jury could have been so inflamed that it would have found that Watson turned off Tina's air or removed her regulator or poisoned her or whatever, the judge's job is to act as a gatekeeper.

I don't know what more the prosecutor could have done.

I don't think a forensics expert could have helped the prosecution. An expert could have opined that from a diving perspective things could not have happened as Watson said, but I don't think anyone really thought Watsono was right about that anyway. It is likely, his version did not make him look so bad in failing to save Tina after things started going sideways due to his bad choices. (IMHO bad choices started with Tina taking diving lessons to please Watson.)

It is not uncommon for lawyers, even very good ones, to overrate their cases. Media coverage may well have misled the prosecution into thinking there was a case. Then once it started, it could not back down.

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[Cixelsyd]

There was some discussion yesterday on whether the charges were "Dismissed" or he was "acquitted"


I saw nothing of the "acquittal". but did see the video footage this morning of the attorney motioning that the prosecution did not have a case and the judge replied with the word "dismissed" on the charges.


Anyone have further information?

Technically, the defense made a motion for acquittal and the judge granted it, finding that no reasonable fact finder could find him guilty beyond a reasonable doubt given the evidence offered by the state. These motions are made as a matter of course in every case after the State rests, but are granted only rarely.

In the end though, practically speaking, it doesn't much matter if you call it an acquittal or a dismissal of the case. Unless the judge's ruling is overturned on appeal, the state can't charge him again.