Gable Tostee

[Shiner]

Yes but the main section is clear. If death is caused. It was not.
If the wording was "if death occurs" then that would work.

Are you sure you read the definition of murder, per QLD.

(b) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;

Death happened. There must be a cause. Who caused it, is up to the jury.

Note "an act likely to endanger human life" ......

There is no requirement for the accused to have intent to endanger life.

I think you're reading more than is there.

 

[Hard Cheese]

Did you not see earlier posts where these charges are not available? Manslaughter or murder are the only options in cases like this. manslaughter is a "heat of the moment" crime. In this case Tostee made a calculated decision to push Wright out the door and put her in fear of her life.

Yes, I made one of those posts, have a look at #22.

I know that those charges are not available in Queensland, that's why I used the past tense. His point was a general one about the broadness of the charge of murder.

 

[lionking]

Yes, I made one of those posts, have a look at #22.

I know that those charges are not available in Queensland, that's why I used the past tense. His point was a general one about the broadness of the charge of murder.

Okay

 

[Samson]

Are you sure you read the definition of murder, per QLD.

(b) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;

Death happened. There must be a cause. Who caused it, is up to the jury.

Note "an act likely to endanger human life" ......

There is no requirement for the accused to have intent to endanger life.

I think you're reading more than is there.

The cause of her death was being locked on a balcony high enough that if she fell death was likely.
How does that sound? Stupid in my opinion, because balconies are designed so falling doesn't happen..
Of course it will be argued she perceived imminent danger and a hazardous descent seemed preferable to Tostee attacking her.

 

[Shiner]

In my view it comes down to the question of was her death a reasonably foreseeable outcome of his actions, if so a verdict of guilty of murder is appropriate, otherwise manslaughter. This excludes felony murder and it's equivalents.

Based only on a superficial study of this case I'd vote to convict of murder as I believe his actions were unreasonable, not warranted by the circumstances, escalated the situation and has a foreseeable risk of causing death or serious injury.

I'm far from a criminal law expert, but I don't see the requirement in the written law for proving that her death was a reasonable outcome.

It's an act likely to endanger life. I do believe, when including section 3, that this removes requirements for the accused to be aware of that likelihood.

The death occured to the victim of an active crime.

I'm keen to see what bigger brains than mine make of it though.

 

[Shiner]

The cause of her death was being locked on a balcony high enough that if she fell death was likely.
How does that sound? Stupid in my opinion, because balconies are designed so falling doesn't happen..
Of course it will be argued she perceived imminent danger and a hazardous descent seemed preferable to Tostee attacking her.

I agree. It sounds stupid. The cause of death was massive head injuries.

He imprisoned her and she died. No different to locking someone in the boot of your car and walking away.

 

[lionking]

I agree. It sounds stupid. The cause of death was massive head injuries.

He imprisoned her and she died. No different to locking someone in the boot of your car and walking away.

Agreed. Drunkenness is no excuse, nor is "didn't mean it?".

 

[Hard Cheese]

1 (b) seems to cover the case here.

Hmmm, it may not.

You couldn't say he was in the act of kidnapping because kidnapping is defined in the Queensland criminal code as

Kidnapping (354)

(2) A person kidnaps another person if the person unlawfully and forcibly takes or detains the other person with intent to gain anything from any person or to procure anything to be done or omitted to be done by any person.
It's really deprivation of liberty, which is a misdemeanour and unlikely to cross the threshold for a criminal act under 302 (1)(b)

Deprivation of liberty (355)

Any person who unlawfully confines or detains another in any place against the other person’s will, or otherwise unlawfully deprives another of the other person’s personal liberty, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.

 

[Samson]

Hmmm, it may not.

You couldn't say he was in the act of kidnapping because kidnapping is defined in the Queensland criminal code as

Kidnapping (354)

(2) A person kidnaps another person if the person unlawfully and forcibly takes or detains the other person with intent to gain anything from any person or to procure anything to be done or omitted to be done by any person.
It's really deprivation of liberty, which is a misdemeanour and unlikely to cross the threshold for a criminal act under 302 (1)(b)

Deprivation of liberty (355)

Any person who unlawfully confines or detains another in any place against the other person’s will, or otherwise unlawfully deprives another of the other person’s personal liberty, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.

That looks more realistic.
The crown case looks doomed. Something to watch for a week.

 

[lionking]

Hard Cheese.

"Or omitted to be done" does it.

Do you, like Samson, think the Queensland prosecutors are stupid? Do you understand the consequences of frivilous prosecutions? There are very solid checks and balances in Australian law. This is a very solid case.

 

[lionking]

That looks more realistic.
The crown case looks doomed. Something to watch for a week.

Rubbish. I've asked you before. Why do you defend violent, aggressive male criminals?

 

[Samson]

Rubbish. I've asked you before. Why do you defend violent, aggressive male criminals?

I don't. I see a wider problem, the families get branded wrongly if the state over eggs the misdeeds of one member. Is Tostee's old man to be considered when heaping murder one on his boy?

 

[Shiner]

Hmmm, it may not.

You couldn't say he was in the act of kidnapping because kidnapping is defined in the Queensland criminal code as

Kidnapping (354)

(2) A person kidnaps another person if the person unlawfully and forcibly takes or detains the other person with intent to gain anything from any person or to procure anything to be done or omitted to be done by any person.
It's really deprivation of liberty, which is a misdemeanour and unlikely to cross the threshold for a criminal act under 302 (1)(b)

Deprivation of liberty (355)

Any person who unlawfully confines or detains another in any place against the other person’s will, or otherwise unlawfully deprives another of the other person’s personal liberty, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.

I don't understand why kidnapping keeps coming back into it. I'm not aware of a kidnapping charge. If the charge is murder, they need to prove that using the murder statutes.

The definition of murder allows for other crimes to be included without the necessity of adding or proving those charges. The audio tapes prove that he assaulted her (possibly in self defense), that he deprived her of her possessions, and that he imprisoned her on the balcony.

The police waited over a year before they laid the charges. I'm inclined to agree with LK that the police prosecution team probably knows what they are doing.

 

[Hard Cheese]

Hard Cheese.

"Or omitted to be done" does it.

Explain. What exactly is it that he wanted not to be done, and needed to hold her against her will to make sure that she did not do it?

Do you, like Samson, think the Queensland prosecutors are stupid? Do you understand the consequences of frivilous prosecutions? There are very solid checks and balances in Australian law. This is a very solid case.

That may very well be so. That doesn't mean that they are conducting it on the basis of what is in section 302 (1) (b). They may be relying on his statement in the audio that he would throw her off the balcony, and therefore there is premeditated intent to murder.

 

[Shiner]

I don't. I see a wider problem, the families get branded wrongly if the state over eggs the misdeeds of one member. Is Tostee's old man to be considered when heaping murder one on his boy?

You're very confusing. Why would his father be considered?

Considered for what, exactly? Should the court decide guilt or innocence based on Tostee's family's feelings?

 

[Samson]

You're very confusing. Why would his father be considered?

Considered for what, exactly? Should the court decide guilt or innocence based on Tostee's families feelings?

Collateral damage occurs.
Murder is a wildly emotive rap for this guy. Unintentional homicide I wouldn't agree with but at least it is semantically defensible. This guy's family have to live in a community somewhere, they bred a murderer? I don't think so.

 

[lionking]

Collateral damage occurs.
Murder is a wildly emotive rap for this guy. Unintentional homicide I wouldn't agree with but at least it is semantically defensible. This guy's family have to live in a community somewhere, they bred a murderer? I don't think so.

Oh for goodness sake. How on earth can and should a murderer's family come into the equation?

 

[Hard Cheese]

I don't understand why kidnapping keeps coming back into it. I'm not aware of a kidnapping charge. If the charge is murder, they need to prove that using the murder statutes.

It came up because someone asked about the existence of felony murder in Australia, and it was suggested that the death occurred in the process of him committing the crime of kidnapping (keeping her in the apartment against her will, and locking her out on the balcony); in Queensland the concept of felony murder/constructive murder is wrapped up in a subsection section of the definition of murder. I doubt that you could classify what he did as kidnapping (according to the definition, anyway), but who knows. Not me.

The police waited over a year before they laid the charges. I'm inclined to agree with LK that the police prosecution team probably knows what they are doing.

Oh, I'm sure. He has no hope, it will only be a question of how severe his sentence is.

 

[Shiner]

That may very well be so. That doesn't mean that they are conducting it on the basis of what is in section 302 (1) (b). They may be relying on his statement in the audio that he would throw her off the balcony, and therefore there is premeditated intent to murder.

He doesn't actually threaten that though. He says "should", as opposed to "will", or "would". Some time later, he forced her out there. That she was in fear for her life is pretty easy to swallow.

I think 1 (b) is good. It seems the logical course.

 

[lionking]

It came up because someone asked about the existence of felony murder in Australia, and it was suggested that the death occurred in the process of him committing the crime of kidnapping (keeping her in the apartment against her will, and locking her out on the balcony); in Queensland the concept of felony murder/constructive murder is wrapped up in a subsection section of the definition of murder. I doubt that you could classify what he did as kidnapping (according to the definition, anyway), but who knows. Not me.

Oh, I'm sure. He has no hope, it will only be a question of how severe his sentence is.

No. Not remotely.