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11th October 2016, 03:18 AM | #81 |
Motor Mouth
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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. |
11th October 2016, 03:20 AM | #82 |
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11th October 2016, 03:25 AM | #83 |
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11th October 2016, 03:35 AM | #84 |
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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. |
11th October 2016, 03:39 AM | #85 |
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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. |
11th October 2016, 03:44 AM | #86 |
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11th October 2016, 03:48 AM | #87 |
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11th October 2016, 03:54 AM | #88 |
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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. |
11th October 2016, 03:59 AM | #89 |
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11th October 2016, 04:00 AM | #90 |
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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. |
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11th October 2016, 04:02 AM | #91 |
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11th October 2016, 04:09 AM | #92 |
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11th October 2016, 04:11 AM | #93 |
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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. |
11th October 2016, 04:14 AM | #94 |
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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?
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. |
11th October 2016, 04:16 AM | #95 |
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11th October 2016, 04:20 AM | #96 |
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11th October 2016, 04:23 AM | #97 |
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11th October 2016, 04:24 AM | #98 |
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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. |
11th October 2016, 04:24 AM | #99 |
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11th October 2016, 04:26 AM | #100 |
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11th October 2016, 04:30 AM | #101 |
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Actually in the Tamihere case a fine documentary was made.
In his case he is factually innocent and on a fast track to proving it, but his brother John got hoodwinked. He is intent on proving his innocence partly because the branding is intergenerational. Better get it right surely. Relative Guilt: https://www.nzonscreen.com/title/relative-guilt-1999 |
11th October 2016, 04:34 AM | #102 |
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11th October 2016, 04:52 AM | #103 |
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Just for reference if people are interested.
Deprivation of liberty http://www.austlii.edu.au/au/legis/q...9994/s355.html Qld Kidnapping law. http://www.austlii.edu.au/au/legis/q...9994/s354.html Here's an interesting one. Causing Death By Threats http://www.austlii.edu.au/au/legis/q...9994/s295.html I'd say the first one applies here. And possibly the second and third? |
11th October 2016, 05:06 AM | #104 |
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Law Reform Commission of Western Australia – Review of the Law of Homicide: Final Report, p 56.
THE FELONY-MURDER RULE IN OTHER AUSTRALIAN JURISDICTIONS A form of felony-murder exists in all Australian jurisdictions other than the Northern Territory,(53) the Australian Capital Territory (54) and the Commonwealth (55). In each jurisdiction where it exists the felony-murder rule is statutory.(56) 56. Crimes Act 1900 (NSW) s 18(1)(a); Criminal Code (Qld) s 302(1)(b)–(d); Criminal Law Consolidation Act 1935 (SA) s 12A; Criminal Code (Tas) s 157(1)(c); Crimes Act 1958 (Vic) s 3A. Queensland Criminal Code Act, 1899 (current as at 23/9/2016), p 182 302 Definition of murder (1) Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say— (a) if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm; (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; Back to Dolly for you. |
11th October 2016, 06:36 AM | #105 |
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11th October 2016, 11:55 AM | #106 |
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Jeez, this one's taken off like Amanda Knox.
The coverage is unbelievable over here. Two days running both major dailies have led their editions with the case, including photos and audio recordings on their websites. I find it hard to see it sticking. No doubt about that part, but being a complete twat isn't evidence, unfortunately. |
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11th October 2016, 12:28 PM | #107 |
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11th October 2016, 12:38 PM | #108 |
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11th October 2016, 01:21 PM | #109 |
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11th October 2016, 03:12 PM | #110 |
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I posted a link above to an award winning documentary to illustrate the point, and since lionking threatened to report me for posting off topic I have to be careful.
There are two issues, one is exaggerating the offending and then there is actually prosecuting an innocent man, as in the link. In this case I have made it clear, I believe the murder charge is an egregious wrong. His offending speaks for itself, a tinder date that went awol with liquor, and he behaved disgracefully, but the murder rap is one from a decision she made under the influence. He is not a murderer, he is an arrogant man, a danger to society. There are plenty of those who grow up. I believe the facts of the case should drive the charge, not the worst construction the state thinks it can shovel on him. The same for Pistorius of course. In terms of the victim, her family also should consider the facts. Was she blameless? Maybe in the context of liquor she is, if he plied her excessively. Also with a running pr deficit, I can't imagine why Tostee would continue on social media, but I don't know the details. |
11th October 2016, 04:55 PM | #111 |
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I certainly won't take your word for this.
Do you think the DPP is corrupt in laying this charge? Why do you think he's been charged when DPPs have a history of not laying charges with poor chances of conviction? No, your judgement of guilt and innocence is very poor indeed. This guy is done. |
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11th October 2016, 06:47 PM | #112 |
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Maybe you should take his word, you don't seem to have a very good grasp of the definition of murder.
Anyway, technically at present he is no more a murderer than you or I. True, but that is not to say such cases are a lay down misere either. The prosecution will have to prove beyond reasonable doubt that him locking her out on the balcony in her state after such a confrontation was a life threatening act. The judge might well agree that it was, you would be taking your chances with a jury. Just look at the Lundy case - I wouldn't ever want my fate to be decided by 12 random people off the street. |
11th October 2016, 07:07 PM | #113 |
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As it turns out, this was proven.
Jokes aside though. The bit I'm having trouble interpreting from the way the laws are written, is whether they need to show that Tostee had considered, or was aware of the risks associated with holding Wright captive. Could it be applied as; Tostee having assaulted and detained Wright establishes that she died during the committing of a lesser crime by Tostee, and the law offers no defense for her death as a result. I think that made sense? |
11th October 2016, 07:26 PM | #114 |
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Curiously, people dropping from balconies is usually reported from anywhere, showing it is incredibly rare. Consider how many such balconies exist around the world. Hindsight is a terrible tool to assist in this case, I bet parents have put kids on balconies in frustration. Fear of falling gets those toes really tingling, I feel it as I type.
ETA I provisionally withdraw after reading this link http://www.dailymail.co.uk/travel/ar...s-dangers.html Paul Abrey, Consul in the Balearics, said: 'We've already seen some tragic cases this summer which have had devastating consequences for the individuals and families concerned. 'Some people have fallen whilst climbing to a friend's apartment, others have simply lost their footing after a few too many drinks and a few have deliberately jumped off aiming for the pool below.' He added: 'It should go without saying these practices are extremely dangerous and can cost them their life or leave them permanently disabled.' |
11th October 2016, 07:59 PM | #115 |
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Did you actually read the law he is being tried under? Putting someone in fear of their life which results in death can indeed be murder. I think this is precisely the case here, and I'm sure that a jury will find it so.
I don't really care what your definition of murder is, by the way. I care what the law in question says. |
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11th October 2016, 08:15 PM | #116 |
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11th October 2016, 08:26 PM | #117 |
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The subject is causation, a reasonable man would discount on a statistical basis that escape attempt, the dangers and the will to live are such strong forces to contemplate, that the notion Tostee could foresee it is absurd. That is the point I am making, a behavioural and statistical point.
While there's life there's hope. This witch hunt predicating that a man should predict her behaviour is the real subject. But I won't be surprised at a guilty verdict, there are so many people leading blameless lives there should be 12 on the jury. |
11th October 2016, 08:30 PM | #118 |
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It's not relevant what Tostee thought, the criteria is whether a "reasonable man" put in his position could foresee that his actions could cause her death. i.e. if you lock a scared, drunk person out on a balcony, would you reasonably conclude that they might die from your doing that? Well, if you're drunk you might be wobbly on your feet and off balance, but balcony rails are designed to prevent accidental falls, so that shouldn't matter. Could you predict that the person might climb down and try to escape? I tend to think it would not be very likely given the risk of falling, even if one is drunk - although it's certainly not unheard of. BUT if you couple it with threats of extreme violence from a detainer who is much bigger and stronger than you are, the likelihood increases tremendously that the you might be driven to an extreme act to try to escape.
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11th October 2016, 09:33 PM | #119 |
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OK. I'm still not seeing his innocence. I don't believe, going by the way the law is written, that the prosecution needs to prove that he had foresight of her impending death. I don't believe it even implies an awareness of endangerment.
It only requires that they prove he was committing a crime against her that led to her death. She sounded scared to hell towards the end of the tape. Probably because she realised he was forcing her out onto the balcony and had earlier made suggestions about throwing her off there. I have no doubt that he was aware of her fear. She died. It is his fault that she died. This is indisputable in my opinion. Is it murder, even by the allowances in the QLD code? IDK. But I'm glad it's before a jury and not left for you to decide. |
11th October 2016, 09:46 PM | #120 |
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There is a valid point to reminding he had made the "should throw you off the balcony" comment.
In light of that I might review my position. It could be argued 1. She didn't know him 2. He had the strength to do it, so 3. She wouldn't wait to give him the opportunity. 4. In a drunken state climbing to the next level looked doable. hmmm |
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