Earlier this year, Gable Tostee was acquitted by a jury of the murder of New Zealand woman Warriena Wright following a 9 day trial.
The trial and Mr Tostee’s subsequent television interview with 60 Minutes has generated discussion in the community about Mr Tostee’s actions on the night of Ms Wright’s death and whether he was criminally responsible for her death.
This article attempts to give readers some insight into what the crime of murder is defined as in Queensland and what the Crown had to prove to the Jury to succeed with the Prosecution.
What is Murder in Queensland?
In Queensland, any person who unlawfully kills another is guilty of a crime which called “murder” or manslaughter” according to the circumstances of the case.
To satisfy the elements of the crime of murder, the Crown must prove: –
- The victim is dead.
- The accused caused the victim’s death.
- The accused did so intending to cause the victim’s death or grievous bodily harm to the victim.
Grievous bodily harm means a bodily injury of such a nature that, if left untreated, would be likely to endanger life or likely to cause permanent injury to health. It does not relevant whether or not medical treatment is or could have been available.
Each of the elements must be proven beyond reasonable doubt before a verdict of murder can be returned by a jury.
If the third element of intent is not proven then an alternative verdict of manslaughter may be found by a jury. Manslaughter is the unlawful killing of a person in circumstances not amounting to murder.
For a person to be found to have killed another it is enough that the person did an act that was a “substantial or significant cause” of death or which substantially contributed to it.
During the trial a recording of Ms Wright’s final moments was played. That recording indicated that an altercation occurred between Mr Tostee and Ms Wright which appeared to involve Ms Wright assaulting Mr Tostee by throwing objects (most likely ornamental stones) at him and then Ms Tostee physically restraining Ms Wright and forcing her outside the door and onto his balcony.
What the Crown tried to prove
The Crown’s position was that while Mr Tostee did not physically push Ms Wright over the balcony, he might as well have, because her fear of him was so great in that moment that she thought jumping to be a safer option.
Crown Prosecutor Glen Cash QC described Ms Wright’s options after she had been physically restrained by Mr Tostee and forced onto her balcony as follows: –
One was to try and go back into the apartment, to go back through where Gable Tostee was, to have to engage with the man who on the crown case had violently restrained her. The man who had just told her in response to her begging to be permitted to go home that he would not let her do so because she had been in his words ‘a bad girl’. In light of what he had done and what she feared he would do, what then was her only reasonable and rational option in those circumstances? The only remaining option … is to attempt to climb down the balcony to escape Gable Tostee.
Effectively the Crown’s position was that Mr Tostee as good as pushed Ms Wright to her death by his conduct towards Ms Wright immediately prior to her fall.
The Position of the Defence
Mr Tostee did not elect to give evidence at the trial. Nonetheless, Mr Tostee’s defence barrister Saul Holt QC was also able to refer to the recording in his closing address to the jury. Mr Holt described Mr Tostee’s actions in forcing Ms Wright on to his balcony as an “act of de-escalation” which he was lawfully entitled to do to defend himself from further attacks by Ms Wright. Mr Holt also described Ms Wright’s actions to climb over the rail of a 14th floor balcony as extreme and was not reasonable and rational in the circumstances.
The Jury’s Verdict
Although the Jury is not required to give reasons for their decision, the Jury’s verdict to acquit Mr Tostee indicates that they were not satisfied beyond a reasonable doubt that Mr Tostee caused the death of Ms Wright. In the writer’s opinion this was more likely than not because the Jury could not be satisfied that Ms Wright’s attempt to climb down a 14th floor balcony was her only reasonable and rational option in the circumstances.