To take up further what JCB has posted.
One of the things the Judge will tell the Jury tomorrow is that they, and they alone, are “the Judges of the facts.” Before they turn your mind to legal matters, the Jury need to satisfy themselves, beyond reasonable doubt, what the basic facts are. One can see their immediate difficulty given the number of unanswered question which have been posted here. The Judge will instruct them that they may not speculate on what the facts are. They must determine what they are, beyond reasonable doubt, and based on the evidence presented to them at the Trial, and nothing else.
So, what facts can be safely ‘found’ beyond reasonable doubt, on that evidence.
- They met and we have seen the videos of that.
- They purchase alcohol, we have the CCTV of that
- They go to his Unit, we have the CCTV of that.
From here on, until after her death, we only have the tape and what the neighbours heard, plus the photos, and forensic evidence. What can be safely found as a fact.
- He was recording.
- It was only late in the events that he told her he was recording.
- There was discussion including reference to the balcony, Ninja, muy thai, psycho, heavy breathing, a metallic sound, sounds of stones hitting hard objects, heavy breathing, etc.
- There was discussion about her leaving, “all good,” and him saying something about her attempting to strike him with a metal object.
- It is conceded by the Crown she had unlawfully assaulted him.
- Some sounds could have been sounds of choking, but there is no expert evidence to assist the Jury conclude what it was.
- Almost immediately after that unlawful assault of him by her, she is, (method unknown) removed to the balcony and in that process she repetitively screams “No.” The Jury can conclude she did not want to be taken to the balcony.
- As soon as she is on the balcony, the door is shut and locked from the inside. Only he could have done that.
- There are now separated by that locked door.
- Within seconds, she disappears from his view.
- Neighbours saw her hanging from the balcony, and it seems her feet were pointing in to the building. A neighbour tells her to go back. She says nothing to a person in immediate communication with. The neighbour sees her fall, ricochet off other balconies, to the ground.
- Tostee leaves the building and has her phone in his pocket. We do not know how or why it got there.
- By the time he gets to ground level, he has failed in an attempt to call his Lawyer. Also within that time, first responders are at the scene.
- There is CCTV vision of him holding on object. This is not explained by the Crown, and the Jury can therefor discard it. To do otherwise is to speculate.
- He wanders off, calls his Father, gives a brief account of events, gets a piece of pizza, and eventually, is picked up by his Father.
Unless I have missed something, those are the facts which are established, beyond reasonable doubt, on the evidence.
Now, to the Law. The Crown Case is that when he removed her to the balcony, he knew that she was in such a state of fear, that his act of putting her there in that State was no different from a situation if he in fact physically tossed her over. Her state of fear, the Crown says, was because he had attempted to choke her. That is where the alleged choking comes into play, as she did not die of asphyxiation.
Okay, let’s go back to what we know about that alleged choking incident. Firstly, that it even occurred is not safe to conclude beyond reasonable doubt, as the expert forensic evidence is that there were no signs of it having occurred. So, it cannot be concluded reliably that he either had been throttling her with his hands, or by way of arm bar across her throat. But, what of the sounds on the tape. Well, as I have already said, no expert was called to assist the Jury interpret them, and that is curious and damning of the Crown case of itself. Why was there no expert on that sort of matter called? We do not know. So, if the Jury are not satisfied beyond reasonable doubt that he was choking her, there goes the Crown lynch pin in the suggestion of heightened fear of death at his hands.
But, take it a step further for moot purposes only. Assume there was proof beyond reasonable doubt those sounds were of him throttling her. What do we know of what follows.
He ceases throttling her which may may not have been because he had managed to disarm her of the metal object. Maybe, he did not want to kill her by choking her to death. We don’t know, We do know he stopped.
Instead, he removed her to the balcony, goes back inside, shuts and locks the door.
The Crown says that, at this point, she had only one choice. Attempt to climb over the rail and escape from him. But, that flies in the face of other more obvious options which include, yell for assistance, stay exactly there and do nothing. He was no longer in her immediate presence and there was a closed glass door between them. She elects to attempt to climb down. She is told by a neighbour to go back. She ignores him.
So, on two important bases, the Murder charge is unsustainable. No choking incident was proven beyond reasonable doubt. Even if it was, when she was on the balcony, she had other safe options. She was not left with but one…..attempt to climb down.
Manslaughter. Well, again, the basic facts remain as above. In those circumstances, could a reasonable person, anticipate that W would attempt to climb down from a 14[SUP]th[/SUP] Floor balcony when there were other entirely safe options available. Not in my opinion, and I doubt the Jury will conclude that either.
