“Just because someone is dead does not in itself mean that someone is criminally responsible for that death.”
This is the statement that defence barrister Saul Holt QC hammered home in the murder trial of Gable Tostee, and his words were likely still ringing in the minds of the jury when they delivered a verdict of not guilty today, after three and a half days of deliberations.
In 2014, Warriena Wright, a New Zealand tourist, connected with Tostee, a Gold Coast carpet layer, on Tinder. After an exchange of flirtatious messages, they met up in Surfer’s Paradise, bought beer at a bottle shop and went upstairs to his Avalon Towers apartment where they drank, took selfies and had sex. After midnight, for reasons which are still unclear, Tostee hit record on his phone and captured what would be Wright’s final hours, before she plunged to her death from his 14th floor balcony.
The recording, played to the jury in Brisbane’s Supreme Court and made available on the internet, is chilling as fuck. In it, Tostee can be heard arguing with a near-incomprehensible Wright, and asking her to leave his apartment. A physical altercation breaks out, and she attacks him with objects from around the apartment. In its final minutes, an increasingly fearful Wright can be heard shouting “No, no, just let me go home”.
“I would, but you have been a bad girl,” Tostee replies, before faint screams are heard.
Tostee called no witnesses in his murder trial, which began in Brisbane’s Supreme Court on Monday October 10, and he did not take the stand to defend himself. He relied solely on the evidence from the recording, and the argument that he locked Wright on his apartment balcony in order to “de-escalate” the situation and defend himself, never imagining that she would jump to her death.
The longer the jury deliberated, the more likely it seemed they would return a verdict of not guilty. On Tuesday of this week, unable to reach a unanimous verdict, they were given a ‘Black direction‘ and sent back by Justice John Byrne to consider the facts again and overcome their disagreements.
Tellingly, they asked Byrne to clarify a number of points of law, including the meaning of terms like ‘causation’, ‘unlawfulness’ and ‘intent’; they asked whether Wright’s level of intoxication on the night was relevant, and whether the language used by Tostee could be considered ‘force’ (His short answer? ‘No’).
Members of the public gathered outside the court after the verdict was read out, and chanted “pig” at Tostee as he walked away a free man. Many on social media have questioned how – in the face of the reported facts – the jury could have reached such a verdict. Below is my best explanation of the law as it stands on the concept of causation.
I’ll also explain how, as Holt argued, the “tragic” events of Wright’s death did not amount to murder or manslaughter.
In Queensland, a homicide occurs when one person kills another in circumstances that do not lawfully permit the killing. This killing may occur through an act or omission, and causation must be shown – that is, it must be proven that the death was caused directly or indirectly by the accused, which is a question of fact for juries to decide.
To satisfy the elements of the offence of murder, it is also necessary for the accused to have had intent to kill the victim or cause them grievous bodily harm. If this intent cannot be proven, then the accused might instead be liable for some form of manslaughter, defined in Queensland’s Criminal Code as the killing of another ‘under such circumstances as not to constitute murder’.
Manslaughter can be the result of an unlawful and dangerous act, carrying with it a risk of serious injury, or it can likewise be the result of criminal negligence. Either way, manslaughter presents a jury with a lower bar to clear, because – unlike murder – it is not necessary to prove that the accused actually intended to kill or cause grievous bodily harm to the victim.
The element of causation is all-important: it is for the prosecution to prove beyond a reasonable doubt that the victim’s death was caused by the actions of the accused. Courts will apply the sine non qua test of factual causation and ask if the death would have occurred ‘but for’ the defendant’s actions. They will ask if the victim’s death was a ‘natural consequence’ of the defendant’s conduct, or if this conduct was a ‘substantial cause’ of the death.
There is no consensus as to which test should be applied, and courts will often refer to them interchangeably when trying to establish the connection between conduct and result.
On the facts and arguments from the Gable Tostee trial, arguably the most important test used was that of ‘factual causation’, as applied in the notorious case of Royall v The Queen.
In November 1986, Kelly Louise Healey plunged to her death from the window of her sixth-floor apartment after a violent altercation with her former boyfriend Kym William Royall. There was evidence of a struggle in the apartment’s bathroom, including hair, blood splatters, a chipped ashtray, and gouge marks in the wall, suggesting he had swung said ashtray at her during the fight. One theory was that Royall pushed Healey out of the window; Royall himself maintained that she jumped of her own volition, in an act of suicide.
The Crown took the position that Healey jumped out the window, but argued that, while Royall did not physically push his ex-girlfriend out, 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.
The Crown argued that a ‘reasonable person’ in Royall’s position would have foreseen the results eventuating from his conduct, and a NSW jury agreed, finding him guilty of murder. The verdict was appealed to the High Court of Australia, who upheld it, and in doing so, shaped the way Australian courts approach the concept of foreseeability.
In closing statements to the jury in the Gable Tostee case, the Crown argued that Wright felt her only “reasonable and rational” option in the circumstances was to climb off Tostee’s balcony, meaning that he “as good as pushed her” over the edge. The defence, however, argued that Wright’s response to the situation was disproportionate, and that the decision to climb over the balcony to her death was hers alone.
In the eyes of the law, there is a limit to what the ‘reasonable person’ can foresee. A victim’s reaction to a particular event can be so extreme and irrational that it effectively breaks the chain of causation, and the accused will no longer be held responsible for their death. Justice Brennan articulated as much in his ruling in the case of Royall, saying that if the final steps taken by a victim are not ‘reasonable or proportionate’, the chain is broken, and the death cannot be treated as a result of the accused’s conduct.
In his own ruling in the case of Royall v The Queen, Justice McHugh said on this same point:
An accused should not be held to be guilty unless his or her conduct induced the victim to take action which was either intended by the accused or was of a type which a reasonable person could have foreseen as a consequence of the accused’s conduct … any irrational or unreasonable conduct of the victim will be a variable factor to be weighed according to all the circumstances of the case.
In recounting Wright’s final moments, Crown prosecutor Glen Cash QC said that she was in a state of “terror bordering on hysteria” as she was forced onto Tostee’s balcony. Cash conceded that Wright “probably” unlawfully assaulted Tostee in the minutes before her death, throwing ornamental rocks at him and hitting him with a part of a telescope, but that his subsequent use of force – restraining her, choking and possibly strangling her, and forcing her onto his balcony – was unreasonable.
In his closing arguments, Cash said that Wright was faced with two possibilities in the final moments of her life:
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.
In his own closing remarks, defence barrister Holt maintained that Tostee’s decision to put Wright on his balcony was “an act of de-escalation”, and that doing so was his legal entitlement to defend himself from her attacks.
Gable Tostee was lawfully permitted to restrain Ms Wright because she attacked him with rocks … he was acting to remove a disorderly person from his property and the law says you can do that. Locking her on the balcony, shutting and locking the door was an act of de-escalation … to intervene, an act that created safety, in essence, for both of them.
His remarks hit on the issue of reasonable foreseeability, and he argued, in essence, that Wright’s death could not have been foreseeable to Tostee, as the action she took was too extreme. He said:
This was a climb that couldn’t work unless you were Spider-Man … Her decision to climb over a 14th floor balcony was not a proportionate, reasonable or rational response to the situation she was in … That sequence of events is a desperate tragedy but it is not murder and it is not manslaughter. Just because somebody is dead does not in itself mean someone is criminally responsible for that death.
Legally speaking, there is not a lot else that can be done now that the jury has reached its verdict, and Tostee is a free man. Queensland’s double jeopardy laws mean that he cannot be tried again, and Attorney-General Yvette D’ath cannot appeal his acquittal, although she may appeal any point of law raised in the trial, which could have implications for murder cases in the future.
This incident will surely haunt the Tostee and Wright families for the rest of their lives, but in an address to the media outside the court, Gable Tostee’s lawyer Nick Dore said:
He’s relieved this matter is now behind him and he’s looking forward to moving on with his life. He thanks all those people who have supported him through this and realises just how tragic this has been for many people. At this stage, he’s looking forward to putting it behind him and considering his future from here.
Image: Supplied.
