A rugby league player who pushed a New Zealand musician to his death through the second storey window of a Perth pub has been found guilty of manslaughter in a judge-alone retrial.
Stefan Pahia Schmidt was initially convicted in 2012 and given a life sentence with a minimum jail term of 14 years for murdering Andy Marshall by pushing him through the second storey window of Cottesloe's Ocean Beach Hotel in May 2011.
But three West Australian Court Of Appeal judges unanimously determined in August last year that Schmidt would face a retrial, with Justice Michael Buss saying he could have been found guilty of manslaughter instead of murder.
At the opening of the judge-alone retrial in WA's Supreme Court 10 days ago, Schmidt offered to plead guilty to the lesser charge, admitting he had pushed Mr Marshall but didn't mean to kill him.
But prosecutors rejected the plea deal.
On Thursday, Justice John Roderick McKechnie acquitted Schmidt of murder but found him guilty of manslaughter.
In his judgment, Justice McKechnie said Schmidt had admitted to being guilty of manslaughter and the evidence abundantly established that fact.
"I cannot exclude as a reasonable possibility that this was an angry act done by the accused without his adverting to the possible consequences," he said.
"Of course he knew the likely consequences of pushing a person through a first floor window."
Justice McKechnie said knowledge was an important factor to consider on the question of intention.
He noted that Schmidt's actions of walking away from the victim were "undoubtedly callous".
"However, I cannot discount the accused's explanation that he was worried about the response of hotel patrons towards him," he said.
Early in the retrial, Schmidt had said he walked away from a crowd gathering around Mr Marshall on the street below, saying he feared they would turn on him in a mob attack.
Justice McKechnie also noted Schmidt's strength and build, saying it did not make much difference if he used one or both hands to push the victim.
"The use of one or two hands is not in any way dispositive of the accused's intention," he said.
The push happened out of camera view, but there were three witnesses.
Justice McKechnie will hear submissions before sentencing Schmidt.
In his victim impact statement, the deceased's father said his life had changed forever and words like "traumatised" and "heartbreaking" failed to describe his feelings.
"It is beyond words and beyond pain," he told the court.
Mr Marshall said the nightmare was made worse knowing that his son died in a violent and vicious assault.
"What could possess someone to do this?" he said.
Mr Marshall said he could not ask his son what had happened because he was dead.
"I just wanted to hug him and be with him."
The grieving father said when he heard the news, he thought the victim had been mistakenly identified, but his hopes were crushed when a detective confirmed he had his son's phone.
Mr Marshall said it was heartbreaking for him to hear his wife collapse when he called to inform her of their son's death.
But he said he was richer for having the musician as a son.
"The world is poorer for having lost such a beautiful person," Mr Marshall said.
"I will carry his loss for the remainder of my days."
The victim's mother also read out her statement to the court, holding back tears as she said the loss was overwhelming.
"My heart is broken," she said.
http://au.news.yahoo.com/a/-/latest/23947066/nz-mans-killer-guilty-of-manslaughter/
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