court document link to the decision
DPP v Ristevski (Ruling No 1) [2019] VSC 165 (15 March 2019)
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17 The accused highlighted:
(a) the lack of any evidence of motive;
(b) the lack of any history of violence from the accused towards his wife;
(c) the close relationship between the accused and his daughter, Sarah Ristevski;
(d) the evidence regarding the finances of the Ristevskis, which in the accused’s submission could not sensibly lead to an inference of murderous intent rather than a lesser intent. The accused submitted that the financial situation of the Ristevskis was likely to deteriorate if Karen Ristevski was killed given that she was in effect the “heartbeat” of the “Bella Bleu” clothing business which they operated. Her importance to that business was a motive for the accused not to kill her;
(e) the absence of any evidence regarding a physical confrontation between the accused and his wife, including no witnesses hearing any “yelling and screaming” on the morning of 29 June 2016; and
(f) the general lack of any evidence going to premeditation in this case, supporting the inference that the accused’s conduct was spontaneous and that his post-offence conduct was consistent with a panicked reaction. For example, the accused did not switch his phone off until 11:09am on 29 June 2016, 26 minutes after he had been driving his wife’s car and he did not switch off his wife’s phone until 11:40am. Further, there was photographic evidence of a couple of shovels left in the garage, which did not appear to have been used in any effort to bury Karen Ristevski.
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33 In the present case, the prosecution conceded that there was no evidence of a motive to kill or cause really serious injury. The prosecution proposed to adduce expert evidence that the accused and Karen Ristevski were in serious financial trouble as a result of their failing clothing business, ‘Bella Bleu’, but that evidence was only to be adduced for context, as explaining how an argument between the accused and Karen Ristevski on the morning of 29 June 2016 regarding the state of the business might have escalated.
34 The evidence to be adduced by the prosecution in this case would show that the accused and Karen Ristevski had been married for over 20 years and that there was no history of physical violence on the accused’s part towards the deceased (or anyone else), apart from the accused’s own admission of pushing his wife away on occasions if she “got in his face” in the course of an argument. The evidence to be adduced by the prosecution would also show that while the financial stresses on the accused and the deceased may have been increasing, they had subsisted for some time. Sarah Ristevski, the accused’s adult daughter, lived at home during this period and whilst she apparently observed arguments between her parents about financial matters, those arguments never escalated to a point where the accused even threatened physical harm to Karen Ristevski. Nor was there any evidence from any other source of the accused threatening to harm Karen Ristevski.
35 Against that backdrop, I turn to the parties ‘submissions. In the course of discussion, the prosecution submitted that the accused’s post-offence conduct was inconsistent with him having unintentionally killed Karen Ristevski. The prosecution submitted that one would have expected him to raise the alarm if he had killed her unintentionally, not bundle her body into the boot, drive to a remote area, conceal the body and lie about the circumstances of his wife’s disappearance to family, friends and investigators.
36 It seems to me that underpinning the prosecution’s argument was the notion that if the accused had unlawfully but unintentionally killed his wife he was not likely to have viewed it as grave wrongdoing which might be attended by grave consequences for him. The accused’s counsel submitted, on the other hand, that the accused could well have feared that the unlawful killing of his wife would attract a substantial prison term and cause irreparable damage to his relationship with his daughter, with whom he was close. I considered there to be much force in those submissions. They made it difficult to see how a jury could properly find that the only reasonable explanation for the post-offence conduct was that the accused was conscious of having killed his wife with murderous intent."