Crown v Accused

3 In chronological order, the actions said to constitute the incriminating conduct are as follows:

(i) After killing the deceased the accused moved her body to the basement area of the house to conceal it in a storage room;

(ii) After concealing the body in the basement, the accused used the deceased's mobile telephone to take several photographs of the body 'in situ';

(iii) After taking photographs of the deceased's body, the accused took the deceased's mobile telephone from the house;[2]

(iv) The accused fled the crime scene;

(v) After leaving the deceased's house, the accused deliberately drove his car directly towards the vehicle driven by Nathan Kirley[3] causing the two vehicles to collide in an attempt to self-harm;

(vi) Following the collision, the accused was taken to the Royal Melbourne Hospital for assessment and treatment if necessary. At 1.45 pm, while at the hospital, the accused grabbed a pair of scissors from a medical trolley and attempted to self-harm with the scissors by holding them to his own throat.

• Evidence of the actions described in (ii) and (iii) - the taking and retention of the photos of the deceased - may be relied upon as incriminating conduct;
• Evidence of the actions described in (i), (iv), (v) and (vi) may not be relied upon as incriminating conduct because, in my view, those actions are "intractably neutral";
• Evidence of (i) and (iv) may be adduced as part of the narrative of relevant events, that is, for context;
• Evidence of (v) and (vi) is not necessary for context, although the prosecution may lead evidence that the accused was involved in a car accident to explain how investigators came into possession of the deceased's phone with the photographs of the deceased on it. To confine the evidence about the car accident, and avoid the risk of the jury engaging in impermissible reasoning, the parties should settle a statement of agreed facts pursuant to s 191 of the Evidence Act 2008.

5 The original indictment, filed 13 July 2021, consisted of 3 charges - murder and two charges of reckless conduct endangering life. The latter charges related to the head on collision referred to in (v) above.

6 On 13 April 2022, the prosecution filed over a fresh indictment containing only one charge - murder.

7 The revised summary of the prosecution opening (dated 13 April 2022) says this, relevantly:

1. The accused is charged with murdering Elaine Pandilovski on 14 July 2020.

...

1. The accused and deceased went to high school together and were childhood sweethearts. They went on to get engaged in 1999 and married on 2 June 2002.

...

1. In 2005 they bought a family home at 11 Hawkes Drive, Mill Park.

...

1. On 11 February 2008, their only child, a son named Thomas, was born.

...

1. By 2019, the accused had moved out and was living at 54 Longwood Drive, Epping.

...

1. While the accused was in Sydney, in January 2019, the deceased obtained from the Heidelberg Magistrates' Court an intervention order precluding the accused from committing family violence on the deceased or approaching her or going to or remaining within 200 m of her home.

2. In the application for the intervention order the deceased claimed that the accused was regularly verbally and emotionally abusive towards her including in front of Thomas. She stated that this infrequently escalated to physical assaults and that he threatened her with fighting for custody of Thomas and to leave her in the street. She said that: a. On 11 November 2018, after she had spilt some milk the accused told her that he would choke her; and b. On 12 November 2018, the accused headbutted her and caused her to stagger away from him.

...

1. In January 2020 the intervention order lapsed and no further order was sought.

2. The deceased told [her mother, Kathrina] DAFOPOULOS that while the order had lapsed she wasn't going to get it extended because the accused was '... doing counselling and had appeared calmer, friendlier and more affectionate'. The accused sought reconciliation but the deceased refused him.

3. A witness Mary BOLDISTON worked with the accused for several years. On 8 July 2020, she had a conversation on the telephone with the accused who said ...of his marriage 'It's not good'. They went on to discuss family lawyers and the accused said he'd separated from his wife and that there wasn't any way that they could reunite. BOLDISTON provided contact details for family lawyers to the accused. The accused kept mentioning throughout the conversation that '... this breakup was going to ruin him financially'.

...

1. On 13 July 2020, Thomas spent the night with his grandmother, DAFOPOULOS.

2. On the morning of 14 July 2020, the deceased was at her home by herself.

...

1. ...[N]eighbours of the deceased [have] supplied police with CCTV footage from their homes. The footage shows the accused's vehicle outside the deceased's house on 14 July 2020.

2. At about 7.45 am the accused is captured on CCTV footage from a neighbour's house arriving at the deceased's home. He parked his car, a silver 2015 Hyundai Tuscon registered number 1JB7JJ (the Hyundai), on the roadway and remained there for a few minutes before moving it and parking it in the driveway of 11 Hawkes Drive - blocking the footpath.

3. The accused is captured getting out the Hyundai and is at that time wearing a grey long-sleeved jumper and a red baseball cap and dark trousers. He can be seen opening a rubbish bin that is on the nature strip directly outside the deceased's home and looking inside the bin before he goes to the front gate and is lost from sight.

4. At 9.25 am the accused's [sic] leaves the deceased's house and gets into his Hyundai and drives away. At this time, he is not wearing the red baseball cap and has removed the grey long sleeved jacket. He is still wearing the dark trousers.

5. The deceased was due at work at 8.45 am that day. A witness, Jo-Anne CREED, had a scheduled appointment with the deceased at 9.00 am. By 9.05, CREED was becoming concerned and rang the deceased but received no answer. She sent an SMS at 9.23 am 'Is everything ok?'. At 10.30 am she rang again and left a voicemail message asking for the deceased to return her call. CREED checked the office records and found the accused's number listed as an emergency contact. She rang that number and got no answer from the accused. She then found DAFOPOULOS' (the deceased's mother) number and rang her.

6. At 2.30 pm, CREED and another colleague attended at the deceased's home and knocked and got no answer.

7. At about 3.10 pm, DAFOUPOULOS [sic] arrived at the house and used a spare key to enter. The deceased did not appear to be present. CREED returned to her workplace.

8. DAFOPOULOS entered and searched the house. She noticed that the deceased's handbag and sunglasses were on the bed. She saw breakfast dishes in the sink and knew that this was out of character. She did the dishes and checked the house but could not find the deceased. She left and took Thomas back to her home.

9. Constable Liam RICKARD is a member of the Victoria Police Force. At about 9 pm on 14 July 2020, RICKARD and another police officer Matthew TREWERN attended at 11 Hawkes Drive, and met with members of the deceased's family. RICKARD and TREWERN conducted a thorough search of the deceased's house and located her body hidden in a storage room off the basement. RICKARD did not enter the room or touch the deceased. He immediately set up a secure crime scene and arranged for specialist detectives and crime scene examiners to attend.

...

1. An autopsy was conducted by Professor Noel WOODFORD (pathologist) [on 15 July 2020]. He concluded that the cause of death was 'compression of the neck'.[4] She had suffered the following injuries:

   1. Bilateral superior thyroid cornu fractures;

   2. Bruising in the left paralaryngeal soft tissues and within the superior aspect of the right sternomastoid muscle;

   3. Facial, orbital and laryngeal mucosal petechiae;

   4. Lymphocytic thyroiditis; and

   5. Minimally granular renal cortices.

...

1. After leaving the deceased's home in his Hyundai, the accused drove along the Western Ring Road at a fast speed.

2. At 10.00 am on 14 July 2020, the accused's Hyundai was captured on a traffic camera travelling at 110 kmh in a 100 kmh zone heading south-west along the Western Ring Road, Ardeer (28 km from 11 Hawkes Drive).

3. At about 10.27 am on 14 July 2020, Nathan KIRLEY was driving his work colleague Supathit NUTHONG home from a building site. KIRLEY was driving his 2005 Ford BA Falcon ute registered number TOP377. As he drove South along Davis Road Mt Cottrell at a speed between 70 and 80 kmh in an 80 kmh zone he saw the accused's vehicle travelling in the opposite direction.

4. As the two vehicles got closer the accused's vehicle veered towards KIRLEY's car. KIRLEY moved to his left to avoid a collision but the accused's vehicle was still heading towards KIRLEY's vehicle and appeared to turn directly into KIRLEY's direction.

5. Despite KIRLEY's efforts to steer further to his left to avoid a collision the two vehicles collided at high speed. KIRLEY's vehicle was severely damaged. KIRLEY was injured with cuts to his face and ear as well as bruises to his left foot, right hip and muscle pain. NUTHONG received a sore knee from the impact.

6. Supathit NUGHONG [sic] was the passenger in KIRLEY's vehicle. NUTHONG couldn't walk properly when he got out of KIRLEY's vehicle because his knee was injured. He half crawled over to KIRLEY to see if he was OK before approaching the other driver (the accused). NUTHONG saw that the accused was just sitting motionless in his car. He was staring straight ahead and didn't answer when NUTHONG spoke to him.

...

1. Senior Constable DOWNEY attended at the collision scene outside 635 Davis Road Mt Cottrell and spoke to KIRLEY and NUTHONG and tried to speak to the accused who was non-responsive. As the accused was being treated by paramedics DOWNEY seized property from the accused including three mobile telephones.

2. The collision between the accused's Hyundai and the Ford was investigated by Victoria Police Accident Reconstruction expert Dr. Jenelle HARDIMAN who concluded that, '... the Hyundai wagon was travelling north on Davis Road, Mount Cottrell, towards the Ford tray travelling south. As the two vehicles advanced, the driver of the Hyundai wagon depressed the accelerator pedal to 99% and steered right onto the incorrect side of the road and into the path of the Ford tray. When the driver of the Hyundai steered right, the two vehicles were 26-57 metres from each other. At impact, the Hyundai wagon was travelling between 115 kmh and 121 kmh and the Ford tray was travelling between 76 kmh and 83 kmh.'

...

1. The accused's Hyundai was examined by an expert mechanical investigator from the Victoria Police Collision Reconstruction Mechanical Investigation Unit, Senior Constable Brett GARDNER, who ascertained that there were no mechanical faults or failures with the vehicle which would have caused or contributed to the collision.

...

1. Following the collision, the accused was taken to the Royal Melbourne Hospital for assessment and treatment if necessary. At 1.45 pm, while at the hospital, the accused grabbed a pair of scissors from a medical trolley and attempted to self-harm with the scissors by holding them to his own throat.

8 I note that on the evening of 15 July 2020, the accused was interviewed by homicide detectives but answered no comment to most questions (Depositions 460 - 476).

9 The Defence Response, dated 10 February 2022, included the following information:

1. The accused will plead not guilty to the charge of murder.
2. The accused admits that he attended at 11 Hawkes Drive Mill Park on 14 July 2020, arriving at 7.45 am, and leaving at 9.25 am.
3. The accused admits that whilst he was at 11 Hawkes Drive Mill Park an incident has occurred which resulted in the death of the deceased.
4. Whilst the accused does not dispute that he was involved in the incident which resulted in the loss of life, he denies that he had an intention to cause death or really serious injury to the deceased.

1. The accused admits that he was driving his motor vehicle when it collided with the Ford BA Falcon Ute on Davis Road Mt Cottrell.
2. The accused does not admit that the collision was the result of a conscious deliberate act.
3. The accused denies that at the time of the collision he gave any consideration to the consequences of his actions.[5]

10 The written defence response did not indicate that the accused accepted that he was guilty of manslaughter. In oral discussion, however, the accused's counsel said this:

"...our client will plead guilty to manslaughter as in not only is he indicating that, but at any trial on arraignment there would be an indication of a plea of guilty to the alternative charge of manslaughter."[6]

11 The following provisions of the Jury Directions Act 2015 govern the admissibility of alleged incriminating conduct.

(1) The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless -

(a) the prosecution has given notice in accordance with section 19; and

(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.

...

(2) Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.

1. Mandatory direction on use of evidence of incriminating conduct

(1) If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that -

(a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that -

(i) the conduct occurred; and

(ii) the only reasonable explanation of the conduct is that the accused held that belief; and

(b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.

12 The accused's written submissions included the following.

1. [The impugned evidence] does not advance the question of whether the accused had a murderous intent at the time of the killing. This is because the post offence conduct equally, if not more, supports the conclusion that the accused unlawfully but unintentionally killed his wife (i.e. manslaughter).
2. To adopt the language used in DPP v Ristevski (Ruling No 1) [2019] VSC 165 at paragraph 16,[7] the accused submits that his post-offence conduct, if proved, could not be said to be out of proportion to the level of culpability involved in a manslaughter by an unlawful and dangerous act.

...

1. It is submitted that this case can be distinguished from R v Baden-Clay (2016) 258 CLR 308 on the basis that there was clear motive in that case, as well as a denial of any involvement in the death of the victim.

2. Likewise this case can be distinguished from Mocenigo v The Queen [2013] VSCA 231 where the principle issue to be determined by the jury was first whether the accused was involved in the death of the victim.

3. The post offence conduct alleged in DPP v Zhuang [2014] VSC 276 and Butler v The Queen [2011] VSCA 417 is also significantly different insofar as each accused went to considerably different lengths to hide either their involvement in the death, or hide the death entirely.

4. That could never be said in the present case, where the body of the deceased was hidden within the home, where it would obviously be found, and where the taking of photographs and removal of the phone confirmed the involvement of the accused, rather than concealed his involvement.

5. The obvious consequence of this evidence, is that [the] jury would conclude that it was the accused who caused the death of the deceased. However it bears repeating that there is no dispute in this trial that it was the accused [who] caused the death of his wife.

6. As a consequence, the evidence set out in the Notice of Incriminating Conduct is rendered at best for the prosecution intractably neutral, or at worst it supports the inference that the accused unlawfully but unintentionally killed his wife.

7. That is to say, whilst it might be an implied admission, it is an implied admission to being the person who caused the death of the deceased, not an implied admission to murder.

8. It is submitted that the decision of the High Court in R v Baden-Clay (2016) 258 CLR 308 is not authority for the fact that where there is a dispute between the prosecution and the accused as to whether the post offence conduct proves a murderous intent or some other lesser culpable act, that the evidence must be left for the jury to decide.

9. It is clear from the ruling by Beale J in DPP v Ristevski (Ruling No 1) [2019] VSC 165[8] that post Baden-Clay there are still cases where it would be inappropriate to leave the evidence for the jury to consider.

47. It is submitted that this is one such case.

13 In oral submissions, the accused emphasised that the alleged incriminating conduct was proportionate to manslaughter by an unlawful and dangerous act. The deceased was his wife of many years (they had been childhood sweethearts) and was the mother of his young son. It was a reasonable possibility that his post offence conduct was referrable to his awareness of the gravity of having killed her, albeit unintentionally.

14 With regard to the taking of the photographs of the deceased after depositing her body in the storage room, and the taking of the deceased's phone with the photographs on it, the accused's counsel said this in oral submissions:

In relation to the taking of the photographs of the deceased, we say that one might well say that's a strange thing to do. It's very much something that perhaps has an unpleasant feeling to it, but we say that there is nothing about the taking of the photos that somehow a jury could find that is consistent with a murderous intent rather than an unlawful and dangerous act. In relation to the taking of the phone, again we don't necessarily understand exactly how the Crown put that as being consistent with murder rather than manslaughter. Again, what we say is that this is not some grand plan that the taking of her phone is going to hide what he's done or hide the killing. He takes her phone - perhaps I'll wait for the argument from Mr Hutton on that but we really don't see how the taking of the deceased's phone could reveal anything in relation to his intent at the time the that killing took place.[9]

15 In oral submissions, the accused submitted that while it was open to the court to find that he deliberately drove into oncoming traffic intending to kill himself, that conduct was consistent with a consciousness of guilt of an unlawful killing without murderous intent.

16 The accused submitted that one could not use other pieces of evidence such as the evidence of animus and the evidence of the mechanism of death (neck compression) to transform the neutral post offence conduct into an implied admission of murder. That would be "bootstraps" reasoning. Unlike the circumstances of R v Baden Clay, the other evidentiary pieces of the puzzle were not intertwined with the post offence conduct. In Baden Clay, the incriminating conduct - alleged lies about the accused's extra marital relationship - were intertwined with the motive to kill (the pursuit of the extra marital relationship).

17 The prosecution emphasised that the issue is whether the post offence conduct is capable of being viewed by a reasonable jury as incriminating conduct, not whether I am satisfied that the only reasonable explanation for the conduct is that the accused believed himself guilty of an intentional killing.

18 With regard to the movement and concealment of the body in the storage room, the prosecution's written submissions, which predated the accused's indication that he would plead guilty to manslaughter in front of the jury, stated:

While the steps taken were of a moderate level (carrying the body downstairs and into a storeroom beneath the deceased's house) they are not trivial.

Acceptance by the jury that the accused hid the body of his ex-wife could rationally affect (directly or indirectly) its assessment of the probability of the existence of a fact in issue - namely - whether the accused killed her intentionally...[10]

19 With regard to the taking of the photographs of the deceased, the prosecution's written submissions stated:

Taking photographs of the body is inconsistent with being involved in an incident in which there was an accidental death...[11]

20 In oral submissions, the prosecution also said this:

"...the taking of the photo on the deceased's phone, after moving the body is... a trophy of what [he's] done, some perverse pleasure could be taken from that."[12]

21 With regard to the taking of the deceased's mobile phone, the prosecution's written submissions stated:

Stealing the deceased's mobile telephone is inconsistent with being involved in an incident in which there was an accidental death...[13]

22 With regard to the accused's flight from the crime scene, the prosecution submitted it was inconsistent with a manslaughter.

23 With regard to the head on collision, the prosecution's written submissions stated:

The evidence is that after killing the deceased the accused drove some distance from her house before deliberately steering his vehicle at full speed into a head-on collision... The prosecution case is that this was an attempt at self-harm or suicide. Self-harm or suicide is commonly a response by a male after killing his female domestic partner. (eg: murder-suicides) ...Acceptance by the jury that the accused deliberately crashed his vehicle into an oncoming vehicle could rationally affect (directly or indirectly) its assessment of the probability of the existence of a fact in issue - namely - whether the accused killed her intentionally... [14]

"...to kill yourself, or try to kill yourself in those circumstances is ...out of proportion with an acknowledgment that you've simply accidentally killed your partner in some sort of confrontation that you've had. This ...is the most serious action one could take to distance yourself, in the metaphysical sense, from the crime. It's also coupled with the flight itself and the other matters that are in the notice, being the taking of the photograph and the stealing of the phone."[15]

25 With regard to the accused seizing scissors at the Royal Melbourne Hospital and holding them to his throat, the prosecution's written submissions stated:

Deliberate self-harm is inconsistent with being involved in an incident in which there was an accidental death...[16]

26 The prosecution submitted that the alleged incriminating conduct taken as a whole was disproportionate to an accidental killing. The prosecution submitted that the accused could not have engaged in more extreme post offence conduct than trying to take his own life.

27 I accept that the prosecution does not need to persuade me that the only reasonable explanation for the alleged incriminating conduct was consciousness of guilt of murder. If it is open to a reasonable jury to come to that conclusion, the evidence passes the test of admissibility, or, in the words of s 20 of the Jury Directions Act 2015, the evidence is capable of being used as incriminating conduct.

28 On the basis of the evidence as a whole, I am satisfied that some of the conduct relied on by the prosecution is reasonably capable of being viewed by the jury as incriminating conduct. The relevant conduct is the accused taking photographs of his dead wife and taking the phone which had the photographs on it. A jury could reasonably find that this conduct is consistent with the accused having murdered his wife but inconsistent with the accused having unintentionally killed her. In my view the taking of the photographs of his dead wife a short time after he had killed her, and the retention of the phone with the photographs on it, supports an inference that he derived some satisfaction from having brought about her death. It would be open to the jury to find that the photos were, as the prosecutor described them, trophy photos. Although I initially thought the prosecution's contention was "pop psychology," I have ultimately come to the view that it is an inference that would be open to a reasonable jury. If the killing was unintentional, why make such a record of his gruesome handiwork? If it was manslaughter, one would expect the accused to have been repulsed by the images which show the deceased's exposed and injured neck. In written submissions and discussion, no plausible explanation for the taking of the photographs consistent with innocence of murder was advanced by the accused. Whilst a person who has unintentionally killed their long-time wife and the mother of their child might be in a very disturbed state emotionally, and act strangely as a consequence, it strikes me as a remote possibility that they would make and retain a photographic record of the dumped body of the deceased.

29 As regards the head on collision, it would certainly be open to the jury to find that the veering onto the wrong side of the road into the path of an oncoming car was an attempted suicide. Defence counsel conceded as much. It was my initial view that such extreme behaviour was proportionate to a murder but disproportionate to a manslaughter. But on reflection, I think the unintentional killing of one's long-time wife and the mother of one's son could lead the accused to want to end his own life rather than live with the consequences of his actions, including the prospect of a substantial prison sentence. The fact that the accused may have been estranged from his wife at the time of the killing, and may even have come to hate her, does not seem to me to be inconsistent with the accused deciding he would be better off dead after an unintentional but unlawful killing. In my ruling in Ristevski I said this:

"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."[17]

30 In the present case, it seems to me that the same notion underpins the prosecution's submissions and it is a notion which, in my view, is misconceived.

31 I recognise that the post offence conduct must be viewed in the context of the evidence as a whole, not in isolation. But to get to a point where one could say it is open to a jury to conclude that the only reasonable explanation for the accused's attempted suicide is that he knew he had killed his wife with murderous intention would involve bootstraps or circular reasoning. One would have to rely on the evidence that is probative of a killing with murderous intention - the evidence of animus, the evidence of the mechanism of death, the taking and retention of the photographs of the deceased's body dumped in the storage room - to conclude that the accused attempted suicide because he believed he was guilty of murder.

[2] In discussion, the prosecution disavowed reliance on the accused having also taken the deceased's iPad, although it had been included in the Notice of Incriminating Conduct (Transcript, 5 September 2022, 78).

[3] Mr Kirley had a passenger whose name was Supathit Nuthong.

[4] Dr Woodford said this in his report: "[3] The mechanism of application of compressive force to the neck is not able to be determined with certainty. No implement characterised as a ligature was identified by Police at the scene, however focal linearity to the pattern of injuries on the neck, raises the possibility of application of a ligature at some stage. In addition, areas of relatively discrete abrasion are also suggestive of the manual application of compressive force. As such, the use of a hand, ligature or other similar object alone or in combination is considered possible...[5] Although the length of time required for the application of force to produce the findings observed in this case is not able to be determined with certainty, the presence of prominent densely distributed petechiae suggests a period of tens of seconds and potentially longer."

[5] It will be appreciated that [6] - [8] of the Defence Response concern the two charges of reckless conduct endangering life which were included in the original indictment but are not included in the new indictment.

[7] I wrote this at [16] of Ristevski: "The accused submitted that his post-offence conduct, if proved, could not be said to be out of proportion to the level of culpability involved in a manslaughter by an unlawful and dangerous act."

[8] In written submissions, the accused relied on my ruling in Ristevski that the post offence conduct by the accused in that case was inadmissible as incriminating conduct. In oral discussion, however, the accused's counsel conceded that Ristevski was readily distinguishable. Firstly, Ristevski's conduct in hiding the body of his wife in the woods, whilst reprehensible, was not extreme, having regard to the spectrum of post offence conduct: he did not dismember her. Secondly, the evidence about his relationship with his wife was positive, increasing the possibility of an unintended killing; there was nothing to suggest that at the time of the killing Ristevski had a long standing and deep-seated animosity towards his wife, as is the case here. Thirdly, there was no evidence as to the mechanism of death in Ristevksi's case . One could not discount the possibility that Ristevski may have momentarily lost his self-control and assaulted his wife (without murderous intention) and that she had fallen and fatally struck her head.