DPP v Ristevski

1 On 13 March 2019, I ruled that the prosecution could not rely on the accused's post-offence conduct to prove murderous intent. I gave brief oral reasons at the time and said I would provide written reasons later. I do so now.

2 In the prosecution's amended Notice of Incriminating Conduct dated 28 February 2019 (the 'Notice'),[1] a copy of which is attached to these reasons, the prosecution relied on the evidence of the accused's post-offence conduct to prove not only that the accused killed Karen Ristevski unlawfully, but that he did so with murderous intent.

3 The post-offence conduct was categorised in the Notice as follows:

(a) acts by the accused in close proximity to Karen Ann Ristevski's death;

(b) inconsistent statements;

(c) omissions;

(d) lies by the accused during statements and accounts to police; and

(e) the accused's attitude towards the police investigation.

4 I do not propose to describe in detail the conduct which the prosecution relied on under the various categories. That task has already been performed in the Notice, which is attached. Suffice to say that the most significant conduct constituted the first category: the prosecution, relying on CCTV footage and mobile phone data, alleged that after killing Karen Ristevski at their home on the morning of 29 June 2016, the accused put her body in the boot of her black Mercedes and drove to the Macedon Regional Park where he concealed her body between two logs in a forest, where it was discovered approximately eight months later by some forest workers.

5 The accused did not dispute that that conduct and most of the other conduct referred to in the Notice could be used by the prosecution to prove that he killed his wife unlawfully. The accused, however, submitted that it was not open to the jury to infer from the alleged incriminating conduct that he killed her with the intention of causing death or really serious injury.

6 There was a preliminary issue, namely, whether my ruling should await the completion of evidence, which was the prosecution's position, whereas the accused wanted the admissibility of the post-offence conduct to prove murderous intent determined at the outset. Once it was conceded by the prosecution that it could not open its case to the jury without indicating that it relied solely on the alleged incriminating conduct to prove murderous intent[2], I determined that the only sensible course was to rule on the matter at the outset, especially as it was agreed that the evidence of the post-offence conduct was unlikely to change.

7 The relevant provisions of the Jury Directions Act 2015 (Vic) (the 'Act') were as follows:

(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.

Note

A trial judge may make a determination under paragraph (b) even where the evidence of conduct relates only to an alternative offence.

(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.

(2) In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.

1. Prohibited statements and suggestions in relation to accused who does not give evidence or call witness

The trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) must not say, or suggest in any way, to the jury that, because an accused did not give evidence or call a particular witness (as the case requires), the jury may -

(a) conclude that the accused is guilty from that fact; or

(b) use the failure of the accused to provide an explanation of facts, which must be within the knowledge of the accused, to more safely draw an adverse inference based on those facts which, if drawn, would prove the guilt of the accused; or

(c) draw an inference that the accused did not give evidence or call a witness (as the case requires) because that would not have assisted his or her case.

8 In written submissions, the accused submitted that the post-offence conduct was not capable of sustaining an inference that the accused acted with murderous intent.

9 The accused distinguished this case from R v Baden-Clay ('Baden-Clay')[3] on several bases. First, the High Court's adoption in Baden-Clay of the reasoning in Weissensteiner v The Queen[4] could not be applied in Victoria by virtue of s 42 of the Act.[5] Second, the lack of any evidence of motive, physical altercation, or any ascertainable cause of death in this case distinguished it from Baden-Clay, where extensive evidence was led regarding the motive of Baden-Clay in killing his wife due to his ongoing extra-marital affair, as well as evidence pointing to a likelihood of a physical confrontation between Baden-Clay and his wife. Third, as distinct from the circumstances in Baden-Clay, the prosecution could not reasonably exclude a death which did not involve sustained or determined conduct (due to the prosecution not being in a position to allege any particular conduct that caused Karen Ristevski's death). Fourth, in Baden-Clay, the hypotheses reasonably available as to the circumstances of the death had been narrowed by expert evidence and the evidence of Baden-Clay himself. By contrast, evidence at the committal proceeding in this case confirmed that no cause of death could be ascertained nor could any particular mechanism of death be excluded.[5] Fifth, unlike many of the authorities in which the admissibility of post-offence conduct has been considered, in this case there was no evidence of murderous intent other than the post-offence conduct.[6]

10 The accused contended that the evidence in this case could be divided into two categories: first, the evidence of the alleged disposal of Karen Ristevski's body on 29 June 2016; and second, the series of post-offence representations and omissions made by the accused over the following months. According to the accused, the first category permitted an inference to be drawn that the accused placed the deceased's body in her car, drove towards Macedon, turning off his phone and the deceased's phone on the way, and disposing of the body where it was found and covering the body with branches. The accused submitted that this showed no more than that the accused did not want to be held responsible for the death of his wife and the serious consequences that would flow: it was no more consistent with seeking to avoid apprehension for a killing with murderous intent than seeking to avoid apprehension for an unlawful and dangerous act killing. As regards the second category of evidence, it was submitted that the accused's assertions and omissions went no further than consistency with being involved in a killing and making the decision to seek to avoid responsibility for his actions.

11 The accused distinguished the case of Butler v The Queen ('Butler'),[7] where there was evidence that Butler dismembered and incinerated the victim's body, on the basis that the more extreme post-offence conduct in Butler supported an inference of murderous intent whereas the accused's post-offence conduct did not.

12 In oral submissions, the accused submitted that the relevant test was whether the Court was satisfied that "the jury could rationally conclude that the only reasonable inference to be drawn from [the post-offence] conduct is that contended by the prosecution".[8] The accused submitted that the decision of the High Court in Baden-Clay[9] did not alter this test.

13 According to the accused, no jury could rationally exclude manslaughter on the facts of this case. Regarding the use of the term "intractably neutral" in the authorities, the accused argued that this term should be considered carefully in cases such as the present case where the post-offence conduct is the only evidence relied on to prove murderous intent.

14 The accused submitted that, in light of the Act, it cannot be the law in Victoria that, in circumstances where the prosecution relies exclusively on post-offence conduct to prove murderous intent, that the failure of an accused to adduce evidence supportive of an alternative hypothesis somehow lends support to the prosecution case. Such reasoning would amount to a reversal of the onus of proof.

15 The accused relied on the case of R v Ciantar,[10]and the statement in that case that "[a]lthough the post-offence conduct may not be enough in itself to sustain an inference that the accused killed with the intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence when combined with other evidence will be sufficient".[11]

16 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.[12]

(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.

18 The accused submitted that taken together, the evidence of post-offence conduct was at least intractably neutral, or alternatively left open the possibility of an inference that this was a relatively spontaneous assault resulting in a killing from an unlawful and dangerous act, rather than being indicative of murderous intent.

19 In written submissions, the prosecution argued that Kaye JA's ruling in DPP v Zhuang[13] should carry great weight in this case, in that considerations of whether or not the accused's acts were inconsistent with murderous intent should be left to the jury to determine. The prosecution relied on the case of Mocenigo v The Queen,[14] where it was said by Priest JA that "putting unusual circumstances aside...there is no reason why evidence of consciousness of guilt may not be relied upon where more than one offence is open".[15]

20 The prosecution submitted that the most relevant authority was R v Baden-Clay and that many of the other authorities limiting the use of post-offence conduct would now be decided differently in light of that decision. The prosecution relied in particular on paragraphs 73 and 74 of Baden-Clay, in which the High Court refers to the Canadian Case of R v White,[16] stating:

In R v White, in the Supreme Court of Canada, Major J said:

"As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role".

In R v White, Major J went on to say that there may be cases where post-offence conduct, such as the accused's flight or concealment, is so out of proportion to the level of culpability involved in a lesser offence that it might be found by a jury to be more consistent with the more serious offence charged. There may be cases where an accused goes to such lengths to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder. There is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter. As Major J said: "The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute".[17]

21 The prosecution also made reference to the case of Lane v The Queen[18] regarding the lies of Lane being "sufficient to provide the evidentiary foundation for an inference that ... she acted with the intention of killing."[19]

22 The prosecution further submitted that the post-offence conduct of the accused in this case was of such an extreme nature, extent and duration that it was reasonably capable of giving rise to an inference that the accused acted with murderous intent. The speed of the alleged disposal of the body was argued to be very significant. Referring again to Baden-Clay, the prosecution relied on the High Court's statement that:

"It was open to the jury, in this case, to regard the lengths to which the respondent went to conceal his wife's body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed his wife".[20]

23 In oral submissions, the prosecution responded to the accused's submissions about the lack of any evidence regarding how Karen Ristevski died by stating that the post-offence conduct was capable of an "extreme interpretation [by the jury] that would exclude other hypotheses".[21] With regards to the dismemberment and incineration of the body in Butler, the prosecution submitted that the post-offence conduct there was "different", rather than "more extreme", and that the post-offence conduct in this case, when taken together, was not intractably neutral and the sequence of events was consistent with a killing with murderous intent.

24 The prosecution conceded that the financial evidence went no higher than supporting an inference that the financial difficulty faced by the accused and his wife was significant and may have fuelled an argument between them: it did not establish a motive.

25 The prosecution submitted that the fact there was no evidence of motive or physical confrontation should not take away from the force of the prosecution's argument on post-offence conduct. In response to the accused's oral submission that the accused had a "motive not to kill", the prosecution argued that this was a "long bow" to draw and that Baden-Clay did not stand for the proposition that there needs to be motive before post-offence conduct can be relied upon to prove murderous intent.

26 Further, in response to the accused's submissions that the accused's post-offence conduct, if proved, was consistent with him fearing estrangement from his daughter and a substantial prison term for manslaughter, the prosecution submitted that this should be a question for the jury. The prosecution also emphasised that I had to consider the evidence in its entirety, rather than any one piece of evidence, although the prosecution conceded that it is often the case that there is usually some other evidence (in addition to the post-offence conduct) that points in the direction of the necessary murderous intent.

27 The prosecution submitted that the act of concealing the body on its own bespoke murderous intent. This is because one would expect, as a matter of human experience, an accused to call for help or call an ambulance or "the authorities" in circumstances where an unlawful and dangerous act manslaughter had occurred.

28 With regards to s 42 of the Act, the prosecution submitted that this section was not intended to prevent the prosecution from running a murder trial in circumstances where it does not lead any other evidence than post-offence conduct on the issue of intent.

29 In response to the prosecution's oral submissions, the accused rejected the assertion that the necessary result of its submissions was that the prosecution could never run a case relying solely on post-offence conduct to prove murderous intent. Rather, the accused's submitted that the relevant analysis is whether the post-offence conduct is rationally capable of excluding hypotheses consistent with something less than murderous intent.

30 When considering whether conduct is so out of proportion to the level of culpability involved in a lesser offence, the accused submitted that it has to be borne in mind that manslaughter is a serious crime. It could not be said that one could expect an accused to call the authorities immediately after a manslaughter has occurred. Further, to suggest that a failure to do so supports an inference of murderous intent does not accord with human experience and is not in accordance with the manslaughter cases frequently dealt with by this Court. The speed with which Mr Ristevski is alleged to have acted in concealing his wife's body was intractably neutral.

31 In this case, the prosecution relied solely on the evidence of the accused's post-offence conduct to prove murderous intent. Before the prosecution could use the evidence for this purpose, it had to satisfy me,[22] on the basis of the evidence as a whole, that the post-offence conduct was capable of being viewed by the jury as evidence of incriminating conduct in that regard. In other words, I needed to be satisfied that the jury could (not would) reasonably view the post-offence conduct as an implied admission that he not only killed his wife, but that he did so intending to cause death or really serious injury.[23] Having regard to s 21 of the Act, a jury could not properly form that view unless the jury found that the only reasonable explanation for the post-offence conduct was that the accused was conscious of having killed Karen Ristevski with murderous intent.

32 Was it open to a jury to make such a finding? I wish to highlight two points at this stage of my analysis. First, s 21 of the Act refers to the "only reasonable explanation". It does not use the phrase "the most likely reasonable explanation". Second, the assessment as to whether post-offence conduct is capable of being viewed by the jury as incriminating conduct proving murderous intent must be considered "on the basis of the evidence as a whole". Often there is evidence in addition to the post-offence conduct which supports the inference that an accused killed with murderous intent. That was not the case here. As previously mentioned, the prosecution sought to establish murderous intent solely on the evidence of the post-offence conduct. As Butler indicates, it is possible for evidence of post-offence conduct by itself to be capable of proving murderous intent, but it is certainly more difficult.[24] It will be recalled that in Butler the evidence that the accused had dismembered and incinerated the deceased was critical to the Court of Appeal's finding that the post-offence conduct was capable of being viewed as incriminating conduct in relation to murderous intent.[25]

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.

37 This case has some similarities with Baden-Clay,[26] but it is the differences that are more striking. First, there was compelling evidence of a motive for Baden-Clay to kill his wife - a desire to be rid of her so he could be with his lover. Second, the post-offence conduct in that case included lies and other conduct directed at concealing his ongoing extra-marital affair. In other words, the post-offence conduct was intertwined with his motive to kill and thus it is easy to see how the High Court, viewing the post-offence conduct on the basis of the evidence as a whole, reached the conclusion that it did.

38 The aspect of Baden-Clay which caused me the most concern was the emphasis given by the High Court to the necessity for an evidential foundation for an alternative hypothesis of manslaughter by unlawful and dangerous act. But that emphasis had a context - there was evidence of a motive to kill and Baden-Clay himself effectively ruled out manslaughter by unlawful and dangerous act as a reasonable hypothesis by testifying that he had no involvement in his wife's death.

39 Accordingly, I ruled that whilst the evidence of post-offence conduct referred to in the Notice could be relied on as evidence that the accused killed his wife, it could not be relied on to prove that the accused did so with murderous intent.

ATTACHMENT - Amended Notice: Evidence of Incriminating Conduct

IN THE SUPREME COURT OF VICTORIA Court Ref: SCR 2018 0213

IN THE MATTER OF s19 (1) of the Jury Directions Act 2015

AMENDED NOTICE: EVIDENCE OF INCRIMINATING CONDUCT

__________________________________________________________________________________

Filed and served on behalf of: Director of Public Prosecutions

Solicitor for Public Prosecutions Telephone: (03) 9603 7448

__________________________________________________________________________________

1. Notice is hereby given pursuant to s 19(1) of the Jury Directions Act 2015 that the prosecution intends to adduce evidence of conduct that it proposes to rely on as evidence of incriminating conduct.
2. The conduct that the prosecution proposes to rely on as evidence of incriminating conduct is:

(i) Acts by the accused in close proximity to Karen Ann Ristevski's death;

(iv) Lies by the accused during statements and accounts to police;

(v) The accused's attitude towards the police investigation.

1. The prosecution relies on this conduct as helping prove the accused did commit the offence charged. The prosecution contends it can be inferred that the lies, omissions and inconsistent statements told by the accused proves his consciousness of guilt.
2. Evidence of the conduct is contained within the Depositions and Audio Visual exhibits as outlined below.

.............................................................................

INCRIMINATING CONDUCT - ACTS IN CLOSE PROXIMITY TO KAREN ANN RISTEVKI'S DEATH

(i) THAT the Accused disposed of Karen Ann Ristevski's body in a short timeframe after causing her death

Statement of Sarah RISTEVSKI dated 3 July 2017 (depositions pages 563 to 569).

Statement of Borce RISTEVKI dated 3 July 2016 (Exhibit 177, depositions page 2248)

Telecommunication evidence given by Oleg PRYPOTEN (depositions pages 907 to 984).

Statement of Bradley OLIVER dated 20 February 2017 (depositions pages 1174 to 1176)

Statement of Sean Ralph OLIVER dated 20 February 2017 (depositions pages 1183 to 1184).

Subject: shortly after causing Karen Ann RISTEVKI's death the accused disposed of her body at Macedon Regional Park, off Loch Road

On 29 June 2016 Sarah RISTEVSKI left the family home at 23 Oakley Drive, Avondale Heights, at approximately 8.30am.

The accused left the family home in Karen Ann RISTEVSKI's black Mercedes SYU 800 motor vehicle at approximately 10.43am. The body of Karen Ann RISTEVSKI was in the boot. He therefore caused her death between 8am and 10.43am before disposing of her body in a remote location in the Macedon Regional Park, off Loch Road. He placed her between two tree trunks and concealed her body to such an extent that she was no discovered for almost eight months.

INCRIMINATING CONDUCT - INCONSISTENT STATEMENTS & LIES

(i) THAT the Accused lied during various accounts and statements provided to police

Statement of Senior Constable Ahmet CAGRIER dated 25 August 2016 (depositions page 1007)

Statement of Senior Constable Ante Jakov SANDRIC dated 6 September 2016 (depositions page 874).

Subject: location of 'heated discussion' that occurred prior to deceased's disappearance

During the first report to police on 30 June 2016 the accused told Senior Constable Ahmet CAGRIER that the discussion regarding the sales of the deceased's clothing business occurred up stairs. The accused then stated he then went downstairs to the computer.

During his second attendance at Avondale Police Station, the accused told Senior Constable Ante Jakov SANDRIC that at approximately 9am on 29 June 2016 the accused and the deceased had an argument about their business, and that the deceased went upstairs to 'cool off' (depositions page 874).

Statement of Senior Constable Ahmet CAGRIER dated 25 August 2016 (depositions page 1008, paragraph 4)

During the first report to police on 30 June 2016, the accused told SC CAGRIER that the deceased had exited the house through the front door.

Statement of Senior Constable Ante Jakov SANDRIC dated 6 September 2016 (depositions page 875, paragraph 6)

During his second attendance at Avondale Heights Police Station, the accused stated to SC SANDRIC that the deceased had exited through the garage of the house.

Statement of Borce RISTEVSKI dated 3 July 2016 (Exhibit 177, depositions page 2249)

In his statement dated 3 July 2016, the accused stated that on 29 June 2016 he spent the day at home doing bookwork for the business.

The accused details how he had a shower between 11.30am-12.00pm.

(a) On 4 July 2016 at approximately 2.15pm the accused was asked directly by Detective Sergeant Graham HAMILTON whether anyone had used the deceased's black Mercedes SYU 800 motor vehicle since her disappearance.

The accused admitted that he had used the deceased car on the morning she went missing at about 10.30am to get petrol as the fuel gauge was not working.

The accused further disclosed to Detective Sergeant Graham Hamilton that:

• He intended to go to 7 Eleven Milleara but on the way the fuel gauge corrected itself and the car was full;
• The accused then intended to drive to Watergardens to 'the shop;'
• The accused did not go to Watergardens and went well past.

(b) At approximately 5.05pm on 4 July 2016, with the aid of Google maps, the accused indicated to Detective Sergeant Graham that he drove the deceased car to Gisborne taking the off ramp which indicated the 'Gisborne' turn off, and went across the overpass before taking the off ramp to Melbourne Road overpass and travelling back towards Melbourne.

(Statement of Detective Sergeant Graham Hamilton dated 4 March 2017, depositions pages 1126-1128; Exhibit 178; covert recording between Detective Sergeant Graham Hamilton and the accused, Exhibit 178, transcript depositions pages 17461 - 17492).

(c) On 5 July 2018 the accused made a further statement to police (exhibit 181, depositions pages 2258-2277), stating:

• After having a conversation with the deceased, he heard the internal garage door open, and heard the roller door go up (depositions page 2266);
• The accused left home in the deceased's

• He drove along Oakley Drive to Browning Crescent turning right. He turned onto Cannes Avenue, left onto Windsor and left onto Buckley Street, driving up to Buckley Street onto Milleara Road;
• He intended to go to Watergardens however missed the turnoff. The accused says he then continued to the Calder Fwy and believed he made a right hand turn at Organ Pipes Road.

This is inconsistent to the accused's account on 4 July 2016 (see (b)) where he told Detective Sgt Hamilton that he took the car to an off ramp signed 'Gisborne'.

Audio recording of accused on 28 July 2016 (Exhibit 189, transcript depositions pages 17536 - 17627)

In a recorded conversation between Detective Sgt Graham Hamilton and the accused, the accused confirmed that he left the house at approximately 10.30am and returned before 12pm. He told Detective Sgt Hamilton that he did not disclose that he had taken the deceased's car earlier as he did not think it was important.

He stated "I went towards Gisborne but then seen a truck at the turn off and that's why I knew I could turn there. That's where I ended up turning around."

The accused maintained that he went to Organ Pipes Road and turned around and went "nowhere else."

This is inconsistent with the accused's previous accounts and contrary to CCTV and telecommunication evidence.

Statement of Borce RISTEVSKI dated 5 July 2016 (Exhibit 181, depositions page 2267, paragraph 47)

Subject: Petrol in the deceased Mercedes Motor Vehicle

In his statement the accused says that on 28 June 2016 the deceased had told him that her car was empty and needed to be filled with

petrol. This is the reason the accused gives for leaving the house in the deceased's car between 10-10.30am on 29 June 2016.

The accused is captured on CCTV at approximately 6.03pm on 26 June 2016 filling up the deceased car with petrol (Exhibit 8). The Mercedes was filled with 60.24 litres of fuel (Exhibit 7, depositions page 2066).

The accused told investigators that the deceased had only travelled to and from Watergardens in the two days preceding her disappearance.

The accused would have therefore known that the deceased vehicle did not require fuel on 29 June 2016.

Audio recording of accused on 4 July 2016 (Exhibit 178)

Statement of Borce RISTEVSKI dated (Exhibit 181 , depositions page 2269) stating that he arrived home at approximately 11am.

Subject: time the accused arrived home on the day that the deceased went missing

In a recorded conversation between Detective Sgt Graham Hamilton and the accused, the accused says that he arrived home before 12.00pm on morning the deceased went missing.

The accused says in his statement made 5 July 2016 that he had left the house for 'an hour, maybe an hour and 20 minutes.'

CCTV captures a Mercedes SLK 500 driving in a southerly direction along Keilor Park Dve, Keilor East, at approximately 12.54pm (Exhibit 59)

CCTV captures a Mercedes SLK 500 driving in a southerly direction along Milleara Road, Keilor East at approximately 12.57pm (Exhibit 63)

CCTV captures a Mercedes SLK 500 driving from San Remo Dve, Avondale Heights, and turning left into Browning Cres, Avondale Heights at approximately 1.01pm (Exhibit 68)

CCTV captures a Mercedes SLK 500 driving travelling in a south easterly direction along Browning Crescent, Avondale Heights, at approximately 1.20pm. (Exhibit 69)

Exhibit 193 - Video Record of travel route from 23 Oakley Drive, Avondale Height, to Organ Pipes Road, Calder Park, and return to 23 Oakley Drive, Avondale Heights

Police retraced the route that the accused said he took on the morning on 29 June 2016. The route was approximately 35 minutes. This is a 105 minutes discrepancy from the time that the vehicle is known to have left the property and returned, as per CCTV.

Statement of Detective Sergeant Graham HAMILTON dated 4 March 2018 (Depositions page 1128)

Subject: That the accused's phone was switched on the entire day of 29 June 2016

The accused told investigating officer Detective Sergeant Graham Hamilton that his phone had been switched on all day on 29 June 2016.

'Visitor Location Record' records for the accused's mobile telephone service #0418 384 101 show that the accused's phone disconnected from the telecommunication network at 11.09.42am (Appendix AS, depositions page 17316).

At 12.51.09pm the accused phone re-connect with an Optus mobile telephone tower and is indicative of being switched on (Appendix AS, depositions page 17316; statement of Oleg PRYPOTEN dated 16 December 2016, pages 924 - 938).

Listening Device Audio File 20 January 2017 (093533-095534) (Appendix ER, depositions page

Subject: Accused comment that his phone was on the care charge on the morning that the deceased went missing

Checks revealed that the deceased's Mercedes vehicle does not have the requisite input to accommodate the accused's phone.

(i) THAT the accused omitted significant facts and movements relevant and material to the investigation

Statement of Borce RISTEVSKI dated 3 July 2016 (Exhibit 177, depositions pages 2249-2250)

In his statement dated 3 July 2016, the accused says that on 29 June 2016 he spent the day at home doing bookwork for the business.

The accused details how he had a shower between 11.30am-12.00pm.

The accused details how he undertook Uber driving in the afternoon on 29 June 2016.

The accused details how he drove to his mother's house at approximately 6.30pm on 29 June 2016, returning approximately 7.30pm. He then describes driving Allan MAI to his home in Richmond at approximately 9.30pm.

On 4 July 2016 the accused admits that he did in fact drive the deceased's car at approximately 10.30am on the morning she went missing. The matters outlined in (ii)(a)-(b) are referred to and relied on.

Exhibit 75 - CCTV from 1 San Remo Dve, Avondale Heights at approximately 1.58pm

Subject: failure to disclose to police that the accused used the deceased's car on a second occasion on 29 June 2016

Statement of Patrice GRAY dated 11 July 2016 (depositions page 583)

Statement of Patrice GRAY dated 13 July 2017 (depositions page 576)

Subject: varying accounts and omissions to Patrice GRAY

On 4 July 2016 the accused told Patrice GRAY that he had taken the deceased's car to two garages to get quotes to fix the gauge on the day the deceased went missing.

The accused later told GRAY that this was in fact incorrect and he did not in fact take the car to the garages on the 29 June 2016 (depositions page 583). This occurred directly after GRAY had told the accused the police could verify his movements.

GRAY expressed concerns that the accused had not told her earlier that he had used the deceased's car on the morning that she disappeared despite GRAY 'continually attempting to get him to do a timeline' (depositions page 587). She further states that:

• He kept avoiding the question [of providing a timeline] because he 'couldn't give exact times;'
• It was only after GRAY made her statement on 13 July 2016 that the accused did not go to the two garages for quotes and he in fact attended a garage to put petrol in the car, however missed the turnoff for the garage (depositions page 588).

Listening Device Audio File #21-Dec-2016 (141601 to 145730) (Appendix DP, depositions page 18659)

Listening Device Audio File 21 December 2016 (141601 to 14573) (Exhibit DP, depositions page 19752)

Listening Device Audio File 19 January 2017 (17404 to 175715) (Appendix EP, depositions page 19751-19753)

Listening Device Audio File 20 January 2017 (093533-095534) (Appendix ER, depositions page (19189 -

Telephone intercept D04918-00 (1987) (Appendix KY, depositions page 21912)

Telephone intercept D04918-00 (2186) (Appendix KZ, depositions pages 21913 - 21915)

Subject: failure to disclose to police the accused's journey to Lalor on 29 June 2016

On 21 December 2016 the accused tells Sarah RISTEVSKI that he 'went to get shisha' on 29 June 2016. He said that did not disclose this to police because he did not know if it was legal.

On 21 December 2016, the accused tells Arthur VELOUKAS that he went to Lalor to get shisha on the morning that the decease disappeared.

On 19 January 2017, the accused again tells Arthur VELOUKAS and Tony ANDONIOS that he went to Lalor on the morning that the deceased went missing but that he did not tell police this.

On 30 January 2017 the accused telephoned Arthur VELOUKAS and told him to 'make sure you don't repeat anything.'

On 30 January 2017 the accused telephone Tony ANDONIOS, advising him that he had spoken with his lawyer and telling him 'make sure you don't say anything...don't let - tell em anythin' that I spoke to you about, nothing ay all.'

(v) THAT the accused demonstrated a lack of concern (inferring guilt from demeanour)

Subject: delay and reluctance in reporting deceased missing

Subject: No calls to family or friends to ascertain deceased's whereabouts

Call charges records indicate that the accused did not call any friends or family to enquire about the deceased's whereabouts.

Call charge records for mobile telephone served #0419 116 095 (the deceased) (Appendix AM, depositions page 17290

Subject: No attempt to contact deceased from 7.17pm 29 June 2016 to 10.03pm 30 June 2016 and no further calls to the deceased after 10.03pm on 30 June 2016

Statement of Kieran Jones dated 12 January 2018 (depositions pages 1002 - 1004)

Statement of Andrew JEFFERSON dated 9 February 2018 (depositions pages 1510 - 1512)

Subject: accused's focus on how his financial situation portrayed in the media

Herald Sun Journalist, News Reporter Andrew David JEFFERSON, attended upon the home of the accused on 31 July 2016. The accused told JEFFERSON that he was 'keen to stress that the couple's [the accused and deceased] business was not struggling at Watergardens and that the couple were not dogged by debt.'

JEFFERSON states that between 6pm and 7pm that night the accused telephoned him and that the accused was 'particularly interested in disputing financial issues raised in the Australian Newspaper which alleged that the couple were in debt.'

JEFFERSON states that the accused was predominantly interested in talking about his financial situation.

Chanel 9 Journalist Kieran Jones says in his statement at paragraph 36 that the accused telephoned him on 20 July 2016 due to an article published by The Australian Newspaper regarding a caveat that was placed on the accused's house.

JONES describes that the accused was under the impression that the TV show A Current Affair would run a similar story and sought intervention from JONES. He further spoke to JONES about the status of his finances.

Jones says in his statement that the accused did not want to focus on the deceased during the conversation but was instead focused on how his finances were being portrayed, diverting the conversation back to his finances when the topic of the deceased was raised by JONES (see paragraphs 36 - 44).

Statement of Jonathan GWINNER dated 2 March 2018 (depositions page 1539-1540)

Subject: accused's d and defensiveness when advised a body had been located at Mount Macedon

On 20 February 2017 GWINNER, Bureau Chief for television program "A Current Affair", telephoned the accused and advised him that a body had been discovered at Mount Macedon. The accused immediate reaction was 'Well, it's got nothing to do with me.'

(x) THAT the accused was openly critical and uncooperative with the police investigation

Statement of Patrice GRAY dated 11 July 2017 (depositions page 587-588)

• Doing very little to assist in locating the deceased;
• Was not sleeping well and would tend to go upstairs to his bedroom while everyone else was 'putting out signs and searching';
• Not assisting police to find the deceased.

Statement Detective Sergeant Graham HAMILTON dated 4 March 2018 (depositions page 1133)

On 16 August 2016 the accused advised Detective Sergeant HAMILTON that he would not be assisting police as a result of the way the police spoke to Sarah RISTEVSKI.

Transcript of audio from listening device at 23 Oakley Drive, Avondale Heights on 13 December 2016 (depositions page 18229)

Listening Device Audio File 20 January 2017 (093533-095534) (Appendix ER, depositions page (19189 - 19192).

The accused is critical towards police and the investigation during a conversation with Sarah RISTEVSKI.

On 19 January 2017 the Sarah RISTEVSKI tells the accused that he did not 'tell them [the police] where you went.' The accused responded 'what's that got to do with the fact they haven't looked anywhere else? They don't give a fuck.' The accused continues to be critical of the police investigation.

Telephone Intercept D04918-00 (914) (Appendix HW, depositions pages 20965 - 20993).

Telephone Intercept D04918-00 (920) (Appendix HX, depositions pages 20994 - 21015)

Telephone Intercept D049180-00 (1042) (Appendix IE, depositions pages 21078 - 21097).

Telephone Intercept D04918-00 (1064) (Appendix IH, depositions pages 201108 - 21126)

Critical of police search for the deceased at Toolern Vale and critical of police investigation generally

During a conversation with Arthur VELOUKAS on the telephone on 14 December 2016 the accused is critical and abusive towards police members and of the conduct of the investigation generally.

the telephone on 14 December 2016, the accused is again critical of police and the investigation

During a conversation with Anica NAUMOVSKI on the telephone on 19 December 2016, the accused is again critical of the police investigation, particularly the search at Gisborne and Toolern Vale.

During a conversation with Tony ANDONIOS on the telephone on 19 December 2016, the accused is again critical of the police search.

Telephone Intercept D04918-00 (1835) (Appendix JW, depositions page 21372)

During a conversation with Wanda RISTEVSKI on the telephone on 19 January 2017, the accused says that it is not up to him to 'clear his name.'

Text message 11 July 2016, Exhibit 231, depositions page 14459.

Listening Device 21 November 2016 (190012 to 190125) (Exhibit 210, transcript Appendix CF, depositions pages 17758 - 17759)

Listening Device 30 November 2016 (Exhibit 2010, transcript Appendix CN, depositions pages 17964 - 18033)

Telephone Intercept D04918-00-20 (727) (Exhibit 211, transcript depositions page 20847)

Telephone Intercept D04918-00-20 (1978) (Exhibit 211, transcript depositions page 21695).

Listening Device 1 February 2017 (Exhibit 210, 20442 - 200554, Transcript Appendix FX, transcript depositions page 19997).

Subject: the accused changing phone numbers of multiple occasions

On 11 July 2016 Anica NAUMOVSKI messaged Sarah RISTEVSKI asking for the accused's new number. Sarah RISTEVSKI advised that he had not obtained it yet.

On 21 November 2016 the accused asks Alan MAI to obtain 'another SIM card' for him.

On 30 November 2016 the accused discusses his new SIM card with Alan MAI confirming that he had 'switched it this morning'.

On 7 December 2016 the accused spoke with Arthur VELOUKAS. He confirmed that he had obtained a new number his other one was 'bein' tracked.'

On 24 January 2017 the accused spoke with Chris RISTEVSKI and confirmed that he is getting 'Sarah's boyfriend' to 'get all the sim cards.' He further confirms that he is not actually 'buyin' the sim cards.'

On 1 February 2017 the accused tells Alan MAI that he needs another 'SIM' because his current one had been tapped.

Telephone Intercept D04948-00 (1924) (Appendix LM, depositions pages 22112 - 22116)

Subject: Further criticism of police investigation and reluctance to speak on phone

During a conversation with Wanda RISTEVSKI the accused tells her that he did not want to talk on the phone and that he did not want to have anything to do with the police. He proceeds to be critical towards the police and tells Wanda RISTEVSKI that he knows that 'they're listening.'

[1] The prosecution's original Notice of Incriminating Conduct was dated 13 November 2018. Surprisingly, it did not refer to the disposal of Karen Ristevski's body as constituting part of the alleged incriminating conduct. However, the Summary of Prosecution Opening, also dated 13 November 2018, stated at paragraph 156:

"The Crown relies upon the following words and actions of the accused [as incriminating conduct]: ...(vii) his significant, thorough and deliberate actions to dispose of the deceased, including placing her in her car while it was parked inside the garage, driving away from the house to isolated and remote bushland, concealing the deceased to such an extent that she was not discovered for many months, deactivating and disposing of the deceased's mobile telephone and deactivating his mobile telephone."

The prosecution's amended Notice rectified the omission in the original Notice of Incriminating Conduct by referring to the disposal of Karen Ristevski's body. Understandably, and sensibly, no objection was taken by the accused to the service of the amended Notice, even though pursuant to s 19 of the Jury Directions Act 2015 it should have been served at least 28 days before the day on which the trial was listed to commence (namely 12 March 2019). If objection had been taken, I would have, in all the circumstances, exercised my discretion under s 8 of the Act to abridge the time for service of the amended Notice.

[2] Transcript of proceedings, Director of Public Prosecutions v Ristevski (Supreme Court of Victoria, 2013 0213, Beale J, 12 March 2019) 14 (B Kissane QC).

[3] [2016] HCA 35; (2016) 258 CLR 308 ('Baden-Clay').

[4] [1993] HCA 65; (1993) 178 CLR 217.

[5] Transcript of Proceedings, The Police v Borce Ristevski (Magistrates' Court, Magistrate S. Cameron, 24 July 2018), 380.

[6] In support of this submission, the accused made reference to Kaye JA's ruling in DPP v Wan (Ruling No.1) [2018] VSC 19.

[7] [2011] VSCA 417 ('Butler').

[8] DPP v Zhuang [2014] VSC 276, DPP v Scriven [2015] VSC 220, R v Cengiz (1998) 3 VR 720, R v Ciantar [2006] VSCA 263; (2006) 16 VR 26.

[9] [2016] HCA 35; (2016) 258 CLR 308.

[10] [2006] VSCA 263; (2006) 16 VR 26.

[11] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, 47 [67].

[12] Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, 332 [74], citing R v White [1998] 2 SCR 72.

[14] [2013] VSCA 231.

[16] R v White [1998] 2 SCR 72, 89 [27].

[17] [2016] HCA 35; (2016) 258 CLR 308, 332, [73]-[74].

[18] [2013] NSWCCA 317; 241 A Crim R 321.

[20] [2016] HCA 35; (2016) 258 CLR 308, 333 [76].

[21] Transcript of proceedings, Director of Public Prosecutions v Ristevski (Supreme Court of Victoria, 2013 0213, Beale J, 12 March 2019) 83 (B Kissane QC).

[22] On the balance of probabilities, pursuant to s 142 of the Evidence Act 2008.

[23] Jury Directions Act 2015 (Vic), s 20.

[24] [2011] VSCA 417.

[26] [2016] HCA 35; (2016) 258 CLR 308.