JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2019
DATE OF RULING:	13 March 2019
DATE OF REASONS:	15 March 2019
CASE MAY BE CITED AS:	DPP v Ristevski (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2019] VSC 165

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CRIMINAL LAW – Evidence – Murder – Post-offence conduct relied on by prosecution as incriminating conduct – Whether prosecution entitled to rely on evidence of post-offence conduct to prove not only an unlawful killing but also murderous intent – R v Baden-Clay (2016) 258 CLR 308 – Butler v The Queen (2011) [2011] VSCA 417 – Weissensteiner v The Queen (1993) 178 CLR 217 – DPP v Wan (Ruling No 1) [2018] VSC 19 – DPP v Zhuang [2014] VSC 276 – DPP v Scriven [2015] VSC 220 – R v Cengiz (1998) 3 VR 720 – R v Ciantar (2006) 16 VR 26 – Mocenigo v The Queen [2013] VSCA 231 – Lane v The Queen (2013) 241 A Crim R 321 – R v White [1998] 2 SCR 72 – Jury Directions Act 2015 ss 20, 21, 42.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kissane QC and Mr M. Fisher	Office of Public Prosecutions
For the Accused	Mr D. Hallowes SC and Mr S. Norton	Stary Norton Halphen

HIS HONOUR:

Background

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.

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.
[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Ristevski (Ruling No 1)

Details

AGLC: DPP v Ristevski (Ruling No 1) [2019] VSC 165
Case: [2019] VSC 165
Decision Date: 13 March 2019

CaseChat Overview and Summary

The case of DPP v Ristevski (Ruling No 1) involved the Director of Public Prosecutions and the respondent, Ristevski, who was charged with murder. The issue in the case was whether the prosecution was entitled to rely on evidence of the respondent’s post-offence conduct to prove both an unlawful killing and murderous intent. This issue was considered by the Court of Appeal of Victoria, which was tasked with reviewing the case to determine the admissibility of certain evidence.

The legal issues revolved around the principles established in various cases, such as R v Baden-Clay, Butler v The Queen, Weissensteiner v The Queen, and others. The Court needed to decide whether the prosecution could use post-offence conduct to establish both the fact of an unlawful killing and the requisite intent for murder. The Court also had to consider the implications of the Jury Directions Act 2015, particularly sections 20, 21, and 42, which govern the admissibility of evidence in criminal trials.

In delivering its ruling, the Court of Appeal considered the established legal framework and the specific circumstances of the case. The Court found that while post-offence conduct could be relevant in establishing an unlawful killing, it could not be used to establish murderous intent without additional evidence. The Court held that the prosecution needed to prove murderous intent through direct evidence or other means, and post-offence conduct alone was insufficient. Consequently, the Court ruled that certain evidence of post-offence conduct was inadmissible in proving murderous intent.

The Court of Appeal's ruling clarified the boundaries of using post-offence conduct in murder trials, emphasising the need for direct evidence of murderous intent. The decision highlighted the importance of adhering to the legal principles set out in previous cases and the requirements of the Jury Directions Act 2015. The Court's ruling provided guidance to lower courts and legal practitioners on the admissibility of post-offence conduct in similar cases.

Orders