I’m not sure how I missed the gripping four part series ‘The Cry’. If you enjoy watching crime drama it’s must see TV (ABC iView) It’s adapted from the novel of the same name by Helen FitzGerald.
*** SPOILER ALERT ***
if you haven’t seen ‘The Cry’ watch it (or read the book) before continuing with this blog
The Cry – murder
Briefly, parents Joanna and Alistair travel from Scotland to Australia with their baby son, Noah. We become aware that the baby has died at some point soon after the family arrives in Australia. Worried that they might be blamed for the baby’s death Alistair and Joanna (OK, mainly Alistair) hatch a plot to conceal Noah’s death by playing out a scenario that the baby’s been abducted from their car. A media frenzy ensues and thus begins the psychological thriller that ends with Joanna killing her husband and being charged with murder.
First, it’s hard to say whether the parents were responsible for the baby’s death or whether he died as a result of a terrible accident. It appears that baby Noah was given a double up of medicine by both parents unknowingly, that might have resulted in his death. Without more facts I can’t speculate on whether they would be charged with a criminal offence for the death. Concealing the body is another matter. They’d certainly be charged by police for that if the truth came out.
But I digress. In the final episode we discover that Joanna has been charged with a single count of murder. Turns out she took Alistair for a drive when they returned to Scotland, undid his seat belt whilst travelling at high speed on a remote, open road and took her hands off the steering wheel, causing the car to veer off the road and crash, killing her husband. So it’s obviously murder on those facts, right?
The law says there must be certain ‘elements’ or ingredients to prove a charge of murder. In NSW murder is defined in the Crimes Act 1900 at section 18(1)(a):
- 1. There was a voluntary act or omission of the accused; and
- 2. That act or omission caused the death of the deceased; and
- 3. The act was committed with:
- (a) An intent to cause grievous bodily harm; OR
- (b) An intent to kill; OR
- (c) Reckless indifference to human life; OR
- (d) Committed by the accused or some accomplice with him or her in an attempt to commit, or during or immediately after the commission of an offence punishable by at least 25 years.
So let’s have a look at Joanna’s case.
- 1. Joanna voluntarily drove the car at high speed on an open road and voluntarily caused the car to crash; and
- 2. Joanna’s act of crashing the car caused Alistair’s death; and
- 3. Joanna’s act of driving off the road at high speed and causing it to crash was committed with either an intent to cause grievous bodily harm or an intention to kill Alistair.(Or (c) or (d) but I think (a) or (b) would cover it here).
Borce Ristevski – manslaughter
Around the time that I was watching the series, the Victorian Supreme Court was dealing with the case of Borce Ristevski. This real life case involved the death of a spouse where the husband Borce Ristevski pleaded guilty to killing his wife, Karen. You can read the sentence judgement here.
The judge, Beale J, found that Ristevski killed his wife in their family home sometime during the morning of 29 June 2016. Ristevski put the body in the boot of his car and drove to isolated bushland, took the body into the bush and covered it with sticks and logs. Karen’s body wasn’t discovered for 8 months. For years, Ristevski lied about what had happened to Karen. He told their family and friends that they had had an argument, Karen left the house and he had no idea where she was. At Karen’s funeral, Ristevski was a pall bearer. To this day, Ristevski has refused to say how he killed Karen. He’s shown no remorse for his actions in killing her or for his cover-up. He did not confess to the killing until almost three years after Karen’s death.
If Ristevski’s admitted he killed Karen, he’s guilty of murder right? Wrong.
Ristevski pleaded guilty not to murder (the original charge) but to a charge of manslaughter after a ruling by the judge on the evidence and negotiations with the prosecution.
So what’s the difference between murder and manslaughter? And how was Borce Ristevski sentenced for manslaughter and not murder if he admitted he killed his wife?
The main issue in this case was that nobody except Ritevksi knows how Karen died. Ristevski has refused to tell. Karen’s body was badly decomposed when she was found so the cause of death could not be established by post mortem.
Therefore the element or ingredient of “intent” was going to be difficult for the prosecution to prove on the facts. That is, without knowing how Karen died if would be difficult to establish beyond a reasonable doubt that Ristevski had murderous intent – that he intended to kill Karen or cause her really serious injury (in NSW, grievous bodily harm) or that he knew it was probable that his acts would cause death or really serious injury.
His “post offending conduct” – disposing of the body, concealing the killing, the lies – is not an ingredient or element of the offence of murder or manslaughter. However, his cover up was found to be an “aggravating” feature of the offending
As his murder trial got underway, there was legal argument about Ristevski’s actions in covering up the fact that he’d killed his wife. The prosecution case relied solely on the evidence of Ristevski’s post offence conduct. The judge ruled that the evidence was not sufficient to prove beyond a reasonable doubt that Ristevski had murderous intent, a key element for murder. The evidence could only show that Ristevski killed his wife unlawfully, despite not knowing the details about the “unlawful and dangerous act” that caused Karen’s death.
As a result, the prosecution accepted the plea of guilty for manslaughter by unlawful and dangerous act. The elements or ingredients that must be made out on the evidence for this manslaughter charge are:
- That the accused committed an act that caused the death of another person;
- That the relevant act was committed consciously, voluntarily and deliberately;
- That the relevant act was “unlawful”; and
- That the relevant act was “dangerous”.
Whilst Ristevski accepted responsibility for killing his wife, by pleading to manslaughter he received a shorter sentence than he would have if he’d pleaded guilty to murder or found guilty by a jury of murder. He was sentenced to a maximum of nine years in gaol with a non-parole period of six years. That means he could be out of gaol in six years. The maximum penalty for manslaughter is 20 years.
Sentencing considerations
In sentencing an offender, the court has to consider a range of issues. First, the level of seriousness of the offence – the “objective seriousness”. That is, the judge considers in the spectrum of manslaughter offences and where this killing fits on the spectrum.
The prosecution submitted that the manslaughter was at the higher end of “objective seriousness” because:[1]
- (a) domestic violence is an aggravated form of violence;
- (b) this was a particularly bad instance of domestic violence because it involved the taking of a life;
- (c) the victim was Ristevski’s wife of 27 years and the longevity of that relationship magnified the breach of trust;
- (d) Ristevski killed Karen in her home where, as his own barrister conceded, “she should have felt safe, secure and protected”; and
- (e) the rapidity, extent and duration of Ristevski’s post offence conduct was inconsistent with it being “a low end manslaughter.”
Ristevski’s barrister submitted it was a “mid-range manslaughter” and there was no way to establish how Karen died. In relation to the domestic violence aspect he said:[2]
- (a) that unlike many domestic violence killings, there was no history of domestic violence in Ristevski’s marriage;
- (b) unchallenged character references indicated a history of relative domestic peace, including a glowing character reference from the couple’s only child, Sarah;
- (c) whatever happened on the morning of 29 June 2016 must be viewed as an isolated instance of domestic violence;
- (d) the fact that Karen had been Ristevski’s wife for some 27 years was “irrelevant” as the “length of time that someone is married to a person doesn’t make it one of the worst examples of domestic violence”.
Ultimately, the judge determined that Ritevksi’s offending was not at the lower end of manslaughter offences due to the domestic violence aspect. He went on to say:
Whilst the community and the courts rightly abhor domestic violence, it is simplistic to suppose that all domestic violence manslaughter cases necessarily fall into the upper range on the spectrum of seriousness for manslaughter. It takes little imagination to think of circumstances where a domestic violence manslaughter – for example, one involving a momentary loss of control and a comparatively low level of violence – could not reasonably be viewed as an upper range example of the offence of manslaughter.[3]
However, his Honour could not determine whether the offending was mid or high range of manslaughter offences because:
- (a) He did not know the level or duration of the violence Ristevski perpetrated on Karen;
- (b) Ristevski’s silence with regard to the killing did not mean the offending was in the upper range of manslaughter offences;
- (c) This was a serious case of domestic violence as it resulted in the death of his wife;
- (d) Karen was the “devoted mother” of their only daughter, Sarah;
- (e) Karen was killed by an unlawful and dangerous act in her own home “which should have been a sanctuary for her”
- (f) Karen was 47 years old so had many years to live
There are other considerations the court has to take into account when sentencing an offender. Here, the judge considered:
- glowing character references provided for Ristevski including one from his daughter, Sarah, who described her father as “loving, caring, sympathetic, protective and charismatic”;
- Ristevski had no previous criminal record;
- Ristevski pleaded guilty and albeit on the second day of trial the plea had utilitarian value since it spared family, friends and witnesses the stress of a trial and the community the considerable expense of a five week criminal trial;
- Ristevski had good prospects of rehabilitation;
- Unlike most spousal homicides there was no history of domestic violence, rather it was an isolated incidence of domestic violence;
- There was a need for general deterrence (ie sending a message to the community that killing another person is a serious offence) but specific deterrence was not given much weight (ie it was unlikely Ristevski would commit such a crime again, despite his cover-up after the killing).
The sentence has been criticised by police and Karen’s family and friends for being too short. More than 70 thousand people have signed a petition to Victoria’s DPP to appeal the sentence.
On a side note, a London-based criminal profiler says Ristevski’s only child Sarah wrote him “a glowing reference and not a victim impact statement because she was “under his spell”. Read about that here.
[1] DPP v Ristevksi (2019), summarised by judge at [33]
[2] DPP v Ristevksi (2019), summarised by judge at [34]-[35]
[3] DPP v Ristevksi (2019), [36]