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No scratches: Why did Borce Ristevski escape the fate of Gerard Baden-Clay?

Allison Baden-Clay’s body was found on a creek bank in Brisbane’s west 10 days after she was reported missing 2012.

Police immediately suspected foul play when they observed scratches on Baden-Clay’s face.

The scratches on Gerard Baden-Clay's face.

The scratches on Gerard Baden-Clay’s face.

Like Ristevski, Baden-Clay remained unflappable in the face of mounting evidence that linked him to his wife’s disappearance.

Both men were also subjected to widespread suspicion from the public, who never accepted their crocodile tears and credulity-stretching denials.

Baden-Clay was found guilty by a jury in 2014. But Queensland’s Court of Appeals downgraded the charge to manslaughter when his lawyers successfully argued it was possible he could have unintentionally killed his wife during an argument.

In 2016, the High Court reinstated the murder conviction, after finding it was reasonable for a jury to be persuaded by “the lengths to which the respondent [Baden-Clay] went to conceal his wife’s body and to conceal his part in her demise.”

Unlike the Ristevski case, the prosecution was also able to establish a persuasive motive for Baden-Clay’s actions.

He was planning to leave his wife for mistress Toni McHugh who gave evidence against him.

Gerard Baden-Clay's former mistress Toni McHugh.

Gerard Baden-Clay’s former mistress Toni McHugh.

At the time, Queensland Law Society president Bill Potts hailed the High Court decision as an important precedent in the way in which circumstantial evidence and post-offence behaviour can be used.

But that decision had no bearing on pre-trial negotiations between Chief Crown Prosecutor Brendan Kissane, QC, and Ristevski’s legal team.

Justice Christopher Beale ruled Ristevski’s conduct after Karen’s death could not be used to prove his murderous intent, which prompted the stunning decision to downgrade the charge.

Retired Melbourne barrister Peter Faris, QC, said the prosecution always faced a difficult task in proving that Ristevski had acted with murderous intent based purely on his conduct after Karen’s disappearance.

“Post murder conduct is always a very grey area, and it’s not clear in every case whether its admissible or not,” Mr Faris said.

He suspects the prosecution may have also had reservations about the strength of the case against Ristevski, which could have prompted the decision to cut a deal.

“If they’d proceeded to trial on a charge of murder, he could have walked. Perhaps they’ve made a pragmatic decision, which often happens in these kinds of trials,” Mr Faris said.

Police believe Ristevski killed his wife between 8.58am and 10.43am at their Avondale Heights home on the day she went missing and then drove her remains in her black Mercedes-Benz to Mount Macedon, 80 kilometres away.

At the centre of the police case was a combination of CCTV footage of the Mercedes travelling through Melbourne’s north-west and data from mobile phone towers that detected the Ristevskis’ phones along the Calder Freeway.

The area where Karen Ristevski's body was found.

The area where Karen Ristevski’s body was found.Credit:Justin McManus

Ristevski’s mobile phone was deliberately deactivated at 11.19am along the freeway, the court heard, and his wife’s phone last pinged a tower at 11.40am, near Gisborne.

Police went to great lengths to retrace the route Ristevski would have taken to Mount Macedon.

Detectives drove a luxury car from the Ristevski’s home to Mount Macedon, along the Calder, and back again. They timed the trip and believed Ristevski would have had a 20-minute window to dump his wife’s body in the bush.

They believe Karen died during an argument over the precarious financial situation of the couple’s clothing business. The store Bella Bleu recorded losses of $326,000 over four years, and the couple had a credit card debt of more than $80,000, on top of a $715,000 mortgage.

However, establishing exactly what happened to Karen and how she died will present more legal hurdles, according to Mr Faris.

“For sentencing purposes, they will need to have an agreed set of facts. But where are they going to get these facts from, when he’s always denied doing it?” Mr Faris asked.

Lawyer Nick Papas, QC, the former Victorian Chief Magistrate, said the details of Ms Ristevski’s death may never be known, even though Mr Ristevski has pleaded guilty.

“That’s the confusing part, I can understand why people would find this extremely hard to understand. This is a case involving circumstantial evidence and his post-event conduct, that’s what this is all about – driving around, hiding, driving the car around, eventually that was sufficient to identify him as being person involved in the death.

“How he killed her and the circumstances around the killing are unknown. And he’ll give a version of events no doubt in the course of the plea, but the prosecutors don’t necessarily have to accept that,” Mr Papas told 3AW radio.

Chief Commissioner Graham Ashton says investigators were relieved that Ristevski had pleaded guilty to manslaughter.

“I think it allows for justice to move through a lot more quickly in that case. I’m not disappointed, everyone’s worked very hard on that case,” Mr Ashton told ABC Radio.

chouston@theage.com.au

Senior Crime Reporter

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