The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE country’s highest court is currently mulling over whether to overturn a lower court’s decision to order that Donna Vasyli be retried of the stabbing death of her millionaire podiatrist husband five years ago.

The Privy Council announced last Thursday that it would reserve its decision on whether to affirm the Court of Appeal’s decision to order a second trial for Vasyli concerning the murder of Philip Vasyli on March 24, 2015. “The court will take time to consider what advice they will humbly tender to Her Majesty,” Lord Brian Kerr announced at the end of the four-hour long hearing.

The announcement came after Vasyli’s attorney, Clare Montgomery, QC, petitioned the London-based committee to not endorse the appellate court’s decision because a sufficient enough case had not been made against her client at the substantive trial.

In particular, she maintained that based on the medical evidence led at trial, Vasyli could not have been at the matrimonial home when her husband was murdered, as she had already left and went to her daughter’s house some 12 minutes away. And that fact has been accepted by the prosecution, Mrs Montgomery said.

However, Mrs Montgomery submitted that should the Privy Council find that there was in fact a case for Vasyli to answer initially, it should remit the matter back to the Court of Appeal.

Mrs Montgomery, in adopting the principles espoused in a previous decision made by the Privy Council, further asserted that the court should not order a retrial if by doing so, it is permitting the prosecution to “remedy” deficiencies in their case, effectively making the trial a “practice run” for the side opposite.

In response to Mrs Montgomery’s assertions that the prosecution would be “forearmed” and “forewarned” of potential hurdles to trump the defence should the order for a retrial stand, the prosecution maintained that the “possibility of improving the evidence” against Vasyli is a “risk” one takes when a retrial is ordered. However, the prosecution said such a risk “cuts both ways”.

“The defence could improve its evidence too,” the prosecutor said. “It could take different decisions about how to run the trial. That’s just one of those things that inevitably happens when there’s a retrial.”

Nonetheless, the prosecution conceded that the manner in which the Court of Appeal dealt with the issue of whether to order a retrial was “wrong”, particularly because the appellate court did not give Vasyli an opportunity to make any submissions “as to whether a retrial was appropriate in the light of its disposal of the appeal”.

The prosecution further noted that the Court of Appeal’s “failure” to entertain those submissions from Vasyli’s attorneys means that the “weight” the prosecution could put on the appellate court’s decision—assuming there is a case to answer—is “much more limited” than it would be had the appellate court “actually done the right thing and heard submissions on the question”.

Thus, the prosecution said it was “unsatisfactory” for the Court of Appeal to have ordered a retrial in those circumstances.

In any event, the prosecution said the Privy Council should reject Mrs Montgomery’s submissions and consequently find that there was in fact a case to answer, and then “go on to consider further points as to whether in those circumstances the Court of Appeal’s order for a retrial should simply be endorsed”.

And if the high court is minded to remit the matter to the Court of Appeal, the prosecution said the superior court should give a “pretty firm indication” that any consideration of the possibility of a retrial by the appellate court be done as quickly as possible, as the fifth anniversary of the crime is fast approaching.

The submissions came during a four-hour hearing before Lords Kerr, Robert Carnwath, David Lloyd Jones, Nicholas Hamblen and Lady Jill Black on the appeal of the appellate court’s July 25, 2017 decision to quash Vasyli’s murder conviction and order a retrial.

Vasyli is appealing against the order for a retrial.

The facts at trial were that on the evening of March 23, 2015, the Vasylis entertained two guests, Myles and Jody Pritchard, who arrived at the Vasyli residence after 3pm that day. Also present at the Vasyli residence that afternoon was the Vasylis’ housekeeper Nicolaza Quintana.

Upon their arrival at the Vasyli home, the Pritchards were greeted by Vasyli who immediately told them that her husband, in his drunkenness, had fallen down the stairs and sustained injuries to his back. Mr Vasyli had hit some picture frames during his spill and the broken glass from those objects caused the injuries.

Mr Pritchard, in his statement to police, said when he saw Mr Vasyli, the podiatrist was bareback with a bloody paper towel rolled up. Mr Pritchard further stated that Mrs Quintana cleaned Mr Vasyli’s wounds at Vasyli’s directions, and once that was done Mr Vasyli went upstairs to lay down.

Afterwards, Vasyli’s nephew, Mitchell Matthew, who was visiting from Australia at the time, also came over and the four (Vasyli, the Pritchards and Mr Matthew) drank and talked.

At about 4pm Mrs Quintana left. The Pritchards left sometime between six and 6.30pm and about 15 minutes later Mr Matthew left, leaving Vasyli and her husband alone at their home.

At 7am on March 24, Alejandro Quintana, the couple’s gardener/handyman, arrived at work and saw a knife on the patio with blood on it. Thinking someone had cut themselves, he picked it up and put it on the patio table.

He then noticed a pool of blood on the ground and started knocking at the doors, but when he got no answer he used his emergency key to enter the home. It was then that he found Mr Vasyli dead on the kitchen floor.

Mr Quintana went searching for Vasyli, and when he did not find her drove to Vasyli’s daughter’s house, the Lily Pond. Once he arrived, he knocked on the door, and Vasyli’s daughter Lauren Vasyli-DeGraaf and her husband, Quinton DeGraaf, answered. Mr Quintana told them what happened to Mr Vasyli, prompting Mrs Vasyli-DeGraaf to run to the guest house at the Lily Pond to tell her mother.

After Vasyli was informed, she and Messrs Quintana and DeGraaf drove back to the scene of the crime, stopping at Old Fort Bay security booth on the way. They arrived at the house with two security officers and waited for the police to arrive.

Officer Jermaine Knowles testified that when he arrived at the house, he met Vasyli wrapped up in a sheet in a bedroom crying and shaking. He said when he identified himself to her, the woman stated that she and her husband had a fight the night prior. However, he said while she was saying that, Mrs Vasyli-DeGraaf approached her mother and whispered something in her ear, causing her mother to stop talking.

Officer Knowles subsequently arrested Vasyli with reference to murder, and during the two interviews she had with police, she emphatically denied killing her husband, and said she she did not recall telling Officer Knowles about the fight with her husband, nor that she said the cameras at her house were not working.

Her records of interview, as well as the information gleaned via the cross examination of the Crown’s witnesses revealed that on the evening of March 23, after the Pritchards and Mr Matthew had left, she then left and walked 12 minutes to her daughter’s guest house.

Nonetheless, the jury unanimously found Vasyli guilty of her husband’s murder, and she was subsequently sentenced to 20 years’ in prison minus the five months she previously spent on remand awaiting trial.

The Court of Appeal later quashed Vasyli’s conviction and ordered a retrial. At the time, two judges decided that the matter should be remitted for a retrial, while the third judge decided that it should not.

Appearing before the Privy Council last week, Mrs Montgomery asserted that on any view of the evidence, the matter before them is a “circumstantial case”. She charged that in order to prove that Vasyli murdered her husband, the prosecution had to prove “intermediate facts” such as Vasyli being present in the house when he died and that she was the only person present at the time.

Mrs Montgomery argued that the “undisputed” medical evidence has Mr Vasyli dying on March 24, 2015. By the time the matter made its way to the Court of Appeal, the Crown had accepted that there was no evidence that Vasyli was at the house after 9.10pm on March 23.

Secondly, in addressing the medical evidence, Mrs Montgomery asserted that signs of rigor mortis were still present in Mr Vasyli’s body when crime scene investigators photographed it at 1.15pm on March 24. One of the photos taken depicted Mr Vasyli’s body with his arms raised which, according to pathologist Dr Caryn Sands, showed that rigor mortis had not yet broken.

Dr Sands went on to describe how rigor mortis sets in two to four hours after death. It peaks at about 12 hours before breaking and the body becomes flaccid. That meant that Mr Vasyli met his demise around 14 to 16 hours prior to 1.15pm.

However, Mrs Montgomery said if one counts 16 hours back from 1.15pm on March 24, they would arrive at 9.15pm on March 23, a time when Vasyli had already left her house and went to her daughter’s house at Lily Pond.

Thus, Mrs Montgomery said that “undisputed medical evidence” that was led by the Crown on its case, demonstrated that while Mr Vasyli died at some uncertain time on March 24, he died at a time when her client “cannot be his assailant”.

“This is not a case that was made out on the evidence, not equivocal evidence, not matters on which the jury were entitled to reach a conclusion, matters that required them to speculate in a way that was utterly impermissible, and should have been prevented by taking the case away from them,” she asserted.