The Tribune

By RASHAD ROLLE

Tribune Senior Reporter

rrolle@tribunemedia.net

THE Judicial Committee of the Privy Council has ruled that Donna Vasyli has a case to answer in the 2015 killing of her husband, Australian podiatrist Phillip Vasyli.

However, the committee will let the Court of Appeal decide if a retrial must happen. 

Vasyli was convicted in October 2015 of killing her husband in March 2015 and was sentenced to 20 years imprisonment.

The Court of Appeal unanimously quashed her conviction in 2017. Two appellate judges favoured a retrial but another found that would be contrary to the interests of justice.

In her appearance before the Privy Council, Vasyli’s lawyer presented four reasons why there is no case for a jury to convict on, all of which the committee has now rejected.

Sir Nicholas Hamblen wrote the committee’s judgment. Clare Montgomery argued on Vasyli’s behalf.

The Vasylis were married for 34 years. They lived in the exclusive gated community of Old Fort Bay.

The prosecution and defence agreed that Mr Vasyli had an alcohol abuse problem. Among the other facts they agreed on is that on March 23, 2015, Mr Vasyli fell down the stairs while drunk, cutting his back on glass from picture frames as he fell. Later that afternoon the couple entertained three people: Myles Pritchard, Jody Pritchard and Mitchell Matthew. The Vasylis were left alone for about 45 minutes when the guests left. However, at some point Vasyli left her home and went to her daughter’s house.

Early the next morning a gardener found Mr Vasyli on the floor of the kitchen at the Vasylis’ residence, dead with a stab wound to his neck. The kitchen gave way to a covered patio behind some patio doors. The gardener arrived by way of the patio where he found blood and a bloody kitchen knife. He opened the locked patio doors with his emergency key to get to the kitchen where he found Mr Vasyli.

Lord Hamblen wrote in the judgment that “none of the doors to the house showed any sign of having been damaged or tampered with. Although there were many valuables in the house, nothing had been stolen. Mr Vasyli’s body bore no defensive injuries.”

The first officer on the scene found Vasyli in bed, shaking and crying. She allegedly told him she and her husband fought the night before.

Small amounts of Mr Vasyli’s blood were found on the groin area of the blue dress his wife was wearing when police encountered her and blood traces were also found on the front, right sleeve cap of a multi-coloured dress found in the room where she spent the night.

The prosecution argued Vasyli murdered her husband when their guests left and before she went to her daughter’s home. Their case, based on circumstantial evidence, emphasized how the pair were left alone the evening of the incident, that the knife which appeared to inflict the wound was one of a set of knives kept in the kitchen, that the Vasylis had an abusive relationship, that there was no evidence of an intruder or disturbance within the house and that Mr Vasyli’s blood was found on his wife’s dresses worn around the time he died.

Ms Montgomery argued before the Privy Council that there were four fatal weaknesses in the prosecution’s case. The first, she said, was that DNA evidence related to three glasses found on a table on the patio included that of an unknown man, a fact she said undermined the prosecution’s case that Vasyli was the last and only person to see her husband alive.

Lord Hamblen, however, said there were countervailing matters for the jury to consider.

“…There was no evidence of an intruder,” he wrote. “It was suggested that the blue glass man could have been a guest, but there was no evidence that any guest was due or expected or of anyone being signed in at the front gate. Nor was there any evidence from the CCTV or the security patrol of anyone being seen entering or leaving the property or any other trace of a person being at the property. It was not accepted that the fact that beer bottles were found in the bin showed that the earlier detritus had been cleared away. Mr Pritchard (who, unlike the other two guests, did not give DNA samples) could have drunk beer from the glass. The male DNA found could have been that of Mr Pritchard or left by a visitor from an earlier occasion. In addition, the hypothesis that an unknown male, having arrived after, took a knife from the kitchen and murdered Mr Vasyli, and, before or after the crime, had taken the blue glass from inside, drunk from it and then added it to the detritus left on the table from the earlier gathering, or if it was already there, picked it up from the detritus and used it was so inherently implausible as to be capable of rejection by the jury. In the board’s view, taking the evidence as a whole, the blue glass man as murderer was a hypothesis which a jury could reasonably exclude.”

Ms Montgomery also cited the timeline evidence from pathologist Dr Caryn Sands which she said showed Mrs Vasyli was not at home when Mr Vasyli died. In response to a photo showing Mr Vasyli’s right arm position, Dr Sands had testified during the Supreme Court trial that rigor mortis had likely began to set in by the time the photo was taken.

However, Lord Hamblen noted that when Dr Sands was directly asked if she determined his time of death, she said no.

“The shifting nature of the appellant’s case highlights its uncertain evidential base,” he wrote. “Whilst part of Dr Sands’ evidence could be said to be consistent with Ms Montgomery’s submission, Dr Sands also said that after four hours you notice rigor mortis and in the next 12 hours it peaks. In any event, all Dr Sands’ timings were approximate. She said in terms that it depended on factors, such as temperature and activity, and that she was only talking about ‘average’ times. What the relevant factors were likely to be in Mr Vasyli’s case was not considered. Nor was there any exploration of what happens after rigor mortis ‘peaks’.

“In summary, the appellant’s case on this issue suffers from the fact that it is based on submission and extrapolation rather than evidence. In the Board’s view there are so many uncertainties about the evidence of timing that, taking the evidence as a whole, a jury could reasonably exclude the hypothesis that Mr Vasyli was killed after 9 to 9.10 pm, times that were themselves approximate.”

Ms Montgomery also argued that there was no satisfactory evidence that Mr Vasyli’s blood was on Mrs Vasyli’s clothing. She said an innocent blood transfer could not have been discounted to explain the presence of his blood on the blue dress his wife wore on the morning of March 24, 2015 and on the multi-coloured dress found in the room where she had spent the night.

Lord Hamblen wrote in response: “Given that this was not an issue at trial and was not raised in the appellant’s written case the board gave permission for the respondent to make written submissions on the issue and for the appellant to respond. Having carefully considered those submissions, the board is satisfied that there was evidence upon which it would be reasonably open to the jury to conclude that Mr Vasyli’s blood was on the dresses. The identification of ‘human/higher primate blood’ on the dresses was made by a forensic biologist, Ms Felicia Blair. The evidence of DI King was consistent with the cuttings being taken from the areas of the dress in which such blood had been identified. The DNA testing was carried out by Ms Samantha Wandzek, whose reports were read. Although she did not state in terms that what she tested was the part of the dress on which blood had been identified, the jury could reasonably infer that this is what she did. Whilst the DNA result did not identify its source, in all the circumstances it would be open to the jury to conclude that it came from the blood which had been identified.”

Ms Montgomery’s fourth argument was that the patio door was locked from the inside, supporting her theory that Mr Vasyli had been attacked on the patio by an unknown assailant and had sought refuge inside the kitchen. However, Lord Hamblen said this attributes an “improbably considered train of thought to a man under lethal attack.”

“In so far as Mr Vasyli reasoned the matter through at all, as opposed to operating on instinct, he may well have reckoned that locking the door on the appellant was worthwhile even if it only delayed her. In any event, this is very much a jury point,” Lord Hamblen wrote.

It is unusual for the Privy Council to order retrials, Lord Hamblen wrote.

“The direction to exercise the power to order a new trial rests with the Court of Appeal rather than the board,” he wrote. “Although the Court of Appeal has indicated how they would be likely to exercise that discretion, that was without the benefit of submissions from the appellant…The board accordingly considers that the issue of whether there should be a retrial should be remitted to the Court of Appeal, whilst emphasizing the desirability that this be dealt with promptly given the delays which have occurred.”