Director of Public Prosecutions v Paulino (Ruling No 2)

[2017] VSC 344

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2016 0036

DIRECTOR OF PUBLIC PROSECUTIONS

v

FERNANDO MANUEL PAULINO

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 17, 18 & 20 October 2016
DATE OF RULING:	16 June 2017
CASE MAY BE CITED AS:	DPP v Paulino (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 344

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CRIMINAL LAW – trial by jury of charge of murder by husband of wife – identity of killer the sole issue - evidence – admissibility and exclusion – preliminary ruling – DNA evidence of biological material in motor vehicle of accused – whether connected accused with killing – two indicative tests revealed that material might be blood – subsequent confirmatory tests either not done or were negative for blood – whether indicative tests relevant to any fact in issue - whether could support a finding by jury that material was blood and of the deceased – whether such a finding would be purely speculative - whether DNA evidence should be excluded because its probative weight was outweighed by danger of unfair prejudice to accused – Evidence Act 2008 (Vic) ss 55(1), 56(2) and 137.

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APPEARANCES:	Counsel	Solicitors
For the prosecution	Mr A Tinney QC	Office of Public Prosecutions Victoria
For the accused	Mr D Dann QC with Ms O Trumble	Tony Hargreaves & Partners

HIS HONOUR:

1. The accused is charged with the murder of his wife.[1]  As part of the circumstantial case to be presented against the accused, the prosecution intends to lead evidence of the test results of four samples of biological material that were taken from areas of his motor vehicle.  The tests were indicative tests for the presence of blood and the results of the tests were that the biological material was possible blood. 

   [1]For more details, see DPP v Paulino (Ruling No 1) [2017] VSC 343 (16 June 2017) (Bell J). These are the reasons for decision for a ruling I made on 28 October 2016. On 15 June 2017, the jury delivered a verdict of guilty.

1. Upon the basis of the indicative test results, the prosecution intends to invite the jury to find that the material in the samples tested was probably actual blood, not just possible blood.  At least in relation to one of the samples, the prosecution intends to invite the jury to take DNA and other evidence into account and find that the blood was blood of the deceased.

1. The defence objects to the evidence as being irrelevant and inadmissible under ss 55(1) and 56(2) of the Evidence Act 2008 (Vic) or as being subject to exclusion under s 137 of that Act.

1. As described in the prosecution’s expert report, the samples taken from the motor vehicle and the DNA results were:

·possible blood from the inner surface of the rear of the driver’s side door trim (sample 43A-1) (likelihood ratio of 2.7 in favour of the proposition that the deceased was a contributor)

·possible blood from the inner surface of the rear of the driver’s side door trim (sample 43B-1) (likelihood ratios of 1.4 billion, 140 million and 670 million in favour of the proposition that the deceased was a contributor)

·possible blood from the inner surface of the door trim of the front of the driver’s side (sample 43C-1) (inconclusive as to whether the deceased was a contributor)

·possible blood from the upper surface of the floor mat in the front of the driver’s side footwell (sample 44-1) (beyond identifying five contributors, the profile was too complex for further identification).

1. As can be seen, the DNA results in respect of samples 43C-1 and 44-1 do not suggest that, if the material sampled was blood, the blood was that of the deceased.  The prosecution also withdrew reliance upon the DNA result in respect of sample 43A-1 because it was very low.

1. However, the DNA results for sample 43B-1 are very high in favour of the proposition that the deceased was a contributor.  Especially by reliance upon this sample, the prosecution seeks to establish that the vehicle of the accused contained blood of the deceased. 

1. As the arguments of the prosecution and the defence were addressed to all four samples, this ruling will proceed upon the same basis.

1. In the prosecution expert report, the samples were described as ‘possible blood’ because the actual presence of blood was not confirmed.  The samples contained biological material from which DNA was obtained but it was not confirmed that the material was blood.

1. The expert evidence reveals that the police investigators had available to them three relevant testing procedures: (1) a Luminol test; (2) a Hemastix test; and (3) a Hematrace test.  The Luminol test and the Hemastix test are indicative tests only because they test positive for substances other than blood.  The Hematrace test is a confirmatory test because (with irrelevant minor exceptions) it tests positive only to (human) blood.

1. On the evidence, the motor vehicle of the accused was first subjected to Luminol testing.  This revealed a number of areas that tested positive for possible blood.  All of these areas were then subjected to Hemastix testing.  Of those areas, four tested positive for possible blood, being the four samples in question.  Of those four samples, samples 43A-1 and 43C-1 were not subjected to further testing and samples 43B-1 and 44-1 were subjected to Hematrace testing with a negative result for blood in both cases.

1. The prosecution seeks to combine the indicative test results with the whole of the other evidence in support of the proposition that the jury would be capable of finding that the biological material in the sampled areas was probably blood.  The other evidence includes: the DNA evidence; that the accused had the opportunity to commit the crime; that (on the disputed evidence) the only place where blood (of the deceased) was found was in the vehicle of the deceased; and the opinion of the prosecution expert that the material in the samples was ‘possible’ or ‘apparent’ blood.  At the very least, in the submission of the prosecution, the evidence establishes that the material sampled might be blood, which was itself relevant for the jury to know.

1. I cannot accept that the indicative tests, when taken alone or in combination with the whole of the evidence, provide a basis for a finding by the jury that the sampled biological material was blood.  The expert evidence of the prosecution was very clear that the sample material was not confirmed to be blood.  The expert would only describe it as ‘possible’ or ‘apparent’ blood.  The evidence of the indicative tests and the expert is not that the material was blood and the other evidence would not permit the jury to make a finding that it was blood.

1. The question whether sample 43B-1 contains blood is of great probative significance.  The likelihood ratios in favour of the proposition that the deceased was a contributor to the material sampled is 1.4 billion, 140 million and 670 million.  If the evidence supports a finding that the biological material in the sample was blood, the jury would be entitled to find that it was blood of the deceased, which would significantly advance the prosecution case.  But the confirmatory test in relation to this sample was negative and no criticism is made of it by the prosecution.  In the light of this result, the jury could not, on the basis of the indicative tests, find that the material in sample 43B-1 was blood.

1. Putting the prosecution case at its highest, the evidence is therefore that indicative tests have revealed that the four samples contained biological material that might be blood. Upon this basis, it is then necessary to determine whether evidence to that effect is relevant under s 55(1) of the Evidence Act.

1. As discussed in related rulings,[2] evidence is relevant under s 55(1) of the Evidence Act if it ‘could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’.  The fact in issue in the present case is the identity of the person who killed the deceased.  If the jury could find upon the basis of the indicative tests (and other evidence) that the accused was connected with the killing, then the evidence would be relevant to that fact in issue.  But the jury could only make that finding if the evidence that the biological material in the samples was, not might be, blood.  Moreover, it would be plainly speculative for the jury to find upon the basis of the indicative tests (even in combination with the whole of the evidence) that the material was blood.  The evidence simply does not provide a foundation for reasoning from the possibility that the material might be blood to the conclusion that it is blood.

   [2]DPP v Paulino (Ruling No 1) [2016] VSC 649 (14 October 2016) (Bell J); DPP v Paulino (Ruling No 3) [2016] VSC  644 (28 October 2016) (Bell J).

1. Evidence of this kind was excluded in similar circumstances in R v Smart (Ruling No 1).[3]  The prosecution sought to lead evidence in relation to a number of areas of possible blood which were identified by Luminol testing but in respect of which there was no test to confirm the presence of blood.  Lasry J declined to admit the evidence.  His Honour held that, in the absence of confirmatory testing, ‘the evidence concerning the [L]uminol positive areas is almost entirely speculative’,[4] essentially because this kind of test returns positive results for non-blood substances. 

   [3][2008] VSC 79 (19 March 2008) (Lasry J) (‘Smart’).

   [4]Ibid [28].

1. As the prosecution submits, in Smart the samples tested were too small for recovery of a DNA profile.  In the present case, DNA profiles were recovered from the four samples.  In respect of sample 43B-1, in particular, the likelihood ratios are very high in favour of the deceased being a contributor (see above).

1. If DNA came only (or even mostly) from blood, the DNA result in respect of sample 43B-1 might provide some support for the proposition that the biological material in the sample was blood of the deceased.  But the evidence establishes that DNA does not come only (or even mostly) from blood.  Moreover, the confirmatory test in respect of sample 43B-1 was negative for the presence of blood.  The presence of DNA in the four samples does not distinguish the present case from the circumstances in Smart.  The DNA came from biological material but, without speculation, it cannot be concluded that the material was blood.

1. I therefore exclude the proposed evidence as irrelevant under s 55(1) and inadmissible under s 56(2) of the Evidence Act. If relevant in some way that I have overlooked, excluding evidence that biological material might be blood in favour of a proposition that it is blood would plainly be justified under s 137 because its probative value would be far outweighed by the danger of unfair prejudice to the accused.