DPP v Paulino

Case [2017] VSCA 38

SUPREME COURT OF VICTORIA  
COURT OF APPEAL

S APCR 2016 0220

DIRECTOR OF PUBLIC PROSECUTIONS Applicant

v

FERNANDO MANUEL PAULINO[1]

Respondent

[1]This document was previously handed down as an anonymised judgment and published under the name DPP v Tom Massey (a Pseudonym) but is now published under the name of the Respondent.

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JUDGES: WEINBERG, PRIEST and FERGUSON JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 9 February 2017
DATE OF JUDGMENT: 6 March 2017
MEDIUM NEUTRAL CITATION: [2017] VSCA 38 1st Revision: 20 June 2017: Name of Respondent; footnotes [1], [18] & [22].
RULING APPEALED FROM: DPP v Paulino [Ruling No 3] [2017] VSC 345 (Bell J)

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CRIMINAL LAW — Interlocutory appeal — Pending trial for murder — DNA evidence —Whether evidence relevant — Whether probative value of evidence outweighed by risk of unfair prejudice — Evidence ruled inadmissible — No error by trial judge — Evidence Act 2008, ss 55(1) and 137 — Criminal Procedure Act 2009, ss 295 and 297 — Leave to appeal refused.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr C B Boyce SC Mr J Cain, Solicitor for Public Prosecutions
For the Respondent   Mr D A Dann QC with
Ms O A Trumble 		Tony Hargreaves & Partners

WEINBERG JA:

  1. I have had the considerable advantage of having read in draft Priest JA’s reasons for refusing leave to appeal in this matter.  I agree, substantially for the reasons his Honour has given, that such leave should be refused.

  1. The trial judge held that evidence that the deceased’s DNA was located on three items of the respondent’s clothing, and also on the rear driver’s side of the respondent’s car, was irrelevant and, for that reason, inadmissible. In the alternative, his Honour held that the evidence should be excluded pursuant to s 137 of the Evidence Act 2008.  Priest JA has concluded that the trial judge was correct in excluding that evidence.

  1. I agree, for the reasons Priest JA has given, that the evidence of the deceased’s DNA located on the respondent’s shoe, and on the inside rear of his vehicle, failed to meet the test of relevance under s 55 of the Evidence Act.

  1. However, I have come to a different conclusion as regards the DNA found on the respondent’s shirt and jacket. In my view, that evidence was relevant, and therefore legally admissible. In the particular circumstances of this case, however, it only marginally passed the test of relevance. It had such little probative value that the trial judge acted correctly when he excluded it under s 137. Whatever probative value it had was clearly ‘outweighed by the danger of unfair prejudice’ to the respondent.

  1. Before explaining in more detail how I have come to that conclusion, I wish to say a few words about the trial judge’s decision to certify in this case. His Honour found, pursuant to s 295(3)(a) of the Criminal Procedure Act 2009, that the exclusion of the DNA evidence would ‘substantially weaken the…

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DPP v Paulino [2017] VSCA 38
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[2017] VSCA 38
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CaseChat Overview and Summary

The case of DPP v Paulino concerns an interlocutory appeal brought by the Director of Public Prosecutions (DPP) against a decision to exclude DNA evidence in a pending murder trial. The respondent, Paulino, was accused of murdering his wife, and the prosecution sought to introduce DNA evidence from a pair of boots seized from him shortly after the crime. The respondent claimed the boots were the ones he wore the night of the murder. The trial judge excluded the DNA evidence from the boots as irrelevant and prejudicial under the Evidence Act 2008. The DPP appealed the decision, arguing the DNA evidence was relevant and its probative value outweighed any prejudicial effect.

The primary legal issues in the case were whether the DNA evidence concerning the boots was relevant to any fact in issue and, if so, whether its probative value was outweighed by the risk of unfair prejudice under ss 55(1) and 137 of the Evidence Act 2008. The court had to determine the significance of the DNA evidence, which was found to be a mixed profile from four contributors, and whether it could rationally influence the jury's assessment of the respondent's presence at the crime scene. The court also considered the implications of other DNA samples from the boots that implicated the respondent's sons, who were not present at the crime scene, thereby raising questions about the reliability of the DNA evidence.

The court found that the trial judge was correct in ruling the DNA evidence irrelevant. The court reasoned that even if the jury accepted the DNA evidence, it could not rationally affect their assessment of the probability of the respondent’s presence at the time his wife was killed. The court noted that the DNA evidence did not link the respondent to the crime scene, and other DNA samples from the boots implicated the respondent’s sons, who were not present at the crime scene. Therefore, the probative value of the DNA evidence was minimal and outweighed by the risk of unfair prejudice. The court upheld the trial judge’s decision, finding no error in excluding the evidence.

The final orders of the court were to refuse the DPP leave to appeal the decision of the trial judge to exclude the DNA evidence. The court affirmed that the evidence concerning the boots was irrelevant to any fact in issue and its exclusion was justified under the Evidence Act 2008.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Item 34, the pair of boots, was taken from the respondent within hours of the killing. The respondent claimed that he had been wearing them the night that his wife was stabbed. When scientifically examined, no blood was found on the boots. DNA was, however, extracted from the sole of the left boot. Although a mixed DNA profile with four contributors was derived, initially Mr Gellatly[60] determined it to be ‘too complex for further interpretation’. Sometime later, sample ‘34-1’ was again analysed. In a report dated 13 September 2016 (Exhibit 4), Mr Gellatly found there to be a mixed DNA profile with four contributors. Having assumed the respondent to be a contributor, using a ‘Likelihood Ratio’ (‘LR’) approach,[61] Mr Gellatly expressed the opinion that that the ‘DNA evidence is 570 times more likely if [TP] is a contributor’. The prosecution sought to introduce the DNA evidence relating to sample 34-1.[60]See [44] and fn 26 above.[61]In Mr Gellatly’s report dated 21 February 2014 (Exhibit 1A) it is said:When assessing DNA evidence, Person of Interest DNA profiles (known as reference samples) are compared to one or more evidentiary DNA profiles. … LRs assess the strength of the DNA evidence by comparing two alternative explanations for this evidence. It is usually calculated assuming the minimum number of contributors necessary to explain the evidentiary DNA profile. It should be noted that varying the number of contributors influences the magnitude of the LR; additional calculations can be performed if deemed necessary.The following LR chart is also set out: Likelihood Ratio Verbal Equivalent 1 is neutral 1–10 provides slight support 10–100 provides moderate support 100–1,000 provides strong support 1,000–1,000,000 provides very strong support Over 1,000,000 provides extremely strong support In my opinion, the trial judge was correct to find that the DNA evidence concerning the boots was irrelevant to any fact in issue. As a matter of logic, the evidence goes no way towards proving that the respondent was present at the scene when his wife was killed. Put another way, if the jury accepted the DNA evidence, it could not rationally affect their assessment of the probability of the respondent’s presence at the time his wife was killed. It will be remembered that a shoeprint was found in a garden bed at the deceased’s mother’s premises, and that at least one person wearing shoes stained with TP’s liquid blood had ‘traversed through the garage’. The boots were not implicated. Moreover, other samples taken from the boots render the prosecution’s contention — that sample 34-1 is capable of founding an inference (as part of the overall circumstantial case) that the respondent was present when his wife was killed — extremely problematic. Thus, sample 34-3 was a sample of DNA obtained from the outer surface of the toe region of the left boot. Mr Gellatly, in a report dated 13 July 2016 (Exhibit 3), expressed the opinion that the DNA evidence is 7.1 times more likely if the deceased’s son, DP, is a contributor. And with respect to sample 34-5, a sample obtained from the outer surface of the heel of the right sole, Mr Gellatly said that the DNA evidence is 100 billion times more likely if the deceased’s other son, LP, is a contributor. It is not suggested that either DP or LP were present at the scene when their mother met her death, so that their DNA must have been deposited onto the boots by some mechanism unconnected with their presence at the scene of the crime. So much emphasises the conjectural nature of the prosecution’s reliance on the evidence of sample 34-1.