JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 5, 6, 7, 12 October 2016
DATE OF RULING:	16 June 2017
CASE MAY BE CITED AS:	DPP v Paulino (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2017] VSC 343

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CRIMINAL LAW – evidence – husband charged with murder of wife – prosecution case wholly circumstantial – evidence of family dispute leading to separation, deceased’s fear of accused, accused’s threats to kill or harm deceased or parents or sons made to her, accused’s threats to kill or harm deceased or parents or sons made to others, state of marriage pre-separation, granting of intervention order against accused and accused’s distribution of pornographic video allegedly depicting deceased – whether admissible – whether ‘relationship evidence’ – whether relevant to motive of accused to commit and actual fact of crime – whether probative value outweighed by danger of unfair prejudice to accused – representations by deceased (an unavailable witness) to family and friends about conduct and threats of accused – whether admissible as original evidence or as exception to hearsay rule - whether contemporaneous representations about feelings and state of mind of deceased – whether made when or shortly after asserted facts occurred and in circumstances making fabrication unlikely – whether made in circumstances making reliability highly probable – Evidence Act 2008 (Vic) ss 55(1), 56(1), 59(1), 65(2)(a) and (b), 66A, 135 and 137.

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

HIS HONOUR:

Fernando Manuel Paulino is charged on indictment with murdering his wife, Teresa Paulino, on 15 July 2013 in Victoria.[1] He has been arraigned and has pleaded not guilty. The deceased was found dead due to multiple stab wounds in the garage of her residence at Reservoir. She was badly estranged from her husband. There is no issue that the deceased was murdered. The sole issue in the trial is whether the accused was the murderer.
[1]These are my reasons for decision for the ruling I made on 14 October 2016. On 15 June 2017, the jury delivered a verdict of guilty.

As summarised in the prosecution opening, the case against the accused is wholly circumstantial. There were no eyewitnesses to the killing. There is no confession. Besides disputed DNA evidence, there is nothing directly linking the accused with the circumstances of the crime. The prosecution case is that the accused felt hatred and enmity towards the deceased, that he had the opportunity to kill her and that he did so.

The general facts and circumstances alleged by the prosecution are that the accused and the deceased were married in 1987. They had two children, Daniel (born 1990) and Luke (born 1992). It was not a harmonious marriage. The couple separated in 2010…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Paulino (Ruling No 1)

Details

AGLC: DPP v Paulino (Ruling No 1) [2017] VSC 343
Case: [2017] VSC 343
Decision Date: 16 June 2017

CaseChat Overview and Summary

The case before the court involved a prosecution of the respondent, Paulino, on a charge of murdering his wife. The prosecution’s case was entirely circumstantial, relying on a series of events that suggested the respondent had motive and opportunity to commit the crime. This included evidence of a family dispute that led to the separation of the couple, the deceased’s fear of the respondent, and threats made by the respondent towards the deceased, her parents, and sons. Additionally, there was evidence of the respondent distributing a pornographic video allegedly depicting the deceased, which was contested as potentially relevant to the motive and fact of the crime.

The primary legal issues the court had to address were the admissibility of the evidence presented by the prosecution, specifically whether the evidence of the family dispute, threats, and the pornographic video constituted ‘relationship evidence’ under the Evidence Act 2008 (Vic). The court also had to determine if the probative value of this evidence outweighed the potential for unfair prejudice to the respondent. Furthermore, the court examined the admissibility of representations made by the deceased to family and friends about the respondent’s conduct and threats, considering whether these could be admitted as original evidence or as exceptions to the hearsay rule.

The court found that the evidence of the family dispute and threats made by the respondent to the deceased, her family, and others were admissible as they were relevant to establishing the respondent's motive and the actual fact of the crime. The court held that the probative value of this evidence was not outweighed by the danger of unfair prejudice. In relation to the pornographic video, the court determined that it was not admissible as it did not meet the criteria for ‘relationship evidence’ and its prejudicial effect substantially outweighed its probative value. Regarding the deceased's representations, the court ruled that they could be admitted as they were contemporaneous and made under circumstances that made fabrication unlikely and reliability highly probable.

The final orders of the court included the admissibility of the family dispute and threat evidence, excluding the pornographic video, and admitting the deceased's representations as exceptions to the hearsay rule. This decision allowed the prosecution to proceed with their circumstantial case against the respondent.

Orders