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DPP v Paulino (Ruling No 3)

DPP v Paulino (Ruling No 3)

Case [2017] VSC 345 16 June 2017

Admissibility of Evidence

DNA Evidence

Presumption of Innocence

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2016 0036

DIRECTOR OF PUBLIC PROSECUTIONS

FERNANDO MANUEL PAULINO

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 5, 6, 7, 12, 14, 17, 18, 20, 21, 24 October 2016
DATE OF RULING:	16 June 2017
CASE MAY BE CITED AS:	DPP v Paulino (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2017] VSC 345

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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 – whether DNA evidence connected accused to the killing – whether relevant to fact in issue - whether innocent explanations existed for presence of DNA of deceased on items connected with accused – whether reasonable bases existed for preferring inculpatory explanations of prosecution over exculpatory explanations of defence – whether preferring prosecution explanation 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 Hargeaves & Partners

HIS HONOUR:

As discussed in related rulings,[1] in this trial of a charge against the accused of murdering his wife the prosecution case is wholly circumstantial. As part of that circumstantial case, the prosecution intends to lead DNA evidence establishing a connection between the circumstances of the killing and the accused. The defence objects to this evidence upon two grounds:

·it is not relevant under s 55(1) and therefore not admissible under s 56(2) of the Evidence Act 2008 (Vic)
·if relevant and admissible, its probative value is outweighed by the danger of unfair prejudice to the accused defined in s 137.

[1]DPP v Paulino (Ruling No 1) [2017] VSC 343 (16 June 2017) (Bell J); DPP v Paulino (Ruling No 2) [2017] VSC 344 (16 June 2017) (Bell J). These are the reasons for decision of the ruling I made on 28 October 2016. That ruling was the subject of an interlocutory appeal by the prosecution, which was dismissed: DPP v Tom Massey (a pseudonym) [2017] VSC 38 (6 March 2017) (Weinberg, Priest and Ferguson JJA). On 15 June 2016, the jury delivered a verdict of guilty.

The DNA evidence in issue was taken from:

·a pair of boots of the accused (item 34)
·the motor vehicle of the accused (item 43)
·a jacket of the accused (item 35)
·a long-sleeved shirt of the accused (item 32).

In relation to the admissibility of this evidence, the prosecution submission is that the source of the DNA found on these items is the deceased and that the jury could, without danger of unfair prejudice, find that it was deposited on or transferred to these items at the time of or shortly…

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 3)

Details

AGLC: DPP v Paulino (Ruling No 3) [2017] VSC 345
Case: [2017] VSC 345
Decision Date: 16 June 2017

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v Paulino, the respondent was charged with the murder of his wife. The case was heard in the Supreme Court of Victoria. The central issue in this case was the admissibility of DNA evidence that the prosecution intended to use to connect the accused to the crime scene. The defence argued that the DNA evidence was unreliable and should be excluded on the grounds that it was prejudicial and its probative value was outweighed by the danger of unfair prejudice.

The court was required to determine whether the DNA evidence was relevant to the fact in issue, specifically whether it connected the accused to the killing. Additionally, the court needed to consider whether there were innocent explanations for the presence of the deceased's DNA on items associated with the accused. The court also had to examine whether there were reasonable bases for preferring the prosecution's explanation over the defence's explanation, and whether preferring the prosecution's explanation would be purely speculative. Furthermore, the court had to decide whether the DNA evidence should be excluded because its probative weight was outweighed by the danger of unfair prejudice to the accused.

The court found that the DNA evidence was relevant and could connect the accused to the crime scene. The court concluded that there were no innocent explanations for the presence of the deceased's DNA on items associated with the accused. The court held that there were reasonable bases for preferring the prosecution's explanation over the defence's explanation, and that preferring the prosecution's explanation was not purely speculative. However, the court also found that the probative value of the DNA evidence was outweighed by the danger of unfair prejudice to the accused. Consequently, the court ruled that the DNA evidence should be excluded.

The court ordered that the DNA evidence be excluded from the trial. This ruling was made in accordance with the provisions of the Evidence Act 2008 (Vic) ss 55(1), 56(2) and 137. The court's decision to exclude the DNA evidence was based on a careful consideration of the relevant legal principles and the circumstances of the case. The court's ruling ensured that the accused's right to a fair trial was protected, and that the trial would proceed without the risk of unfair prejudice to the accused.

Orders