Paulino v The Queen
[2018] VSCA 306
•21 November 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0039
| FERNANDO PAULINO |
| v |
| THE QUEEN |
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| JUDGES: | PRIEST, BEACH and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 November 2018 |
| DATE OF JUDGMENT: | 21 November 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 306 |
| JUDGMENT APPEALED FROM: | [2017] VSC 794 |
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CRIMINAL LAW – Application for leave to appeal against conviction – Murder by husband of estranged wife – Whether the trial miscarried as a result of an accumulation of irregularities – Whether attention of the jury drawn to items of inadmissible evidence – Whether submissions in prosecutor’s final address lacked an evidentiary basis, or involved an impermissible alteration to prosecution’s case – Whether the trial judge erred in permitting prosecution to rely on the applicant’s failure to enquire about what happened to the deceased as evidence of incriminating conduct – Leave to appeal granted – No substantial miscarriage of justice – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr D Dann QC | Tony Hargreaves & Partners |
| For the Respondent: | Mr C Winneke QC and Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA
KAYE JA
Following a 24 day trial in the Supreme Court, the applicant was convicted of the murder of his estranged wife, Teresa Paulino, in Reservoir on 15 July 2013. After a plea made on his behalf, he was sentenced to be imprisoned for a total term of 30 years, with a non-parole period of 25 years.
The applicant seeks leave to appeal on two grounds, namely:
GROUND 1:
The trial of the Applicant miscarried as a result of the accumulation of difficulties faced by the Applicant in circumstances where:
(a) the attention of the jury was drawn to items of inadmissible evidence;
(b)submissions were made in the final address of the Learned Prosecutor that had no evidentiary basis and/or were inappropriate; and
(c)submissions were made in the final address of the Learned Prosecutor which involved an impermissible alteration of the Prosecution case as it related to the forensic evidence.
GROUND 2:
The Learned Trial Judge erred in permitting the Prosecution to rely on the Applicant’s failure to enquire about what had happened to Teresa Paulino, when informed by Detective Senior Constable Smith that she had passed away, as evidence of incriminating conduct.
Background
The applicant was born on 31 December 1961, and Teresa Paulino (‘Teresa’), was born on 14 June 1964. They had two sons, Daniel, who was born in 1990, and Luke, who was born in 1992. The applicant and the deceased purchased their family home at 1 Gretal Court, Taylors Lakes, where they lived for approximately 20 years before separating.
The marriage between the accused and the deceased was not a happy one, and there was frequent conflict between them. Their relationship deteriorated to the extent that the deceased ultimately slept in a room with her son Luke for some of the later years of the marriage. Ultimately, the applicant and Teresa separated in January 2010, after a bitter dispute that erupted at a get together at a family beach house in Rye.
Following that incident, Teresa moved out of the family home and went to live with her elderly parents at 19 Massey Avenue, Reservoir. While she was living there, she assisted her mother to care for her father, who was suffering from the advanced stages of Alzheimer’s disease. Her father died about one year after the deceased moved in with her parents. In the meantime, the two sons of the marriage, Daniel and Luke, remained residing in the Gretal Court home with their father. They frequently visited their mother in Reservoir, and in particular, they regularly had dinner with her at the Massey Avenue home each Sunday evening.
After the separation, the applicant initially sought to persuade Teresa to return to the family home, but she declined to do so, having decided that she should terminate the marriage. As time went on, the applicant became more unhappy with the situation, and increasingly resentful towards Teresa. He also harboured suspicions that she might be seeing another man, and he expressed his anger and aggression towards her in a number of statements, and by conduct towards her, in the period leading to her death.
The principal assets of the marriage were the matrimonial home at 1 Gretal Court, Taylors Lakes and two factories in Keilor Park Drive, Keilor Park. The applicant and Teresa were joint proprietors of the family home, so that if Teresa were to die, the accused would become the sole owner of the property by survivorship. The two factories were owned by a family trust known as the Paulino Family Trust. The trustee of the trust was Danluke Investments Pty Ltd, the two equal shareholders of which were the applicant and Teresa. At the time of the deceased’s death, one of the factories was rented, and the other factory was used for the applicant’s business as an electrician. In the event of the death of Teresa, the applicant stood to automatically become the sole legal proprietor of the two factories.
Teresa initially consulted a family lawyer, Lily Safarewicz, in August 2010, in order to obtain preliminary advice concerning her rights. Subsequently, in March 2012, she attended her solicitor’s office and instructed her to write to the accused to commence negotiations for a property settlement. Proceedings were then commenced in the Family Court in May 2012. Following a number of preliminary hearings, and adjournments, the matter was set down for final hearing on 21 August 2013. As a result of the conduct of the applicant, on 9 July 2013 an application was filed with the Family Court on behalf of Teresa seeking orders to enforce the compliance of the applicant with two previous orders made by the Court, and seeking a further order that in the event that the applicant failed to attend the hearing, the matter should proceed as an undefended case.
In the meantime, in 2011, the applicant had downloaded a brief pornographic movie from a website called ‘Youporn’ which he stored on his computer and his iPhone. The footage showed an unidentified female apparently giving oral sex to an unidentified male. The applicant either believed, or sought to portray to others, that the female who was depicted in the video was the deceased. He insisted that his two sons watch the video, and he also drew it to the attention of other persons with whom he was acquainted. Subsequently, in early 2012, the applicant made a number of repeated late night nuisance telephone calls to Teresa’s telephone. Telstra records, tendered in the trial, indicated that between 20 January 2012 and 14 February 2012, he made 81 short hang up calls to Teresa, many of which were between the hours of 12:30 am and 4:30 am.
Ultimately, on the advice of her solicitor, Teresa attended at the Reservoir Police Station and reported to police the conduct of the applicant. As a result, on 20 February 2012, the Heidelberg Magistrates’ Court made an intervention order prohibiting the applicant from contacting or communicating with Teresa, or following her or keeping her under surveillance.
Notwithstanding the existence of that order, the conduct of the applicant towards Teresa deteriorated further as negotiations concerning a property settlement proceeded. He told other persons, including his sons, that Teresa had cheated on him, and that she was a ‘slut’ and a ‘whore’. He also followed Teresa, attending on a number of occasions at Essendon Fields Shopping Centre which was close to Teresa’s place of employment. On one occasion, on 22 November 2012, he followed her from the vicinity of LaManna Supermarket to her vehicle, and threatened her. On another occasion, when Teresa was having coffee at Essendon Fields in April 2013 with a male friend, the applicant confronted Teresa and called her a ‘whore’ and a ‘slut’.
At the trial, evidence was adduced from a number of witnesses that in the period leading to her death, the applicant stalked Teresa, he made claims to other witnesses about the pornographic video, and he made threats to kill her. A number of witnesses gave evidence that during that period Teresa was frightened of the accused and was fearful for her life.
Circumstances of offence
As mentioned, at the time of her death, Teresa was living with her mother at her parents’ premises in 19 Massey Avenue, Reservoir. On the weekend before her death, her mother had gone to stay with Teresa’s brother, Patrick Mancuso, at his home in Kyneton, and she was not due to return home to Reservoir until Tuesday 16 July, the day after Teresa was murdered. Ordinarily, it was common practice for Teresa’s two sons, Daniel and Luke, to have dinner with her at the home at Massey Avenue on a Sunday evening. However, they did not do so on Sunday 14 July 2013. Instead, arrangements were made for them to have dinner with their mother on the Monday evening, 15 July, at the home of Teresa’s sister, Francesca (Franca) Mancuso in Reservoir.
On the evening of 15 July, Teresa, Daniel and Luke each arrived, separately, at Franca’s home, shortly after 5:30 pm. After dinner, Daniel and Luke each departed about 7:30 pm, and Teresa departed at 8:30 pm. At 9:00 pm, Teresa’s neighbours in Massey Avenue, Nina and Petros Kotsopoulos, heard a sound like someone calling out Nina’s name for help. Nina Kotsopoulos attempted to contact Teresa by telephone but was unable to do so. She therefore telephoned Teresa’s sister Franca. As a result, Franca’s husband, Nick Franco, together with a friend, Michael Cardamone, drove over to Teresa’s house. They found that the lights of the house were on. Having entered through the side gate, they walked to the garage. The roller door was open. When they turned on the lights, they saw Teresa lying on the ground, and the surrounding area was covered in blood. The police were contacted.
The police attended at the scene at 9:54pm. They checked for signs of life on the deceased but could find none. A crime scene was established. Ambulance officers attended and confirmed that Teresa had passed away. A post-mortem, subsequently carried out by Dr Heinrich Bouer, revealed the presence of multiple penetrating stab wounds to the chest, abdomen and back. There were at least 16 stab wounds, of which seven were to the front and nine to the back. The stab wound tracks extended in multiple directions into the chest and abdominal cavity. They were consistent with having been caused by a sharp implement such as a knife. In addition, there was evidence of blunt force trauma to the head and face, and lacerations to the scalp and right upper lip, and black left eye. The maxilla was fractured. Dr Bouer determined that the degree of force required to produce the wounds was severe, and that the cause of death was multiple stab wounds.
In the meantime, Daniel Paulino had arrived home at Gretal Court at about 8:15 pm. He found that the applicant was not at home, his 4 wheel drive Mitsubishi Challenger vehicle was missing, two televisions were on in the house at a high volume, and that all the interior lights were on. In his evidence, he said that that was unusual, because his father was quite fastidious in insisting that the electrical lights and appliances only be turned on when they were needed. He tried to telephone the applicant on a few occasions, but he was unable to make any contact with him. The applicant made first use of his mobile telephone at 11:02 pm, when he telephoned his son Daniel and spoke to him briefly. The telephone records demonstrated that his last use of the telephone, before then, was to send a text message to a customer at 6:51 pm. The evidence of both of the applicant’s sons was that ordinarily the applicant would always have his telephone physically with him or closer to hand.
Police first made contact with the applicant at 12:26 am on Tuesday 16 July, when Detective Senior Constable Jason Smith and a colleague attended at the Gretal Court premises to speak to him. The applicant was awake and watching television. Detective Smith told him that an incident had occurred involving his wife and that as a result she had passed away. Detective Smith gave evidence that in response the applicant demonstrated some concern for his two sons, but he did not ask what had happened to Teresa.
The applicant told Detective Smith that he had been out earlier in the evening carrying out a hard rubbish collection in the area, and that he had also been to the Watervale Safeway supermarket. He took the police to the vehicles that were parked on the property, and indicated to them some rubbish and materials that were in the rear of the Mitsubishi Challenger that was parked in the garage. The police took possession of the clothing that the applicant said that he was wearing during the day and they also took a statement from him.
In the statement, the applicant told the police about the circumstances of his separation from Teresa. Among other matters, he accused her of smoking marijuana and of smoking methylamphetamine. He told the police that he had received a telephone call from an unknown woman, who told him that Teresa had let herself be filmed having oral sex with a man which was on the website Youporn. He told police that he located the footage and formed the view that it depicted the deceased with a friend of his. He said that he tried to contact Teresa about the text, but when she did not respond, he sent a photograph of the video.
In the statement, the applicant further stated that he had last seen his wife two or three months earlier at the Coles Supermarket at Essendon Fields. He said that on 15 July he had visited his mother in Hillside, then returned home at 5:30 pm. He had earlier received a message from Daniel indicating that Luke and he were going to have their evening meal at their mother’s place. He said he did a couple of things on his computer, ate a meal, and then left home at about 8:00 pm to 8:30 pm in his Mitsubishi Challenger in search of hard rubbish in the Delahey and Sydenham areas. He said that in the course of his travels he observed a ‘booze bus’ set up in Taylors Road close to Kings Road, Sydenham. He gave details of the route by which he had travelled to carry out the hard rubbish collection. He then attended the supermarket store at Watervale Shopping Centre on Taylors Road, continued to search for hard rubbish, and ended up at his mother’s house at 9:30 pm to 10:00 pm. He said that when he arrived there, he ascertained that his sister, Elizabeth Marasco, had telephoned trying to contact him, and that was when he realised that he must have left his mobile telephone at home. When he returned home, he found his mobile telephone in his work utility. He made efforts to contact each of his sons, and spoke to his sister, who told him something had happened to Teresa. He then spoke to Keilor Downs police to find out what had happened.
On Tuesday 16 July 2013, the applicant accompanied Homicide Squad Detective Sergeant Robert Nazaretian and Detective Senior Constable Tony Harwood on an audio recorded drive over re-enactment of the route he had travelled on the previous evening when searching for hard rubbish. Residential canvasses, conducted along the route of that run, revealed CCTV footage of several locations, and identified addresses from which the applicant said that he collected items of discarded rubbish from nature strips.
CCTV footage in Apollo Road, Taylors Lakes, close to the applicant’s home, captured a vehicle resembling his vehicle driving east along Apollo Road at 7:22 pm on 15 July. A review of CCTV footage from a camera at the corner of Taylors Road and Fulwood Court, St Albans failed to identify his vehicle either entering Fulwood Court or driving along Taylors Road during the time nominated by him, or at any time between 5:30 pm and 10:00 pm on 15 July. The review indicated that his vehicle had travelled west along Taylors Road at that location at 10:04 pm. It was then heading in the direction of a booze bus that was set up a further 200 metres west along Taylors Road. The operators of the booze bus had ceased testing motorists between 9:50 pm and 10:20 pm while they were having a meal break. CCTV footage also indicated that the applicant’s vehicle entered the Watervale Shopping Centre car park at 10:10 pm. He made a purchase at the supermarket at 10:21 pm as indicated both by CCTV footage and a cash register receipt. He then exited the car park shortly thereafter. The applicant’s vehicle was then depicted by CCTV footage entering the driveway of his mother’s house in Hillside at 10:31 pm, before exiting the driveway eleven minutes later.
On 23 June 2015, the applicant was arrested and interviewed at the office of the Homicide Squad in Spencer Street. In the interview the applicant said that the statement that he had previously made was true.
Summary of evidence
Before turning to the grounds of appeal, it is necessary to set out, in some detail, some of the evidence in the case, in order to give context to the issues raised by those grounds.
Daniel Paulino (‘Daniel’) gave evidence that his parents’ marriage was not a happy one, and that it was marked by frequent arguments between them. On occasions the deceased would sleep on a couch, or in Luke’s bedroom, when they had an argument. Daniel described the circumstances of the dispute between his parents in Rye in January 2010, as a result of which his mother left the house. He said that ordinarily it takes 20 to 30 minutes to drive from the house at Gretal Court, Taylors Lakes to the house at Massey Avenue, Reservoir.
Daniel said that after his parents separated, he could overhear them arguing on the telephone. Their relationship remained the same, but it deteriorated in the period leading to his mother’s death, particularly after the house at Gretal Court was placed on the market a few months before she died.
Daniel stated that after the deceased obtained an intervention order against him, the applicant would say things such as ‘your slut of a mum did this’. He also told her that he had video evidence that he would show Daniel and Luke of the deceased being involved in a pornographic video. The applicant raised that topic with Daniel on at least five or six occasions, but Daniel refused to believe it. The applicant persisted that the person depicted in the video was the deceased. At the time of the restraining order, and also at the time that the Gretal Court house was placed for sale, the applicant threatened the deceased, saying ‘Your mum has done this to us, she’s destroyed this family, I’m going to kill her’. He also said ‘She will pay for this one way or another’. Daniel would hear the applicant talking under his breath about the impending Family Court proceeding stating ‘Your mum’s done this’. He told Daniel that he suspected that the deceased might have been cheating on him. He regularly called the deceased a ‘slut’.
Daniel stated that the applicant always told his sons not to leave lights on and not to leave the television on. Daniel was never aware of any previous occasion on which the applicant would go out and leave the lights on and the television on. The applicant had a mobile telephone, which he always wore strapped to his belt in a leather case. Daniel said that his father would never be without his mobile telephone, and he always had it with him. A few months before his mother died, the deceased asked Daniel how he could set up his telephone to private so he could call people and his number would not show up. Daniel was never aware of the applicant previously making a special trip to go out and collect hard rubbish. On occasions when they were driving in the vehicle, the applicant would keep an eye out for something he might be interested in, but he would never go out with the specific intention of looking for hard rubbish.
Daniel further stated that it was common practice for Luke and himself to have dinner with their mother at Massey Avenue on Sunday evenings. However, they did not do so on Sunday 14 July, but instead had dinner at their aunt Franca’s house in Reservoir on the night of Monday 15 July. Daniel arrived at Franca’s place at 5:30 pm, and left on the same evening at 7:50 pm. When he arrived home at Gretal Court, he noticed the two televisions were on and their volume was loud, and that all the interior lights were on. There was no sign of the applicant, which was unusual, and the applicant’s Mitsubishi vehicle was missing. Daniel tried to telephone his father a few times but it just rang out. Subsequently, he became worried and drove to his grandmother’s place in Reservoir. While he was en route, his aunt Franca telephoned him, told him that something had happened to his mother, and said that he was to go to her place instead, which he did. After he arrived there, Daniel attempted to telephone the applicant at least five to ten times, but he was unable to make contact. Finally, the applicant telephoned him after 11:00 pm, and said ‘Is everything okay, where are you?’ Daniel told him that Teresa had passed away. The applicant said that he was at his mother’s house in Sydenham, but he did not say what he had been doing that evening.
Luke Paulino (‘Luke’) also gave evidence that his parents’ marriage was not a happy one, and at one stage the deceased slept in his bedroom every night from when he was the age of 6 or 7 years of age until he was about 13 years old. He also described the circumstances in which his parents separated following an argument at their grandparents’ house in Rye in January 2010. He said that after his parents separated, there were frequent heated arguments between them. He could hear his father speaking to his mother on the telephone and they were having arguments, which got worse over time.
In about 2013, the applicant mentioned to Daniel and Luke that Teresa was depicted in a pornographic video. He said ‘Your mum’s in a video just pretty much being a slut, putting shame on herself and the family’. He showed the video to Luke and said that the woman in it was their mother. Luke was not able to discern who the people in the video were. The applicant ‘rambled on’ about how Teresa had wrecked the family and he called her a ‘slut’ and a ‘bitch’. Luke Paulino in his evidence said that that occurred on a weekly basis.
Luke stated that the first time that he heard his father threaten his mother was when the Court proceedings were underway. On one day, he said ‘I’m going to lose it and I’ll die before I give her anything or she’ll die before I give her anything, I’ve worked so hard for everything, I just want to make her suffer, pretty much one day I’m going to lose it and she’s going to cop it’. In his evidence Luke said that the applicant had said, on a number of occasions ― probably between 10 and 30 times ― that he would kill Teresa. He also said that he would die before Teresa ever got anything. He said that Teresa was making him lose a lot of money with the ongoing Court cases. He said that Teresa was not entitled to anything, she did not deserve it, and that he had worked for all of it. He often said to Luke and to Daniel that one day he would just explode, ‘she’s going to cop it, I don’t care if I go to jail or anything, I’ll die, I just want to make her suffer’.
Luke further stated that his father did not seem happy about Daniel and him going to see their mother. About a year after they split up, he started to mention suspicions that he had that Teresa was with other men. He would often say that Teresa had cheated on him. He said that shortly after he was shown the video, the applicant told Daniel and Luke that he wanted them each to undertake a DNA swab test to see if they were his sons. He said ‘I want to do this to see if you guys are actually my boys, I don’t trust your mum’. Daniel refused to participate in the test. Luke initially refused to, but after the applicant insisted, he agreed to do so. As a result Luke put a swab in his mouth, handed it to the applicant, and the applicant put it in a zip lock bag.)
Luke stated that the applicant treated his mobile telephone as his lifeline for work. It was always attached to his hip by a strap, and he was never without it. Luke said that the applicant’s practice was that if lights in the house were not being used they should be turned off, and that if the television was not being watched, it also should be turned off. On occasions, when there was a hard rubbish removal in the suburbs, the applicant would randomly come home with something he had picked up. However, he would not go out and look for things that had been left in a hard rubbish collection.
Luke gave evidence as to his movements on 15 July 2013. On the Sunday (14 July), Luke was told that the dinner was going to be at Franca’s house on the Monday rather than at Massey Avenue. He told the applicant that the dinner had been moved to Monday, but he did not tell the applicant where it was going to take place. He said that the applicant was aware that dinner time was ordinarily between 5:00 pm and 7:00 pm. Usually, for Sunday night dinners, Luke would leave home at about 5:00 pm, and return home between 8:00 pm and 8:30 pm at the latest. He said that the drive from Massey Avenue to Gretal Court took about 20 minutes.
Luke stated that on the evening of 15 July, after dinner, he left his aunt’s place and visited a friend. While he was there, his brother Daniel telephoned him inquiring if he knew where the applicant was. Luke tried to telephone his father but could not get a response. He then set out to drive to his mother’s house, but while he was en route, Daniel told him to go to his aunt Franca’s house which he did. When he arrived there, he was told that his mother had died. He spoke to the applicant on the telephone. The applicant said that he had a number of missed calls from Luke. Luke responded that Teresa had died. Luke asked the applicant where he was, and he said that he was out shopping. In his evidence, Luke said that ordinarily the applicant would shop on weekends.
There were a number of witnesses who gave evidence concerning the allegation by the applicant that his ex-wife had participated in a pornographic video. It should be noted that there was no suggestion in the trial that that allegation had any truth in it. A number of the witnesses stated that they gave no credence to the allegation, and that it was untrue.
Alexander Rizzolio had been a friend of the applicant and Teresa Paulino in previous decades, but he had had no contact with them for about ten years. On one day, in early 2012, the applicant contacted him ‘out of the blue’ and visited Mr Rizzolio at his property in Mernda. When the applicant visited him, he showed Mr Rizzolio a video of a woman having oral sex with another person, and the applicant said that the woman that was involved in it was Teresa. He said ‘I’ve got proof’ that that woman was Teresa. The applicant asked Mr Rizzolio if he knew that Teresa had been ‘sleeping around’. At that stage Mr Rizzolio had not seen or had contact with Teresa for some 15 years.
Patrick Mancuso, who is the brother of Teresa Paulino, stated that one or two weeks before she died, Teresa telephoned him and said that she was very upset. She said that the applicant was not being realistic in the settlement talks and she said ‘I can’t see him face to face in Court anymore, I’m scared of him, he freaks me’. Mr Mancuso said that about one year after Teresa and the applicant had separated in January 2010, the applicant telephoned him, and told him that he had information that Teresa was doing pornographic videos, and that he had some. The applicant assured Mr Mancuso that the person in the video was Teresa.
John Choureemootoo had met the applicant in the early 2000s, and had employed the applicant to do some electrical work for him. However, following a dispute about an account, he had no further contact with the applicant after 2002. Ten years later, in 2012, the applicant telephoned Mr Choureemootoo, and accused him of sleeping with his wife. Mr Choureemootoo heatedly denied the allegation and the applicant hung up.
Salva Pusello was a long standing friend of Teresa Paulino. About two years after Teresa and the applicant separated, the applicant telephoned him twice. In the first conversation, he said that the applicant claimed that Teresa had been in a pornographic video, which he got off the internet. Mr Pusello said that it could not be Teresa. About a year later, the applicant again telephoned Mr Pusello and asked him to obtain the DNA of an ex-boyfriend of Teresa. He said he believed that that person was the father of Daniel. Mr Pusello stated that that conversation occurred about six or seven months before Teresa died.
Karen Paulo became a friend of Teresa Paulino after Teresa commenced employment at Tiger Airlines as a flight steward in 2012. Ms Paulo said that Teresa told her that she had been receiving telephone calls and text messages from the applicant, which had an image of her face superimposed on a picture of people having sexual intercourse. Teresa told Ms Paulo that the applicant had sent her that image by text, and that he was threatening to show it to her sons. Ms Paulo said that Teresa also told her that the applicant had followed her on many occasions, and that on one occasion, at the Watergardens Shopping Centre in Taylors Lakes, he had approached her.
Maurizio Lombardo had known Teresa Paulino and the applicant for 30 years, and they were friends. About two years before Teresa died, the applicant telephoned him at work, and asked him if he knew anything about pornographic photographs which depicted Teresa giving oral sex to a male person. Mr Lombardo responded that he had no knowledge of such photographs, and that he did not think that Teresa was the sort of person who would do that.
As mentioned, in February 2012, Teresa Paulino obtained an intervention order from Heidelberg Magistrates’ Court. Senior Constable Michelle Collier, of the Reservoir Police Station, gave evidence that on 11 February 2012 Teresa had told her that she had been receiving harassing telephone calls from her ex-husband, the applicant. Teresa showed her the telephone number that was coming up on her mobile phone, and told her that that was the number of her former husband. While Constable Collier was talking to Teresa, she received six or seven such telephone calls. Constable Collier answered one of them, and ascertained that she was speaking to the applicant. Senior Constable Collier then commenced to fill out paperwork in connection with obtaining the intervention order. While she was doing so, the applicant again made a call to Teresa’s telephone, which Senior Constable Collier answered. The applicant said that his wife was cheating on him. Senior Constable Collier advised him that an interim order would be obtained.
Ms Lily Safarewicz, a family lawyer, acted on behalf of Teresa Paulino in the Family Law proceedings against the applicant. She gave evidence as to matters related to her by Teresa, and also as to the steps and procedures that were taking place in the Family Court in the period leading to Teresa’s death.
Ms Safarewicz confirmed that in August 2010 Teresa initially attended her office seeking preliminary advice. At that stage, she did not want to take any action. In January 2012, Teresa contacted her again. She said that the applicant had been showing people videos of a woman, who strongly resembled her, participating in indecent sexual acts. Ms Safarewicz advised Teresa to seek an intervention order, which she did. In March 2012, Ms Safarewicz wrote to the applicant, and on 10 May 2012 she commenced an initiating proceeding on behalf of Teresa in the Federal Magistrates’ Court. That application sought orders for settlement of the matrimonial property. At the initial hearing of the application, the judge made interim orders on 27 June 2012, including orders requiring the parties to attend a mediation. Subsequently, the matter came back before the Federal Magistrate because the parties were not able to agree on the valuation of the properties. Ultimately, the matter was adjourned until 21 August 2013 for a final hearing on an estimated hearing time of two days.
In the meantime, on 11 April 2013, Ms Safarewicz wrote a letter to the applicant’s solicitors stating that if the applicant did not place the factory on the market, her client would make an application seeking an order for the sale of it. In response, the applicant’s solicitors wrote a letter stating that they no longer acted for the applicant. Accordingly, Ms Safarewicz sent to the applicant a copy of the letter she had sent to his solicitor. On 2 May 2013, the applicant telephoned Ms Safarewicz stating he wanted to keep the factories, and that he required that Teresa pay $45,000 for the house. That proposition was then the subject of negotiations consisting of proposal and counter proposal during May.
On 6 June 2013, Ms Safarewicz wrote a letter to the applicant noting she had not heard from him in relation to a conference with the valuers, and that the matter was set down for final hearing on 21 August. She said that if the applicant did not respond, she would have to file an application seeking directions from the Court. At the behest of Teresa, Ms Safarewicz telephoned the applicant on 2 July, and suggested that he sell the factory in order to ease the financial strain he was experiencing. The applicant responded angrily, and directed abuse towards Ms Safarewicz. On 9 July, Ms Safarewicz filed an application, signed by Teresa, seeking further directions, and seeking an order that if the applicant failed to attend the hearing, the matter would be dealt with on an undefended basis. The application was accompanied by an affidavit sworn by Teresa. Ms Safarewicz advised Teresa that she did not need to have legal representation when she attended Court on the next occasion. However, Teresa asked Ms Safarewicz to accompany her. She told Ms Safarewicz that she was very frightened even to walk from the car to the Court on her own, and that she needed Ms Safarewicz to be with her.
Four police members gave evidence as to communications that they had with the applicant after the death of Teresa Paulino.
On 15 July 2013, at 11:35 pm, Senior Constable Mitchell, who was stationed at Keilor Downs Police Station, received a telephone call from the applicant who said that he had returned home from work, and when he went to his car, he checked his telephone, and noted he had a number of missed messages from his sons. He said that when he contacted his sons, they were upset and said something had happened to their mother. As a result Senior Constable Mitchell attempted to contact Teresa and the applicant’s sons but was unable to do so. He had contact with the Reservoir police and was told that Teresa Paulino had been found deceased. Senior Constable Mitchell then received another telephone call from the applicant at 12:21 am. The applicant told him that he had spoken to his sister, who had informed him that Teresa had passed away.
Detective Senior Constable Tribe attended the Massey Avenue premises at 10:06 pm on 15 July. While he was there, the applicant’s two sons arrived. At 11:02 pm, the applicant made a telephone call that was placed on speaker. Luke Paulino asked the applicant where he had been and he responded ‘Just got home’. Luke asked again, ‘Where have you been, the TV was on upstairs and downstairs’. The applicant responded, ‘I’ve been at your house’. There was then a pause, after which the applicant said, ‘and around doing other stuff, I’ve got all these missed calls and stuff’. He again asked a number of times ‘What’s going on’, but Luke did not respond. Approximately 15 minutes later, the applicant again telephoned, and the telephone was placed on speaker. He again asked what was going on, to which Daniel responded, ‘Something’s happened to Mum’.
On 16 July 2013, at 12:26 am, Detective Senior Constable Jason Smith attended the premises at 1 Gretal Court, Taylors Lakes. Detective Smith told the applicant that police wished to speak to him in relation to an incident involving his wife. He told the applicant that there had been an incident involving his ex-wife as a result of which she had passed away. In response, the applicant showed concern about his children, and he told Detective Smith that they were meant to be meeting his ex-wife that night for tea. Detective Smith and the applicant had general discussions about the efforts he had made to try to contact his children. However, the applicant did not ask Detective Smith, in any direct way, what had happened to his wife. In his evidence Detective Smith said that he only told the applicant that she had passed away. The applicant gave Detective Smith his mobile telephone and his PIN. Detective Smith asked him as to his whereabouts that evening, and the applicant said that he had been out doing a hard rubbish collection in the area and that he had been to the supermarket, Watervale Safeway. He showed Detective Smith some materials that were consistent with hard rubbish that were in the back of a Mitsubishi Challenger vehicle that was parked in the garage. He also provided Detective Smith with the crash cam camera from the vehicle.
At 3:40 am on 16 July 2013 Detective Sergeant Robert Nazaretian had a brief conversation with the applicant at Sunshine Police Station. The sergeant told him that the death of his ex-wife was being treated as suspicious and it was likely that she met with foul play. He also said that she had been found deceased that evening at her mother’s house in violent circumstances. The applicant responded that he must be a suspect because of the divorce situation, and Sergeant Nazaretian advised him he was not then a suspect. A brief interview was then conducted with the applicant. At 7:55 am Detective Senior Constable Harwood and Sergeant Nazaretian accompanied the applicant to the Gretal Court house, where Sergeant Nazaretian observed electrical parts and equipment in the rear of the Mitsubishi vehicle. The applicant then participated, with Sergeant Nazaretian and Detective Senior Constable Harwood, in a re-enactment of the route that he had taken the previous evening. That re-enactment was recorded on a portable audio recording device.
On 17 July, at 11:20 am, Sergeant Nazaretian attended the factory premises with the applicant. The applicant received a phone call on his mobile phone which was on speaker mode. The caller was a real estate agent. A discussion took place about the For Sale sign, and the applicant instructed the agent that the sign should now be removed because it was no longer required.
On Tuesday 16 July 2013 Detective Sergeant Nathan Toey spoke with the applicant outside his mother’s residence in Domain Crescent, Hillside. In that conversation, the applicant spoke of his separation from Teresa. He claimed that Teresa used to come over to his house after the separation and that she was ‘doing my head in’. He said that they used to call each other and abuse each other. The applicant also spoke of a sex video that, he claimed, he had found of his wife which involved one of his friends. He said he had last spoken to his wife at the Family Court, but he had twice seen her before that by accident at Essendon Fields. He said that the Family Court proceedings were to return to Court in August. The applicant described Teresa’s solicitor as being a ‘bloody rat’ and ‘just a right bitch’. He also accused Teresa of wanting his business and his superannuation and even a cemetery plot that he had bought. The applicant accused Teresa of being a drug user, and, when he was asked by Sergeant Toey how she had got into that, the applicant responded ‘I don’t know, it’s probably with that fucking idiot she was seeing …’.
The prosecution called four witnesses who resided, respectively, at the premises at 273, 275, 219 and 217 Taylors Road, St Albans. The occupant of 273 Taylors Road stated that in July 2013 she had left hard rubbish on the nature strip for the hard rubbish collection. She identified items of rubbish that were depicted in photographs shown to her by the police. The occupant of 275 Taylors Road had also put out items in the hard rubbish collection, but none of them were depicted in the photographs. The occupant of 219 Taylors Road did not place any items of hard rubbish outside. The occupant of 217 Taylors Road had placed hard rubbish in the collection, but she could not discern whether any of the items in the photographs had been left by her.
Mr Joseph Tadros, a real estate agent, gave evidence that in March 2013 the applicant gave him an authority to sell the matrimonial home at Gretal Court, Taylors Lakes. Teresa also signed the authority. The property was listed for sale on 29 April. However it was not sold. Mr Tadros heard that Teresa had died. On that day, or on the next day, the applicant contacted him, told him that his wife had passed away, and that he could take the property off the market.
The prosecution called three witnesses relating to the issue whether the applicant’s vehicle could have been seen travelling along Taylors Road on the evening of 15 July 2013.
Senior Constable Julian Szycman gave evidence that on 15 July he was rostered to work with the drug bus crew. On that evening, police set up a drug bus in Taylors Road, St Albans, in order to test west-bound drivers between Fulwood Court and Atheldene Drive. The bus (which at the trial was referred to as the ‘booze bus’) was set up at 6:45 pm. It was about 180 metres west of Fulwood Court. Constable Szycman parked his vehicle in Fulwood Court close to the intersection of Taylors Road, in order to intercept any vehicles that turned into Fulwood Court in order to escape detection. While he was there, he checked the identity of every person that turned into the street and recorded their details. At 9:50 pm, police took a half hour meal break during which period no-one was in Fulwood Court. At 10:50 pm, Senior Constable Szycman conducted a breath test with a driver and walked him to the testing vehicle. He then went back to Fulwood Court, where he remained until midnight. In cross-examination, Senior Constable Szycman confirmed that, according to the records, he had actually left Fulwood Court at 9:40 pm, and he did not return there until 10:32 pm. He confirmed that there were no police officers or vehicles in Fulwood Court during that period.
Detective Leading Senior Constable Robert Catania was given the task of reviewing CCTV footage that had been obtained from four cameras positioned on a house on the corner of Fulwood Court and Taylors Road between 6:30 pm and 11:00 pm on 15 July 2013. Detective Catania made a chart of all the vehicles that had entered Fulwood Court, and he concluded he did not observe any vehicle identical or similar to the Mitsubishi Challenger going into or travelling in Fulwood Court. Detective Catania was also given the task of reviewing footage from a camera pointing in a north-east direction along Taylors Road. That footage depicted an apparent pile of hard rubbish on the nature strip on the night of 15 July. He concluded that no vehicle similar to a Mitsubishi Challenger had stopped next to the pile of hard rubbish that was depicted outside 219 Taylors Road.
Peter Bishop was a qualified mechanic who, since 2003, had been employed by Mitsubishi for fourteen years. In his evidence he described his experience and expertise in the knowledge of the specifications, appearance and features of Mitsubishi vehicles. Mr Bishop was provided by police with the VIN number of the Mitsubishi Challenger then owned by the applicant. He described it as a mid-sized 4 wheel drive vehicle, which was a 2003 model. Its colour was Roseanne red with an accented Fraser beige wheel arches. Mr Bishop was supplied with two folders of CCTV footage and associated still images. One of them related to footage from Apollo Road with a time of 19:22 hours. The other footage related to Taylors Road, and the footage was set at the times 23:04 hours to 23:31 hours. Mr Bishop described the vehicle in the Apollo Road footage as having features that were distinctive of a Mitsubishi PA Challenger. He concluded that that vehicle, depicted in the footage, was a Mitsubishi PA Challenger, and that it was of a model between 2002 and 2005. He also formed the view that the vehicle depicted in the Taylors Road material was a dark coloured Mitsubishi PA Challenger, which was of the generation of vehicle that had been manufactured between 2000 and 2002.
Four police witnesses gave evidence as to the investigation of the murder of Teresa Paulino.
The first such witness was Leading Senior Constable Jeffrey Sear, who was attached to Victoria Police Forensic Services Centre. Senior Constable Sear’s statement was read to the jury by the prosecutor. Senior Constable Sear attended the premises at 19 Massey Avenue, Reservoir at 11:45 pm on 15 July 2013, and he conducted an examination of the crime scene. The premises were located on the west side of Massey Avenue, and comprised a brick house facing east onto the front yard. The driveway was located on the south boundary of the property and extended to a large double garage at the rear of the house. Sensor lights illuminated the driveway and a significant portion of the front yard except the northern section of it. At the north of the property, there were two right shoe impressions in a soft soil garden bed immediately inside the small brick front fence. Senior Constable Sear collected casts of those impressions. On the northern side of the house was a concrete footpath that extended from the front lawn to the rear yard. It was secured by a tall wire mesh metal frame gate that was closed but, at that time, not locked. A twitched double strand of rusted wire was hanging loosely from the fence post which had apparently been cut, enabling access through that gate. Examination of the gate revealed blood staining on the metal frame. Senior Constable Sear examined the rear of the house. He observed a security light sensor unit attached to the eave lining of the rear porch area. The sensor was not operative as it had been rotated in a way that it was no longer directed towards the rear yard and garage area. It had been originally mounted in a direction which, when in an operative position, would not detect movement at the northern end of the porch near the laundry.
Senior Constable Sear described the observations that he made when he entered the garage at the rear of the premises. In particular, he observed Teresa lying face down in a shallow pool of blood. He collected a number of items from the garage. On the floor of the garage, between the location of Teresa’s body and the front roller door, he observed a number of apparent bloodstained shoe impressions which he photographed.
Detective Senior Constable Carrick attended the premises at 19 Massey Avenue at 11:45 pm on 15 July 2013 and conducted a crime scene examination. Relevantly, he gave evidence as to the location of a sensor controlling light at the front and side of the property and of a gate which provided access down the side of the property to the back section. Detective Carrick gave evidence as to the location of Teresa Paulino’s body. He said that there were partial shoe impressions in the blood that was found on the floor of the garage, which he considered could be consistent with Lonsdale trainer shoes. He noted footprints in the garden bed, which, he considered, could have been made by Lonsdale trainers.
Detective Senior Constable Carl Simpson gave evidence that on 18 July 2013, in company with Francesca and Nick Franco, he conducted a walk-through of the premises at Massey Avenue. It was noted that nothing had been disturbed and nothing was missing, except that the fly wire screen to the bedroom, in which Teresa Paulino slept, looked as if it had been pulled back slightly.
The final witness was Detective Anthony Harwood, who was the informant in the proceeding. Detective Harwood confirmed participating on 16 July 2013 in the re-enactment with the applicant in relation to his movements on the previous evening, when he said he had conducted a rubbish run. In the course of that drive, the applicant received a telephone call which was on loud speaker. The person who called was a real estate agent. He discussed with the applicant the sale of the property at Gretal Court. The applicant told the agent that the real estate board could come down, because Teresa had been killed, and the house no longer needed to be sold.
Subsequently, on 19 July, the applicant sent Senior Constable Harwood a text message saying that he should contact an uncle of Teresa, Ross Micalizzi, who would be able to tell him a history of Teresa having had extramarital affairs for a period of years. On 22 July, the applicant provided to police a Woolworths receipt dated 15 July that indicated a time of purchase at 10:21 pm. Subsequently, in November 2014, Detective Harwood reviewed some CCTV footage from camera number 4 from the house on the corner of Fulwood Court and Taylors Road, St Albans. On that footage, at 11:04 pm he saw a vehicle travelling from right to left in the far lane, which appeared similar to a Mitsubishi Challenger.
Detective Harwood also described his observations on viewing footage from the crash cam from the front of the applicant’s vehicle. He said that the camera depicted the applicant arriving at the front of the Watervale Shopping Centre at 10:13 pm, and then departing subsequently with two supermarket bags at 10:26 pm. He said that he conducted a timed drive over from the premises at Gretal Court, Taylors Lakes to Massey Avenue, Reservoir, and found that by taking the most direct route, the trip took 21 minutes. Finally, Detective Harwood stated that Teresa Paulino’s mother, Rosa Mancuso, had walked Senior Sergeant Nazaretian through the house and noted a number of matters. In particular, there were rear sensor lights fitted to the premises by a neighbour’s grandson two or three years previously. The back sensor light would come on automatically after taking a few steps from the back door.
Ground 1
As noted at the commencement of these reasons, the applicant seeks leave to rely on two grounds of appeal. The first ground alleges that the trial of the applicant miscarried as a result of the cumulation of difficulties faced by the applicant in three respects, which are enumerated in subparagraphs (a), (b) and (c) respectively. It is convenient to deal with each of those subparagraphs separately, before considering the combined effect of them.
Ground 1(a): the attention of the jury was drawn to items of inadmissible evidence
Subparagraph (a) alleges that, on four separate occasions, reference was made, or evidence was adduced, as to aspects of the relationship evidence between the applicant and Teresa which the judge had ruled to be inadmissible.
At the commencement of the trial, counsel for the applicant objected to evidence that the prosecution intended to adduce, that was directed to establishing that the relationship between the applicant and Teresa was one in which the applicant bore enmity and hatred towards her. The judge gave a detailed ruling as to the admissibility of various aspects of that evidence.[1] In particular, the judge ruled that a number of aspects of the evidence were admissible, including the evidence of the poor state of the marriage between the applicant and Teresa, the intervention order, the abuse directed by the applicant to Teresa, the evidence relating to the pornographic video, and the threats that the applicant made to kill Teresa, or were made by the applicant directly to Teresa or to other persons.[2] The judge further ruled that evidence, that Teresa was in fear of the applicant, was admissible as it was relevant to the probability of the threats made by the applicant to Teresa.[3] However, he ruled that statements made by Teresa, that she feared that the applicant would kill her, had only a weak probative value, that was outweighed by the prejudice that might be caused by the admission of such evidence. Accordingly the judge held that such evidence was inadmissible.[4]
[1]DPP v Paulino (Ruling No 1) [2017] VSC 343 (‘Ruling No 1’).
[2]Ibid [51].
[3]Ibid [67].
[4]Ibid [71].
In support of subparagraph (a) of ground 1, counsel for the applicant contended that, on four separate occasions, in breach of that ruling by the judge, the attention of the jury was drawn to evidence that involved predictions by Teresa that the applicant would kill her.
The first occasion occurred during the course of the prosecutor’s opening address. In the course of the opening, the prosecutor referred to the incident in which Teresa had telephoned David Vaccaro while she was at Essendon Fields in about April 2013, and had informed him that the applicant was coming towards her, and that if she was found dead, it was the applicant who would be responsible. During the next jury break, senior counsel for the applicant objected to that aspect of the opening, and he made an application that the judge discharge the jury. The prosecutor resisted the application. He accepted that he had unintentionally breached the judge’s ruling, by relying on a document compiled by the parties that appeared to classify the evidence as not objectionable. However, he noted that in that section of his opening, he had also referred to evidence that was to be adduced of repeated threats that the applicant had made that he was going to kill Teresa. The judge refused the application for a discharge of the jury. His Honour expressed the view that the jury would not take the offending passage of the opening into account in its deliberations, and that the part of the opening, objected to by defence counsel, would ultimately be overwhelmed by the evidence that would be adduced, at some length, in the course of the trial.
The second, third and fourth occasions, relied on by counsel for the applicant, in which inadmissible reference was made to the fear by Teresa that the applicant might or would kill her, occurred respectively in the course of the evidence of the witnesses, Carmel Cotroneo, Helen Bouzis and Melina Mancuso. Counsel accepted that the second and third occasions, involving the evidence of Ms Cotroneo and Ms Bouzis, occurred in circumstances where the evidence had ‘popped out’. However, he submitted, the fourth instance, involving the evidence of Melina Mancuso, occurred in circumstances in which both the prosecutor and defence counsel failed to recognise that the judge had made a ‘classification mistake’ in his ruling by specifying that that evidence was admissible, whereas it ought to have been placed in the inadmissible category.
When defence counsel raised the matter at the trial, the judge allowed the applicant time to determine whether he wished to make an application for a discharge of the jury. Following time for consideration, defence counsel explained that he was instructed not to make an application to discharge the jury, but requested a firm direction that the jury should disregard the evidence. Counsel for the applicant accepts that an appropriate direction was so given by the judge to the jury. However, he has submitted, the fact remains that the jury heard on four separate occasions reference as to evidence, which, as the judge himself had recognised, was not only inadmissible, but also was seriously prejudicial to the applicant.
In response, counsel for the respondent submitted that the evidence of Carmel Cotroneo, that is complained of, did not breach the ruling made by the judge. Further, defence counsel did not make any application for a discharge of the jury. While Helen Bouzis gave evidence that Teresa had told her that the applicant was going to kill her, she then clarified her evidence by saying that Teresa had told her that the applicant had threatened to kill her. Counsel for the respondent accepted that the evidence of Melina Mancuso was contrary to the ruling made by the judge. However, after having been given time to consider his position, defence counsel did not make an application for a discharge of the jury, and, counsel for the respondent submitted, an appropriate curative direction was given by the judge to the jury.
In our view, the matters raised under ground 1(a), when properly analysed in their context, did not involve the introduction of any inadmissible material into the trial in a manner which could, on any view, have materially affected the consideration by the jury of the evidence that was adduced in the trial.
It is convenient to deal, first, with the second and third items of evidence relied on by counsel for the applicant under ground 1(a). Contrary to the applicant’s submissions, the evidence of Carmel Cotroneo did not breach the ruling given by the trial judge. The witness was asked whether, in the lead up to her death, Teresa told her of some threats that had been made to her. In response, Ms Cotroneo stated ‘Well apparently um he’s threatened to kill her and said that she wouldn’t get a red cent um of the property, he’d see her six foot under before that happened’. She went on to say that Teresa had indicated that she wanted to give up ‘because he’d threatened to take her life’. When asked, by the prosecutor, what words Teresa said, the witness responded ‘he said he’s going to kill me’.
Plainly, the evidence so given by Ms Cotroneo did not contravene the ruling by the trial judge that evidence, as to Teresa’s fear or prediction that the applicant might or would kill her, was inadmissible.
The evidence of Helen Bouzis is in the same category. When asked by the prosecutor whether Teresa had told her about some threats that had been made to her after she had separated from the applicant, Ms Bouzis responded: ‘Ah, she often said to me that ― um, that he was going to kill her and that ah …’.
The prosecutor then asked Ms Bouzis whether it was indicated that the applicant had actually threatened to do that, to which Ms Bouzis responded: ‘That’s right’. Plainly, the evidence so given by Ms Bouzis was in conformity with the ruling given by the judge and was admissible. Further, and in any event, counsel for the applicant at trial did not take any objection to the evidence given by Ms Cotroneo and Ms Bouzis.
The first and fourth matters, relied on by counsel for the applicant, did each constitute a breach of the ruling by the judge proscribing any reference to fears or predictions by Teresa that the applicant might kill her. As already explained, reference to that matter in the prosecutor’s opening (the first instance), and the reference to it in Melina Mancuso’s evidence (the fourth instance), occurred by way of error. However, more relevantly, those two references, to the specific nature of Teresa’s fears, must be seen in their proper context.
As we have already outlined, the prosecution adduced evidence from a substantial number of witnesses that, in the period leading to the death of Teresa, the applicant had made direct threats to Teresa that he would kill her, and also, that when speaking to other persons, he had told those persons that he would do so. In that context, it is hardly surprising that Teresa was not merely in fear of the applicant, but, more specifically, she was in actual fear of her life. The ruling by the judge that, while it was permissible to lead evidence that Teresa was in fear of the applicant, witnesses would not be permitted to give evidence that she was in fear for her life, was no doubt designed by his Honour to prevent a situation in which evidence of witnesses focussed on predictions given by Teresa that she would or might be killed by the applicant. In the practical circumstances of the trial, it is not surprising that there was some slippage, albeit on but two occasions. However, and more importantly, in the context in which there was a substantial body of evidence that the applicant had made threats to kill Teresa, the reference by the prosecutor in his opening, and the evidence that emerged from Ms Mancuso, that Teresa was in fear that he would kill her, could only have been of little, if any, moment in the jury’s consideration of the evidence at the trial.
Further, for the reasons that we have already set out, we consider that the impermissible suggestions made by the prosecutor in his final address ― that the applicant could have known that Teresa’s mother might have been absent on the night in question, and that he could have known about the rear sensor light ― could not have adversely affected the outcome of the trial for four reasons. First, they were not critical to the argument that the prosecutor made that the killing had been planned. Secondly, counsel for the applicant made it clear that those matters were not supported by evidence. Thirdly, the judge gave appropriate directions to the jury about the matters. Fourthly, trial counsel did not make an application for discharge of the jury.
For the reasons that we have stated earlier, we have concluded that the impermissible submissions by the prosecutor, concerning defence counsel’s cross-examination of Detective Harwood, could not be considered to have any unfair effect on the jury’s assessment of the case against the applicant. As we have noted, that aspect of the prosecutor’s address occupied only a short portion of it. Counsel for the applicant made an effective and strong response to it, and he did not seek a curative direction by the judge to the jury in respect of it.
In considering the combined effect of those three aspects of the application that we have upheld, we remain of the view that, collectively, they did not result in a substantial miscarriage in the case. In particular, we are satisfied that the errors or irregularities, which we have upheld, did not and, indeed could not, have made a difference to the outcome of the trial.[28]
[28]Baini v The Queen (2012) 246 CLR 469, 479 [26]; Andelman v The Queen (2013) 38 VR 659, 677 [85].
At the trial, the prosecution case was very strong.
First, and disregarding the suggestions that the applicant could have known that Teresa’s mother was absent on the night of the killing, the evidence nevertheless strongly supported the proposition that the killing of Teresa had been planned and premeditated.
Secondly, and combined with that, the ferocity of the fatal attack on Teresa had bespoken some underlying emotional pathology on the part of the killer, such as some deep seated and searing hatred of her by the killer.
Thirdly, the motive evidence was particularly strong in a number of respects. The evidence revealed that, since their separation, the applicant had become obsessive about his ex-wife. He had followed and stalked her; he had made suggestions to a number of persons that she had been involved in a pornographic video; and he had become fixated that she had been having extra-marital affairs during their relationship and since their separation. In that context, he had made a number of threats, both to Teresa, and to other persons, that he would kill her. The evidence as to motive ― and as to the applicant’s fixation about Teresa and his hatred of her ― was set in the context of the steps that were being taken in the Family Court proceedings at the time that Teresa was killed. Daniel Paulino gave evidence as to the deterioration of the applicant’s financial position during that time, and the fact that the applicant blamed Teresa for that deterioration. A number of the threats, made by the applicant about Teresa, were in reference to the potential outcome of the Family Court proceedings, such as that he would kill her rather than have her get a ‘red cent’ out of him. The evidence of the solicitor, Ms Safarewicz, established that, at the time of Teresa’s killing, the Family Court proceedings were coming to a head.
The fourth aspect of the prosecution case concerned the evidence of opportunity. It was established that the distance between the Gretal Court home of the applicant and the Massey Avenue premises could be covered by motor vehicle in about 20 minutes. There was evidence, that was capable of being accepted by the jury, that a vehicle, answering the description of the applicant’s vehicle, was depicted by CCTV footage at the intersection of Fulwood Court and Taylors Road at 10:04 pm. The applicant was proven to have arrived at Watervale Shopping Centre at 10:13 pm. In those circumstances, the prosecution had adequately established that the applicant had sufficient opportunity to kill Teresa, and attend at the Watervale Shopping Centre at that time.
Fifthly, on the night on which Teresa was killed, the applicant behaved in a manner that was strangely out of character for him in two respects, namely, he had left the lights and television on in his home when he left it ― possibly in order to create a false alibi for himself ― and, in addition, he had left his mobile telephone in his utility rather than carrying it with him.
Sixthly and finally, on the occasion on which the applicant was first officially told by Detective Smith that his wife had died as a result of an incident, the applicant did not ask a single question as to how and in what circumstances her death had occurred.
Taken together, those aspects of the prosecution case ― and the other evidence that we have summarised ― constituted a very strong, if not overpowering, prosecution case proving the applicant’s guilt of the murder of his wife Teresa. In those circumstances, the three respects in which there were irregularities or errors in the conduct of the trial, could not, in our view, have made a difference to the outcome of the trial. Accordingly, they did not constitute or result in a substantial miscarriage of justice.
For the foregoing reasons, while we would grant leave to appeal on ground 1 (but not on ground 2), the appeal must be dismissed.
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