Paulino v The Queen - [2018] VSCA 306

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0039

FERNANDO PAULINO

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,…

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 Paulino v The Queen

Details

AGLC: Paulino v The Queen [2018] VSCA 306
Case: [2018] VSCA 306
Decision Date: 21 November 2018

CaseChat Overview and Summary

Paulino was convicted of the murder of his estranged wife, and he applied for leave to appeal against that conviction to the High Court. The nature of the dispute involved several alleged irregularities in the trial that the applicant argued resulted in a miscarriage of justice. The High Court was tasked with determining whether the trial miscarried due to an accumulation of irregularities and if the attention of the jury was drawn to items of inadmissible evidence.

The legal issues before the court included whether the trial judge misdirected the jury by allowing the prosecution to rely on the applicant's failure to enquire about what happened to the deceased as evidence of incriminating conduct. Additionally, the court considered whether the prosecutor's final address contained submissions that lacked an evidentiary basis or involved an impermissible alteration to the prosecution's case. The court also examined whether the trial judge erred in permitting the prosecution to rely on the applicant's failure to enquire as evidence of incriminating conduct.

The High Court found that, although there were irregularities in the trial, there was no substantial miscarriage of justice. The court noted that while the trial judge may have erred in some respects, these errors did not affect the safety of the conviction. The Court granted leave to appeal but dismissed the appeal on the grounds that there was no substantial miscarriage of justice. Consequently, the conviction stood.

Orders