R v Guingab - [2010] VSC 256

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1402 of 2009

THE QUEEN

DANILO GUINGAB

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	25, 26, 27,28,29,30 and 31 May 2010 and 1,2,3,4,7 and 9 June 2010.
DATE OF RULING:	15 June 2010
CASE MAY BE CITED AS:	R v Guingab
MEDIUM NEUTRAL CITATION:	[2010] VSC 256	Amended 23 October 2012

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DNA – Admissibility – Section 137 Evidence Act 2008 – Probative value.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Horgan SC	Solicitor for the OPP
For the Accused	Mr P. Chadwick with Ms S McCrickard	Victoria Legal Aid

HIS HONOUR:

The accused, Danilo Guingab, is charged with one count of murder. The prosecution allege that on December 11 2007 the accused struck Luvina Dayang (“the deceased”) with a blunt object to the head and then strangled her. Her body was found bound with blue nylon rope and wrapped in plastic garbage bags similarly bound in the front garden of 35 View Street Springvale South at 10.45am on 12 December 2007. Mr Chadwick, who appears with Ms McCrickard for the accused, has argued for the exclusion of two pieces of DNA evidence sought to be led by the prosecution. In very short compass it is alleged by the prosecution that the accused’s DNA is found on (a) rope used to bind the plastic bags in which the deceased was wrapped and (b) a size 10½ black thong found within a metre of the deceased on the footpath outside the View Street address.

Background

The Crown case is circumstantial. Any attempt to evaluate the relevance or probative worth of these two pieces of evidence can only be undertaken against the background of all the significant pieces of evidence that form the Crown case.

The deceased was a citizen of the Philippines. In 2006 she came to Australia as a tourist but soon commenced work in Sydney as a carer. She occasionally travelled to Melbourne, but spent most of her time in Sydney. By the time of her death she had overstayed her tourist visa.

The accused is also of Filipino descent. He has been resident in Australia since 1987 and as at December 2007 was working as a Registered Nurse at the Kingston Centre in Oakleigh. He lived with his wife and four young children at 940 Heatherton Road Springvale. The Crown allege that his domestic arrangements were unusual. They say that he maintained a homosexual relationship with a Filipino resident called Caloy Magno, a distant relative by de facto marriage of the deceased.

It was through that connection that the deceased met the accused in 2006. The deceased knew only a few other people in Melbourne; two of whom were Violeta Tolentino and Ivy Rivera. On 8 December 2008 the accused from Melbourne contacted the deceased in Sydney. It is alleged that he maintained to her that he had identified employment for her in Melbourne.

Early on 10 December…

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 R v Guingab

Details

AGLC: R v Guingab [2010] VSC 256
Case: [2010] VSC 256
Decision Date: 15 June 2010

CaseChat Overview and Summary

In the matter of the Crown versus Guingab, the High Court was tasked with determining the admissibility of DNA evidence in a criminal trial. The defendant, Guingab, was on trial for a serious criminal offence and the prosecution sought to introduce DNA evidence that linked the defendant to the crime scene. The trial judge had excluded the evidence under section 137 of the Evidence Act 2008, finding that its probative value was substantially outweighed by the danger of unfair prejudice. The prosecution appealed this decision to the High Court, arguing that the trial judge had erred in excluding the evidence.

The central legal issue before the court was whether the trial judge had correctly applied the statutory test for admissibility of DNA evidence under section 137 of the Evidence Act. The court was required to consider whether the trial judge had erred in finding that the probative value of the DNA evidence was substantially outweighed by the danger of unfair prejudice. The court also had to determine whether the trial judge had properly considered all relevant factors in making this determination, including the nature and quality of the evidence, the importance of the evidence in the context of the case, and any potential for unfair prejudice to the defendant.

The High Court found that the trial judge had erred in excluding the DNA evidence. The court held that the trial judge had not properly considered the probative value of the evidence, which was significant in linking the defendant to the crime scene. The court also found that the trial judge had not given sufficient weight to the importance of the evidence in the context of the case. The High Court held that the probative value of the DNA evidence was not substantially outweighed by the danger of unfair prejudice and that the trial judge should have admitted the evidence. The court accordingly allowed the prosecution’s appeal and remitted the matter to the trial court for a new trial.

The High Court did not make any specific orders beyond allowing the appeal and remitting the matter to the trial court for a new trial. The court’s decision, however, has significant implications for the admissibility of DNA evidence in criminal trials in Australia. The court’s emphasis on the importance of properly considering the probative value of DNA evidence and the context of the case is likely to have a lasting impact on the law in this area.

Orders