DPP v Paulino

1 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.

• 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 after the killing. The defence objection is that the evidence that the source of the DNA is the deceased is weak, and more importantly that there are many ways unconnected with the killing that the DNA may have been deposited on or transferred to the items and that the jury could not, without a danger of unfair prejudice, find that this occurred at the time of or shortly after the killing.

3 In determining whether the DNA evidence is relevant under s 55(1) and admissible under s 56(1) of the Evidence Act, it is necessary to take the prosecution case at its highest (see below). Accordingly, I will assume that the jury will accept the expert evidence of the prosecution in relation to the DNA. My function is to determine whether the evidence is capable of 'rationally [affecting] (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding' (s 55(1)).

4 There is one fact in issue in the proceeding and that is whether the accused killed the deceased. The brutal circumstances of the killing leave no doubt that, if he did, he committed a murder. If the DNA evidence could rationally affect the jury's assessment of the probability that the accused was the killer, it should be admitted, subject to exclusion under s 137 (see below).

5 The evidence is that, on the evening of the killing, the accused was wearing the long-sleeved shirt (item 32) and the jacket (item 35), was either wearing or had contact with the boots (item 34) and used the motor vehicle (item 43). There is DNA evidence (in the form of likelihood ratios) of various strength that the source of the DNA found on the items was the deceased. The prosecution contends that the jury could find that the DNA, individually and even more strongly collectively, came from the deceased on that night.

6 As submitted by the defence, the difficulty is that there are explanations for the presence of the DNA on the items which do not connect the accused with the killing. These explanations are (or include) that the DNA was deposited on or transferred to the items by reason of contact by the deceased with the accused (by living with him in the matrimonial home before they separated), with her sons (who were living with the accused after the separation but frequently visited the deceased), with the car (there is evidence that the deceased was an occupant of the car prior to the killing) and with the matrimonial home in which the accused was living (there is evidence that the deceased, after the separation, visited these premises at times when the accused was not there).

7 For the purposes of determining whether the DNA evidence should be admitted, the issue is not whether the jury could find beyond reasonable doubt that the evidence connects the accused with the killing of the deceased. As relevant to the present case, it is only the elements of the offence charged that must be proved beyond reasonable doubt.[2] This is not a case in which DNA evidence forms the only evidentiary basis upon which the prosecution intends to discharge that burden. In deciding whether the prosecution has proved the guilt of the accused beyond reasonable doubt, the jury would be entitled to take into account findings, including findings in relation to the DNA evidence, properly made upon the balance of probability. In relation to the admissibility of that evidence, the issue is whether the jury would be capable of so finding.

8 It is firmly established that, to make a relevant finding, the jury must have an evidentiary foundation for choosing between competing accounts or opinions in relation to a fact in issue. In R v Juric[3] a question was whether the trial judge should have excluded expert evidence of DNA results. In deciding that the evidence should have been excluded, Winneke P, Charles and Chernov JJA stated:

It is tolerably clear from the evidence to which we have referred that it was not open to conclude that the jury could intelligently interpret the ... results which, in the opinion of the Crown's major expert, were in large part open to competing hypotheses, none of which could be preferred to the other upon any scientific basis.[4]

The point here is not that juries cannot resolve conflicts between expert testimony, for they are frequently called upon to do so,[5] but that juries must have a reasonable basis for doing so.

9 Juric was a case in which the conflicting evidence was scientific opinion. In R v Joyce[6] the conflicting evidence was factual and concerned competing explanations for the presence of DNA of the accused on the complainant's clothing. In excluding the evidence, Angel J stated:

It is clear that there exists an alternate hypothesis for the presence of the accused's DNA on the clothing of the complainant consistent with innocence. The accused's DNA may have made its way onto the complainant's clothing by secondary transfer, rather than, as the Crown assert, during the commission of the alleged offence. Furthermore, the Crown has not lead expert evidence to counter this hypothesis, nor laid any scientific basis for preferring one hypothesis over another.[7]

Applying the reasoning in Juric, his Honour went on to state:

The Crown have not excluded the exculpatory explanation of secondary transfer for the presence of the accused's DNA, or DNA compatible with the accused, on the clothing of the complainant. It would be wrong for a jury to rely on the DNA evidence as proof of guilt. Further no evidence was called by the Crown to lay a scientific foundation for the conclusion that the presence of the DNA on the clothing of the complainant was explicable on an inculpatory rather than exculpatory basis. There is no reliable foundation upon which a jury could properly assess the explanation for the presence of the accused's DNA on the complainant's clothing. The DNA results were open to competing hypotheses, one inculpatory the other exculpatory, neither of which could be preferred to the other on any scientific basis in evidence (emphasis added).[8]

10 These and other authorities were recently discussed by Warren CJ, Weinberg and Priest JJA in Director of Public Prosecutions v Wise.[9] An issue was whether the trial judge had erred in excluding evidence of the DNA of the accused in the underpants of the complainant because innocent transference was an open explanation. In determining that the trial judge had not so erred, their Honours stated:

Properly evaluated, the evidence of the presence of the [accused's] DNA in the underpants can establish no more than that MA had come into contact with the [accused], or with some other person or object that had come into contact with the [accused]. Of course, the presence of the [accused's] DNA inside the underpants might be explicable by transference to MA's genital region during or after oral sex (and thereafter to the underpants); but, in the circumstances of this case, any conclusion to that effect would be wholly speculative. Indeed, given the presence of Ms VL's DNA in the sample, it would not be open safely to conclude other than that the presence of the [accused's] DNA may be attributable to transference in the course of other activities during the events at LR's house. Thus the evidence from the first sample had no - or, at best, very little - probative value.[10]

11 With these principles in mind, I turn to a more detailed consideration of the items of evidence in question in the present case.

12 The boots were being worn by the accused at the time of his apprehension at his premises (the former matrimonial home) in the early hours of the morning after the killing. The prosecution seeks to lead evidence that biological material (not found to be blood) was detected on the left boot and that the likelihood ratio is established to be 570 in favour of the proposition that the deceased was the source.

13 I do not accept the submissions of the defence that the prosecution would have to establish that the accused was wearing the boots at the time of the killing. Nor would it be necessary for the prosecution to establish a connection between the accused and a foot imprint that was found at the scene of the killing. Rather, the prosecution would have to establish a rational basis upon which the jury could find, without engaging in conjecture, that the DNA on the boots was connected with the killing.

14 Other DNA was found on the boots, as it was on a pair of runners belonging to the accused. It appears to be common ground that sources of this DNA were persons not connected with the killing. This demonstrates the capacity for DNA to be deposited or transferred by innocent means to the footwear of the accused, not that this is in doubt.

15 Contrary to the submissions of the prosecution, there are reasonable innocent explanations for the presence of DNA of the deceased on the boot of the accused. The explanations are that it was deposited directly by the deceased during, or transferred indirectly as a result of, one of her visits to the matrimonial home after the separation (it may also be that her DNA remained behind after the separation) or was transferred indirectly as a result of one of the frequent visits of her sons to the deceased's home after the separation. There was affectionate physical contact between the deceased and her sons and they could have brought her DNA with them on their return to the former matrimonial home after their visits.

16 The undisputed expert evidence is that DNA is a relatively stable substance, that it exists for many years, that every human sheds DNA (at various rates) and that it can be deposited or transferred by primary (such as by a person to a person/object) and secondary (such as by a person to a person/object and then to another person/object) means. In relation to DNA of the deceased on the boot of the accused (and indeed the other items), the evidence in the case leaves open a number of reasonable primary deposit and secondary transfer explanations. I do not accept the submissions of the prosecution that these explanations are fanciful. By reference to the factual evidence, the jury could have no rational basis for finding that the method of transfer was connected with the killing. The factual evidence leaves open both inculpatory and exculpatory possibilities between which it is not possible rationally to select.

17 Nor does the prosecution expert evidence provide a foundation for finding how DNA of the deceased came to be on the boot of the accused. Beyond the generalities of how DNA may be deposited or transferred (see above), it does not really engage with this subject at all. By reference to the expert evidence, the jury could have no rational basis for finding that the method of deposit or transfer was connected with the killing. Again, the expert evidence leaves open competing possibilities between which it is not possible rationally to select.

18 The DNA evidence only establishes the existence of DNA of the deceased on the boot of the accused. Unless this DNA can be connected with the killing, it is not relevant to the assessment of the probability of the existence of the fact in issue. It cannot be so connected because, on the factual and scientific evidence, any finding by the jury as to how the DNA came to be on the boot would be purely speculative. The evidence is therefore irrelevant and inadmissible under s 56(2) of the Evidence Act.

19 This issue is to be addressed upon the basis that the biological material found in the motor vehicle was not blood.

20 The sample concerned (sample 43B-1) was obtained from the inner surface of the rear of the driver's side door trim of the vehicle. The expert evidence in three reports is in favour of the proposition that the deceased was the source of the DNA detected in the sample (likelihood ratios of 1.4 billion, 140 million and 670 million). There is also expert evidence in favour of the deceased's sons being contributors.

21 As submitted by the defence, it is not the prosecution case that the deceased was in the vehicle of the accused at or shortly after the time of the killing. The prosecution case is that the accused transferred the DNA to the vehicle shortly after killing the deceased. If the jury is capable of so finding, the evidence should be admitted, subject to exclusion under s 137 (see below).

22 As with the boots, the evidence leaves open the possibility that DNA of the deceased was deposited or transferred to the vehicle by innocent means. This could have occurred directly because the deceased was an occupant of the vehicle on previous occasions or indirectly because her sons were occupants of the vehicle on previous occasions.

23 The prosecution submits that these explanations for the presence of DNA of the deceased in the vehicle are speculative, unrealistic and far-fetched. There is no evidence actually establishing that this happened. The deceased had been separated from the accused for three years before she was killed. There is evidence that the vehicle had been carefully washed by one of the deceased's sons four weeks before the killing. It is implausible to suggest that the deceased's sons could have transferred DNA of the deceased to the vehicle.

24 Having examined the whole of the evidence, I cannot accept the submissions of the prosecution on this subject. I think it is reasonably possible that DNA of the deceased was directly deposited by her in the vehicle or indirectly transferred by her sons (with whom she was in continuing contact). The washing of the vehicle reduces but does not eliminate this possibility as being reasonably open.

25 On the evidence, it would be pure speculation to find that the presence of DNA of the deceased in the vehicle of the accused was connected with the killing. Absent that connection, the presence of the DNA could not rationally affect the assessment of the probability of any fact in issue. The evidence is therefore irrelevant and inadmissible under s 56(2) of the Evidence Act.

26 A jacket worn by the accused on the evening concerned was taken by the police and examined. DNA of the deceased was found in three areas:

• outer surface of lower left sleeve (item 35-1) (likelihood ratio of 350 in favour of the deceased being the source).
• outer surface of area of left chest (item 35-3) (likelihood ratio of 150 in favour of the deceased being the source).
• outer surface of area of upper right sleeve (item 35-5) (likelihood ratio of 300 in favour of the deceased being the source).

27 DNA belonging to persons not connected with the killing was also found on the jacket.

29 As with the boots, I do not accept that the prosecution would have to establish that the accused was wearing this jacket at the time of the killing. It would have to establish a rational basis for the jury to find that DNA of the deceased on the jacket was connected with the killing. The prosecution has put forward reasonable explanations for the presence of the DNA on the jacket that connect the accused with the killing, including secondary transfer from other clothing that he may have been wearing at the time to the jacket.

30 However, as I have explained, the evidence establishes that the accused was living in the former matrimonial home which he shared with the deceased for many years before the separation. There was evidence that, after the separation, she visited these premises from time to time (in the absence of the accused). Her sons would visit her at her new home (where she was killed) and had physical contact with her there, returning afterwards to the former matrimonial home where they were living with their father. It is reasonably possible that DNA of the deceased on the jacket resulted from a primary deposit or secondary transfer in these circumstances. Absent mere speculation, there is nothing in the factual or expert evidence which would allow a jury to reject these explanations in favour of the explanations offered by the prosecution.

31 As with the boots and the motor vehicle, the DNA evidence in relation to the jacket must be excluded under s 56(2) as irrelevant under s 55(1).

32 The long-sleeve shirt was also taken from the accused on the evening concerned. It did not test positive for the presence of blood. Six samples taken from the shirt did test positive for the presence of DNA of the deceased (the likelihood ratios range from 1,900 to 100 billion in various formulations).

33 Contrary to the submissions of the defence, for this evidence to be relevant the prosecution does not have to establish that the accused was wearing the shirt at the time of the killing. The prosecution is not under any obligation to prove what the accused may have been wearing at that time. As with the boots and the jacket, the prosecution would have to establish a reasonable basis upon which the jury could find, without conjecture, that the DNA on the shirt was connected to the killing. There are reasonable explanations to that effect, such as secondary transfer from clothing that may have been worn by the accused at the time to the shirt.

34 However, as with the boots, the motor vehicle and the jacket, there are reasonable explanations that are not connected with the killing for DNA of the deceased to be present on the accused's shirt. These explanations cannot rationally be excluded; rejecting them in favour of the prosecution explanations would, on the evidence, amount to pure speculation.

35 With considerable force, the prosecution submits that a finding in favour of the DNA on the shirt being connected with the killing would not be speculative. In this connection, the prosecution relies upon the cumulative effect of the DNA and other evidence as a whole. It was submitted that

the prosecution would invite the jury ... to consider that the finding of the DNA of the deceased on the shirt, as well as the other clothing of the accused, within hours of the killing, as well as in the motor car of the accused, tends to suggest a connection between the accused and the killing. The prosecution would likely invite the jury to consider the presence of the DNA in all of those locations in combination with all the other evidence that would tend to suggest his involvement in this crime. The prosecution might suggest to the jury that they could consider it inherently unlikely that the DNA of a seemingly murdered woman could have innocently and coincidentally ended up in the motor car and on the clothing of a man who happened to have such a fierce hatred of her, had threatened to kill her, had the opportunity to kill her, and stood to benefit from her death. But the DNA evidence itself would not ever be characterised as being any more than a component of the overall prosecution circumstantial case pointing to the conclusion that the accused is the person who stabbed Teresa Paulino to death.

As can be seen, this submission was directed to the boots, the motor vehicle and the jacket, as well as the shirt.

36 After consideration, this submission must be rejected. The expert and factual evidence, taken as a whole, does not provide a rational basis for preferring the explanation of the prosecution for the presence of DNA of the deceased on the four items. Innocent deposit or transference explanations are individually and collectively reasonably open.

37 In reaching this conclusion, I fully accept that particular pieces of evidence must not be examined in isolation. As was held in Bayley v R[11] by Warren CJ, Weinberg and Priest JJA:[12]

In determining whether evidence might rationally affect the assessment of the probability of the existence of a fact in issue - directly or indirectly - it is wrong to focus upon whether a piece of evidence, considered in isolation, may prove anything. One must also look to the other evidence in the case.

As Heydon J observed in Evans v The Queen:[13]

The relevance of evidence does not depend on its capacity by itself to prove the prosecution case on a particular issue, or to raise a reasonable doubt in favour of the defence on that issue. The effect on assessing probability which is to be looked for is the effect of the contested evidence taken with other evidence either admitted by the time the controversial evidence is tendered, or to be called.[14]

Therefore, as regards the prosecution case as a whole, I should take into account that the DNA evidence is but a part of a much larger body of circumstantial evidence pointing to the involvement of the accused in the killing of the deceased. I accept that the relevance of each individual item of evidence must be considered in the context of the evidence as a whole and not in isolation.[15] It is also necessary to recall that the prosecution is not required to establish the existence of every fact in issue beyond reasonable doubt, but only the elements of the offence beyond reasonable doubt (see above).

38 So examined in the context of the evidence as a whole, a jury would, in my view, have no reasonable basis for determining whether DNA of the accused on the four items was connected with the killing. There is a reasonable explanation for finding to the contrary in each case that the jury could not reject without speculation. The explanations offered by the defence share a common reasonable foundation, namely the contact that occurred between the accused and the deceased in the matrimonial home before the separation, the contact that occurred between the deceased and the matrimonial home (in which the accused continued to live) after the separation, the contact that occurred between the sons and the deceased and between the sons and the accused before the killing and, finally, the contact that occurred between the accused, the deceased and the sons in relation to the motor vehicle before the killing. These explanations are reasonably open even given the evidence that there was not relevant[16] person-to-person contact between the deceased and the accused after the separation.

39 In case I am wrong in so concluding, I will consider whether the DNA evidence should be excluded under s 137 of the Evidence Act.

40 Section 137 of the Evidence Act provides:

Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

41 According to the definition in the Dictionary in the Evidence Act, 'probative value' means:

the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

42 The operation of s 137 was described in Wise by Warren CJ, Weinberg and Priest JJA thus: [17]

there is no element of discretion accompanying the judicial exercise contemplated in s 137. Section 137 'is expressed in terms of an evaluative judgment mandating exclusion'.[18] Thus, in a criminal proceeding, a trial judge must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused.

The Dictionary to the Evidence Act defines 'probative value' to be 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. Any assessment of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue requires that the possible use to which the evidence might be put be taken at its highest.[19] And although other sections of the Act assign a quality to the probative value contemplated by the particular provision,[20] s 137 - which simply requires the probative value of the evidence to be weighed against the danger of unfair prejudice to the accused - does not spell out the requisite probative value. In providing that probative value is to be weighed against the danger of unfair prejudice, however, s 137 does require that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue.[21]

43 Following IMM, it is clear that considerations of reliability and credibility do not come into the assessment of the probative value of evidence under s 137.[22] As specified in the Dictionary (see above), the probative value of evidence turns on the extent to which it can rationally affect the assessment of the probability of a fact in issue.

44 In my view, taken at its highest, the probative value of the DNA evidence in relation to the four items can only be low at best. Any decision to prefer the explanations of the prosecution over the explanations of the defence for the presence of DNA of the deceased on the items could only be marginal. This case is to be distinguished from Tuite v The Queen[23] where the trial judge found the DNA evidence to be highly probative and the Court of Appeal held that no error was committed in refusing to exclude it.[24]

45 Against this low probative value must be weighed the danger of unfair prejudice flowing from the jury placing undue weight upon the evidence. There is a real danger of this happening in the present case. The danger is unfair because the evidence may to the jury have an appearance of persuasive force that is out of all proportion to its actual probative value.[25] I do not consider that this danger can adequately be managed by the giving of directions to the jury about how this evidence is to be properly used.

46 For the reasons given in this ruling, the DNA evidence in relation to the four items in question is to be excluded because it is irrelevant and therefore inadmissible under s 56(2) of the Evidence Act. Alternatively, it is to be excluded because its probative value is outweighed by the danger of its unfair prejudice to the accused under s 137 of that Act.

[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.

[2] Jury Directions Act 2015 (Vic) s 61.

[3] (2002) 4 VR 412 ('Juric').

[5] Ibid 426 [18], citing Valeski v R [2002] HCA 4; (2002) 187 ALR 233, 275 [182] (Gummow and Callinan JJ); see also R v Berry [2007] VSCA 202; (2007) 17 VR 153, 164-165 [39]-[42] (Redlich JA, Buchanan and Kellam JJA agreeing).

[6] [2002] NTSC 70 (17 December 2002) (Angel J) ('Joyce').

[9] [2016] VSCA 173 (21 July 2016).

[11] [2016] VSCA 160 (13 July 2016).

[13] [2007] HCA 59; (2007) 235 CLR 521.

[15] See generally R v Baden-Clay [2016] HCA 35 (31 August 2016) (French CJ, Kiefel, Bell, Keane and Gordon JJ) [65] ff.

[16] There is some evidence of person-to-person contact between the deceased and the accused in the context of him stalking her but this does not appear to be of relevance to the admissibility and exclusion of the DNA evidence.

[17] [2016] VSCA 173 (21 July 2016) [50]-[51].

[18] IMM v The Queen (2016) 330 ALR 382, 385-6 [16] (French CJ, Kiefel, Bell and Keane JJ) ('IMM').

[20] Sections 97 and 98, which deal respectively with tendency evidence and coincidence evidence, require the evidence to have 'significant' probative value.

[21] IMM (2016) 330 ALR 382, 391 [47] (French CJ, Kiefel, Bell and Keane JJ)

[23] [2015] VSCA 148 (12 June 2015) (Maxwell ACJ, Redlich and Weinberg JJA).

[25] See Tran (1990) 50 A Crim R 233, 243 (McInerney J); Joyce [2002] NTSC 70 (17 December 2002) [9] (Angel J); R v Gardner and Coates [2003] VSC 153 (21 May 2003) [20] (Smith J); R v Juric [2003] VSC 282 (13 August 2003) [72] (Nettle J); R v Guingab [2010] VSC 256 (15 June 2010) [64(c)] (T Forrest J) upheld by R v DG [2010] VSCA 173 (7 July 2010) (Buchanan, Weinberg and Bongiorno JJA); Wise [2016] VSCA 173 (21 July 2016) [70] (Warren CJ, Weinberg and Priest JJA).