DPP v Paulino

2 Under s 295(2), a party (which includes the Director of Public Prosecutions) to a proceeding in this court for the prosecution of an indictable offence (such as murder) may appeal to the Court of Appeal against an interlocutory decision made in the proceeding if the Court of Appeal grants leave to appeal. As relevant to the present case, s 295(3)(a) provides that a party may not seek leave to appeal unless the judge who made the decision 'certifies - (a) if the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case'. Section 295(3)(a) covers cases where evidence has been ruled inadmissible under ss 55(1) and 56(2) and also where evidence is excluded under s 137 of the Evidence Act 2008 (Vic).[3]

3 The prosecution contends that certification should be granted because my ruling would substantially weaken the prosecution case. The defence opposes certification upon the ground that the ruling would weaken that case but not substantially so.

4 It is well-established that certification should not be granted by the trial judge as a matter of course. In Director of Public Prosecutions v Wise[4] Warren CJ, Weinberg and Priest JJA stated that 'it was not the intention of the legislature that fragmentation of criminal proceedings should ordinarily be contemplated' and that interlocutory appeals 'should be reserved for unusual cases'.[5] Section 295(3)(a) specifies a 'threshold test' that is intended to ensure that the court is not inundated with applications for leave to appeal interlocutory rulings made by trial judges.[6]

5 According to that test, certification can only be granted by the trial judge if the ruling against the admissibility of the evidence would 'substantially weaken' (emphasis added) the prosecution case. This is a stronger test than 'weaken' because the word 'substantially' has real work to do. As was stated by Warren CJ, Weinberg and Priest JJA in Wise:[7]

For the exclusion of evidence to substantially weaken the Crown case, it is not enough that the exclusion of evidence may 'significantly' weaken a Crown case, since in context, the use of the adverb 'substantially' connotes something more than 'significantly' - it bespeaks evidence which is of 'major importance', or, at least, 'very important' to the Crown case.[8]

In Russell (a pseudonym) v The Queen[9] and Director of Public Prosecutions v Martin (a pseudonym),[10] the Court of Appeal again stressed that, to 'substantially weaken' a prosecution case, the evidence must be of major importance or at least very important to it.

6 As I stated in the ruling,[11] the accused in the present case is charged with murdering his wife. The prosecution case against him is wholly circumstantial. Besides the killer and the deceased, there were no witnesses to the crime. The accused has denied the charges and pleaded not guilty. There is no alleged conduct in the nature of implied admissions and no propensity evidence. The case against the accused is based upon his hatred of the deceased (giving rise to a motive to kill her and gain financially from the death),[12] him having the opportunity in the facts and circumstances to kill the deceased,[13] the DNA evidence that I have ruled inadmissible or excluded and certain other subsidiary evidence.

7 The DNA evidence was taken from a pair of boots, the motor vehicle, a jacket and a long sleeved shirt of the accused. The evidence is that the DNA is that of the deceased. In the manner explained in the ruling, the prosecution contends that it would be open to the jury to conclude that it was deposited on or transferred to the items in circumstances that inculpate the accused. Although I have rejected this contention, if it were to be correct, the prosecution would have evidence directly connecting the accused with the killing. The prosecution has no other evidence of such a direct connection.

8 Having regard to the circumstantial nature of the prosecution case against the accused, I consider that DNA evidence of the deceased that links her killing with the accused would be of major importance or at least very important to that case. Therefore I accept the submission of the prosecution that the ruling would substantially weaken the prosecution case against the accused.

9 For those reasons, I grant certification under s 295(3)(a) of the Criminal Procedure Act in respect of an interlocutory appeal against the ruling.

[1] These are the reasons for decision for the ruling I made on 3 November 2016. The interlocutory appeal was dismissed: DPP v Massey (a pseudonym) [2017] (6 March) (Weinberg, Priest and Ferguson JJA)

[2] DPP v Paulino (Ruling No 3) [2017] VSC 345 (16 June 2017) (Bell J) ('Paulino (Ruling No 3').

[3] CGL v Director of Public Prosecutions (No 2) [2010] VSCA 24; (2010) 24 VR 482, 483 [6] (Maxwell P, Buchanan and Bongiorno JJA agreeing) ('CGL').

[4] [2016] VSCA 173 (21 July 2016).

[5] Ibid [5]; see also R v DG [2010] VSCA 173 (7 July 2010) (Buchanan, Weinberg and Bongiorno JJA) [29]-[34].

[6] CGL [2010] VSCA 24; (2010) 24 VR 482, 483 [6] (Maxwell P, Buchanan and Bongiorno JJA agreeing).

[7] [2016] VSCA 173 (21 July 2016) [11].

[8] ZL v The Queen (2010) 208 A Crim R 325, 329 [20] (Nettle JA) (rest of footnote omitted).

[9] [2016] VSCA 196 (11 August 2016) (Maxwell P, Whelan and McLeish JJA) [32].

[10] [2010] VSCA 219 (14 September 2016) (Redlich, Weinberg and McLeish JJA) [117].

[11] Paulino (Ruling No 3) [2017] VSC 345 (16 June 2017) (Bell J) [1].

[12] In this connection, see DPP v Paulino (Ruling No 1) [2017] VSC 343 (16 June 2017) (Bell J).

[13] In this connection, see DPP v Paulino (Ruling No 4) [2016] VSC 660 (3 November 2016) (Bell J).