R v Volpe (Ruling No 1)
[2018] VSC 796
•16 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0084
| THE QUEEN | |
| v | |
| DANNY NOEL VOLPE | |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8–14 May 2018 |
DATE OF RULING: | 16 May 2018 |
CASE MAY BE CITED AS: | R v Volpe (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 796 |
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CRIMINAL LAW – Ruling – Murder – Evidence – Admissibility – Shoe impression evidence – DNA evidence – Relevance – Probative value outweighs the danger of unfair prejudice –Ruled admissible – Evidence Act 2008 ss 55, 76, 79(1), 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Flynn QC | Office of Public Prosecutions |
| For the Accused | Mr J Desmond | Melasecca Kelly & Zayler |
HIS HONOUR:
Introduction
The prosecution seeks to lead evidence of a shoe impression found at the scene where the deceased’s body was located on 17 September 2016. The prosecution case is that a shoe impression found on the ground in a vacant block of land in Upper Ferntree Gully was placed there by a shoe worn by the accused. The prosecution allege that the impression was left when the accused deposited Cameron Harris, the deceased, at some time after the accused had stabbed him, and had taken him to that location.
This evidence is significant as it would have a tendency to place the accused at the scene where the body was located. In the overall circumstances of the evidence, it would constitute a strong piece of evidence in support of the conclusion of guilt sought by the prosecution.
The prosecution will argue to the jury that the shoe imprint is a piece of circumstantial evidence, which along with other evidence, will establish that the accused was person who killed Cameron Harris to the required standard.
The accused makes an application for the evidence to be excluded on the basis that it is inadmissible, as it is not relevant evidence pursuant to s 55 of the Evidence Act 2008 (‘the Act’). Further, if the evidence is ruled admissible, the accused man makes a further application for the evidence to be excluded as prejudicial, pursuant to s 137 of the Act.
The Crown opposes these applications.
The issue of the admissibility of this evidence required several witnesses to give evidence before me on voir dire. During the course of the voir dire, the accused further challenged the shoe print evidence on the basis that it was not expert evidence, pursuant to s 79(1) of the Act.
Background
The prosecution case is that the accused met the deceased only a few days before his death. Over the course of those days, they appear to have fallen out. By 17 September 2016, conflict had developed. Evidence will be called that on the morning of Mr Harris’ death, there was a verbal and physical altercation involving some violence at a shopping centre. Towards the end of this incident, the accused is alleged to have taken possession of an axe and then a large style hunting knife from his car, and followed the deceased before returning to his car and driving away.
Later that day, the deceased was sitting in the passenger seat of a vehicle, parked in the street outside an address in Montrose. It is alleged that the accused obtained a knife from some belongings on the nearby nature strip, and struck the deceased once in the chest, through the open car window. The owner of the vehicle, Paul Bugeja, was allegedly sitting in the driver’s seat at the time. He did not see a knife, but will attest to a blow to the chest.
The deceased remained in the vehicle. The accused allegedly asked Mr Bugeja whether he should take him to hospital, before taking the keys and driving off.
Evidence in the Crown case will be that this vehicle was captured on various CCTV travelling in the Ferntree Gully area, and on the Burwood Highway, shortly before 3:00pm that afternoon. The Angliss Hospital was apparently nearby. The prosecution will argue these vicinities were close to the location where the deceased was found at approximately 3.00pm. The deceased was found in a vacant block area which was being used as a kindergarten carpark. It is alleged that the accused, Mr Volpe, placed Mr Harris’ body there shortly before or around 3.00pm that afternoon.
The evidence sought to be called by the prosecution
The shoe imprint evidence
Near to where the body of the deceased was located, a number of impressions were found on the ground, including what appeared to be shoe imprints.
The suspected shoe imprints were examined by Sergeant Wayne Kohlmann, a crime scene examiner, employed at Victoria Police Forensic Services Centre (VPFSC). Sergeant Kohlmann examined the scene and the imprints, took photographs and took plaster casts of what he concluded to be shoe imprints.
A cast of an imprint that he allocated as Marker 3 was taken. This imprint became the significant evidentiary feature in the application to exclude evidence. The imprint at Marker 3 was not considered by Sergeant Kohlmann to be of high quality.
Execution of the search warrant at the accused’s home
On 19 September 2016, at about 9.22pm, police attended the accused’s home. After an initial entry they left, but then returned early the following day and executed a warrant to search the premises.
During their investigations, police located a wooden stand in the hallway inside the front door, in which a number of shoes were located. According to Detective Senior Constable Timothy Ryan, shoes were examined for intelligence purposes and photographs were taken. However, police determined not to seize any of the shoes.
The photographs taken by Detective Senior Constable Ryan were later served on the prosecution and defence around mid-2017. The possibility of the shoe impression evidence being led in the then upcoming prosecution case against the accused appears to have been taken no further.
The case against the accused proceeded and in the normal course of events, a trial before a jury was held in September 2017. However, this trial came to an end with the discharge of the jury for reasons that are not relevant to the applications before me. Suffice to say, the evidence of the shoe imprint located at Marker 3 was not led as part of the prosecution case, and apparently not sought to be admitted into evidence during that trial. Apart from some short questioning in cross-examination, the evidence of the imprint formed a relatively insignificant part of the first trial.
However, following the conclusion of that trial, police took the possible relevance of the shoe imprint evidence further and executed a warrant on the home of the accused man on 28 September 2017. He had been in custody since his arrest on 19 September 2016. Police entered the accused’s home in an attempt to locate a specific pair of ‘New Balance’ running shoes with a distinctive pattern on the sole.
During the search, a shoe was seized – and became Item 17 for the purposes of forensic examination. The shoe became an exhibit on this application. It is not disputed that Item 17 is a sports shoe, and that it is New Balance brand. There is no evidence as to whether it is an original New Balance shoe, or a copy.
On 28 September 2017 five photographs were taken of the shoe in situ at the accused’s home by Detective Senior Constable Michael Cashman and they were exhibited on the application.
Physical examination of the shoe and testing
Sergeant Kohlmann, the original crime scene examiner, was tasked to examine the shoe. The obvious object of this examination was to see if he could express a conclusion as to whether the shoe seized from the accused man’s home in 2017, could be connected to the shoe imprint located, and identified at Marker 3, at the scene where the body of the deceased was found.
Sergeant Kohlmann conducted his examinations of the relevant material to this task over a number of dates from October 2017 into 2018. At one point, a series of laboratory photographs were taken.
The examination process involved a number of steps which were explained in detail during the course of these applications. Some of the more significant steps included examining the photographs taken of the shoe print left on the ground near the deceased’s body; examining the cast taken; producing a one-to-one scale series of photographs to allow accurate physical comparisons to be made; production of transparent acetate copies of a print of the sole of the relevant shoe on a hard surface; the production of a series of laboratory quality photographs of the shoe; and, the conducting of an exercise by creating ‘laboratory mud’ in an attempt to explain how a perceived misalignment in the imprint that was left on the ground may have occurred.
Having carried out his examinations and comparisons Sergeant Kohlmann concluded that:
The outsole of the shoe was consistent in size, shape and design with the heel and arch area of the impression at yellow evidence marker number 3. There were, however, sizing anomalies in the ball and toe areas that were consistent with the outsole moving through the soil substrate, as demonstrated by the test impression casts (items 22, 23 and 24)
Due to the quality and nature of the impression I came to the conclusion that the New Balance shoe comprising item 17 could have made the impression at yellow marker 3, as could any other shoe with a similar outsole design. I was unable to find any confirmable differences that would exclude item 17 from having created the scene impression. (Conclusion: ‘Limited association of class characteristics’. See definition on the attached ‘Scale of Conclusions’ form).
The references to items 22, 23 and 24 related to a series of casts taken during Sergeant Kohlmann’s attempt to seek an explanation for the apparent misalignment he located in the original shoe impression. He performed an exercise of creating a muddy environment in the laboratory setting and used item 17 to which he applied rotational force, leaving an imprint in the mud.
The reference to the ‘Scale of Conclusions’ attached to Sergeant Kohlmann’s statement was a reference to a Victoria Police Forensic Services Department document dated 31 December 2015 that sets out seven levels of comparative analysis conclusions into which such an analysis can fall.
The DNA evidence
The shoe impression located near to the body of the deceased could not by itself establish that the shoe was connected to the accused man. The prosecution case is that the accused man was wearing item 17 at the time the body of Cameron Harris was placed in the location where it was found. The prosecution sets out to establish that connection by the use of DNA evidence.
The shoe was tested for DNA. The evidence is that the shoe was swabbed for DNA in a location inside the shoe, towards the front of the shoe in an approximate position where a wearer’s toe would be expected to be located if the shoe was worn. The result of the forensic examination is that the DNA of the accused was located in the area swabbed. The DNA profile that was obtained showed a mixed, partial DNA profile – three contributors.
The opinion as to the statistical analysis of the DNA result obtained using a Likelihood Ratio approach was provided as to the DNA result was given by Dr Mariya Goray. Dr Goray is a Forensic Officer and Case Manager at VPFSC. She has practised as a Forensic Scientist at the organisation since 2010.
The prosecution case is that DNA consistent with that of the accused was located inside the shoe. More specifically, the conclusion expressed about the DNA sample by Dr Goray is that, the DNA evidence is 100 billion times more likely if the accused is a contributor.
The applicable law
Admissibility
To be admissible, s 55(1) of the Act provides that the evidence sought to be called must be relevant to an issue:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Further, while s 76 of the Act provides that opinion evidence is generally not admissible, s 79(1) provides:
If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
Exclusion of prejudicial evidence
Section 137 of the Act provides:
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.
As above, the body of evidence sought to be called by the prosecution and under challenge is a combination of a number of pieces of evidence including the finding and location of the foot print; the finding and seizure of the shoe in 2017; and a series of other circumstances which the prosecution says leads to the conclusion that the shoe was worn by the accused at the time when the body of the deceased man was left on the ground.
The primary issue that the admission of the evidence is relevant to is whether the shoe seized from the accused’s premises was the shoe that made the impression at the scene where the deceased was located.
If that fact is established to the jury’s satisfaction, then that becomes part of the wider combination of circumstances the prosecution proposes to lead to inferentially prove the guilt of the accused man.
The prosecution submissions
Admissibility
The prosecution contends that the evidence of the shoe imprint is relevant and admissible. Further, the evidence should not be excluded pursuant to s 137 of the Act.
The prosecution argued that evidence of a shoe impression is capable of achieving admissible status, and being admitted into evidence. The prosecution referred to a number of cases in a written outline demonstrating this, supplemented with oral argument.
Applying s 55 of the Act, the prosecution argues that the evidence is clearly relevant in that, if accepted, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.
The prosecution argues that the evidence amounts to an important piece of circumstantial evidence that, if accepted, rationally affects the jury’s assessment of the probability of the main fact in issue in the case, namely, whether it was the accused who stabbed and killed the deceased.
The prosecution firstly points to the shoe which was observed and photographed by police in the home of the deceased within a few days of his arrest as being capable of linking him to the shoe which left the impression near the deceased’s body. The prosecution argued that there are clear similarities between the shoe observed in 2016 and the shoe seized in 2017. The prosecution will argue that a circumstantial case comprising a series of circumstances exists to establish that the shoe observed in 2016 only a few days after the alleged offence was the same shoe that was seized in 2017, and further that it left the imprint in the ground near the deceased’s body.
The prosecution case will be that the jury can use the combined circumstances of the location of the shoe in 2016 and 2017, along with the shoe print, as part of a combined force of evidence in the prosecution case tending to prove, along with other circumstantial facts, the guilt of the accused man. Further, and apart from the 2016 photographs of a New Balance shoe, the prosecution will argue that the mere fact of item 17 being found in the accused man’s home is a significant piece of evidence in its own right, given the ultimate conclusion of Sergeant Kohlmann in his comparative analysis of the shoe as against the imprint found at the scene, and the cast from it.
Further, the prosecution case is that the body of evidence supporting the imprint being left by the accused man should not be seen in isolation, but must be looked at in combination with other circumstances in the prosecution case. Therefore, in the determination of whether the challenged body of evidence can rationally affect the assessment of the probability of a fact in issue, the prosecution points to other evidence in the prosecution case which must be considered when assessing the relevance and probative value of the shoe imprint evidence. The Crown argues that the following pieces of evidence provide a factual circumstantial matrix in which the body of shoe evidence should be assessed:
(a) the evidence of the conflict that had emerged between the deceased and the accused man earlier in the day of the deceased’s death;
(b) the threats and physical nature of the events that took place between the deceased man and the accused at the Arndale Shopping Centre, earlier in the day of the killing, in which an axe and a knife had been produced by the accused man;
(c) the evidence of Mr Bugeja that the accused attacked the deceased as he sat in Mr Bugeja’s car;
(d) the evidence of Mr Bugeja that, after the blow was delivered to the deceased man by the accused, the accused took the deceased away in the car;
(e) CCTV footage of the car driving to and around the Angliss Hospital;
(f) the evidence that the accused returned to Mr Bugeja’s home, driving Mr Bugeja’s car, then without the deceased;
(g) the evidence of the witness Mark Cox, that he had seen the accused with a knife;
(h) the evidence of Mr Cox as to the accused later lighting a fire;
(i) the evidence that two burnt knives were retrieved by police from the remains of the fire;
(j) the evidence of Mr Cox as to admissions by the accused; and
(k) the evidence of Mr Bugeja that the accused directed him to wash the seat covers of the car in which the accused and deceased travelled, after the blow had been delivered.
Counsel for the prosecution, when submitting that the body of shoe evidence was relevant and admissible, addressed the question of reliability, and addressed the extensive cross-examination of Sergeant Kohlmann and Dr Goray on the voir dire as to the reliability of their respective opinions.
Counsel pointed to the decision in IMM v R[1] in which the majority held that a trial judge is obliged to assume that a jury will accept evidence as credible and reliable, these being matters for a jury, not for a judge undertaking the analysis of admissibility. The prosecution submitted that, this being the case, the body of shoe comparison evidence has significant probative value, and should be assessed by the jury.
[1][2016] HCA 14; (2016) 257 CLR 300.
Counsel further addressed the question of whether the evidence of Sergeant Kohlmann conformed to the requirement of s 79 of the Act as being evidence that was based on specialist knowledge, and qualifying for the exception provided by s 76 of the Act. Counsel referred to the decision of the Court of Appeal in Ward v R[2] in which the High Court decision in Honeysett v R,[3] was discussed. In Ward, the Court referred to the first condition of admissibility set out in s 79(1) of the Act, which directed attention to the existence of an area of ‘specialised knowledge’, to be distinguished from matters of ‘common knowledge’.[4] Additionally, the Court referred to the second condition that was required to be met, namely, that the opinion expressed by the witness should be wholly or substantially based on that person’s specialised knowledge.[5] It was argued that the Court followed the High Court’s position articulated in Honeysett v R, being that, it is sufficient that the opinion expressed was substantially based on specialised knowledge which was based on training, study or experience.
[2][2018] VSCA 80.
[3](2014) 253 CLR 122.
[4][2018] VSCA 80 [84].
[5]Ibid.
It was submitted that the shoe impression analysis carried out by Sergeant Kohlmann qualified as specialised knowledge, and that it was not necessary that this type of analysis should qualify as an area of science. Counsel submitted that Sergeant Kohlmann was trained and had sufficient experience in the area of shoe impression evidence to qualify as a person who had gained specialised knowledge. It was submitted that, of itself, shoe impression opinion evidence was an area in which an expert and trained person can examine the relevant material for comparison, and use their knowledge gained through study and investigation. Further, it was put that the opinion of a trained person in this field was not merely a matter of subjective belief or unsupported speculation.
Counsel pointed out that the evidence of Sergeant Kohlmann demonstrated that, to carry out a necessary comparison, the witness must have knowledge relating to:
·the location and site of a shoe impression, and be able to identify it as a shoe impression;
·the identification of whether anything impeded the shoe impression, as in the current case where there was said to be overstepping or tyre impressions in the vicinity;
·the identification of particular patterns or characteristics in an imprint;
·the identification of the orientation of the impression;
·photographing the imprint to optimise the image for comparison purposes;
·the enlargement of photographs to an appropriate size for comparison purposes;
·creating casts to enable a permanent record of the imprint to be saved;
·the creation of a test impression with a shoe using chemicals, and the production of an acetate overlay;
·comparing the created acetate overlay with the photographs of the shoe impression, and also the cast of the shoe impression; and
·creating a cast of the shoe in similar substrate material.
Further, counsel for the prosecution submitted that shoe imprint opinion evidence is not a novel concept, and made reference to various past cases where shoe impression evidence has been admitted into Victorian criminal trials.[6]
[6]R v Bogunovic [1998] VSC 428; [1999] VSCA 133; R v Kotzmann (No 2) [2002] VSCA 21; R v Favata [2006] VSCA 44; R v Meade (Ruling 4) [2013] VSC 257; [2015] VSCA 171; Wu v R [2013] VSC 375; [2014] VSCA 171.
Finally, it was submitted that, in this case, a jury would not be in as good a position as Sergeant Kohlmann to view the photographic evidence of the imprint left at the scene, or even the cast of the impression from that imprint near Marker 3, and then compare it to either the sole of the seized shoe, or the test impressions from that shoe, and then form their own view as to any similarities or differences.
As to the second limb that is required to be satisfied to fulfil the requirements of s 79 of the Act, namely, that the opinion formed by Sergeant Kohlmann be wholly or substantially based on his specialised knowledge, it was submitted that the training and experience explained in evidence on voir dire was sufficient to qualify him as being suitably trained through that study, training and experience to amount to the specialised knowledge that was required for his task.
Further, it was submitted that, as a result, Sergeant Kohlmann’s opinion formed in the present case was substantially based on his specialised knowledge gained through that training and experience. It was submitted that, when looked at as a whole, the process that he went through from his attendance at the scene, his observations of the impressions, his photographing of the imprint, his casting of the imprint, his examination of the shoe, his creation of the casting test impressions and comparison made of those facts, was based on his training, study and experience.
Section 137 of the Act
Counsel for the prosecution submitted that, in the circumstances of this case, the probative value of the evidence under consideration is not outweighed by the danger of unfair prejudice to the accused, and therefore the body of evidence ought not be excluded pursuant to s 137 of the Act.
Counsel submitted that there was no risk in this case that the evidence would be misused by the jury in the sense of being used for an improper or prejudicial purpose, or the evidence being given more weight than it deserved. Counsel submitted that the probative value of the evidence was significant and, if admitted, any challenge as to the methodology employed by Sergeant Kohlmann, and also Dr Goray, can be adequately exposed to the jury through cross-examination.
Counsel referred to Tuite v R, in which the Court of Appeal agreed with the trial judge’s conclusions that if expert evidence was led logically and sequentially and with proper assistance to the jury, there was no danger of unfair prejudice.[7]
[7]Tuite v The Queen [2015] VSCA 148 [125].
The defence submissions
For the accused, there was an application that the body of evidence is inadmissible pursuant to s 55 of the Act. It was accepted that the main fact to which the evidence would go is whether the accused man was the person who stabbed the deceased. Further, it was submitted that, should the evidence be admissible, there was a subsequent application for it to be excluded, pursuant to s 137 of the Act.
It was submitted that, taking the evidence at its highest, it would reveal that a shoe seized in 2017 might have caused the imprint at the crime scene. It was submitted that there was insufficient evidence to establish that the shoe seized in 2017, being the shoe that was tested for DNA, was in fact the shoe that was present in 2016 when photographed by police. It was argued that the Crown case assumed that the shoe seized in 2017, some 12 months after a shoe was photographed in the same location in 2016, was in fact the shoe that was in the accused’s house 12 months earlier, with his DNA on it. It was argued that there was no direct evidence of the connection between the shoe photographed in 2016 and the shoe seized in 2017, and that the Crown will invite the jury to draw that inference. It was submitted that the inference to be agitated strongly to the jury by the Crown that the two shoes were in fact the same was speculative at its highest, and amounted to inference upon inference.
It was submitted on behalf of the accused that the evidence was purely speculative and that an expert should not be permitted to speculate as to inferences where there was no evidence that could support such an inference.
Is Sergeant Kohlmann an expert witness?
It was submitted by counsel for the accused that Sergeant Kohlmann did not possess the expertise to allow him to give an opinion pursuant to s 79(1) of the Act. It was argued that he did not have the specialised knowledge based on training, study or experience, to give the opinion that he was asked to provide. Reference was made to the evidence-in-chief given on the voir dire proceeding, by which the Crown sought to establish the expertise of the witness. That evidence was given in considerable detail. The qualifications of Sergeant Kohlmann were criticised in the sense that he lacked academic qualifications, lacked sufficient training, had not been published in the area of shoe impression evidence, had no prior experience in giving evidence on the issue with which he was concerned, did not have the knowledge that one would expect of a recognised expert in keeping abreast with national and international developments in the field. It was further submitted that he had insufficient knowledge to be even discussing issues such as the latest techniques, and that he learnt by the tree methodology approach, in that the information got fed down to him through an overarching Australian body which had itself learnt from other international bodies.
Further, the evidence of Sergeant Kohlmann was criticised in that he could only give evidence of classification issues or class characteristics, and that recently acquired characteristics were not something that formed part of his evaluation in this case. It was submitted that, given that he could only give evidence of classification issues, this was something well within the domain of the jury and was something that a lay person, such as a juror, did not need the assistance of an expert to do.
Ultimately, it was submitted that, whilst not attacking footprint impression analysis across the board, Sergeant Kohlmann did not have specialised knowledge from his study, training and experience to give evidence on the question of shoe impressions. In effect, it was submitted that class characteristics of the particular sole of the shoe in question, and the comparison of the cast from that shoe, and also comparison with the photograph of the footprint, revealed only class characteristics and, that being the case, a jury could readily look at the sole of the shoe and the relevant crime scene exhibits to look at a similarity or not of patterns, which was all that Sergeant Kohlmann was doing.
Finally, it was submitted that all a jury would be doing would be looking at the pattern of the 2017 shoe that was seized, and that to be of any relevance in this case, a jury would have to be satisfied that the 2017 shoe was linked to the footprint left in 2016 at the scene.
Dr Goray and the DNA evidence
Counsel for the accused submitted that if the shoe comparison evidence was to be ruled inadmissible, logic dictated that the evidence of Dr Goray regarding DNA would have no place in the trial.
It was submitted that the DNA evidence provided by Dr Goray was not relevant pursuant to s 55 of the Act because of the time lag between the shoe that had been swabbed, her inability to age the DNA on the shoe, and the possibility that the deposit of DNA could have occurred inadvertently through being transferred by another person within the 12 month period during the time that the accused man remained in custody and had no direct access to the shoe. It was posited that there was a chance that a person wearing a sock belonging to the accused could have used the shoe in his absence and thereby deposited his DNA into the shoe.
It was submitted that the DNA evidence linking the accused man as a wearer of the challenged shoe at the scene where the deceased man was located suffered from a number of deficiencies. The first was that the DNA could have been deposited at any time, both prior and subsequent to the charged incident by anyone, for instance a wearer of one of the accused’s socks; second, that someone would only need to shake the accused’s hand and there could have been a secondary transfer if that person had picked up and put their hand inside the shoe. It was further submitted that in this case, the DNA analysis was of trace DNA which was very small, down to a cellular level, in the shoe that was seized in 2017. It was said that the inability to be able to age DNA counted as a factor against the admissibility of the evidence because there were any number of possibilities that there could have been a DNA transfer during the period of time the accused was absent from his home, and in custody.
Reference was made to the evidence of Dr Goray on the voir dire that, despite the high likelihood ratio, in this case, the shoe swab revealed allelic dropout at quite a number of markers. It was submitted that an analysis of the DNA evidence would reveal that if one was to examine the markers where allelic dropout occurred, then in the circumstances, the likelihood ratios would become disturbingly small. It was argued that when Dr Goray was taken through her evidence, and aspects being repeated in the course of submissions on this application, there were a number of allelic dropouts that were capable of compromising the ultimate opinion of Dr Goray as to the likelihood ratio she produced.
It was also submitted that there were troubling aspects to the DNA evidence in this particular case because of some complete allelic fallouts and two very legitimately low expressions of likelihood ratios. It was further put that the process of producing the DNA evidence will be slow and will be a difficult, taxing exercise.
Unfair prejudice
It was argued on behalf of the accused that, because of the forensic delay, namely, the 12 months in securing item 17, the accused is now confronted with a seductive DNA likelihood ratio by which the Crown seeks to link him with the crime scene. It was pointed out that there were real issues of allelic dropout that remain alive in this case which will need to be exposed and thoroughly examined before a jury. The process is likely to be complex and likely, it is submitted, to be confusing to a lay person on a jury with no DNA experience or knowledge.
It was submitted that the agitation of this issue presented a real likelihood of distracting the jury from the central issue in the case, that being whether the accused man was the killer.
It was also submitted that this new evidence, compared to the evidence led at the first trial in this matter, significantly increases the likelihood that the accused will have to give evidence. He did not do so at the first trial. It was argued that there was unfairness that presented from that point of view, but also that in this case, the question of the DNA outcome had not been raised in a record of interview with the accused. It was argued he was deprived of the opportunity to decide whether to respond to the allegation of the shoe print, and what it meant in the context of the case presented against him.
Next, it was argued that significant time had passed, denying the accused the ability to meaningfully address the pair of shoes seen by police in September 2016, when compared to the shoe found in 2017. He had no knowledge of the movements of the shoes photographed in 2016 and thus had been provided with no opportunity to meet or address the seizer of the shoe in 2017, following the conclusion of the first trial. It was submitted that there was an unfair forensic disadvantage that had been visited on the accused by the failure of the prosecution to seek a soil sample from the shoe found in 2017, and that this presented an unfairness to the accused.
It was argued that it was unfair to the accused that this evidence arose for consideration at a trial stage, but after the first trial, and after the accused had been interviewed.
Conclusions
Admissibility of the evidence
In my opinion, the evidence sought to be led by the prosecution is admissible. Section 55 of the Act provides:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (emphasis added)
The evidence, taken at its highest, is relevant in that it is rationally capable of affecting the issue of whether the prosecution can establish the accused’s presence at the location where the deceased was found on the vacant block in September 2016. On the case to be presented, the fact of the accused’s presence, if it is accepted, is a highly probative piece of evidence. The case to be presented by the prosecution is a circumstantial one that sets out to prove the identity of the person that stabbed the deceased man, a matter that is in dispute.
As previously discussed, the body of evidence relating to item 17 (the shoe) itself comprises a number of circumstances that in combination can establish the presence of the shoe at the scene, and the connection of the accused to it. There are two particular aspects of the body of evidence that are challenged, namely, the opinion evidence of the comparison performed by Sergeant Kohlmann, and the DNA evidence provided by Dr Goray that seeks to establish a connection between the accused man and the shoe.
In my opinion the evidence of Sergeant Kohlmann is admissible pursuant to the exception provided by s 79 of the Act, and he can give his evidence of his opinion as proposed by the prosecution. First, I am satisfied that his level of training, study and experience, has provided him with the specialised knowledge required to allow his evidence to be admitted pursuant to s 79 Evidence Act 2008. On the voir dire hearing his qualifications were significantly tested.
Further, the methodology that Sergeant Kohlmann employed in the examination of the scene, and his later examinations of item 17, and the processes he employed in carrying out that examination, were the subject of evidence and submissions. I am satisfied that in the circumstances of this case, a jury would not be in a position to evaluate the body of evidence without the assistance of his specialised knowledge and his opinion.
Second, a necessary part of satisfying admissibility pursuant to s 79 of the Act is satisfying the requirement that in order for the witness to give his opinion, that opinion must be based wholly or substantially based on the specialised knowledge he has acquired. Notwithstanding there was challenge about this issue, I am satisfied that Sergeant Kohlmann has acquired specialised knowledge in the relevant field, and that his opinion in this case was formed wholly or substantially on the basis of his specialised knowledge. It is plainly true that a jury can see for themselves some class characteristics of the questioned shoe, and can compare those characteristics to the scene photograph of the imprint, and also the cast taken in 2017. However, the opinion of the witness takes into account more than a jury is qualified to assess by itself, namely, the consistency in size, shape, and design of the items under examination, the design and layout of the heel and arch area of the items under consideration, the impact of suggested rotational force on the imprint having an impact of suggested anomalies in size in certain areas of the print. In my opinion, these are all areas that a jury will be unable to understand and fully appreciate without the evidence of the witness. Importantly, these were all factors that the witness was able to take into account in forming the opinion he did.
Ultimately, the opinion of Sergeant Kohlmann is not that he can say item 17 is the shoe that left the imprint in the soil on the vacant block, but that the shoe could have made the impression, as could any other shoe with a similar outsole design. That opinion must be assessed in combination with a number of other relevant circumstances making up the prosecution case. In my opinion, the jury are entitled to have before it the evidence and the opinion of the witness.
Further, in my opinion, the evidence of Dr Goray is admissible, also pursuant to s 79 of the Act. The evidence of this witness is an important feature of the prosecution case because it is capable of establishing a connection between the shoe and the accused man. Item 17 was seized by the police more than 12 months after the death of the deceased, and at a time when the accused had been in custody from approximately 48 hours or so after the death occurred. For practical purposes, he had no access to the shoe from the date of his arrest. The prosecution seek to draw a link between the accused’s connection to item 17, and that it was the shoe that left the imprint at the scene of where the body was located.
The opinion of Dr Goray, if accepted as to the likelihood ratio provided by the DNA connection, is capable of creating that link. There is no doubt that the DNA evidence will be strongly challenged before the jury. However, Dr Goray was subjected to detailed cross-examination on the voir dire, and in my opinion, held her ground as to the validity of her opinion.
In combination, the evidence of Sergeant Kohlmann, and Dr Goray, if accepted, is capable of satisfying the jury that item 17 was the shoe that left the imprint, and that it was a shoe that had a direct connection to the accused man. Whilst the force of those pieces of evidence allows for the admissibility of the body of shoe evidence, it is to be observed that this body of evidence still must be assessed in combination with a series of other pieces of circumstantial evidence which together, are capable of pointing to the conclusion that it was the accused that stabbed Cameron Harris.
Section 137 of the Act
Having considered the arguments for the prosecution and defence, I can see no basis to reject the evidence pursuant to s 137 of the Act.
In my assessment, there is little doubt that in the circumstances of this case, the challenged body of evidence, if accepted, is capable of being highly probative. The prosecution has no other evidence of the physical presence of the accused at the scene where the body was located. To outweigh the probative value of this evidence and thus cause exclusion, the degree of unfairness presented to the accused would need to be significant, in my opinion. That said, I cannot detect that there is unfairness in the admission of the evidence.
As to the matter of potential complexity of the DNA evidence, in Tuite v R,[8] the Court of Appeal had occasion to give careful consideration to the potential complexities of DNA evidence. The Court concluded that the trial judge in that case correctly accepted that s 137 of the Act imposed the obligation on the trial judge to determine the weight which a jury acting reasonably could assign to the opinion evidence in that case. Not only did the trial judge conclude that the DNA evidence in that case was highly probative but that small amounts of DNA, and the limitations of STRmix methodology (which was the methodology used in the present case) did not erode the probative value of the DNA evidence to any significant degree. The trial judge had concluded that matters of dispute as to the reliability and accuracy of the DNA evidence in that case – where there were prosecution and defence DNA experts - were matters that could be resolved by the jury hearing the expert evidence and deciding which evidence was to be preferred.
[8][2015] VSCA 148.
In Tuite v R the Court of Appeal agreed with the trial judge’s conclusion that:
the mere fact that expert evidence deals with difficult and highly technical subject matter does not, in itself, constitute unfair prejudice to the accused[9]
[9]Ibid [125].
This accorded with views previously expressed by the Court about the capacity of a jury to decide between competing expert opinions. In the course of its decision, the Court of Appeal referred to the earlier case of R v Juric, in which Nettle J recognised in a pre-trial ruling that:
although the techniques and mechanisms underpinning the DNA evidence were “well beyond the ordinary experience of most men and women” and were complex and difficult, he did not consider that they “would be incomprehensible to any attentive lay person once explained as they have been to me in the course of the evidence”.[10]
[10]Ibid [127], citing [2003] VSC 382 [41].
For the accused, it was submitted that because the evidence came late in the proceedings, and formed no part of the first trial, that this created an unfair situation. Further, it was submitted that the lateness of the evidence created unfairness due to the accused man not having had an opportunity to comment on it in his police interview, or further, that it may mean it more likely that he will need to give evidence in this trial. In my view, these are not factors that create an unfairness in the circumstances of this case. There are many instances when police acquire evidence late in a proceeding, or after a discharged jury or successful appeal, and police locate fresh evidence. I can see no unfairness visited upon the accused man as a result of the way the police evidence unfolded, and the acquisition of a fresh line of evidence.
It was also submitted that the evidence of Sergeant Kohlmann and the evidence of Dr Goray created unfairness for the accused. First, because the evidence of Sergeant Kohlmann was evidence that was capable of somehow overwhelming the jury with an opinion in circumstances where the jury could perform the comparison task themselves. Second, it was submitted, in effect, that the DNA evidence of Dr Goray was complex, and was capable of leading the jury astray. I have previously concluded that in my opinion, Sergeant Kohlmann will give evidence that will assist the jury with his opinion about the shoe imprint. Further, for the reasons given immediately above, the evidence of Dr Goray, although of a complex nature, can be adequately assessed as to its reliability by a jury properly instructed.
At the appropriate time, the jury will receive directions about how to deal with expert evidence. Providing the evidence of both witnesses is led in an orderly and logical manner, I do not accept that the evidence is capable of visiting an unfair situation on the accused man that outweighs its probative value.
Accordingly, I rule that the evidence as proposed to be led by the prosecution is admissible, and should not be rejected as being unfair to the accused man.
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