| 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…
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- AGLC
- R v Volpe (Ruling No 1) [2018] VSC 796
- Case
- [2018] VSC 796
- Decision Date
CaseChat Overview and Summary
The court needed to address whether the shoe impression and DNA evidence met the criteria for admissibility under sections 55, 76, 79(1), and 137 of the Evidence Act 2008. Section 55 requires that the evidence be relevant, while section 76 permits the court to exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice. The court had to assess the probative value of the shoe impression and DNA evidence against the potential prejudice it might cause to the defendant's right to a fair trial. Additionally, the court considered whether the probative value of the evidence outweighed any prejudicial effect it might have.
Upon reviewing the evidence, the court concluded that the shoe impression and DNA evidence had significant probative value that could aid in establishing the facts of the case. The court determined that the relevance of the evidence to the matters in issue and its potential to contribute to a just determination of the case was substantial. Furthermore, the court found that the probative value of the evidence outweighed any danger of unfair prejudice to the defendant. Therefore, the shoe impression and DNA evidence were ruled admissible under the Evidence Act 2008.
The court's decision was grounded in the statutory framework provided by the Evidence Act 2008, which guided the evaluation of the evidence's relevance and prejudicial impact. The ruling ensured that the court could consider all pertinent evidence that could assist in determining the truth of the matter before it.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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