R v Volpe (Ruling No 1) - [2018] VSC 796

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…

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 Volpe (Ruling No 1)

Details

AGLC: R v Volpe (Ruling No 1) [2018] VSC 796
Case: [2018] VSC 796
Decision Date: 16 May 2018

CaseChat Overview and Summary

In the case of R v Volpe, the defendant faced a charge of murder. The dispute centred on the admissibility of certain types of evidence, namely shoe impression and DNA evidence, which the prosecution sought to introduce. The case was heard in a court of criminal jurisdiction, likely at the trial level. The primary focus of the court was to determine whether the contested evidence could be admitted under the Evidence Act 2008, specifically considering the balance between its probative value and the risk of unfair prejudice to the defendant.

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