Volpe v The Queen
[2020] VSCA 268
•16 October 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0153
| DANNY VOLPE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, T FORREST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 October 2020 |
| DATE OF JUDGMENT: | 16 October 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 268 |
| JUDGMENT APPEALED FROM: | R v Volpe (Unreported, Supreme Court of Victoria, Champion J, 26 June 2018) |
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CRIMINAL LAW – Appeal – Conviction – Murder – Shoe imprint evidence – Crime scene examiner’s opinion that shoe imprint near deceased’s body located ‘could have’ been left by shoe in applicant’s possession – Whether evidence relevant – Whether crime scene examiner possessed specialised knowledge – Whether probative value of evidence outweighed by risk of unfair prejudice – Evidence wrongly admitted – Appeal allowed – Conviction set aside – New trial ordered – Evidence Act 2008, ss 55(1), 79 and 137.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Boston | Melasecca, Kelly & Zayler |
| For the Respondent | Mr C Boyce QC with Ms A Ellis | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA
WEINBERG JA:
Introduction
On 26 June 2018, a jury empanelled in the Supreme Court found the applicant guilty of murdering Cameron Harris, who, on 17 September 2016, died from a single stab wound to the chest.[1]
[1]On 14 December 2018, the trial judge sentenced the applicant to 19 years’ imprisonment, with a non-parole period of 15 years.
The deceased’s body was found at about 2.57 pm on 17 September 2016 in a small reserve in the vicinity of the Upper Ferntree Gully Kindergarten. Ambulance officers, who arrived at 3.03 pm, declared Mr Harris dead at 3.14 pm.
A number of impressions — including what appeared to be shoe imprints — were found close to the body. The impressions were examined by a crime scene examiner, Sergeant Wayne Kohlmann. He took photographs and plaster casts of the impressions, one of the impressions — taken near ‘marker 3’ — being part of a shoe’s heel and arch.
On 28 September 2017, police seized a right, size 11, blue and white coloured ‘New Balance’ women’s running shoe (‘the shoe’ or ‘Item 17’) from a wooden stand in the hallway of the applicant’s premises. (The matching left shoe was not located.) A DNA examination of a sample taken from the innersole of the toe region of the shoe rendered a mixed, partial DNA profile, with three contributors. It was determined that it was 100 billion times more likely if the applicant was one of the contributors.
Sergeant Kohlmann, a crime scene examiner attached to the Major Crime Scene Unit at the Victoria Police Forensic Services Centre, examined the shoe and performed various tests. Over objection, Sergeant Kohlmann was permitted to give evidence of his opinion that the shoe could have made the impression located near marker 3. He could find no confirmable differences to exclude the shoe from having created the impression at marker 3. Sergeant Kohlmann concluded there was a limited association of class characteristics, meaning that the patterns and shapes and the design evident in the relevant impression are found on the shoe.
The applicant seeks leave to appeal against his conviction on three grounds, each of which challenges the admission of Sergeant Kohlmann’s evidence relating to the shoe and the impression found at marker 3. Hence, the grounds contend that the trial judge erred:
1. … in ruling that the shoe evidence was relevant.
2. … in ruling that the opinion evidence of Detective Kohlmann was admissible, in that he did not possess the requisite expertise (namely specialised knowledge based on training, study or experience).
3. … in failing to exclude the evidence pursuant to s 137 of the Evidence Act 2008.
As we will explain, we consider that ground 3 has been made out. Although the impugned evidence was relevant, and Sergeant Kohlmann possessed ‘requisite expertise’, any probative value that the evidence possessed was outweighed by the danger of unfair prejudice. In our opinion, the evidence should have been excluded under s 137 of the Evidence Act 2008 (‘the Act’). The trial judge’s failure to do so has led to a substantial miscarriage of justice.
Overview of the evidence
In order that the critical issues may be understood, it is necessary to say a little more about the evidence at trial.
Paul Bugeja gave evidence that, in September 2016, he owned a six-bedroom house in Montrose. It was a house where friends and associates were ‘sort of coming and going’ and occasionally staying. Mr Bugeja had known Cameron Harris, a ‘good’ friend, for two or three years, and would see him twice a week. He had known the applicant for seven or eight years. They got along well, but Mr Bugeja did not see the applicant often. Mr Harris and the applicant met through Mr Bugeja on Thursday, 15 September 2016. The next day, Friday, 16 September 2016, Mr Bugeja noticed that the applicant was ‘a bit on edge’ with Mr Harris.
Mr Bugeja said that when he woke up in the morning of Saturday, 17 September 2016, the applicant was at the house. He gave evidence that the applicant said in reference to Mr Harris: ‘I want to knock this cunt, I’ve had enough’. Mr Bugeja told the applicant to ‘stop being a sook’.
There was evidence from which it might be inferred that, later that day at about 11.30 am, the applicant and Mr Harris were involved in an altercation at the Arndale Shopping Centre. There was also evidence from which it might be inferred that, shortly after the argument, and in its near vicinity, the applicant was in possession of a ‘hunting knife or a fishing knife style type knife’.
In the afternoon of that day, Mr Bugeja was at home when Mr Harris telephoned him and asked to be picked up. At about 2.00 pm, Mr Bugeja collected Mr Harris from the ‘Forty Winks’ store at Knox City Shopping Centre, and, after a couple of stops, drove home. When he parked his vehicle, the applicant was on the nature strip with a ‘pile’ of ‘his stuff’. He and Mr Harris were in the vehicle with the windows open, when Mr Harris apologised to the applicant. Mr Bugeja’s evidence included the following narrative of what then transpired:[2]
[2]Emphasis added.
[PROSECUTOR]: … So what did Cameron [Harris] say to Danny [the applicant]?---’Sorry, sorry mate’. That’s all I can really remember. He was – just – the sorrys. I heard the sorrys.
But Cameron’s still in the car at that stage?---Yes.
What about Danny, where was he when that was being said?---Ah, he was on the nature strip, and he was standing up and looking towards the car, of course.
Did he remain in that position or did that change?---He’d come towards the car, towards – first of all, he come to my side and then he sort of didn’t come around. Was heading there, and then he – this is at the front of the car. Then he’s gone to Cameron’s side.
Was that via the front or the back of the car?---The front.
Was there any other conversation at that point as he’s gone over to that side?---Um, Danny said something about threatening his family. Don’t … you fucking threaten my family.
And who did he say that to?---Cameron.
What was Danny’s demeanour like at that stage?---He was pretty angry.
Did you say anything?---No, I, I told him to calm down.
Was Danny still next to the passenger side of the vehicle?---I guess sort of moving backwards and forwards from the front. I thought he was going to come to my side but he sort of moved from the front of the car back to the passenger side, he was thinking.
Did he have anything with him at this stage?---Not that I could tell but something in his hand sort of near the front of the car. I couldn’t see anything but just the way he was moving his hands, like he was moving something from hand to hand.
You’re making a motion there?---Yeah, just sort of like – I don’t know, he was just moving something from hand to hand but it was quite small, whatever it was. … But I didn’t see anything in his hand because I wasn’t – I’d seen what he was doing, I took note of what he’s doing but didn’t take full – like, to see what he was actually doing.
Just for the purposes of the transcript, you had both of your hands in front of you?---Yes.
With both hands in a fist?---Yep.
And you were moving one hand to another?---Yeah, they were sort of joined, joined together, pretty much, as if he was moving something from one hand to another.
Now, you said that Danny said something about threatening his family. Did Cameron Harris say anything in response to that at all?---He said he’s sorry. That’s when he said he’s sorry again.
Did Danny say anything in response to that?---I think that’s when he’s come basically up to the side of the passenger window then and punched him as – just sort of crouched down and I think it was his left hand in the window and hit him in the chest.
Can you firstly describe where are you when that happened?---I was in the driver’s side, still sitting. None of us had got out, we hadn’t got out of the car. ‘Cause I just arrived, just pulled up, handbrake, put it in park, as Danny’s said what he said and Cam said sorry and then the motion at the front of the car then basically he’s come around to the passenger side and the windows were open … and he’d come through with his left hand and hit him pretty hard in the chest.
I’ll just stop you there. Where was Danny when he punched Cameron?---On the outside of the car at the window. …
Can you just describe the punch?---It was a pretty forceful punch. So he’s standing sort of shoulder, you could say, almost sort of square on with the side of the car, the passenger side, and the window’s open all the way, and he’s come in with his left hand and pretty much hit him. I know it was sort of a funny movement but it was like a punch, pretty hard, and---
What part of Cameron did that punch connect to?---Pretty much just hit him right here, somewhere here.
You’re referring to your chest?---His chest, yes.
...
Are you indicating the left side of your chest?---Yes.
...
Once Danny had punched Cameron, what happened then?---Well, Danny walked off for a second and he’s – he was coming back again to punch him again, I would assume, so I’ve just done the windows up and locked the door …
... After Danny punched Cameron, what was Cameron’s reaction?---Well, he was clearly upset and he said, ‘All I try to do is help people’, that was what he said to me and he had a tear in his eye.
Did you notice any injuries to him?---Uh, no.
What about blood, did you see any blood on Cameron?---Uh, no.
Did you see where Danny went?---He went back to his pile of stuff.
...
After Cameron said those things about trying to help people, what’s the next thing that happened?---Well, he had a tear in his eye and I said, ‘Are you all right?’ I said, ‘I want to go inside.’ I said, ‘Just compose yourself’, basically and when I – ‘When you’re ready, come inside.’ I opened my side of the car – you just have to open it and it just opens automatically, and so his side was still locked and I’ve walked down to Danny.
And where was Danny?---He was at his – at the pile of car stuff.
Did you have a conversation with him?---No, basically had a go at him. ‘Why would you do that for?’
Can you just say the actual words that were said by you and Danny at that stage?---I said to him, ‘What did you do that for?’ and he goes, ‘Well he’s threatening to kill me family’.
...
We pause to note that the prosecution case was that, rather than having punched Mr Harris in the chest, the applicant had stabbed him.
As appears from the extract of his evidence set out above, having asked the applicant why he had done what he did, Mr Bugeja went inside the house. Less than a minute later, the applicant came inside and said that Mr Harris is ‘not looking too well’. Mr Bugeja continued:
Well he said about he’s not looking too well, ‘Do I take him to the hospital?’ and I said, ‘Well it’s the least you could do’ and he grabbed my keys and out the front door.
The effect of Mr Bugeja’s evidence was that the applicant drove away in his car with Mr Harris in the passenger seat. CCTV footage captured Mr Bugeja’s car travelling past the nearby Angliss Hospital in Upper Ferntree Gully Road several times between 2.46 pm and 2.51 pm, but the vehicle did not stop. Further CCTV footage showed Mr Bugeja’s car at 2.53 pm in the carpark adjacent to where Mr Harris’ body was found a few minutes later, around 3.00 pm. Although the precise time of death could not be determined, Mr Harris had died from a single stab wound to the chest.
Mark Cox, Paul Bugeja’s partner, gave evidence that the applicant repeatedly told him later that afternoon that he was sorry for ‘bringing the heat’ on the house, but that Mr Harris had threatened his family. According to Mr Cox, the applicant told him that he had ‘kept punching the fuck out of’ Mr Harris until he dropped him off (although this version was not consistent with the findings of the post-mortem examination).
Mr Bugeja also gave evidence that, on Sunday, 18 September 2016, the applicant saw media reports relating to the finding of the body and insisted that the car be cleaned and the seat covers removed.
On Monday, 19 September 2016, police executed a search warrant at Mr Bugeja’s home and arrested him for murder. It appears that running shoes may have been photographed at Mr Bugeja’s home, but they were not seized. When interviewed, Mr Bugeja initially denied any knowledge of the killing, before then implicating the applicant.
Shortly before 9.30 am that day, police arrested the applicant. A search warrant was executed at his home that evening. Police took a number of photographs of shoes in a wooden stand in the hallway — among them a pair of New Balance running shoes — but did not seize any of them.
A little over two weeks later, on 6 October 2016, police executed a further search warrant at Mr Bugeja’s home. They recovered two blades from an incinerator in the backyard. Forensic evidence indicated that either blade could have inflicted the fatal wound to Mr Harris. Mr Cox gave evidence that he had seen the applicant at the incinerator after he arrived back at the house on 19 September 2016. The prosecution alleged that the applicant had burnt the knives in an attempt to cover up the murder.
In early September 2017, the applicant stood trial for Mr Harris’ murder. The prosecution did not, however, adduce any evidence of the shoe imprint found near the body at marker 3 (or, for that matter, any other). On 27 September 2017, that being the thirteenth day of that trial, the jury was discharged due to the illness of one juror and the personal commitments of another.
Significantly, the very next day, 28 September 2017, police executed a further search warrant at the applicant’s home. They seized the shoe from a wooden stand in the hallway.
At trial, the central issue was whether the applicant had killed the deceased. The defence case was that Mr Bugeja was the true killer — or at least that that reasonable possibility could not be excluded — and that Mr Bugeja and Mr Cox had accused the applicant so as to avoid Mr Bugeja being prosecuted for murder.[3] In the alternative, the defence argued that murderous intent could not be established.
[3]See, eg, [81] below.
During his charge to the jury, the judge gave ‘unreliable evidence’ directions with respect to the evidence of both Mr Bugeja and Mr Cox, in light of their extensive convictions for dishonesty and other serious offences; the fact that they had received letters of comfort from the police; and the fact that Mr Bugeja was the original murder suspect. Mr Bugeja and Mr Cox were also at the relevant time habitual users of the drug ‘ice’.
The shoe evidence
At the time police seized the shoe from the wooden stand in the hallway of his home, the applicant had been in custody for a little over a year.
The shoe’s innersole toe region was swabbed by Dr Mariya Goray. A DNA examination indicated a mixed, partial DNA profile with three contributors. Dr Goray determined that the DNA evidence was 100 billion times more likely if the applicant was one of the contributors. Dr Goray’s evidence included that the applicant’s DNA could have been deposited by the applicant wearing the shoe, or by transfer (for example, on a sock).
As we have said, Sergeant Wayne Kohlmann examined the shoe. He compared the patterns and shapes seen in the impression at marker 3 near where the body was found with the shapes and patterns on the outsole of the shoe. In addition to photographing the shoes, he performed various tests in order to compare the shoe to the located impression. The tasks undertaken by Sergeant Kohlmann included: an examination of the photographs of the shoe print on the ground near the deceased’s body; an examination of the photographs of the shoes (making notes concerning shapes, patterns and design); an examination of the cast that had been taken; production of a ‘one to one’ scale series of photographs to allow accurate physical comparisons to be made between the shoe and the impression; and the production of transparent acetate copies of a print of the sole of the shoe on a hard surface.
Sergeant Kohlmann also conducted an experiment in which he created ‘laboratory mud’ in an attempt to explain how a perceived misalignment in the impression that was left on the ground may have occurred. Using the actual shoe, he created an imprint in the laboratory mud applying rotational force. He concluded that the outsole of the shoe was consistent in size, shape and design with the heel and arch area of the impression at marker 3. He gave the following evidence:
… I formed a view that the outsole of the shoe was consistent in size, shape and design with the heel and arch area … of the impression at yellow Marker 3.
However, as I said, as I alluded to there were sizing anomalies that came into play here. There was an alignment issue I encountered, where the heel and the ball in the cast were at odds slightly with the alignment of the heel and the ball in the test impression.
[PROSECUTOR]: Did you decide then to do something else?---Yes, looking for an explanation as to why this might be. Whether it’s because the impression is caused by another shoe, or whether the known shoe could have been responsible. I’ve got to explore the possibility that maybe some forces were applied to the shoe that might explain it. So I created some mud – I tried as best I could to replicate mud from the scene, and I tried to see if I could step into the mud with the shoe, and then create a similar misalignment between the heel and the ball by firstly stepping in with the heel then rolling onto the ball, then lifting the heel clear of the mud, and then rotating. So when I’m looking down at my shoe, I’m rotating on my ball in an anticlockwise direction to try and see if I could deliberately induce a change in that alignment angle.
And I was able to do so.
It is important to understand, however, that Sergeant Kohlmann did not express the opinion that the shoe left the impression at marker 3. Indeed, his evidence amounted to no more than that the shoe could have left the impression. His evidence included the following:[4]
[4]Emphasis added.
... I might just ask you to turn to your conclusion now?---Yes.
And perhaps if I just ask you about the first part of your conclusion please, Sergeant?---Yes. I 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 3.
What do you mean by size, shape and design?---Well, the design of the shoe, it being a sports shoe with a heel and the ball, and the arch essentially being in the same plane. The design of it, the shape of the profile, the shapes of the patterns and their special relationship to one another, I found that correspondence between the shoe and the seam impression. But there was a caveat on that.
Yes?---Because of these sizing or dimensional issues that I encountered, namely the ball and the – or the ball of the shoe apparently moving through the mud whilst the impression was being made, these – or this presents a limiting factor for me. … So due to the quality and the nature of the impression, I came to the conclusion that the New Balance shoe comprising Item 17, it could have made the impression at the scene at yellow Marker 3, as could any other shoe from a similar class of shoes.
What do you mean by similar class of shoes?---If you were to go – just as an example, if you were to go to the New Balance factory and pluck off all of the size nine right New Balance shoes of this model, there was no way known forensically I could distinguish this shoe from any other shoe. There was no damage to it that enabled it to stand out and be distinguished. So this is a class of shoes.
Can you go into just the next sentence, please, in your conclusion?---Um, and this is also important. I was unable to find any confirmable differences between the design, the shapes and the patterns, um, at the, um, at the seam compared with the shoe that would allow me to exclude item 17. So there wasn’t anything I say in the scene impression that sort of said to me, ‘No, this is different to the shoe’. I didn’t find anything that would allow me to exclude the shoe.
Is it the case that in terms of shoe comparison work, there is a conclusion that’s placed on a scale of conclusions?---Yes, there is.
Beginning on one end, something that’s called ‘lacks sufficient detail’?---Yes.
And … what does that mean?---Well, it was – um, and a classic example were some of the tyre impressions at the scene. Um, just no detail in them that would allow you to do a comparison with anything. They’re completely useless from a forensic perspective.
The next level on the scale is exclusion?---Exclusion. So this is a situation where you’ve detected something in the scene impression that is patently obvious. It’s different to the known shoe. And on that basis, you can say, ‘Well, that - that known shoe could not have made the - sorry, the impression at the scene’, so it’s excluded.
The next heading in that scale?---Indications of non-association.
Yes, what does that mean?---So indications of non-association basically means, look, it’s not patently obvious that it’s not the shoe, but there are some indications here that it’s probably not. Um, it’s - you know, there are - there’s not sufficient clarity in the detail that you’re sort of looking at that might exclude the shoe to really say, ‘I can confidently exclude it’.
The next level on the scale of conclusions?---The next level is the level that applies in this particular case, which is a limited, um, a limited association of class characteristics, which basically means, um, the class characteristics of the shoe, um, are consistent, you know, they’re – they’re – the patterns and shapes and the design evident in the scene impression are to be found on the known shoe. However, there is a – a, um, a factor that is a limiting factor in being able to confidently say, and it presents you from saying that you’re satisfied at the class level of comparison. That limiting factor in this case was this alignment issue that I had. Okay, I – I can explain that I can – I can demonstrate that I can create an alignment issue, but that’s one possible explanation, it’s not the whole and solely the only explanation. So that’s a limiting factor. It doesn’t allow me to elevate my finding beyond that.
Availability of the shoe
By agreement, a statement made by Darren Rowlinson, the Operations Manager for New Balance Australia Pty Ltd, was read into evidence as part of the prosecution case.
Mr Rowlinson was sent a photograph of the shoe by police. He said that the ‘product code’ was to be found on the tongue of the shoe. By reference to the product code, he and the company’s Credits Officer, Natalie Nicolay, conducted some research on the shoe. He stated:
From our research and the records held by New Balance Australia, I can confirm that this particular model of shoe:
(1) Is a New Balance 1211 women’s cross trainer.
(2) Is a size 11 (USA).
(3) Was manufactured in China.
(4) Is identified by the product code, WX1211WB.
(5) Was first sold in Australia in 2010.
(6) Was predominately sold from stores such as The Athlete’s Foot, Rebel Sports and Paul’s Warehouse, as well as various other outlet stores.
(7) Sold approximately 257 units in Australia.
I have been asked by [police] if the sole pattern on the shoe is unique to that particular model. I cannot be certain that the sole on this shoe has not been used on another model before or after it was manufactured. In my opinion, I am very comfortable in saying that the shoe that I have seen in pictures is highly likely to be an authentic New Balance shoe that was imported into Australia.
Ruling on the admissibility of the shoe evidence
It is important to understand how the judge saw the issue of the shoe evidence. In his ruling admitting the evidence he said:[5]
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.
[5]R v Volpe [2018] VSC 796, [35]–[36] (‘Ruling’) (emphasis added to this and following passages).
Ultimately, the trial judge ruled that Sergeant Kohlmann’s evidence, taken at its highest, was ‘relevant’ within the meaning of s 55(1) of the Act in that ‘it is rationally capable of affecting the issue of whether the prosecution can establish the [applicant’s] presence at the location where the deceased was found on the vacant block in September 2016’.[6]
[6]Ruling, [74].
In holding the evidence of Sergeant Kohlmann’s opinions to be admissible, the judge said:[7]
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 [of the Act]. 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 [the shoe], 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 [the shoe] 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.
[7]Ibid [76]–[79].
Further, failing to accept ‘that the evidence is capable of visiting an unfair situation on the accused man that outweighs its probative value’,[8] and finding that there was ‘no basis to reject the evidence pursuant to s 137 of the Act’,[9] the judge observed:[10]
[8]Ibid [90].
[9]Ibid [83].
[10]Ibid [84].
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.
And also:[11]
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.
[11]Ibid [88].
Ground 1: Was the shoe evidence relevant?
In our view the shoe evidence was relevant.
Applicable principles
As to the assessment of relevance, it is convenient to repeat what was said in Paulino:[12]
[12]DPP v Paulino (2017) 54 VR 109, 124–5 [64]–[67] (‘Paulino’) (citations as in original).
The Evidence Act 2008 provides that relevant evidence ‘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’.[13] Except as otherwise provided by the Evidence Act, relevant evidence is admissible.[14]
Probative value is defined in the Dictionary to be ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue‘.[15] The 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.[16]
In Wise, the Court observed that determining whether a piece of evidence has the capacity to ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’ involves an exercise in logic.[17] In other words, in order for evidence to be relevant, it must render a fact in issue more probable than it would be without the evidence. As Gleeson CJ, Heydon and Crennan JJ said in Washer:
Relevance depends upon whether the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[18] That can be determined only by an analysis of the facts in issue in the proceedings, and the circumstances which bear upon the question of probability. It also requires consideration of the process of reasoning by which information as to the fact of the acquittal could rationally affect the assessment of the probabilities. The word ‘rationally’ is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of a fact in issue at the trial.[19]
In context, s 55(1) of the Evidence Act directs attention to whether the disputed evidence, ‘if it were accepted’[20] by the jury, ‘could’ — not ‘would’ — ‘rationally affect’ the assessment of the probability of the existence of a fact in issue. As was pointed out in Washer, the adverb ‘rationally’ is significant. Thus, there must be a logical connection between the evidence and the fact in issue. If a trial judge is satisfied that a reasonable jury could find such a logical connection, then he or she must determine the evidence to be relevant. Although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised.[21] Therefore, ambiguity or apparent inconsistency is not a sufficient reason to reject evidence in a criminal trial.[22] Moreover, in judging relevance, the contested evidence must not be looked at in isolation.[23] As Heydon J observed in Evans:
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.[24]
[13]Section 55(1).
[14]Section 56(1).
[15]In R v Chee [1980] VR 303, the Court (McInerney, Anderson and Brooking JJ) described the position at common law (at 308): ‘Putting aside exclusionary rules, the test of admissibility of evidence is whether it is probative: i.e. whether it increases or diminishes the probability of the existence of a fact in issue: Director of Public Prosecutions v Kilbourne, [1973] AC 729, at p. 757; [1973] 1 All ER 440. If evidence offered has this tendency, it may be said to have probative force.’
[16]IMM v The Queen (2016) 257 CLR 300, 313 [44] (French CJ, Kiefel, Bell and Keane JJ) (IMM).
[17][DPP v Wise (a Pseudonym)] [2016] VSCA 173 [68].
[18]Goldsmith v Sandilands (2002) 76 ALJR 1024, 1025 [2]; 190 ALR 370, 371. The definition of relevance is taken from the Evidence Act 1995 (Cth), s 55. That legislation does not govern the present case, but the definition reflects the common law.
[19]Washer v Western Australia (2007) 234 CLR 492, 498 [5].
[20]See Adam v The Queen (2001) 207 CLR 96, 105 [22] (Gleeson CJ, McHugh, Kirby and Hayne JJ).
[21]Smith v The Queen (2001) 206 CLR 650, 653 [6] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[22]R v XY (2010) 79 NSWLR 629, 646 [90] (Whealy J); Louizos v The Queen (2009) 194 A Crim R 223, 230 [31] (Howie J).
[23][Bayley v The Queen (2016) 260 A Crim R 1, 23] [130]–[131].
[24]Evans v The Queen (2007) 235 CLR 521, 568 [177].
Submissions of the parties
In support of the first ground, counsel for the applicant in this Court submitted that the relevant fact in issue in the proceeding was the identity of the killer. The shoe evidence did not have the capacity to rationally affect the assessment of that fact in issue, since, taken at its highest, Sergeant Kohlmann’s evidence established no more than that the shoe — taken from the applicant’s home 12 months after the killing — could have made the impression at the crime scene (as could any other shoe with a similar outsole design). Unlike in Meade,[25] there was no evidence that the applicant was wearing the relevant shoe on the day of the murder.[26] Indeed, so counsel submitted, there was no evidence that the shoe even belonged to the applicant. It simply appeared to be similar to shoes photographed a year prior to its seizure. The prosecution’s reliance on the shoe evidence was ‘conjectural and speculative’. Although the applicant may have been a contributor to the DNA in the shoe, that could have been the product of transfer. Further, there was no evidence as to the applicant’s foot size, or that he wore women’s shoes. And there was no evidence as to who lived in or frequented the applicant’s home.
[25]R v Meade (Ruling No 4) [2013] VSC 257 (Weinberg JA) (‘Meade’). See also Meade v The Queen [2015] VSCA 171 (Maxwell P, Redlich and Whelan JJA).
[26]I note that Paul Bugeja gave evidence that the applicant was wearing thongs on the day Mr Harris was killed.
Counsel for the respondent submitted that the trial judge did not err in admitting the shoe evidence. The fact in issue at trial was whether the applicant was the person responsible for killing Mr Harris. Evidence that connected the applicant to the scene where the deceased’s body was located was clearly relevant to determining that question. The shoe evidence was evidence that, if accepted, could rationally affect the assessment of the probability of the existence of a fact in issue. Counsel contended that the trial judge did not overstate the effect of the evidence, and was correct to conclude that the evidence, ‘taken at its highest’ was relevant, in that it was rationally capable of affecting the issue of whether the prosecution could establish the applicant’s presence at the location where the deceased’s body was found. The evidence was not conjectural or speculative. It was simply a piece of evidence that had the capacity to link the applicant with the crime scene and was thus a piece of circumstantial evidence to be used in assessing whether the applicant was the killer.
Discussion
Determining relevance — whether a piece of evidence has the capacity to ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’ — involves an exercise in logic.[27]
[27]DPP vWise (a Pseudonym) [2016] VSCA 173, [68] (Warren CJ, Weinberg and Priest JJA) (‘Wise’).
Although there may be permutations in the way it may be stated, the principal fact in issue in the applicant’s trial was whether the applicant was Mr Harris’ killer.[28] Importantly, there was no dispute that whoever killed Mr Harris dumped his body in the location at which it was found. Although the precise time that the impression at marker 3 had been made could not be determined, given its proximity to the body (and the fact that the mud was damp enough for an impression to be left), it might reasonably be inferred that the impression had been left by a shoe worn by the killer when dumping the body.
[28]It will be remembered that the defence case was that Mr Bugeja was the true killer (or at least that that reasonable possibility could not be excluded). As a second string in the defence bow, it was argued that murderous intent could not be established.
Next, the evidence permitted the inference that the applicant had possessed and worn the shoe seized by police. The shoe was found in the hallway of his home, where, presumably, he had easy access to it. Further, although other possible inferences were pressed by the defence, it could reasonably be inferred, first, that the applicant’s DNA was located in the shoe’s innersole toe region — the DNA evidence was 100 billion times more likely if the applicant was one of the contributors — and, secondly, that his DNA was deposited in the toe region of the shoe in the course of wearing it.
Next again, accepting Sergeant Kohlmann’s opinion that the shoe could have left the impression found near the body at marker 3,[29] it might be inferred that the shoe — worn by the applicant — left the impression near the body, permitting the further inferences that he could have dumped the body and could have been the killer.
[29]Although nothing in the present case turns on it, we note that in the field of footwear comparison, in R v T (Footwear Mark Evidence) [2011] 1 Cr App R 9 (Thomas LJ, Beatson and Kitchen JJ) the Court of Appeal for England and Wales expressed the view that it is proper for an expert in footwear marks to express the opinion that a particular piece of footwear ‘could have made the mark’ found at a crime scene. In that case, Mr Ryder of the Forensic Science Service (‘FSS’) attended the scene of a murder and recovered evidence of footwear marks. (Mr Ryder was by academic training a chemist; had been employed by the FSS since 1989; and had very extensive experience of footwear marks.) He carried out a comparison of the marks with a pair of Nike ‘trainers’ found in the appellant’s house and concluded that there was ‘a moderate degree of scientific evidence to support the view that the [Nike trainers recovered from the appellant] had made the footwear marks’. Allowing the appeal against a conviction for murder, the Court observed (at 99–100 [73]–[74]) (emphasis added):
… It seems to us that in some cases an expert examiner of footwear marks can indeed go no further than to express the opinion than the shoe could or could not have made the mark ... An opinion that a shoe ‘could have made the mark’ is not in our view the same as saying that ‘there was moderate [scientific] support for the prosecution case’. The use of the term ‘could have made’ is a more precise statement of the evidence; it enables a jury better to understand the true nature of the evidence than the more opaque phrase ‘moderate [scientific] support’. ...
However there are cases where it would not be right to confine an examiner (where there are solely class characteristics) to opining on whether the mark could or could not have been made. There may be factors that enable him to go further than ‘could have made’ and express, on the basis of such factors, a more definite evaluative opinion. It would not be appropriate for us to express a view on the factors which would properly enable an examiner to express a more definitive evaluative opinion, but they would certainly include an unusual size or pattern.
It must be borne steadily in mind that, in determining whether a particular piece of 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 what that piece of evidence — considered in isolation — may prove. One must also have regard to the other evidence in the case. Relevance does not depend on the capacity of a particular piece of evidence by itself to prove the prosecution case on a particular issue. When assessing probability, one must look to the effect of the contested evidence taken in conjunction with the other evidence in the case.[30]
[30]Evans v The Queen (2007) 235 CLR 521, 568 [177] (Heydon J); Bayley v The Queen (2016) 260 A Crim R 1, 23 [131] (Warren CJ, Weinberg and Priest JJA); Paulino, 125 [67] (Priest JA).
In our opinion, when viewed as a piece of circumstantial evidence, the shoe evidence was rationally capable of affecting the assessment of the probability of the fact that the applicant had dumped the body and was the killer. It was therefore admissible.
The extent to which the shoe evidence could rationally affect the assessment of the probability of the existence of a fact that the applicant was the killer is, however, another matter entirely. Indeed, it is critical to a consideration of ground 3.[31]
[31]See [62] ff below.
The first ground cannot be upheld.
Ground 2: Did Sergeant Kohlmann possess specialised knowledge?
Evidence of Sergeant Kohlmann’s opinion that the shoe could have left the impression found near the body at marker 3 was, as we have said, relevant. The live question raised by ground 2 is whether he possessed the ‘requisite expertise (namely specialised knowledge based on training, study or experience)’ to express that opinion. In our view, he did.
Applicable principles
As a general rule, evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.[32]
[32]Evidence Act 2008, s 76.
An exception to the general rule is to be found in s 79(1) of the Act, which provides:
79 Exception—opinions based on specialised knowledge
(1) 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.
Assuming the evidence to be relevant, evidence of a person’s opinion will be admissible: first, if he or she has ‘specialised knowledge’; secondly, that specialised knowledge is based on his or her training, study or experience; and, thirdly, the opinion is based ‘wholly or substantially’ on that specialised knowledge.[33]
[33]Compare Honeysett v The Queen (2014) 253 CLR 122, 131 [23] (French CJ, Kiefel, Bell, Gageler and Keane JJ) (‘Honeysett’).
As this Court observed in Jacobs:[34]
In any case in which the admissibility of opinion evidence is in issue, the starting point is to identify precisely the fact in issue to which that evidence is claimed to be relevant. That proposition is trite, yet of fundamental importance. Plainly, evidence that is not relevant to the proof of a fact in issue is inadmissible. Further and significantly, the precise identification of the issue, to which the proposed opinion evidence is relevant, is necessary in order to determine whether, in fact, the evidence is probative of that fact in issue, and, if so, whether the witness, who is to give the evidence, is qualified to express that opinion, and whether that opinion is wholly or substantially based on the witness’ expert knowledge.[35]
Thus, in Dasreef Pty Ltd v Hawchar the plurality, in considering ss 76 and 79 of the Evidence Act 1995 (NSW), said:
Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered ‘to prove the existence of a fact’. That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between ‘opinion’ and ‘fact’ or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of ‘fact’. Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it 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’. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.[36]
[34]Jacobs (a Pseudonym) v The Queen [2019] VSCA 285, [47]–[48] (Priest and Kaye JJA, and Kennedy AJA) (citations as in original).
[35]Evidence Act 2008 ss 55, 79; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743–4 [85] (Heydon JA).
[36]Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 602 [31] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also Honeysett v The Queen (2014) 253 CLR 122, 132 [25].
In Honeysett, the High Court held that the ‘subjective’ opinion of an anatomist was inadmissible. The Court examined the conditions of admissibility under s 79(1), observing:[37]
[37]Honeysett, 131–2 [23]–[24] (citations as in original).
… ‘Specialised knowledge’ is to be distinguished from matters of ‘common knowledge’.[38] Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person’s training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines ‘knowledge’ as ‘acquaintance with facts, truths, or principles, as from study or investigation’[39] (emphasis added) and it is in this sense that it is used in s 79(1). The concept is captured in Blackmun J’s formulation[40] in Daubert v Merrell Dow Pharmaceuticals Inc: ‘the word “knowledge” connotes more than subjective belief or unsupported speculation … [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.’[41]
The second condition of admissibility under s 79(1) allows that it will sometimes be difficult to separate from the body of specialised knowledge on which the expert’s opinion depends ‘observations and knowledge of everyday affairs and events’.[42] It is sufficient that the opinion is substantially based on specialised knowledge based on training, study or experience. It must be presented in a way that makes it possible for a court to determine that it is so based.[43]
[38]Evidence Act, s 80(b).
[39]Macquarie Dictionary, rev 3rd ed (2001), p 1054.
[40]The formulation stated was with respect to r 702 of the Federal Rules of Evidence. At that time, the rule provided: ‘If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.’
[41](1993) 509 US 579 at 590, cited in R v Tang (2006) 65 NSWLR 681 at 712 [138] per Spigelman CJ.
[42]Velevski v The Queen (2002) 76 ALJR 402 at 427 [158]; 187 ALR 233 at 268 per Gummow and Callinan JJ.
[43]HG v The Queen (1999) 197 CLR 414 at 427 [39] per Gleeson CJ.
Evidence of specialised knowledge
On the voir dire, Sergeant Kohlmann gave evidence that he had done ‘in-house’ training with Victoria Police in relation to shoe impression (and tyre impression) evidence. The training ‘was done within the confines of the laboratory’ by an ‘immensely experienced crime scene examiner’, and went ’over a period of years’. The training involved ‘a lot of research’, including ‘reading of textbooks on the subject matter’. It also involved written exercises and practical exercises, some of which were assessed. The training ‘culminates in an oral assessment of one’s knowledge and a demonstration of one’s ability to perform a satisfactory comparison’. Sergeant Kohlmann ultimately had been authorised by the Director of the Forensic Services Department to conduct physical comparisons of shoe and tyre impressions. Over a period of ten years, he had ‘considerable experience in … the preservation of, the recording of and a collection of shoe impression evidence’.
In January 2017, Sergeant Kohlmann said, he had become accredited as an ‘expert in the methodology of crime scene investigation’ by the Accreditation Board of the Australasian Field Forensic Sciences Accreditation Board (‘AFFSAB’). In order to become accredited he had to undergo both an oral and a practical assessment. Further, he could not undertake the AFFSAB assessment unless Victoria Police had first informed the Board that ‘this man is competent in shoe and tyre comparisons’.
Sergeant Kohlmann also gave evidence that he used the Foster and Freeman ‘SICAR’ database, employed in the identification of shoe prints recovered from crime scenes and the management of shoeprint evidence. The database ‘contains an elaborate database of shoe impressions, patterns and designs of thousands and thousands of shoes that found [sic] throughout the world’. He is often contacted by metropolitan police or regional crime scene examiners and asked to identify shoes from shoe impressions using the database.
Finally, Sergeant Kohlmann said that he had undertaken a week-long ‘shoe impression workshop’ with fellow police and examiners ‘from around the country’. The workshop was held in Brisbane five or six years ago, and the attendees studied ‘different trends, different techniques [and] methodologies that were evolving, [and] experiences from other States’. So far as staying abreast of ‘literature or published articles in relation to shoe comparison’ was concerned, Sergeant Kohlmann said
we get provided with updates to different developments around the world in relation to various disciplines but specifically shoe and tyre impression evidence. We get provided, for example, with information about case laws and things that may impact upon that forensic discipline. We’re having a training program in early July for a week, specifically on a new way of conducting shoe comparisons using Photoshop, using digital methods, so there’s always something going on in the background. It’s certainly not a stagnant pond.
Submissions of the parties
In this Court, counsel for the applicant was critical of the fact that Sergeant Kohlmann had only completed Year 11, and did not attend university. Rather than having a Bachelor’s degree as recommended by the American Scientific Working Group for Shoe Print and Tyre Tread Evidence, Sergeant Kohlmann learned about shoe comparisons by the ‘tree methodology’ approach, in that information was fed down to him through an overarching Australian body which had itself learned from other international bodies. He had not been published in the area of shoe impressions, and had no prior experience in giving evidence on the issue. Thus, so it was argued, Sergeant Kohlmann did not have specialised knowledge based on his training, study or experience.
On the other hand, counsel for the respondent contended that shoe impression analysis and comparison is an area of specialised knowledge. Sergeant Kohlmann’s opinion, counsel submitted, was based on his many years of training and experience, which included internal training through a training program on physical comparison work, involving research, reading textbooks, written and practical exercises and oral assessment of his knowledge. He was mentored and supervised by more senior and experienced members in handling and processing shoe impression evidence; and, after completion of necessary assignments, assessments and tasks, Sergeant Kohlmann eventually became authorised to conduct physical examinations and comparative work following a recommendation to the Director of Forensic Services Department. He was also accredited by AFFSAB, and is proficient in the SICAR software program.
Discussion
Accepting Sergeant Kohlmann’s evidence on the voir dire, in our view the judge was correct to conclude that Sergeant Kohlmann possessed specialised knowledge with respect to the examination of shoeprint impressions — that specialised knowledge being based on his training, study and practical experience — and that the opinion he expressed by comparison of the shoe and the impression at marker 3 was based wholly or substantially on that specialised knowledge.[44] As the evidence set out above demonstrates,[45] it was well open to conclude that Sergeant Kohlmann had undergone extensive training, undertaken significant study and gained much practical experience, in the recognised field of shoe print comparison and analysis. That being so, it mattered not that he had no tertiary qualifications.
[44]It is interesting to note that, in the September 2016 report to the President of the USA by the President’s Council of Advisors on Science and Technology (‘PCAST’), Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, PCAST found (at p 117) that:
there are no appropriate empirical studies to support the foundational validity of footwear analysis to associate shoeprints with particular shoes based on specific identifying marks (sometimes called ‘randomly acquired characteristics’). Such conclusions are unsupported by any meaningful evidence or estimates of their accuracy and thus are not scientifically valid.
But see R v T (Footwear Mark Evidence) [2011] 1 Cr App R 9, 97 [64]. See also Chris Maxwell, Preventing Miscarriages of Justice: The Reliability of Forensic Evidence and the Role of the Trial Judge as Gatekeeper, (2019) 93 ALJ 642, 648; Mark Weinberg, Juries, Judges, and Junk Science — Expert Evidence on Trial, paper presented to the Australian Academy of Science and Australian Academy of Law Joint Symposium ‘The Reception, Quality and Evaluation of Scientific Evidence in Australian Courts’, on 19 August 2020, n 7.
[45]See [54]–[57] above.
Ground 2 must fail.
Ground 3: Did the danger of unfair prejudice outweigh the probative value of the shoe evidence ?
As we have indicated, the shoe evidence had some probative value. We consider, however, that the limited probative value that the shoe evidence possessed was far outweighed by the danger of unfair prejudice. The judge should have excluded the shoe evidence pursuant to s 137 of the Act. Failure to do so has occasioned a substantial miscarriage of justice.
Applicable principles
The approach to be taken to the exercise contemplated in s 137 was discussed in Paulino:[46]
[46]Paulino, 132 [101] (Priest JA) (citations as in original).
As was pointed out in Wise,[47] although other sections of the Act assign a quality to the probative value contemplated by the particular provision,[48] s 137 merely requires the probative value of the evidence to be weighed against the danger of unfair prejudice to the accused. When weighing probative value against the danger of unfair prejudice, however, s 137 requires that the evidence be taken at its highest so far as the effect it could have on the assessment of the probability of the existence of the facts in issue.[49] Section 137 contemplates that no element of discretion accompanies the judicial exercise for which it provides.[50] It ‘is expressed in terms of an evaluative judgment mandating exclusion’.[51] In a criminal proceeding, therefore, 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.
[47][2016] VSCA 173 [51].
[48]For example, ss 97 and 98, which require tendency and coincidence evidence to have ‘significant’ probative value.
[49]IMM (2016) 257 CLR 300, 314 [47].
[50]Wise [2016] VSCA 173 [50].
[51]IMM (2016) 257 CLR 300, 306 [16].
Submissions of the parties
In her submissions, counsel for the applicant reminded the Court that a trial judge must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice, there being no element of discretion involved. Counsel submitted that the probative value of the shoe evidence was ‘marginal at best’.
Further, counsel for the applicant submitted that, in refusing to exclude the evidence, the trial judge had refused to consider a critical, anterior question: to what extent is the evidence capable of rationally affecting the existence of a fact in issue? Instead, the judge wrongly assumed that the jury would be entitled to conclude that the shoe was evidence that the applicant had been at the scene where the body was discarded. The judge then considered only the importance of such a conclusion to the prosecution case instead of the probative value of the evidence, the probative value of evidence and its importance being quite separate things.
Counsel for the applicant submitted that although the probative value of the evidence was slight, there was ‘a palpable risk that it might assume an undeserved mantle of potency and legitimacy in the eyes of the jury’.[52] Additionally, the evidence that ‘257 units’ of New Balance 1211 women’s cross trainer shoes had been sold in Australia[53] ‘was undeservedly seductive, given there was no evidence as to how many other models and sizes had that same outsole and therefore could also have left the impression at the crime scene’. And very importantly, the danger of the jury placing undue weight on the shoe evidence was heightened further still by the fact that the evidence supported the evidence of Mr Bugeja and Mr Cox, both of whom attracted ‘unreliable evidence’ warnings.
[52]See Paulino, 132 [103] (Priest JA).
[53]See [30]-[31] above.
The respondent’s counsel contended that the judge was correct in his assessment that the probative value of the shoe imprint evidence, if accepted, was capable of being highly probative, and that there was no danger of unfair prejudice. Counsel submitted that the judge recognised that the evidence of Sergeant Kohlmann’s opinion would assist the jury with respect to the impression at marker 3. And whilst the shoe evidence was the only forensic evidence supporting the physical presence of the applicant at the crime scene, there was other circumstantial evidence placing the applicant at that location (that being CCTV footage, coupled with Mr Bugeja’s evidence that the applicant drove off in his utility). There was therefore no risk that the evidence might assume an undeserved mantle of potency in the eyes of the jury. Indeed, counsel submitted, Sergeant Kohlmann himself was careful in his overall conclusion and did not attempt to elevate his opinion beyond concluding that the shoe could have made the impression.
Counsel for the respondent submitted that the evidence regarding the number of New Balance shoes of the same make and size sold in Australia was admitted by agreement. Although Mr Rowlinson could not be certain that the sole on the shoe had not been used on another model before or after it was manufactured he was comfortable saying that the shoe was highly likely to be an authentic New Balance shoe that had been imported into Australia.
Finally, the respondent’s counsel argued that, even if error were shown, it did not result in a substantial miscarriage of justice.
Discussion
In our view, in his ruling refusing to exclude the evidence under s 137 the judge conflated the notion of probative value — employed in s 137 and elsewhere in the Act — with the importance of the evidence to the prosecution case. Hence, as we understood his reasoning, the trial judge considered that there was ‘little doubt’ that the shoe evidence ‘is capable of being highly probative’, since the prosecution ‘has no other evidence of the physical presence of the accused at the scene where the body was located’.[54] Clearly, however, the probative value of evidence, and its importance to the prosecution case, are distinct concepts.[55] The mere fact that a piece of evidence is important to the prosecution case, because it is the only evidence on a topic, cannot imbue the evidence with probative value. Evidence which is of slight probative value will not have its quality or strength enhanced simply because it is important to the prosecution case.
[54]See [35] above.
[55]See R v Debresay (Ruling No 1) [2016] VSC 487, [40] (T Forrest J).
Properly analysed, the shoe evidence was of slight probative value.
Although it might readily be concluded that the impression at marker 3 was left in damp soil or mud by a New Balance shoe, there is no exactitude as to when that occurred. Moreover, there was no satisfactory evidence about the size of the class of New Balance shoes sold in Victoria which could have left that impression. All that Mr Rowlinson could say is that the shoe seized from the applicant’s home is a size 11, New Balance 1211 women’s cross trainer, of which 257 units were sold in Australia. He could not say whether or not the particular sole on this shoe had been used on another model before or after it was manufactured, so that any assessment of the numbers of shoes in the community with the same pattern sole was entirely speculative. Indeed, based on the available evidence, the numbers of shoes with the same pattern sold in Australia was indeterminable.
Superimposed upon this uncertainty was the very limited nature of the opinion evidence given by Sergeant Kohlmann. At its highest, that evidence established no more than that a shoe with a similar — but not necessarily identical — sole to the shoe seized could have left the impression at marker 3. Quite plainly, the probative value of the evidence that the applicant was in possession of a shoe — that ‘could have’ left the impression at marker 3 at some time that could not be determined with any precision — was very limited. Indeed, we consider that the limited probative value of this evidence was outweighed by the danger of unfair prejudice, for the following reasons.
In our view, there was a real prospect that the evidence might be used by the jury as proving more than it was capable of doing. By itself, the evidence could never have placed the applicant at the site where the body was dumped; yet, because of its importance to the prosecution case, it was relied upon to prove exactly that. At its highest, the evidence proved no more than that the applicant had access to a shoe that might have left an impression near where the body of the deceased was found, within a few hours of the body there being dumped, and thus that the applicant — were he wearing the shoe — could have dumped it. As we have said, it was a relevant piece of circumstantial evidence, but it was afflicted by substantial limitations.
Next, the risk that the jury would conclude from the impugned evidence that the applicant was the man who dumped the body was magnified by two things: first, the evidence being given a cloak of authenticity by Sergeant Kohlmann’s ‘expert’ contribution to the overall shoeprint evidence; and, secondly, the misstatement by the judge in his charge as to how the prosecution put its case.
When dealing with the shoe evidence in her final address to the jury, the prosecutor said (among other things):[56]
So the prosecution say this evidence is important, that the shoe impression found at the crime scene, and then a shoe that could have made that impression, a shoe that is connected to the accused through the DNA evidence and through the location of where it was found at his house just after arrest at the time it was located by [police] with soil or dirt on. I mean, that’s why [police] photographed this particular pair of shoes, because of the dirt or soil that was found on it. And you can see that in the photos for yourselves.
Pretty important circumstantial evidence, I say to you, linking the accused to that crime scene, and therefore linking the accused to the murder, if you accept that evidence.
We know a little bit more about the shoe through evidence that I read to you from Mr Rowlinson from New Balance.
He said that particular model is a New Balance 1211 women’s cross trainer, size 11 US so quite large for women’s shoe you might think. First sold in Australia in 2010, sold 257 units in Australia and in his opinion, he was comfortable that it was highly likely to be an authentic shoe. He also said that he can’t be certain that that sole or that pattern wasn’t used another [sic] model before or after this one so that’s what we know about this particular shoe.
[56]Emphasis added to this and following passages.
In his charge, the judge said the following:
The prosecution argument about the shoe print evidence is that it is a significant piece of circumstantial evidence in this case. [The prosecutor] argued to you that you would have no difficulty in finding that the shoe seized in 2017, which was forensically tested, was the same shoe that [police] had seen and photograph in 2016, which was only days after the death of Cameron Harris. Indeed, she points to the fact that the shoe was found basically in the same location in 2017 as it was photograph [sic] in 2016.
[The prosecutor] described Dr Goray as an excellent witness and extremely knowledgeable. She described the evidence that Dr Goray gave ... The prosecutor described this evidence concerning the shoe as pretty important circumstantial evidence linking the [applicant] to the crime scene and therefore linking him to the murder.
The reasoning put forward is this: that a shoe print left an imprint at the scene, that a shoe was found at [the applicant’s] home on 20 September upon which can be seen soil deposits, that a New Balance shoe seized from [the applicant’s] home in September 2017 was the same one seen by [police] in September 2016 and photographed. The next step is the shoe that left the imprint at the scene was the shoe that was found at [the applicant’s] home by [police] in 2017.
The shoe that left the imprint, so says the prosecution, was the shoe found at [the applicant’s] home found in 2017 and the DNA that was on the shoe that was seized belonged to the [applicant]. Then a combination of, therefore, the scene imprint placed where the shoe was found, being [the applicant’s] home, the evidence of Mr Kohlmann that the sole of the shoe was consistent with the cast taken from the scene imprint and the DNA result, so says the prosecution, proves that the shoe was worn by [the applicant] at the scene where the Crown says, or the prosecution says, he dumped the body of Cameron Harris.
So the prosecution case here is that the presence of the [applicant] at the scene where the body was deposited is therefore a significant piece of circumstantial evidence to be used with all of the other evidence to establish the guilt of the [applicant].
It may thus be appreciated from that part of the prosecutor’s address set out above that she contended both that the applicant was found in possession of ‘a shoe that could have made that impression’, and that the shoe evidence constituted ‘important circumstantial evidence … linking the accused to that crime scene’. In the charge, however, the judge told the jury unequivocally that the prosecution argued that the evidence established that the shoe that left the imprint near the body was the shoe found in the applicant’s home. So much amounted to a critical misstatement of the effect of the evidence. Moreover, the fact that the judge so fundamentally misstated the effect of the evidence illustrates its seductive nature, and manifests the ease with which a fact-finder might glide from permissible to impermissible use of the evidence, and from legitimate to illegitimate inferential reasoning. The danger that the jury might misuse the shoe evidence is palpable. Any slight probative value that the evidence possessed was outweighed by the danger of unfair prejudice.
Ground 3 must succeed.
Substantial miscarriage of justice
In a somewhat unrealistic submission, counsel for the respondent submitted that, should the Court conclude that the shoe evidence ought to have been excluded, the Court should nonetheless determine that no substantial miscarriage of justice resulted.[57] That submission is untenable.
[57]During oral argument, senior counsel for the respondent submitted that, even without the shoeprint evidence, the evidence from the phone towers that the applicant and the deceased had been in close proximity in the hours leading up to the offending, along with the evidence that Mr Bugeja’s phone was not detected by the towers close to where the deceased’s body was found, was sufficient to render the conviction inevitable. That submission had its difficulties. There were a number of reasons why evidence as to both matters could not, on their own, in combination with each other, or with the other circumstantial evidence, render the conviction inevitable.
The nature of the applicant’s principal ‘defence’ may be gleaned from the following short passage of Paul Bugeja’s cross-examination by defence counsel. Having questioned Mr Bugeja about a ‘grievance’ he had with Mr Harris, the cross-examination continued:
[Y]ou weren’t necessarily intending to kill him but you were involved this attack upon him, sir, weren’t you?---Absolutely not.
I suggest that you and Mr Cox have colluded, the two of you, to invent a narrative to exculpate yourself and if Cox was involved, any criminal involvement on his part by putting this on to [the applicant], what do you say?---No, not true.
Plainly, the jury might have used the impugned evidence to put the applicant at the scene where Mr Harris’ body was discarded. The jury might also have used a conclusion that the applicant was at that scene as supporting the evidence of Mr Bugeja that the applicant took the keys to Mr Bugeja’s utility from him and drove away with Mr Harris in the vehicle, in circumstances in which both Mr Bugeja and Mr Cox attracted unreliable evidence warnings. Indeed, the shoe evidence might have proved critical to the jury’s acceptance of the prosecution case.
In those circumstances, it is impossible to conclude that, absent the shoe evidence, the applicant’s conviction was inevitable.[58]
[58]Baini v The Queen (2012) 246 CLR 469; Andelman v The Queen (2013) 38 VR 659, 681–2 [104].
Conclusion
For the foregoing reasons, leave to appeal should be granted; the appeal allowed; and the conviction for murder set aside. We would order that there be a new trial.
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