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Volpe v The Queen

Volpe v The Queen

Case [2020] VSCA 268 16 October 2020

Appeal

Admissibility of Evidence

Compensatory Damages

Criminal Law

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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…

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 Volpe v The Queen

Details

AGLC: Volpe v The Queen [2020] VSCA 268
Case: [2020] VSCA 268
Decision Date: 16 October 2020

CaseChat Overview and Summary

In the matter of Volpe v The Queen, the appellant, Volpe, was convicted of murder and appealed against the conviction. The central issue in the appeal pertained to the admissibility of shoe imprint evidence. The shoe imprint found near the deceased was identified by a crime scene examiner as one that "could have" been left by a shoe in Volpe’s possession. The core legal issues revolved around whether this evidence was relevant, if the crime scene examiner had specialised knowledge to render such an opinion, and whether the probative value of the evidence was outweighed by the risk of unfair prejudice.

The court meticulously examined the principles of evidence law, specifically focusing on sections 55(1), 79, and 137 of the Evidence Act 2008. The court found that the crime scene examiner’s opinion, although not definitively linking the shoe to the crime scene, was based on specialised knowledge and was thus relevant. However, the court concluded that the probative value of this evidence was significantly outweighed by the risk of unfair prejudice, leading to its erroneous admission. This misstep was deemed to have materially affected the outcome of the trial. Consequently, the appeal was allowed, the conviction was set aside, and a new trial was ordered.

The court's reasoning underscores the critical balance between probative value and prejudicial impact in the admissibility of expert opinion evidence. The final orders included the allowance of the appeal, the setting aside of the conviction, and the ordering of a new trial, ensuring that the trial process was fair and just, free from the prejudicial influence of improperly admitted evidence.

Orders