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…
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- AGLC
- Volpe v The Queen [2020] VSCA 268
- Case
- [2020] VSCA 268
- Decision Date
CaseChat Overview and Summary
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
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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