DPP v Soh [2025] VCC 1978

1. Turning first to the evidence. This is a circumstantial case. I will first briefly set out the evidence the prosecution seeks to adduce in proof of the charges. This evidence falls into two broad but related categories of circumstantial evidence.
2. In the first category the prosecution seeks to lead evidence of each fire to be cross admissible in proof of the other events as coincidence evidence that will be adduced to prove that it is improbable that anyone other than Mr Soh lit each fire.
3. In the second category the prosecution seeks to lead what I will call 'pure' circumstantial evidence said to connect Mr Soh to the individual fires.
4. I pause here to note the only issue to be tried in this case is the identity of the person who lit the fires. It is not in dispute that each of the seven fires (with the possible exception of a water heater fire to which I will return), was deliberately lit by a person or persons.
5. I set out here the questions that I have posed in order to assist me to decide on this application:

(a) First, is the evidence, taken as a whole, cogent enough to be admitted as proof that Mr Soh lit the fires?

(b) Are the similarities between the fires and their circumstances productive of that cogency?

(c) If not, is the coincidence evidence nevertheless of sufficient cogency to earn the term 'significant probative value'?

(d) What dangers, are there, if any, of a jury reasoning to guilt on an illegitimate basis in this case?

(e) Can properly crafted instructions reduce that risk?

(f) What level of satisfaction must the jury reach about Mr Soh having lit one fire before they can use it to reason to guilt that he lit another or others?

(g) Does the probative value of the evidence substantially outweigh any prejudicial effect it may have for Mr Soh?

1. I here set out the relevant provisions which govern this ruling. I first set out s 98 of the Evidence Act and then s 101 of the Evidence Act, in particular s 101(2).

98. The coincidence rule
> >
> > '(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless―
> >
> > (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
> >
> > (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
> >
> > 101. Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
> >
> > [...]
> >
> > (2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.'
> >
> > [...]

1. I turn now to the coincidence notice dated 5 February 2025.
2. At table A of the notice the 'fact in issue to which the coincidence evidence relates' is stated as 'identity'. So much is clear.
3. At paragraph 4 of the notice, 'the coincidence evidence that is to be adduced to prove that the accused did the particular acts, namely deliberately lit numerous fires', is listed:

'(a) The fires in incidents 1, 6 and 7 were lit in properties neighbouring where the accused lived.
> >
> > (b) The fires in all incidents except incidents 4 and 5 were set in the early hours of the morning or very late at night.
> >
> > (c) The first four fires involved the use of wheelie bins. Three of these involved wheelie bins under or next to car ports.
> >
> > (d) The accused's car or one very similar was seen to have departed the accused's premises shortly beforehand and returned soon afterwards. As noted above, this was often at odd hours of the day (or early hours of the morning) with no apparent other reason for the accused, who was not employed, to have left his house at these times.
> >
> > (e) At the time prior to the lighting of the fire in incident 4, a man of Asian descent was seen nearby wearing a similar shirt to that seen worn that day by the accused, who is of Asian appearance.
> >
> > (f) At about 1.40 am on 16 October 2022, less than 24 hours after the fire in incident 6 and less than 3 hours prior to the fire in incident 7, the accused was identified driving his car in Middle Park, where some of the fires were set.
> >
> > (g) When the accused was intercepted by Victoria Police in the early hours of 16 October 2022, the accused had an open packet of firelighters in his car. Such lighters were used to light at least one of the fires. He also had a fuel can. The later search of the accused and his car revealed multiple lighters.
> >
> > (h) With incident 7, the man who ran away from the fire did so in the direction of where the accused was living.
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> > (i) After the accused's arrest and being placed on remand there was a hiatus of similar fires in the area.'

4. I pause here to note that the notice does not articulate how it is that the prosecution will ask the jury to apply coincidence in reasoning to a conclusion on Mr Soh's guilt. It only sets out the evidence without more.
5. At paragraph 4 of the notice there is a statement that 'the coincidence evidence will be adduced to prove that the accused did the particular acts, namely lit numerous fires'. It then goes on to list the common features shared by some of the fires and some of the pure circumstantial evidence said to support an inference that Mr Soh lit one or more fires.
6. I am obliged to rule on the notice; there is a formal process for a reason. I find there is insufficient notice given of the form of reasoning that the prosecution will ultimately ask the jury to undertake. Formally, the notice does not give reasonable notice to the accused of what is intended at trial.
7. The actual prosecution case was, however, disclosed during oral argument, when Mr Profitt, who appears for the Director, said this:

'So it's the improbability that a series of deliberately lit fires over four weekends in a small geographical area around where - centred around St Kilda were lit by someone other than Mr Soh, given the evidence taken as a whole that links him to all those incidences.[2]

8. I now understand the prosecution case would be that in applying the evidence of each fire in proof of each charge in combination with other circumstantial evidence, the jury, the prosecution will argue, can properly reason that each of the fires was deliberately lit, that each fire was lit by the same person, and that it is improbable that that person was someone other than Mr Soh.
9. Despite the deficiencies in the original notice, I deal with this argument on this basis. For reasons that will become clear, I do not regard the accused to be prejudiced by the lateness of the notice.

1. I now set out a summary of the evidence of these fires. These are the 'events' that I am directed to consider pursuant to the test in s 98(1).[3] There is no prosecution summary yet filed; my summary is derived from a combination of a police summary, submissions at the hearing, and the coincidence notice.

1. On 25 September 2022 at around 3:00 am, a fire was started in three counsel wheelie bins next to a car parked in a ground floor car park at an apartment building at 70 Paterson Street in Middle Park. The fire was started in the bins and caused damage to the building and to the car.

1. The following weekend, on 2 October 2022 just before 2:00 am, a fire was started in the ground floor car park of an apartment building at 108 Park Street, St Kilda West. The contents of three wheelie bins next to the car were set alight, causing damage to the building and the car. This time, the scene was assessed by a forensic arson chemist who determined there were no accidental ignition sources; the fire was, in their opinion, likely lit by a match or cigarette lighter.

1. Six days later, on 8 October 2022 at about 11:45 pm, the contents of a wheelie bin were set alight on the ground floor of an apartment building at 36 Waterloo Crescent in St Kilda.

1. On the same date, the contents of four wheelie bins next to a fence at 29 Raglan Street, an apartment building in St Kilda East, were set on fire.
2. A forensic arson chemist determined that the fire was deliberately lit with the absence of any accelerant and was likely lit by a cigarette lighter or match.

1. This is the third incident on 8 October 2022. At about 7:50 pm in the evening, cardboard boxes and a pot plant were assembled at the door of apartment number six of a building at 122 Inkerman Street, St Kilda and set on fire.
2. At the fire scene there appeared to be the remains of a firelighter. Forensic arson chemists determined that the fire was deliberately lit and that the firelighter was likely used in its ignition.

1. Seven days later, on 15 October 2022, a sixth fire was set in the common foyer staircase area of an apartment at 38 Burke Road in Malvern East. The fire caused the hot water service to explode or was started by an exploding hot water service.
2. Police investigators initially determined that the fire was not suspicious and was likely caused by poor maintenance of the hot water system.

1. The following day, 16 October 2022, in the same apartment building as incident six, at about 5:30 am several pieces of cardboard and polystyrene were assembled at the door of unit and set alight.
2. A forensic arson chemist determined that the fire had started on three doormats at the apartment door in front of apartment number five by the ignition of available materials, assisted by the presence of methylated spirits. This fire caused investigators to reflect on the fire of the previous day, incident six, and caused them to believe the fires were linked and therefore that the fire on 15 October in fact had been deliberately lit.
3. These, then, are the events that I must consider in the context of s 98(1);[4] they are said to be proximate in time and location and share a similar method.

Circumstantial evidence of Mr Soh's relationship to each fire

1. The second category of circumstantial evidence that the prosecution seeks to adduce is evidence which is said to connect Mr Soh to each of those seven fires. The following summary is sourced in table B of the coincidence notice.
2. In relation to incident one, there is no evidence linking Mr Soh to this event other than broad proximity: the accused lived next door to the property where the fire was lit.
3. Regarding incident two, the fire was lit at a property 220 metres away from Mr Soh's residence and approximately half an hour before the fire started, at 1:13 am, a dark sedan was captured on CCTV leaving Mr Soh's driveway and five minutes after the fire started the car was captured driving towards Mr Soh's home.
4. Regarding incident three, the prosecution say that a car matching that of the accused was seen outside the residence where the fire was lit, 2.4 kilometres from Mr Soh's residence. Approximately 20 minutes after the fire is lit a dark sedan is seen entering the accused's driveway.
5. Regarding incident four, at Raglan Street, which I note is said to be the strongest individual case for the prosecution in terms of proof of Mr Soh being the offender who lit any of the fires, the following evidence is advanced:

(a) the time of the fire was 1:00 pm and at 12:45 pm and 3:02 pm the accused's car was captured leaving and returning to his home;

(b) at 3:04 pm a man in a blue shirt is captured walking out of a driveway of a property near the accused's home at 307 Beaconsfield Parade;

(c) the witness Amber Jenkin describes seeing at 1:00 pm, an Asian man entering the driveway trying to buzz an apartment - (I note here that Ms Jenkins would later identify someone other than Mr Soh on a photo board);

(d) at 12:57 pm a witness Matthew Stevenson saw an Asian man in a blue shirt trying to ring his intercom.

1. I note here that incident four appears to occur before incident three in time, though I perceive nothing turns on that.
2. Regarding incident five at Inkerman Street, noting that this event occurred on the same day as incident four, the fire is detected at 7:50 pm. At 5:20 pm the black car said to belong to Mr Soh is seen parked outside Mr Soh's home and a man wearing a blue shirt is seen at 5:23 pm. The car is seen driving away from the address at 7:45 pm; the black Mitsubishi is seen driving towards Inkerman Street, turning into Marriot Street. At ten minutes to eight, a man is seen walking out of Marriot Street towards Inkerman Street and at 7:57 pm a man walked away from Inkerman Street to Marriot Street; the black Mitsubishi is seen driving away and at 8.01 pm a dark sedan is seen driving into the accused's home.
3. I pause here to note that an arson chemist analysed the scene and determined that firelighters had been used to start this fire.
4. Regarding incident six, like for incident one, there is no particular evidence that links Mr Soh to this fire other than the fact that by then he had moved to Malvern and was living next door to the property where the fire started.
5. Regarding incident seven, this fire is lit at the same property as incident six, being next door to Mr Soh's new residence. The fire is started at 5:30 am. A dark sedan is seen driving into the driveway at Mr Soh's previous address in St Kilda and four minutes later departing the address and entering Bent Street, Malvern East. At 5:39 am 'a figure' is seen running away from Burke Road into Bent Street.
6. In addition to those matters, the prosecution also seeks to advance evidence of the accused's phone communicating with mobile phone towers in Middle Park, Balaclava North, St Kilda West and Caulfield stations in a period covering the duration of these events. It is not in dispute, however, that Mr Soh was also residing in that location at the time.
7. Another event which occurred between incidents six and seven is also advanced to link Mr Soh to the fires more generally. On 16 October 2022, Mr Soh's car was intercepted by police. Police searched his car and found a packet containing one piece of a Jiffy 'odourless kerosene-free firelighter' and a 5 litre fuel can. I note that this firelighter is of a different kind to the one earlier detected at the scene I referred to in incident five.
8. After incident seven the accused was again intercepted in his car in St Kilda and police found a glove, a roll of tape, two lighters, an empty fuel container, a firelighter and a piece of a firelighter packaging and a hunting knife.
9. In summary, the prosecution advance, in this category, proximity of residence, movement of a car like Mr Soh's at particular times, some (though very broad and flawed) identification evidence, phone tower evidence and the presence of fire lighting equipment in Mr Soh's car.
10. I pause here to note the evidence proving Mr Soh lit any particular single fire is weak and tenuous at best.

1. Turning now to the submissions of the parties. As I have said, Mr Profitt, who appears for the Director in this case, submitted that the coincidence evidence, having regard to similarities between the events and the circumstances in which they occurred and having regard to other evidence linking Mr Soh to one or more of the events, has significant probative value that substantially outweighs any potential prejudicial effect on the accused.
2. He submitted that having regard to the events and circumstances in which they occurred, it is improbable that there was more than one offender who deliberately lit fires in or close to seven apartment buildings on four consecutive weekends.
3. Mr Profitt set out some of the similarities between the events in time, location and method.
4. Mr Profitt argued that this evidence is both important and consequential. He argued that striking similarity between the incidents is not required, that taking into account all the circumstances the threshold of significant probative value is met.
5. He then argued that there was no danger of unfair prejudice by reason of the volume or complexity of the admission of the evidence; coincidence directions would be given and could carefully set out for the jury the limitations of the application of coincidence evidence.

1. Mr Miller, who appeared Mr Soh, argued that the coincidence evidence does not have significant probative value, or any probative value that it does have is significantly outweighed by the danger of prejudice that it would have on the accused's case.
2. Mr Miller argued that the evidence amounts to nothing more than a lot of pieces of circumstantial evidence that cannot in themselves prove Mr Soh lit any individual fire, nor all of them in combination. Mr Miller argued that there was no evidence independent of the coincidence evidence sought to be adduced which could identify Mr Soh as the offender. He argued that evidence would need to show that it was Mr Soh that committed at least one of the offences before the evidence could pass the thresholds in ss 98 and 101(2).[5]
3. Mr Miller analysed the evidence going to each of the events and the weaknesses in individual parts of the evidence, emphasising the lack of striking similarity between each of these events and the absence of cogent evidence linking Mr Soh to any particular event.

1. I come now to apply the test in s 98 of the Evidence Act: does the coincidence evidence either by itself or having regard to other evidence to be adduced have substantial probative value?
2. I have examined the circumstances of, and similarities between, the seven fires and put that evidence alongside the 'pure' circumstantial evidence which the prosecution seek to adduce to prove Mr Soh's association with one or more of those events.
3. It is clear from authority[6] that where circumstantial reasoning is invoked and identity is in issue the need for 'strikingly similar' or 'signature' features of separate events are, as a matter of logic, more likely to be required and I have considered the similarities between and the differences between, the circumstances, method and location of each fire. They all occur within four weeks within a narrow geographical radius and are near or very near where Mr Soh was living at the time, even when he moves house. They generally, arguably with the exception of the hot water fire in incident six, started in or near apartment buildings with available materials. There is similarity between them, though I find this falls short of being 'striking'. The ultimate question, however, is not whether the circumstances of each fire is 'strikingly similar' but whether the evidence taken with other evidence sought to be admitted is cogent enough to be admitted in this case as proof that Mr Soh was the person who lit each of these fires.[7]
4. I find the evidence has significant probative value. The cumulative features of the fires, in essence proximity, temporal connection and method, is, first, significant in proof of the fires being deliberately lit; and, second being lit by the same person or people. When considered with the other circumstantial evidence of Mr Soh's movements, his residence and fire-related items in his possession, the evidence does gather significant probative value in proof of identity. In arriving at this conclusion I add for completeness that I do not have regard in this process of reasoning to the fact that the fires ceased when Mr Soh was arrested.

Does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused?

1. Turning next to applying the test in s 101(2) of the Evidence Act.
2. In applying this test I must be very careful to weigh the potential for unfair prejudice to Mr Soh against the significant probative value I have found to reside in the coincidence evidence and ask: does the probative value of the evidence substantially outweigh any prejudicial effect on the accused?
3. The prosecution advance evidence of seven separate fires at or near residential properties. Residents of those homes awake to fires and there is damage to their property or communal buildings. Although there was no harm ultimately to people, there was significant property damage and disruption and real danger of people being harmed, often in the early hours of the morning with no warning. There is no evidence of any pre-existing relationship of animus to the residents of those buildings. The fires appear to be random. The prosecution will assert throughout this that Mr Soh was responsible for each fire.
4. There would be, as I understand it, with the exception of the hot water heater fire, little challenge to any of the evidence of the fires. Cumulatively, evidence of the fires and the people who discovered them and responded to them would occupy significant time at trial.
5. There is a live possibility or danger that the jury may as a result of an instinctive response to that evidence, and in the face of the sheer volume of the evidence, fail to properly rigorously scrutinise the evidence of Mr Soh's association with any of the particular fires and the challenges to it. The jury may be too inclined to forgive weaknesses in proof that Mr Soh committed any individual offence and accept this large 'web' of evidence suggesting that it was Mr Soh who lit all of the fires. In short, the possibility of the jury reasoning illegitimately towards guilt is live in this case.
6. I also find that there is a danger that the jury will find, without a sound evidentiary basis to do so, that Mr Soh probably lit one of the fires and then apply that finding to reason towards guilt on the other charges. To consider this risk, I now turn to the instructions the jury would be given in applying the coincidence evidence in this case.

How would the jury be instructed to apply coincidence reasoning

1. So how would the jury be instructed? I first refer to the model direction in the Criminal Charge Book[8] which serves to illustrate the danger I have just tried to articulate. Adapted for this case, and directed at the proof of Charge 1, the first fire, it reads:

'The prosecution say the similarities between each of the fires 2 to 7 and the circumstances surrounding them and the first fire the subject of Charge 1] are so great that you should find that the same person is responsible for each fire'.

2. This much does not produce controversy. The next sentence, however, focuses the problem in this case. It reads:

'The prosecution then say that if you find Mr Soh lit fire number four to take the prosecution's strongest case on identity, then you can use that to conclude that he also lit fire number one and so on'.

3. Naturally, the jury will also be instructed they must nevertheless consider the evidence going to each charge separately, and of the necessity to decide beyond reasonable doubt on each charge before reasoning to guilt on it, and this could certainly be given strong emphasis. Subject to the submissions of the parties, there could be further warnings added that if the jury is not satisfied Mr Soh lit any particular fire they have to acquit him of all charges.
4. The prosecution advance, as I have said, the evidence on Charge 4 as the strongest individual case that it was Mr Soh who lit a fire. What degree of satisfaction must the jury reach about Charge 4 before they can apply it in proof of another charge? The evidence proving Mr Soh's identity as the person who lit the fire at Raglan Street I find is very weak. Again, how should the jury be instructed about making a finding of fact that it was Mr Soh who lit fire number four?
5. In the case of Dempsey v The Queen,[9] the Court of Appeal authorised the application of the beyond reasonable doubt standard of proof before one incident could be applied to prove another in a case where 'coincidence' is relied upon. However, the High Court in the subsequent case of DPP v Roder[10] appeared to dispense with that approach, at least in relation to tendency evidence, deciding that s 61 of the Jury Directions Act[11] prohibits the jury being instructed that they need to find any other charged act proven beyond reasonable doubt before they apply it as evidence the accused had a tendency.
6. Applying Roder, it seems that in this case I must not instruct the jury they must find beyond reasonable doubt that Mr Soh started, to continue my previous example, fire number four before applying that finding to their consideration of proof of the other charges. It is unclear to me if the exception in relation to cumulative coincidence reasoning identified in the case of Dempsey survives that High Court decision.
7. It is not necessary for me to resolve that difficulty for me to rule in this case. I proceed on the basis that the jury would be instructed that if they 'find' or 'conclude' or 'decide' Mr Soh lit fire number four they could apply that finding in proof of one or more of the other charges. That is what exposes the real danger in this trial. However put, there is no proper basis for the jury to reason Mr Soh lit fire number four or any of the others. This is so whether they are instructed to 'find', 'decide', 'conclude' or 'decide beyond reasonable doubt' (if the principle in Dempsey survived). The individual cases do not allow that conclusion to any standard.
8. The challenges made in Mr Soh's case would be to the strands of evidence that connect Mr Soh to one or more of these events. I infer that cross-examination would be directed at neutralising the phone tower evidence (this would be simple given where the accused lived at the time), emphasising the failure of the photo board ID in the absence of any other identity evidence other than a person who was wearing a blue shirt at the relevant time, the fact that some of the cars in CCTV footage are merely black sedans with no other probative value other than that a black sedan was seen broadly near the site of the fire. In short, evidence linking Mr Soh to any one of these events including, incident four, is extremely thin.
9. How then, to return to the problem, could the jury legitimately reason to Mr Soh's guilt in this case? My conclusion is that there is no legitimate path of reasoning to guilt once the jury are properly instructed about reasoning out from one charged act. The more general prejudice I have described earlier also remains.
10. I have ruled that the evidence has significant probative value. However, the danger of unfair prejudice, in the form of illegitimate reasoning out from one charge to the others, is so great that I am driven to conclude the threshold in s 101(2)[12] cannot be met: the danger of prejudice is too great and instructions cannot cure the problem.
11. While I have found that the evidence taken as a whole has significant probative value, I do not consider that probative value to be of the weight required such that the balance is struck in favour of admissibility.
12. Every case turns on its own facts, but I have taken some comfort in reaching this conclusion by reference to other cases, many in the context of arson charges, where there is a much higher class and much stronger of evidence advanced on the question of identity at least in regard to one incident. For example, targeted antipathy and threats prior to the fires in Tognolini[13] and CW;[14] of presence at one or more of the fires, as in Davies[15] and Patton;[16] or DNA linking the accused to one scene, as in Murdoch[17] or Davies.
13. Even the lowest standard of 'satisfaction' would not be possible for the jury in this case.
14. On this basis, the coincidence notice is set aside; the evidence is not admissible in Mr Soh's trial.
15. That completes the ruling.
16. MR PROFITT: As Your Honour pleases.
17. MR MILLER: As the court pleases.
18. HER HONOUR: Counsel, transcript of the ruling will be produced shortly. It can take a few days. What I propose to do is adjourn this case for directions for the parties to consider their positions. I don't intend to list that before me. If a listing before me becomes necessary just let my chambers know.
19. MR MILLER: Yes.
20. HER HONOUR: All right. Mr Soh's on bail for this, is that right, Mr Miller?
21. MR PROFITT: That is right.
22. HER HONOUR: He's in custody on unrelated matters.
23. MR PROFITT: Yes, that's right.
24. HER HONOUR: Yes, all right. Then there's nothing else I need to do. I'll get a date for a directions hearing. I'll adjourn Mr Soh's case to 14 August for directions at 9 am.
25. MR MILLER: As Your Honour pleases.
26. MR PROFITT: As the court pleases.
27. HER HONOUR: All right. I'll stand down briefly before the next case. Thank you.

[1] 2008 (Vic) ('Evidence Act').

[2] Transcript of Proceedings, DPP v Soh (County Court of Victoria, CR-24-01130, Judge Todd, 2 July 2025) 38.16.

[6] Tognolini v The Queen [2011] VSCA 394.

[9] [2019] VSCA 224 ('Dempsey').

[10] [2024] HCA 15 ('Roder').

[14] CW v The Queen [2010] VSCA 288.

[15] Davies v The Queen [2019] VSCA 66 ('Davies').

[16] Patton v The Queen [2021] VSCA 104.

[17] Re Murdoch (Ruling No 2) [2019] VSC 882.