R v Hoang [2007] VSCA 117

R v Hoang [2007] VSCA 117 - VSCA 2007 case summary — Zoe

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Background

5 The applicant, Mr Hoang, was convicted after a jury trial on one count of stalking between 18 June 1999 and 9 February 2004. He now seeks leave to appeal against that conviction. The facts which gave rise to his conviction are as follows.

6 Mr Hoang was a student at the Monash University Caulfield Campus. The complainant was a staff member at the same University. In December 1998 the complainant stood behind Mr Hoang in a queue in the University library. According to Mr Hoang, the complainant smiled at him. Beginning in December 1998 and throughout the period covered by the presentment, the applicant, on a number of occasions, phoned the complainant at work and sent her letters and cards and gifts in an attempt to persuade her to have a relationship with him.

7 In his first phone call to the complainant, which Mr Hoang made in December 1998, he addressed her by her first name, said he was her long-suffering secret admirer and that he wanted to go out with her. The complainant's evidence was that she did not hear his name and did not know who he was, but that she had told him she had a boyfriend and was not interested in having a relationship with him. The complainant said that the applicant asked her if she would be interested in having a relationship with him if she broke up with her boyfriend. She said she would not. In his police interview and at trial the applicant said that he had asked the complainant out but denied asking her whether she would be interested in a relationship with him if she broke up with her boyfriend.

8 Mr Hoang telephoned the complainant again in April or May 1999 and said that he wanted to meet her in the library and that he wanted to meet everyone he had a problem with. Again she did not hear his name and she declined to meet him. In his police interview, Mr Hoang said that this was around the time he was having problems with the University, but that he couldn't recall that phone call and that he would not have said this to the complainant.

9 On 21 June 1999 the complainant received a letter at work. The letter had the applicant's name and address on the back. It referred to the way she had looked at him when she was coming back from a lunch break and invited her to have coffee with him on the coming Saturday. The complainant did not respond but reported the matter to the University authorities and the police were contacted.

10 On 24 June 1999 the applicant again telephoned the complainant, who identified him as the same caller as before. She told him "I don't want you to contact me in any way, shape or form. Do you understand that?". The complainant again reported the matter to University authorities and Mr Hoang was sent a letter from the University Solicitor's office telling him not to contact the complainant or disciplinary action would be taken. The applicant confirmed that the complainant had said this to him on the phone and that he had received this letter.

11 The complainant said that on 15 September 1999 she received another telephone call from the applicant and hung up immediately. The applicant did not deny this phone call. Following the call, the University took various security measures including locking the doors on her floor, changing her work email address, vetting her visitors and calls at reception, and escorting her to her car after work.

12 On 17 September 1999 the complainant obtained an interim intervention order from the Magistrates' Court prohibiting the applicant from contacting her and from causing any other person to contact her or engage in other specified acts. The order also prohibited the applicant from coming within 400 metres of the Monash Caulfield Campus. In his police interview Mr Hoang confirmed that he was served with that order. On 30 September 1999 the complainant obtained a final intervention order in the same terms as the interim order. The applicant did not appear at that hearing.

13 The day before the final intervention order was obtained, the complainant had received a phone call from a counsellor at Monash University, from which she understood that the applicant would not contact her again. However, on 22 December 1999 she received a dozen red roses and a card from the applicant which depicted a pair of underpants on the front of it. The card had an inscription including the words "my heart pants for you". The applicant admitted sending the roses and card but stated that he thought this was before the final intervention order was made.

14 On 16 February 2000 the applicant sent a dozen red roses, chocolates and a Valentine's Day card to the complainant's workplace. A disciplinary hearing was held by the University in relation to the applicant's behaviour and it was decided to exclude him. He was sent a letter advising him of his exclusion.

15 The applicant later applied for revocation of the intervention order but did not appear when the matter was listed for hearing. The applicant appeared when the matter was re-listed for hearing on 18 March 2001, but the application was dismissed. This was the first time that the complainant had ever seen the applicant.

16 On 9 September 2002 the complainant received a phone call in which the caller asked her to check her fax machine. When she did so she found a fax from Mr Hoang offering to help her purchase shares and asking that they meet in the city. She returned to her phone and asked the caller his name. When the applicant gave his name she called him "a shit", told him never to contact her again and hung up. In his police interview the applicant conceded that, with hindsight, this phone call was a breach of the intervention order.

17 In December 2002 the complainant received a phone call from the applicant's brother who said he wanted to pass on a Christmas present from the applicant. She said she would not accept it and explained why. In his police interview the applicant denied that he had asked his brother to ring the complainant but said that he had asked his family to buy a Christmas card and chocolates and send them to the complainant's work address. After this phone call, the complainant asked a colleague, Nicole Stevens, to screen her telephone calls and to open her mail.

18 On 16 July 2003 the complainant received a letter signed by the applicant beginning "Dear Temptress Andrea". The letter referred to her appearance, invited her to dinner and asked her to contact him.

19 On 23 September 2003 another letter was sent to the complainant. It was opened by Ms Stevens. The letter invited the complainant to dinner but suggested she might want to go away for the whole weekend instead. Ms Stevens rang the applicant on the number provided and told him that the complainant had gone interstate and did not want to be contacted by him. In his police interview the applicant admitted that Ms Stevens had said this to him, but said that he had thought this was untrue as he had seen someone who looked very similar to the complainant a few days earlier while he was driving.

20 In late September 2003 another of the complainant's colleagues, Mr Nguyen, was approached by an Asian man in the stairwell outside the office where he worked with the complainant and with Ms Stevens. He was asked where Andrea was and if he had "Andrea's phone number". Nguyen said that the complainant was no longer working there. Nguyen said that throughout the conversation the man was constantly looking into the office in which he worked. In his police interview the applicant admitted to this conversation and also to phoning the University switchboard to find out if the complainant was still working at the University.

21 On 10 October 2003 the complainant received another letter signed by Mr Hoang beginning with the words "My darling seductress Andrea". The letter said "after repeated attempts at winning your affection... I should change my tactics." It went on to explain in detail how an evening with the applicant would unfold, including how the applicant and the complainant would "engage in passionate lovemaking". The applicant confirmed sending the letter in his police interview.

22 On 20 October 2003 the complainant answered a phone call from a caller who hung up. In his police interview the applicant admitted making this phone call. He said he rang because the complainant had not responded to his letter and he wanted to find out if she had really left the University, as Ms Stevens had said.

23 On 18 November 2003 Mr Hoang again wrote to the complainant asking her to have dinner with him or "to go away to Tasmania for the whole weekend instead of the conventional dinner date". The complainant took that letter to the police.

24 On 24 November 2003 the applicant was interviewed by the police. Apart from the denials in his police interview I have already mentioned, he admitted to making the phone calls and sending the letters, cards and gifts as described above. He said that his contact with the complainant was triggered by the fact that she had smiled flirtatiously at him in the University library and that he had continued his contacts because he thought she had given him "mixed signals". He also said that he did not intend to harm or frighten the complainant.

25 At the trial the complainant gave evidence that after the letter in early 1999 she began to modify her behaviour. These modifications included not going out for lunch, not going to the gym, not going to the university library or the local shopping plaza, parking in different places around the Caulfield campus, being escorted to and from her car and changing her work environment as described in para 11. She also said that she became jumpy whenever the phone rang, that she obtained a silent telephone number at home, that she phoned VicRoads to see whether it was possible for a person to obtain information about a person from their car registration records and that she had her name taken off the electoral roll.

26 When asked whether she had any concerns for her safety, the complainant said that she was constantly looking over her shoulder, checking that doors and windows were locked, walking around the block if she thought a car was following her and screening her phone calls. In addition, the complainant started sleeping with a knife, became wary of people and stopped smiling at people because the applicant had said she had smiled at him. Mr Hoang's attention had a negative effect on the complainant's personal relationships and social life.

Grounds 1 and 2: the applicant's lack of legal representation

27 The first and second grounds of appeal can be dealt with together. The first ground alleges that the applicant's lack of legal representation at trial caused a miscarriage of justice and the second ground alleges that the learned trial judge should have exercised his discretion under Crimes Act 1958, s 360A, to order Victoria Legal Aid to provide assistance to the accused.

28 The circumstances which resulted in the applicant being unrepresented at trial were as follows. The applicant was committed for trial on 21 March 2005. At that time he was represented by Victoria Legal Aid. Victoria Legal Aid filed a Notice of Ceasing to Act on 26 April 2005, after service of the Crown Summary for Case Conference.

29 In the first case conference, held on 26 May 2005, the applicant said that he did not have legal representation. His Honour Judge Punshon, who presided over the first case conference, told the applicant that:

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31 The learned judge then advised the applicant to see a Legal Aid lawyer immediately and adjourned the matter until the following day to allow him to do so.

32 When the case conference resumed on 27 May 2005 his Honour discussed the matter with a representative of Legal Aid and referred to the possibility that a "350A" [sic] application could be made on behalf of the applicant. The applicant was present during this discussion. The matter was adjourned for two weeks to clarify legal aid and other matters. Mr Hoang was informed by his Honour that it was necessary for him to provide documentation to Victoria Legal Aid on his financial situation so that his eligibility for Legal Aid could be assessed.

33 A mention hearing was held by his Honour the Chief Judge on 10 June 2005 and the matter was adjourned. A further mention was heard on 1 July 2005. At that mention a representative of Victoria Legal Aid appeared and the applicant appeared in person. The applicant said that he had provided financial documents to Legal Aid but he had not been funded.

34 The applicant's bank statement showed that $18,000 had been withdrawn from his bank account. The applicant said that he had provided a statutory declaration to Victoria Legal Aid indicating that these amounts belonged to his parents. He was then asked by Victoria Legal Aid to provide documents setting out his parents' financial situation, but he declined to do so saying his parents couldn't financially support him, he was an independent person and he didn't want to drag his parents into the matter. The learned judge again warned him of the importance of having legal representation at trial and urged him to reconsider providing the requested documentation to Legal Aid.

35 A directions hearing, which the applicant did not attend, was held on 13 October 2005. Counsel for the Crown indicated that the applicant would not be assisted by Legal Aid because he had declined to provide the required information.

36 At the commencement of the trial on 21 November 2005 the learned trial judge advised the applicant of the seriousness of the charges and of the desirability of obtaining legal representation. His Honour adjourned the matter to enable the applicant to discuss the matter with Legal Aid again. After the adjournment a Victoria Legal Aid representative appeared and informed his Honour that the lawyer consulted:

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Counsel for the Crown argued that, in effect, the applicant had simply chosen to represent himself. Having made this choice the applicant could not now claim that a miscarriage of justice had occurred, simply because he was not legally represented.

48 In my opinion his Honour should have turned his mind to whether to order that legal assistance should be provided to the accused under s 360A of the Crimes Act 1958. The fact that the applicant did not apply under s 360A did not relieve his Honour from considering whether the applicant would receive a fair trial without legal representation. It would defeat the purpose of s 360A to require an unrepresented person to make a formal application for an order, before the judge must exercise his or her discretion under the section.

49 Although His Honour was obviously concerned about whether Mr Hoang would receive a fair trial if he was not legally represented, it does not appear that the learned judge considered making an order under s 360A if legal aid were not otherwise available. The discussion between his Honour, counsel for the Crown and the applicant related to whether the applicant wished to represent himself, rather than to the question of whether his Honour should exercise his discretion under s 360A.

50 In my view, a trial judge should, in the case of an unrepresented accused, tell the accused of the right to apply under s 360A and of the evidence which must be before the court for the purpose of making an order. While this should normally be done at the beginning of the trial, it may also be necessary for the trial judge to consider making an order during the course of the trial, if it later becomes clear that the accused will not receive a fair trial unless he or she is represented.

51 I do not accept the Crown submission that it was unnecessary for his Honour to consider whether he should make an order under s 360A because the applicant had said that he would not provide further information about his financial circumstances. This submission assumes that the applicant would have objected to providing relevant financial information to the court for the same reasons that he objected to providing the requested financial information to legal aid. Even if he turned his mind to the issue, I do not think that his Honour was justified in assuming that the applicant would not provide financial information to the court, merely because he had not provided it to Victoria Legal Aid. To satisfy himself on this matter his Honour should have explained the criteria for making a s 360A order to the applicant and asked the applicant if he was prepared to testify about his incapacity to afford the full cost of obtaining legal representation. In the absence of such an explanation the applicant is unlikely to have understood that the court had the power to order the provision of legal aid, or the criteria which his Honour would have been required to apply in determining whether such order should have been made.

52 What are the consequences of his Honour's failure to advise the applicant of the court's power to order provision of legal assistance and to consider making such an order? Counsel for the applicant submitted that his Honour's failure to consider s 360A was, in itself, an error of law amounting to a miscarriage of justice. If this submission is correct, the appeal must be allowed, whether or not it can be demonstrated that any relevant miscarriage actually occurred. Counsel's alternative, and less absolute, proposition was that events during the course of the trial resulted in a miscarriage of justice because the applicant was not legally represented. This proposition was the subject of ground 1[7] of the appeal which is discussed later in my reasons.

53 Case law appears to support the less absolute proposition -- that is, that an appeal will only be allowed if the trial miscarried as a result of the applicant's lack of legal representation. The majority in Dietrich did not accept the proposition that a trial without legal representation will always be unfair, so that a conviction occurring in such circumstances must inevitably be quashed.

54 Although Mason CJ and Mc Hugh J said that:

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76 The complainant referred in her evidence to what she had been told when she sought advice as to what to do about the unwanted contacts. To the extent that she referred to the contents of that advice her answers were hearsay evidence, though counsel for the Crown immediately told her she should not refer to these matters.

77 The evidence that the University had excluded the applicant was of peripheral relevance and arguably had the capacity to prejudice the jury against him. However, given that there was no contest as to whether the applicant had engaged in the conduct described above I cannot see that the admission of this evidence resulted in a miscarriage of justice.

78 Most of the prejudicial evidence about what the complainant did in response to the applicant's behaviour emerged in her answers to the applicant's cross-examination. This included the complainant's reference to her belief that the applicant had some type of psychiatric condition, her evidence that she had obtained material on people who stalk and her evidence that she had discontinued sleeping with a knife under her pillow because of advice by a stalking management specialist that "it might be used against me". His Honour warned that some of this was inadmissible opinion evidence. His Honour attempted to discourage the applicant from questioning the complainant in such as way as to evoke these answers and warned the applicant that these questions were "not doing [him] any good," though he did not warn the jury to disregard it. I return to the applicant's cross-examination of the complainant below.

79 The evidence that the complainant had obtained an intervention order against the applicant was directly relevant to the issue of whether the applicant knew, or in all the particular circumstances ought to have understood,[19] that engaging in a course of conduct of that kind would be likely to cause [mental harm] or arouse apprehension or fear in the complainant for his or her own safety.[20] The same applies to the evidence that he had unsuccessfully sought to have the intervention order revoked. Although this evidence was prejudicial to the applicant, in my view its prejudicial effect was outweighed by its probative value.

80 I cannot see any objection to the admission of the complainant's evidence that she received a call on 20 October 2003 and that no-one spoke to her. In his record of police interview the applicant admitted that he had made this phone call and it was clearly relevant to the issues at hand.

81 The complainant's evidence that the applicant's brother told her that "he was unaware that the defendant was stalking [her]" was inadmissible because it was hearsay. It was also potentially prejudicial. I note, however, that the applicant admitted asking his family to deliver a gift to the complainant. In my view the emphasis in his Honour's jury charge on the necessity to show that the applicant ought to have known of the effect of his conduct on the applicant was sufficient to overcome the prejudice caused by the reference to "stalking" in the complainant's evidence.

82 Finally, I would reject the submission on behalf of the applicant that his Honour should have permitted the applicant to cross-examine the complainant about whether the applicant had followed her. The Crown case was not based on a course of conduct which included allegations that the applicant had followed the complainant, but on the fact that he had telephoned her, written to her and sent her gifts.

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103 The words "in all the particular circumstances ought to have understood" import an objective element into the specific intent required for the offence where the course of conduct did cause mental harm or arouse apprehension or fear in the victim. In these circumstances, the required state of mind is not the actual state of mind of the offender, but what "that offender" in those circumstances "ought to have understood."

104 The policy rationale for this provision is clear. It may be that many stalkers falsely believe that they have a relationship with the person they pursue, even though they may have never met or spoken to the victim. A provision which required proof of a subjective intention to cause harm to the victim would not apply to an alleged stalker who obsessively pursued the victim on the basis of a false belief that these attentions were welcome. The reference to "in all the particular circumstances" requires the jury to take account of the particular circumstances in which the course of conduct has occurred, in order to decide whether the accused "ought to have understood" the effects of the behaviour on the victim.

105 The question is not whether Mr Hoang subjectively understood that the course of conduct in which he engaged would be likely to cause harm to the complainant, or arouse her apprehension or fear, but whether in all the particular circumstances he ought to have understood the effect of his behaviour on the complainant.

106 It follows that the judge did not misdirect the jury on this issue and that this ground of appeal is not made out.

Ground 6: the requirement of unanimity

107 Counsel for the applicant contended that his Honour had erred in failing to direct the jury that they must be unanimous as to which acts they found the applicant had engaged in with the intention of stalking. She submitted that the High Court's decision in KBT v R[31] applied to the offence created by s 21A of the Crimes Act 1958.

108 In KBT the applicant was convicted of the offence of maintaining an unlawful relationship with a child under 16, under s 229B of the Criminal Code (Queensland). That section provides that a person is only guilty of the offence if the accused has done an act defined to constitute an offence of a sexual nature on three or more occasions during the period when the offence was alleged to have been committed.

109 The Crown relied on evidence of the complainant alleging sexual conduct falling into six broad categories. The trial judge instructed the jury that they must be satisfied beyond a reasonable doubt that the accused had committed the relevant acts on three separate occasions during the period charged. He did not direct the jury that they must reach a unanimous opinion as to the three occasions and the three acts each of which constituted an offence of a sexual nature. The Crown did not dispute that a direction to that effect should have been given and the High Court held that this concession was appropriate because the section required the commission of three separate acts of a sexual nature.

110 In their joint judgment Brennan CJ and Toohey, Gaudron and Gummow JJ distinguished between offences in which the actus reus was a course of conduct, for example trafficking in drugs, and the offence created by s 229B. By contrast to "course of conduct" offences, the actus reus of the offence under s 229B was the doing of a particular act, which was an offence of a sexual nature, on three separate occasions. [32]

111 Counsel for the applicant submitted that the approach taken in KBT also applied to the offence of stalking. I do not agree. As explained above, KBT drew a clear distinction between the offence created by s 229B and offences involving a "course of conduct". [33] Section 21A(2) provides that:

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[1] The section was amended slightly by the Legal Profession (Consequential Amendments) Act 2005. That act commenced on 12 December 2005, just after the trial in this matter. That Act replaced the term "private practitioner" in section 360(2) with the phrase "private law practice or private legal practitioner". Nothing turns on this change in terminology.

[2] Crimes Act 1958, s 360A(2)(b).

[3] [1992] HCA 57; (1992) 177 CLR 292 ("Dietrich").

[4] Ibid 311 (Mason CJ and McHugh J).

[5] Ibid 315.

[6] Ibid. See also Craig v South Australia [1995] HCA 58; (1994) 184 CLR 163, 184.

[7] Various matters were relied upon in support of ground 1, including the admission of evidence alleged to be inadmissible and the inept conduct of cross-examination by the applicant.

[8] Dietrich [1992] HCA 57; (1992) 177 CLR 292, 311.

[9] Ibid 310-311 (emphasis added) (citations omitted). See also Brennan J, 322-323, 325; Toohey J, 361, though Toohey J does note that "In the context of a serious criminal charge, an appellate court would be slow to conclude that the absence of legal representation for an accused is not likely to have led to the loss of a chance of acquittal." Deane J appears to take a different view at 335-336, 337, although he also acknowledges that that where the accused refuses to take advantage of legal representation the trial will not be unfair. Gaudron J at 375 says that "the prima facie position is that [an unrepresented accused] has "lost a chance which was fairly open to him of being acquitted".

[10] [1999] VSCA 195; [1999] 3 VR 313.

[11] [1999] VSCA 195; [1999] 3 VR 313, 317 (Brooking JA), 320 (Charles JA).

[12] Ibid 319 (Brooking JA).

[13] Ibid 329. See also R v Kerbatieh [2005] VSCA 194, [36] (Chernov and Nettle JJA); R v MK [2005] VSCA 194, [32]-[33], [36].

[14] (1991) 1 Qd R 166.

[15] McKenzie v. McKenzie [1971] P 33; [1970] 3 WLR 472.

[16] (1991) 1 Qd R 166, 174.

[17] Smith v Gannawarra Shire Council [2002] VSCA 69, 347. For similar statements in criminal proceedings, see Jago v District Court of New South Wales & Ors [1989] HCA 46; (1989) 168 CLR 23, 56, 74 and R v Burke (1991) 1 Qd R 166, 170, 174, 176, 183.

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[19] See Crimes Act 1958, s 21A(3).

[20] See Crimes Act 1958, ss 21A (2), 21A(3).

[21] [1992] HCA 57; (1992) 177 CLR 292, 302.

[22] For example, evidence of what the applicant said to the complainant in various phone conversations.

[23] [1999] VSCA 195; [1999] 3 VR 313, 327.

[24] Ibid 317 (Brooking JA).

[25] See Evidence Act 1958, s 37CA, inserted by the Crimes (Sexual Offences) Act 2006.

[26] [2002] VSC 377; (2002) 134 A Crim R 111. See also Thomas v Campbell [2003] VSC 460; (2003) 9 VR 136, 150.

[27] Ibid 117.

[28] Ibid.

[29] The Crown outline of submission apparently conceded that his Honour erred on this point, but this concession was not made at the hearing.

[30] Section 21A(3) of the Crimes Act 1958 was amended by the Crimes (Stalking) Act 2003 (No. 105/2003). The new s 23A(3) came into effect on 10 December 2003 but does not apply to this case by virtue of the Act's transitional provisions. The new s21A(3) is divided into two sub-sections. The new s 21A(3)(a) requires a subjective form of intention where no relevant harm, apprehension or fear is actually caused to the victim of the stalking. However, the new s 21A(3)(b), like the old s 21A(3), deems the offender to have the necessary intention where "the offender in all the particular circumstances ought to have understood" that the course of conduct would be likely to cause the relevant harm, apprehension or fear and it actually did have that result. The policy reason for this distinction is to (a) ensure that an offender who knew harm, fear or apprehension was likely, does not escape prosecution simply because the victim "is not easily frightened"; and (b) to "ensure that a person is not exposed to criminal liability where he or she has no subjective intention to cause harm or fear and does not actually cause harm or fear", see the Explanatory Memorandum to the Crimes (Stalking) Bill 2003, clause 4.

[31] (1997) 191 CLR 417 ("KBT").

[32] Ibid, 422.

[33] Ibid.

[34] Note the definition of intention discussed in paragraphs 99 to 103 above.

[35] [2006] VSCA 72; (2006) 14 VR 11.

[36] [2006] VSCA 72; (2006) 14 VR 11, 29 (citations omitted).

[37] [2005] HCA 81.

[38] Ibid [45].

[39] Ibid [43].

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