R v Hoh [2000] VSCA 155

2. The applicant, who is aged 46, was presented at the County Court at Melbourne on 16 March 1999 on a count of damaging property (count 1) and on a count of arson (count 2). These offences which were allegedly committed on 21 and 22 March 1998 at Clayton and Vermont South respectively, carried maximum penalties of ten years' and 15 years' imprisonment. The applicant pleaded not guilty but was convicted on both counts by the jury on 26 March. The applicant had no prior convictions and, after hearing a plea for leniency, the learned judge on 29 April 1999 sentenced him to be imprisoned for 15 months on count 1 and 30 months on count 2 making for a total effective sentence of 30 months. His Honour fixed a non-parole period of 18 months.

5. On 8 May, the applicant lodged notice of application for leave to appeal against his convictions pleading certain grounds which he had drafted himself. This application was listed on 7 October but was not reached. The applicant was paroled on 17 September and the matter again listed on 15 February 2000. The applicant appeared determined to represent himself but accepted an offer by the Court to obtain the assistance of counsel who would act on a pro bono basis. This Court is greatly indebted to Mr Tehan who agreed so to do. On 23 June last, the learned Registrar allowed substitution of the following grounds:

"1A. The learned trial judge erred in admitting into evidence of incidents whereby the applicant visited his former wife, Patricia Lau, placed objects in her vehicle and continued to make attempts to reconcile with her. 1. The learned trial judge erred in directing the jury upon the use they could make of the evidence of incidents whereby the applicant visited his former wife, Patricia Lau, placed objects in her vehicle and continued to make attempts to reconcile with her. 2. The learned trial judge erred in failing to properly direct the jury in relation to motive. 3. The learned trial judge erred in admitting into evidence Exhibit "F", a note of the witness Tan, written on the evening of 21 March 1998 and evidence of the witness Tan, that he had spoken to Pauline Hoh on that evening: and then in failing to give the jury proper directions upon the use of this evidence. 4. The learned trial judge erred in admitting into evidence Exhibit "H", an audio tape of the D24 conversation with the witness Tan; and then in failing to properly direct the jury upon the use of this evidence. 5. The conviction of the applicant upon count 1 is unsafe and unsatisfactory; in addition, the conviction of the applicant on counts 1 and 2 is unsafe and unsatisfactory by reason of the errors referred to in Grounds 1A to 4 above."

9. It is now necessary to set out in summary form the evidence adduced at the applicant's trial.

12. The former wife of the applicant, Patricia Lau, gave evidence that she divorced the applicant in December 1996 after a separation of three years. However, she said, the applicant wanted to reconcile with the family and from time to time drove to Lau's home and place of work where he would sit outside in his car. On occasions he left notes for her at her home and in her car.

15. The applicant became aware of a friendship between Lau and Anthony Piea Looe Tan, a married man, who resided with his wife and children. The applicant suspected a sexual relationship existed between them. Lau and Tan's evidence was that no such relationship existed, although they were good friends. The applicant resented this relationship as evidenced in answers he gave during a tape-recorded interview with police on 22 March 1988 and to which I shall later return.

18. Tan had known the applicant and Ms Lau for approximately four years, from 1994. They were among a group of badminton players.

21. The applicant, in the taped interview, told the police that on the evening of Saturday 21 March 1988, he drove around the eastern and south eastern suburbs of Melbourne looking for his former wife.

24. That same evening, Tan stated that he arrived at the Monash University at approximately 8.00 p.m. Tan was playing badminton that night with a number of his friends, including Ms Lau. Tan parked his RAV4, registration number NLT 638, under a light in a car park close to the Sports and Recreation Centre. Ms Lau arrived shortly after and parked her car across from the sports buildings near Tan's car.

27. At approximately 9.30 p.m. three students arrived in their car at the Monash University. They parked close to the Sports and Recreation Centre. Hung Mai and Thai Nguyen gave evidence that they got out of their vehicle and saw a red station wagon parking on the road at the entrance to the parking bay, approximately 15 to 20 metres away, with its lights on. They did not take much notice of the station wagon at first. They then noticed an Asian male get out of the station wagon and approach the driver's side of another vehicle, an RAV 4, which was parked a short distance away. Nguyen noticed that the man was wearing dark trackpants.

30. As they walked towards the Centre they heard sounds of something striking a car and of glass breaking. They turned to see an Asian male on the far side of the vehicle, striking it. They watched him continue to strike the RAV4, then walk back towards the red station wagon, and Mai saw him throw a bar into the car, before driving off. Both students described an object being carried by the man as a sort of metal bar, and although not certain, thought it was like a club-lock. A club lock was later found in the applicant's car but forensic testing revealed nothing incriminating.

33. Mai gave evidence that there was a lamppost approximately 10 to 15 metres away from him and both witnesses stated that there was plenty of lighting in the car park.

36. Nguyen looked at the number plate and tried to memorise it as the red station wagon drove off slowly.

39. Mai described the Asian male as being "much older than us".

42. Mai entered the sporting centre and reported the incident to a friend who worked there. On entering the Centre, Nguyen made a note on an advertising pamphlet of the registration number of the red station wagon. He gave his note to his friend.

45. At 9.55 p.m. a Monash University security guard, Saunders, was called to attend at the car park. Saunders inspected the damaged vehicle and was approached by Mai. Mai gave Saunders the note. The number on the note was DHZ 238 and Saunders wrote it down, throwing the note away. Saunders spoke to the owner of the damaged vehicle, Mr Tan. Senior Constable Antonio Marasco and Senior Constable Pearson attended at Monash University at 10.30 p.m. and inspected the damage to Tan's car. Tan later drove home. His house was 8 Fankhauser Drive, Vermont South.

48. Mai and Nguyen gave evidence that on that evening they saw the damage to the RAV4 and noted that the rear view mirrors were smashed and the car handles were knocked in. Nguyen also observed that the doors were dented and the windows were cracked.

51. Marasco gave evidence that the registration number, which had been recorded, did not match a red station wagon.

54. The applicant's eldest daughter, Kimberley, gave evidence that she received a phone call from the applicant between approximately 8.00 p.m. and 10.00 p.m. on the evening of 21 March, on the home phone of her mother, Ms Lau, with whom she lived. It was of short duration. She could hear sound of traffic in the background as she spoke to the applicant. She could not say where the applicant was when he telephoned and could not remember the subject matter of the call.

57. In an interview with the police the applicant stated that he called Kimberley from the Peter James Hospital at East Burwood at 9.15 p.m.

60. An expert telecommunication officer employed by Telstra, Mr Seifert, stated that at approximately 9.34 p.m. a phone call was made from the applicant's digital mobile telephone number 0419 542 037 to the fixed phone number 9562 5621.

63. A Mr Braletitch, a Telstra Administration Officer, gave evidence that the number 0419 542 037 belonged to the mobile phone owned by the applicant. The duration of the 9.34 p.m. call was one minute and 34 seconds. The above fixed phone number was in the applicant's name, but billed to Ms Lau.

66. Seifert gave evidence that the signal for the call was received into the Telstra digital phone network, to which that mobile phone was connected, at Sector 2 of the Scoresby North Base Station. There are approximately 25 to 30 base stations comprising approximately 70 sectors in the 10 kilometre area around Scoresby. Mr Seifert testified that the call could have been made from the vicinity of Monash University, although it was more likely that it was made from an area north east of Monash University.

69. An attendant at the Liberty Petrol Station, Mulgrave, Tina Roberts, gave evidence of her observation of an unusual transaction referred to as a "double take" on the evening of 21 March 1998. She observed a person, at pump number 4, take two black plastic containers from the rear of the vehicle, which was like a Sigma Station Wagon, and place the containers on the ground to fill them with petrol with two separate pump transactions.

72. The console operator then on duty, Mr Killian, also recalled the "very unusual" double take transaction, which occurred at about 11.30 p.m. His observations were limited to the relevant computer and EFTPOS transactions relating to pump 4. He described that his computer flashed twice, requiring his authorisation for access to petrol on the same pump by the same person twice, both times for small amounts of petrol. A computer transaction record (Exhibit "C") showed the first transaction was for petrol to the value of $2.95 and the second to the value of $2.84, a total of $5,80 (rounded up by the computer).

75. The computer records of the service station said that it was the only double take transaction for petrol at about that time. The transaction with a double take purchase of petrol was the only one recorded between 9.00 p.m. on 21 March 1998 and 8.00 a.m. on 22 March 1998.

78. Mr Killian also remembered that the customer had purchased this small amount of petrol with his debit card via an EFTPOS machine. The service station kept the white EFTPOS printout (Exhibit "D") and Killian gave a carbon copy to the customer.

81. Mr Killian could not recall any physical features of the customer who paid for this transaction, nor did he see the customer's car.

84. Once at home, Tan went to his office, situated immediately behind the carport at the front of the house, to go through the insurance papers. Tan rang Pauline Lau to obtain some of the applicant's details. He made a handwritten note (Exhibit "F") of the applicant's car registration and model, mobile phone number and address. He rang the Oakleigh police to pass on these details. However, nobody answered the phone at the police station.

87. Tan heard a vehicle moving up and down the street, stopping outside his house. He went out to the gate to investigate. From inside the iron gate to the garage, Tan saw the car coming close to his house and Tan recognised it was the applicant's car, a Mitsubishi Nimbus, with a white mark on the front bumper bar. He saw that the applicant was driving. Tan rushed inside and called 000, and spoke to the operator. A taped record of his D24 conversation was played to the jury (Exhibit "H"). The phone call commenced at 57 seconds after midnight on 22 March 1998. While he was on the telephone Mr Tan heard a car door slam and someone's footsteps approaching. Still on the phone, Tan heard an unusual smash, like something "hitting the door or...the car" and he observed a ball of fire on his RAV4, which was parked in the carport alongside his wife's Mazda Sedan, registration number NGQ 536. He became hysterical and told the operator about the fire. Mrs Tan stated that she was sleeping lightly and woke up to a crash sound in the carport, like a bottle breaking, and then light outside her window. The two vehicles and a part of the house were set alight. Tan ensured his family was safe. The fire brigade was called.

90. Tan stated in cross-examination that he clearly saw the applicant's head in the Mitsubishi Nimbus outside his house and subsequently told the police on the night. However, Tan did not identify the applicant in his statement to the police.

93. Senior Constable Steward Thompson gave evidence that he received a call from D24 to attend at Tan's residence at approximately 12.05 a.m. on 22 March 1998, in relation to a loiterer.

96. Mr Alan Hunter, a professional fire-fighter, received a call from Intergraph at 12.02 a.m. on 22 March 1998 to attend at Mr Tan's residence in relation to a car fire. He arrived at approximately 12.14 a.m. The fire was brought under control within about ten to 15 minutes.

99. Forensic scientist, Mr George Xydias, gave evidence that, in his opinion, the cause of the fire was the non-accidental ignition, probably with a match or a lighter, and spread of a flammable substance, possible petrol. The seat of the fire was in the garage area between the rear of the two vehicles. The fire entered the office area of the house through the adjoining window. Both vehicles were extensively damaged by the fire.

102. Detective Senior Constable Ross stated that he attended at the applicant's home address at 2/3 Myers Court, Noble Park, at approximately 1.20 a.m. on 22 March 1998. At the back of the flat was a red Nimbus registration number DNZ 238, still warm, which was seized. The police spoke to the applicant, who was wearing black tracksuit pants. The police located a blue tracksuit jacket which, in a subsequent police interview, the applicant admitted he had worn the previous night. In the pocket of the jacket was a Westpac Handiway EFTPOS voucher (Exhibit "E") from the Liberty service station, for a transaction at 11.37 p.m. on 21 March 1998 for petrol in the sum of $5.80.

105. Apart from a discrepancy in time, the EFTPOS transaction voucher accorded with the computer records of the service station. On the computer records, the time for the transaction was recorded at 11.45 p.m., some eight minutes after the time shown on the EFTPOS transaction docket. Mr Killian gave evidence that the time on the service station computer was incorrect.

108. Detective Trevor Rowe testified that the driving time between the Liberty service station and the Tan house was about nine to 11 minutes. On that evidence there was time for the petrol to have been purchased by the applicant at the service station at Mulgrave at approximately 11.37 p.m. on the Saturday night and for him to travel to the Tan home to start a fire at approximately midnight. On Detective Rowe's evidence about travelling time, had the transaction taken place at 11.45 p.m., there was still sufficient time for the applicant to have reached 8 Fankhauser Drive and set fire to the cars and house by about midnight.

111. Also located at the applicant's home and seized were two envelopes with writing on them (Exhibit "J"), the message on one of which Lau recognised as being the same as a message contained in a card written to her by the applicant for her birthday in 1998.

114. On 22 March 1999 Detective Rowe commenced a tape recorded interview with the applicant. During the course of this interview the police required the applicant to write down what his movements had been on the previous night. This included a reference to visiting "McDonald's" at 12.15 a.m. Detective Rowe established that the particular McDonald's store referred to by the applicant was a 24 hour store.

117. Although no-one at the Liberty service station had identified the applicant or his vehicle, during the interview with the police the applicant admitted that he had purchased petrol at the service station to the value of approximately $5.00 at about midnight, and admitted that his estimate of times may be a little out.

120. The applicant denied any involvement in the offences which are the subject of the two counts on the Presentment. I now turn to the arguments of counsel.

123. Ground 1A was first argued. It will be recalled that this ground complains of the admission of certain evidence of the applicant's former wife. This evidence was the subject of objection by the applicant's trial counsel, but was ruled admissible by the learned judge on the basis that it could provide evidence of a motive in the applicant to commit the offences charged. In her examination-in-chief, Ms Lau described her separation and subsequent divorce from the applicant. Asked as to the period prior to 21 March 1998, she said that she did not communicate with the applicant but that he tried to communicate with her. This he did by leaving notes outside her door and in her car. She said she had also seen him outside her house "usually in his car" and outside her workplace, again in his car. She added that she had also seen him in his car at their children's school. She went on to describe the receipt of a birthday card from him (apparently in 1998) and she identified one of the two documents Exhibit "J", as being similar to a note in card form to which she had referred. An envelope, on which appeared the words "Darling, wishing you a happy birthday" written by the applicant, became Exhibit "K". The witness described the "general flavour" of the notes as "basically just wanting to get back into the family".

126. Mr Tehan submitted that this evidence was of a very general kind and lacked specific detail. The circumstance that the applicant had, through notes, indicated love of his wife and a desire to be reconciled provided, so the argument went, no evidence of a motive to damage Tan's property. It was also said that the applicant's answers to questions 153 and 178 in the record-of-interview, and to which I shall later make reference, simply indicated the applicant's love of his wife and that he had spoken to Tan about his relationship with her. There was nothing in the evidence, it was submitted, to indicate enmity or hostile relations with Tan and the evidence should not have been admitted. See Wilson v. The Queen[1]. Further, it was argued that the evidence, as given by the witness, left it quite unclear when the conduct attributed to the applicant had occurred.

129. In considering these matters, I have not had regard to evidence adduced during the cross-examination of Ms Lau, as her evidence-in-chief on these matters was received over objection.

132. I am unable to accept these submissions. In my opinion the answers of the applicant in the record-of-interview make it clear that at times proximate to the alleged offences the applicant believed that Tan was having an affair with his ex-wife; was visiting her at her home when the children were not present; was spending a lot of time with her and in fact "using (her) as a mistress". In my view, this evidence, combined with the evidence of Ms Lau, was capable of providing evidence of motive in the applicant and in so ruling and concluding that the evidence had probative worth, the learned judge did not fall into error.

135. As to Ground 1, Mr Tehan submitted that if the evidence impugned by Ground 1A was admissible, then the learned judge had failed to properly direct the jury upon its use. The relevant directions appear on pp. 756/7. After telling the jury that the evidence about the applicant's conduct was relied on by the prosecution on the question of motive, his Honour added:

"But you must not use that evidence of those actions by Mr Hoh, if you accept that he performed them, in any way to speculate that Mr Hoh may have engaged in conduct that amounted to criminal offences other than those with which he is charged in this trial." (Emphasis mine.)

139. Counsel submitted that this form of words, particularly "other than", was most unfortunate and would convey to the jury that a speculative approach was permissible when considering the counts on the presentment. It was also said that the charge failed to make it plain to the jury that it was for them to say whether the evidence amounted to evidence of motive.

142. In my opinion, there is no substance in these submissions, for I think there was no reasonable possibility of the jury construing these directions in the manner now alleged. It is very significant, I think, that counsel for the applicant at trial voiced no objection to them. Further, the judge did make it clear that the assessment of the evidence was a matter for the jury, saying of it to them "...If you accept it and if you accept the submissions of the Crown about its possible use on the question of motive" (757). This ground fails.

145. Ground 2 was abandoned and the next ground argued was Ground 3. This concerned a document, Exhibit "F", written by Tan on 21 March and which was described in evidence as a note written by him about the time of the incidents at his home. He gave evidence that, intending to make an insurance claim, he went through some papers and rang Ms Lau "because the police asked me to get her number." The details on the note were those of the applicant's car, its registration, his address and mobile telephone number. This occurred, he said, before the commission of count 2.

148. Mr Tehan submitted that Exhibit "F" and Tan's evidence that he had spoken to Ms Lau were inadmissible. The telephone conversation had not taken place in the presence of the applicant and the note and its contents were simply self serving of the conversation. This material was simply irrelevant, being hearsay, and evidenced only Tan's suspicion that the applicant was the culprit. In any event, the probative value of the evidence was far exceeded by its prejudicial content.

151. Counsel went on to argue that the judge should have directed the jury to disregard this evidence and that he should have told them that it could not be used as evidence that the applicant committed count 1.

154. Mr McArdle for the Crown pointed out that no objection had been raised to the tender of this now impugned evidence and that in any event the registration and make of the vehicle used by the applicant would have come before the jury from at least one other source, viz, his answers to police questions 102 et seq. (He might have added that the applicant's address and mobile phone number also appeared elsewhere in the evidence.) He also contended that the evidence may have been to the applicant's forensic advantage in that it might be seen as influencing Tan's identification of the vehicle and the applicant outside his house.

157. As I understood Mr Tehan, the "sting" in the evidence for the applicant was the proximity of events described therein to the commission of count 1. "Here is the man", said counsel, "whose property was so recently damaged, ringing up the applicant's ex-wife on the basis that the applicant did it." It reinforced the view that Tan thought the culprit on count 1 was the applicant.

160. From the conduct of the trial it would appear that the lack of objection to this impugned evidence by the applicant's counsel was a considered decision. She appears to have had instructions that Tan was in fact having an affair with Ms Lau which allegation she put to him (449). She also put to him, and he eventually admitted, that he had telephoned Ms Lau not once, but twice, on that evening - the second time when the fire was burning. Counsel also fastened on the appearance of the note which Tan said he left on his desk in his office as he fled from the fire. She sought to contrast this with the appearance of the office in photographs - particularly that of the desktop, apparently smoke or flame affected. Tan then asserted that he had found the note on the floor. He admitted that he did not tell the police about the second phone call. It was put to him that he was trying to underplay his involvement with Ms Lau.

163. As best I can judge, counsel saw in Tan's evidence about the composition of Exhibit "F" and the above matters, an opportunity to attack his credit to the advantage of the applicant. The judge's account in his charge of counsel's final address, while necessarily a summary, gives weight, in my opinion, to this view. It should also be said that Tan's repeated assertions that he rang Ms Lau at the behest of the police would appear to remove the "sting" of which Mr Tehan complains.

166. Put another way, whether counsel's forensic decision was sound or not, (and I am not persuaded that it was unsound), I cannot see that because of it any real harm was done to the applicant's cause.

169. Ground 4, it will be recalled, alleged error in the learned judge in admitting into evidence Exhibit "H", an audio tape of a conversation between Tan and a D24 operator. It was also alleged that his Honour's directions as to this were deficient.

172. Specifically, counsel pointed to the following passages on the tape wherein Tan says to the operator (as heard by Mr Tehan):

"I need some police...Someone damaged my car at Monash University carpark and that person is at my place now and that person may do some harm to me...He is right outside now...He is just passing by driving car to and fro...He is outside my house now and he may do some harm to me. (Noise) He is burning my house...He is burning my car. Quick. Quick."

176. It will be recalled that this conversation took place some 57 seconds past midnight on 22 March.

179. At trial, objection had been taken to this evidence on behalf of the applicant. But, following an overnight adjournment, counsel did not maintain the objection. The matter of editing the tape was considered, but discarded. Counsel did ask for a strong direction to be given as to this evidence. Mr Tehan submitted that the statements of Tan were inadmissible as hearsay because they involved an implied assertion of the truth of some facts stated in them, i.e., that the applicant had caused damage to Tan's vehicle at the University and was present outside his house at the time of the call. Mr Tehan allowed that the statements did satisfy some preconditions for admissibility in that they were made in circumstances of spontaneity and involvement. But, he contended, the possibility of concoction could not be disregarded. In any event, the statements were simply self serving of the witness's identification and the prejudice conveyed by the words "...and that person is at my place now" was very strong.

182. As to the judge's directions, Mr Tehan also allowed that his Honour had correctly, as he had strongly, told the jury the evidence could not be used in relation to count 1, but submitted that his further statement "...the tape is before you and it is before you for a good reason, that it presents the whole of those circumstances that occurred at the time of the phone call..." furnished the jury with no assistance at all. Nor did his Honour explain how the evidence could be taken into account in relation to count 2.

185. In my view, there are two issues to be considered here. The first is the position of trial counsel for the applicant. All the indications are of a considered decision having been made as to the admission of this evidence. Forensically, one can readily imagine counsel reasoning:

"Tan must have known of the applicant's suspicions. There was evidence that the applicant was visibly upset after finding Tan at Ms Lau's house when the children were absent. The tape shows that although he did not witness the commission of count 1, Tan was prepared to recklessly state to a police officer that the applicant had committed it."

189. The second issue relates to admissibility. The tape appears to have been admitted under the res gestae doctrine where, unusually, the maker was not unavailable, but called. Counsel for the applicant has accepted that the conversation occurred "in circumstances of spontaneity and involvement in the event". What of the possibility of concoction? In Ratten v. The Queen[2] Lord Wilberforce, delivering the reasons for the decision of the Privy Council, observed that the possibility of concoction, where it existed, was "an entirely valid reason for exclusion, and is probably the real test which judges in fact apply" (389). In R. v. Andrews[3] Lord Ackner also referred to the possibility of concoction, declaring that the trial judge "must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection." (301) In my view, having listened to the tape and having taken into account Tan's evidence of associated events, the possibility of concoction in this case can be dismissed.

192. It follows that the relevant criteria for admissibility were present.

195. I do not think the tape proved a deal, but it was at least evidence probative of an attack at Tan's home by an individual at about midnight. These were significant aspects of the Crown case and I would not uphold the submission that the judge's directions were inadequate. This ground fails.

198. Ground 5 alleged the conviction on count 1 was unsafe and unsatisfactory. Counsel took the Court to a general review of the evidence. He submitted there was no evidence of identification of the applicant; the identity evidence of the motor vehicle of the offender was inconclusive; the evidence of the witness Seifert established no more, if accepted, than that the phone call could have come from the University although it was more likely that it was made from an area to the North East of it (such evidence not being inconsistent with the applicant's account of his movements). It was also pointed out that forensic tests did not link the club-lock found in the applicant's car to the damage occasioned to that of Tan.

201. In response, counsel for the Crown laid store on the evidence that the offender was an Asian male wearing black tracksuit pants (a pair of which he was wearing when seen by the police early on 22 March); that the offender's vehicle was a red station wagon and the registration details taken of it by the eye-witness bore a marked similarity to those of the applicant's vehicle; that the details so taken did not match a red station wagon; and that the applicant's club-lock was capable of causing the damage. While the time of the commission of the offence was somewhat uncertain (Mai and Nguyen thought sometime around 9.30 p.m. and it may be that Saunders placed it somewhat later), the applicant was shown to be not a great distance from the University at the time of his phone call with his daughter 9.34 p.m. There was evidence of motive in the applicant. Further, it was put that the applicant having stood mute, Weissensteiner v. The Queen[4] had application. In considering these opposing submissions I have come to conclude that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant committed count 1: M. v. The Queen[5]. In this exercise, I have taken the view that Weissensteiner ought to be applied. Grounds 1A to 4 having failed, the second limb of ground 5 also fails.

204. In my opinion, this application should be dismissed.

[1] [1970] HCA 17; (1971) 123 C.L.R. 334

[4] [1993] HCA 65; (1993) 178 C.L.R. 217

[5] [1994] HCA 63; (1994) 181 C.L.R. 487