R v White; R v Piggin [2003] VSCA 174

R v White; R v Piggin [2003] VSCA 174 - VSCA 2003 case summary — Zoe

[26]

White told the jury that his first relationship with a woman ended when his mother died and thereafter, until approximately 1995, he drank heavily and suffered from a range of personal problems. During the mid-1990's he met Helen Podwyszynski who had a son, Jamie, and a daughter, Alicia, from a previous relationship. In late 1995 they moved to Rosebud in order to enable White to obtain work as a barman during the holiday season. In early 1996 he lost that job and a short time later suffered a breakdown. Through Podwyszynski, he met Craig Bruce who took White to the Assembly of God Church in Rosebud where he underwent a full immersion baptism in 1996. For some months thereafter White regularly attended the Church services and other meetings and was affected by what was taught there, particularly the evangelical style and the responses of other members of the congregation. He commenced reading the Bible on a regular basis, particularly the Book of Revelations, and became convinced that he was one of the select group of 144,000 who would be saved when the end of the world came. White explained to the jury that he believed that, in order to achieve such salvation, he had to fight "the beast" which represented the United States government and the capitalist system and which "resided" in the banks. He claimed that God had authorised him to commit the armed robberies on the banks because that amounted to taking money from the beast, thereby hurting it. He also said that he regarded such acts as part of the process by which he was tested for selection as one of the chosen. White also sought to explain the armed robberies by reference to the need for him to provide assistance to members of his household who were experiencing financial difficulties. For example, Jamie, Podwyszynski's 23-year old son, had been refused Legal Aid and had difficulty in funding his defence to a charge that he had sexually assaulted a young female cousin. White's daughter Jessica also needed financial assistance in order to set up her home in Melbourne. White claimed that God authorised him to rob banks in order to give the needed financial assistance to Jamie and Jessica. I note for completeness that when White was interviewed by the police he did not tell them of his religious beliefs because, he said, he regarded the relevant officers as inadvertently working for the beast and because it would have been cowardly for him to tell them about his religious views.

[31]

I now turn to consider White's application for leave to appeal against his convictions. Each of the filed notices of application for leave to appeal against the armed robbery convictions and the conspiracy convictions contains only one ground, namely, that his Honour failed to explain to the jury s.22(2)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ("the Impairment Act") and wrongly told them that "reasonable" in s.20(1)(a) meant "ordinary". By reason of these errors, it is claimed, White was significantly prejudiced. During the week prior to the hearing of White's applications for leave to appeal, the Court was informed informally by his counsel that he, counsel, did not propose to argue that ground. White, however, wrote to the Court saying that he wished to press that ground. In his letter he said that he proposed to argue that the trial judge misinterpreted "s.22(2)(a) of the Impairment Act" and that he failed, in each trial, to explain adequately to the jury the legal consequences of a finding of not guilty by reason of mental impairment. As I understand White's letter, he seems to be have been concerned in particular that in the first trial the jurors, who formed the majority in respect of the verdicts on counts 1 to 4, may have found him guilty only because they apprehended that an acquittal on the grounds of mental impairment would have resulted in his being subjected to "harsh asylum treatment for the criminally insane". Consequently, White said, there was a risk that they took the view that it would be more humane to find him guilty and returned their verdicts accordingly. White also said in his letter that he would seek leave to put forward fresh evidence to the effect that he had witnessed a murder when he was six years of age and that he related his evidence as to that to the police officer who was then in charge of the murder investigation. White said that the officer accepted what he had told him although, it seems, the investigation has not progressed. He also asserted in his letter that, at the first trial, the jury "was found to be in possession of many books on psychiatry" and that the judge ordered them to be removed and had asked his counsel to consult with him as to whether the trial should continue. It has not been suggested by White that counsel did not confer with him about that matter. Rather, White's complaint seems to be that neither he, nor his barrister, were capable of deciding whether the trial ought to continue by reason of such books being found in the possession of the jury as neither was versed in the field of psychiatry or psychology. White foreshadowed in his letter that he would seek leave to address the Court briefly on those matters at the hearing of the applications.

[34]

(a) the nature and quality of the conduct; or

(b) that the conduct was wrong (in other words, he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

Section 22(2)(a) of the Impairment Act, as to which White also complained as I have mentioned, says that "if there is admissible evidence that raises the question of mental impairment -

(a) the judge must direct the jury to consider the question and explain to the jury the findings which may be made and the legal consequences of those findings."

It is apparent from the provisions of s.20(1) that the word "reasonable", in respect of which White complains in ground 1, appears, not in paragraph (a), but in paragraph (b), of the provision. Consequently, I shall treat that aspect of White's complaint, as being that the trial judge erred when he told the jury that "reasonable people", as in s.20(1)(b) of the Impairment Act, meant "ordinary people". What his Honour told the jury concerning the operation of the two provisions in question was this. First, the judge distinguished between the two limbs of the defence of mental impairment in s.20(1)(a) of the Impairment Act and said that, although they may operate in the alternative, White had chosen to rely on the second limb. Next, his Honour explained that the expression "wrong" in paragraph (b) of that sub-section meant "wrong in the eyes of reasonable persons; that is ordinary persons". The judge also said that the test was not "directed to moral or legal concepts ... but to the accused's awareness that reasonable people would disapprove as wrong the actions he is performing." Finally, the learned trial judge emphasised in his charge that White needed to persuade the jury that he could not reason with a moderate degree of sense or composure as to whether the conduct as perceived by reasonable people was wrong. In my view it is plain that the judge sufficiently explained to the jury the requirements of s.20 of the Impairment Act. In particular, I consider there was no relevant error in his Honour's reference in his explanation to "ordinary persons". In the context in which this explanation was given, it is plain that the jury would have understood the expression "reasonable people" to include normal or ordinary persons and, in my view, that would be consistent with the meaning that Parliament intended to attribute to the term "reasonable people" in that provision. It is also apparent from what I have said that the learned trial judge did not misunderstand the requirements of s.22(2)(a) of the Impairment Act as was contended for by White.

[35]

Turning to the matters raised in White's letter, in my view, there is nothing in his Honour's charge that could have sensibly led the jury to conclude that an acquittal of White on the grounds of mental impairment would lead to the risk of his being subjected to harsh treatment for the criminally insane or otherwise. Furthermore, the material that White seeks to put forward by way of "fresh evidence" would not be admissible as such, or on any other basis. The proposed evidence is wholly irrelevant to the issues that were canvassed at White's trial and, therefore, it cannot be said that there has been a miscarriage of justice because that evidence was not put before the juries at the two trials. Nor can it be said that there is a significant possibility that the jury, acting reasonably, would have acquitted White of the charges if that evidence had been put before them. As to White's claim concerning the books on "psychology", it is apparent from the transcript that what had relevantly occurred was that the foreman told the judge that a member of the jury had brought into the jury room some "medical books, definitions of psychiatry and so on ...". The judge thereupon reminded the jury that they had to decide the case only according to the evidence that they had heard. He told them that it would not be appropriate to consult texts and that they should retire to the jury room and give the foreman whatever books they had which the judge's tipstaff would then collect. This instruction was carried out and it seems that only the prosecutor examined them. His Honour then asked both counsel whether they had anything further to say about the matter so raised by the foreman and both counsel said that they did not. In my view, that neither White nor his counsel had training in psychology or psychiatry did not preclude counsel from responding to his Honour's query in a manner that was binding on White. In the circumstances, I consider that no miscarriage of justice arose by reason of that episode.

[42]

An accused has a right not to be tried unfairly[1]. But as Mason, C.J. and McHugh, J. noted in Dietrich[2], there has been no judicial attempt to list exhaustively the attributes of a fair trial. That is because, their Honours said, "in the ordinary course of the criminal appellate process, an appellate court is generally called upon to determine ... whether something that was done, or said in the course of the trial, or less usually before the trial, resulted in the accused being deprived of a fair trial and led to a miscarriage of justice". (Citations omitted.) The cases have recognised, however, that, in the absence of rules that prescribe what a trial judge must do to ensure that the accused receives a fair trial according to law, elements of reason and commonsense must play a role in determining the steps that should be taken in a particular case to prevent the possibility that the trial will be unfair. Thus, as Gaudron, J. said in Dietrich[3], "[s]peaking generally, the notion of `fairness' is one that accepts that, sometimes, the rules governing practice, procedure and evidence must be tempered by reason and commonsense to accommodate the special case that has arisen because, otherwise, prejudice and unfairness might result". And Dawson, J. in that case recognised[4] that "[t]he assistance which a trial judge can give to an unrepresented accused is limited, but its effects ought to be to redress as far as possible any imbalance in the presentation of the prosecution and defence cases and to ensure that the procedures adopted fairly reflect the case which the accused wishes to put in his defence". Furthermore, as Brennan, J. explained in Dietrich[5], "[t]he procedure of the criminal courts is designed to produce as fair a trial as practicable in the circumstances of each case". Similarly, in Bromley v. R.[6], Gibbs, C.J.[7], speaking in the context where there was a risk that the mental disability of an important witness may impede the capacity of that witness to give reliable evidence, said[8] that "common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence." And this Court[9] in R. v. Miletic[10] said[11] that, where there is no specific rule prescribing the directions that a judge must give in particular classes of case, the principle is that the judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of a miscarriage of justice.

[61]

I have already mentioned that White's plea in mitigation of sentence was conducted after the conclusion of his second trial and after Piggin had been sentenced. The learned sentencing judge accepted that, as a matter of probability, White had a childhood that was dominated by the mental instability of his father and by the violence he had shown to White and other family members. His Honour also considered it likely that White was significantly depressed during 1996 when he lost his job and later became involved with the Assembly of God Church and his own study of the Bible. But his Honour saw no basis for the contention that in 1997 or thereafter White was suffering from a mental illness. There was little evidence, said the judge, to suggest that White's depression, and any religious delusions he may have had, extended beyond 1996. The armed robberies were, as his Honour noted, committed later, between 22 August 1997 and 23 December 1999. Nearly all the offences reflected a significant degree of planning and were committed in an atmosphere of potential violence which was created by White. In my view it was well open to his Honour to come to the conclusion that White did not suffer from mental impairment at the relevant time and counsel's submission to the contrary should be rejected. His Honour's conclusion is consistent with the jury's verdict and with the views of Dr. Barry-Walsh. As one would have expected, most of the victim impact statements, principally from bank staff, but also from customers who were caught up in the armed robberies, spoke of ongoing fear and anxiety. Many of the victims suffered physical symptoms as well as emotional reactions to the trauma they endured. A number of them have received counselling, some for extended periods. His Honour noted that many of the victims who gave evidence at the first trial were distressed when asked to recount their experiences. In addition, as the learned sentencing judge noted, White had shown little concern for the many customers who witnessed the armed robberies.

[108]

The jury was then brought into court and Piggin's counsel announced that Piggin would not be giving evidence and that the only witness that would be called on his behalf would be an audiologist. Ms. Mielke, an audiologist, then gave evidence concerning Piggin's hearing impediment. At the conclusion of that evidence, the prosecutor commenced his address to the jury, in the course of which Piggin signalled that he wanted to speak to his counsel and did other things in the dock which possibly drew the jury's attention to him. Eventually, in the absence of the jury, and after he had spoken with Piggin, his counsel informed his Honour that Piggin was concerned that, because of the judge's refusal to grant the adjournment sought he was unable to participate in the proceedings in a way which would not prejudice him "with the jury". His Honour observed that, while the prosecutor was addressing the jury, Piggin was drawing attention to himself in a number of ways, including trying to pass a message to a person in court (to obtain his hearing aid), sitting in the dock with his head well down and then effectively interrupting the Crown's address because he wanted to convey to the court, through his counsel, his dissatisfaction with its ruling in relation to the adjournment application. Counsel expressed concern to his Honour that the jury would have noted Piggin's behaviour as described by the judge and that there was a risk that the jury might take the view that Piggin was simply seeking to draw attention to himself. In the circumstances, counsel submitted, the jury was going to have difficulty in approaching the matter in an unprejudiced and impartial way. Moreover, said counsel, Piggin was having difficulty in following what was going on and this had an impact on his ability to participate properly in the proceeding. Consequently, counsel applied to his Honour to discharge the jury. His Honour refused that application on the basis that, essentially, the jury had not been relevantly distracted by Piggin's behaviour, at least not to an extent of being incapable of determining the issues in question in an unprejudiced and impartial way.

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