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

[ 2003] VSCA 174

CRIMINAL LAW - Leave to appeal against convictions and sentence - Armed robbery - Defence of mental impairment - Whether judge erred in explanation of relevant provisions of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Conspiracy to commit armed robbery - Evidence led by unrepresented accused of criminal conduct and history - Evidence highly prejudicial and otherwise inadmissible - No attempt by trial judge to prevent accused giving such evidence or explain to accused its highly prejudicial effect - Absence of directions to jury as to limited use of such evidence - Whether trial rendered unfair to accused - Miscarriage of justice - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss. 20, 22.

SENTENCING - Whether sentence for conviction for 9 armed robberies over 28 months manifestly excessive - Total effective sentence of 17½ years not manifestly excessive.

EVIDENCE - Admissibility - Conspiracy - Acts and declarations of alleged co-conspirators - Whether reasonable evidence of accused being party to conspiracy of type alleged.

CRIMINAL LAW - Adjournment - Application for adjournment of trial - Grounds for refusal - Whether judge erred in refusing to grant adjournment - Verdict - Whether unsafe and unsatisfactory.

2. I have had the considerable advantage of reading the reasons for judgment prepared by Chernov, J.A. in these appeals. Subject to the following comments as to White's applications, I agree with the disposition of these appeals proposed by his Honour and the reasons given.

5. As to White's applications touching conviction, I entirely agree that the only question of substance raised is that concerning the conviction for conspiracy, set out in the new ground 2 added by leave given on 4 August 2003. In my view the failure of the trial judge to take any steps either to warn the applicant of the likely prejudicial consequences of leading evidence as to his past convictions, or, once the jury had been informed of their existence, to warn the jury in strong terms against the misuse of such evidence in their deliberations, resulted in a trial which was unfair to White and produced a miscarriage of justice. It follows that I agree that White's appeal against his conviction for conspiracy should succeed. It is unnecessary for the determination of White's appeal to consider whether the judge was entitled to exclude arguably admissible evidence sought to be tendered by the unrepresented accused on the ground that the prejudicial nature of the evidence far outweighed any probative value it might have.

8. As to White's appeal against sentence, the original total effective sentence imposed on all counts was 19½ years and the non-parole period fixed was 15½ years. I agree with all that Chernov, J.A. has said as to the seriousness of these offences and the criminality of White's conduct. The sentence, however, remains in my view a stern one, and near the top of the available range, particularly having regard to White's full admissions to the police at the earliest opportunity and his decision not to challenge the armed robberies. With some hesitation I agree that the appeal against sentence should be dismissed for the reasons given by Chernov, J.A.

11. The effect of allowing White's appeal against the conspiracy conviction is, on the assumption that the individual sentences imposed by the trial judge upon the remaining counts on which White was convicted are allowed to stand, together with

the orders for cumulation, that the total effective sentence for the armed robbery counts would then become 17½ years' imprisonment. I agree that a new non-parole period of 13 years should be fixed.

16. On 31 July 2001, the first applicant, Gregory Eric White ("White") who is now aged 45 years, was arraigned in the County Court at Melbourne on a presentment which, so far as is relevant, contained nine counts of armed robbery (counts 1-5, 7-10) to which he pleaded not guilty. Following a trial, at which he was represented by counsel, White was, on 10 August 2001, found guilty of the nine counts of armed robbery. The jury took some two days to reach their decision. On the first four counts White was found guilty by a majority of 11 jurors, but the verdicts on the other five counts were unanimous.

19. On 17 August 2001 White and the second applicant, Anthony Piggin ("Piggin") who is now aged 41, were presented for trial in the County Court at Melbourne on a presentment containing one count of conspiracy to commit an armed robbery of a jewellery store in Adelaide. They pleaded not guilty and, after separate trials, Piggin was convicted of the charge on 24 August 2001. White's trial for conspiracy commenced on 3 September 2001. He conducted his own defence and, on 7 September 2001, the jury returned a verdict of guilty. Their foreman then read a statement on their behalf to the effect that, although they had found White guilty, they hoped that, because of his troubled history, he would receive assistance with his rehabilitation. The same judge presided over the three trials.

22. On 28 August 2001 the learned sentencing judge heard a plea in mitigation made on behalf of Piggin who admitted 49 previous convictions from 13 court appearances between 5 March 1979 and 18 January 1999, including assault, two counts of rape, two counts of armed robbery and 12 other theft related offences. On 31 August 2001 his Honour sentenced Piggin to be imprisoned for four and a half years and fixed a non-parole period of three years. By notice dated 13 September 2001 Piggin seeks leave to appeal against his conviction on grounds which were amended on 5 August 2003 pursuant to leave of the Registrar and which I will analyse later.

25. White came to be sentenced on 17 September 2001 in respect of the two sets of convictions, namely those that related to the nine counts of armed robbery and the conviction for conspiracy to commit an armed robbery. He admitted 45 previous convictions from 19 court appearances between 6 August 1976 and 22 October 1998. They include convictions for assault, eight counts of armed robbery, one count of attempted robbery, four theft related offences and numerous road safety related offences. At the hearing of his plea in mitigation, White was represented by counsel and 17 victim impact statements were tendered by the prosecution. On 17 September 2001 his Honour sentenced White in respect of each of the nine convictions for the armed robberies to a term of five years' imprisonment. The judge imposed a like sentence in respect of White's conviction for conspiracy.

28. His Honour directed that 18 months of each of the sentences imposed on counts 2, 3, 4, 7, 8, 9 and 10 and two years of each of the sentences imposed on count 5 and the conspiracy charge be served cumulatively upon each other and upon count 1, making a total effective sentence of 19½ years' imprisonment. His Honour fixed a non-parole period of 15½ years. By notices dated 18 September 2001 White seeks leave to appeal against his convictions for armed robbery and conspiracy respectively and the sentences imposed on him on grounds which were amended on 1 August 2003 pursuant to leave granted by the Registrar and to which I will refer later.

32. It is convenient to deal first with White's applications. Before turning to the grounds on which he seeks to rely, I shall set out the circumstances of the offending and related matters.

35. The nine armed robbery offences that were committed by White spanned the period 22 August 1997 to 31 December 1999. In essence they were perpetrated on banks, TAB agencies and, in one instance, a service station. The applicant's usual modus operandi was to enter the premises disguised and armed with a gun which he used to threaten the employees in a loud and aggressive manner with the ultimate aim of obtaining money from them. Typical of his demeanour towards his victims was his loud and aggressive demand of them, made by him in the course of the armed robberies: "I want the money, just give me the money or I'll blow your fucking head off. I am not scared to jump this counter. I will shoot someone if you don't give me the money."

38. Count 1 involved White entering the Bank of Melbourne Branch at Mount Eliza on 22 August 1997 whereupon he donned a balaclava and produced an imitation sawn-off shotgun. Upon threatening the tellers, the applicant was given a sum of over $14,000. Count 2 involved another offence carried out at the same bank on 5 January 1998. Using the same modus operandi, the applicant stole $11,000. The circumstances of Count 3 were that, on 27 April 1998, the applicant entered the Bank of Melbourne at Camberwell carrying an imitation shotgun whereby he threatened staff and received cash in the sum of over $20,000.

41. The applicant was only able to take $195 when he sought to rob the Colonial State Bank branch at Melbourne on 24 February 1999, armed with a similar weapon. His attempts were foiled when the bank officer retreated to an office which she was able to lock. The offending formed the basis of Count 4.

44. Count 5 arose out of events that occurred on 2 June 1999 at the Shell Service Station in Sunshine. White approached the counter of the convenience store carrying an automatic pistol, claiming to have no money and stating that he needed to purchase gas. The attendant activated a security screen with the result that White was only able to depart with $200 from the till. Upon the attendant's activation of the security screen, the door to the store closed. White shot a hole in the glass and, subsequently, he was able to escape.

47. The facts giving rise to Count 7 were as follows. White attended the TAB at Mentone on 10 June 1999 disguised with a balaclava and a coat. He carried an automatic pistol and after threatening staff and customers, he managed to escape with cash of approximately $800. On 18 June 1999, he returned to the TAB agency at Mentone, again disguised and carrying a pistol and upon threatening staff, took $3,000. This conduct was the subject of Count 8. Count 9 related to White's attendance at another TAB agency on 26 June 1999, this time in North Balwyn. The same or similar disguises were worn and the applicant also carried a pistol. He threatened staff and left the premises with $2,000.

50. Finally, the circumstances surrounding Count 10 were that, on 23 December 1999, White went to the ANZ Bank at Sunshine wearing a straw hat and sunglasses and carrying a loaded shotgun. He threatened staff and customers and escaped with $18,000.

54. The charge of conspiracy to commit an armed robbery arose out of an agreement that was said to have been reached between the two applicants and two other co-offenders, Peter Kennedy and Helen Podwyszinski, on 9 and 10 February. The Crown case was that they agreed that the applicants and Kennedy would commit the offence on a jewellery store in O'Connell Street, Adelaide, with each offender being assigned a particular role: Piggin was to drive the "get-away" car while White and Kennedy would enter the shop, armed with a 12 gauge shotgun and an automatic pistol, tie up the occupants and steal cash and jewellery. Details of the unlawful enterprise were obtained by the authorities through a listening device installed in the house occupied by White and Podwyszynski in Chewton and through telephone intercepts of the mobile telephone of White and the telephone installed at the Chewton residence**.** Thus, the police were able to record conversations between the relevant parties on 9 and 10 February 2000. There was also police surveillance evidence of the conspirators or some of them on 8, 9 and 10 February 2000. On 11 February 2000 at 1.10 a.m., the police intercepted at Ararat a vehicle driven by Piggin, in which White and Kennedy were passengers, which was travelling in the direction of Adelaide. A search of it revealed that each of the men had sufficient clothing for a number of days, as well as disguises, handcuffs and the two weapons earlier described. One of the weapons was hidden in a large soft toy that was found in one of the bags that was in the car.

57. Following his apprehension, White was interviewed by police and made full admissions of his involvement in the nine armed robberies and admitted that it was his intention to carry out an armed robbery in Adelaide, but Piggin made no admissions.

61. As I have said, at his first trial, White was represented by counsel. He did not contest that he carried out the nine armed robberies as alleged, but relied on the defence of mental impairment. In that context he sought to explain the commission of the armed robberies on the basis that his religious views, to which I will refer later, led him to believe that he was justified in carrying out the offences. In summary, the following defence evidence was put to the jury at White's first trial. He and his sister said that their father had several nervous breakdowns and, on a number of occasions, had been hospitalised where he received shock treatment. Their father was paranoid, they said, and the family suffered at his hands. As a young child, White was frequently beaten and his sister and a brother later experienced psychiatric problems. His mother died in October 1981 when he was 22 or 23 but by that time, White had left home. It was contended at both trials that there was a connection between the development of White's mental problems and the psychiatric difficulties of other family members on the one hand and the abusive experiences he had received at the hands of his father as a child on the other.

64. 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.

67. White also called at his first trial Dr. Barry-Walsh, a forensic psychiatrist who had assessed White, at his solicitors' request, at Port Philip Prison and who prepared a report dated 26 July 2001 in relation to his mental condition. His opinion was that the appellant suffered depression in approximately 1996. He was unable to confirm, however, whether White's stated religious beliefs were a primary cause of his offending behaviour. It seems that White had told Dr. Barry-Walsh that his mental condition had progressively improved since his arrest in February 2000 so that, by the time he was seen by Dr. Barry-Walsh, his mood had improved substantially and the intensity of his religious beliefs had receded. Nevertheless Dr. Barry-Walsh said that, at the time when White was committing the armed robberies, he knew what he was doing and that, in his opinion, White was capable of appreciating that what he was doing was wrong. Dr. Barry-Walsh further noted that, apart from White's assertion that he was mentally impaired, there was very little other information to suggest that that was the case.

71. I will discuss later the progress of the second trial. For the moment it is sufficient to mention that, as I have said, White represented himself and essentially relied, by way of defence, on his claimed mental incapacity. In that regard his evidence was similar to that given at the first trial except that he also put into evidence material going to his criminal history which dated back to 1971. I have already noted that he was convicted of that charge.

75. Not long after the conclusion of his second trial, on 17 September 2001, White was sentenced as I have already described. I will deal later with his application for leave to appeal against sentence.

White - ground 1 of leave to appeal against convictions

79. 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.

82. When the applications were called on for hearing, Mr. Dann announced his appearance for White. At the end of his submissions and those of the prosecutor, the applicant sought leave to address the Court on the matters raised in his letter. The Court told him that he was not entitled to have counsel represent him and make submissions himself on the same application. Nevertheless, the Court said, given the unusual circumstances of this case, it would take the contents of his letter into account when considering his applications and permitted him to address it to explain his claims. White then briefly spoke to his letter.

86. In my view, there is no merit in ground 1 or in the additional matters raised in White's letter. In order for White to have succeeded in his defence based on mental impairment he had to prove, on the balance of probabilities, pursuant to s.20(1)(a) of the Impairment Act, that, at the relevant time, he was suffering from a mental impairment that had the effect of his not knowing:

(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 as was contended for by White.

92. 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.

95. Consequently, ground 1 must fail and, as I have said, there is no merit in the other complaints raised by White in his letter.

White - leave to appeal against conspiracy conviction

99. As I have earlier indicated, at his conspiracy trial, White sought to establish that he was mentally impaired at the relevant time by giving the jury an explanation of his background along the lines that he provided to the jury in the first trial. On this occasion, however, he also gave them a detailed account of his past criminal activities including his criminal history going back to 1971, which included 17 convictions for armed robbery, including the nine armed robberies which were the subject of the first trial and in relation to which he told the jury that he relied on the defence of mental impairment. White also told the jury of his involvement in other uncharged criminal conduct, including a conspiracy to commit an armed robbery in Kyabram. Such evidence resulted in White being cross-examined by the Crown about his conduct during the various armed robberies and about the similarity between them and the alleged conspiracy. The Crown was also able, by reason of White's evidence as to his prior criminal history, to tender photographs taken by the surveillance cameras at some of the banks at which White committed the armed robberies that were the subject of the first trial. Further, he called Dr. Barry-Walsh who gave similar evidence to that which he had given at White's first trial. He essentially confirmed the difficulty he had in diagnosing a mental disorder in White**.**

102. I have already explained that in White's filed notice of application for leave to appeal against his conspiracy conviction he relied on only one ground which I consider should fail. White, however, added a second ground in support of his application for leave to appeal against this conviction pursuant to leave given by the Registrar on 4 August 2003. The new ground, which was pressed by Mr. Dann, is in the following terms:

"2. The trial of the Applicant in relation to the Count of Conspiracy to Commit Armed Robbery miscarried in that as a result of: (a) the Applicant representing himself; (b) evidence being admitted as the Applicant's prior criminal history; (c) evidence being admitted as to the uncharged conspiracy to commit armed robbery and other uncharged acts; (d) evidence being admitted as to the Applicant having committed and being convicted of nine armed robberies in the period leading up to the alleged conspiracy; and (e) the Learned Trial Judge not providing any warning or direction as to how the jury could use this evidence ((b), (c) and (d))

107. Mr. Dann's argument under this ground was, in essence, that White's conspiracy trial miscarried as a result of the judge not taking any steps to prevent, or at least dissuade, White from introducing highly prejudicial and otherwise inadmissible evidence during his evidence-in-chief and in failing to tell the jury that such evidence could only be used for the very limited purpose of determining White's claim that he was mentally impaired at the relevant time and that they must not reason that, because of his criminal history, he entered into the alleged conspiracy or that he was the type of person who was likely to have done so. Counsel complained that, in fact, the jury were given no direction how the evidence could be used so that there was nothing to stop them from using it in determining whether he was a party to the alleged conspiracy. In the circumstances, it was said, the trial was unfair to White and thus, miscarried. Consequently, Mr. Dann submitted, White's conviction on the count of conspiracy should be quashed. I mention for completeness that these arguments were put in the alternative to counsel's principal claim, namely, that, given the prejudicial evidence led by White, the jury should have been discharged. For reasons which become apparent, I consider that there was no obligation on his Honour to discharge the jury although I consider that his Honour was under an obligation to take steps to which I refer in order to ensure that the trial was not unfair to White and that his failure to do so resulted in a substantial miscarriage of justice.

110. 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 in said 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.

113. It must also be borne in mind, that under our adversarial system, a fair criminal trial is ordinarily achieved in a context in which the accused has legal representation and where both the prosecution and defence counsel are responsible for placing all matters they consider relevant before the jury and for objecting to inadmissible matters sought to be led by opposing counsel. The system presupposes more or less equal opponents and an independent judge who ensures that certain procedures are followed, that the law is correctly stated and that issues of fact are identified for the jury so that they can make their determination. But where the accused is unrepresented, this equilibrium is displaced, and the accused labours under obvious and widely acknowledged disadvantages, many of which are discussed in Dietrich[12].

116. In such circumstances, the duties of a trial judge become particularly onerous.[13] While it is the duty of the judge to ensure that the accused is not subjected to a trial that is unfair, he or she must refrain from becoming an advocate for the unrepresented accused or otherwise unduly interfere with the conduct of the trial. Thus, the judge must ensure that the accused is fully aware of the legal position in relation to the substantive and procedural aspects of the case without effectively advising him or her of what course should be followed, or unduly interfering in the Crown case as if the judge was the accused's counsel.[14] In MacPherson[15] Brennan, J. explained the difference between the judge taking steps to ensure that the accused was aware of the legal situation on the one hand and advising the accused as to what course he or she should adopt on the other by reference to "the distinction between telling the players how to play and telling them the rules of the game".[16] In Dietrich, Mason and McHugh, JJ. pointed out[17] that the functions of a judge and defence counsel are very different and concluded that any attempt to combine the two roles is inherently problematic. Their Honours referred to what Sutherland, J. said in Powell v. Alabama[18]:

"[H]ow can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional."

120. It is clear enough that excessive intervention by a trial judge may amount to an error of law. Thus, for example, in R. v. Pirimona[19] the Court of Criminal Appeal of Tasmania held that, in his "laudable determination to ensure that the accused suffered no disadvantage by reason of not being represented by counsel, his Honour unconsciously assumed the mantle of defence counsel to such a degree that his role as judge was overshadowed and could not be performed with the requisite degree of objectivity". In deciding that a reasonable apprehension of bias against the prosecution was made out, Cox, C.J. referred to the frequency with which the judge directed unwarranted criticism at the Crown, and the degree to which the judge's questions to witnesses assumed an adversarial character.

123. Another case in which the role of the judge in the conduct of a criminal trial of an unrepresented accused was helpfully discussed for relevant purposes is R. v. Gidley[20] where the Crown sought to tender the accused's diary, but only in relation to the entry in it for the day before the day of the murders with which he was charged so as to establish the accused's state of mind at the relevant time. The accused's counsel objected to the admission of the diary into evidence on the basis that it was irrelevant. The judge upheld the objection and the Crown did not seek to tender it at a later stage of the trial. Due to circumstances which are not relevant for present purposes the accused was not represented when the time arrived for him to present his defence. During his evidence-in-chief he asked the trial judge whether he could refer to the diary. The trial judge said that he had "ruled that evidence inadmissible when offered by the Crown on the objection made on your behalf. That does not preclude you from referring to it if you wish". The accused made references to his diary in his examination-in-chief, and was cross-examined briefly in relation to the manner in which he kept it, but not in relation to its contents. Upon re-examination, the accused asked that the jury, if they wished, be able to view the diary. The trial judge, reminding the accused that its tender by the Crown had been rejected, said that for the jury to see it, it would need to be an exhibit. The accused then tendered the diary without objection from the Crown and read out and explained to the jury a number of entries.

126. The accused was convicted and appealed against his conviction on, inter alia, the ground that, given that he was unrepresented at the relevant stage of the trial, the judge should not have allowed him to tender the diary, the contents of which were prejudicial to him. This claim was rejected by the Court of Criminal Appeal. Hunt, J.[21] said[22]:

"The duty of a trial judge to ensure that every accused has a fair trial obliges him to give an accused who is unrepresented such information and advice concerning his rights as is necessary to put him in a position where he can make an effective choice whether he should exercise those rights, but the trial judge must make it clear that he is not advising the accused either that he should exercise those rights or how he should conduct his case. ... [I]t is not part of a trial judge's duty to advise an unrepresented accused against the tender of prejudicial material. It may be that in a particular case a trial judge will be obliged to advise an unrepresented accused of the likely prejudicial consequences of a course which he is proposing to undertake so as to enable the accused to make an effective choice ... but the choice must remain that of the accused. There is no obligation upon the trial judge to do more. He may express his own opinion as to what would best serve the interests of the unrepresented accused if he feels it is appropriate but he is not under any obligation to do so, and his omission to give such advice does not amount to an error of law."

His Honour noted[23] the difficulties that may have accompanied any advice that the trial judge may have given in that regard. Thus, for example, if the trial judge advised the accused that the tender of the diary may prove prejudicial to his case, it would have also been necessary to advise that the failure to tender the diary when he had already referred to it in his evidence-in-chief could be regarded by the jury as an admission that the diary's contents did not assist in his defence. This, said his Honour[24], demonstrated the difficulty faced by a trial judge when he or she goes beyond merely informing an unrepresented accused of his or her rights, and "how impossible it is to say that a trial judge has made an error of law when he had failed to give any further advice than that".

131. The courts have recognised, however, that, where the accused is unrepresented, a trial judge has considerable discretion not to apply strictly the procedural and evidentiary rules that would otherwise operate notwithstanding that strict adherence to such rules may be required of the Crown.[25] The extent to which the trial judge may give the accused such leeway, or the extent to which the trial judge may be required to inform him or her of the legal position as to the substantive and procedural issues in the case and the degree to which the judge may properly intervene in the conduct of the trial in order to achieve its effective conduct while ensuring that it is not unfair to the accused, will obviously depend on the circumstances of the case. But the general position seems to be that there is a trend towards requiring more judicial intervention in the conduct of a criminal trial in order to achieve the twin objectives of efficiency and fairness.[26] In MacPherson, the High Court held that the trial judge should have intervened in the proceeding to the extent of holding, of his own volition, a voir dire to determine the admissibility of the unrepresented accused's statement to the police, the voluntariness of which was challenged by him. The trial judge did not offer to hold such a hearing and the accused did not seek it. Gibbs, C.J. and Wilson, J. said[27]:

"Particularly if the accused is unrepresented, once it appears that there is a real question as to the voluntariness of a confession tendered by the Crown, the judge must satisfy himself that the confession was voluntary, and if, as will usually be the case, this can only be done by holding a voir dire, he must proceed to hold a voir dire even if none is asked for ... We are not to be taken as suggesting that the trial judge must hold a voir dire on every occasion ... for it does not advance the cause of justice to allow a voir dire which is used merely as a fishing expedition, or a means of testing in advance the evidence of the Crown witnesses." (Emphasis added.)

135. The court also emphasised the obligation of the trial judge to ensure that the unrepresented accused is fully aware of the legal and procedural options that are open to him or her in the conduct of the defence. Gibbs, C.J. and Wilson, J., who considered[28] that a trial judge has an obligation to intervene in the proceeding where it is necessary "to ensure that the trial is conducted ... in accordance with the law", noted that the Court of Criminal Appeal in that case took the view that for the judge to have advised the accused that he might test the confession on a voir dire would have been to assume the role of an advocate. It seems that the intermediate appellate court was concerned about the disadvantages to the accused that might arise from a voir dire given that he could be cross-examined if he gave evidence. There was also concern arising from the admissibility of any such evidence at his trial.[29] But the learned Chief Justice and Wilson, J. said that "there should be no difficulty in explaining to an accused person (in the absence of the jury)" the choice open to him and the potential legal ramifications of either option. It seems, however, that their Honours stopped short of suggesting that the trial judge should explain to the accused the practical, forensic, repercussions of the options that were available to him, although it should be noted that their Honours went on to say[30] that there was "no limited category of matters regarding which a judge must advise an unrepresented accused".

138. Mason, J. also considered[31] that it is incumbent upon a trial judge to impart to an unrepresented accused such information as is necessary to ensure that a fair trial takes place. His Honour rejected the argument that the trial judge in that case ought not to have informed the accused of his right to have a voir dire simply because there was a risk that the accused, armed with knowledge which he otherwise took to be advice, might have embarked upon a course which would prove detrimental to his case. His Honour pointed out that the judge could have advised the accused of his rights while making it clear that the information was not to be regarded as advice upon which he must act. To illustrate this point, Mason, J. cited the decision of the Irish Court of Criminal Appeal in People v. Ainscough[32], a case in which the accused alleged that his confession had been improperly obtained. The trial judge informed the accused of his right to have a voir dire in order to question the relevant police officer as to the voluntariness of the confession. The accused chose to exercise this option and the evidence was deemed by the judge to be admissible. When the accused came to cross-examine the police officer, he neglected to question the officer as to the circumstances in which the confession was made. On appeal, it was held that the judge should have reminded the accused of his right to cross-examine the officer as to the context in which the confession was obtained.

141. Similarly, in MacPherson, Brennan, J. was of the view[33] that the duty of a judge to ensure that a trial is fair[34] entails the giving of advice to an accused as to his or her rights, particularly in relation to procedural rules which govern the admission of evidence. His Honour, like Mason, J. was at pains to point out that the provision of such information to the unrepresented accused did not amount to the giving of advice as to how he was to conduct his case.

144. Here, White's case was essentially that he had "discovered" God in about 1996 and, in accordance with His wishes, as he saw them, and the various passages in the Bible, he was justified in robbing banks and that all of this demonstrated his mental impairment. In those circumstances, I find it difficult to see how his criminal conduct before 1996 could be said to have been relevant to his defence. It seems to me that this evidence was irrelevant and inadmissible. I also have considerable reservations as to whether White should have been allowed by the trial judge to lead evidence of the armed robberies of which he was convicted. Arguably, such evidence was relevant to his defence of mental impairment, but, in my view, it is plain that its prejudice so far outweighed any probative value that it should have been excluded. True it is that if the judge sought to rule that White was not to lead such material that would have involved his taking the very unusual step of denying the accused the right to lead evidence which he claimed was relevant to his defence. And it is a nice question whether his Honour had the power to order the appellant not to give such evidence. On the other hand, it must be borne in mind that, unlike the situation in Gidley, White's prior convictions had virtually no probative value yet, as I have said, such evidence was of considerable prejudice to him. The prosecution had not relied on his previous convictions so that, again unlike the position in Gidley, there was no possible prejudice to White in not referring to them in his evidence. Given the very unusual circumstances of the case there is much to be said for the view that his Honour should have ruled that White could not lead evidence of his prior convictions post 1996, and certainly not those going back to 1971.

147. But it is not necessary to determine whether failure by his Honour to take any of the steps to which I have just referred resulted in a trial that was unfair to White, partly because these matters were not argued before us (and it is undesirable to rule on them in the absence of full argument) and partly because I have come to the firm view that the trial was rendered unfair to White for other reasons. First, I think the trial judge should have explained fully to White the prejudice that would flow from the evidence of his prior criminal conduct and, in particular, that it would far outweigh any possible probative value it might have. The material before us leaves me in considerable doubt as to whether White understood the extent to which his then proposed evidence would have prejudiced his case. In those circumstances, the learned trial judge should have given him a full explanation of these matters and, in that context, pointed out, with some force, the prejudicial nature and consequences of such evidence. In my view, this would not have amounted to the giving of impermissible advice to White as to the conduct of his defence. Secondly, I consider that his Honour should have explained in his charge to the jury that White's evidence of his prior convictions was led to demonstrate his mental impairment. Moreover, since the evidence was not relevant to any other subsidiary issue before the jury, such as the credit of any witness or any relationship between White and his alleged co-offenders, his Honour should have directed the jury that they were not permitted to reason that, merely because White had, in the past, engaged in armed robberies and the other criminal conduct that he had described to them, he must have conspired as the Crown alleged, or that he was the kind of person who was likely to have done so.

150. In the circumstances, although I understand the difficulties that confronted his Honour in the conduct of this trial which he otherwise handled with exceptional fairness and courtesy to White, I think that the failure to adopt the course which I have described resulted in an unfair trial. It follows that, in my view, White's conviction for conspiracy is intrinsically flawed.[35] It cannot be said that, had White received a fair trial according to law, a conviction was inevitable, or that he had not lost a real chance of being acquitted.[36] True it is that the Crown case against White was strong. It was based essentially on the telephone intercept evidence, the circumstances in which Piggin's car was intercepted by the police and the admissions which the Crown claims White made in his record of interview. At his trial, however, White did not concede that, when Piggin's car was intercepted by the police, he was on his way to Adelaide to commit an armed robbery there. Further, many of his answers in his record of interview which the Crown said amounted to admissions that he was a party to the alleged conspiracy, bordered on the equivocal. It was White's case that, when he was interviewed, he was under the influence of alcohol and that, in any event, the police effectively frightened and otherwise pressured him into making such admissions as he may have made to them. In the circumstances, although White's case could be viewed as weak, it could not be said that a jury, properly instructed, would have inevitably convicted him.

154. I now turn to deal with White's application for leave to appeal against sentence. His notice of application for leave to appeal specified one ground only, namely, that the sentence is manifestly excessive. On 4 August 2003, however, the following two grounds were added by leave of the Registrar, namely:

(2) His Honour failed to have sufficient regard to the principle of totality.

(3) His Honour erred in finding that there was no evidence that the applicant was suffering from a mental illness at the time of the offences**.**

Given that I consider that the conspiracy conviction should be set aside, and given that the sentences for the two sets of offences are inter-related, it will be necessary for this Court to re-sentence White on the armed robbery convictions. If one were to disregard, for present purposes, the sentence imposed on White in relation to the conspiracy count - five years' imprisonment, two years of which was to be cumulated on count 1 - it would mean that the total effective sentence imposed by the learned sentencing judge in respect of the armed robbery counts was 17 ½ years imprisonment. The question, therefore, is whether the individual sentences imposed in relation to each of the armed robbery counts are appropriate or whether some other, and if so what, sentences should be imposed. In that context it is convenient to consider first Mr. Dann's claim that the total effective sentence is unduly excessive in that it offends the principle of totality and is, in any event, manifestly excessive. It was also contended by counsel that his Honour should have found that White suffered from a mental impairment at the time of the commission of the offence and thus, the judge should have considered the relationship between his mental impairment and the offending conduct as well as whether general deterrence could be moderated and whether Dr. Barry-Walsh's report provided a basis for according White's sentence significant moderation.

160. 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.

163. His Honour concluded that, in all the circumstances, White was a professional armed robber who pursued his criminal activities over a considerable period with ruthlessness and for economic gain and noted that the proceeds of the armed robberies were used by him for his business and for personal purposes, including gambling and drinking. Far from being persuaded that White was mentally impaired in the relevant sense, the sentencing judge considered that he was an intelligent person and was capable of being a personable and convincing advocate, as was demonstrated by him during the trials. It must be borne in mind that his Honour was in a good position to judge White's disposition, having seen him over a considerable period during the trials as a litigant and witness.

166. In determining the sentence, his Honour took into account, in White's favour, his full admissions to the police at the earliest opportunity and that his decision not to challenge the armed robberies had minimised the involvement of civilian witnesses such that the primary focus of the proceedings was on the issues of his claimed mental impairment.

169. The question whether the principle of totality has been offended raises the question whether the total effective sentence is "just and appropriate" having regard to the total criminality of White's offending conduct[37]. In my view, as his Honour pointed out, the criminality of White's conduct during the course of the armed robberies was at a very high level. As Mr. Dann accepted, the offences were very serious - attracting a maximum penalty of 25 years' imprisonment - as was the offending. The armed robberies were planned with some care. They were also carried out with the use of firearms and the overt aggression displayed by White towards his victims had a significantly detrimental impact on them. That White has a long and serious criminal history was also relevant to the sentencing process as were the principles of special and general deterrence and the need to protect the community. In the circumstances, I consider that the total effective sentence fairly reflects the criminality of White's offending conduct. For like reasons, I consider that such a sentence is not manifestly excessive.

172. I mention for completeness that, given my view that it was well open to his Honour to conclude that White was not mentally impaired at the time of the offending, counsel's argument that the judge should have considered the relationship between White's impairment and the offending behaviour and whether general deterrence should be moderated must fail. As to whether Dr. Barry-Walsh's report provided a basis for according White's sentence significant moderation, it is plain from his Honour's sentencing remarks that he took those matters into account and there is no basis for contending that insufficient weight was given to them for sentencing purposes. I am of the view that the individual sentences that were imposed by his Honour in respect of the armed robbery counts were appropriate as were his orders for cumulation. I am also of the view that the total effective sentence is appropriate given the gravity of the offences and the offending conduct, the applicable sentencing principles and the personal and other mitigating factors referrable to White. Consequently, I would re-sentence White in accordance with his Honour's sentencing disposition and fix a non-parole period of 13 years.

176. Consequently, in my view, the applications by White for leave to appeal against his conviction on the armed robbery counts and for leave to appeal against the sentence imposed on him in respect of those counts should fail, although he should be re-sentenced as I have indicated.

179. For the reasons I have given, however, I think that White's conviction for conspiracy should be quashed and that a new trial be ordered in respect of that count. Whether such a trial proceeds is, of course, a matter for the Director to determine.

183. I now turn to Piggin. It will be recalled that, on 24 August 2001, he was convicted of conspiracy to commit an armed robbery of a jewellery store in Adelaide. I mention for completeness that when that occurred White had yet to be tried for the offence, Kennedy was in custody awaiting to be brought back to court to answer the charge and the other co-offender, Podwyszynski, had entered a plea of guilty on 24 April 2001 and was sentenced by another judge of the County Court to eight months' imprisonment which was wholly suspended for three years.

186. By notice dated 13 September 2001 Piggin sought leave to appeal against his conviction on six grounds and, on 5 August 2003, the Registrar gave him leave to add two further grounds. Thus, the eight grounds on which Piggin relies in support of his application are these.

1. That the learned trial judge erred in his findings as to the nature and extent of the evidence properly admissible that was capable of constituting "reasonable evidence" of the applicant's participation in the conspiracy alleged.

2. That the learned trial judge erred in finding that there was "reasonable evidence" of the applicant's participation in the conspiracy alleged.

3. That upon finding that there was reasonable evidence that the applicant was a participant in the conspiracy alleged, the learned trial judge erred in that he admitted into evidence the declarations of an alleged co-conspirator that were not in furtherance of the common purpose of the alleged conspiracy.

4. That the learned trial judge erred in not adjourning the trial prior to the opening of the Defence case so that the applicant could obtain his hearing aid and thereby not be prejudiced in his ability to participate in the trial and in his appearance before the jury having regard to the nature of the evidence called and the stage of the trial.

5. That the learned trial judge erred in not discharging the jury having regard to the course of the trial subsequent to the matters referred to in ground 4.

6. That the learned trial judge in his charge to the jury:

(i) erred in the direction given to the jury as to the use of prior inconsistent statements by having raised the issue of the relevant witnesses' truthfulness when this was not raised as part of the defence case or put to any witness.

(ii) erred in suggesting to the jury that the defence case was simply that the applicant was not involved in any unlawful plans.

(iii) erred in refusing to direct the jury as to the competing inferences that might be drawn from the evidence and which were consistent with verdicts of not guilty.

(iv) erred in his summary of the evidence when referring the jury to the chronological order of exhibits P5 and P6 (telephone intercept 182 and listening device tape 66 respectively).

(v) erred in his directions to the jury as to the weight that might be given to the evidence of the audiologist called as part of the defence case in circumstances where that evidence was not challenged.

(vi) erred in identifying the matters that might be considered in making any finding as to the "loud noise" (telephone intercept 65).

(vii) erred in suggesting to the jury that the evidence of the circumstances of the search of the applicant's car conducted consequent to his arrest would not assist the jury very much in its deliberations in circumstances where the applicant's knowledge of the firearms located remained in issue.

7. The verdict cannot be supported by the evidence.

204. At Piggin's trial, the Crown relied principally on the following evidence, namely, surveillance of the conspirators or some of them on 8 and 9 February 2000, the recorded telephone conversations between them or some of them on 9 and 10 February 2000 and the circumstances surrounding the interception of Piggin's car at 1.10 a.m. on 11 February 2002 heading in the direction of Adelaide, including the finding of the clothes, firearms and handcuffs to which reference has already been made.

207. After White and Piggin were arraigned in respect of the respective conspiracy counts, but before a separate trial was ordered for Piggin, it was contended on his behalf that certain parts of the telephone conversations constituted hearsay and were, therefore, not admissible against him. Further, it was said that there was no evidence to connect the weapons and other items found in the car with Piggin or from which it might be reasonably inferred that he had any knowledge of them. After hearing evidence on a voir dire his Honour ruled that Piggin participated in a number of telephone conversations and that many others were held in his presence and, consequently, those parts of the telephone conversations were admissible against him. His Honour went on to rule that such conversations, taken together with the circumstances relating to the interception of Piggin's car by the police, amounted to reasonable evidence that was capable of establishing on a prime facie basis that Piggin was a party to the conspiracy of the type alleged and that, therefore, what was done or said by his co-conspirators in the furtherance of the agreement, even in his absence, was admissible against him. I deal below, in more detail, with the telephone conversations and other evidence against Piggin and with his Honour's ruling. I do so in the context of analysing Piggin's grounds on which he relies in support of his application for leave to appeal against his conviction, to which I now turn.

Grounds 1 and 2 - errors as to reasonable evidence

211. The first two grounds were argued together. They attack his Honour's critical ruling to which I have referred, namely, that there was reasonable evidence that Piggin was a party to the conspiracy of the kind alleged and that, therefore, evidence of acts and declarations of his co-conspirators - even done or made in Piggin's absence, in the furtherance of the conspiracy were admissible against him. Importantly, his Honour's ruling meant, as I have said, that the conversation of 9 February recorded on Master Tape No.66 to which I have referred was admissible against Piggin notwithstanding that it occurred in his absence.

214. As the High Court[38] explained in Ahern v. R.[39] an act or statement of a conspirator may be admissible to prove the fact of the conspiracy and, by way of admission, the participation of that conspirator in it. But, subject to the exception which the court described, it said that the acts or statements of the conspirator about another person may not be admissible to prove that person's participation in the conspiracy because such evidence would be hearsay or the equivalent of hearsay. Their Honours drew a distinction between the existence of a conspiracy and the participation of each conspirator in it and explained that the fact or the existence of the conspiracy can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.

217. As their Honours observed, however, evidence of the separate acts of the alleged conspirators will not always prove both the fact of a combination and their participation. Nevertheless, said their Honours, because of the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others, anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime.

220. Thus, in order for such hearsay evidence to be admissible against a person who is alleged to be a co-conspirator, what must be established is that:

(a) there was in existence a conspiracy of the type alleged;

(b) the acts or statements of the conspirator were done or made in furtherance of its common purpose; and

(c) there is reasonable, or prima facie, evidence, independent of those acts or statements, that the person in question was also a participant in a conspiracy of the type alleged.

Whether such reasonable evidence exists is a question solely for the trial judge. It is then for the jury to determine whether they are satisfied beyond reasonable doubt that such an unlawful combination existed and, if so, whether the accused was a party to it.[40]

226. It was not contended before us that the requirements in (a) and (b) above have not been satisfied by the evidence led by the Crown. This is not surprising given, as I have mentioned, the telephone conversation between White, Kennedy and Podwyszynski on 9 February 2000 which was recorded on Master Tape No.66. As I have already mentioned, it is his Honour's ruling that the third requirement has been satisfied that has been the subject of the attack by Mr. van de Weil. Before analysing counsel's argument in that regard I note the helpful elaboration of the third requirement by Vincent, J. in Pektas[41]:

229. "The third prerequisite involves the concept of `reasonable evidence'. I understand this expression to refer to evidence, independent of the acts and declarations of alleged co-conspirators, which at minimum is capable of supporting a finding that the accused was a participant in the unlawful enterprise, that is, it is required that a prima facie case be made out independently of those acts and declarations.".

232. Thus, under cover of grounds 1 and 2, it was claimed on behalf of Piggin that, first, his Honour applied the wrong test in determining what that "reasonable evidence" must establish before Piggin could be regarded as a relevant co-conspirator. It was claimed that his Honour wrongly considered it sufficient if such evidence merely connected Piggin with an unlawful conspiracy. Mr. van de Wiel argued that his Honour had to be satisfied, on a prima facie basis, that such evidence was capable of establishing, not just that Piggin was connected to a conspiracy, but that he was a party to the alleged conspiracy. It was next said that his Honour erred in concluding that the telephone conversation of 10 February 2000, which involved Piggin and his alleged co-conspirators (which was recorded by way of telephone intercept No.65), demonstrated that a firearm was discharged by Piggin during that time and that White was then in possession of weapons. It was claimed that it was on that erroneous basis that the trial judge considered that Piggin knew that firearms were carried in his car at the relevant time. Such errors, it was argued, vitiated his Honour's ruling to which I have referred. Counsel submitted that but for the finding about the discharge of the firearm, there was no evidence that Piggin had any connection with the weapons that were found in his car when it was intercepted by the police and that, in any event, the evidence does not establish that Piggin was a party to a conspiracy to commit an armed robbery.

235. In my view, there is no substance in the claim that his Honour applied the wrong test in determining whether the "reasonable evidence" was sufficient for relevant purposes. It is evident from his Honour's impugned ruling that, in describing the relationship between Piggin and his co-conspirators, the judge used the words "connected" and "participated" interchangeably and that the word "connected" was not used by him merely to denote some tenuous connection between Piggin and the relevant conspiracy; it was used to articulate his Honour's conclusion that Piggin was a participant in it. Further, there is no basis for counsel's claim that the conspiracy to which Piggin had to be a party for relevant purposes was the alleged conspiracy - Ahern makes it apparent that it is sufficient if the relevant connection is with a conspiracy of the type alleged; the High Court did not impose the requirement contended for by counsel (as I understood his argument) that the participation be in the alleged conspiracy. It is plain enough from his Honour's ruling that he was concerned with whether the reasonable evidence was capable of establishing a relevant connection between Piggin and a conspiracy of the kind alleged.

238. I now turn to consider the claim that his Honour erred in his interpretation of telephone intercept No.65. More particularly it was said for Piggin, as I have explained, that what was conveyed through the recorded telephone intercept did not disclose that Piggin discharged a firearm during the period of the recording or that White was then in possession of weapons. It seems clear enough from his Honour's ruling that the basis on which he arrived at his impugned decision on this issue was the combination of the following matters that his Honour considered were apparent from the recording. First, there was, as the transcript of the recording describes, a "loud noise in the background" (which his Honour took to be the sound of a discharge of a firearm). Then there is the recording of somebody in the background - his Honour said it was probably Piggin - saying "all fucking died" and "we all fucking shot ourselves". White then said to Podwyszynski: "Oh, this bloke's [whom he later identified as Piggin] decided to have a party. He frightened the shit out of us." Not long prior to this part of the conversation, Piggin had effectively agreed with White's claim that he was "on a mission" and then said: "Have a look at him, he's dressed like Rambo at the moment ...". It is convenient to mention at this point that, a little after White's reference to being "frightened", there is a discussion between White and Podwyszynski about them having used handcuffs as a sex aid. White then brings Piggin into the conversation by referring to the handcuffs "as your handcuffs". Piggin does not deny that claim and effectively responds to him by speaking of the handcuffs "going out of the window".

241. It was argued for the appellant, however, that his Honour's conclusion that a firearm was discharged was flawed because it was based, at least in large part, on the false assumption that Piggin said "We all fuckin' shot ourselves". In fact, it was said, the tape makes it obvious that the word "shat" and not "shot" was used in that sentence. Counsel also pointed to the fact that, according to the transcript, White had earlier said that "he's got fire crackers" which, it was said, suggested that the noise heard by the judge was that of fire crackers or a fire cracker, going off. It was because the sound gave them a fright, said counsel, that Piggin said "we ... shat ourselves". Mr. van de Wiel also argued that his Honour was not justified in using Piggin's reference to "Rambo" in relation to White as suggesting that White was carrying a firearm if for no other reason that that Piggin did not say that White was "armed" like Rambo, but only that he was "dressed" like him.

244. I have carefully listened a number of times to the disk which contains a recording of this telephone conversation and it seems to me fairly clear that the disputed words are "We ... shot ourselves". Shortly before that is said a sound, like a loud sharp crack, can be heard which is consistent with the discharge of a firearm. As to Piggin's reference to White being dressed like Rambo, I doubt that this observation was intended to be confined, as counsel would have it, to White's attire. It was more likely, I think, to have been a reference to White's visible possession of a weapon. In the circumstances, I consider that it was open to his Honour to be satisfied that the evidence to which I have referred reasonably establishes that a firearm was discharged by Piggin during the above telephone conversation and that White had possession of a weapon. In light of the other evidence, to which I will refer shortly, I think that it was also open to his Honour to be satisfied that there was reasonable evidence that Piggin was aware, on the eve of his departure to Adelaide with White and Kennedy, that firearms would be carried in his car.

247. But even if, contrary to my view, his Honour erred in his conclusion that Piggin discharged the firearm and that White was in possession of a weapon during the telephone conversation, I think that there was, nevertheless, a significant amount of reasonable evidence that relevantly linked Piggin to the conspiracy in question. For example, in the conversation of 9 February 2000, that was recorded by way of telephone intercept No.182, Piggin effectively acknowledged to White and Kennedy that he was "pleased" and "keen" that they were leaving for Adelaide on the following day. Later that day, a listening device that was located in Podwyszynski's house in Chewton [recorded by way of Master Tape 66] recorded a conversation between White, Kennedy and Podwyszynski in which they spoke of White and Kennedy driving to Adelaide with "Tony" [Piggin] and committing an armed robbery in a jewellery shop in O'Connell Street Adelaide - "bailing up" the occupants, tying them up and taking cash and jewellery. The recorded conversation also detailed them leaving the next day to travel to Adelaide and taking with them a 12 gauge shot gun concealed in a soft toy. This conversation clearly establishes a conspiracy of the type alleged and what was said in the furtherance of it. Although it cannot form part of the evidence to which one can look to see if Piggin was a participant in the criminal combination of the kind alleged because he was not a party to the conversation, if such a connection is established, that evidence would be admissible against him.

250. Two further telephone conversations between some of the conspirators, held on 10 February 2000, were recorded pursuant to telephone intercepts Nos.65 and 218. I have already referred to part of the first conversation in the context of discussing whether it was open to the judge to conclude that a firearm had been discharged during that conversation. In addition, the following matters were discussed. I should say that the recording makes it clear that the conspirators had consumed some alcohol. As to the first telephone conversation, I have recounted the substantial relevant part of it. In addition White effectively spoke of Piggin receiving one-third of the share of the proceeds and, by reference to him and probably Kennedy, he said: "We're all together, mate ok." Piggin repeated, we are all together now and spoke of those present as "winners". The conversation also makes it clear that the parties were speaking about those matters in guarded terms. Thus, for example, Podwyszynski said to Piggin "Are youse leaving for you know where today or what?" and Kennedy spoke of going "west" (rather than Adelaide). There were other aspects of this set of telephone conversations which his Honour examined with his customary care and which need not be detailed but which are consistent with the participants taking part in the alleged criminal combination.

253. The second recorded telephone conversation that was held on 10 February 2000, commencing at 7.30 p.m., was between Podwyszynski and each of Piggin and White. In the course of the conversation Podwyszynski asked Piggin to give a message to White that the loan of $200 (which he required to finance the trip to Adelaide) was available, to which White responded that he will repay it "ten fold" and will "pick it up" (at Newstead).

256. Thus, putting aside the question whether the telephone conversation disclosed Piggin's awareness that White was in possession of firearms on 9 February 2000, such conversations do establish the following:

(a) Piggin was aware on 9 and 10 February that he would soon be travelling to Adelaide with Kennedy and White.

(b) Piggin knew that what was proposed would need to be discussed discretely because the planned activity was unlawful.

(c) Piggin knew that the activity involved him in working as a member of a team with White and Kennedy and that there would be a substantial financial reward.

(d) Piggin was a willing participant in the venture, and was to make a contribution to it, as is evidenced by his willingness to drive the others to Adelaide.

Additionally, the circumstances of the interception of Piggin's vehicle by the police gives rise to the inference that he was a participant in a venture of the kind alleged, even if the question of his prior knowledge of firearms is put to one side. This is because the three men were, at that time, on their way to Adelaide carrying clothes that could be used to disguise them, such as balaclavas, and handcuffs that were located in the car belonging to Piggin. Unexplained and given the earlier telephone discussions (excluding that recorded on Master Tape No.66), the only inference that could be sensibly drawn from those circumstances is that the three men were on their way to Adelaide to carry out an unlawful act which involved the use of firearms and handcuffs, namely, an armed robbery.

262. In my view, therefore, it was open to his Honour to conclude, as he did, that there was reasonable evidence that was capable of establishing that Piggin was a party to a conspiracy of the kind alleged.

265. In the circumstances, I consider that grounds 1 and 2 should fail.

269. These grounds were argued together. In that context it was claimed for Piggin that his Honour erred first, in refusing to adjourn the trial for a brief period to allow him to obtain his hearing aid from his Richmond home thereby prejudicing him in the conduct of his case and, secondly, in not discharging the jury having regard to the course which the trial took subsequent to his Honour's refusal to grant this adjournment. The circumstances leading to these complaints were as follows. First, it should be noted that during the course of his trial, Piggin was on bail. Next, it appears that an argument that was sought to be advanced at trial was that at all relevant times Piggin's hearing was impaired and that because of his impediment, he could not hear what was being said over the telephone during the recorded conversations. To that end, it seems that counsel was endeavouring to mount the argument that the telephone conversations made in Piggin's presence should not be admitted against him. Piggin's trial counsel proposed to call an audiologist on this issue and, in the circumstances, it was arranged that she would give evidence at the commencement of what turned out to be the first day after the Crown had closed its case. Piggin, however, did not appear when the matter was called on for hearing at 10a.m. on that day and, in order not to waste time, the judge suggested that a number of matters be dealt with in the absence of Piggin and the jury. With the agreement of Piggin's counsel his Honour dealt with certain aspects of his proposed direction and gave a ruling in relation to a submission made by counsel on the previous day. Further discussion then followed, still in the absence of Piggin, which need not be detailed. He eventually arrived at approximately 11a.m. and gave an explanation, and tendered an apology, for his absence which the trial judge accepted.

272. It seems, however, that Piggin had left his hearing aid, which he had worn during the trial, at his home and his counsel sought, what he described as a short adjournment to enable Piggin to retrieve it. Counsel explained that Piggin was reluctant to use headphones that were available to him in the dock because he had not previously worn them and thus was concerned that the jury might be puzzled why he commenced wearing the headphones when his audiologist was giving evidence. Counsel contended that this might cause the applicant prejudice, although what that prejudice might be was not explained. Counsel emphasised that without the benefit of the hearing aid or the headphones the applicant could not meaningfully follow the proceeding. His Honour, however, considered that he should not delay the trial further "for another hour or so while your client goes home" and refused to adjourn the trial, noting that it was a matter for Piggin whether he used headphones. Piggin, however, elected not to use them.

275. 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.

278. In support of the contention before us that his Honour's refusal to grant Piggin an adjournment to obtain his hearing aid was unreasonable and "contrary to law", Mr. van de Wiel argued that failure by Piggin to have a hearing aid when the issue of his defective hearing was the subject of evidence by his expert witness, "must have compromised the applicant's credibility enormously". How that credibility was compromised, however, was not made clear. Whether or not an adjournment of a proceeding should be granted is a matter that is within the unfettered discretion of the trial judge, and an appeal court will only interfere with the judge's decision on this issue if error of principle on the judge's part has been demonstrated or if the decision is plainly wrong or, in a criminal case, where the exercise of discretion has rendered the trial unfair to the accused. In McColl v. Lehmann[42], Kaye, J. said[43]:

"The decision whether to accede to or refuse the application for adjournment of the hearing was within the Magistrate's discretion. An appellate court will rarely interfere with a trial judge's exercise of discretion upon such an application: Bloch v. Bloch [1981] HCA 56; (1981) 55 A.L.J.R. 701, at p.703; [1981] HCA 56; 37 A.L.R. 55, at pp.58-9, per Wilson, J. However, the result of refusal to grant an adjournment might be to prevent the party seeking it from presenting his case or defence; in some circumstances such result could constitute an injustice. This is so because it is essential to the fair trial of an action - whether civil or criminal - that all parties are able to present their case as fully as necessary and within the limits of the law. To overcome an injustice so brought about or threatened, an appellate court will interfere with the trial judge's discretion. This principle was expressed by Atkin L.J. in Maxwell v. Keun [1928] 1 K.B. 645, at p.653, as follows: `I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so.'" (Emphasis added.)

282. It is true that Bloch and Maxwell were civil cases but, as is evident, his Honour cited them in the context of an appeal from the Magistrates' Court where the applicant was convicted of an offence and sought to have the decision reviewed. In my view, the principles referred to in those cases operate also in respect of an application to adjourn a criminal trial. See, for example, Dietrich[44], R. v. Bollen[45] and Osborne[46].

285. In my view, Piggin has not demonstrated that he suffered any injustice by reason of the judge's decision not to hold up the trial any further in order to allow him to go home to obtain his hearing aid. Piggin had already delayed the resumption of the trial by approximately one hour because of his late arrival. An adjournment would further delay the proceeding for about another hour, if not more. Such a period could not be considered to be insignificant in all the circumstances. His Honour was entitled, in my view, to take that factor into account as well as the fact that the headphones were available to Piggin and that the jury could have been told that Piggin, who relied on his imperfect hearing as part of his defence, had left his hearing aid at home and was, therefore, compelled to wear earphones. If anything, such an explanation might have gained him sympathy from the jury. If there was any prejudice to him from not being able to participate fully at the trial - and none has been articulated - that would have been a product of his election not to use the available headphones. In the circumstances, I am not persuaded that his Honour erred in the exercise of his discretion to refuse the adjournment application.

288. I am of a like view in relation to his Honour's decision not to discharge the jury as sought by Piggin's counsel. It is plain that there was no high degree of necessity to discharge the jury.[47] In my view, there was no looming miscarriage of justice that required such a course to be taken.

295. Under cover of this ground it is claimed that the verdict cannot be supported by the evidence. In my view, there is nothing in this point. The totality of the surveillance, telephone intercept and listening device evidence, to most of which I have referred, and the circumstances of the interception of Piggin's car by the police, constituted a strong Crown case which was open to the jury to accept.

Ground 8 and part of Ground 6 - the verdict was unsafe and unsatisfactory

299. It was submitted by Mr. van de Wiel under these grounds that his Honour's direction or explanation to the jury as to the drawing of inferences, and in particular, the appropriate basis on which they could be drawn, would have confused them and this, it was said, led to the danger that the verdict was unsafe and unsatisfactory. In my view, however, and without going through his Honour's examples to the jury of how inferences might be properly drawn, I do not consider that they would have confused the jury as is claimed by counsel. Importantly, his Honour gave the jury a direction to the effect that they could not properly draw inferences of fact unless they were satisfied beyond reasonable doubt as to the existence of those facts and that the inference that was sought to be drawn was the only reasonable inference that could be drawn from such facts.

302. Mr. van de Wiel further complained that his Honour misstated the defence case and that the jury may have understood his Honour to have been ridiculing it when he dealt with a point made by Piggin's counsel, namely, that there was no forensic (or other) evidence connecting Piggin with the weapons found in his car. The judge told the jury that the defence was effectively asking them to draw from that fact the inference that Piggin had no involvement with the weapons and that he was simply driving the two passengers to Adelaide without himself being involved in any unlawful plans they may have had. Piggin's counsel argued at trial that there were other possible explanations as to why he may have been driving Kennedy and White to Adelaide other than his participation in the plan to commit an armed robbery and that his Honour failed to put such matters to the jury. For example, it was said by counsel below that Piggin may have been involved with White and Kennedy in a plan to commit an offence involving firearms other than armed robbery, such as aggravated burglary. Such a conspiracy was not of the kind alleged and since it was open to the jury to draw an inference to that effect, his Honour's claim that the only inference on the defence case was, as I have said, that Piggin was merely driving his two colleagues to Adelaide, was wrong and effectively ridiculed his case. In my view, however, such a possible explanation would have been fanciful and no criticism could be made of the judge for not putting it to the jury. After all the applicant's case was simply that, on the evidence, he had no connection with the firearms found in his car and that he was not party to the conspiracy to commit the armed robbery. The logical consequence of such a case must be that he was simply driving his colleagues to Adelaide. In my view there is no basis for counsel's contention that his Honour's reference to this inference amounted to ridiculing of the defence case.

305. But even if it could be said that his Honour's reference to this inference was somehow inappropriate and potentially prejudicial to the applicant, no injustice flowed from that aspect of his Honour's charge. First, the jury were told that the decision whether a proper inference could be drawn was one for them alone, and secondly, his Honour pointed out to them, immediately after the impugned passage, that the defence did not have to prove anything and that when it was suggested on Piggin's behalf that there were inferences that could be drawn from the facts, this was done simply to highlight that the inferences that the Crown sought to draw were not the only reasonable inferences that could be drawn from the facts. Moreover, a little later in his charge, the judge told the jury that the critical matter that they had to determine was whether they were satisfied beyond reasonable doubt that Piggin was a party to the agreement to participate in the illegal enterprise; that he did not simply drive his colleagues to Adelaide but drove them there for the purpose of the three of them participating in holding up a jewellery store in Adelaide using firearms.

308. It was further claimed that what his Honour told the jury about the location of the firearms belittled the defence and misstated its position. In that regard, his Honour suggested that the precise location of the firearms in Piggin's car when it

was stopped by the police - whether they were on the back seat or on the floor of the car - might not be very relevant to their task. Counsel said that this belittled the defence position in respect of Piggin's connection with the firearms. But, putting to one side his Honour's commonsense observation, the judge made it quite plain to the jury that it was a matter for them to decide whether those issues were of any relevance.

312. In my view, having reviewed the evidence, I consider that the jury's verdict was well open to them and that it is not unsafe and unsatisfactory.

315. Consequently, I would dismiss the application.

321. For the reasons given by Chernov, J.A., I agree that White's application for leave to appeal against his convictions in the first trial should be dismissed. I also agree with his Honour's conclusion, and for his reasons, that White's appeal against the sentences imposed, and the total effective sentence, for the armed robbery offences on the first trial should be dismissed. Having regard to my conclusion as to the outcome of the application for leave to appeal against conviction on the conspiracy count, it will become necessary to re-sentence White on the armed robbery counts, and I will deal with that question later.

324. For the reasons given by Chernov, J.A. I agree, too, that ground 1 of White's appeal against conviction on the conspiracy count in the second trial fails. I also agree that ground 2 of White's application for leave to appeal against conviction on the conspiracy count has been made out. The application should be granted, the appeal be allowed, the conviction be quashed and a new trial be ordered. Whilst I agree substantially with the reasons of Chernov, J.A. as to ground 2, and in particular agree that a direction was required to be given to the jury concerning the

evidence led by the applicant as to his prior convictions and previous bad character, I have reached a different view to his Honour as to the content of an appropriate direction.

328. I am not persuaded that a trial judge, in the performance of his or her over-riding duty to ensure a fair trial, would be entitled to disallow the leading of relevant and probative evidence by an accused person on the basis that it would not be in the best interests of the accused to do so. If an accused person chose to take a calculated risk of leading apparently prejudicial, but relevant, evidence, having decided that such a course advanced his or her defence, then in my opinion the trial judge (whatever efforts might be made to dissuade the accused from that course) could not exclude the evidence in such circumstances. The prohibition contained in s.399(5) of the Crimes Act 1958 of the cross-examination of an accused person for the purpose of disclosing prior convictions or to establish that he is of bad character does not apply to the leading of evidence in chief from the accused to that effect[48].

331. In the present case the decision of the applicant to lead evidence of his prior convictions was certainly calculated. Notwithstanding the fact that the applicant intended to argue before the jury that he was mentally impaired, the judge seems to have been of the opinion that the applicant knew what he was doing, and the risks he was running, but saw tactical benefits in his intended approach. The applicant, having been told that the prosecutor would not be allowed to do so, said that he himself intended to tell the jury of his prior convictions, but to also tell them that if they convicted him (rather than return a verdict of mental impairment) he would go to gaol for many years. That fact was irrelevant to the jury's deliberations[49] but the applicant no doubt intended to gain the sympathy of the jury in that way.

334. It is to be kept in mind that by the time of this second trial the judge had had a very good opportunity to observe the applicant and to assess his intelligence and astuteness, and he was aware that the claim of mental impairment raised in the first trial had been rejected by the jury. It is against the background of that knowledge of the applicant that the trial judge's comments, that his proposed course was "entirely a matter for you", must be judged.

337. However, no matter how astute the applicant may have thought himself to be, a reading of the transcript shows the limitations of his tactical appreciation of the dangers of his proposed course. The judge, rather generously, did not deny the applicant the right to address the jury as to the likely penalty he would receive if convicted, but warned him that anything he said might cause the prosecutor to respond. The following exchange took place:

"HIS HONOUR: If [the prosecutor] thinks that you're doing something where you might not realise the consequences, he may ask me to send the jury out so that you can be made fully aware that - it sounds to me as though, from what you've said this morning and what you've said previously, that you are going to roam pretty far and wide in the matters that you tell the jury. ACCUSED: Yes, Your Honour. HIS HONOUR: So, I don't think you can rely on [the prosecutor] to alert you because in the discussions we've already had, it's obvious that you know the limitations on the Prosecution and if you want to go beyond the evidence that would normally be led in this case, you really take the consequences upon yourself. ACCUSED: Yes, Your Honour, thank you. HIS HONOUR: All right, are there any other matters you want to raise? ACCUSED: Just that point with telling the jury that I'll be in store for quite a deal of imprisonment. Can I say that or several or many or several years. HIS HONOUR: I think that's entirely a matter for you. As I indicated to you, I am happy to assist you in matters of procedure but it's very difficult for me to be other than impartial and to offer you advice which is basically matters of judgment as to how you should run your case. That's really not my role but, having said that, if there are matters you want to raise with me at any time and I will send the jury out and we can have a discussion in their absence."

341. It may well have been that the judge considered that the somewhat unorthodox course which the applicant intended to pursue was not without prospects of success on the defence of mental impairment and that the applicant's prospects of being found not guilty of the conspiracy were otherwise pretty slim[50]. The applicant made an opening address, which is not transcribed but which apparently confirmed that the applicant's prospects of outright acquittal were indeed slim, and that an unorthodox defence approach to the question of mental impairment might well have better prospects of success. The judge told the jury that what they had just heard the applicant say suggested that the only defence which was being pursued was that of mental impairment.

344. If the applicant was determined to pursue the course he outlined then it is likely that he would not have been dissuaded by anything the judge said to him. Nonetheless, and while appreciating that the judge's responses during discussions with the applicant have to be considered in the light of the unusual matters discussed above, in particular his Honour's previous dealings with the applicant, it is my opinion that his Honour ought to have more forcefully and fully explained the danger of the course which the applicant proposed to adopt. The defence of mental impairment had failed at the first trial, it not being supported by the evidence of Dr Barry-Walsh, and in sentencing the applicant after the second trial concluded his Honour rejected the contention that he had suffered a psychiatric illness at any relevant time. He accepted that he had been significantly depressed in 1996, but not later. His Honour said that the applicant was an intelligent man and a convincing advocate in conducting his own defence. However, even assuming that the proposed defence approach was a considered and rational one it seems highly likely that the applicant lacked a full appreciation of the evidence which he might allow the prosecutor to introduce into the trial. In due course the prosecutor led evidence of the previous armed robberies, including video film of their commission, which must have been extremely damaging to the applicant's cause, including his defence of mental impairment. As the judge rightly said, the trial judge cannot assume the role of legal adviser to an accused person, but in my view there was a need for a more active role to be taken, albeit falling short of legal adviser, to dissuade the applicant from adopting an approach which had the potential to introduce such damaging evidence.

347. I have reached the conclusion that a direction was required in this case but I am not persuaded that the judge was bound to give a direction in the terms that Chernov, J.A. suggests were appropriate. In particular, I do not consider that the evidence of the applicant's prior convictions was irrelevant to the determination of the conspiracy count save for the purpose of determining the defence of mental impairment.

350. The evidence of his prior convictions was material on which the Crown was entitled to rely in proof of guilt. The applicant certainly considered that it was relevant to his defence of mental impairment, to establish that he had been acting under delusions deriving from passages in the Bible when he committed offences of armed robbery after 1996. In his very long statement from the witness box which constituted his evidence in chief the applicant gave the jury an elaborate account of the impact on him of being baptised and reading the Bible from about 1996.

353. The applicant first told the jury of his early life and of being assaulted by his violent, psychotic father. He said that his father had received electric shock treatment and was schizophrenic He said, in effect, that he started committing crimes when he was young in response to this brutal treatment. He also witnessed brutal assaults on his mother. He described the death of his mother and in short order the break up of his then marriage and separation from his child and was "totally broken down" for three months. He had been using amphetamines, as had his wife during these years. He then started a new relationship which lasted until 1985 but once again that broke down and in an emotional state ("I was . . . just totally destroyed") and wandering the streets he then committed armed robberies using an imitation pistol. Upon his partner learning he had money from the armed robberies she agreed to resume the relationship, which continued until he was arrested and upon conviction served five years imprisonment. Upon his release he worked for a while then met former prisoners, got back on to drugs and agreed to participate in armed robberies. He was arrested and unsuccessfully ran a defence of automatism, based on his drug use. He then was sentenced to seven years with a five year non parole period and was released in 1994. He was depressed, considered his life a failure, was prone to crying fits, was living on the streets and was acting irrationally. He saw himself becoming his father, and then he met a man who introduced him to the Assembly of God Church. He was in hospital awaiting an operation for a back injury and he started to read the Bible. He was baptised and at Christmas 1996 the son of his former partner was arrested on a sexual offence charge for which he could not get legal aid.

356. At about this point in his narrative the applicant sought leave to tender his criminal history. The applicant then resumed his evidence and read lengthy passages of the Bible to the jury and explained that the Book of Revelations convinced him that he had to deal with "the beast". He described various hallucinations he experienced. He understood that he had been "chosen". He learned that the charged youth had received death threats in prison so it became urgent to get legal representation. The boy's mother suggested he rob a bank and he agreed. The series of bank robberies commenced that were the subject of the first presentment. He explained to the jury that it was his belief at that time that banks were evil and would not be saved at the end of the world (which was due in 2000), thus robbing them did not matter. In choosing to rob banks he understood that he was simply utilising the skills he learned by virtue of his unfortunate upbringing. He gave the jury an explanation for the methodology he employed in the robberies and explained that he had used the proceeds for the legal assistance of the young man but also set himself up in a business. He also robbed TAB agencies. He was living in "a period of unreality". He said that he was fixated on getting money for the purpose of buying land and had contemplated doing so by robbing an elderly woman, but instead robbed another bank.

359. The applicant then took the jury through the surveillance tapes relevant to the conspiracy charge. He said he was confused and under the influence of alcohol at times but said that some of his statements were references to the Bible. He was paranoid and suicidal and got the idea from others about a robbery. He said he had a gun because he was afraid that police were out to shoot him and he would use it to shoot himself.

362. At one point the applicant said to the jury that: "I'm not being selfish in pleading not guilty here and I'm not, you know, stupid enough to know that I haven't been convicted on nine armed robberies that led up to this." He explained that he was pleading not guilty because he had become delusional and added: "(T)here's mental illness in my family and my brother is psychotic and is on tablets and - and my father, of course, he was - he later went on to become schizophrenic". He said:

"My problem is that I haven't - as I see it, my problems haven't been come to attention, like I'm the only one that goes to gaol, and so I was saying that a criminal - well, you know, well maybe I was earlier when I was stupid enough to - to that lots of things, but even then I was depressed. When I robbed that first service station there was something severely wrong".[51]

366. Thus, it was the applicant's contention that to understand what he was doing when he was heard speaking on the surveillance tapes for the conspiracy count (which he had played at length to the jury, and which he tendered) he was then acting under the same delusions which had compelled him to commit armed robberies after 1996. He was providing the jury with his entire life story and saying in effect that he was probably mentally ill right from the start of his criminal career and was certainly so both when he committed armed robberies and at the time of the conspiracy allegation. He was wanting to advance a defence of mental impairment knowing that the witness he proposed to call, and did, Dr Barry-Walsh would deny that he was mentally impaired. The applicant was, therefore, setting the scene with the jury for his later attempt to discredit the person he was obliged to call as his own witness. As he told the judge, he had to do because he had not obtained any other psychiatric witness.

369. In cross-examination the applicant conceded that he had been armed with a shotgun hidden in a black bag when he travelled to Melbourne with Peter Kennedy on Wednesday 9 February 2000 and that Kennedy was then armed with a .22 Ruger pistol which was secreted in a toy monkey. He said that the shotgun was the one he had used for a previous armed robbery in 1999. In the course of cross-examination as to his use of the same shotgun for previous crimes, the applicant objected to the questions and in the absence of the jury asked whether the prosecutor was entitled to put those questions to him[52]. He said that he had been convicted of the bank robbery about which he was being questioned and asked how was the fact that he had used that shotgun relevant to the present case? The judge said that this issue had been earlier discussed with the applicant and that the applicant had deliberately raised the question of his "activities, at least since 1996", and specifically this bank robbery, "as going to the issue of whether you satisfied the defence of mental impairment". His Honour ruled that that had opened the topic for cross-examination.

372. When the applicant was questioned about the nine armed robberies between 1997 and 1999 the prosecutor suggested that the motive for them was simply to get money. It was suggested that that was also the motive for the conspiracy. The applicant said that he did not know what his motive was and agreed that the surveillance tapes recorded him talking about buying a block of land and a Porsche. He said he was drunk when he said those things and that the proposed robbery in Adelaide "wasn't a crime to me". His recorded discussions concerning the proposed Adelaide robbery were conducted when "I don't think I had any sense and composure then whatsoever." When he agreed to do the armed robbery in Adelaide he thought that perhaps he was just pretending to be a criminal. As to the conspiracy he said "I can't say it's not an agreement but there - but I can say if I had a bet on it, it wouldn't have happened". That was because he did not approve of the plan to tie up the shop staff. He thought that perhaps what would have happened was that he would have suggested that instead of robbing the jewellery store he should rob a bank and then return to Melbourne by train, leaving the others to do whatever crime they wanted.

375. In these circumstances, if the jury was to be told that the evidence of his prior armed robberies was only relevant to the defence of mental impairment then a curious situation would have arisen. It was the Crown case that the previous armed robberies were not committed by a mentally impaired person but by a person using a methodology which reflected rational thought. If the applicant chose to refer to the armed robberies in order to demonstrate that he was then mentally impaired, and had thereafter continued to be, then the Crown was entitled to prove that he was neither then nor now mentally impaired. If accepted, that would leave the jury with a sane accused person, who had never denied that he was party to the conspiracy for which he was charged. The very attack of the Crown must inevitably have been, in effect, that rather than acting under some Biblical delusion the applicant was simply an armed robber, then and now.

378. Where the applicant was asserting to the jury that by virtue of his religious delusions he had a propensity to commit armed robberies in service to "the beast", then it would have been somewhat futile to give the jury a direction that they could not treat the previous armed robberies as demonstrating a propensity to commit such crimes by virtue of more prosaic motivations.

381. Once all of the evidence was admitted then the question arose whether a direction was required to be given to the jury as to the use they could make of it. In his reasons Chernov, J.A. concludes that the jury ought to have been told that they could not have regard to the applicant's criminal history so as to conclude that he was the type of person who would have committed the conspiracy alleged on the presentment, and that they should have also been directed that the evidence could only be used for the purpose of determining the question of mental impairment. With respect, I am not persuaded that such directions were appropriate or could have been effective. The real risk of the evidence to which the jury did need to be alerted was that the jury might decide that because he committed previous offences he must have committed this one, irrespective of the state of the evidence of his participation in the conspiracy.

384. Where the accused leads evidence of prior convictions in order to support his defence that evidence could be used by the jury as evidence tending to establish his guilt of the offences charged: see B. v. The Queen[53]. Once admitted, the evidence in my view, could not be said to be relevant only for the purpose of the mental impairment defence and not also for the purpose of proof of the conspiracy. The evidence was highly relevant to that end, in the first place because it showed a modus operandi which was consistent with the circumstantial evidence as to the charged offence. But, additionally, it was, indeed, evidence of propensity to commit armed robberies.

387. As to the conspiracy to commit the Adelaide armed robbery the applicant appears not to have seriously contested the evidence of his involvement in the conspiracy but, instead, contended to the jury that he was still mentally impaired when the offence of conspiracy was said to have occurred. The judge noted the issues raised in the applicant's evidence and told the jury that they had to be satisfied that his participation in the conspiracy was proved, but the charge primarily was concerned with the mental impairment defence.

390. Evidence of prior convictions is excluded from trials not because it has no probative force but because it is so prejudicial to the accused.[54] On the other hand, evidence of good character is both probative and admissible, because it tends to prove that the accused was not a person likely to commit the offence[55]. There is no policy reason for excluding good character evidence.

393. No direction, at all, was given in this case as to the evidence of prior convictions and bad character. His Honour may well have concluded that none could sensibly have been given, but I do not think it was appropriate that the jury be left without any guidance at all. Whilst I do not believe that the jury should have been directed that the evidence was irrelevant to the conspiracy charge they should have been directed that they ought not conclude that he was guilty of the present offence just because he had committed earlier offences.[56] Given that that message would not have been earlier stated in addresses the direction ought to have been given with some emphasis by the judge, but in my view to have gone further in the direction was likely to have caused more problems than it prevented. This warning, minimalist as it may seem, was, however, an important one to be given in this case.

396. The primary reason why this appeal must succeed is that, as Chernov, J.A. has more fully discussed, not enough was done to dissuade the applicant from the course he adopted and, in the circumstances, that constituted a miscarriage of justice. I have a good deal of sympathy for the position for the learned trial judge, whose apparent assessment that the applicant was an intelligent man adopting a considered (and by no means hopeless) strategy may have caused him to overestimate the extent to which the applicant had thought through the dangers of his proposed course, and to have underestimated the prospects of the applicant paying regard to any cautionary warning which was proffered to him by the judge.

399. In my opinion, it is probable that the applicant would have proceeded as he did, whatever information and advice the judge may have proffered, but there is a chance that he would not have done so. How he would then have presented his defence of mental impairment I do not know. There appears to have been no medical evidence to support that defence and it was doomed to failure, as it did even with the "evidence" which the applicant led in its support. The evidence against him on the conspiracy count was also very strong, but it was by no means impossible for him to have been acquitted and any prospects of acquittal would have been substantially improved by the absence of the evidence of prior convictions. In those circumstances this would not be an appropriate case for the application of the proviso to s.568(1) of the Crimes Act 1958.

402. The consequence of dismissal of White's applications for leave to appeal against conviction and sentence on the armed robbery counts, whilst allowing the appeal against conviction on the conspiracy count, is that he must be re-sentenced on the armed robbery counts. For the reasons given by Chernov, J.A., I agree that the appropriate total effective sentence for those offences would be a sentence of 17½ years imprisonment. I also agree with Chernov, J.A. that a new non-parole period of 13 years should be fixed.

406. For the reasons given by Chernov, J.A., I agree that the application for leave to appeal against conviction by Piggin should be dismissed.

[1] See for example, Dietrich v. The Queen [1992] HCA 57; (1992) 177 C.L.R. 292 at 299-300, 311 per Mason, C.J. and McHugh, J., at 326-328 per Deane, J., at 353 per Toohey, J. and at 362-363 per Gaudron, J. and R. v. Rich [1998] 4 V.R. 44 at 47 per Brooking, J.A. with whom Winneke, P. and Buchanan, J.A. agreed.

[6] [1986] HCA 49; (1986) 161 C.L.R. 315.

[7] With whom Mason, J. and Wilson and Dawson, JJ. agreed.

[8] At 319. See also Brennan, J. at 324-325.

[9] Winneke, P., Charles and Callaway, JJ.A.

[10] [1997] 1 V.R. 593.

[12] At 301-302 per Mason and McHugh, at 344-345 per Dawson, J. and at 367-369 per Gaudron, J.

[13] MacPherson v. R. [1981] HCA 46; (1981) 147 C.L.R. 512 at 546 per Brennan, J.

[14] See, for example, MacPherson at 524 per Gibbs, C.J. and Wilson, J.

[16] See also R. v. Phung [1999] VSCA 195; [1999] 3 V.R. 313 at 328 per Buchanan, J.A.

[18] [1932] USSC 137; (1932) 287 U.S. 45 at 61.

[19] Unreported, Tasmanian Court of Criminal Appeal, 6 November 1998.

[20] [1984] 3 N.S.W.L.R. 168.

[21] With whom Mahoney, J.A. and Carruthers, J. agreed.

[25] See, for example, R. v. Osborne [2002] VSCA 156; (2002) 133 A.Crim.R. 519 at 534 per Chernov, J.A.

[26] Compare the views of Mildren, J. in his article, "Don't Give Any LIP - The Problem of Unrepresented Litigants in Criminal Trials", (1999) 19 Aust. Bar Review 30 at 34..

[29] As to this see Adams v. R. (2001) 207 C.L.R. 96.

[32] [1960] I.R. 136.

[34] See also Dietrich at 334-335, per Deane, J., at 345, per Dawson, J., at 354 per Toohey, J. and at 364 per Gaudron, J.

[35] See Grey v. R. [2001] HCA 65; (2001) 184 A.L.R. 593 at 608 per Kirby J., with whom Gleeson, C.J. , Gummow and Callinan, JJ. agreed.

[36] See Wilde v. R. [1988] HCA 6; (1988) 164 C.L.R. 365 at 371-372 per Brennan, Dawson and Toohey, JJ.; R. v. Clune (No. 2) [1996] VicRp 1; [1996] 1 V.R. 1 at 4 per Callaway, J.A.

[37] Mill v. R. (1988) 1 66 C.L.R. 59 at 52.

[38] Mason, C.J., Wilson, Deane, Dawson and Toohey, JJ.

[39] [1988] HCA 39; (1988) 165 C.L.R. 87 at 93.

[40] See Ahern at 100, 103-104, R. v. Pektas [1989] VicRp 21; [1989] V.R. 239.

[42] [1987] VicRp 46; [1987] V.R. 503.

[44] At 311 per Mason, C.J. and McHugh, J.

[45] (1998) 99 A.Crim.R. 510 at 516 per Hunt, C.J. at CL **(**with whom Hulme, J. and Graham, A.J. agreed on this matter).

[47] See Winsor v. The Queen (1866) L.R. 1 Q.B. 390 at 394-395 per Earle, C.J.; R. v. Boland [1974] VicRp 100; [1974] V.R. 849 at 866 per Full Court (Adam, Little and McInerney, JJ.) and Crofts v. R. [1996] HCA 22; (1996) 186 C.L.R. 427 at 432 per Dawson, J.

[48] See Jones v. DPP [1962] A. C. 635, at 659.

[49] Attorney-General for South Australia v. Brown [1960] A.C. 432, at 454; R. v. Neal, Regos and Morgan [1947] A.L.R. 615, at 616; R. v. Costi (1988) 48 SASR 269, at 272.

[50] The rider which the jury gave to their verdict, in which they expressed hope that in view of "his troubled history" he would receive "the necessary assistance for rehabilitation", suggests that his approach had attracted sympathy from the jury.

[53] [1992] HCA 68; (1992) 175 C.L.R. 599, at 602, per Mason, C.J.; at 605-7, per Brennan, J.; at 610 per Deane, J. See, too, Donnini v. The Queen [1972] HCA 71; (1972) 128 C.L.R. 114, at 133-4 where Menzies, J. held that where the accused volunteered his prior convictions in order to support his defence the jury ought not be confined to using that evidence only for purposes of credit

[54] The probative force of the propensity evidence might, however, vary according to the circumstances of the case: see Pfennig v. The Queen [1995] HCA 7; (1995) 182 C.L.R. 461, at 482-483. Because of the prejudicial effect of such evidence the courts have required that such evidence go beyond mere propensity to commit crimes or particular types of crimes if the Crown is to be permitted to lead it: see R. v. Tektonopoulos [1999] VSCA 93; [1999] 2 V.R. 412, at 417, per Winneke, P. See too s.398A Crimes Act, 1958.

[55] See R. v. Cain [1994] 2 All E.R. 398, at 401.

[56] See Donnini v. The Queen at 134, per Menzies, J.