R v Munro [2006] VSCA 94

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

2 The applicant was presented before the County Court at Melbourne, on 15 November 2004, on a presentment containing one count of aggravated burglary (count 1) and two counts of indecent assault (counts 2 and 3). He pleaded not guilty to all charges and a trial ensued, at the conclusion of which the jury returned verdicts of guilty on count 1 and of not guilty on the remainder.

3 The applicant now seeks leave to appeal against his conviction.

The Background

4 The applicant was a former teacher and boarding house supervisor at the Huntingtower School Mt. Waverley. He was, on 18 July 2003, a resident of Hong Kong, but he had returned to Melbourne for a visit.

5 At about 7.00 pm. on that day, he visited (T), a member of staff at the school, and her son R, who was aged 14 years and a former pupil.

6 T stated that she took the applicant for a tour of the boarding house, in the course of which he met the 14 year old complainant, [VT]. He was shown VT's room as an example of painting work carried out since he had left and had a short conversation with the boy about Hong Kong, VT's home city.

7 Later that evening, the applicant had dinner and drinks with two friends. One of his companions stated in evidence, that by the time that he left them at around 3.00 a.m.[1], the applicant was very intoxicated.

8 VT gave evidence that, at around that time, he was awakened by noises

caused by a man standing outside the window of his room, which was not closed properly by reason of defects in the locking mechanism. The man, who VT recognised as the applicant, insisted that the boy let him into his room. VT complied and removed the covering fly screen. He pushed the window open and the applicant entered. As he did, so the glass pane broke and some glass fell onto the floor. I should add, at this point, that the window was hinged on one side and could be swung outward only a short distance, as it was fitted with a limiting device. The aperture, when the window was opened to its widest extent, was still relatively narrow and the applicant had to squeeze himself through. The applicant and VT together picked up the glass fragments and in the process both cut their hands. They then had a conversation while the applicant was sitting on VT's bed and the complainant was sitting at his desk chair. VT said that, after a short time, the applicant lay back on the bed and pulled him towards him. He asked the boy to sleep with him. VT said that he did not know what to do and positioned himself on the bed with his back towards him. The applicant then placed his hand on VT's thigh and tried to touch his penis, but VT pushed him away. At one stage, the applicant took VT's hand and attempted to move it towards his (the applicant's) penis, telling VT to "relax" and saying that "it was fun" and that "it should be [his] first experience". At some stage, according to VT, the applicant left the room, indicating that he was going to find R. He returned and fell asleep on VT's bed.

9 When interviewed by the police, the applicant asserted that VT's allegations were untrue. He claimed that he had gone to the school for the purpose of visiting R to tell him that he would be returning to Hong Kong earlier than he had anticipated and would not be able to visit R on the following Monday as he had promised. When he arrived at the school, in order to avoid disturbing the occupants of the building or setting off the alarm system that was fitted to its doors, he knocked on the window of VT's room. He was not abusive and, when he indicated that he was visiting R, the boy removed the fly screen and admitted him. The window opening was quite narrow and the glass broke as he tried to squeeze through. He had a conversation with VT about Hong Kong and then went in search of R to give him the message. On finding that R was not there, he returned to VT's room and fell asleep on the bed. He did not assault VT and had not gone to the school for that purpose. His overall conduct he explained by reference to his state of intoxication at the time.

10 VT stated that the applicant left his room through the broken window at approximately 7.00 a.m., after indicating that, if there was any trouble he would return later to repair it. The applicant agreed that he left at around that time and returned to the residence of the friends earlier mentioned where he went to sleep. VT gave evidence that, at about 7.30 a.m., he went to the room of his brother, [NT], who was also a pupil at the school, and told him about the applicant coming into his room and sleeping in his bed.

11 NT said, in his evidence, that VT had told him that he had been woken by a man outside his room at 3.00 a.m. who, using a threatening tone, insisted that VT admit him. He said that his brother stated that he had removed the fly screen from the window because he was frightened. He was told that the man had entered and had a discussion with VT and that he then pulled VT onto the bed so that they could sleep together. NT said that his brother also said that the man had tried to touch his "private parts" and to force VT to touch his, but that VT had not allowed this to occur. His brother had said that the man had left his room at about 7.00 a.m. and had requested him to make up a story about what had taken place. NT went with VT to survey the damage to the window and to determine what they should say, before deciding that VT should ring their mother.

12 VT made a telephone call to their mother, who was in Hong Kong, at about 9.15 a.m., and told her that he had been touched. He said that, after that discussion, he knew that he would need to speak to police about the incident and believed that, if he did not do so, he would be in trouble.

13 VT's mother gave evidence that she had been told by her son that a man had put his hand on his thigh and attempted to touch his private parts and that the man had grabbed VT's hand and tried to make him rub the man's private parts.

14 There was other evidence in the trial to which, by reason of the issues that have arisen in this proceeding, I need not advert.

15 The respective cases for the prosecution and defence at the trial were relatively straight forward.

16 The prosecutor submitted to the jury that the applicant, as a former teacher at the school, would have been well aware that entry to the building at 3.00 a.m. was entirely unauthorised. He argued that the applicant's manner of entry, that was designed to avoid setting off alarms that the applicant knew would be triggered if he entered through any of the doors, evidenced his appreciation that this was the case. The time of the visit and his actions upon entry also made clear that the purpose of going to the school was to commit an indecent assault upon the complainant who had attracted his attention, he contended.

17 Whilst there was some reference in discussions in the absence of the jury to the possibility that at some stage, whether before or after he entered the premises did not become clear, the applicant's proposed victim might have been the boy R, I do not understand that it was ever suggested in their presence that this was the case and no instructions given to the jury were specifically directed by the trial judge to this possibility. It would be highly surprising however if some of them did not engage in speculation concerning the applicant's claimed reason for a visit being made to R in these circumstances in any event. I will return to this aspect.

18 In response, the defence submitted that the jury could not be satisfied beyond reasonable doubt that the version given by VT was correct, relying upon; a number of inconsistencies between his evidence and earlier statements made by him; his acceptance that did not tell his police or his mother about the removal of the fly screen; his acknowledgement that he could have sought help from his brother or the night supervisor at the time that he became aware of the presence of the man outside his room; his evidence that he could communicate with his brother, who was in the next room, through the wall; and that he had discussed with his brother whether they should tell the truth about how the window was broken. There were other matters of a similar kind also called in aid to which I do not need to advert specifically. It is sufficient to state that there were reasonably arguable bases for challenging the reliability and accuracy of the account given by the young boy. I do not however wish to convey the suggestion that the jury could not reasonably act upon it, but do want to make clear that there were matters to be taken into account before they did so and to point to the need for the provision of careful instruction by the trial judge of the jury in this situation.

The Grounds of Application

19 Although a number of grounds were relied upon in support of the present application, by reason of the view at which I have arrived, I do not propose to address them separately. It is not to be assumed however that some of the complaints to which I will not refer lack substance. The judge's charge was unfortunately deficient in a number of respects and, in my opinion, it is apparent that the verdict cannot be permitted to stand and that, in the circumstances, a re-trial could not be held.

The Judge's Charge

20 There is no need I consider to identify the varying and not entirely consistent directions and instructions given by the trial judge to the jury with respect to the elements of the offence of aggravated burglary of which the applicant was convicted. It is sufficient to set out two passages.

"A person's entry onto the land or into a building or any part of a building in the possession of another could be trespass because he did not have any permission to enter or because his permission was so limited. However, he cannot be convicted unless the jury is satisfied also that he knew or was reckless as to the existence of the facts which made him a trespasser and that he did not enter in assertion of an honest claim of right to do so, so that it's his state of mind you've got to look at. When, at the time of the entry and if he doesn't know or wasn't aware that he was entering without permission or he didn't have the right to do so or he didn't seem, these are all matters for you to look at but the Crown has to establish that beyond reasonable doubt and the Crown also say to you that at the time of entry he had a state of mind whereby he was intending, he knew there were persons inside the building and he had an intention to commit an indecent assault on a person in there. It did (sic) have to be a specific person. And the fact, if you're satisfied as to that intention of the accused man at the time of entry, that he was entering to commit an offence or an indecent assault on a person inside then he has to be a trespasser if he's got that intention. But I don't want to confuse you in combining the two ... And that's the third element, is that of committing an offence involving an assault to a person in the building and that really needs consideration of a number of matters and the Crown have to establish that it was the intention of the accused man to commit the indecent assaults which the Crown alleges was the forbidden intent and they also have to establish that the element of the offence, that the accused had that forbidden intention at the time he entered the building.

...

There is, as I have said, a necessary connection between the trespassory character alleged and the intention to commit an indecent assault as alleged. It is inconceivable that someone would have consented to an accused entering the room for the purpose of committing an indecent assault and so if he had such an intention at the time of entering [VT]'s room then any - well not that there's any consent given - but if there was any consent given without the knowledge of that intention then on that scenario he did not have permission to enter and in all the circumstances then he's got the forbidden intent and therefore he is a trespasser."

Immediately after giving the latter instruction her Honour said:

"I think by looking at your faces I do not think you are agreeing."

The jury may not have been as convinced as the judge that it was "inconceivable" that permission to enter would have been granted for this purpose.

21 She continued:

"What I might ask you to do, ladies and gentlemen of the jury, it is a bit of a long afternoon, I am getting near the end of it but I must confess I am feeling a little worn and I am not sure whether I have done justice in what I have just explained to you and I might, I am sure I can probably put it in a simpler and clearer way so if you would like to take a break for about ten minutes and we will come back an do that then."

22 It is evident that her Honour was troubled by the lack of clarity in her charge as when the jury came back into court, she said:

"So what I was now proposing to do is to put it the other way round and direct you in relation to the indecent assault counts, because in the course of the aggravated burglary I need to refer to that indecent assault, and you may think on the face of it you understand exactly what it is, and you probably do, but I will give you the direction in law on that, and that seems to me to be a more straightforward direction and tied in with the evidence as well, and then if we could come back earlier tomorrow morning and get into the conclusion of it, and I will direct you then in relation to aggravated burglary and the evidence and then what both counsel's arguments are about that ..."

23 On returning to the matter as promised, the judge instructed the jury:

"A person, I direct you, is a trespasser, for the purposes of establishing the element of burglary, if he enters premises of another knowing that he is entering in excess of permission or consent that has been given to him, or being reckless as to whether he is entering in excess of the permission that has been given to him to enter. Provided the facts are known to the accused which enable him to realise that he is acting in excess of the permission given, or that he is acting recklessly as to whether he exceeds that permission, then that would be sufficient for you, the jury, to decide that he is, in fact, a trespasser."

24 The count of aggravated burglary was laid under s.77(b) of the Crimes Act 1958 (Vic) which reads:

"(1) A person is guilty of aggravated burglary if he or she commits a burglary and -

...

(b) at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present."

25 "Burglary" is defined for relevant purposes in section 76 as:

"(1) A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent -

...

(b) to commit an offence -

(i) involving an assault to a person in the building or part in question;"

26 The High Court considered the term "...enters...as a trespasser" in section 76(1) in Barker v. R.[2] in the context of a case in which a person had a right of entry for a limited purpose, but used the opportunity to steal items in the premises. Mason, J. in his judgment said:

"...the character of the provision as one which creates the serious criminal offence of burglary provides a strong reason for introducing the element of mens rea so that the section only embraces a person who of his own volition and without any right or authority enters land in the possession of another with intent to steal, knowing that he has no such right or authority or being reckless as to whether he has any such right or authority or not."

27 Clearly the section would encompass a person who, possessing the intention to indecently assault a person therein, enters premises aware that he has no right or authority to do so or who is reckless (in the sense in which that term is employed in the criminal law) as to whether he has any such right or authority. The charge could be properly laid although no specific person had been selected as the subject of the offence.

28 As I have earlier indicated, the prosecution case in the present matter was quite straightforward. The applicant, it was asserted, had through intimidation and foul language, effectively forced a young boy, who he had selected as his target to admit him to his room, for the specific purpose which he possessed at the time of entry of indecently assaulting him. From the defence perspective, that was the allegation to which they had to respond and it was on that basis that the entire case was conducted by both the prosecutor and the defence.

29 Although the Court does not have a transcript of the defence counsel's address to the jury, their position would appear to be quite clear; namely that the prosecution had not excluded the reasonable possibility that the version given by the applicant was correct. No question of the existence of limited authority to enter or relating to the applicant's belief in a claim of right was ever raised or could reasonably be seen to arise in the circumstances. The provision of general instructions by her Honour that addressed not only the position in the case before the jury but that which could arise in quite different situations could only serve to complicate the position and possibly confuse the jury and, as her Honour appreciated, contribute to lack of clarity in her charge.

30 It is, I consider, particularly in view of the increasing complexity of the criminal law and the number and content of the instructions that a trial judge must provide to juries, important to bear in mind the task of the judge when delivering a Charge as laid down by the High Court in Alford v. Magee[3]:

"it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility ... of deciding what are the real issues in the particular case, and ... of telling the jury, in the light of the law, what those issues are."

31 Further, having introduced the notions of limited right of entry and recklessness, no direction was given to the jury concerning what was involved in either concept in any event, or how they could be related to the evidence. What was conveyed to them by the statement "provided the facts are known to the accused which enable him to realise that he is acting in excess of the permission given" is not clear, but could well have been interpreted by them as an instruction that it was sufficient for the applicant to be aware of the existence of facts that should have led him to realize that his entry was unauthorized whether or not he actually appreciated that that was the case. If they approached the matter on that basis, they would have applied the wrong test. The use of the word "enable" in this context could be confusing to those who, uninstructed, were not aware that the state of mind encompassed in the criminal law by the notion of recklessness has been the subject of much attention in the authorities and requires the actual foresight by the particular accused of the probabilities inherent in the situation. If it became necessary for the jury to consider the possibility that the applicant may have been reckless in the relevant sense concerning his right of entry, instruction in accordance with the law as stated by the High Court in R. v. Crabbe[4] was required. It was there said in the case involving an allegation of reckless murder that:

"It should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results. It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result."[5]

The possibility that the jury misunderstood the applicable law cannot be regarded as remote. I wonder whether many in the community would in the absence of instructions when considering whether a person was reckless, distinguish between negligent inadvertence or a disregard of the possibilities as opposed the probabilities involved.

32 When regard is had to the verdicts of not guilty returned on counts 2 and 3, the further possibility arises that the jury could have arrived at their verdicts by applying their understanding of the principles to be applied to a factual scenario that had not been the subject of any significant attention in the course of the trial.

33 The jury could have accepted the evidence of VT, but considered that the applicant's actions in the room were essentially preparatory and easily discouraged and that, in the circumstances, the element of indecency was either not established or the behaviour was of such a minor character that a merciful verdict should be returned, when the applicant was to be found guilty of aggravated burglary.

34 However it is also distinctly possible that, although it was no part of the prosecution case, the jury considered that the real motivation for the applicant's attendance at the school on that night was to assault indecently R and that that was his intention at the time of entering the building. They may have had reservations concerning VT's account and not excluded beyond reasonable doubt the applicant's claim that VT had voluntarily assisted him to visit R. Any subsequent activities in relation to VT could, in that scenario, be perceived as opportunistic and his intention with respect to VT formed after his entry to the premises. The judge's charge which contained instructions to the effect that it was not necessary for the prosecution to establish the presence of an intention to assault sexually a specific person clearly allowed for this possibility, although the prosecution case was directed to the establishment of the intention at the time of entry of the commission of an offence against VT and that victim only. This was made clear by the prosecutor, in the course of responding to a submission made by counsel for the applicant that there was no case to answer. He confined the Crown contention to the claim that VT was to be the subject of the applicant's advances, there being no suggestion that R was or even became a target -

"PROSECUTOR: If your Honour made a ruling of law that there was no evidence that he committed an indecent assault when he got in there, then it would seem to me that it would have to follow automatically that there wouldn't be evidence that a jury could conclude that he had an intent to commit the indecent assault, and of course the Crown doesn't agree with the submission that there is no evidence capable of amounting to indecent assault. As far as a jury is concerned, that should go but if your Honour were to rule against me on that and say there was no case to answer in relation to the counts of indecent assault, all I'm saying is that that would, I think, torpedo the count of aggravated burglary.

HER HONOUR: Yes, I see. It rises or falls with the other two counts.

PROSECUTOR: That is what I'm saying, as a proposition of law.

35 Whilst the explanation given by the applicant for his presence at the school in the early hours of the morning is in my view, quite implausible and would be highly problematic even if accepted, there were real issues to be decided concerning his

motivation for going there, his state of mind at the time of entering the premises, the circumstances under which entry was gained and clearly, as the jury verdict of acquittal on the two counts of indecent assault demonstrated, what transpired once he was in VT's room. The matters required the provision by the trial judge of clear directions to the jury that were regrettably not provided.

36 In these circumstances, I am of the view that there has been a miscarriage of justice in this case and that the application should be granted. It is also apparent that, as the prosecutor in the court below and counsel appearing for the Crown before us have accepted, once full credit is given to the verdicts of acquittal, there would be insufficient evidence remaining to support a conviction for aggravated burglary were a retrial to be ordered.

37 Accordingly, I propose that the application for leave to appeal against conviction be granted, the appeal allowed and a verdict of acquittal entered.

38 For the reasons given by Vincent, J.A., I agree that the appeal should be allowed. In submissions at the conclusion of the evidence the prosecutor said that if the jury were to acquit the accused on the counts of indecent assault it would be unfair and unjust, and also inconsistent, for them to then convict him on the count of aggravated burglary. That concession reflected the way the case was run on both sides. In those circumstances, and for the reasons stated by Vincent, J.A., it would be inappropriate to order a new trial. Accordingly, I agree that a verdict of acquittal should be entered.

[1] It was at about that time that he went by taxi to the Huntingtower School.

[2] [1983] HCA 18; (1983) 153 C.L.R. 338 at 348.

[3] [1952] HCA 3; (1952) 85 C.L.R. 437 at 466.

[4] [1985] HCA 22; (1985) 156 C.L.R. 464.

[5] [1985] HCA 22; (1985) 156 C.L.R. 464 at 469-470.