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.