R v Taylor [2004] VSCA 189

6. The Crown's case at trial was that the applicant and Krupa first met in a Centrelink Office in Morwell in August 1999. They became friends and the applicant recruited Krupa into a networking company called "Usana". That company was involved in direct sales of vitamin pills and skincare and other such personal products and Usana representatives were required to pay a fee of $65.00 and to purchase stock to sell. The applicant and Krupa maintained contact in the ensuing months and travelled together on a two week trip to Hong Kong for Usana's opening in that city. But Krupa had to pay her own way and took out a personal loan in order to do so. Then some two months prior to 19 January 2001, Krupa moved back to Sale where she lived for part of the time with her mother at her mother's house and for the remainder of the time with her friend, Adele Olivia Whykes, at Whykes's house. Krupa and Whykes had known each other since high school. Whykes was a single mother with a two and a half year-old child. Krupa paid Whykes $30.00 per week as her share of the rent and contributed towards the purchase of food.

9. A few weeks before 19 January 2001, Krupa delivered a fixed-line telephone to the applicant's home. The applicant was not home and Krupa left the telephone at the front door. They subsequently spoke by mobile telephone and the applicant thanked Krupa for the telephone and they chatted for a while. According to Krupa, all seemed normal between them and Krupa told the applicant that she had become involved with a local netball team and that she hoped to sell some Usana sports-related products to other members of the team. On that basis she had obtained about $200.00 worth of Usana goods on credit from the applicant. But as time went on the expected sales failed to materialise and Krupa still owed the $200 to the applicant. Then about a week before 19 January 2001, Krupa received a mobile telephone call from the applicant after the applicant's car had been stolen. Krupa said that the applicant was upset about the theft of her car and that her manner seemed angry or peeved. She demanded repayment of the $200.00 owing in respect of the Usana products. Krupa told her that she did not have the money but that she would return the products. The applicant said that she did not want the products; only her money back. Krupa repeated that she did not have any money and told the applicant that she would have to wait until Krupa got a job and could afford to pay the money back. The applicant then asked Krupa where she was and, when Krupa said that she was walking down Raglan Street, hung up the phone. During the ensuing week, Whykes took a call from the applicant and, in accordance with Krupa's request, told the applicant that Krupa was not at home. Later in the week, Whykes passed on a message to Krupa that the applicant was coming down to Sale around Friday, 19 January 2001.

12. On the evening of Thursday, 18 January 2001 Whykes received a telephone call from the applicant asking who was present in the house. Whykes told her that she was in the house with her daughter and Krupa and Matthew Stonehouse, who was a friend of Krupa. According to Wykes the applicant then said that she was going to come to the house and stay until morning, in order to get Krupa to sign a piece of paper, but that the applicant was not to tell Krupa that she was coming.

15. Whykes went to bed in her bedroom at the front of the house shortly before midnight. Stonehouse woke her at about 1.00 a.m. to tell her that he was leaving. She and Stonehouse then went to the back door together and after Stonehouse had departed, Whykes locked the back door, let in the dog and went back to bed and to sleep. Sometime later she was awoken again by a knock at the front door. She went to the door and saw that it was the applicant and that she was carrying a blue doona. Whykes let her in and told her that she could sleep on the couch. Whykes's understanding was that the applicant would sleep on a futon in the sitting room and that she would speak to Krupa in the morning, at the breakfast table, about the money that was owing. Whykes then went back once more to her bedroom and got back into bed.

18. Five to ten minutes later, Krupa was awoken when her bedroom light was switched on. The light blinded her and she could not see clearly without her contact lenses. But she saw that a person had entered her room and she heard that person talking very rapidly and she recognised the applicant's voice. Krupa said that she started to get out of bed but that the applicant came up and tried to push her back down on to the bed. Krupa gave evidence that she then saw that the applicant was holding a knife and that she heard the applicant say: "Don't you move". Krupa's legs were at that stage hanging out over the side of the bed and she felt a blow to her left calf just below the knee. She screamed out to Whykes as loudly as she could. Krupa said that the applicant then moved to close the bedroom door before coming back towards her again wielding the knife. At that point Krupa jumped up and proceeded to grapple with the applicant. Krupa said that she managed to pin the applicant's torso and arms on to the bed but that the applicant continued to move her left arm with which she held the knife. Krupa continued, however, to force the applicant to drop the knife and when she dropped it, Krupa looked up and saw that the bedroom door was open and that Whykes was standing outside. Krupa said that she shouted at Whykes to call the police but that the applicant told her not to call the police and so Whykes just froze and did not move. Whykes's evidence was that she ran through the sitting room into her baby daughter's bedroom and took the child into her own bedroom and closed the door. Krupa felt weak and light-headed and decided to try to escape. She got up and made her way towards the front door. She fumbled for a moment with the front security screen door but then unlocked it and stepped out onto the decking outside. At that point the applicant grabbed her from behind by her pigtail and her legs gave way and she fell back onto her bottom, and the applicant pulled her back into the house. Krupa said that she screamed for help and that the applicant attempted to shut the door and put her fingers into Krupa's mouth to stop her screaming. Krupa said that with that she choked a little and that the applicant then took her fingers out, but when Krupa tried to scream again she found that she was losing her voice.

21. The screaming nevertheless attracted the attention of neighbours and they ran over and entered the front door. One of them said that he saw the applicant and Krupa fighting on the floor and that Whykes was shouting. He intervened and separated the applicant from Krupa, and then with the help of his brother he took the applicant into the kitchen where she was restrained by the arms against the refrigerator. She had a pair of scissors sticking out of the right hand pocket of her track suit pants and one of the neighbours removed those scissors and placed them on the kitchen table. The applicant said that "She owes me money" and that she [the applicant] "did not mean it". Another of the neighbours went into Krupa's bedroom and found a carry bag, a hat and a pen on the floor. He picked them up and brought them out into the kitchen. He said that the applicant then said again that Krupa owed her money and she said also that she simply wanted Krupa to sign a piece of paper. Police arrived at about 1.40 a.m. and took the applicant into custody. Krupa was taken by ambulance to hospital. She had suffered a penetrating stab wound to the left leg with a ten centimetre entrance cut which required eight stitches and a one centimetre exit wound to the left calf which required two stitches, a permanent injury to the common peroneal nerve in the left foot causing foot drop; and a 1.4 centimetre laceration to the right index finger, which required three stitches. The applicant's carry bag was found to contain among other things a hammer, a club lock, a roll of duct tape and a second pair of scissors. A type-written form of agreement also found in Krupa's bedroom provided for an acknowledgment by Krupa that she was indebted to the applicant in the sum of $5,000 "being money loaned [sic] for skincare products, petrol, spending money et cetera, and interest", and that it would be repaid at the rate of $100 per fortnight with interest at 20%.

24. Upon being interviewed by police, the applicant stated that Krupa owed her between $1,200.00 and $1,300.00 (Question 69). She said that she had spoken to Krupa about the money shortly before 19 January 2001 but that Krupa had hung up on her (Question 88). She agreed that she had spoken to Whykes and told her that she was coming, and not to tell Krupa because she wanted to "catch her unawares" (Question 125). She said that she did not want Stonehouse to be present when she confronted Krupa about the debt, and she asked Whykes to leave the front porch light on if he was still there (Question 183). She told police that she parked her car close to the house but hidden from view because she did not want Krupa to discover that she was driving her mother's car, for she believed that Krupa might slash the tyres, and that when she left the car to go to the house she grabbed her doona, a black handbag and a white striped bag as she did not to wish to leave anything in the car (Question 229). She admitted that the striped bag contained a hammer, a pair of scissors and duct tape (which she said she intended to use to send a parcel in the next day or two) and that it also contained the knife with which Krupa was injured (Questions 231, 235, 256). She said that she took the knife for "protection" to ensure that Krupa or another person did not hurt her or threaten her (Question 258) and she said that she also used the car steering lock to hit Krupa during the struggle when Krupa was holding on to her, hitting her and pulling her hair (Question 246).

27. The applicant stated that when Whykes let her into the house she intended to get Krupa to sign the form of agreement and that she hoped that Krupa would be able to withdraw some money from an ATM. If not, she intended to take clothing and property to hold as a form of security for the money that was owed (Questions 305, 310). She said that she asked Whykes to leave the door open, as she wanted to unpack the car. Instead of doing that, however, she said that she grabbed the form and went into Krupa's bedroom with it and a pen (Question 314). She admitted that she had a pair of hair-cutting scissors in the pocket of her tracksuit pants when she was apprehended (Questions. 319 - 320). She said that she had the scissors because she had had a knot in her hair when she left home that evening and because she wished to use the scissors to trim her nails and to cut any other knots from her hair during the following morning (Question 485). She said that she placed the knife in the carry bag because she did not think that she would need to show Krupa the knife (Questions 342 - 385). She added, however that she had the knife so that, if she had to, she could produce it and tell Krupa that she wanted her to pay back the money, and in order to make sure that Krupa did not touch her or threaten her (Questions 343 and 349 - 351).

30. The applicant told police that she stood outside Krupa's door and fumbled before turning on the light in Krupa's room. She then stepped inside and looked at Krupa, placed the form in front of her face and said: "Sign them" (Questions 413 - 426). According to the applicant Krupa thereupon lashed out at her and she panicked and took the knife out of the bag with her left-hand (Question 430). She said that she then held the knife out in front of Krupa, and that Krupa began thrashing about. She said that she then noticed that Krupa had a small cut, maybe half an inch, on her left arm (Question 442) and that Krupa got out of bed quickly and pulled the applicant down on the floor (Questions 446 - 453). She said that she felt the knife go into "some flesh" as they were struggling but that she was not aware of what she had hit (Question 490) and that she did not see any blood at that stage and that she did not intend to do it. A few seconds later, however, she noticed a huge amount of blood on the floor when she and Krupa stood up (Question 505). The applicant denied swinging the knife at Krupa during the struggle and she said that she was trying to get away from her (Questions 492 - 497). She added that she did not try to swing the knife into Krupa's body (Question 511). She admitted, however, that Krupa had attempted to leave through the front door and that she grabbed Krupa by the hair and tried to pull her away from the doorway (Question 518). She alleged that she tried to shut the door in an attempt to calm the situation as Krupa was calling out "call the police, call the police". She said that she thought that she might be able to calm the situation, collect her belongings and leave (Questions. 518 - 519). She admitted, however, that she had grabbed the steering wheel lock, and swung it at Krupa's body when she was trying to get away from her and she believed that she had made contact with her two or three times (Questions 536 to 543). She further admitted that upon her arrest she had told police that she took the knife with her to scare Krupa. She explained that she meant by that that she took the knife in case she needed it, but that she honestly did not think she would need it (Question 586); she did not intend to use it (Question 624); and that she only wanted it to protect herself (Questions 633-635).

34. At trial the applicant stood mute and the only witness called for the defence was as to the applicant's good character.

38. The proposed grounds of appeal against conviction, now set out in a Notice of Intention to Substitute Grounds of Appeal dated 30 August 2004, are in substance as follows:

(1) That the trial miscarried due to the failure of the judge to charge the jury as to the effect of prior inconsistent statements.

(2) In respect of Count 1, that the judge failed to charge the jury adequately on the elements of trespass as it relates to the offence of aggravated burglary.

(3) That the trial miscarried as a consequence of the cumulation of some or all of the errors alleged in Grounds 1 and 2.

(4) That the verdict of the jury on Count 1 was unreasonable and cannot be supported having regard to the evidence or upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of aggravated burglary.

We would grant the applicant leave to argue those grounds, the question whether such leave should be granted having been reserved, during argument, until judgment was delivered.

Ground 1 - Prior inconsistent statements

44. Mr Kassimatis, who appeared for the applicant, identified eight passages in the transcript of evidence which he said established the existence of prior inconsistent statements upon which the judge should have, but failed to direct the jury. We do not think that Mr Kassimatis is right about that.

47. The first was at pp.70 to 72 where Krupa was cross examined upon evidence which she had given at the committal about being woken by the applicant, the attack which followed, whether and in which hand the applicant was holding a knife at the time of the attack, and when Krupa had retaliated or attempted to fend off the applicant. At the conclusion of the puttage and after a couple of questions and answers to the effect that Krupa could not now remember events with the same precision as she had at the time of the committal, the following question and answer were asked and given:

"Do you agree that that's how you say it happened, do you?---Yes, well, probably, yes, I mean, if that`s what's written there that's obviously what I've said."

51. We do not consider that that amounted to a prior inconsistent statement which necessitated some direction as to the way in which it might be used. By the adoption of the earlier testimony, the earlier testimony became the witness's evidence and the judge summarised the witness's evidence as part of the charge.

54. The second passage of the transcript relied upon was at pp.74 to 77. It consisted of cross examination of Krupa directed to the fact that she had not recalled until the committal that the applicant got up and shut the door of the bedroom before Krupa "jumped up and went for her". At the end of that passage the following questions and answers were asked and given:

"Well you overpowered Marie Taylor right at the start, didn't you?---No, like I said, we wrestled, then I overpowered her. Well, you told the magistrate at the committal proceedings that you overpowered her at the start, didn't you - 19 - that you overpowered her at first because, " she obviously wasn't expecting me to jump up and hook into her, but for probably a few seconds in the middle there, look, it took me a lot of effort, but, to get her over there, so she was fighting back with me, but overpowered her and got her down"?---Yes, well, if that's what I said, that's what I said. I don't - I do remember being asked the question and that, but I don't remember exactly every word I said."

58. Again we see no such inconsistency as between the witness's testimony and any prior statement as to warrant particular mention.

61. The third passage of transcript relied upon was at p.81. It was as follows:

"And you didn't tell the police when you first made your statement abut that door being shut by Marie [the applicant] because that didn't happen, did it?---It did happen, but everything happened that quick. I'd been in the hospital for about, what, it was early in the morning when they come and did my statement, I'd been laying in that hospital all by myself, still tripping on what had happened. In fact, the way you put the things to the police, that's the story you've had to stick to, isn't it?--- I haven't had to stick to it, because that `s what happened , that's my statement---"

65. We are unable to see any inconsistency at all in that passage.

68. The law about prior inconsistent statements is clear enough. If a witness is shown to have made previous statements inconsistent with the evidence which the witness gives at trial, the judge should direct the jury that the previous statements are not evidence upon which they can act but are something which they should take into account in assessing the reliability of the evidence which the witness gives at trial.[1] That is especially so where a case extends over several days of hearing and involves many issues and a large body of evidence.[2] Consequently if there were any substantial prior inconsistent statements demonstrated in this case, a direction may have been required. As it appears to us, however, there were none in the passages identified. We consider that ground 1 fails.

Ground 2 - The elements of trespass as they relate to aggravated burglary

72. We turn to the question whether the judge gave to the jury an adequate charge upon the elements of trespass as it relates to the offence of aggravated burglary. The relevant section of the charge was as follows:

"In this case the Crown alleges that the accused burgled the bedroom of Libbie Krupa in the home at 10 Campbell Court, Sale, with the intention of assaulting Libbie Krupa. So that is how the Crown puts its case. So the offence of burglary charge in this case consists of those first three elements there that you have listed,[3] each of which as I say the Crown has to establish to your satisfaction beyond reasonable doubt, and they are firstly, that the accused entered a part of the building, that is Libbie Krupa's bedroom; secondly, that she did so as a trespasser; and thirdly, that she did so with a particular forbidden intention at the time of entry to the bedroom. That is important, it is at that point in time. So I want to say something about each one of those elements. Firstly, entry to the part of the building, to the bedroom, poses no difficulty in this case because it is common ground that the accused did enter the bedroom. Secondly, as a trespasser, the accused was a trespasser if she entered Libbie Krupa's bedroom knowing that or being reckless whether she was so entering in excess of or for a purpose alien to any permission or licence or consent or other right given to her to enter the bedroom. Perhaps I will repeat that for you, because in the final addresses there was some focus upon this particular element so I will say that again. The accused was a trespasser if she entered Libbie Krupa's bedroom knowing that or being reckless whether she was so entering in excess of or for a purpose alien to any permission or licence or consent or other right given to her to enter the bedroom. All right? Thirdly, with intent to assault. In this case the forbidden intention which I referred to earlier at the time of entry to the bedroom was that of committing an offence, being an assault to a person in the bedroom, namely Libbie Krupa. The assault [which] was here relied upon by the Crown [w]as not what you commonly think of as assault, which is actually hitting someone, but rather by intimidation. That is, that there was an intention to cause Libbie Krupa to fear that she, the accused, was about to apply force to her. So they are the three elements that you would need to be satisfied upon for there to be burglary. Those first three elements are set out there. But then the Crown goes a step further and alleges that the accused is guilty, not only of burglary, but of aggravated burglary. And in this case the element of aggravation alleged to have existed is that at the time of entering the house the accused had with her an offensive weapon, namely the knife, and it is alleged to be an offensive weapon because the Crown alleges that the accused intended or threatened to use the knife to cause injury to Libbie Krupa. So in order to establish this offence as being committed, the Crown has to have established to your satisfaction beyond reasonable doubt, firstly that the accused entered as part of a building, here the room of Libbie Krupa's where Libbie Krupa was , and there is no issue on that one. Secondly, as a trespasser, which is in issue, as you have heard from the final addresses. Thirdly, that there was the intention to assault at the time of entry. Again, that is in issue as to whether that intention existed at the time of entry to the bedroom, the intention to assault, as I define it. And fourthly, that she had with her a knife which she intended or threatened to use to cause injury. And as I say, those two, the second and the third elements there, are where you should particularly be focussing."

76. Mr Kassimatis' first attack upon that part of the charge was that his Honour's explanation of the elements of trespass was no more than a bare statement of the law without explication or elaboration of the terms referred to in it and without reference to the relevant evidence. He contended that the directions were thus such as to have provided the jury with little assistance and for that reason were inadequate. We agree with that contention.

79. The requirement that a trial judge state the law and relate it to the evidence is plain. The judge must explain the law to the jury in a manner which relates it to the facts of the particular case and the issues to be decided. [4] The charge does not have to be a general treatise on the law. As Chernov, J.A. put it R v Jost[5], the judge need explain only so much of the law relating to the elements of the offence as is necessary to enable the jury to resolve the issues in the case. But the judge must instruct the jury as to the relevant elements of the offence charged and relate them to the evidence and the issues in the case, including the accused's defence. Failure to do so may result in the accused being denied a fair trial and thus necessitate the quashing of the verdict.[6]

82. The count of burglary laid pursuant to s.76(1) of the Crimes Act 1958 required the prosecution to prove that the accused entered "any building or part of a building as a trespasser with intent" to commit any of the offences specified in sub-ss.(a) or (b) of s.76(1). This section was considered by the High Court in Barker v. The Queen[7], where the accused had been asked by his neighbour, Robert Curl, to look after his house while he was away. Curl told Barker where he kept his key in case the latter needed to enter. While Curl was away, Barker and another entered the house and stole certain items. The Court by majority[8] found that Barker had entered Curl's house as a trespasser because, as the headnote put it, he did so "for a purpose alien to the terms of a licence given to him to enter". The Court's decision is based on the clear assumption that Barker had only a limited permission to enter Curl's house and that the jury, after being properly directed, were entitled to find the necessary mens rea, that Barker entered the house knowing that he had no right or authority to do so, or being reckless as to whether he had any such right or authority.

85. The judgments in Barker raise two questions relevant to the present case. First, although the basis of the majority judgments was the assumption that Barker entered Curl's house only with a limited permission, there was considerable discussion of the question whether a person who enters property pursuant to a permission which is unlimited as to purpose or intent becomes a trespasser because that person at the time of entry had an illegal purpose; and secondly, the judgments all deal at some length with the mens rea necessary to establish that a person enters premises "as a trespasser".

88. As to the first point the law remains unsettled. In R. v. Jones & Smith[9], Smith's father had had two television sets stolen. The sets were found in the possession of Smith's son and his friend Jones. The two had entered the house of Smith's father and stolen both sets, and were prosecuted for burglary. At the trial Smith's father gave evidence that he had given his son unrestricted permission to enter the house and that his son "would not be a trespasser in the house at any time". Both Smith and Jones were nonetheless convicted of burglary. The Court of Appeal upheld these convictions, James, L.J. saying[10]:

"a person is a trespasser for the purpose of s.9(1)(b) of the Theft Act 1958 if he enters premises of another knowing that he is entering in excess of the permission 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 is sufficient for the jury to decide that he is in fact a trespasser."

92. There is vigorous controversy as to the correctness of this statement. It has been trenchantly criticised by Professor Glanville Williams[11] as making the crime of burglary unnecessarily wide, being founded on a misunderstanding of previous authorities and being inconsistent with the rationale of s.9 of the Theft Act 1969 (U.K.). But on the other hand it has been supported by Sir John Smith[12].

95. In Barker, Deane and Brennan, JJ. expressed the view[13] that the implied invitation to enter which a shopkeeper extends to the public may ordinarily be limited to public areas of the shop and to hours when the shop is open for business, but is not ordinarily limited or confined by reference to purpose. Accordingly their Honours said that a shoplifter who enters a shop with the purpose of stealing would not ordinarily be a trespasser. Their Honours said[14]:

"The argument that the phrase `as a trespasser' would be denied any real effect if `trespasser' in s.76(1) were given its common law meaning is likewise based on the assumption that, at common law, any person who enters premises in the possession of another with the purpose or intention of committing an unauthorised act therein will enter the premises as a trespasser. As has been said, that assumption is ill-founded. A person with a permission or licence to enter premises which is not limited by reference to purpose or intention will not enter them as a trespasser merely because he enters with an intent to commit one or other of the unlawful acts specified in s.76(1). In such a case, the requirement of entry as a trespasser and the requirement of entry with intent to commit one or other of the specified acts are distinct and substantive elements of the offence."

Although their Honours did not expressly say so[15], it follows, we think, that their Honours must have regarded Jones & Smith as wrongly decided.

100. Mason, J. did not decide this point, although his Honour said[16] that "The authority of the son to enter his father's house might well have been regarded as so general that his entry for the purpose of theft did not make him a trespasser". Murphy, J. dissented, saying[17] that "an alien purpose does not convert an otherwise lawful entry into entry as a trespasser, irrespective of any expressed or implied limitation relating to purpose ...", which also clearly indicates a view that Jones & Smith was wrongly decided. Dawson, J. did not deal directly with the issue. In light of the Court's assumption that Barker entered the premises only with a limited position, all the above-stated views must be regarded as obiter dicta.

103. The second question in Barker relevant to the issues in the present case concerned the nature of the intent necessary to establish that a person enters premises "as a trespasser". The relevant mens rea was stated by Dawson, J.[18] in the following terms:

"... in any analysis of s.76 of the Crimes Act it is essential to recognize that the offence consists both of an intentional entry as a trespasser and an intent to steal at the time of entry. The distinction must be maintained because a person accused of burglary may enter premises with an intention to steal but nevertheless in the belief that he is entitled to enter. A person who enters premises with apparent consent but with intent to steal, such as an ordinary shoplifter, is likely to believe at the time he enters the premises that he has the same right of entry as other persons notwithstanding the criminal purpose for which he enters. If intercepted before attempting to steal anything, no doubt he would say that he had done nothing wrong and was entitled to be on the premises. And if he believed that to be so, as he very well might, the mental element required to prove entry as a trespasser would be lacking, notwithstanding evidence of that other aspect of intent required for burglary, an intent to steal at the time of entry. Before there can be burglary there must be an entry as a trespasser with intent to enter as a trespasser as well as with intent to steal."

Brennan and Deane, JJ. arrived at a like conclusion, although their language was somewhat different, saying[19]:

"It follows that, even though a jury is satisfied that an accused's entry upon land or into a building or into part of a building in the possession of another was trespassory because the accused did not have any permission to enter or because his permission was so limited that it did not cover the entry charged against him, 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."

Mason, J.[20] and Murphy, J.[21] also took the same view.

110. The evidence before the jury in the present case showed that there was a degree of friendship between the applicant, Whykes and Krupa. Krupa agreed that she had spent a significant amount of time with the applicant and they had been on holiday together to Hong Kong. They had been in each other's houses before, and the applicant had been in Krupa's room before. Krupa had woken up the applicant late one night in her premises to use her toilet, and thought it "would be fine" for her to go in and use the latter's toilet. Krupa said that her door was open when she went to bed, on the night she was attacked.

113. Whykes said in evidence that the three had been friends for about a year or so. The three might celebrate their birthdays together and the applicant had stayed the night at Whykes's house after one of the celebrations. She said that the applicant had been to her house and had tea and conversations with her, indeed that she had been to Whykes's house at least a number of times. On the day of the alleged offence, the applicant had rung up to say that she was going to come up and stay and get Krupa to sign a piece of paper. Whykes let her in late at night and said to her "you can crash on the couch". Whykes said she understood that the applicant was going to "hop on the bed" and go to sleep.

116. In her record of interview the applicant said in answer to the question, "Did you have permission from anyone in that house to enter that actual bedroom? `No. But Adele [Whykes] knew that I would be going there'." She also said that she told Whykes that she would be going in there [presumably Krupa's bedroom] that night, that she told Whykes that if Krupa was in her room she would be going into the room, a statement which she repeated several times in the record of interview and she also said that Whykes had told her that Krupa was in her room. The applicant said the door to Krupa's room was open.

119. The question of mens rea, whether the applicant believed she was entitled to enter Krupa's bedroom, was certainly an issue raised and contested by both prosecution and defence as appears from the charge. The jury was therefore obliged to consider whether the applicant had the belief that she was entitled to enter Krupa's bedroom, notwithstanding that she was taking a weapon with her, and may have intended, at least, to intimidate Krupa into signing a document. Furthermore, if the law is to be taken as correctly stated by Brennan and Deane, JJ. in Barker[22], that is, that a person with an unlimited permission to enter premises will not enter them as a trespasser merely because he or she enters with an intent to commit an unlawful act specified in s.76(1), then the jury was obliged to consider also the question whether the permission the applicant had to enter either the house or Krupa's bedroom was limited by reference to purpose or intention. We have not been supplied the final addresses of counsel, but our reading of the charge, together with the evidence and the answers made by the applicant in her record of interview to which we have previously referred suggests to us that the question of mens rea was certainly raised, and that it would also have been open on the evidence for the jury to have shared a reasonable doubt that the permission or authority the applicant had to enter Krupa's bedroom was not limited by reference to purpose or intent.

122. The directions given by the trial judge during the charge as to the elements of trespass are set out in paragraph [21] above. His Honour said more than once to the jury that entry as a trespasser meant:

"The accused was a trespasser if she entered Libbie Krupa's bedroom knowing that or being reckless whether she was so entering in excess of or for a purpose alien to any permission or licence or consent or other right given to her to enter the bedroom."

This passage does not touch at all the possibility that the applicant entered Krupa's bedroom pursuant to a general licence to enter, that is a permission that was not limited either as to purpose or intention. Furthermore the formula used by the trial judge only invited the jury to consider the question whether the applicant knew or was reckless as to whether she was acting in excess of or for a purpose "alien to any permission", not the much more simple question posed by Dawson, J. in Barker[23], whether the applicant entered Krupa's bedroom in the belief that she was entitled to do so.

127. The question whether a person entering premises pursuant to a general or limited permission may become a trespasser because that person holds an illegal purpose or intention is, as we have said, not yet settled. It is not necessary for us to decide the point in the present case, and in any event we should not do so since the issue was not fully argued before us, and we were not referred to the authorities on the question other than Barker. Accordingly we put to one side the issue that the jury were not directed to consider whether any permission the applicant had to enter Krupa's bedroom was unlimited as to purpose or intention.

130. The adequacy of a charge is to be assessed in light of the conduct of the trial and the questions raised by the Crown and by defence counsel[24]. The questions posed by the Crown and defence counsel appear from two later passages of the charge as follows:

"[The prosecutor] particularly focused, you will recall for the first count, the aggravated burglary, as to whether the [applicant] was a trespasser. He said on the evidence before you there was that she had no right to enter the bedroom, that Elizabeth Krupa was virtually a sub-tenant in that bedroom, that it was her area and that she paid for it - paid $30 a week - and it was very much her domain. That the [applicant] knew that she was not welcome in the bedroom and she resorted to subterfuge to get access to the house and to come upon Libbie Krupa unawares. And that she was aware that Adele would not have agreed to any form of confrontation or to Libbie Krupa being confronted in the early hours of the morning as she was. And that the [applicant] very much treated the bedroom as off limits in the context of the evidence as to how the - Libbie Krupa had hidden in her bedroom to avoid seeing her. So in all the circumstances he submitted to you that you should have no difficulty in coming to the conclusion that the accused was a trespasser in Libbie Krupa's bedroom and therefore you should find her guilty on the first count."

"[Counsel for the applicant] came back then to the issues which she raised in her opening reply so far as whether there was trespass or not in respect to the first count of aggravated burglary, and put it to you that when the accused entered the bedroom, she had been invited there by Adele and Adele said that Libbie Krupa was there and that really she was in the house as a guest of Adele's and Libbie's that she was never told that she could not go into Libbie's bedroom by Adele or by Libbie. And she put it to you, supposing she slept on the couch that night and went in, in the morning, with a cup of coffee for Libbie, well, you would hardly regard her as a trespasser. And that she went into the room for a legitimate purpose, which was to get that document signed. Then so far as her intention to commit an assault, she said that she did not go there for that purpose, that she went there to create a legal problem [sic] to obtain a legal solution to this long outstanding debt. And that you should conclude that she was not a trespasser because she did not have the necessary mindset at the time that she entered that bedroom."

136. From these passages it is apparent that the prosecution put its case on the basis that the applicant knew that she had no right to enter the bedroom and therefore used subterfuge to gain access to it. The defence on the other hand submitted that the applicant was present in the house as a guest, and no-one had told her that she might not enter the bedroom, and so she did not know that she might not go in. The principal question for the jury was therefore a simple one, did the applicant know that she was not permitted to enter the bedroom?

139. In these circumstances we think that the judge was obliged to tell the jury that a critical question for them to consider was whether the applicant entered Krupa's bedroom in the belief that she was entitled to enter, as Dawson, J. put it in Barker, or whether she entered in assertion in an honest claim of right to do so, as Brennan and Deane, JJ. put it in the same case, and to tell the jury that if they were left with a reasonable doubt that the applicant entered Krupa's bedroom in such a state of mind they were obliged to acquit her of the offence of aggravated burglary.

142. In the judge's directions on the relevant law, which we have set out in paragraph [21] above, the formulation used several times did not, with respect, explain the element of intention as expressed in the judgments in Barker, or leave the jury to consider the possibility that the applicant entered the bedroom believing she was perfectly entitled to do so. The words used by the judge go only to the question whether the applicant entered the bedroom knowing or being reckless as to whether she entered pursuant to a limited permission and for some purpose not covered by such permission.

145. No exception was taken at the end of the judge's charge, but, as the charge shows, this was a principal issue raised by the defence. We conclude, with respect, that the judge's failure to direct the jury on the issue of mens rea in the manner we have suggested was such as to deprive the applicant of a real chance of acquittal on count 1, and therefore was such as to cause a miscarriage of justice.

148. The next ground argued was that the judge did not explain adequately to the jury the elements of trespass as it relates to the offence of aggravated burglary. In particular the submission was that his Honour's instruction upon the elements of the offence did not reveal to the jury what was meant by "right" or "licence" or what was meant by "knowingly" or "recklessly". It was submitted that even if the jury understood the need to be satisfied that the applicant knew of or was reckless as to the absence of permission to enter the bedroom, the judge's failure to explain the legal test of recklessness could have resulted in the jury deciding the case on the basis of whether the applicant was simply careless or negligent as to whether she had permission to enter, as opposed to the legal test of whether the applicant was shown to have known that she probably did not have permission to enter.[25] We think that submission also is persuasive. It is not uncommon to hear people in everyday speech describing negligence or carelessness as recklessness, and the Oxford English Dictionary indeed defines "recklessness" as the quality of being careless in respect of (one's conduct, reputation, or) the consequences of one's actions, and in one's own experience. Consequently, it is likely that the jury left to its own devices would have assumed "recklessness" to have that meaning for the purposes of the offence. We were told that the judge gave each member of the jury an aide memoir on which were summarised the elements of the offences charged, and it may be that it contained an adequate explanation of the legal conception of recklessness as such documents not infrequently do. But the document was not marked for identification, as it should have been, or otherwise preserved, and efforts since made to obtain a copy of the document have proved unsuccessful. In the result we think that we must proceed on the basis that the judge did not explain the relevant meaning of recklessness.

151. Mr Morgan-Payler contended on behalf of the Crown that the absence of any explanation as to recklessness could not have made any difference to the outcome of the case. His argument was that regardless of such directions or explanations as the judge may not have included in the charge, his Honour did direct the jury upon the need to be satisfied beyond reasonable doubt that the applicant entered the bedroom with intent to assault. He submitted that it followed from the conviction on count 1 that the jury must have been satisfied that the applicant entered the bedroom with intent to assault and, in those circumstances, that the jury must have been satisfied beyond reasonable doubt that the applicant knew that she was not permitted to enter the bedroom.

154. We do not accept this argument. The first two steps of it may be unassailable. But the third and critical step is deficient. It is in effect an argument in itself that:

(a) the applicant did not have express permission to enter the bedroom;

(b) therefore, such permission as she may have had, or thought that she had, was limited to implied permission;

(c) whatever implied permission she may have had, or thought that she had, the applicant cannot have supposed that she had implied permission to enter the bedroom for the purposes of assault; and

(d) consequently, the applicant must have known that she did not have implied permission to enter the bedroom for that purpose.

160. This thesis holds good only so long as one assumes that the jury decided on the basis that they were satisfied beyond reasonable doubt that the applicant knew that she did not have permission to enter the bedroom. It fails once one allows for the possibility that some members of the jury decided on the basis that the applicant was reckless as to whether she had permission to enter the bedroom; especially if one permits of the possibility that some members of the jury may have equated recklessness to mere negligence or carelessness. The problem is that the Crown's argument is premised on an assumption that such implied permission as may have been given to enter the bedroom necessarily excluded entry for the purpose of assaulting Krupa. That assumption would be unfounded on the view expressed by Brennan and Deane, JJ. in Barker[26], that permission to enter for a particular purpose may authorise every entry for that purpose and, if so, cover entry for both that purpose and another purpose.

163. So to say does not mean that permission which is not expressly limited to one purpose is necessarily to be equated to permission to enter for all purposes. Equally, permission which is granted in terms for one purpose may accommodate entry for that and some other purposes. Nevertheless, it may be a task of some difficulty to decide whether a particular entry is within the scope of a limited permission.[27] Assuming in any given case that permission to enter is not unlimited, and so in one way or another is tied to one purpose (or some purposes), a jury must somehow work out whether an extraneous purpose is so alien to the authorised purpose as to render entry for both the authorised purpose and the extraneous purpose beyond the scope of the permission. One way to pose the question is to ask whether it goes without saying that the extraneous purpose was beyond the ambit of the permission. But other formulations are open and regardless of which test is applied, views are likely to differ.

166. In this case that might not matter if one could be sure that the jury decided count 1 on the basis that the applicant knew that she did not have permission to enter the bedroom. In that event one could say with certainty that the jury must have been satisfied both that entry for the purpose of assault was so alien to any permission given as to mean that it was beyond the scope of the permission, and that the applicant must have known that it was for that reason beyond the scope of the permission. But once one allows for the possibility that some of the jury may have decided on the basis that the applicant was reckless as to whether she had permission to enter, and that recklessness meant to them or at least some of them no more than mere carelessness, it may be that either:

(a) although all members of the jury were satisfied that it went without saying that any permission excluded entry for the purposes of assault, some members of the jury were not satisfied that the applicant knew that to be so, but were satisfied that the applicant was careless as to whether it was so, and thought that to be enough basis to convict; or

(b) although some members of the jury were not satisfied that the permission excluded entry for the purposes of assault, they were satisfied that the applicant was careless as to whether it excluded entry for the purpose of assault, and thought that to be enough basis to convict.

172. For the reasons we have previously given, it seems to us that the judgments in Barker make it plain that a person knowing it to be unlawful to commit a theft (or commit an assault) within a building or part of a building, may well believe that he or she is nonetheless perfectly entitled to enter the premises notwithstanding the intention to commit the offence. On this view, if the jury were left with a reasonable doubt as to either of the situations set out in (a) or (b) in the previous paragraph, they would have been obliged to acquit the applicant of aggravated burglary.

175. Mr Kassimatis next argued that the judge failed to relate the evidence sufficiently to the law[28]

and in particular failed to draw to the attention of the jury as relevant to the issue of permission to enter the bedroom:

(a) evidence that the applicant had on some previous occasions been invited into or permitted to enter Krupa's bedroom;

(b) evidence that the bedroom door was open at the time of entry;

(c) evidence that the applicant had looked to Whykes for permission to enter the bedroom.

The argument was in effect that in the absence of some direction upon the significance of those pieces of evidence, the jury may have reasoned that the bedroom was under the control of Krupa and therefore it was sufficient for the purposes of count 1 that the applicant had entered the bedroom without Krupa's express permission.

183. The judge did summarise most of the evidence and his Honour concluded that exercise and hence the charge with the summary of counsels' arguments which we have already set out. But in our view, with respect, his Honour did not relate the evidence to the issues independently of counsels' arguments, or really provide any assistance to the jury in deciding to what evidence they should look when deciding each of the issues.

186. For the reasons given we would allow the application for leave to appeal and the appeal against conviction on count 1. The rejection of ground 1 has the effect that the applicant's conviction and sentence on count 2 stand. Sentence was imposed on 22 October 2003. The sentence of nine months' imprisonment on the count of aggravated burglary was to be served concurrently with the sentence imposed for causing serious injury intentionally. It has therefore already been served in full. In the circumstances, and notwithstanding what was said in Spies v. R.[29] the proper course, is, we think, to quash the applicant's conviction on count 1 and direct a judgment and verdict of acquittal.[30]

189. There remains only the application for leave to appeal against the sentence, which now stands as a head sentence of three years' imprisonment imposed on count 2, two years of which were suspended for a period of 18 months. The arguments as to sentence were put to us very briefly, and included submissions that the judge had made a relevant finding of fact adverse to the applicant without applying the criminal standard of proof in accordance with authority, that the judge had failed to take into account the applicant's evident remorse, and that his Honour had undervalued the significance of the fact that the applicant had consumed more than the prescribed dose of the drug Duromine which was likely to have caused significant psychiatric and behavioural disturbance in her. It was also submitted that the sentence was manifestly excessive, insufficient weight having been placed on matters in mitigation and too much weight on the need for general deterrence. Notwithstanding these arguments, counsel conceded that the sentence imposed was moderate for the offences, if the convictions were found to have been properly reached.

192. 53 It is sufficient to say that in our view there is nothing in any of the grounds raised as to sentence. The offence of intentionally causing serious injury is a very serious one, carrying a maximum penalty of 20 years' imprisonment. The judge accepted all that had been advanced in mitigation. The sentence imposed could not in our view be described as anything other than moderate. We would dismiss the application for leave to appeal against sentence.

195. It follows that we would grant the application for leave to appeal against the conviction imposed on count 1. We would set aside the applicant's conviction on the count of aggravated burglary and the sentence imposed thereon, and direct that the applicant be acquitted on this count. We would dismiss the applications for leave to appeal against conviction and sentence in relation to count 2.

[1] R. v. Golder Jones and Porritt (1960) 45 Cr.App.R. 5 at 11; Driscoll v. The Queen [1977] HCA 43; (1977) 137 C.L.R. 517 at 536.

[2] R. v. Schmahl [1965] VicRp 95; [1965] V.R. 745 at 748.

[3] Apparently his Honour was referring to a sheet which listed the elements of the offence. Unfortunately the sheet is no longer available.

[4] The Queen v. Chai (2002) 187 A.L.R. 436 at 441; R. v. De'Zilwa [2002] VSCA 158; (2002) 5 V.R. 408 at 411 [5], per Ormiston, J.A.; R. v. Dardovska [2003] VSCA 4; (2003) 6 V.R. 628 at 633 at [18] - [19].

[5] [2002] VSCA 198 at [18].

[6] See, for example, Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R. 437 at p.466; R. v. Lawrence [1982] A.C. 510 at p.519, cited with approval in Holland v. The Queen (1993) 117 A.L.R. 193 at pp.199-200; RPS v. The Queen [2000] HCA 3; (2000) 199 C.L.R. 620 at p.637 [41]-[43]; R. v. Anderson [1996] VICSC 17; [1996] 2 V.R. 663 at pp.666-667; R. v. Franks (No 1) [1998] VSCA 100; [1999] 1 V.R. 518 at p.524 [17]; R. v. Crockett [2001] VSCA 95; (2001) 124 A.Crim.R. 312 at p.315 [9] and [12].

[7] [1983] HCA 18; (1983) 153 C.L.R. 338.

[8] Mason, Brennan, Deane and Dawson, JJ., Murphy, J. dissenting.

[9] [1976] 1 W.L.R. 672; [1976] 3 All E.R. 54; [1976] 63 Cr.App.R. 47.

[10] [1976] 1 W.L.R. at 675; [1976] 3 All E.R. at 59.

[11] Textbook of Criminal Law, 2nd ed. (1983) 848-850; see also Weinberg & Williams, The Australian Law of Theft (1977) 256.

[12] The Law of Theft, 8th ed. (1997) 11-08; Smith & Hogan, 10th ed. (2002), 632-634.

[24] Barker v. The Queen per Brennan and Deane, JJ. at 368, citing R. v. Stoddart (1909) 2 Cr.App.R. 217 at 246.

[25] The Queen v. Crabbe [1985] HCA 22; (1985) 156 C.L.R. 464 at 471; R. v. Nuri [1990] VicRp 55; [1990] V.R. 641 at 643; cf. Roberts v. Bass [2002] HCA 57; (2002) 212 C.L.R. 1 at 35, [86].

[27] 153 C.L.R. at 365 per Brennan and Deane, JJ. Glanville Williams also criticises the whole idea as "vague and as giving to the crime of burglary a great extension making it unnecessarily wide"; Textbook of Criminal Law, 2nd ed. at 848.

[28] See the cases cited in Footnote [.

29] [2000] HCA 43; (2000) 201 C.L.R. 603 at [104].

[30] Edwards v. The Queen [1993] HCA 63; (1993) 178 C.L.R. 193 at 213.