R v Munro - [2006] VSCA 94

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 12 of 2005

THE QUEEN
	v.
HILTON MUNRO

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JUDGES:	BUCHANAN, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 March 2006
DATE OF JUDGMENT:	1 May 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 94

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Criminal Law – Conviction – Applicant found guilty on one count of aggravated burglary (count 1) and not guilty on two counts of indecent assault (count 2 and 3) – Applicant a former teacher at the victim’s school – Judge’s charge deficient – Directions with respect to aggravated burglary inconsistent – Possibility that jury misunderstood applicable law – Crimes Act 1958 (Vic) ss. 76 and 77(b) – Consideration of the term “enters as a trespasser” – Barker v. R. (1983) 153 C.L.R. 338 – Task of trial judge in delivering charge – Miscarriage of justice – Application for leave to appeal against conviction granted – Verdict of acquittal entered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G.T. Cannon	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr J.P. Dickinson	Slades & Parsons

BUCHANAN, J.A.:

I agree with Vincent, J.A.

VINCENT, J.A.:

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.

The applicant now seeks leave to appeal against his conviction.

The Background

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.

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.

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.

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Munro

Details

AGLC: R v Munro [2006] VSCA 94
Case: [2006] VSCA 94
Decision Date: 1 May 2006

CaseChat Overview and Summary

In the case of R v Munro, the applicant was found guilty of one count of aggravated burglary and not guilty of two counts of indecent assault. The applicant, a former teacher at the victim’s school, appealed against his conviction on the basis that the judge's charge to the jury was deficient, potentially leading to a miscarriage of justice. The appeal was heard in the Victorian Court of Appeal.

The legal issues before the court centred on whether the judge's charge to the jury contained inconsistencies and whether these inconsistencies could have led the jury to misunderstand the applicable law. Specifically, the court examined whether the judge properly directed the jury with respect to the term "enters as a trespasser" as defined under sections 76 and 77(b) of the Crimes Act 1958 (Vic), in light of the precedent set by Barker v R (1983) 153 C.L.R. 338. The applicant argued that the charge was inconsistent and may have led to an erroneous application of the law, which could have affected the outcome of the trial.

The court found that the judge's charge did indeed contain inconsistencies that were significant enough to warrant concern that the jury may have misunderstood the applicable law. The court held that the task of the trial judge in delivering a charge to the jury is to ensure clarity and precision, particularly in defining key terms such as "enters as a trespasser." Given the deficiencies identified, the court concluded that there was a real possibility that the jury had misunderstood the law, which could have led to a miscarriage of justice. Consequently, the court granted the applicant leave to appeal against his conviction, and the verdict of acquittal was entered on the counts of indecent assault.

The court ordered that the conviction on count 1 (aggravated burglary) be quashed, and the verdict of acquittal on counts 2 and 3 (indecent assault) be confirmed.

Orders