A former teacher will find out in a month whether or not he will stand trial for doing an indecent act in a classroom at one of Auckland's well-known schools.
The name of the teacher and the school where he taught were suppressed.
His lawyer asked a District Court judge to dismiss the charge after arguing that a classroom was not a public place.
But the Crown said in reply that any student could have walked into the classroom and students were members of the public.
Police said the teacher was in a classroom with the door closed when two students approached from outside.
It was not clear how high the classroom window was, but it required one of the students to give the other a boost so he could look in the window.
The police case was that the student saw the teacher doing an indecent act.
The teacher's lawyer Richard Earwaker said the school rules forbid students to be in the classrooms during lunchtime.
He said the door to the classroom was closed and no one could see in the window unless they were 10 foot tall.
He also questioned whether the school was a public place because people go to great lengths to get their children into the school.
Mr Earwaker said members of the public could not just walk in off the street and into the classroom.
He said if that was the case, every school in the country would be up in arms.
Crown prosecutor Dale Dufty concentrated on whether students could enter the classroom.
He said despite the 'no students inside at lunchtime' rule, students would go to see teachers during the lunch break.
Judge Collins suggested students could also return to class for a variety of reasons, and gave the example of a student getting their asthma inhaler if they were playing rugby at lunch.
Mr Dufty agreed and said the school rules and what actually happened in the school were two different things.
He said the students had to constitute members of the public because they were members of the community.
Mr Dufty said the legislation seemed to have the objective of criminalising indecent behaviour and the fact the behaviour was done at a school did not mean it could not be prosecuted.
Judge Collins reserved his decision and the matter was due back in court next month.