R v BRIAN MAAN

[2009] ACTSC 128

R v BRIAN MAAN
[2009] ACTSC 128 (21 September 2009)

EX TEMPORE JUDGMENT

No. SCC 168 of 2009

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              21 September 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 168 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          

THE QUEEN

v

BRIAN MAAN

ORDER

Judge:  Higgins CJ
Date:  21 September 2009
Place:  Canberra

THE COURT ORDERS THAT:

1. The indictment be amended to:

   …CHARGES THAT on the 19^th day of May 2007 at Canberra in the Australian Capital Territory BRIAN MAAN attempted to engage in sexual intercourse with Emma Whipp without the consent of Emma Whipp and was reckless as to whether she had consented.

   AND FURTHER AND IN THE ALTERNATIVE THAT on the 19^th day of May 2007 at Canberra aforesaid BRIAN MAAN committed an act of indecency upon Emma Whipp without the consent of Emma Whipp and was reckless as to whether she had consented.
   AND FURTHER … on the 19^th day of May 2007 at Canberra aforesaid BRIAN MAAN attempted to engage in sexual intercourse with Emma Whipp without the consent of Emma Whipp.

   AND FURTHER AND IN THE ALTERNATIVE THAT on the 19^th day of May 2007 at Canberra aforesaid BRIAN MAAN committed an act of indecency upon Emma Whipp without the consent of Emma Whip and was reckless as to whether she had consented.

2. The election of the accused to be tried by Judge alone be given effect.

3. The trial be listed to commence on 22 September 2009 at 10:00am.

1. First it is important, I think, to formalise the amendments to the indictment.  Whilst I acknowledge that it is open to the prosecution to propose an amendment to the third and fourth counts as proposed, in the light of the legislative amendments made to section 54, in my view, it would be inappropriate - not unlawful, but inappropriate - to do that. Therefore as a matter of discretion, I permit the amendment to those two counts by deleting the first alternative, and stating the second, “was reckless as to whether she had consented”. 

2. In my opinion, the indictment can proceed validly on that basis, and, indeed, it is appropriate that it would do so.

3. The next question is, of course, do the amendments, having been made, effectively reinstate the accused’s right to elect for trial by judge alone, noting, as I do, that he has signed an election to that effect.  I must say that I have some sympathy with the prosecution here.  In essence, the amendment does not change the case against the accused.  The case remains factually the same.  The question of the inference to be drawn does, of course, differ.  Indeed, with the amendments, the only inference that needs to be drawn for the purpose of guilt being established would be that of reckless indifference to the existence of consent. 

4. If the evidence revealed, in fact, that the accused was well aware of the lack of consent then that would also suffice.  However merely to show negligence would, of course, not be enough.  Conversely, recklessness would be sufficient in either case.

5. Therefore, it seems to me to be reasonable for the prosecution, and, indeed, would be in keeping with the current policy of the legislature, to frame the counts in the way in which I have mentioned, namely that either state of mind, or state of knowledge, would suffice to make the charge or charges out in regard to the alternatives.

1. So far as the question of the election is concerned, that question depends on whether the indictment, as amended, can be said to be the previous indictment amended or changed, but not substantially changed.  If, in each of those counts, the prosecution had elected, to attempt to prove knowledge but managed to prove only recklessness, then there would have had to have been a verdict of  acquittal on each counts as proffered. 

2. Of course, the prosecution could have proffered an additional count alleging the alternative, but clearly, proposing additional counts would be a very substantial change to the indictment.  The prosecution, not surprisingly, does not elect to do that. 

3. If as I have indicated, each of the counts was duplicitous, then what is the effect of that?  It seems to me that I am driven to the exposition given by Evatt J in Johnson v Miller (1937) 59 CLR 467, which is, effectively, that if there is duplicity, then there are fundamental rights of an accused person that cannot be exercised. That is, in particular, the defendant cannot effectively plead unless he knows the precise charge that is proffered against him, and, if there are alternative charges, the accused needs to know which he is required to answer. In this case, an accused person might well dispute knowledge of lack of consent, but agree that he was reckless as to whether there was consent.

4. Therefore, a plea to any of the charges as originally framed would be ambiguous.  A plea cannot be accepted if it is ambiguous, so the plea would have to be rejected.  Further, had the trial proceeded without advertence to the duplicity, then on appeal, the proceedings would have to have been declared to be defective, and the judgment of verdict set aside.  It may be that an order for a fresh trial would be made on the basis that the Crown might indicate that it would elect to remove the duplicity, but if it did that, then plainly, it would be a new indictment, that is, new in the sense in which that was referred to in the case of R v Tran (2002) 167 FLR. In that case the indictment remained the same, but the judgment and verdict in respect of it had been set aside, and the indictment was referred back to this court for new trial. 

5. I confirm that the indictment is duplicitous.  I confirm the amendments that I have either accepted or directed to be made, and I direct the accused may be tried on that amended indictment, he having elected to be tried by judge alone.  That election has effect under section 68B.

6. I therefore rule that the jury panel may be discharged.  They will not be required for this trial, and I fix tomorrow morning at 10 am as the date upon which the trial should commence and proceed.

7. I will add that it seems to me that the provision under section 68B does certainly need clarification, particularly in relation to situations of this kind. 

   I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

   Associate:

   Date:   29 September 2009

Counsel for the Crown:  Ms K MacKenzie
Solicitor for the Crown:  Director of Public Prosecutions for the ACT
Counsel for the Defendant:  Mr S Gill
Solicitor for the Defendant:  Legal Aid Office (ACT)
Date of hearing:  21 September 2009
Date of judgment:  21 September 2009