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:

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.
The election of the accused to be tried by Judge alone be given effect.
The trial be listed to commence on 22 September 2009 at 10:00am.

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”.
In my opinion, the indictment can proceed validly on that basis, and, indeed, it is appropriate that it would do so.
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.
If the evidence revealed, in fact, that the accused was well aware of the lack of consent then that would…

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 BRIAN MAAN

Details

AGLC: R v BRIAN MAAN [2009] ACTSC 128
Case: [2009] ACTSC 128
Decision Date: 21 September 2009

CaseChat Overview and Summary

The matter before the court involved a case against Brian Maan, who was indicted for various sexual offences. The alleged offences occurred on May 19, 2007, in Canberra, Australian Capital Territory, involving a complainant identified as Emma Whipp. The court was tasked with amending the indictment to reflect the correct charges and ensuring that Maan's right to be tried by a judge alone was upheld.

The primary legal issues the court had to address were the accuracy and sufficiency of the charges as laid out in the indictment. The court needed to determine whether the charges correctly reflected the alleged offences and whether the alternative charges and indecency provisions were appropriately included. Additionally, the court had to consider the accused's right to a trial by judge alone, which was a procedural matter requiring careful attention to the legal framework governing such trials.

In its reasoning, the court found that the initial indictment did not accurately reflect the charges as they should be. The court amended the indictment to correctly charge Maan with attempted sexual intercourse and committing an act of indecency without consent, specifying the recklessness element. The court also confirmed the accused's right to be tried by a judge alone, aligning with legal precedents that protect this right under certain circumstances. The court scheduled the trial to commence on September 22, 2009, at 10:00 am, ensuring that the legal process moved forward efficiently.

The court's final orders included amending the indictment to reflect the correct charges, confirming the accused's right to a trial by judge alone, and setting a date for the commencement of the trial. This decision ensured that the legal process would proceed with clarity and respect for the accused's rights.

Orders

Orders of the court

1. The indictment be amended to:

…CHARGES THAT on the 19th 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 19th 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 19th 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 19th 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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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