Coleman v The Queen

[2011] VSCA 301

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0273

WILLIAM PAUL COLEMAN

v

THE QUEEN

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JUDGES:	BUCHANAN and TATE JJA and SIFRIS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 September 2011
DATE OF JUDGMENT/ORDER:	12 October 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 301
JUDGMENT APPEALED FROM:	R v Coleman [2009] VCC 1685 (Judge Taft)

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CRIMINAL LAW – Incest and indecent acts with a child – Fresh evidence bearing on the credit of the complainant – Significant possibility that the jury would have acquitted the accused if the fresh evidence had been before it.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M J Croucher	Warren Graham & Murphy Pty Ltd (Sale)
For the Respondent	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. After a trial in the County Court, the applicant was found guilty on 11 counts of incest and four counts of committing an indecent act with a child under the age of 16.  The applicant was acquitted on a further count alleging an indecent act with a child under the age of 16.  In three earlier trials, save for acquittals on some counts, the juries had been unable to agree upon a verdict.

1. A plea was conducted and the applicant was sentenced to be imprisoned for a term of 4 years on each count of incest and for a term of 2 years on each count of committing an indecent act.  With a measure of cumulation, a total effective sentence of 8 years’ imprisonment was imposed upon the applicant and it was ordered that he serve a term of 5 years’ imprisonment before he was to become eligible for parole.

1. The applicant seeks leave to appeal against conviction and sentence. 

1. The victim of the alleged offences was the daughter of the applicant’s de facto partner.  The offending was alleged to have taken place between February and July 2003, when the applicant was aged 29 years and the complainant was aged 13 or 14 years.

1. The principal Crown witness was the complainant.  She said that on a Sunday early in February 2003, the applicant entered her bedroom at night, kissed her and said, ‘tell me if I do too much’, before putting his hands under the bed covers and inserting his finger inside her vagina.  The complainant said that two days earlier the applicant had kissed her repeatedly on the mouth.

1. The complainant said that later that evening the applicant again digitally penetrated her vagina while they were in the lounge room and then licked her clitoris while she sat on the edge of the couch. 

1. The following day the complainant said to the applicant she felt guilty towards her mother because of what had happened.  She said that the applicant told her to ‘play it like a game and to think about it like [he was] teaching [her]’.

1. On the following evening, the complainant said that while she and the applicant were in the pantry, he put…