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:
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.
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.
The applicant seeks leave to appeal against conviction and sentence.
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.
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.
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.
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]’.
On the following evening, the complainant said that while she and the applicant were in the pantry, he put…
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- AGLC
- Coleman v The Queen [2011] VSCA 301
- Case
- [2011] VSCA 301
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the fresh evidence provided a sufficient basis to grant leave to appeal against the conviction and order a retrial. The court considered the nature and significance of the fresh evidence, its impact on the credit of the complainant, and the likelihood that the jury would have reached a different conclusion had the evidence been available at the time of the trial. The court had to balance the appellant's right to a fair trial against the need to prevent an abuse of the legal process through the introduction of new evidence at an appellate stage.
The court found that the fresh evidence did indeed bear on the credit of the complainant and had the potential to significantly influence the jury's decision. The evidence suggested that there was a substantial possibility that the jury might have acquitted the appellant if they had been aware of it. Given the critical role of the complainant's testimony in the conviction, and the potential for the fresh evidence to undermine that testimony, the court concluded that it was appropriate to grant leave to appeal against the conviction. Consequently, the appeal was allowed, and the court ordered a retrial to ensure that the appellant received a fair trial with all available evidence considered.
In summary, the High Court granted the application for leave to appeal against the conviction, allowed the appeal, and ordered a retrial. This decision underscores the importance of ensuring that all relevant evidence is considered in criminal trials, and that the accused receives a fair and just process.
Orders
Orders of the court
I would grant the application for leave to appeal against conviction, allow the appeal and order that there be a retrial.
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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