R v Coleman (No. 1) - [2024] NSWDC 575

District Court

New South Wales

Medium Neutral Citation: R v Coleman (No. 1) [2024] NSWDC 575
Hearing dates: 1-2 May 2024
6-10 May 2024
13-17 May 2024
20-24 May 2024
16 August 2024
27 September 2024
9 October 2024
Date of orders: 9 October 2024
Decision date: 09 October 2024
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
Annexure A to this judgment entitled Facts for Sentencing is my determination of facts for sentencing.

Catchwords:
CRIME — Common law offence — Misconduct in public office — Where a Detective Senior Constable of NSW Police Force abused his position as an investigating officer of complaints of sexual assault to pursue his own sexual gratification with the complainant — Non-consensual sexual touching in police car and at police station — Fellatio and penile/vaginal sexual intercourse at police station — Offering money to the victim in exchange for sexual favours — Failure to disclose conflict of interests and maintain a professional relationship with the complainant as an investigating police officer
CRIME — Sexual offences — Sexual touching — Touching breasts — Sucking breast
CRIME — Sexual offences — Sexual assault — Consent — Where consent is given reluctantly or obtained after persuasion
SENTENCING — Fact finding — Finding of facts express or necessarily implied in the verdicts — Where consent or requisite knowledge of consent is relevant to the seriousness of misconduct in public office — Court not bound to adopt the version of facts most favourable to the offender — Onus on the offender to prove actual consent on the balance of probabilities — Where jury is not wholly satisfied beyond reasonable doubt by the evidence of the victim — Where jury does not accept all the evidence of the offender — Where the offender is convicted of sexual touching but not sexual assaults — Where the guilty verdict for sexual touching is consistent with both the victim’s and the offender’s version of events — Where the not guilty verdicts for sexual assaults are equally consistent with the victim having consented and with the offender lacking the requisite knowledge

Legislation Cited:
Crimes Act 1900 (NSW), s 61HI(1)
Police Act 1990 (NSW), s 7

Cases Cited:
Cheung v The Queen (2001) 209 CLR 1
Davis v R [2024] NSWCCA 120
Filippou v The Queen (2015) 256 CLR 47
Liberato v The Queen (1985) 159 CLR 507
R v Mueller [2005] NSWCCA 47
R v Obeid (No. 12) [2016] NSWSC 1815
R v Olbrich (1999) 199 CLR 270

Category: Sentence
Parties: Rex (Crown)
Glen Coleman (Offender)
Representation:
Counsel:
Ms Kate Nightingale (Crown)
Mr Joel Brook (Offender)
Solicitors:
Office of the Director of Public Prosecutions NSW (Crown)
Anderson Boemi Lawyers (Offender)

File Number(s): 2022/00145977
Publication restriction: [Pseudonyms are used for persons except for the Offender and police officers.]

Judgment

On 27 September 2024 I heard the parties’ arguments on determination of facts for sentencing. The hearing proceeded on the basis of a document entitled R v Coleman Draft Proposed Determination of Facts for Sentencing (Facts Only) which…

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 Coleman (No. 1)

Details

AGLC: R v Coleman (No. 1) [2024] NSWDC 575
Case: [2024] NSWDC 575
Decision Date: 09 October 2024

CaseChat Overview and Summary

The case before the court involved a Detective Senior Constable of the NSW Police Force who was accused of abusing his position as an investigating officer to engage in non-consensual sexual activities with a complainant. The offences took place in a police car and at a police station, and included various forms of sexual touching and intercourse, as well as an offer of money in exchange for sexual favours. The court was required to determine whether the accused had indeed engaged in these activities and whether he had abused his position as a public officer.

The legal issues at the heart of the case centred on the nature of consent in the context of sexual offences and the abuse of a position of public trust. The court needed to consider whether the complainant had consented to the sexual activities and, if not, whether the accused had the requisite knowledge or belief that the complainant was not consenting. Additionally, the court had to assess whether the accused had acted with the necessary mens rea for the offence of misconduct in public office. The accused's failure to disclose potential conflicts of interest and to maintain a professional relationship with the complainant was also a critical aspect of the case.

The court, in its judgment, carefully weighed the evidence presented by both the prosecution and the defence. It found that the jury had concluded beyond reasonable doubt that the accused had engaged in non-consensual sexual touching, but had acquitted him of more serious sexual assault charges. The court determined that the jury's acceptance of the victim's account of the events, despite some inconsistencies, was sufficient to convict the accused of the lesser charge. The court also noted that the accused had not discharged the onus of proving actual consent on the balance of probabilities. Consequently, the court found the accused guilty of misconduct in public office.

The final orders of the court included the sentencing determination, which was detailed in Annexure A to the judgment. This annexure outlined the facts found by the court for the purposes of sentencing, reflecting the court's consideration of the evidence and the legal principles applied in reaching its decision.

Orders

Orders of the court

Annexure A to this judgment entitled Facts for Sentencing is my determination of facts for sentencing.

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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Medium Neutral Citation:	R v Coleman (No. 1) [2024] NSWDC 575
Hearing dates:	1-2 May 2024 6-10 May 2024 13-17 May 2024 20-24 May 2024 16 August 2024 27 September 2024 9 October 2024
Date of orders:	9 October 2024
Decision date:	09 October 2024
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	Annexure A to this judgment entitled Facts for Sentencing is my determination of facts for sentencing.
Catchwords:	CRIME — Common law offence — Misconduct in public office — Where a Detective Senior Constable of NSW Police Force abused his position as an investigating officer of complaints of sexual assault to pursue his own sexual gratification with the complainant — Non-consensual sexual touching in police car and at police station — Fellatio and penile/vaginal sexual intercourse at police station — Offering money to the victim in exchange for sexual favours — Failure to disclose conflict of interests and maintain a professional relationship with the complainant as an investigating police officer CRIME — Sexual offences — Sexual touching — Touching breasts — Sucking breast CRIME — Sexual offences — Sexual assault — Consent — Where consent is given reluctantly or obtained after persuasion SENTENCING — Fact finding — Finding of facts express or necessarily implied in the verdicts — Where consent or requisite knowledge of consent is relevant to the seriousness of misconduct in public office — Court not bound to adopt the version of facts most favourable to the offender — Onus on the offender to prove actual consent on the balance of probabilities — Where jury is not wholly satisfied beyond reasonable doubt by the evidence of the victim — Where jury does not accept all the evidence of the offender — Where the offender is convicted of sexual touching but not sexual assaults — Where the guilty verdict for sexual touching is consistent with both the victim’s and the offender’s version of events — Where the not guilty verdicts for sexual assaults are equally consistent with the victim having consented and with the offender lacking the requisite knowledge
Legislation Cited:	Crimes Act 1900 (NSW), s 61HI(1) Police Act 1990 (NSW), s 7
Cases Cited:	Cheung v The Queen (2001) 209 CLR 1 Davis v R [2024] NSWCCA 120 Filippou v The Queen (2015) 256 CLR 47 Liberato v The Queen (1985) 159 CLR 507 R v Mueller [2005] NSWCCA 47 R v Obeid (No. 12) [2016] NSWSC 1815 R v Olbrich (1999) 199 CLR 270
Category:	Sentence
Parties:	Rex (Crown) Glen Coleman (Offender)
Representation:	Counsel: Ms Kate Nightingale (Crown) Mr Joel Brook (Offender) Solicitors: Office of the Director of Public Prosecutions NSW (Crown) Anderson Boemi Lawyers (Offender)
File Number(s):	2022/00145977
Publication restriction:	[Pseudonyms are used for persons except for the Offender and police officers.]