Coleman v The Queen [2011] VSCA 301

2 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.

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

4 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.

5 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.

6 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.

7 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]'.

8 On the following evening, the complainant said that while she and the applicant were in the pantry, he put his finger in her vagina and said that if he did it long enough, she would 'come'. The applicant went to the couch in the lounge room and rubbed his penis on the complainant's vagina while he lay on top of her. The applicant then licked her vagina.

9 The complainant returned to her room to get a rug for warmth and she and the applicant went to a shed where she placed the rug on the bonnet of her mother's car and lay on it. The applicant stood in front of her and rubbed his penis on her vagina. He then penetrated her vagina with his fingers and licked inside her vagina.

10 On a date in April 2003 the complainant was sitting on a massage table. The applicant stood between her legs while she rubbed the applicant's penis. He then masturbated before ejaculating over her stomach.

11 On another occasion the complainant was at home from school because she was ill. When the complainant's mother went to a local supermarket, the complainant entered the applicant's bedroom and they had sexual intercourse.

12 On another occasion, at home, the applicant guided the complainant's mouth over his penis.

13 In about June 2003, the complainant accompanied the applicant on a fly fishing expedition. She lay on a lambs wool rug on his car while the applicant stood in front of her and penetrated her vagina with his penis.

14 In July 2003, after driving with the complainant to buy a pizza for dinner, the applicant pulled his car to the side of the road and the complainant straddled the applicant while he fondled her breasts. That night, the applicant entered the complainant's bedroom and had sexual intercourse with her until they were interrupted by the sound of another person.

15 The sexual relationship between the applicant and the complainant ceased in July 2003, when the complainant told the applicant that she now had a boyfriend.

16 The applicant gave evidence. He denied any sexual interest in the complainant and denied engaging in any sexual activity with her.

17 There is only one ground of the application for leave to appeal against conviction. It is as follows:

Since the applicant's trial, fresh evidence has become available that gives rise to a significant possibility that the jury might have acquitted the applicant if the evidence had been available at trial, such as there as been a substantial miscarriage of justice.

18 The complainant made an application for compensation pursuant to the provisions of s 85B of the Sentencing Act 1991. A report by a psychologist, Dr Margaret Uebergang, dated 22 May 2010 was made in support of the application. The psychologist reported:

At one time while her mother was away, [the applicant] told [the complainant] that he couldn't put clean sheets onto his bed. After [the complainant] replaced the sheets he strongly suggested [the complainant] sleep in his bed. During the night [the complainant] experienced [the applicant] touching her sexually from behind.

[The complainant] disclosed this incident to her mother in front of [the applicant], and [the applicant] commented that [the complainant] must have dreamt the incident. [The complainant's] mother chastised [the complainant] and advised her to be careful whom she said such things to. This effectively silenced [the complainant] from further disclosures once the abuse became a regular occurrence.

In February 2003 the sexualised touching recommenced, and in April of that year sexual intercourse began. ... The sexualised touching occurred every night with intercourse occurring approximately twice a week.

19 Counsel for the respondent concedes that the statements in the psychologist's report constitute fresh evidence. The evidence could have been led as hearsay evidence pursuant to the provisions of s 59 of the Evidence Act or may have constituted prior inconsistent statements admissible pursuant to ss 103 or 106 of the Act. At trial the statements could have been put to the complainant. If she did not admit that she had made the statements, evidence could have been led from Dr Uebergang to prove the statements were made.

20 If the evidence had been available to counsel at trial, the trial may have proceeded differently in that there may have been cross-examination of the complainant and her mother and, depending on the evidence given by the complainant, possibly evidence given by Dr Uebergang. The cross-examination or the evidence may have affected the credit of the complainant and possibly that of the mother.

21 The complainant's evidence at trial was that the offending commenced in February 2003. No evidence of complaint was given by the complainant in her evidence-in-chief, for at an earlier trial evidence of complaint said to have been made in November 2003 was excluded as it was ruled that the complaint had not been made at the first opportunity. In cross-examination counsel for the applicant asked the complainant when she complained to the police. The complainant said she complained on 18 March 2004. Counsel asked the complainant whether she made any complaint to a teacher, a counsellor or her grandmother. The complainant said that she had not and added:

[The applicant] told me that if I ever told anyone about it, he would go to gaol and I was really scared about that, because I liked him and I didn't want him to go to gaol.

The complainant was asked whether in late 2003 she had denied that the applicant had ever had sexual intercourse with her. The complainant said she spoke to her boyfriend and said:

I didn't deny it to him ... He was the first person I told about it.

22 In her evidence the complainant's mother said nothing about any disclosure by the complainant in 2003 of sexual misconduct on the part of the applicant. Counsel for the applicant did not cross-examine the complainant's mother as to whether she was told by the complainant of sexual misconduct on the part of the applicant. It was common ground at the trial that in March 2004 the matter came to the attention of the police after the complainant's mother discovered suspicious entries in the complainant's diary and confronted her. The parties accepted that the complainant's diary was not admissible as evidence. Counsel for the applicant said to the judge:

It is the Crown case, as I understand it, that there was no discussion between the complainant and [the complainant's mother] until March 2004 ... As long as that's understood, I won't ask [the complainant's mother] about March 2004. ... She might blurt out something about a diary ...

So it seems to me fairly clear that the Crown case is that - not so much the Crown case - but it is indisputable that nothing was said between the complainant and [the complainant's mother] until March 2004 pursuant to her statement. As long as that is the agreed position, I will not trouble this witness with some questions about that.

23 The question then becomes whether the evidence was sufficiently relevant and cogent in that, if considered in combination with the evidence already given at the trial, there is 'a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial' to use the words of Winneke P in R v AHK.[1] His Honour continued:

An appellate court will always receive "fresh evidence" if it can be clearly shown that the failure to receive it might have the result that an unjust conviction is permitted to stand.

In Craig v R Rich and Dixon JJ stated the test in these terms:

It cannot be said that a miscarriage of justice occurred unless the fresh evidence has cogency and plausibility as well as relevance. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial, the result ought in minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.[2]

The test may be expressed in terms of significant possibility or likelihood. In Mickelberg v R[3] Toohey and Gaudron JJ said:

In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it or, if there be a practical difference, that there is "a significant possibility that the jury, acting reasonably, would have acquitted [the accused]."[4]

Likelihood here means a substantial chance, one that is real and not remote.[5]

24 This Court must consider all the new evidence itself, 'forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial ... '.[6]

25 The statements made by the complainant to the psychologist are not inconsistent with the complainant's evidence of the acts constituting the alleged offences. Rather, the statements tend to undermine the complainant's credit in that they are inconsistent with her evidence that the sexual misconduct commenced in February 2003, that she first told another person of the applicant's conduct in November 2003 and that in addition to the offences described in her evidence, there was sexualised touching every night and twice weekly intercourse. Counsel for the applicant contended that the fact that the new evidence could only be used to attack the complainant's credit did not diminish its importance for the complainant's credit was the central issue in the trial.

26 Two of the counsel who appeared for the applicant in his trial have deposed that they would have used the statements made to Dr Uebergang in cross-examining the complainant, thereby running the risk that the jury would accept that there had been an early complaint, which would have bolstered the complainant's credit. I think it likely that, if this course had been followed, counsel would have elicited the evidence given by the complainant at the fourth trial and would then have established the making of the statements reported by the psychologist. I also think it likely that the jury would have preferred the version first given in court to the version given to the psychologist.

27 It appears that there was a considerable body of material consistent with the evidence given by the complainant in cross-examination and inconsistent with the account given by her to the psychologist.

28 In the course of the ruling excluding evidence of complaint at the earlier trial, the judge said that the applicant's offending came to the attention of the police in March 2004 after the complainant's mother discovered suspicious entries in the complainant's diary and confronted the complainant. The judge referred to a statement made by the complainant on 22 May 2007. In that statement the complainant said that her boyfriend:

... kept telling me that I should tell someone about what happened. I told him that I was going to but I couldn't at the time. [The complainant's boyfriend] was the only one I felt close enough to and he was the only person close enough to me that I could speak to about it. I didn't feel that I had anyone else that I could turn to.

The complainant said that in March 2004 her mother found her diary and that as a consequence, 'I didn't have a choice but to talk to her about what had happened.' It appears from affidavits sworn by the applicant and two of the applicant's previous counsel that the complainant's evidence in earlier trials accorded with her evidence in the fourth trial: she complained first to her boyfriend in November 2003; she did not complain to her mother until March 2004; and she was asked by the applicant to keep the matter a secret.

29 Counsel for the respondent submitted that the statements made to the psychologist could be reconciled with the complainant's evidence by regarding the statements as referring to sexual touching and the evidence as confined to sexual intercourse. In my opinion, the distinction drawn by counsel is not one which the complainant made. It is, I think, clear that when she spoke of the disclosures made to her boyfriend and her mother, the complainant was referring to all sexual misconduct on the part of the applicant. Her statements to the psychologist were directly at odds with her evidence at trial.

30 While the new material is largely consistent with the complainant's evidence of the offences themselves, it does conflict with significant evidence bearing upon the complainant's reaction to the offending. When the new material is set against the evidence led from the complainant at trial, I am of the opinion that there is a substantial chance that the jury would conclude that the complainant was prepared

to invent incidents which suited her and that her testimony could not be relied upon. In other words there is significant possibility that the jury, acting reasonably, would have acquitted the applicant if the material contained in the psychologist's report had been before it in the trial.

31 For the foregoing reasons, I would grant the application for leave to appeal against conviction, allow the appeal and order that there be a retrial.

[1] R v AHK [2001] VSCA 220, [8] (Winneke P). See also Gallagher v R [1986] HCA 26; (1986) 160 CLR 392, 402 (Mason and Deane JJ); R v DD [2005] VSCA 308; Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ).

[2] [1933] HCA 41; (1933) 49 CLR 429, 439.

[3] [1989] HCA 35; (1989) 167 CLR 259.

[5] Boughey v R [1986] HCA 29; (1986) 161 CLR 10, 21 (Mason, Wilson and Deane JJ). See R v Nguyen and Tran [1998] 4 VR 394, 401 (Kenny JA).

[6] Ratten v R [1974] HCA 35; (1974) 131 CLR 510, 518 (Barwick CJ).