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)