Citation: R v Coleman (No. 1) [2024] NSWDC 575
Court: District Court of New South Wales
Date: 9 October 2024
Judge(s): Montgomery DCJ
Background
A Detective Senior Constable of the NSW Police Force was convicted by jury on 24 May 2024 of three counts: misconduct in public office (Count 1), sexual touching involving the breasts of the complainant (Count 5), and a further offence (Count 7). The convictions arose from his conduct while acting as the investigating officer in relation to the complainant's sexual assault complaint. The jury acquitted him of additional counts of sexual touching and sexual assault alleged to have occurred at various locations, including Kable Street.
The core factual allegation was that the offender had exploited his position as the complainant's investigating police officer to pursue a sexual relationship with her. The conduct included non-consensual sexual touching, offering money in exchange for sexual favours, and engaging in sexual activity at a police station, all while failing to disclose a conflict of interest or remove himself from the investigation.
This judgment does not impose the sentence. It resolves disputes about the factual basis on which the offender would be sentenced, resolving a contested process in which the parties and the Court had exchanged multiple drafts of proposed sentencing facts over several months.
Legal Issues
- What facts were established for sentencing purposes, consistent with the jury's verdicts, on the charge of misconduct in public office?
- How should a sentencing court approach contested facts where jury verdicts are equally consistent with more than one version of events?
- Where the jury acquitted on some counts and convicted on others, what inferences could properly be drawn about the complainant's consent and the offender's knowledge of that consent?
- Which specific disputed paragraphs in the draft statement of facts should be accepted, rejected, or amended?
Decision
Montgomery DCJ applied the established principle that a sentencing court is not bound to adopt the version of facts most favourable to the offender: see R v Olbrich (1999) 199 CLR 270. Where the offender asserts a more favourable factual basis for sentencing, the onus rests on the offender to prove that version on the balance of probabilities. The court cannot, however, find facts inconsistent with the jury's verdicts, whether express or necessarily implied.
The central complexity arose from the acquittals on the sexual assault and some sexual touching counts. The court found that those not-guilty verdicts were equally consistent with two competing explanations: that the complainant had in fact consented, or that the offender lacked the requisite knowledge that she was not consenting. Because neither explanation could be excluded, the court could not treat the acquitted conduct as established non-consensual conduct for sentencing purposes on Count 1.
On individual disputed paragraphs, the court made a series of careful adjustments. It deleted a reference to the offender wanting a lap dance at the Velvet Underground (not supported by the relevant transcript), declined to characterise the Kable Street meeting as evasive police conduct (the jury's acquittals on the Kable Street counts undermined that inference), and confirmed that the guilty verdict on Count 5 necessarily imported the elements of non-consent and requisite knowledge of non-consent. The court also confirmed that the offender's wearing of his police-issue firearm at Colonial Reserve was an agreed and relevant sentencing fact.
The judgment records the offender's own evidence acknowledging that he had not behaved honestly, had failed to uphold the values of the NSW Police Force, and had known that sexual intercourse at a police station was misconduct. He explained his failure to remove himself from the investigation in his own words: because a young woman was offering to have sex with him for money, and he wanted to.
Orders Made
No orders were made in this decision.
Key Takeaways
- A sentencing court is not bound to adopt the factual version most favourable to the offender, but where the offender asserts a more favourable basis, the onus falls on the offender to establish it on the balance of probabilities.
- Not-guilty verdicts on related counts do not automatically establish that the conduct underlying those counts occurred consensually. Where acquittals are equally consistent with actual consent and with the offender's lack of requisite knowledge of non-consent, neither inference can be drawn against the offender for sentencing.
- The District Court confirmed that a guilty verdict on a sexual touching count necessarily and impliedly incorporates the elements of non-consent and the offender's requisite knowledge, even where those elements are not expressly recorded in the verdict.
- Facts relevant to sentencing must be consistent with what the jury's verdicts, taken as a whole, express or necessarily imply. Where acquittals cast doubt on a complainant's account of events at a particular location, sentencing facts characterising the offender's conduct at that location as improper or evasive cannot be adopted on a beyond reasonable doubt standard.
- Misconduct in public office, as illustrated here, encompasses a police officer's exploitation of an investigative role to pursue personal sexual gratification with a complainant, including failures to disclose conflicts of interest and to maintain professional boundaries, conduct the offender himself conceded was serious enough to warrant criminal punishment.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61HI(1)
- Police Act 1990 (NSW), s 7
Cases:
- 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