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Court of Criminal Appeal 27 June 2025

Coleman v R

[2025] NSWCCA 99

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT

Citation: Coleman v R [2025] NSWCCA 99
Court: NSW Court of Criminal Appeal
Date: 27 June 2025
Judges: Davies J; Hamill J; McNaughton J (principal judgment)

Background

The applicant, a 55-year-old detective with the NSW Police Force, stood trial in the District Court at Penrith on a ten-count indictment arising from his sexual interactions with a 19-year-old complainant. The complainant had first come into contact with the applicant when she attended Windsor Police Station to report an unrelated matter. The applicant admitted to having engaged in sexual intercourse with the complainant at the police station during the course of his employment.

The jury returned a mixed verdict: it convicted the applicant on one count of misconduct in public office (a common law offence) and two counts of sexual touching without consent under s 61KC(a) of the Crimes Act 1900 (NSW), while acquitting him on four further counts of sexual touching without consent and three counts of sexual intercourse without consent under s 61I.

The applicant sought leave to appeal against all three convictions, arguing that the guilty verdicts were unreasonable when viewed alongside the acquittals.

  • Whether the jury's convictions on two counts of sexual touching without consent were unreasonable and inconsistent with the acquittals on the remaining sexual touching and sexual intercourse counts.
  • Whether, if those two convictions were unreasonable, the resulting unreasonableness then infected and rendered unreasonable the conviction on the misconduct in public office count.

Decision

The Court of Criminal Appeal, constituted by McNaughton J (with Davies J and Hamill J agreeing), dismissed the appeal. On the first ground, the Court found that the differing verdicts could be logically and reasonably explained by reference to the specific evidence supporting each count on which the applicant was convicted. Assessing the complainant's credibility, including non-demeanour considerations, remained quintessentially a matter for the jury. The jury, having heard all witnesses including the complainant and the applicant, was better placed than an appellate court to weigh that evidence.

In relation to the guilty verdict on count 5 (touching to the breasts at Colonial Reserve), the Court noted that this count was supported by cogent and unimpeached complaint evidence that distinguished it from the counts on which the jury acquitted. In relation to count 7 (touching at the police station), the complainant gave clear evidence that she had expressly refused consent and conveyed that refusal to the applicant. That sequence of events provided "something additional" that rationally explained why the jury convicted on count 7 while acquitting on the acts that followed, given the complainant's evidence that she had subsequently resigned herself to the situation and attempted to regain some control.

Hamill J, adding brief remarks, observed that the jury had generally accepted the complainant as an honest and reliable witness and had given the applicant the benefit of the doubt generously in relation to the majority of counts. The mixed verdicts comfortably satisfied the test of logic and reasonableness established in the applicable High Court authorities. Because the first ground failed, the second ground fell away entirely: there was no basis on which the convictions on counts 5 and 7 could render the misconduct in public office conviction unreasonable.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Mixed verdicts in a multi-count sexual assault trial are not automatically unreasonable simply because a jury convicts on some counts and acquits on others; the question is whether the differing outcomes can be logically and rationally explained by reference to the evidence specific to each count.
  • A conviction for sexual touching without consent may stand alongside acquittals on related counts where the conviction is supported by materially stronger or qualitatively distinct evidence, such as unimpeached complaint testimony or an unambiguous communicated refusal of consent.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that credibility assessment, including non-demeanour considerations, is quintessentially a jury question, and that appellate courts are in a less favourable position than the jury to evaluate the evidence of witnesses who gave oral testimony at trial.
  • Where a ground of appeal attacking a conviction for a secondary offence depends entirely on the success of a ground attacking related primary convictions, the secondary ground falls away if the primary ground is not established.
  • The Court also noted, without finding any unfairness, that the particulars of the misconduct in public office count were framed more broadly than the specific allegations in the remaining counts, and that this may in fact have operated to the applicant's advantage rather than his detriment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61KC(a), 61I
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Police Act 1990 (NSW), s 181D

Cases:
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- The King v ZT [2025] HCA 9; (2025) 99 ALJR 676
- Xu v R [2019] NSWCCA 178