Coleman v The Queen [2011] VSCA 301 (12 October 2011)

CRIMINAL LAW – Incest and indecent acts with a child – Fresh evidence bearing on the credit of the complainant – Significant possibility that the jury would have acquitted the accused if the fresh evidence had been before it.

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.