Director of Public Prosecutions v Troy Taylor (Ruling on Contested Plea)

[2021] VSC 69

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0290

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
TROY TAYLOR	Accused

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATES OF HEARING:	11 to 13 January 2021
DATE OF RULING:	19 February 2021
CASE MAY BE CITED AS:	DPP v Troy Taylor (Ruling on Contested Plea)
MEDIUM NEUTRAL CITATION:	[2021] VSC 69

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CRIMINAL LAW – Manslaughter – Contested plea hearing.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Gibson QC	Ms A Hogan, Solicitor of Public Prosecutions
For the Accused	Mr H Rattray with Mr W Barker	Balmer & Associates

HIS HONOUR:

Background

1. Troy Taylor (‘Taylor’) has pleaded guilty to the manslaughter of Michael Wilson (‘Wilson’). Mr Hayden Rattray who, with Mr William Barker, appeared for Taylor submitted that I should sentence Taylor on the basis that he has set out in his submissions, supported by the evidence given by Taylor at the plea.

1. In summary, Taylor gave evidence that he heard Wilson encouraging his partner, Kim Scott, to attack Taylor’s wife, Tracey Taylor, and that Wilson threatened to kill her.  As a result, Taylor ran out of the house and having reached the driveway saw Wilson with his arm around Tracey Taylor’s neck and that he appeared to have something in his hand which Taylor took to be a knife.  Taylor then returned to his own home to  get an implement which he could use to disarm Wilson.  That led him to take possession of one half of a pair of edge trimmers.  Although the weapon has never been recovered, the other half of it was found in Taylor’s backyard.

1. Taylor says that he confronted Wilson who still had hold of Tracey Taylor. He says that somehow his hand was cut and, in reaction to that, he struck Wilson in the back with the weapon. Taylor said that he did what he did to defend his partner and himself. I proceed on the basis that by his plea he accepts that his response was not reasonable in the circumstances as he believed them to be. It seems to me that, by his plea, he accepts that he should have done something falling short of striking Michael Wilson in the back with the weapon.

Ruling

1. This is a difficult case.  No witness other than Taylor had a complete and uninterrupted view of all of the events. The absence of Tracey Taylor as a witness creates a number of difficulties. I do not draw any inference contrary the interests of Taylor from her absence

1. In relation to his evidence, I do not accept that Taylor came to the premises twice. If, as Taylor says, he saw Wilson apparently armed with a knife and with his arm around Tracey Taylor’s neck, he would have at the very least shouted something.  On the timing of events as described by Kim Scott, all of which seem reasonable, there does not appear to have been time for Taylor to have made two trips.  I do accept that he did hear a threat to kill and responded to it by bringing the weapon with him. It is reasonable to assume that if the police officers did hear a threat from some distance away, that Taylor heard it too.  I accept that Taylor’s reason for coming onto Wilson’s property was to protect Tracey Taylor.  I also accept that there was something unusual about the events of this day in comparison to various incidents which had happened in the past. In particular, that Wilson was behaving more aggressively than he had done on other occasions.  I accept that Wilson did come out of his back gate and that he was angry.  That anger was directed towards Tracey Taylor.

1. On the available evidence, other than that of Taylor, it is not possible to say whether Wilson actually came into contact with Tracey Taylor.  I accept that at some stage they must have been near one another.  It is possible that when Wilson emerged from the backyard Tracey Taylor moved down the driveway and that is how she came to be seen by witness Joel Grass behind the car.  I am not satisfied that by the time Taylor arrived Wilson had hold of Tracey Taylor.  The infliction of the fatal wound is inconsistent with Tracey Taylor being in the immediate vicinity. I am not satisfied that Taylor received the cut in the altercation with Wilson. The description and demonstration which Taylor gave in evidence as to how he received the cut was, at best, unconvincing. I am not able to say on the evidence, including that of Taylor, how that cut was received, but there are a number of possibilities including that it occurred somehow when Taylor was set upon by the other men.

1. The only evidence that Wilson was armed came from Taylor.  I do not accept his evidence in that regard.  It follows that, as the matter stands, there is no evidence that Wilson was armed.

1. It follows that Taylor falls to be sentenced on the basis that he was responding to a threat that he heard but using the weapon in the way that the did was not a reasonable response in the circumstances as he perceived them to be.  I am prepared to accept that he now may well believe that matters occurred in the way he describes, but I do not regard him as an accurate historian.