R v Taylor

Case [2015] ACTSC 43

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

The Queen v Keith Taylor

Citation:

[2015] ACTSC 43

Hearing Date(s):

16 February 2015

DecisionDate:

16 February 2015

Before:

Refshauge J

Decision:

1.    Keith Taylor be convicted of engaging in sexual intercourse without consent on 8 December 2012. 

2.    Keith Taylor be sentenced to two years imprisonment to commence on 16 February 2015. 

3.    That the sentence of imprisonment be suspended on 16 August 2015 for two years and six months. 

4.    That Keith Taylor sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) from 16 August 2015 for two years and six months with the following conditions:

(a)         a probation condition that he be under the supervision of the Director General or her delegate for two years, or such lesser period as the person supervising him deems appropriate, and obey all reasonable directions of the person supervising him, including as to ongoing counselling, including for alcohol and drug use.

(b)         a condition that he either continue counselling with Anne Macdonald for the period she, in consultation with the person supervising him, considers appropriate, or that he participate in the ACT Corrective Services adult sex offenders program as follows: If he has not already done so, he submit himself for assessment for the ACT Corrective Services adult sex offenders program and, if suitable, he enter and complete that program, or if at the time he has already been admitted to the program, he continue with it and complete the program.

(c)         a condition that he perform 300 hours of community service work within two years. 

Category:

Principal Judgment

Catchwords:

CRIMINAL LAW – Judgment and Punishment – Sentence – Sexual intercourse without consent – Sleeping victim

Plea – Statements contravening a guilty plea

Legislation Cited:

Crimes Act 1900 (ACT), s 54(1)

Crimes (Sentence Administration) Act 2005 (ACT)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 48(2)(C), 51, 53

Cases Cited:

Bourke v R (2010) 199 A Crim R 38

Coleman v the Queen (1990) 47 A Crim R 306
Ibbs v the Queen (1987) 163 CLR 447
Maxwell v R (1995) 184 CLR 501
Muldrock v The Queen (2011) 244 CLR 120
R v Buckley (Unreported, ACT Supreme Court, SCC 214 of 2012, AJ Nield, 30 August 2013)
R v Buda-Kaa [2013] ACTCA 46
R v Chiron [1980] 1 NSWLR 218
R v Davies (1993) MVR 481
R v DF (No 2) [2012] ACTSC 3
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Liberti (1991) 55 A Crim R 120
R v MT [2014] ACTSC 162
R v Murphy [1965] VR 187
R v Ryan (2001) 206 CLR 267
R vSagiv (1986) 22 A Crim R 73;
R v ST (No 2)[2014] ACTSC 52
W v R (2006) 162 A Crim R 264

Parties:

The Queen (Crown)

Keith Taylor (Accused)

Representation:

Counsel

Ms J Campbell (Crown)

Mr J Sabharwal (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

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Details
AGLC
R v Taylor [2015] ACTSC 43
Case
[2015] ACTSC 43
Decision Date

CaseChat Overview and Summary

The case of R v Taylor involves the defendant, Keith Taylor, who was charged with engaging in sexual intercourse without consent on the 8th of December 2012. The case was heard in the ACT Supreme Court. The dispute centred around the admissibility of evidence related to the sexual activities of the complainant and whether these activities were relevant to the case. The complainant had been seen masturbating and moaning in a sexual way at a party attended by the defendant. The defendant had pleaded guilty to the offence of sexual intercourse without consent. The legal issues the court had to determine were whether the evidence of the complainant's sexual activities was relevant and should be admitted in the proceedings, and if so, whether the evidence was of substantial relevance to the facts in issue. The court had to consider section 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and whether the evidence had substantial relevance under section 53 of the Act. The court held that the evidence was relevant and of substantial relevance as it was important for sentencing and showed that the victim was substantially intoxicated and impaired, which led to her being incapable of consenting to the intercourse. The court granted leave to the Crown to adduce the evidence. The court sentenced Taylor to two years imprisonment, which was to commence on 16 February 2015. The sentence was suspended on 16 August 2015 for two years and six months. Taylor was also required to comply with good behaviour obligations and perform 300 hours of community service work within two years.

Orders

Orders of the court

1. Keith Taylor be convicted of engaging in sexual intercourse without consent on 8 December 2012.

2. Keith Taylor be sentenced to two years imprisonment to commence on 16 February 2015.

3. That the sentence of imprisonment be suspended on 16 August 2015 for two years and six months.

4. That Keith Taylor sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) from 16 August 2015 for two years and six months with the following conditions:

(a) a probation condition that he be under the supervision of the Director General or her delegate for two years, or such lesser period as the person supervising him deems appropriate, and obey all reasonable directions of the person supervising him, including as to ongoing counselling, including for alcohol and drug use.

(b) a condition that he either continue counselling with Anne Macdonald for the period she, in consultation with the person supervising him, considers appropriate, or that he participate in the ACT Corrective Services adult sex offenders program as follows: If he has not already done so, he submit himself for assessment for the ACT Corrective Services adult sex offenders program and, if suitable, he enter and complete that program, or if at the time he has already been admitted to the program, he continue with it and complete the program.

(c) a condition that he perform 300 hours of community service work within two years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), (the Evidence Act), provides that evidence of the sexual activities of a complainant is not admissible in sexual offence proceedings unless the court dealing with the proceedings gives leave. The application for leave must be in writing. Written application was made in this case, though initially for the purposes of the trial. Mr Taylor consented to the admission of the evidence but the court is required to exercise its own discretion as to whether or not it should grant leave. Under s 53 of the Act, leave must not be given unless, relevantly in this case, the evidence has substantial relevance to the facts in issue. The evidence is that the complainant was masturbating at a party in the presence of Mr Taylor and other witnesses. She was also heard by a witness to “moan in a sexual way” after Mr Taylor had left the premises. There is no doubt that these proceedings are relevantly sexual offence proceedings, s 48(2)(C) of the Evidence (Miscellaneous Provisions) Act. The term “sexual activities” is not defined in the Act. It should be given its ordinary meaning. Taking a literal approach there is no doubt that masturbation is an activity and it is sexual in the sense that it is related to the gratification of sexual appetites. The other evidence of moaning in a sexual way is perhaps more marginal and could well be seen as sexual in the circumstances, namely after Mr Taylor is said to have committed the offence. If it is not sexual activity, no leave is required to adduce evidence of it. The need for “substantial relevance” means, as I held in the R v ST (No 2)[2014] ACTSC 52 following Slicer J in W v R (2006) 162 A Crim R 264, that the evidence is of “considerable importance” “concerning the essentials” or “important in material terms.” I am not suggesting that the sexual behaviour of a victim justifies non‑consensual sexual intercourse. It does seem to me that the circumstances of the incident are important for sentencing. Indeed, the Crown relies upon the fact that the victim engaged in these activities in public to show that the victim was substantially intoxicated and impaired in a way that soon led to her being incapable of consenting to the intercourse that Mr Taylor had with her. The evidence was a matter relevant to an essential element in the offence. Accordingly, I granted leave to the Crown to adduce that evidence and these are my reasons. The events that led to Mr Taylor being charged with the offence to which he has pleaded guilty occurred at and after a party which he attended on 8 December 2012 at residential premises in Turner. The victim also attended the party. During the evening the victim was drinking champagne and white wine and at some stage took a “trip” of lysergic acid diethylamide (LSD). There is no evidence that Mr Taylor knew that the victim had taken LSD. Mr Taylor arrived at the party about two and a half hours after the victim and joined her and others in an outdoor entertainment area known as “the vortex.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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