Re Application for Bail by Taylor
[2020] VSC 526
•20 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0185
IN THE MATTER of the Bail Act 1977 (Vic)
-and-
IN THE MATTER of an Application for Bail by Brett TAYLOR
---
JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 August 2020 |
DATE OF ORDERS: | 19 August 2020 |
DATE OF REASONS: | 20 August 2020 |
CASE MAY BE CITED AS: | Re Application for Bail by Taylor |
MEDIUM NEUTRAL CITATION: | [2020] VSC 526 |
---
CRIMINAL LAW – Application for Bail – Four charges of rape and two charges of assault at common law – Applicant required to show compelling reason – Compelling reason established – No unacceptable risk – Bail granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Tiwana | Dribbin and Crown Criminal Law |
| For the Respondent | Mr B Sonnet | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant, Brett Taylor, seeks a grant of bail in respect of four charges of rape and two charges of assault at common law, arising from offending against two separate complainants that he met through the dating application, Tinder.
He was first interviewed in relation to allegations made by one of the complainants on 18 May 2020 and released pending summons. On 30 July 2020, as a result of further allegations, he was charged and remanded on the present offences. He has been in custody since that date.
The applicant was refused bail at the Melbourne Magistrates’ Court on 31 July 2020 as he failed to show a compelling reason justifying his release on bail.
The matter is next listed on 23 October 2020 for committal mention at the Melbourne Magistrates’ Court.
The applicable legislation
As the applicant is charged with rape, a Sch 2 offence under the Bail Act 1977 (‘the Act’), the Court must refuse bail unless satisfied by the applicant that a compelling reason exists that justifies his release on bail.[1]
[1]Bail Act 1977, ss 4AA(3), 4C, Sch 2, item 9 (‘the Act’).
In determining whether a compelling reason has been made out, the Court must take into account the ‘surrounding circumstances’ set out in s 3AAA of the Act.[2]
[2]Ibid, s 4C(3).
The meaning of a ‘compelling reason’ was considered by the Court of Appeal in in Rodgers v The Queen.[3] Their Honours summarised the principles to be applied as follows:
(1) For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2) It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3) A compelling reason is one which is forceful and therefore convincing — a reason which is difficult to resist.[4]
[3][2019] VSCA 214.
[4]Ibid [43] (footnotes omitted).
If satisfied as to the existence of a compelling reason, the Court must apply the unacceptable risk test.[5] The Act mandates that the Court must refuse bail if satisfied by the respondent that there is an unacceptable risk of the kind set out in s 4E(1)(a).[6] At this second step, the Court must again have regard to the surrounding circumstances in s 3AAA and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[7]
[5]The Act, s 4D(1)(b).
[6]Ibid, s 4E(2).
[7]Ibid, s 4E(3).
Finally, when interpreting the Act, the Court must have regard to the guiding principles set out in s 1B of the Act.
The alleged offending
As stated, both of the complainants in this matter matched with the applicant on the dating application, Tinder, and later arranged to meet in person.
The first set of charges relate to an incident alleged to have occurred on 25 October 2018, when the applicant met the first complainant for dinner in Drouin before driving her in his vehicle to a secluded location in a housing estate development. While parked, they lay down in the backseat of the vehicle and kissed.
It is alleged that the applicant repeatedly attempted to undo the button on the first complainant’s jeans, to which she responded by telling him no and pushing his hand away. When the applicant persisted, she stopped fighting and froze. The applicant allegedly pulled down the first complainant’s pants and penetrated her vagina with his penis, without a condom. As he did this, he squeezed her neck tightly with his hand, causing her to feel light-headed and struggle to breathe. After a time, the applicant stopped. He then rolled the first complainant onto her stomach and penetrated her vagina with his penis again. She started crying.
Following this, the applicant returned to the front driver seat of the vehicle while the first complainant remained in the back seat, crying. The applicant offered to drive her home, and she entered the front passenger seat. Upon arriving home, she went inside and showered. She suffered pain in her neck and struggled to move it as a result of the assault but did not seek medical treatment.
In the days following this incident, the first complainant disclosed to three friends that the applicant had choked and raped her, including disclosures made over Facebook Messenger. She was encouraged to report the incident to police but declined. During a subsequent sexual health check with her general practitioner, she again disclosed that she had been raped but had not reported the offender. She asked the practitioner not to report the matter. On 2 January 2019, she reported the incident through the Sexual Assault Report Anonymously (‘SARA’) website.[8]
[8]The SARA website ( provides an online platform for anonymously reporting sexual assault or harassment to the South Eastern Centre Against Sexual Assault. Data is then provided to police. It is noted that the website appears to no longer be active.
On 14 May 2020, the first complainant re-matched with the applicant on Tinder. A conversation followed in which the applicant confirmed that he remembered the night that they met. The first complainant responded by stating
.. remember how I kept saying “no” and u kept pressuring me lol … and then I cried after … Good times … Fuck you … If a girl says no she means no.
On 1 July 2020, she made a statement to police.
The second incident allegedly occurred on 24 March 2020, when the applicant attended the second complainant’s shared student accommodation at Deakin University. He arrived just after 11pm and met with the second complainant and two of her housemates. The group began drinking in the lounge area of their share house, with the second complainant consuming five mixed vodka drinks throughout the night. She felt tipsy but not drunk.
The second complainant prepared a bed for the applicant to sleep in some 20 metres down the hall from her own bedroom. While doing this, her glass was left unattended. From that point, she reports feeling ‘strange’ and her memory of the night is limited.
The second complainant recalls lying on her bed naked and observing the applicant putting a condom on. He rolled her onto her stomach, held her down by her neck and penetrated her vagina with his penis, causing pain. While choking her, he explained that he had learned to do so in a way that prevents a person from breathing or speaking by targeting their windpipe. Throughout this, she went in and out of consciousness.
Afterwards, the second complainant left the room briefly. On her return, the applicant handed her a glass and told her to drink. She did so, laying in the foetal position on the bed, away from the applicant. He then rolled her onto her stomach again and, while choking her with his hands, penetrated her vagina a second time. After a time, he stopped and the two fell asleep.
The following morning, the second complainant awoke next to the applicant and asked him to leave. During the day, she was teased by her housemates regarding sounds that had been heard from her bedroom the previous night and marks were observed on her neck. Feeling too ashamed to disclose the nature of the incident, she went along with the joke. She later asked her mother to collect her from the accommodation so she could return to the family home earlier than originally planned.
Throughout April 2020, the second complainant made a number of disclosures to friends regarding having been physically and sexually assaulted, indicating that she was too embarrassed to make a formal report. On 30 April 2020, she reported the incident to police.
On 18 May 2020, the applicant was arrested and a search warrant executed at his residence. During his interview, he denied all allegations in relation to the second complainant and asserted that the activity was consensual. He admitted to choking the second complainant on two occasions, first with his hand from the front and later by placing her neck between his forearm and bicep as she lay on her stomach. He stated that he does not choke sexual partners unless requested, but that he is careful not to damage their windpipe in doing so. He confirmed that he speaks to ‘hundreds’ of women on Tinder and meets a small percentage of them in person. He was released pending summons.
The applicant was later identified as the perpetrator of the first incident through the SARA report made by the first complainant. A second search warrant was executed at his residence on 30 July 2020 and bedding located in his vehicle was photographed. He was arrested and conveyed to the Melbourne West police station for interview. While he acknowledged having sexual intercourse with the first complainant, he again stated that the activity was consensual.
The applicant’s background
The applicant is 25 years old. He was aged between 23 and 24 years old at the time of the alleged offending. It is stated that the applicant was previously in regular employment but became unemployed as a result of the COVID-19 pandemic. The nature of that employment is not clear on the material. Prior to his arrest, he resided with his mother at [redacted], save for a period of time in March 2020 when he resided in Southbank.
The applicant has no criminal history. He is said to have been suffering from anxiety and depression since 2018/2019. Some medical evidence was provided to the Court and the matters were generally confirmed by his mother. The position appears to be that he has been prescribed medication for anxiety and depression and received some counselling from a psychologist.
The applicant’s contentions
In support of the application, the applicant relied on an affidavit sworn by his solicitor, Victor Wang of Dribbin and Brown Criminal Law, on 5 August 2020. That affidavit sets out the following matters upon which the applicant relied to show a compelling reason justifying a grant of bail.
The strength of the prosecution case
The applicant disputes all charges against him and asserts that, in respect of both charged incidents, the sexual activity was consensual. It is noted that, at the previous bail application on 31 July 2020, the informant gave evidence during cross-examination that the first complainant had stated to a friend via Facebook Messenger that the applicant had not raped her.[9]
[9]There were a number of messages on Facebook Messenger in particular between this complainant and a friend which did inter alia contain this particular message. Copies of the messages became exhibit 5T on the application.
Lack of criminal history and first time in custody
The applicant has no criminal history, has never been on bail and has no outstanding matters. The present period of remand represents his first time in custody.
Family support, stable accommodation and supervision on bail
The applicant’s mother, Rosemary Taylor, was supportive of the applicant and was prepared to have him return to the family home if granted bail. She was also prepared to supervise him to the best of her ability to ensure compliance with any bail conditions. Ms Taylor is a manager of a health clinic and she did give evidence on the application and gave an undertaking to me that she would report any breach of bail to the informant.
Ms Taylor also gave evidence that the applicant is supported by his father.
Delay
The matter is next listed for committal mention in October 2020. It is submitted that, if committed, any trial of the matter would very likely not be listed before 2022, in light of the present backlog of cases in the County Court. The applicant submitted that the anticipated delay in this matter, in the context of the court’s response to the COVID-19 pandemic, would be substantial.
Onerous conditions and burden of being in custody during the COVID-19 pandemic
In support of bail, the applicant relied on the ‘current conditions in custody’ and the consequent risk to his health as a result of the pandemic. Beyond a reference to his diagnoses of depression and anxiety, the applicant did not detail the impact of the COVID-19 pandemic on his particular circumstances.
Unacceptable risk
In contending that the applicant, if granted bail, is not an unacceptable risk of the kind identified in s 4E of the Act, it is noted that the applicant has been fully cooperative with police to date, is not subject to any allegations of further offending since first speaking with police, has no previous criminal history or negative bail history, has not attempted to contact either complainant since being charged, and has strong support available to him in the community through his mother. The applicant submitted that appropriate conditions are available that would reduce his risk to an acceptable level, including a prohibition on using Tinder or any other online dating application, and providing his phone and other electronic devices for inspection by police on request.
The respondent’s contentions
The respondent opposed bail on the basis that the applicant has not shown a compelling reason justifying the grant of bail, and that there is an unacceptable risk that the applicant, if granted bail, would endanger the safety or welfare of any person or commit an offence while on bail. In opposing bail, the respondent relied on an affidavit affirmed by the Office of Public Prosecutions solicitor, April Watson, on 12 August 2020 and a report prepared by the informant in this matter.
With respect to the nature and seriousness of the alleged offending, the respondent submits that the charges are serious examples of objectively serious offences, noting that the allegations involved strangulation and humiliation of the complainants during the commission of the rapes. In particular, the degree of force used in the second incident is said to have caused the second complainant to fall in and out of consciousness.
It is asserted that the prosecution case is strong and based on direct evidence from the complainants together with ‘significant and proximate complaint evidence’. Further, it is submitted that a strong tendency and coincidence argument arises from the similar circumstances of the two charged incidents.
In his oral submissions, which were later reinforced in his written submissions which became exhibit 6 on the application, Mr Sonnet made a detailed analysis of what was contained in the statements of each of the complainants. The statements of the complainants were tendered and became exhibits 3 and 4 on the application. I have read Mr Sonnet’s submissions and the statements and have taken them into account.
With respect to delay, the respondent conceded that there may be some delay before a trial can proceed, due to the COVID-19 pandemic. However, it is submitted that any possible trial date is speculative, given that the applicant has not yet been committed. Further, any potential delay is not disproportionate in light of the seriousness of the allegations and the likely sentence to be imposed should the applicant be found guilty.
The respondent noted that no medical evidence was provided to confirm the applicant’s mental health diagnoses with the affidavit in support of his application. The respondent took no issue with the proposed bail address, stating that the applicant’s mother and brother also reside there.
With respect to unacceptable risk, the respondent noted that the applicant has admitted to contacting hundreds of women using Tinder and to meeting up with a small percentage of them for the purposes of sexual intercourse. Analysis of the applicant’s phone, which is ongoing, indicates that he has continued to engage in that activity during April and May 2020, in breach of the directions of the Chief Health Officer.
The informant expressed concern that the applicant, if released on bail, will continue to engage in similar behaviour, giving rise to a risk that he will commit further sexual offences.
It was ultimately submitted that there were no conditions of bail available that would reduce the applicant’s risk to an acceptable level.
Mr Tiwana did not seek to make further submissions in reply to Mr Sonnet.
Conclusion
Compelling reason
I must say that I find this a difficult case, but I have come down on the side of finding that the applicant should be admitted to bail. I am satisfied that compelling reason has been made out because of the question of delay and although the delay is uncertain, it must be that the delay will be greater than it might have been under ordinary circumstances, and it would not be surprising if the applicant was unable to be tried before the early part of 2022.
I regard it as pointless to engage in the hyperbolus assessments, which are beyond speculation and which are being made in some places, but the delay is sufficient to be a factor in relation to showing compelling reason.
The applicant is quite young. He has no prior convictions. He has the support of his mother. His mother has undertaken to report any breaches of bail to the authorities.
The general difficulties that arise of the serving of time in custody during the pandemic include, but not exclusively, that he can have no visitors and the possibility of lockdown being increased.
As I have already set out, Mr Sonnet emphasised in this case that the offending was particularly serious, designed in part to humiliate the young women involved and involving the use of force, while engaging in sexual intercourse in a way which was particularly intimidating for the complainants.
It is put on the applicant’s behalf that the conduct engaged in by the applicant was for sexual purposes and for that reason only, and that the applicant believed that the acts were consensual. Further to that, the applicant had been frank in his descriptions to the police of the conduct which he had engaged in, which demonstrated his belief in the conduct being consensual.
Mr Sonnet emphasised that the applicant’s belief is not the end of the matter. The question at trial will become whether or not his belief in consent is reasonable when assessed objectively.[10]
[10]Section 47(3)(d) of the Jury Directions Act 2015.
That covers the question of compelling reason and I am satisfied that compelling reason has been shown.
Unacceptable risk
I am obliged to consider whether or not the respondent has demonstrated that the applicant is an unacceptable risk of offending whilst on bail and of endangering the safety or welfare of any person.
Mr Sonnet submitted for much the same reasons as set out as to why compelling reason has not been made out, that the applicant was an unacceptable risk. He submitted that when viewing this very serious conduct a strict view has to be taken of the risk that might be involved. In particular, he emphasised the way that the applicant had used dating sites and the particular dating site Tinder, to contact young women for the purposes of seeking to engage in sexual behaviour of this kind. He pointed out that the applicant had continued to do so even during the restrictions which had been imposed as a result of COVID-19.
Mr Tiwana submitted that suitable conditions may be imposed to reduce any risk of reoffending to a level which would not be described as unacceptable. He called the applicant’s mother to give evidence on the application. He submitted that I should find that she was a convincing witness, and relied upon the undertaking she made to me to report any breaches of bail. I accept that she would act in accordance with that undertaking.
I am satisfied that the applicant is not an unacceptable risk and should be admitted to bail.
When I announced the above conclusion and announced the proposed conditions I sought submissions of the parties in relation to conditions. Mr Sonnet submitted that it would be appropriate in the circumstances of the case, to impose a surety, albeit a moderate one. Mr Tiwana opposed that condition. I am satisfied in the circumstances, because of the conditions which were proposed, and because of the general prevailing circumstances relating to the COVID-19 pandemic, that it is not appropriate to impose a surety in this case.
In those circumstances, the applicant was admitted to bail on his own undertaking and on the following special conditions:[11]
[11]These conditions are the same as the proposed conditions except Narre Warren Police Station has been substituted for Berwick Police Station.
1. He attend the Melbourne Magistrates’ Court on 23 October 2020 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
2. He reside at [redacted], and not change that address without the leave of the Court.
3. He obey all COVID-19 restrictions imposed by the Chief Health Officer.
4. That in the event that the COVID-19 curfew is lifted, he remain at [redacted] between the hours of 9:00pm and 6:00am each day for the duration of bail.
5. He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
6. He report Monday, Wednesday and Friday to the Officer in Charge of the Police Station at Narre Warren, or his or her nominee, between the hours of 6:00am and 9:00pm when notified by the informant that reporting has recommenced.
7. He not contact, directly or indirectly, any witness for the prosecution, except the informant.
8. He not leave the State of Victoria.
9. He surrender any passport he may have to the informant within 24 hours and not apply for any further passport.
10. He not attend any points of international departure.
11. He not use Tinder or any other online dating application.
12. He make his phone, or other electronic devices capable of supporting dating applications, available for inspection at the request of a member of Victoria Police.
---
0