R v Valencia Valencia

Hector Enrique Valencia Valencia (“the accused”) killed Kimberly McRae (“Kim McRae” or “the deceased”). He accepts that he did so. The issues in this trial include whether the Crown can establish beyond reasonable doubt that he had an intention to kill or cause grievous bodily harm at the relevant time, and, whether the Crown can exclude, as a reasonable possibility, that the accused believed he had to act to defend himself. The accused accepts that his response was disproportionate to any threat posed by the deceased.

He has pleaded not guilty to count 1 on the indictment, namely, that, between 7 January 2020 and 14 January 2020, he murdered Kim McRae. The accused pleaded guilty to the alternative count that he did unlawfully kill Kim McRae. The plea of guilty to the alternative count is not accepted in full satisfaction of the indictment.

An application was made by the accused to proceed by way of judge alone trial, pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) (“CPA”). The Crown consented to that course. An order was made to that effect on 14 October 2022.

Kim McRae was killed some time on the afternoon of 8 January 2020. I will refer to Kim McRae either by her name, or as “the deceased”. She was a male-to-female transgender person, born in September 1950. She was a self-employed sex worker, operating from her home in Coogee. She advertised her sexual services on social media, representing herself as a “38-year-old blonde Australian busty MILF with G cup breasts”. [1]

The fact that she was a transgender person, and a sex worker, is relevant to some of the issues in the trial and the evidence that has been adduced.

However, it is important to emphasise at the very outset of this judgment that identifying the deceased as a transgender person and a sex worker is not meant to judge her or make any adverse comment about her lifestyle. It should be clearly understood that Kim McRae was entitled to live her life as wanted. It must also be remembered that she was a writer, a sister, and a friend to many. That she died in January 2020, is tragic. The issues that I have to decide in this trial must, however, be approached calmly, objectively, and forensically considering all of the evidence. My verdict, or verdicts, cannot be based on sympathy or emotion.

Ms Starr was a close and long-time friend of the deceased. They met in 1993. Between 1993 and January 2020, they were in regular contact, either face-to-face, or communicating by phone. Ms Starr underwent gender confirmation surgery in 1993, a topic of discussion between herself and the deceased. Ms Starr worked as a sex worker in order to pay for the surgery. The deceased was also working as a sex worker. Over the decades of their friendship, they discussed their work and their clients.

Ms Starr confirmed that the deceased advertised her sexual services on several websites. She lied about her age and did not advertise herself as transgender. Ms Starr described the deceased as “a very fit and strong 69-year-old”. [2] She would eat well and exercise all the time. [3]

Ms Starr agreed that the deceased wore hand-made bras that sat underneath her breasts to push them out. She wore such a garment when she was preparing to provide services to her clients.

The accused, 20 years old at the relevant time, travelled from Colombia to Australia on a Student Visa. He was renting a room in a townhouse owned by “the Lawsons”. He commenced study at the University of New South Wales and, on occasion, worked at a café in Little Bay. On 6 January 2020, the accused commenced a course at Eve College.

On 8 January 2020, the accused and the deceased were in contact with each other via their mobile phones. An arrangement was made for the accused to attend the deceased’s unit for the purposes of the deceased performing sexual services for a fee. The accused likely attended the deceased’s unit sometime shortly after 3:18pm, on 8 January 2020. At 4:17pm, on the same day, CCTV recorded the accused riding his motor scooter turning from Mount Street (where the deceased’s unit was located) onto Coogee Bay Road.

Thereafter, the accused left Australia, arriving in Colombia on 13 January 2020. The body of the deceased was located in her unit, and she was pronounced dead on 14 January 2020. The effects of decomposition were readily apparent.

On 10 February 2020, a warrant was issued for the arrest of the accused. On 26 February 2020, he was arrested in Aruba. A surrender to Australia was ordered by the Governor of Aruba on 15 October 2020, and he subsequently arrived in Sydney on 24 November 2020.

Section 133 of the CPA requires a judge conducting a judge alone trial to include, in a judgment, the principles of law to be applied by him or her, and the findings of fact upon which the judge relies. Pursuant to s 133(3) of the CPA, I am required to take into account any warnings required by any Act, or law, to be given to a jury in any such case.

I will set out the warnings and principles of law to which I have had regard. These comprise of the normal directions that I would usually give to a jury in any such case.

I am the tribunal of fact and the tribunal of law. As the tribunal of fact, I am required to evaluate the evidence in a common-sense, yet impartial, and dispassionate way, having regard to my understanding of people and human affairs. I do not act on suspicion. I do not act on what I believe probably might be the case.

I must put aside any sympathy I might have for anyone involved in the trial. I must put aside any prejudice I might have, including any prejudice having regard to the subject matter of the trial. I must also put aside any publicity about similar allegations in other cases. It is incumbent upon me as the tribunal of fact to approach the issues in this trial dispassionately and objectively. My findings and ultimate verdict, or verdicts, must be based only on the evidence that has been adduced in the trial. To do otherwise would be contrary to the solemn responsibility I have to return a verdict, or verdicts, according to the evidence.

I emphasise that it is no part of my role to engage in a process of deciding who the more likeable witness is, or to allow sympathy, or prejudice, to infect my deliberations.

What I bear in mind from beginning to end, is that I must approach the evidence clinically, objectively, and forensically.

I may believe the whole of what a witness says, I may disbelieve the whole of what a witness says, or I may believe one part and disbelieve another part of a witness’s evidence. Obviously, a witness may be honest and accurate, honest but mistaken, or dishonest in relation to anyone, or more, aspects of the witness’s evidence.

Each witness has given evidence about things they said they remembered. How well a person might remember something depends upon many different factors, including that person’s capacity to lay down an accurate memory in the first place; their capacity to retain that memory and its associated detail; and their capacity to recall the memory and articulate it.

The subject matter of an event is also a relevant factor to memory. Some events themselves are of little, or no, consequence, and any memory is retained for a short time only and then gone. Other events are of greater importance, in consequence, such that one might remember them for a relatively long time, although, perhaps over time, aspects of the detail of the memory, or the parts one considers to be of no real consequence, might fade.

All of these common-sense factors might impact what someone might be able to remember of an event, or how clearly, they might remember it. What I must decide in relation to the evidence of a particular witness, is whether I consider their evidence to be sufficiently reliable such that I can act upon it.

Reliability depends upon two quite different, but overlapping, factors. One factor is the witness’s honesty. The other factor is the witness’s accuracy. There are many factors that can have a bearing upon a witness’s honesty. In considering the question of honesty, I might consider the impression the witness made upon me. Demeanour and impression are important and valid factors to take into account. Did a particular witness impress me as someone doing their best to be truthful, or did the witness impress me as someone deliberately trying to deceive me? Did the witness appear evasive, or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer what was asked? Did the witness concede that he or she has lied in their evidence?

Although demeanour and impression are matters that I am entitled to take into account, I must bear in mind that witnesses can be affected by the stress and anxiety of giving evidence in legal proceedings. A witness might be anxious, worried, or embarrassed. These observations apply equally to prosecution and defence witnesses. Demeanour and impression alone do not determine the honesty, or accuracy, of the witness’s evidence.

If I conclude that a particular witness has been doing his or her best to be honest, I will need to move to the second aspect of reliability, which relates to a witness’s accuracy. A witness can be perfectly honest and accurate, or perfectly honest, yet completely, or partly, inaccurate.

To determine how accurate a particular witness’s evidence is, I may look to a number of factors. How carefully did the witness observe the event, or the matter, about which they were giving evidence? Was the witness calm and composed at the time of the event, or affected by any emotion such as stress, panic, or fear, or by an intoxicating substance, such as alcohol, that might have impacted their powers of observation and/or laying down of an accurate memory?

How important to the witness were the surrounding details of an incident, or event, such that the witness focused on committing to his or her memory all aspects of the event, as opposed to what the witness perceived to be significant parts of the event? Has the witness provided a consistent account of the incident or event? Is there evidence capable of giving rise to an inference of suggestibility, or contamination, such as to make the evidence, or parts of the evidence, of a particular witness unreliable?

This is a criminal trial and the burden of proving the guilt of the accused rests firmly, and only, on the Crown. That onus is in respect of every element of the charge. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence, but for the Crown to prove his guilt in relation to the counts on the indictment, and to prove it beyond reasonable doubt. That is a very high standard of proof the Crown must achieve.

The words “beyond reasonable doubt” are to be given their ordinary English meaning. It is, and always has been, a critical component of our system of justice that persons tried in our courts are presumed to be innocent unless, and until, they are proven guilty by the Crown beyond reasonable doubt. Expressed differently, I must consider whether there is any reasonable possibility that the accused is not guilty. If the answer is yes, then the verdict is not guilty. If the answer is no, the verdict is guilty.

That said, whilst the onus of proof is on the Crown to prove the guilt of the accused beyond reasonable doubt, that does not mean that the Crown has to prove every single fact, or issue, beyond reasonable doubt. The onus is on the Crown to prove the elements of the offence beyond reasonable doubt.

I direct myself that my function as the judge of the facts, in this case, extends beyond coming to a conclusion as to whether I find that any particular fact has been established by the evidence. My function also extends to drawing reasonable inferences or conclusions from the facts I find established.

In a criminal trial, I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. In the context of a criminal trial, I should not draw an inference from the direct evidence unless it is a rational and justifiable inference in the circumstances.

The Crown must prove the following elements beyond reasonable doubt:

“Grievous bodily harm” is really serious bodily harm. It does not need to be life-threatening or permanent.

While the accused concedes that it was his deliberate act or acts that caused the death of Kim McRae, he disputes an intention to kill, or cause grievous bodily harm.

Having pleaded not guilty, I must be satisfied of each essential element beyond reasonable doubt. If I find that the Crown has established each of these elements beyond reasonable doubt, then the verdict would be guilty.

However, if the Crown has failed to establish beyond reasonable doubt one or more of these elements, then the verdict would be not guilty of murder. I would then go on to consider whether the Crown has established beyond reasonable doubt the elements of the offence of manslaughter.

In the context of this trial, I will also have to consider the issue of self-defence, which will be addressed separately.

The elements of manslaughter are as follows:

An act is “dangerous” if a reasonable person, in the position of the accused at the time the act was committed, would have realised that the act exposed another person to a risk of serious injury. It does not matter whether the accused believed his act was dangerous. The test is whether a reasonable person, that is, an ordinary member of the community in the position of the accused, would have realised, or appreciated, that the act is dangerous.

To establish that the act was unlawful, the Crown must disprove self-defence.

The accused has raised the issue of self-defence. The accused’s case is that he believed that his conduct was necessary to defend himself, although concedes that his conduct was not a reasonable response in the circumstances as he perceived them. Having made that concession, he accepts that if I am satisfied that the Crown has established the requisite state of mind for murder, the Crown must disprove, beyond reasonable doubt, that the accused believed that his conduct was necessary to defend himself, before I could return a verdict of guilty in respect of count 1.

The law recognises the right of a person to act in self-defence from an attack, or threatened attack, even to the point of killing.

This right arises where two circumstances exist. The first is that the person believes that their act was necessary in order to defend themselves. The second is whether what the accused did was a reasonable response in the circumstances as they perceived them.

Although “self-defence” is referred to as a defence, on a charge of murder, it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that the assault was not done in self-defence. It may do this by proving beyond reasonable doubt that the accused did not believe, at the time of the assault, that it was necessary to do what he did in order to defend himself.

If I decide that the Crown has failed to prove that the accused did not have such a belief, then the appropriate verdict is one of not guilty of murder. If that is the case, it will be necessary for me to consider manslaughter.

As to whether the accused may have personally believed that his conduct was necessary for self-defence, I must consider the circumstances as the accused perceived them to be at the time of that conduct.

It is his perception that must be considered and not what someone else might have perceived. The matter should not be looked at with the benefit of hindsight, but in the realisation that calm reflection cannot always be expected in a situation such as the accused found himself to be in. In hindsight, it might be thought that the accused was mistaken in believing that it was necessary to do what he did, but that does not matter.

If the Crown establishes beyond reasonable doubt that the accused did not personally believe that his conduct was necessary for his defence, then the Crown will have succeeded in eliminating self-defence. Provided all of the other essential elements have been proved, I should find the accused guilty of murder.

On the other hand, if I am not satisfied that the Crown has proved beyond reasonable doubt the first aspect of self-defence, I will then have to consider the second aspect of self-defence, namely, whether the Crown has satisfied me beyond reasonable doubt that the conduct of the accused was not a reasonable response to the circumstances as perceived by the accused.

The issue for me to consider is, having regard to the circumstances as they were perceived by the accused, whether his response was unreasonable, or excessive. Whether it was, or was not, a reasonable one in those circumstances, is a matter for my judgment.

Although it is still a matter for me to determine as the tribunal of fact, in light of the issues in this trial and the concessions made by the accused, there is no real dispute that the accused’s response was unreasonable, or excessive, in the circumstances as he perceived them.

To summarise, there are two parts to self-defence, and in relation to both of them, the Crown bears the burden of proof. It is not for the accused to prove that he was acting in self-defence. It is for the Crown to prove that he was not. This involves two questions:

If the Crown has failed to exclude the reasonable possibility that the accused believed that it was necessary to do what he did in order to defend himself, but has established that his response was not a reasonable one in the circumstances as he perceived them, then the appropriate verdict would be not guilty of murder, but guilty of manslaughter.

While the precise mechanism does not have to be proved beyond reasonable doubt, the Crown must prove that the deliberate act or acts of the accused substantially, or significantly, contributed to the death of Kim McRae. It is not sufficient if the assault was merely coincidental with the death of Kim McRae, or was insignificantly connected to it. Whether the act or acts of the accused relied upon by the Crown substantially, or significantly contributed, to the death of Kim McRae, is a matter for me to decide on a common-sense basis.

While there is no issue that the accused caused the death of Kim McRae, it is a matter of which I must be satisfied beyond reasonable doubt. There is a dispute as to the precise mechanism. The accused does not challenge the expert evidence that death was caused by neck compression, leading to asphyxia. The Crown case posits two mechanisms, namely, neck compression and smothering.

While the precise mechanism causing death does not have to be established by the Crown, a finding in respect of the mechanism causing death, in particular, whether it included smothering, as well as neck compression, will be relevant to a contested issue in this trial; namely, the intention of the accused at the time that he committed a deliberate act or acts causing death.

A considerable deal of the evidence is agreed upon between the parties. The Agreed Facts, pursuant to s 191 of the Evidence Act 1995 (NSW) (“Evidence Act”), set out some of the background and details relevant to the trial.

The indictment frames the period in which the deceased was killed as between 7 January and 14 January 2020, although it is likely that Kim McRae met her death on 8 January 2020. She rented a unit in Mount Street, Coogee. She lived alone at that address. At the time of her death, she was 177 centimetres tall and weighed about 70 kilograms.

The deceased was a writer. She wrote a memoir using the pseudonym, Isabella Lawson. She was also a self-employed sex worker operating from a home in Coogee. The deceased advertised sexual services on social media applications and websites such as “skokka.com.au”; [4] a self-described erotic portal for adult services, including “escorts and call girls”. [5] In her advertisements, she described herself as: “a 38-year-old blonde Australian busty MILF with G cup breasts”. [6] Those advertisements included her mobile number and various assumed names such as Sabrina, Samantha, Caitlyn, and Isabella.

The advertisements stated that the deceased would provide a full sexual service. She had confided in others that she found vaginal intercourse painful and that she only provided an oral sexual service. The advertisements did not state that the deceased was a transgender woman.

The accused was born in September 1999. He has no prior criminal convictions. On 24 May 2019, he arrived in Sydney. He entered Australia on a Colombian Passport and a Student Visa. That Visa was set to expire on 14 December 2019 and was later extended. In 2020, the accused was 168 centimetres tall and weighed about 65 kilograms.

From 24 May 2019, Mr and Mrs Lawson rented a room to the accused for $200 per week in their townhouse at Matraville. They considered the accused to be a member of their family. On 27 May 2019, the accused commenced studying at the University of New South Wales.

On Monday, 6 January 2020, the accused commenced a course at Eve College in Surry Hills. His classes were on Tuesday and Wednesday afternoons. While living in Australia, he owned and drove a black-and-white Suzuki brand motor scooter.

At 3:40pm, on Tuesday, 7 January 2020, the annual property inspection of the deceased’s home took place. Real estate agent, Ms Honor, attended the unit for inspection and was given access by the deceased, who remained present during the inspection. Ms Honor took a number of photographs of the unit. She noted that the unit was extremely dark, the windows were covered with blackout curtains, there was a blind covering the bathroom window, and the balcony door was jammed shut, apparently for security reasons. At the conclusion of the property inspection, Ms Honor and the deceased had a brief conversation in relation to rental arrears.

At 4:56pm, on Tuesday, 7 January 2020, the deceased attended the Australian Post Office in Bondi Junction to post a book to a friend. Her visit was recorded on CCTV footage. The last image of the deceased before her death is reproduced in the Agreed Facts.

On Wednesday, 8 January 2020, for about an hour from 2:35pm, the accused and the deceased were in contact with each other via mobile phone. Part of the contents of the text message exchange is in the Agreed Facts. An arrangement was made whereby the accused was to attend the deceased’s premises for sexual services. The last outgoing activity on the deceased’s phone was a 24-second call to the accused’s mobile phone service. That call was made at 3:35pm, on 8 January 2020. Soon after that phone call, the accused entered the deceased’s unit in Mount Street, Coogee.

At 3:49pm, on the same day, Mr Hristovski, a friend of the deceased, called her mobile phone. That call was not answered. The accused left the deceased’s unit at about 4:15pm. At 4:17pm, CCTV footage recorded the accused riding his motor scooter onto Coogee Bay Road heading in the direction of Coogee Beach.

The Eve College’s attendance log records the accused as having attended the first two sessions between 5:00pm to 7:00pm. He was recorded on CCTV footage leaving the College at around 8:24pm.

Thereafter, the accused attempted, or did in fact, sell several of his possessions. For example, he sold his motor scooter for the sum of $2000. At 8:52am, on 10 January 2020, the accused, without permission, used the credit card of Mr Lawson to purchase a flight to Colombia. After missing the flight, the accused booked a multi-stop flight to Colombia.

On 10 January 2020, the accused contacted Gabriel Upegui on Facebook Messenger. The communication took place in Spanish. The messages that were exchanged are set out in the Agreed Facts. At one point, the accused messaged: “I threw my life away dude (emoticon) I am escaping because I do not want to finish in jail in Australia”. He also wrote: “I did not know what to do was desperate and wanted to die dude, still in shock for what happened…It is that I die of shame to tell this to anybody. I believe I killed a whore”.

He also messaged:

On 11 January 2020, the accused boarded a flight departing Australia at 10:18am. On the same day, Mr Lawson checked his Commonwealth Bank account and saw a pending transaction of $2108.38. That transaction was the flight ticket to Colombia that had been purchased by the accused the previous day. Mr Lawson checked his wallet and observed that his Commonwealth Bank card was placed in the card holder other than how he had left it. He went to the accused’s bedroom and saw that almost all of the accused’s property had been removed. In the rubbish bin was a receipt for a transaction from Sydney International Airport for 10 January 2020.

Mr Lawson sent an email to the accused’s mother informing her that her son had stolen $2100 and that the police were looking for him. On Sunday, 12 January 2020, the accused arrived in San Diego, Chile. Later that morning, he arrived in Lima, Peru.

Meanwhile, a number of the deceased’s friends and family members were unable to make contact with her after 8 January 2020. Her twin sister (now deceased) attempted to make contact between 12 and 14 January 2020. She became increasingly concerned when she was unable to make contact with the deceased. At 9:30am, on 14 January 2020, the deceased’s sister contacted the Coogee real estate agents who managed the lease of her unit, and asked whether they had spoken to the deceased, or whether she had paid her rent. Some short time later, two real estate agents attended the deceased’s premises. The front door to the unit was closed, but unlocked.

Each of the real estate agents gave evidence in the trial. Upon entering the unit, they observed a body on the floor in the second bedroom, which was covered with a doona. They could see a foot protruding. They left the unit, whereupon one of them telephoned tripe zero. That call was made at 10:04am, on 14 January 2020.

Kim McRae was pronounced dead by the attending paramedics. The effects of decomposition were readily apparent. Items were located and seized by police from within the unit for subsequent forensic examination. Next to the deceased’s body were the following items:

On 16 January 2020, a post-mortem examination was conducted. On 10 February 2020, a warrant was issued for the arrest of the accused in the alleged murder of Kim McRae. On 26 February 2020, the accused was arrested in Aruba. On 15 October 2020, the accused’s surrender to Australia was ordered by the Governor of Aruba. On 16 November 2020, members of the New South Wales Police Force travelled to Aruba to escort the accused to Australia. The accused arrived in Sydney at 8:55am, on Tuesday 24 November 2020, and was placed into the custody of New South Wales Corrective Services.

The results of the comparison conducted between the DNA sample collected from a number of items, disclosed that the accused cannot be excluded as a contributor to the mixed DNA obtained from:

In addition to the Agreed Facts, several witnesses were called in the Crown case. Some witnesses gave evidence by way of audio-visual link. No adverse inference can be drawn against the accused by virtue of the fact that these witnesses have given evidence in that way. The witnesses gave evidence by way of audio-visual link as a matter of convenience only. Furthermore, it does not mean that their evidence is given any less, or greater weight, simply because they gave their evidence in that fashion.

Ms Smith worked with Ms Honor at Coogee Real Estate, which managed the deceased’s unit in Mount Street. On 7 January 2020, Ms Honor attended the unit for the yearly property inspection.

The unit was extremely dark. The deceased told Ms Honor that she liked to keep the unit “really dark”. The light switches were covered in white duct tape, making it difficult to switch the light on. The deceased had installed her own blackout curtains over the balcony doors and other heavy curtains on the windows. The balcony door was jammed shut with a stick that was wedged in the door track to prevent it from opening all the way. Ms Honor took a number of photographs, as was the normal procedure for a property inspection. Those photographs are Exhibit C5.

Ms Starr confirmed that in her statement to police, she said that the deceased liked to keep her apartment very dark as she was self-conscious about her age and her masculine looks. She would rarely have the lights on, preferring to have a dim light in the corner of the room. The deceased had her curtains taped closed, preventing light coming into the unit. She also taped the light switches to prevent her clients from turning the lights on and being able to see her properly.

Ms Smith had met the deceased many times because she managed the deceased’s previous rental. Ms Smith described the deceased as tall with long platinum hair and having a “generous bust”. [7] Ms Smith believed that the deceased was a female.

Ms Dermatis was the property manager at Coogee Real Estate. She had known the deceased since 2006. On 14 January 2020, Ms Smith, in the company of her colleague, Ms Dermatis, attended the deceased’s unit. Upon attending the unit, the two women found that the front door was unlocked. They entered. They could not see very much because the unit was dark. Upon entering what was described as the “second bedroom”, there was a smell in the room and a doona on the floor. Both women could see a foot protruding from under the doona. They immediately left the unit and Ms Smith telephoned triple zero.

Constable Hanson, together with other police, attended the deceased’s unit following the triple zero call. Upon entering, she observed that the curtains were drawn. In one of the bedrooms, she saw a doona on top of the deceased’s body. Also present in the room were two paramedics and Constable Hughes. She observed one of the paramedics remove the doona from the top of the deceased. She also observed a pillow, once the doona was lifted away. She said that the pillow was “over the face of the body”. [8]

Constable Hanson also observed a sheet over the face of the deceased, which was removed by the male paramedic. To the right of the deceased’s body was a lamp, the cord of which was “wrapped around the neck” [9] with a piece of tissue “underneath the cord”. [10] Constable Hanson could not confirm that the cord was wrapped around the deceased’s neck. She assumed it was.

A number of photographs taken at the scene, which included photographs of the deceased’s body in situ, became Exhibit C10 in the trial. The photographs depict the deceased’s body and a number of items situated on the floor near the body. It is clear from those photographs that the tissue paper, in which the condom was wrapped, was sitting on top of the cord, not underneath it. The lamp and piece of electrical cord found at the scene were marked Exhibit C11 and Exhibit C12 respectively in the trial.

Mr Thompson, a paramedic with the New South Wales Ambulance Service, and Ms Shishido, an ambulance officer since October 2019, attended the deceased’s unit on 14 January 2020. Mr Thompson removed the doona from the deceased. He conducted several regular tests for verification of death. Mr Thompson was unsure whether he removed the doona and the pillow from the deceased at the same time, but conceded that it could have been the case that he pulled both the pillow and the doona back from the upper part of the deceased’s body. [11]

Ms Shishido was present when the doona was removed from the deceased. She observed a pillow covering the deceased’s face and the cord wrapped around the deceased’s neck. [12]

Gabriel was a friend of the accused in 2020. Sometimes Gabriel and the accused communicated via Facebook Messenger. Some of those messages are set out in the Agreed Facts and presented in the table below:

In addition to these messages, the Crown adduced evidence of a message sent from the accused to Gabriel on 16 January 2020. The translation read: “because it seems that the oldie did not die”. The Spanish words used by the accused in the message included the word “vieja”. Properly translated, it is a word specifying the gender of a “girl”, or “woman”, rather than the age of the person. [13] Properly understood, the exchange between the accused and Gabriel was as follows:

As far as Gabriel was concerned, the word “vieja” does not carry a derogatory meaning amongst Spanish speakers in Colombia.

Senior Constable Hill is attached to the crime scene section at the New South Wales Police Service. She attended the deceased’s unit in that capacity. The crime scene examination was documented by way of notes and photographs. A number of exhibits were collected. Senior Constable Hill attended the location at about 1:00pm, on 14 January 2020. A number of photographs of the crime scene were tendered through this witness (Exhibits C15, C16, C17, C18 and C19).

Senior Constable Hill said that once the paper tissue was removed from the deceased’s neck, she was able to see the cord doubled over the front of that area. The cord was not wrapped all the way around the deceased’s neck. Staining was observed on both sides of the pillow, which had been removed prior to the attendance of Senior Constable Hill. The pillowcase was never forensically analysed.

Evidence redacted in compliance with the non-publication orders.

Detective Inspector Richard Howe is the Officer in Charge of the police investigation that led to the charging of the accused. As part of that investigation, he travelled to Aruba and escorted the accused back to Australia. When the accused was taken into custody, he had a backpack. Several items were located in the backpack, including a typed letter that was addressed to Christian Porter.

The accused’s evidence is that the typed letter in English was prepared by his uncle, who is a prosecutor in Colombia. Parts of it are based upon a letter the accused had written in Spanish, which was later translated into English by his uncle.

The accused’s mobile phone was seized and interrogated. Contained in the phone was a photograph of a laptop which was apparently in the process of being re-set (Exhibit C26). A still image taken from the video of the police conducting the search of the deceased’s unit on 15 January 2020, was marked Exhibit C27. That image depicted a stand on which a laptop computer was observed by Ms Honor when she conducted the property inspection on 7 January 2020. Photographs taken by crime scene officers on 14 January 2020 depict the computer stand sitting on top of two cardboard boxes on a table in the lounge room, with two laptops apparently being charged, situated on the floor under the table.

Mr Lawson is deceased. An application was made, and granted, to adduce brief evidence, pursuant to s 65 of the Evidence Act. The Crown did not wish to be heard in respect of the application to adduce this evidence. Mr Lawson told police that the accused had his own computer.

Ms Lawson was not called. Some of her evidence was led through Detective Inspector Richard Howe without objection. She told police that around mid-November 2019, the accused moved back into their house. He bought himself a new laptop, which was black in colour.

The letter addressed to Christian Porter was tendered in the trial (Exhibit C24). Although not typed in English by the accused, it does provide an early account of the accused’s state of mind at the relevant time. It is appropriate to set out that document in full. The letter reads as follows:

An important plank of the Crown case against the accused is the expert evidence of Dr Irvine and Dr Cala. The accused does not dispute that his deliberate act or acts caused the death of Kim McRae. The dispute relates to the mechanism by which her death was occasioned, the pressure applied, and the duration of the application of pressure. The evidence in respect of these issues is highly relevant to the question of whether the Crown can establish beyond reasonable doubt the requisite intention for murder.

In light of the importance of the expert evidence of Dr Irvine and Dr Cala in the trial, it is necessary to summarise the evidence in some detail. I remind myself that an expert witness is a person who has specialised knowledge based on that person’s training, study, or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise.

Of course, the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given.

Expert evidence is admitted to provide me with information and an opinion on a particular topic which is within the witness’s expertise, but which is likely to be outside the experience and knowledge of the average layperson.

If the opinion is based upon facts which I am satisfied have been proved, or assumptions that I am satisfied are valid, then it is a matter for me to consider whether the opinion that is based upon those facts, or assumptions, are correct. On the other hand, if I decide that the facts have not been proved, or the assumptions are not valid, then any opinion based upon them is of no assistance because it has no foundation. If that is the case, the opinion should be disregarded.

The expert evidence is before me, as part of all the evidence, to assist me in determining whether the accused murdered Kim McRae. I do not consider it in isolation, but rather together with a number of circumstances relied upon by the Crown, which will be addressed in due course.

Dr Irvine is a forensic pathologist. She has been a forensic pathologist for 28 years and has conducted approximately 250 autopsies by herself and supervised an equal number conducted by trainees. She supervised the autopsy of the deceased, which was conducted by Dr Thompson. Dr Thompson was not called in the trial.

The autopsy was conducted at 8:30am, on 16 January 2020. A preliminary report for the coroner (MFI 10) included a sub-heading “direct cause”, under which the words “pending further investigations” appear. At that stage, the results of the toxicological analysis, histology, and neuropathological examination of the brain were outstanding. A final autopsy report is dated 7 July 2020 (MFI 11).

The final report noted the cause of death as “neck compression” leading to asphyxia. In support of that conclusion, the autopsy examination revealed that the thyroid cartilage was fractured on the right side with fresh haemorrhaging in and around the fracture site. Furthermore, “petechial haemorrhages of the conjunctiva are supportive of an asphyxia cause of death such as neck compression”. [15] The hyoid bone was intact.

Dr Irvine gave evidence about the extent of pressure that would be required to cause neck compression:

The injury noted on the deceased’s inner lip was described as “an 11 x 11-millimetre defect of the mucosa of the lower lip, approximately in line with the left central incisors, but superior to the lower frenulum”. [17] The post-mortem report did not note any other injuries to the inside of the lower lip. Dr Irvine did not give any evidence of observing any other injuries in that area.

A possible abrasion was noted on the right lateral cheek, as was a 25 x 20-millimetre area of dark green/brown discolouration on the left cheek inferior to the left eye. A further ill-defined 30 x 9-millimetre dark green/brown mark was present on the left cheek in line with the upper lip.

Dr Irvine was cautious in commenting about the cause of the injuries to the face because the deceased’s body had significant post-mortem change. She did, however, give evidence that the injuries to the face, including the injury to the inside of the lower lip, were consistent with blunt force trauma, and possibly consistent with the deceased having been struck to the face with some force. [18]

Dr Irvine was asked to comment on the proposition that the cause of death following this post-mortem examination is best described as undetermined. She responded:

Notwithstanding the possibility in this case that the cause of death could be categorised as “undetermined”, [20] Dr Irvine was of the view that this did not detract from the fact that there was neck compression. It is important to note that no other significant injuries, or underlying natural conditions, were identified, such as to suggest an alternative cause of death.

In cross-examination, Dr Irvine agreed that in the final autopsy report, it was noted that: “the laryngeal prominence of the thyroid cartilage appeared surgically altered (shaved) and surgical sutures were present in the adjacent subcutaneous tissues”. [21] Dr Irvine was asked to comment on whether shaving of the Adam’s apple would be likely to weaken the structure of the larynx. She agreed that such a procedure would weaken the structure of the larynx. It was also possible that the surgery made the deceased’s neck more vulnerable to the injury to her thyroid cartilage. Dr Irvine noted, however, that it was not the fracture to her thyroid cartilage that caused death. Rather, the fracture was one of the injuries noted that supported the opinion that the cause of death was neck compression. [22]

Although Dr Irvine is not able to say exactly how the neck compression was caused, she agreed that it was possible that the injuries seen to the deceased’s thyroid cartilage, and the associated muscles around the fracture, could be explained by neck compression on the front of the neck, with a thin cord being held against the sides of the neck by two hands. [23]

The absence of marks around the deceased’s neck does not necessarily exclude the possibility that a ligature had been wrapped entirely around her neck. Pressure on the neck does not always leave a mark on the skin. Equally, neck compression can occur without a ligature being wrapped completely around somebody’s neck. The pressure brought to bear on the neck, either by the use of a ligature, or a forearm, or another solid object, can result in neck compression.

Dr Cala was not present at the post-mortem. He is a senior staff specialist and forensic pathologist at the Newcastle Department of Forensic Medicine. Dr Cala reviewed the autopsy file, including the photographs that had been taken during the course of the post-mortem examination.

Dr Cala concluded that the deceased died “from the effects of asphyxia but due to the combined effects of smothering and neck compression from a ligature”. [24] Asphyxiation is a broad term that encompasses many causes, including the application of a ligature to the neck, thereby, interfering with the blood flow to and from the head back to the heart. Dr Cala opined that the mechanism causing asphyxiation included both neck compression and smothering. He agreed that there was a fracture of the right thyroid cartilage with bleeding around the fracture.

Dr Cala was of the view that the fracture of the right thyroid cartilage was caused by “some blow or more than one blow to that part of the neck”. [25] His opinion that there was a distinct possibility that the asphyxiating event was at least partly caused by smothering, was based primarily, if not wholly, on his interpretation of one post-mortem photograph, which was identified as JPEG- 7906745-0050. [26] The photograph depicted the injury to the inside lip. In addition to the defect observed by Dr Thompson and Dr Irvine, Dr Cala, upon examining the photograph, noted an additional four abrasions. He based his opinion that the mechanism causing asphyxiation included smothering, on his interpretation of what he said was depicted in the photograph.

In respect of the absence of ligature marks on the deceased’s neck, Dr Cala explained that the presence of a necklace around the deceased’s neck and parts of the blonde wig, may have resulted in the force from a ligature being spread diffusely and, therefore, not necessarily leaving a mark.

Dr Cala was referred to parts of a report prepared by Professor Duflou. That report was not tendered, and Professor Duflou was not called to give evidence. Dr Cala agreed with the proposition that the mechanism of cardiorespiratory arrest and/or death in neck compression, irrespective of whether it is caused by manual strangulation, or by ligature strangulation, is one that is poorly understood. The difficulty is that in the world of forensic pathology, experimentation on living individuals is almost non-existent. Experts, in forming opinions, rely entirely on the examination of a deceased person. They are looking at anatomy, as opposed to function. The expert can draw inferences from observable injuries. [27]

In relation to the time that it would take to render a person unconscious as a result of neck blood vessel occlusion, Dr Cala was asked:

There are three basic mechanisms whereby death can occur in cases of neck compression: airway compression; neck blood vessel occlusion; and neural mediated cardiac arrest. Dr Cala added that these three basic mechanisms probably interact in some way, although in any given case, there is no way of knowing with any certainty as to whether each mechanism contributed to death, and, if so, to what extent.

Dr Cala did not agree that it would be reasonable to conclude that the cause of death, in this case, is undetermined. He maintained that there was ample evidence to indicate an asphyxiating mechanism of death by two means, namely, ligature strangulation and/or the act of smothering.

Dr Cala agreed that it was possible that the surgery the deceased underwent to shave and change the structure of the Adam’s apple made the larynx less robust. He agreed that given that vulnerability, it was “theoretically possible” [29] that the fracture to the thyroid cartilage was a result of pressure to the neck, rather than a blow to the neck. [30]

In relation to whether there was evidence of smothering, Dr Cala was asked:

No such injuries were observed during the post mortem examination.

Dr Cala could not exclude the possibility that a cardiac arrest, due to a neural based mechanism, related to neck compression, caused death. Dr Cala concluded that there is no way of knowing that at autopsy. [32] He agreed that if neck compression resulted in a “neural based mechanism and occlusion of the neck veins, the combination of those things could result in a very rapid death”. [33]

The Crown relies upon several circumstances, in combination, to prove beyond reasonable doubt that the accused, at the time of committing a deliberate act, or acts, intended to cause grievous bodily harm, or intended to kill the deceased. Those circumstances include the following:

My function as the judge of the facts, in this case, extends beyond coming to a conclusion to whether I find that any particular fact has been established by the evidence. My function also extends to drawing reasonable inferences or conclusions from the facts I find established.

In relying upon circumstantial evidence, the Crown asks me to find certain basic facts and then from those facts, to draw an inference or conclusion as to the existence of a further fact, or facts. Here, I am asked to draw the inference that the accused, at the time that he committed a deliberate act, or acts, had an intention to at least cause grievous bodily harm.

I am then asked to infer or conclude from a combination of established facts that a further fact or facts existed. The ultimate fact the Crown asks me to find, based upon the basic facts, is the accused is guilty of murder.

A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation). And it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused.

It is important that I approach a circumstantial case by considering and weighing, as a whole, all the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact, or circumstance, which is inconsistent with the accused’s guilt.

The correct approach is as follows. Firstly, I determine what facts I find established by the evidence. Any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt.

I then consider all of those facts, together as a whole, and ask myself whether I can conclude from those facts, and beyond reasonable doubt, that the accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown’s circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt. Of course, it follows that I must find the accused not guilty.

Secondly, if I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts then, before I can convict the accused, I must determine whether there is any other reasonable conclusion arising from those facts that are inconsistent with his guilt. If there is any other reasonable conclusion arising from those facts that are inconsistent with the guilt of the accused, the circumstantial case fails because I am not satisfied beyond reasonable doubt of the accused’s guilt.

I understand that drawing a conclusion from one set of established facts to find that another fact is proven, involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture, or supposition.

I turn to consider the evidence of the accused. Having decided to give evidence, the accused became a witness in the trial. I am entitled to assess what he said and the way in which he said it, in the same way that I assess all witnesses who gave evidence. I may accept all of what he said, reject parts and accept other parts of his evidence, or reject everything that he said. However, it is most important that I bear these directions in mind.

Firstly, the fact that he chose to give evidence in this trial does not mean that the onus of proof shifts from the Crown to the accused. The accused bears no onus to prove that he is not guilty. He is presumed innocent. It is always the Crown who bears the onus of proving the case.

Secondly, if his evidence in this Court leaves me with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove in respect of one or more counts, then I am bound, in law, to bring in a verdict of not guilty.

But it is not the position that I must believe that the accused is telling the truth before the accused is entitled to be acquitted. The Crown must establish beyond reasonable doubt the charge, which it brings against the accused, and it is never for the accused to prove that he is not guilty.

Even if I reject his account, before I could find him guilty, I must be satisfied beyond reasonable doubt that the Crown has established each of the elements of the offence I am considering.

The accused has no prior criminal convictions. His good character has been raised in a limited way, namely, that he has no conviction for offences of dishonesty, or violence. I am entitled to take into account the accused’s good character in two ways. Firstly, the accused has given sworn evidence before me. I can use the fact that he has no prior criminal record to support his credibility. A person with no prior criminal convictions is less likely to lie, or give a false account.

The second way in which I can take into account the absence of criminal convictions in favour of the accused, is on the question of whether the Crown has proved his guilt beyond reasonable doubt. That is, I am entitled to have regard to his lack of criminal record to reason that it is unlikely that he committed the offence of murder. However, the extent to which I take into account the absence of a criminal record in this way, is limited given that he has made admissions to committing a violent act in circumstances where, on his own account, his response to the perceived threat was disproportionate and excessive.

The absence of a criminal record does not provide the accused with some kind of defence. Obviously, people of good character can commit crimes. It is only one of the many factors which I must take into account in determining whether I am satisfied beyond reasonable doubt of the accused’s guilt.

The accused was browsing the internet when he came upon an advertisement that had been placed by the deceased advertising sexual services. She advertised as 38-year-old blonde woman. The accused contacted the deceased through WhatsApp, informing her that he was interested in the services. She provided her address, and the accused attended the unit on 8 January 2020.

The door to the unit was unlocked but shut. Upon entering the unit, the accused could not see much because it was dark. He was aware of the price for the service from the advertisement. He paid the deceased $100. The deceased instructed the accused to go into one of the bedrooms, take off his clothes, and lie down. He did as instructed. The deceased came into the bedroom and obtained a condom from the cupboard. She then performed fellatio on the accused. He ejaculated into the condom. He was then instructed to lie on the bed so that the deceased could massage him.

The deceased told the accused she was 40 years old and Australian. He told her his age. During the course of the conversation, the accused became suspicious that the deceased was transgender. His suspicions were aroused because of the deceased’s physical appearance and, in particular, her breasts. He commenced asking the deceased questions about any surgery that she had undergone. The accused asked her directly whether she was transgender. She denied that she was transgender more than once. The accused asked the question several more times until he finally asked in a loud voice. The deceased responded that she was transgender.

The accused said that he started to feel upset. [35] He said that he was upset because his religious beliefs dictated that it was not normal to have intimate sexual relations with another man. The accused agreed that he hit the deceased once in her stomach and once to her face. She moved backwards and took possession of a lamp. They were both now standing next to the bed. The accused described the deceased holding the lamp with her right hand, and with her left hand, pulling on the cord (or cable) in an aggressive manner towards him. [36]

The accused raised his left shoulder when the deceased struck him with the lamp. The accused described the deceased holding the cord in front of him between his face and neck while pulling on it. After the deceased struck the accused with the lamp, they struggled. The deceased was struggling towards the accused and trying to get closer to him, as he was moving forward, struggling with her. [37]

As a result of the struggle, they both fell to the floor. The deceased fell onto her back. The accused fell on top of her. He had part of the cord in his hand. He put the cord on her neck with his “two wrist ends up on either side of her…[f]or a few seconds”. [38] The accused explained that he did this to stop her attack. He was scared and in a panic. He said that he was scared because he thought she was going to choke him.

He stopped holding the cord against the deceased’s neck when she stopped struggling. He grabbed the sheets and everything else that was on the bed and put them on top of her. The accused explained that he did this because he wanted to stop the attack in case she regained consciousness and attacked him again. He denied putting any items specifically on the deceased’s face. He could not remember whether he took hold of the pillow.

The accused gave evidence that he was not sure whether he had killed the deceased when he left the unit. He did not confide his account to his friends because he was feeling “really bad”, [39] “quite unwell”, [40] and was having suicidal thoughts: “I was feeling really bad, I was feeling quite unwell, I was having suicidal thoughts and I guess just because of the need of having to say it because of the way I felt”. [41]

The accused did not tell his friends about the deceased’s gender because he was embarrassed that he had been with a “man”. It was only when he read the brief of evidence that he discovered the deceased was 69 years old.

In cross-examination, the accused agreed that he had served 12 months in the Colombian army. It was there that he received basic self-defence training, including hand-to-hand combat. Subsequently, he acquired special skills in scuba diving and was taught strategies to prevent panic.

He denied that the message communication with Kim McRae revealed his desire to engage in cunnilingus with her. His message which read: “I’m sorry, but I want to do oral sex (sad emoji)”, disclosed that he wanted to receive oral sex. He agreed that he asked the deceased in one of the messages: “can I touch you down there”, being a reference to her “private parts”. [42]

The text message communication between the accused and the deceased is set out in the Agreed Facts. The communication includes a message from the accused, sent before he arrived at the deceased’s unit, stating that he agreed with her conditions.

The accused believed that the deceased obtained the lamp from an area between the bed and the doorway. He pointed to an area on top of the heater, depicted in photograph 200 of Exhibit C18.

The accused agreed that he did rummage through some of the deceased’s property. He was not looking for money. Rather, he was looking for her mobile phone/s so that he could destroy them. He agreed that he put them in the toilet, which is where they were located by the crime scene officers. The accused agreed that he did take a sum of money, although was uncertain as to the precise quantity. He said that he found the money near one of the phones and opportunistically stole it. The laptop depicted in the photograph found on his mobile phone, was his. He was re-setting it so that he could sell it to a friend.

The accused agreed in cross-examination that when he found out Kim McRae was a transgender person, he became angry. Fuelled by that anger, he punched her in the face and the stomach. He repeated that there was a struggle over the cord (or cable) because the deceased was trying to choke him with it. The cord broke during the struggle. The accused denied the proposition that the cord broke because of the force he was using when he was pressing the cord down on the deceased’s neck.

The accused also denied that he choked the deceased with the cord because he was angry upon realising that she was transgender. Although he agreed that he was angry upon that discovery, and that he did assault the deceased, the application of the cord to her neck was not an act done in anger, but rather an act that followed the deceased trying to choke him with the cord, which led to a struggle that culminated in the deceased falling to the ground on her back with him on top of her. The accused maintained that he applied the cord to the deceased’s neck at that point to stop her attack. [43]

The Crown commenced his opening address by referring to the evidence of Dr Irvine and Dr Cala. There is no issue that it was the act of the accused that caused the death of Kim McRae. The Crown accepts that it has to prove beyond reasonable doubt that at the time of the accused’s deliberate act, or acts, he had an intention to kill, or cause grievous bodily harm, to the deceased. Grievous bodily harm is really serious physical harm. It does not need to be permanent, or life-threatening.

The accused’s state of mind can be inferred from a number of circumstances. The Crown posed a number of questions during his closing address, including:

In light of the onus and standard of proof, it is not for the accused to answer any of these questions. The accused has, however, given evidence, and I will, in due course, set out my findings about his evidence.

In respect of the post-offence conduct, namely, the accused placing the deceased’s phones in the toilet and leaving the country, the Crown does not rely upon consciousness of guilt. Instead, the Crown relies upon that evidence as retrospectant circumstantial evidence, [44] supporting an inference that the accused did have an intention to kill, or cause grievous bodily harm, at the time that he committed a deliberate act, or acts.

The Crown contends that “it puts an incredible strain on human experience to accept as a reasonable possibility that the accused acted in self-defence when regard is had to what he told his friends”. [45] The Crown relies heavily on the accused’s representations to his friends. He made admissions to killing a woman. He did not mention, in any of those communications, that he had acted to defend himself. Furthermore, there is no independent evidence of any injuries sustained by the accused. He did not seek medical attention; he appeared to be riding his motor scooter without impairment; the CCTV footage of the accused at Eve College on the evening of 8 January 2020 does not disclose any injury; and the footage that depicts the accused at the airport, does not support the contention that he received injuries as a result of the altercation with the deceased.

Far from acting in self-defence, the Crown contends that the accused became angry when he realised the deceased, with whom he had had intimate relations, was transgender. He acted in retaliation, consumed by anger. That anger was born of a belief that the deceased had cheated him into having sex with someone he believed was a woman.

The Crown accepts that the opinion of Dr Cala that the deceased had probably also been smothered, is not crucial to a determination of causation or intent. After considering the weight of the combined force of all of the pieces of evidence, the Crown submitted that the verdict in respect of the charge of murder should be guilty.

Ms Wasley, on behalf of the accused, confirmed the primary issue in this trial is whether the Crown has established beyond reasonable doubt that at the time that the accused committed the deliberate act, or acts, he had an intention to cause grievous bodily harm, or an intention to kill the deceased. It is for the Crown to exclude beyond reasonable doubt that the accused believed he had to act to defend himself.

A number of concessions have been made, including that it was the accused who initiated the violence. His admission in that regard is only one of many examples of his candour.

Ms Wasley submitted that the crime scene evidence supports the accused’s account. Had he deliberately placed items on top of the deceased, it is highly unlikely that he would have left the tissue and condom which contained his DNA.

Ms Wasley relied upon the expert evidence of Dr Irvine. It does not seem to be in issue that the accused caused the death by neck compression. The deceased’s larynx was vulnerable given her earlier surgery to shave her Adam’s apple. The expert evidence supports the contention that the neck compression occurred for a limited time. The absence of other injuries, such as a fracture to the hyoid bone, is supportive of the account given by the accused that he applied pressure for a short period of time before the deceased was rendered unconscious.

The absence of independent evidence as to injuries sustained by the accused during the altercation, is said to be unsurprising given that he only sustained minor injuries that did not require medical attention. It is not a matter which detracts from his assertion that he held a genuine belief to protect himself against the deceased.

In respect of the failure by the accused to confide in his friends that he had to defend himself, Ms Wasley submitted that it is hardly surprising he would not disclose the details of what had taken place given his embarrassment and shame that he had engaged in sexual activity with a “man”. Any recounting of the altercation would necessarily have to disclose that fact.

The Crown case theory that the accused killed Kim McRae because he didn’t want anyone to know that he had engaged in sex with a transgender person, lacks logic. Causing her death was the very thing that led to the publicity and disclosure of the intimacy between the deceased and the accused.

Ms Wasley submitted that the accused’s account was both credible and reliable. The accused often gave answers that were adverse to his interests, and that demonstrated his honesty. I would also have regard to his good character, in the limited way in which it is relied upon, to support his credit, and to reason that it is unlikely he would have committed the charged matter.

In analysing the evidence, making findings, and reaching verdicts, I proceed within the framework provided by the fundamental principles underpinning each and every criminal trial, namely, the presumption of innocence and the onus and standard of proof.

Because it is incumbent upon me to be transparent in my reasoning, I must emphasise, as I have, the directions that I set out at the beginning of this judgment. Arriving at a verdict requires a clinical and forensic approach free from sympathy or prejudice.

What I am required to do is consider all of the evidence and ask myself whether the Crown has established each element beyond reasonable doubt. The assessment of the weight to be accorded to a witness’s evidence by reference to the manner in which it was given by the witness, has always been, and remains, the province of the tribunal of fact. I have had the benefit of observing each witness give evidence in the trial.

My analysis of the evidence involves engaging with the question as to whether, against the body of evidence, the Crown has excluded the reasonable possibility that the accused did not commit a deliberate act, or acts, with an intention to kill, or cause grievous bodily harm.

It is necessary to resolve a number of factual disputes before I proceed to an analysis of the evidence underpinning the Crown case in respect of murder. The Crown case relies upon a number of circumstances that I must consider as a whole in determining whether the elements of murder have been established to the high standard required. The circumstantial evidence includes the expert evidence, which has been summarised in some detail above, and which I have considered closely in making my findings.

I am satisfied beyond reasonable doubt that the cause of death was asphyxiation caused by neck compression. The overall evidence of Dr Irvine and Dr Cala is that the deceased’s death was caused by asphyxiation. Both experts agreed that the likely mechanism was neck compression, noting that Dr Cala opined that there was a distinct possibility that the deceased was also smothered.

Putting aside for the moment the mechanism causing death, it is clearly the case that upon post-mortem examination, a fracture of the thyroid cartilage was discovered. Also noted was haemorrhaging around the fracture and petechial haemorrhaging, all signs consistent with neck compression and asphyxiation.

The petechial haemorrhaging was located on the conjunctiva, or lining, of the eyes. Petechial haemorrhaging is caused when there is an increase in the pressure in the capillaries interfering with the circulation of blood between the heart and the brain. When circulation is interrupted, a result of the veins being compressed, there is an increase in pressure in the blood vessels, including the capillaries. The capillaries can rupture and cause tiny haemorrhaging. Dr Irvine said that it “was quite easy to interrupt the circulation”. [46]

Dr Cala agreed with the proposition that forceful coughing can cause increased pressure in blood vessels within the head which results in petechiae. [47] He did not see anything in the material provided to him that suggested the deceased was coughing before she died. I pause to note that the accused did not give an account of the deceased coughing before she was rendered unconscious. I reject any suggestion that the petechial haemorrhaging was a result of the deceased forcefully coughing before she died.

In relation to the petechial haemorrhages that were present in this case, Dr Cala said that they were a marker of an asphyxiated process to the deceased. More specifically, a marker of neck compression. [48]

In concluding that the cause of death was asphyxiation by neck compression, I have taken into account that there is no evidence suggesting that the deceased died as a result of natural causes and no persuasive evidence that any underlying condition contributed to her death.

Bearing in mind that the Crown does not have to establish the mechanism causing death beyond reasonable doubt, it is necessary to address an aspect of Dr Cala’s evidence because it is relevant to the inference or inferences that may be drawn about the accused’s state of mind at the relevant time.

Dr Cala said it was a distinct possibility that the mechanism causing asphyxiation included smothering. I find the premise upon which this opinion is based unconvincing. Dr Cala was not in attendance at the post-mortem and, therefore, did not examine the deceased’s body. Dr Cala’s opinion that the deceased was smothered is based primarily, if not solely, on his interpretation of what is depicted in one post-mortem photograph (Exhibits C21 and C22).

Dr Cala placed significant weight on what he observed in the photograph to be four abrasions to the inside of the deceased’s lip. It was these abrasions, in addition to an 11 x 11-millimetre defect, that led him to conclude that the deceased had been smothered.

These abrasions were not, however, noted by the pathologists who were present during the post-mortem examination. Neither Dr Thompson nor Dr Irvine noted four abrasions to the deceased inside lip. The only injury noted to that area was an 11 x 11-millimetre defect, an injury consistent with the deceased having been punched in the face. The accused admits to having punched the deceased in the face.

Dr Irvine’s capacity to observe post-mortem injuries were superior to that of Dr Cala, who based his opinion on a single photograph. Having made my own assessment of what is depicted in that photograph, both in the electronic form (Exhibit C21) and the hard copy form (Exhibit C22), I cannot make out the four abrasions relied upon by Dr Cala. He was not asked to indicate, by reference to the photograph, where those abrasions were located.

The circumstantial evidence relied upon to support the contention that the accused smothered the deceased, includes the presence of a pillow on the face of the deceased when her body was discovered. The deceased was located on the floor of bedroom two, covered with a doona. Once the doona was pulled away, a pillow was observed on the face (or upper body) of the deceased. Under the pillow, and covering the face, was a sheet, or other item of fabric. Also discovered, on the deceased’s neck and on top of the cord, was the tissue paper within which the used condom was wrapped.

It is highly unlikely that the accused placed the tissue containing the used condom on the deceased’s neck, before using the pillow to smother her. Given the way in which all of these items were located on the body of the deceased, it is more likely that they came to be there when the accused pulled the bedclothes, and all that was contained within, on top of the deceased.

No forensic testing was conducted on the pillow, or the pillowcase, to ascertain whether there was evidence supporting the contention that the pillow had been used to smother the deceased.

In the circumstances, I cannot be satisfied that the accused used the pillow to smother the deceased. I find that the cause of death was by way of asphyxiation brought about by neck compression. The presence of a fracture to the right thyroid cartilage, haemorrhaging to the area surrounding the fracture, and the existence of petechial haemorrhaging, strongly support asphyxiation by neck compression.

Although Dr Cala initially gave evidence that the fracture to the thyroid cartilage was likely caused by a blow to that part of the neck, he conceded as a possibility, given the previous surgery to shave the Adam’s apple, that the fracture could have been caused as a result of pressure being applied to the neck. [49]

I am satisfied that the mechanism which caused neck compression, involved the accused holding the lamp cord across the front of the deceased’s neck and pushing down with some force. He held the cord down onto the deceased with each of his hands to the side of the deceased’s neck for some seconds.

I am not satisfied that the cord was wrapped all the way around the deceased’s neck. The evidence of Ms Shishido in that regard was unconvincing. She appeared to be relying upon what she had said in her statement to police, as opposed to an independent recollection of what she observed at the time. I prefer the evidence of the crime scene officer, Leading Senior Constable Hill.

I accept the evidence of both Dr Irvine and Dr Cala that a person can be rendered unconscious within seconds, as a result of neck compression, a mechanism that disrupts the flow of blood through the vessels from the head back to the heart.

It is difficult to determine with any precision the amount of pressure used by the accused as he held the cord down against the deceased’s neck. Dr Irvine said that the degree of pressure required to compress the vein and interrupt circulation is only two kilograms. Both experts accepted the proposition that the deceased’s larynx could have been more vulnerable to injury because of the prior surgery to shave her Adam’s apple.

As indicated at the outset of these reasons, the only account of what transpired in the deceased’s unit on the afternoon of 8 January 2020, is that provided by the accused. I remind myself that the accused does not have to prove his innocence. Just because he has given evidence does not mean that the onus has shifted to him to establish that he was not acting with an intention to kill or cause grievous bodily harm or, conversely, that he was acting to defend himself.

Having chosen to give evidence, I have assessed the credibility and reliability of the accused in the same way that I have approached that assessment in respect of all witnesses, bearing in mind that the onus does not shift to him to prove, or disprove, anything.

The accused maintained his account of what took place in the deceased’s unit during his evidence-in-chief and in cross-examination. He agreed that he told one of his friends that the deceased had told him she had AIDS. He conceded this was a lie. The Crown relies upon this lie as relevant to the credibility of the accused rather than consciousness of guilt. When assessed in the context of his overall evidence, I am not persuaded that this lie undermines his credibility in a material way.

The accused’s account is, in many respects, consistent with the account contained in the letter addressed to Christian Porter. During his evidence, the accused made a number of concessions that were contrary to his interests. For example, he gave evidence that he became angry when he realised that the deceased was transgender. He gave evidence that he reacted by punching her to the stomach and to the face. He did not have to make that admission. It is a representation against his interests.

He was not shaken in cross-examination. Importantly, his evidence about what he did to cause Kim McRae’s death is not inconsistent with the overall expert evidence.

There is no dispute that the accused attended the home of the deceased on 8 January 2020, some minutes after 3:18pm. He went there because he had made an arrangement with the deceased to attend her home to receive sexual services for a fee. He had come across the deceased’s advertisement on social media. She had advertised for sexual services. She represented herself as a “38-year-old blonde Australian busty MILF”.

Prior to attending the deceased’s unit, the accused and the deceased had exchanged messages. The accused wanted to receive oral sex, and although he asked: can I “touch you down there?”, a reference to touching the deceased’s vagina, he clearly had agreed with the deceased’s conditions prior to attending.

Once in the unit, the accused paid the deceased $100. He was instructed to go to one of the bedrooms, take his clothes off, and lie on the bed. The deceased performed fellatio on the accused, and he ejaculated into a condom that was later found wrapped in a tissue.

Not only did the accused not dispose of the condom and tissue, which could have connected him to the crime, the items were not hidden in any way. The location of the condom and tissue on top of the cord, and immediately under the doona, pillow and sheet, is consistent with the accused’s account that he simply pulled the bedcovers on top of the deceased after she stopped struggling, and before he left the unit.

Minutes after the sexual act took place, the accused discovered that Kim McRae was transgender and became angry. He was so angry that he assaulted her by punching her to the stomach and the face. It is not unsurprising, in those circumstances, that she sought to defend herself by arming herself with whatever was close to hand. The lamp was handy.

Having armed herself with the lamp, the deceased struck the accused to his shoulder. A struggle ensued which involved both the deceased and the accused pulling forwards and backwards on the cord which was attached to the lamp. The struggle resulted in both of them falling to the floor, with the accused on top of the deceased.

The accused held the cord against the front of the deceased’s neck, and applied pressure for a few seconds, rendering the deceased unconscious. He rummaged through the unit looking for the deceased’s mobile phones because he wanted to destroy them. Clearly, in my view, he attempted to dispose of evidence of any communication that could link him with the deceased.

The accused later appropriated Mr Lawson’s credit card to purchase a ticket to leave the country. He did so to flee the jurisdiction, at the very least realising that the deceased was rendered unconscious, and that he had failed to render assistance to her or call for assistance. It is more likely my view that he believed, prior to leaving the unit, that he had killed Kim McRae. I will refer to the accused’s attempts to destroy evidence (placing the mobile phones in the toilet) and fleeing the jurisdiction as “post-offence conduct”.

The Crown does not rely upon consciousness of guilt reasoning in respect of the post-offence conduct. Instead, I take into account the post-offence conduct in the way contended for by the Crown, namely, as “retrospectant” circumstantial evidence: see Gall v R; Gall v R [2015] NSWCCA 69.

I accept that not every case in which evidence of post-offence conduct is adduced, requires a consciousness of guilt direction. In this case, the Crown does not rely upon the post-offence conduct as evidencing the accused’s guilt in respect of murder. Ms Wasley, on behalf of the accused, has not requested a consciousness of guilt direction.

The Crown relies upon the post-offence conduct as simply part of its circumstantial case to rebut the accused’s contention that he acted out of fear and in self-defence. Understood in this way, the conduct is relied upon as another piece of circumstantial evidence. The inference contended for by the Crown does not have to be established beyond reasonable doubt.

However, in assessing whether such an inference is a legitimate or justifiable one in the circumstances of this case, I have also taken into account alternative explanations for the post-offence conduct. The accused had been involved in an altercation with the deceased. They were involved in a struggle that involved the accused holding the cord down against the deceased’s neck for a short period of time, applying some pressure. That act rendered the deceased unconscious. The accused did not render assistance. He did not call triple zero. After disposing of the deceased’s mobile phones in the toilet and stealing a sum of money, he left the unit.

In those circumstances, it is entirely open to infer that the post-offence conduct reflects the accused’s panic and fear in realising, at the very least, that he had rendered the deceased unconscious, and had left the unit without helping her or calling the authorities. It is more likely, in my view, that he became panicked and fearful, wanting to destroy any evidence of communications with the deceased and fleeing the jurisdiction, because he believed that his acts had caused her death.

Insofar as the post-offence conduct is relied upon as circumstantial evidence to demonstrate the necessary state of mind for murder, it is unconvincing, even when considered in combination with all of the other circumstances relied upon by the Crown.

The Crown cross-examined the accused about the photograph that was found on his telephone, depicting a laptop computer that was being reset (Exhibit C26). The Crown appeared to be suggesting that the accused had stolen the deceased’s laptop. If accepted, this is another fact, which taken together with other circumstances, which could support an inference that the accused had the requisite state of mind for murder at the time he committed the deliberate act which caused death.

The accused denied that the laptop depicted in the photograph was the property of the deceased. He maintained that it was his laptop which he was resetting because he wanted to sell it to make money. The evidence of Mr and Mrs Lawson is that the accused owned a laptop computer before 8 January 2020.

The suggestion that the laptop depicted in Exhibit C26 was the deceased’s and that the accused had stolen it, is without any evidentiary foundation. Not only did the accused deny the proposition, but there was no evidence whatsoever that the deceased owned a third laptop, or any evidence as to the brand.

Although observations had been made on 7 January 2020 of a laptop on a computer stand at the deceased’s premises, the absence of a laptop on the stand the following day cannot justify an inference that the accused stole it. Photograph 26 of Exhibit C15 depicts two laptops on the ground, under the table upon which the computer stand is located. That photograph was taken on 14 January 2020 when police attended the deceased’s unit and discovered her body.

I reject the suggestion that the laptop depicted in Exhibit C26 belonged to the deceased and was stolen from her premises by the accused. The overwhelming evidence is of the laptop depicted in that photograph belonged to the accused.

It was an agreed fact in the trial that at about 6:30pm, on 7 January 2020, a 23-year-old man, who was not the accused, attended the deceased’s unit for 30 minutes. He paid her $100 in return for an erotic massage. The accused admitted that he had paid the deceased $100 in exchange for sexual services. No money was found by police at the deceased’s premises. The accused admitted that he took money before he left the unit although was unsure as to the quantity.

The Crown relied upon the theft of the money as further circumstantial evidence relevant to the accused’s state of mind at the time that he committed the voluntary and deliberate act which caused Kim McRae’s death.

I do not accept that the accused rummaged through the deceased’s property to steal money. He was panicked and afraid of being found out. He had been in communication with the deceased via mobile phone to arrange the meeting. In those circumstances, it is more likely that the accused rummaged through the deceased’s property to find her mobile phone, or phones, and dispose of them so as to destroy any evidence of a connection between himself and the deceased. He opportunistically stole the money when he found it with one of the mobile phones.

Exhibit C11 is the lamp that was located near the body of the deceased. Part of the cord, which includes a switch, is connected to the lamp. The cord is broken. The remaining cord is Exhibit C12, which was also found close to the deceased’s body. That part of the cord still has the plug connected to it.

The Crown contends that the cord was broken as a result of the force used by the accused when holding it down against the deceased’s neck. I am not assisted by any expert evidence as how the cord broke.

Having examined Exhibits C11 and C12 carefully, it is highly unlikely that the cord broke as a result of downward pressure being applied to it. It is much more likely that the damage was caused in the struggle over the cord, in which both the accused and the deceased were pulling at it to retain, or obtain, possession.

In the absence of any expert evidence to the contrary, I accept that the cord broke during the struggle when the deceased and the accused had their hands on it and were wrestling to pull it away from the other.

The Crown bears the onus of proof. The Crown must establish each element of the offence of murder to the high requisite standard of beyond reasonable doubt. Suspicion is no substitute for proof beyond reasonable doubt.

In order to prove its case on the charge of murder, the Crown must establish that at the time the accused committed the deliberate act, or acts, that caused death, he either had an intention to do really serious harm to the deceased or intended to kill her. Grievous bodily harm means really serious bodily harm. There is no requirement that such harm be permanent, or life-threatening. If the Crown establishes one of the necessary intentions, the Crown must also disapprove self-defence beyond reasonable doubt.

I have endeavoured to summarise the evidence in some detail. Having considered the Crown’s circumstantial case as a whole, rather than in a piecemeal fashion, I am not satisfied that the Crown has established beyond reasonable doubt that at the time the accused committed the act, or acts, that caused death, he did so with an intention to kill the deceased or cause her grievous bodily harm.

To summarise, I am left with a reasonable doubt as to the charge of murder for the following reasons:

While there is no doubt that the accused became angry when he discovered that Kim McRae was a transgender person, there was an intervening event between the time that anger manifested, and the time the accused committed the act that caused Kim McRae’s death. The intervening event was the struggle that ensued when Kim McRae armed herself with the lamp, no doubt, in an effort to defend herself, and struck the accused’s shoulder with it.

That struggle involved the deceased and accused essentially fighting over possession of the cord until they both fell to the floor, with the accused on top of the deceased. In the short period that followed, the accused held the cord down against the front of the deceased’s neck with some force for some seconds. I accept that he did so to stop the deceased from struggling. This was the context in which the accused committed the act that caused Kim McRae’s death.

It is apparent that in respect of count 1, I have not addressed the issue of self-defence because I am not persuaded that the Crown has established one of the necessary elements beyond reasonable doubt. I will, however, address the issue of self-defence in due course because it has been raised and is relevant not only to the charge of murder, but also to the alternative count.

I turn to consider the alternative count of manslaughter. Is the deliberate and voluntary act of holding the cord down against the front of the deceased’s neck with some force for several seconds, an unlawful and dangerous act?

The High Court in Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31, examined the history of the offence of manslaughter based on an unlawful and dangerous act. The Court held, at page 333, that an unlawful and dangerous act carries with it an appreciable risk of “serious injury”. In assessing whether the Crown has established the necessary elements of manslaughter on this basis, I must consider whether a reasonable person, in the accused’s position, would have realised that in holding the cord down against the deceased’s neck, as he did, he was exposing the deceased to an appreciable risk of serious injury.

There is no issue that the accused’s act was both voluntary and deliberate. Notwithstanding the expert evidence about the relatively low level of pressure required to cause neck compression, I am satisfied beyond reasonable doubt that the act causing death carried with it an appreciable risk of serious injury, and that a reasonable person in the position of the accused would have realised that he was exposing Kim McRae to an appreciable risk of serious injury.

In my view, the application of pressure on the front of the neck, either by way of a ligature or the use of a part of the body, is an act that carries with it an appreciable risk of serious injury.

Sections 418 and 419 of the Crimes Act provide:

In R v Katarzynski [2002] NSWSC 613 (“Katarzynski”), Howie J distinguished the question posed for the tribunal of fact where there is evidence raising self-defence from that which existed at common law. The first issue is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he carried out the conduct. The second issue is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he faced. The Crown will negative self-defence if it proves beyond reasonable doubt either:

The operation of the provisions as explained by Howie J in Katarzynski, was referred to with approval in Sivaraja v R; Sivathas v R [2017] NSWCCA. The question as to whether the accused believed that his conduct was necessary in order to defend himself, is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time that he carried out the conduct.

Applying the relevant directions, I am also satisfied beyond reasonable doubt that the act causing death was an unlawful act. Put another way, I am satisfied that the Crown has excluded self-defence beyond reasonable doubt. I have set out my findings in respect of the circumstances that led to the death of Kim McRae. For present purposes, it is necessary to emphasise my findings that the accused and the deceased became involved in a physical altercation, which included a struggle over the cord. The physical altercation took place after the accused had punched the deceased, once to the stomach and once to the face.

The struggle resulted in the deceased and accused falling to the floor, with the accused on top of the deceased. It was in these circumstances that the deliberate act causing death was committed, an act effectively committed by the accused in an effort to stop the deceased from struggling with him. However, acting to stop the deceased from struggling is not necessarily the same thing as acting to defend oneself.

It is an agreed fact that the accused was 168 centimetres tall and weighed about 65 kilograms at the relevant time. The deceased was 177 centimetres tall, weighed 70 kilograms, and was a fit and strong transgender woman. The accused had served 12 months in the Colombian Army. While it is unclear as to whether, and to what extent, his service gave him a physical advantage, he was trained in basic self-defence and hand-to-hand combat.

Further, and perhaps more importantly, it was the accused, by his own admission, who initiated the violence. He punched the deceased to the stomach and the face. It may well be that he did not expect the deceased would fight back, arming herself with the lamp and striking him with it in self-defence. The accused had the opportunity to leave the premises instead of engaging in a physical altercation with the deceased. He did not do so.

The accused also had the opportunity to leave the premises having subdued the deceased when they fell to the floor. He did not do so. I bear in mind that these matters should not be considered with the benefit of hindsight, but in the realisation that calm reflection cannot always be expected in a situation such as this, where the accused and the deceased became involved in a struggle. However, having considered the evidence closely, I am satisfied the Crown has excluded self-defence beyond reasonable doubt.

To be clear, I am satisfied that the Crown has established each of the elements of manslaughter to the requisite standard. The basis of manslaughter is unlawful and dangerous act, as opposed to excessive self-defence.

Hector Enrique Valencia Valencia, on the charge that, between 7 January 2020 and 14 January 2020, at Coogee in State of New South Wales, you did murder Kimberly McRae, I find you not guilty.

On the alternative charge that, between 7 January 2020 and 14 January 2020, at Coogee in State of New South Wales, you did unlawfully kill Kimberly McRae, I find you guilty.