R v Valencia Valencia - [2023] NSWSC 163

Supreme Court

New South Wales

Medium Neutral Citation: R v Valencia Valencia [2023] NSWSC 163
Hearing dates: 6 February 2023; 7 February 2023; 8 February 2023; 9 February 2023; 10 February 2023; 13 February 2023; 14 February 2023
Date of orders: 24 February 2023
Decision date: 24 February 2023
Jurisdiction: Common Law - Criminal
Before: Yehia J
Decision:
Hector Enrique Valencia Valencia found not guilty of the murder of Kimberly McRae, but guilty of manslaughter

Catchwords:
CRIMINAL LAW — Murder — Trial by judge alone — Whether the accused intended to cause grievous bodily harm or kill the deceased — Where cause of death is neck compression — Unlawful and dangerous act — Whether the prosecution has excluded the reasonable possibility that the accused acted in self-defence

Legislation Cited:
Crimes Act 1900 (NSW), ss 418, 419
Criminal Procedure Act 1986 (NSW), ss 132, 133, 133(3)
Evidence Act 1995 (NSW), ss, 65, 191

Cases Cited:
Gall v R; Gall v R [2015] NSWCCA 69
R v Katarzynski [2002] NSWSC 613
Sivaraja v R; Sivathas v R [2017] NSWCCA 236
Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31

Category: Principal judgment
Parties: Rex (Crown)
Hector Enrique Valencia Valencia (Accused)
Representation:
Counsel:
C Everson SC (Crown)
C Wasley (Defence)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
James and Jaramillo Lawyers (Defence)

File Number(s): 2020/00043308
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Act 2010 (NSW), there is to be no publication of the contents contained in paragraph [97]. The orders are made on the grounds set out in ss 8(1)(a), (c) and (e) of the Act

Judgment

Introduction

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.

Background

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]
1. Exhibit C4 at [4].
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]
2. Trial Transcript (“TT”), dated 6 February 2023, 46: 43-44.
3. Ibid 47: 1-2.
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.

Procedure

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.

Assessment of Witnesses

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?

Beyond Reasonable Doubt

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.

Inferences Direction

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.

Elements

Murder

The Crown must prove the following elements beyond reasonable doubt:

that Kim McRae is deceased;

that the accused caused her death by a deliberate act or acts; and

that at the time the accused caused Kim McRae’s death by a deliberate act or acts, he had the intention to kill Kim McRae, or an intention to inflict grievous bodily harm.

“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.

Manslaughter

The elements of manslaughter are as follows:

that Kim McRae is deceased;

that the death of Kim McRae was caused by an act of the accused;

that the accused intended to commit the act that caused death;

that the act of the accused was unlawful; and

that the act of the accused was dangerous.

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.

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:

has the Crown proved 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?

has the Crown proved beyond reasonable doubt that the assault by the accused was not a reasonable response in the circumstances as he perceived them?

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.

Causation

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.

Summary of Evidence

Agreed Facts (Exhibit C4)

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.
4. Agreed Facts at [4].
5. Ibid.
6. Ibid.
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:

“I better go to Colombia before they catch me (crying emoji) but I cannot see her in the news. I do not know if she is dead but she must be after what happened. You cannot believe how I feel, I do not know what happened to me. I became crazy or what. You know I am not a bad person Gabriel (crying emoji). If you do not want to speak with me, I understand.”

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:

a condom wrapper;

a black coloured bedside lamp with part of its broken black electrical cord;

the other part of the broken black electrical cord, including its power plug;

a piece of paper towel that was wrapped around an unwrapped and used condom;

a scrunched piece of paper towel located between the deceased’s legs; and

submerged in the bowl of the toilet were three Apple iPhones belonging to the deceased.

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:

the right hand and fingernail clippings taken from the deceased;

the electrical cord and its power plug;

the paper towel that was wrapped around an used condom;

the unwrapped and used condom from inside that paper towel;

the semen that was detected on the outside and inside of the condom; and

the scrunched piece of paper towel that was located between the deceased’s legs.

Discovery of the Deceased on 14 January 2020

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.
7. TT, dated 6 February 2023, 24: 48.
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]
8. Ibid 58: 32.
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.
9. Ibid.
10. Ibid 59: 30–31.
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]
11. TT, dated 7 February 2023, 81: 26–29.
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]
12. Ibid 97: 1-45.

Gabriel Upegui

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:

Accused:	Dude you are one of the few I can trust. And the truth is that tomorrow I am travelling to Colombia.
Mr Upegui:	Uff Sudden change?
Accused:	I threw my life away dude (emoticon) I am escaping because I do not want to finish in jail in Australia
Mr Upegui:	Wow What are you talking about?
Accused:	I did not know what to do was desperate and wanted to die dude, still in shock for what happened
Mr Upegui:	But what happened mate You continue to speak weird to me
Accused:	It is that I die of shame to tell this to anybody I believe I killed a whore
Mr Upegui:	[…] I have no comment Let me process this
Accused:	I better go to Colombia before they catch me (crying emoji) but I cannot see her in the news, I do not know if she is dead but she must be after what happened. You cannot believe how I feel, I do not know what happened to me. I became crazy or what (indecipherable) You know I am not a bad person Gabriel (crying emoji) If you do not want to speak with me anymore, I understand
Mr Upegui:	Pana, do simply what you have to do and return to your family, at this moment for what I am hearing, I do not have any words to answer
Accused:	I am not able to face my family after this. I do not [know] what I am going to do. I do not want to go (crying emoji) Forgive me dude I hope to see you one day (tear emoji) I do not know what I did with my life (crying emoji)
Mr Upegui:	I am really in much shock
Accused:	I am worse Gabriel, I do not know what the hell is going on I would like [to] see a psychiatrist or something I wish all this was a lie (crying emoji x 3)

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:

“Accused: Dude, can you do me a favour?
Gabriel: It depends on the magnitude, to be honest with you. Shoot the question.
Accused: Better not.
Gabriel: I am sorry friend.
Accused: Maybe I return to Sydney?
Because it seems that the woman did not die.”^[14]
13. Ibid 105: 28–32.
14. Ibid 102–103.

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

Leading Senior Constable Hill

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.

Witness “C”

Evidence redacted in compliance with the non-publication orders.

Detective Inspector Richard Howe

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

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:

“Dear Mr. Prosecutor,
My name is as it appears next to my signature and I write this communiqué freely and spontaneously, without any pressure from any person, and although my lawyer does not recommend it to me, I must say that I have full knowledge of the situation, for which I am being required by the justice system of Victoria, Australia and as it relates to the investigation that lies ahead, for the death of the person who was known as Kim McRae in events that transpired in the month of January of the current year, and which is of course a matter of investigation for the execrable facts that were discovered by the Australian authorities, and to which I am linked as a suspect and responsible.
I know that I am being required to be prosecuted in a criminal trial as the person responsible for said situation, but it is also my intention to assume the responsibility I bear, and must express that I accept the imputation as solely responsible for such painful event and of course avowing your indulgence because the situations that triggered such a fatal outcome, were situations that took place in relationship, where there were conditions typical of the crazy privacy between two people, whose intention was eminently of company and sexuality, where in an unmeasurable manner conditions presented themselves, where there was a verbal confrontation and ended up getting out of control with arguments that became heated and before which there were aggressive acts that took place on both sides, triggering the events already known. I felt anger but in my capacity as a foreigner I was afraid of a scandal and eventual police intervention, in which I could be deported because of my status and even though I tried to handle (the situation) as best as possible, we confronted each other and it got out of control, reaching the results known to you and the public opinion.
I was very terrified of this situation and although I was educated in a family environment with values, where none of my loved ones have ever had such problems, shame was part of the arguments that filled my head and I ended up leaving in silence, terrified by events that until today personally hurt me, and for that person whom I irreparable harmed. I feel sorry for that life and confused I ended up looking for my family to whom I finally told my only version of the events, I am responsible and I am deeply sorry for my mistake, so painful for everyone.
Standing before you, my only desire of course is to tell the truth because I am ashamed of how these events that were not part of a developed plan, because the reality is that they took place minute by minute without any plan. The only plan that existed for me as a guest and for whom my victim was, was no other than to share an evening as a couple, a night of sharing spaces, dialogues, an environment and a secret intimacy between the two, but which quickly began to tinge and change from the original intention and which of course I ask you to allow me to explain broadly at the appropriate moment before your present, the Judge and the Jurors. It is my duty to be honest, just as it is also my desire to show in a human manner that I do not want to wear everyone down in a demonstrative legal battle. Because there is nothing to prove anymore. I am responsible and I must assume my responsibility, for humanity, for the laws, for morality, for ethical reasons, for my family and especially for that victim for an act based and a set of irrational events, and for my inner peace, the one I list that day and which until today I have not been able to recover and for which I take responsibility and cry out for your help so that this may be the case, with a fractured soul, I ask for forgiveness, I search for explanations as to why, and I cannot understand when things changed from a pleasant atmosphere, to an uncontrolled situation.
I know that I cannot seek justifications for the events that I will explain, from my victim’s point of view, they would not be appropriate, but I know well, that I can also describe the facts during the tral, so that this is clear to everyone, including myself.
I know that when my presence before the justice system of Victoria takes place, I will have the opportunity to be heard as a defendant, but I also beg of you to listen to me as a human being, conscious of a grave mistake, repentant, and who will not put up a legal battle before your system, but one who will accept the charges that are justly brought upon him, because such is his essence.
I grew up in a believing Catholic family, respecting and valuing my parents, because it was inculcated in me from a very young age and as a young person I was dedicated to sharing time with my maternal family and friends. I travelled to your country, aware of your quality of life, and the high level of education your country offers, forged in one of the best principles of coexistence in the world, so that I could realize my dream of studying your mother tongue, and perhaps opening up more professional opportunities. I am young, but also a believer in building collective dreams, a believer in building a better world, without discrimination, without violence, without hunger, with equality.
I dream of a world of peace, and despite my situation I do not want to lose that dream of a future world, which I now see farther away.
I know my future is no longer the one I dreamed of, but I never had any criminal thoughts, I never harmed anyone, in my family no one has ever had such grave problems as this. In my family there are people who work in the justice system of my country, honorable and decent people, who clearly expressed their solidarity with me, but as it should be, they refrained from trying to exercise their influence in any way, but who in their own words reminded me that I should be honest and tell the truth, and perhaps in that manner ask for indulgence for the sentence I have made myself deserving of, I know that and I will abide by it.
Your Honor, I invoke your humanity and your high moral courage, to give me the consideration I clamor of you today. I am a young migrant who did not know how to face a situation that changed abruptly from a night of passion, to a night of madness and confrontation where I was also assaulted, and where I also felt fear, and where in a perhaps unequitable defense, I used my strength as a defense mechanism without any judgment, and which I did not know how to control or bring to a halt, and that is the reality, I felt scared, I felt threatened I also received verbal and physical injuries that in my capacity as a migrant made me feel terror, it was not a premeditated situation, no, it was a sequence of instantaneous events, where we raised our tone, became physical, and out of control; and in the face of my fear, I didn’t know what to do, I was terrified and I didn’t make the best decisions, but this was never thought out, it was never premediated, I never wanted to harm that person. And I cannot have any hate feelings, it would be impossible, I reality felt like I was losing her as much as we lost control, that is the way I will explain it to you in a more detailed manner. But I beg you for your indulgence, do not look at me as that criminal who enjoys harming or wanting to set an example to others with his power of intimidation, no, I am not that, I am a family youth, who became involved in a friendship and a romantic situation, where control was lost leading to confrontations for issues that today, I see as totally absurd, where his family essence led him to discuss what could had been reconciled, and where in a clear manner, got out of hand, with the painful facts that make me come before you today. I respect you and believe in your ability to understand my pain. Fear may corner us, but I beg you not to see me as a psychotic criminal, unfit, no please, because I am a good-hearted young dreamer who in his inexperience did not manage a situation well, I am not a psychopath, nor a sociopath, because I love life, I defend life as it should be, but for me an opportunity is no longer there..
The events happened as I relate them to you, they don’t have to be proven, that is how they happened, but this generated in me a lot of fear, I had no one to reach to, I had no advice, I was very afraid and that is why I boarded a plane and went back to my family without saying anything, I felt fear and regret, without resources, I thought that time could help me forgive myself and understand why I had become involved in such a situation. When my capture occurred, it was the moment I understood that I should tell the truth, I did, I cannot deny my frustration at an act in which a life was lost. Maybe I could have handled it better, maybe I should have only left, but my situation as a migrant with limitations and my liking for that person told me I should stay, that things would calm down, until the end when stronger words started to occur, and it got out of hand. Never in my life had I experienced such an out-of-control situation, I have never been assaulted nor have I assaulted anyone, I did not know what to do, it was a struggle between my fear of being deported, or a scandal with the neighbours, my fear of a public embarrassment and then I tried for us to calm down, but it was fruitless, she was still offended and said more and more things to me, I also started to respond, until it got physical. A mixture of fear and frustration, we had lost control, maybe the first time for her, I do not know, but for me, it definitely was.
Maybe I will now be qualified as a murderer, I know. I committed an error, but deep down in me, I do not want to go back and relive such a horrible situation, a person’s life is sacred, as mine is to me. As a conscious and rational act, killing another being is not part of me, I do not have a criminal soul, I do not see myself as judicious or avenging, I am a believer of dignity and people’s rights. I want to believe that I can and must forgive myself, that action is not representative of me, I even thought of renouncing to my life, but my mother’s love helped me see that I must forgive and forgive myself, I must as for your humanity, that you see me as a good-hearted human being who committed a very serious mistake which he must carry for the rest of his life and not as a criminal, one of those we know are proud of their violent deeds towards society and the world.
I ask for your indulgence for a just and deserved sentence, but also for the opportunity to show my complete repentance as a man who loves his own life and the lives of others, defendant of children, animals, the environment, peace and decency and who assumes his guilt. I am not such a monster even if the media wants to portray me this way, I am a young migrant young man who did not know how to manage a heated situation, one who felt fear and made an irreparable mistake for which he must pay. If with my life I could return hers I would offer it without a tought, but I know it is not possible, God does not allow for that.
In the face of my silent departure from Australia, my family living in Aruba and who, of course found themselves surprised by my untimely arrival and abnormal silence, began to wonder about my introverted and abnormal condition. I plunged into a depression trying to understand why this had happened, trying to understand why I had become entangled in this, why I had been so naïve in confronting the situation instead of remaining silence, because when this situation started to hear up, I did not just take my things and left; there were many thoughts, an immense pain in my soul for her, I was ashamed for myself, I longed to repair the damage, but I couldn’t. my fears and my shame devastated me, forgive your honour for crying, these words can only come out with my heart in my hands. By a sequence of indecision, I took a life. I never thought about this; in causing harm, but I committed a crime, I can’t turn the clock back, but from the initial moment I wish I could do it, I would like to have the opportunity to choose every step and every decision, but I can’t, it is impossible, and now there is only one road left, to be honest, to tell the only possible truth, the only and possible truth. I am guilty.
Because of the values instilled in me and as a citizen, the reality is that I totally agree to assume my responsibility as it should be and although my lawyer does not recommend it and speaks to me of seeking alternatives, I feel that it is my duty and my obligation, for an event in which a life or maybe two were lost, because I am a victim of my actions, I regret it and although I can ask for indulgence, I must first forgive myself. I tried to convince her to calm down. I subdued her and begged her for forgiveness, to calm down, let’s talk, calm down, let’s talk, I begged her, I was afraid, I could not calm her down I didn’t know how to calm her down, and things moved to the point of no return.
My family foundations and the world in which I grew up, are not the ones where violence is a language, in my home no acts of violence are accepted in any way and neither is killing part of our world, for this reason you honour, I invoke your indulgence in the process that I know I have to face, in which I am solely responsible and I leave clarity, in that it was a situation in which we lost control in a relationship of occasional couples and that ended int his so painful way for this person and those who knew her, her family and also for my moral tranquillity. I do not consider myself a criminal, I committed a crime, I am not violent and nor do I like violence. But I also know that I made a mistake and that out of fear we both lost control.
I ask for the opportunity that whoever is my advocate at trial, is able to find in the legal circle, a possible decrease in the penalty to be received, perhaps because of the ephemeral situation that ended in a death, perhaps because I am not a misfit criminal, I beg to be seen as an inexperienced young man who must be tried and punished, but not compared to criminals who laugh about their macabre acts, because from that day I only weep from the bottom of my soul and in silence.
It is my only and total wish, to assume my responsibility before the criminal system of your country because it is clear that there is nothing to prove, because I believe in it embrace its indulgence to apply for some opportunity principle, because in essence a crime does not have to be proven here, I accept it and assume it, there is no criminal to make bow instead there is in fact a man raised and educated with good principles who did not know how to handles this situation, which for him was new and over which he lost control and did not know how to deal with at such disproportionate moment, a situation of conflict or fight, in a country where he did not have a person of trust, one who was alone and without economic resources, and in particular did not speak the language, which he had gone there to study, and in the face of which, he felt great fear and felt concerned by what he had just lived, and for which he preferred to leave. That is the reality Mr. Prosecutor I assume total responsibility and I also embrace the responsibility I have and for which I know that I must pay, because a life was lost, for an act product of my immaturity and everything else that I have already mentioned, but for which you take into account, that never in my life have I had such a painful situation as this, to kill a person, it has never been part of my life. I have never lived such a situation, and of course it will never happen again.
I am responsible, Mr. Prosecutor and your honour, and I embrace the consequences because I have no other option. When I arrived in Aruba I was very affected emotionally because this totally affected my life, not out of fear of punishment, no, that does not scare me because I know that if a crime is committed it must be paid, in that aspect I was or believed that I was sure, my family surrounded me without knowing why I had returned. But I did not stop thinking about those events, looking for a reason, consuming myself in my guilt, with those Dantesque images in my mind, punishing me in my soul, seeking to understand why we had come to that, why I did not know how to handle the situation. I could not in these months find an answer, until my mother with tears expressed to me that I should stop being an immature young man and that I had to assume my responsibility, whatever the result might be, that is why I write these lines to you today. I take full responsibility, whatever the result might be, that is why I write these lines to you today. I take full responsibility, I ask for your indulgence for a penalty that allows me to obtain forgiveness from those who loved Kim McRae, and perhaps over time and my seclusion, I can forgive myself. That I can look in my mother and my teachers in the eye, because shame is what fills soul, repentant I am and will always be from the moment I saw her die, I screamed in pain and fear. I was terrified, minutes went by before my alienated mind saw her die, I screamed in pain and fear. I was terrified, minutes went by before my alienated mind could understand, and I just thought about running, running without stopping. I am no longer afraid, Mr. Prosecutor, I assume, but I keep thinking about that moment, my peace and my natural joy are no longer there. As a human I ask you to give me the opportunity that in my deprivation of liberty it will allow me to ready, study at lease, and take a positive role in my sentence, at least as long as that happens for as long as it might be, I can come to understand the reasons for these events, I can attain my own forgiveness, or at least grow as a person. I take on my grave mistake but I will never become a bad person, my soul and my heart are not bad, my family is good, hardworking people who still believe that I can succeed as the man who assumes his responsibility and someday be able to return with his forehead aloft, and be able to look at others in the eyes, be able to tell the world that I paid my debt, and already older perhaps, return to the path of my life that I always dreamed of and for which I arrived in your country. Although I know the damage is irreparable, a life was lost and I am responsible. That is the heaviest burden I will carry forever.

All me, Mr. Prosecutor, to at least keep those dreams for that future, today so distant. My actions destroyed her dreams, I know, and that is why today I assume my guilt, I place myself before the system that you represent, I know that I destroyed a life, dreams, an ideal, but in your ability to understand me, I ask you for the opportunity to dream of a distant forgiveness, with the possibility that in this prison I myself can forgive myself.
Hector Henrique Valencia Valencia”

Expert Evidence Direction

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.

Summary of Expert Evidence

Dr Irvine

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.
15. TT, dated 8 February 2023, 133: 27-28.
Dr Irvine gave evidence about the extent of pressure that would be required to cause neck compression:

“Q. The expression "neck compression", does it include more than pressure on either an artery or a vein connecting the heart and the brain?
A. It certainly can, depends on how strong the pressure is. But my point is that the pressure is not very high to compress the veins in the neck which are near the surface and which have very thin walls.
HER HONOUR: Sorry, Mr Crown.
Q. Just a moment ago you said something about it is easy to interrupt this circulation, and I don't know whether you finished your answer. What do you mean by that?
A. It's known that, as I said, the veins are close to the surface, the arteries are farther back in the neck and they have thicker walls, but the veins are very close to the surface and they have very thin walls. And a pressure of only 2 kilograms is enough to compress the vein and interrupt that circuit. Only 2 kilograms. It takes probably double that to compress the arteries which, as I said, are deeper and have thicker walls, and it would take even more to compress or collapse an airway. But you don't have to compress an airway in order to die because of neck compression, and we also know that because people who have tracheostomies on the lower neck who hang themselves with a ligature above that still die when they hang themselves even though it's easy for them to breathe because air can go through the tracheostomy into the lungs. It's not the breathing that's the problem, it's the transport of blood from the heart to the brain and back again.
So petechial haemorrhages are generally an ominous sign that any well‑trained pathologist will look for in every autopsy even if it's suspected of being a benign natural cause of death. They are very subtle but significant findings that must be explained. While they can occur in people who have a natural cause of death such as a myocardial infarction, they are different from the ones we see here. The ones in the natural conditions tend to be very fine and delicate whereas ones associated with neck compression or possibly chest compressions tend to be a little bit larger and a little more confluent. In any case, they have to be explained. If you have petechial haemorrhages in a case where you did not find a cause of death, you would be concerned that that's a finding that needs to be explained. Simply, bruising or bleeding into the soft tissues of the neck is something that has to be explained as is a fracture of the thyroid cartilage. The combination of all three of those, in the absence of another demonstrable cause of death, is really strong evidence of neck compression.
CROWN PROSECUTOR
Q. Can I just ask you about that expression "neck compression". Is the Court to understand from what you've said that you are referring to pressure that is coming in either at the side ‑ at the neck or the front of the neck and the back of the neck, or something other than those three things?
A. Well, it wouldn't be the back of the neck. And, in fact, that's not necessary at all. It would be pressure that includes the location of the veins which are at the side of the front of the neck.
Q. Could you please just put your index fingers back where you just had them.
A. (Indicated).
CROWN PROSECUTOR: Is it agreed that what Dr Irvine is doing is pointing with her index fingers to, as she said, the front side of each side of her neck.
HER HONOUR: I think she's put it in terms of the side of the front of the neck, the sides of the front of the neck.
CROWN PROSECUTOR
Q. Thank you doctor. Now you said before you mentioned two kilograms of pressure?
A. Yes.
Q. Where are you getting that from?
A. That's well established in the literature, but I can give you further facts. In terms of videos of individuals who hang themselves, either for autoerotic purposes or sexual pleasure or because of genuine self‑harm, people now have mobiles that will allow them to take pictures, and there have been collations of such cases. What is really interesting in those cases is that pressure in the neck usually from a ligature results in rapid unconsciousness, less than 15 seconds. And, in addition, following that, you can see the body posturing, which is assuming certain positions that tell us that there is damage to, first, the upper part of the brain and later the lower part of the brain. And all of this happens within the first few minutes. But the unconsciousness happens within 15 seconds. You can hang yourself, you can kill yourself, sitting on the floor with a ligature fixed to a doorknob and just lien forward because the weight of your head is between four and five kilograms. That amount of pressure can cause death because it occludes the veins in the neck and stops the blood from going from the brain back to the heart. That is the vulnerability of the human neck.”^[16]
16. Ibid 134: 21; 136: 3.

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.
17. Ibid 142: 8–18.
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]
18. Ibid 143:1–4.
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:

“I don't think it would be unreasonable. As I said, in this case I was impressed by the findings in this body, despite decomposition. I am quite certain that none of these findings are an artefact of decomposition. I do wonder if the body had been in a fresh state if we wouldn't have seen more injuries, more subtle injuries, particularly on the skin of the neck and the hands, but the findings indicate, as I said previously, compression of the neck. There's no question that that happened and there is no alternative explanation for each of those injuries and especially the combination of injuries.
Pressure was applied to the neck resulting in a fracture of the thyroid cartilage and in bruising of the muscles of the neck, and there were demonstrable petechial haemorrhages. This is strongly suggestive of neck compression with signs of asphyxia and also it's possible that there's occlusion of the outer airway, and that is just based on the examination itself without any reference to the scene or the circumstances.”^[19]
19. Ibid 144: 29–43.

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.
20. Ibid 142: 9–11.
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]
21. Ibid 153: 22–24
22. Ibid 153:19 to 154: 16.
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]
23. Ibid 160: 40–45.
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

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.
24. TT, dated 9 February 2023, 187: 17–18.
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.
25. Ibid 186: 1-3.
26. Exhibit C21 (electronic image) and Exhibit C22 (hardcopy image).
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]
27. TT, dated 9 February 2023, 190: 36-44.
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:

“Q. The proposition that "neck blood vessel occlusion can be very rapid and can cause almost immediate unconsciousness", what do you say to that proposition?
A. That is possible. Can I qualify that and say the veins, taking venous blood down from the head and neck to the heart, are much more compressible because they have very thin walls and the pressure in those vessels is very low, in comparison to arteries which are much thicker‑walled and convey arterial blood at around a blood pressure of 120 millimetres of mercury up to the brain. So the veins are highly compressible and the arteries not so. However, both in theory are entirely compressible by manual and ‑ acts of manual and ligature strangulation.
Q. Is that a phenomenon with which forensic pathology is familiar?
A. Yes.
Q. Based on what?
A. Based on multiple autopsy examinations of people who've, for example, hung themselves or who have been ‑ where it's alleged they've been strangled either using the hands or a ligature and examining those structures and looking for injuries.
Q. Is it possible to answer this question at all: How long does it take for someone to be rendered unconscious from neck compression to the blood vessels of the neck?
A. It can be a surprisingly short period of time, like a matter of seconds, depending on the amount of force applied to those blood vessels and if somebody, for example, is able to place their hands or parts of their hands forcibly to each side of the neck and occlude those blood vessels instantly, then unconsciousness can occur very rapidly, within seconds of that act having been performed.”^[28]
28. Ibid 191: 10–39.

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]
29. Ibid 202: 9.
30. Ibid 202: 4–9.
In relation to whether there was evidence of smothering, Dr Cala was asked:

“Q. Are there any other results that would be expected on autopsy if somebody, other than the four abrasions that you've suggested that you can see in the photographs, to support a conclusion that somebody had been smothered causing death?
A. Yes, you might see some abrasions around the nostrils. You might see some abrasions on the upper lip as well. Because it's a forceful act to occlude the nose and mouth that's where the injuries are generally found, not on the outside of the mouth, but you may see some smaller abrasions over each nostril and in the midline of the nose.”^[31]
31. Ibid 205: 23–33.

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]
32. Ibid 208: 26–30.
33. Ibid: 32–35.

Findings and Verdicts

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.

Findings

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.

Cause of Death

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]
46. TT, 8 February 2023, 134: 9.
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.
47. TT, 9 February 2023, 195: 42 – 43.
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]
48. Ibid 196:10 – 14.
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.

Mechanism Causing 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]
49. Ibid 202: 4–9.
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.

The Circumstances Surrounding the Death of Kim McRae

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 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 Laptop

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.

The Missing Money

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.

How Did the Cord Break?

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.

Has the Crown Proved the Elements of Murder Beyond Reasonable Doubt?

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:

the accused’s account that during the struggle he held the cord down against the front of the deceased’s neck with some force and for some seconds, is not inconsistent with the expert evidence and, in particular, the evidence of Dr Irvine, who was the only expert called who had attended the post-mortem examination;

Dr Irvine concluded that the cause of death was asphyxiation by neck compression. The fracture to the thyroid cartilage could have been caused by neck compression resulting from the application of a ligature (a cord) held down on the neck of the deceased;

the required pressure to cause a fracture to the thyroid cartilage is about two kilograms. The deceased’s larynx may have been more vulnerable due to the earlier surgery to shave her Adam’s apple. The pressure required to cause the fracture to the thyroid cartilage could therefore have been less than otherwise required, having regard to that vulnerability;

both experts agreed that the time required for such pressure to render the deceased unconscious could be measured in seconds, rather than minutes;

there is no persuasive evidence that the cord was wrapped around the neck of the deceased. The evidence of Senior Constable Hill, the photographs, and the evidence of Dr Irvine and Dr Cala, strongly suggest that the cord was held down against the front of the neck of the deceased. Had the cord been wrapped around the deceased’s neck, that may have suggested a degree of deliberation and force consistent with an intention to do really serious bodily harm; and

I accept the accused’s account of the struggle between himself and the deceased is a credible account. In the circumstances that presented during the struggle, which took place over a very short period of time, I am not satisfied that the accused formed the necessary intention to make out the charge of murder.

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.

Manslaughter – Unlawful and Dangerous Act

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.

Was the act unlawful?

Sections 418 and 419 of the Crimes Act provide:

418   Self-defence—when available
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary—
(a)  to defend himself or herself or another person, or
(b)  to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c)  to protect property from unlawful taking, destruction, damage or interference, or
(d)  to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.

419 Self-defence—onus of proof
In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

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:

that the accused did not genuinely believe that it was necessary to act as he did in his own defence; or

that what the accused did was not a reasonable response to the danger as he perceived it to be: see Katarzynski at [23].

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.

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Endnotes

Decision last updated: 28 February 2023

Medium Neutral Citation:	R v Valencia Valencia [2023] NSWSC 163
Hearing dates:	6 February 2023; 7 February 2023; 8 February 2023; 9 February 2023; 10 February 2023; 13 February 2023; 14 February 2023
Date of orders:	24 February 2023
Decision date:	24 February 2023
Jurisdiction:	Common Law - Criminal
Before:	Yehia J
Decision:	Hector Enrique Valencia Valencia found not guilty of the murder of Kimberly McRae, but guilty of manslaughter
Catchwords:	CRIMINAL LAW — Murder — Trial by judge alone — Whether the accused intended to cause grievous bodily harm or kill the deceased — Where cause of death is neck compression — Unlawful and dangerous act — Whether the prosecution has excluded the reasonable possibility that the accused acted in self-defence
Legislation Cited:	Crimes Act 1900 (NSW), ss 418, 419 Criminal Procedure Act 1986 (NSW), ss 132, 133, 133(3) Evidence Act 1995 (NSW), ss, 65, 191
Cases Cited:	Gall v R; Gall v R [2015] NSWCCA 69 R v Katarzynski [2002] NSWSC 613 Sivaraja v R; Sivathas v R [2017] NSWCCA 236 Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31
Category:	Principal judgment
Parties:	Rex (Crown) Hector Enrique Valencia Valencia (Accused)
Representation:	Counsel: C Everson SC (Crown) C Wasley (Defence) Solicitors: Office of the Director of Public Prosecutions (Crown) James and Jaramillo Lawyers (Defence)
File Number(s):	2020/00043308
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-Publication Act 2010 (NSW), there is to be no publication of the contents contained in paragraph [97]. The orders are made on the grounds set out in ss 8(1)(a), (c) and (e) of the Act