What is the Mental Element of Murder in New South Wales?

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Colombian student Hector Enrique Valencia was initially charged with murder over the killing of Kimberley McRae in her Coogee apartment in January 2020, as well as the alternative charge of manslaughter.

The 23-year old pleaded guilty to manslaughter in the Supreme Court of New South Wales, but maintained his innocence in respect of murdering the 69-year old sex worker.

The matter proceeded to a judge-alone trial before highly-respected judge, Justice Dina Yehia, who found Mr Valencia not guilty of murder last week, on the basis that the Crown had failed to prove the mental element of murder beyond a reasonable doubt.

The judgement sparked outrage on social media, and triggered debate about the mental element required to establish the offence of murder.  

The Facts of the Case

Mr Valencia arrived in Australia on a student visa in 2019, studying business.

On 8 January 2020, he texted McRae in response to her online advertisement for sex work. 

The scope of, and fee for, the sex work was negotiated during the ensuing exchange of messages. 

Mr Valencia was adamant he was unaware Ms McRae was transgender when he engaged her services.

After arriving at McRae’s apartment, Valencia paid $100 and received oral sex. 

He claimed that after receiving the service, he became “suspicious” about McRae’s gender-status and asked her if she was transgender, to which McRae replied that she was.

Valencia responded violently to this revelation, punching McRae in the stomach and face. McRae attempted to defend herself with a nearby lump and struck Valencia on the shoulder.

Valencia then claims a scuffle broke out between the two over the lamp, in which he took the cord of the lamp with both hands and pressed it down on McRae’s neck, killing her. During cross-examination, Valencia noted that the held the cord over her neck for “a few seconds”.

Valencia then left and McRae’s body was discovered by her real estate agent several days later.

What Is A “Guilty Mind” For Murder?

Prosecutors rejected Valencia’s initial offer of a plea of manslaughter and pursued a case of murder at trial.

The elements of murder are outlined under s 18(1)(a) of the Crimes Act 1900 (NSW), requiring a voluntary act or omission of the accused, which causes the death of the deceased with the required men rea (or mental element) of the offence.

The mental element which must be proven for murder is either:

  • an intent to inflict grievous bodily harm; or
  • an intent to kill; or
  • reckless indifference to human life.

Intention is given its ordinary meaning of trying to bring about the death of another or to inflict grievous bodily harm (or “really serious injury”).

Reckless indifference to human life is the doing of an act with the foresight of the probability of death arising from that act (The Queen v Crabbe (1985) 156 CLR 464). That is, the defendant foresaw that death was likely but did the act anyway.

The mental element of murder is what Justice Dina Yehia found had not been sufficiently proven beyond reasonable doubt at trial to justify a conviction for murder.

The killing of another in circumstances where the mental element of murder is not present amounts to involuntary manslaughter, which is what Valencia was ultimately convicted of.

Media reports indicate Valencia was convicted on the basis of unlawful and dangerous act manslaughter, where a person killing another whilst acting contrary to the law in a manner which put the deceased in an appreciable risk of serious injury.

Not A Trans Panic Defence

Some commentary online has described Valencia’s avoidance of a murder conviction as an example of the “trans panic defence” in action. However, this confuses two separate legal doctrines.

The “trans panic defence” (and the related “gay panic defence”) is a line of argument used in some jurisdictions to downgrade what would otherwise be a murder conviction to manslaughter on the basis that the person was so angered either by being “deceived” by a person’s trans status during a sexual encounter, or because a trans or gay person made a sexual advance at them.

Trans panic style arguments arise within the context of voluntary manslaughter, not involuntary manslaughter. 

In particular, the partial of defence of extreme provocation under section 23 of the Crimes Act 1900 (NSW) would be the most likely candidate for this line of argument. However, reforms have made this partial defence of provocation much more limited in application, in particular section 23(3) makes it explicit that a non-violent sexual advance cannot amount to extreme provocation. 

Valencia did appear motivated by transphobic panic at the time of the killing, stating at trial that he was embarrassed about being intimate with a “man” because of his religion.

However, this question of motive was of little relevance to determining whether the prosecution had proven the mental element of murder beyond reasonable doubt. 

Ultimately, it was the lack of clear evidence of an intent to kill or to cause serious harm, or have a reckless indifference to human life, which meant Valencia was found not guilty of murder.

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Jarryd Bartle

Jarryd Bartle is an Associate Lecturer in Criminology and Justice Studies at RMIT University and a consultant for the Bridge of Hope Innocence Initiative, which investigates claims of wrongful conviction and advocates for systemic reform to protect against miscarriages of justice.

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