The widely suspected holes in the NSW criminal justice system's handling of the 29 September 2019 death of Mhelody Bruno are beginning to appear.
The 25-year-old Filipina transgender woman died as a result of being strangled unconscious by then 31-year-old RAAF corporal Rian Toyer.
When Toyer appeared in court for sentencing, after having pleaded guilty to manslaughter, the agreed facts stated that he would choke Mhelody consensually during sex.
And although she'd never verbally agreed to being strangled, it was understood by the court that she'd initially instigated the practice and would usually tap Toyer's arm when she wanted him to stop.
This version of events saw NSW District Court Judge Gordon Lerve sentence Toyer to a 22 month Intensive Correction Order on 19 March, which stood until days later, the NSW Director of Public Prosecutions pointed out that punishment for manslaughter cannot be served in the community.
So, Toyer was resentenced on 29 March, this time to 22 months on the inside.
However, last week, the ABC's Background Briefing revealed that it had uncovered further evidence regarding Mhelody's death, which strayed from the official version of events. And whilst this information was known to NSW police, it was never presented to the court.
Bruno was holidaying in Australia, when she met Toyer on Grindr, and, at the time of her death, they had known each other for about three weeks.
The now ex-RAAF employee called police from his Wagga Wagga apartment on the morning of 21 September stating that Mhelody was unconscious, and she died in the local hospital the following day.
Whilst the court knew the pair had argued the night before she was strangled, what wasn't known was that a series of aggressive video calls had been made via Bruno's phone to her friend that night, which involved a man asserting he was “going to give her HIV” and “destroy her arse again”.
Footage viewed by some of her friends and family members in the Philippines showed Mhelody looking groggy, while an unidentified man attempted to pull down her pants, and after she pushed him away, he threatened to rape her before hanging up.
Further evidence that never made it to the agreed facts were that following Toyer calling triple-0 to state that Bruno had become unconscious during sex, the paramedics turned up five minutes later to find her fully clothed on the floor, with no evidence that he'd attempted CPR.
The statements of attending paramedics were neither tendered in court. However, if they had been, it would have been found that one paramedic had noticed that Bruno had a loose tooth, which was almost detached, as well as trauma around her mouth.
Mhelody worked in a call centre in Manila, where she earnt money to support her family. Following Toyer's sentencing in March, there were a number of rallies and vigils held in both Sydney and Melbourne, with supporters maintaining that justice had not been served.
On resentencing Toyer, Judge Levre said it was with “considerable regret” that he had to send the man to prison. And he also found that Toyer having lost his position in the RAAF over the incident served as extra-curial punishment and was a mitigating factor in sentencing.
A spokesperson for Anakbayan Sydney Genesis Mansilongan suggested to Sydney Criminal Lawyers in April that the RAAF is an “old boy's club”, and, as the judge is also a member of the air force, he was simply “protecting his own”.
On having been presented with the new evidence, former NSW Supreme Court Justice Anthony Whealy told the ABC that “there is certainly an argument to say that a miscarriage of justice may have occurred”. And there are now growing calls for the case to be reopened.
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