‘So much evidence has been excluded’: More questions raised over Mhelody Bruno court case

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A court found Mhelody Bruno was strangled during an act of consensual sexual choking and sentenced her killer to 22 months in jail. (Supplied)

When Rian Ross Toyer was sentenced to 22-months jail for killing his partner Mhelody Bruno in a manslaughter death, the NSW District Court was never told he had sent Ms Bruno a message threatening to kill her if she cheated on him in the week before he strangled her.

It’s the latest evidence the ABC can reveal was gathered by police but never presented to the court during Toyer’s sentencing hearing.

Warning: The following story contains content that some readers may find confronting.

Toyer pleaded guilty to Ms Bruno’s manslaughter earlier this year, which meant his case went straight to a sentencing hearing without the need for a trial.

At that sentencing hearing the court found Toyer choked Ms Bruno, a transgender woman from the Philippines, during a consensual sexual act that went wrong, and he tried to help her when he realised she was unconscious by performing CPR and calling 000.

There is no evidence Ms Bruno cheated on Toyer.

Former Supreme Court Judge Anthony Whealy says there needs to be a review of how the NSW Police and the Department of Public Prosecutions handled this case.

“I think lessons can be learnt from this tragic case — first of all, that it should never happen again,” he said.

“I hope that is a lesson that both police and the prosecutors will bear in mind.”

Earlier this month, the ABC’s Background Briefing program revealed a raft of information that was in the police brief but was never shown to Judge Gordon Lerve at the sentencing hearing for Toyer.

The court found the pair had an argument the day before Ms Bruno was choked, where Toyer kicked her and her belongings out of his house after he claimed to have found her using the LGBTIQ dating app Grindr, but they later made up.

But there was other evidence the court did not hear or test. This included:

  • A statement from a man who claims he saw Toyer threatening to rape Mhelody in a video call on the night before she was choked while she appeared “groggy”.
  • The autopsy report which found she had fractured cartilage in her thyroid in her neck.
  • The accounts of paramedics who told police they found Ms Bruno fully clothed and with a loose tooth and trauma to the gum, when they arrived. The autopsy made no mention of the tooth.
  • Paramedics also noted they couldn’t see any evidence CPR had been performed.

The strength or admissibility of this evidence was never assessed by the court when sentencing Toyer because it was not presented to Judge Lerve.

The phone messages the court never saw

Now the ABC can reveal a whistleblower has since come forward.

They say police also had copies of WhatsApp messages that were sent between Toyer and Ms Bruno during their three-week relationship, before she was killed.

Many of the messages were sent while Toyer was on a cruise with his mother and Ms Bruno was travelling in Queensland.

The whistleblower, who wants to remain anonymous, says the pair “professed their love” for each other early in their messages.

“I recall Mr Toyer asking questions like, ‘Can I trust you? How do I know I can trust you?'” they say.

They say Toyer’s threatening text was sent in the midst of such a conversation.

“It was either, ‘If you sleep with another man or if you ever cheat on me, I will kill you’,” the whistleblower says.

The whistleblower says Ms Bruno responded by reassuring Toyer that she loved him and would not cheat on him.

The whistleblower says there were later messages from Toyer to Ms Bruno where he accused her of using Grindr and said he was throwing her belongings out of his home.

Former judge says he’s never seen a case like this

Ms Bruno’s family is in the Philippines and they watched the sentencing hearing for Toyer via a video stream, but struggled to follow what was happening.

Ms Bruno’s mother, Avenlina Bruno, says she doesn’t understand why the WhatsApp messages were not shown to the court.

“We wonder, we ask why it didn’t reach the court?” she said.

“Does it mean there’s a bias?”

Ms Bruno’s younger sister Dhelia Bruno says the evidence should have made it to court.

“Why wasn’t that information included?” she asked.

“I think it could have helped strengthen the case against Toyer.”

Former Supreme Court Judge Anthony Whealy said he had never seen a case like this before.

“I have not struck anything where so much evidence has been excluded as happened here,” he said.

He believes the court should have been shown the WhatsApp messages.

“I’m at a loss to understand why that would be excluded,” he said.

Speaking previously to the ABC, Justice Whealy said there was an argument a miscarriage of justice may have occurred.

“Unfortunately, we don’t know enough about all the detail, we’re commenting on bits and pieces as it were,” he said.

“I think at the very least you could say they reveal this was a much more serious manslaughter than the judge envisaged it to be.”

Suspicion about an issue not sufficient, says ODPP

The Office of the Director of Public Prosecutions [ODPP] declined to comment on the latest development, but said in a previous statement it could not discuss material that was not adduced in court proceedings.

The ODPP said it had “formed a view about the forensic value of each piece of evidence in the police brief” and whether it was relevant and admissible in the sentencing hearing.

But evidence that would lead to a higher sentence has to be “established by the prosecution beyond a reasonable doubt” and that “suspicion about an issue is not sufficient”.

Wagga Wagga police also declined to comment further but previously told the ABC all evidence gathered by police was sent to the Department of Public Prosecutions in the police brief.

Trans advocate Eloise Brook said the trans community was deeply concerned by the case.

“The Gender Centre again calls for a review of all available evidence, and in light of the further details made public around Mhelody Bruno’s death by the ABC, why her killer was not given a tougher sentence,” she said.

In a statement, NSW Attorney General Mark Speakman said:

“The conduct of prosecutors, including the assessment of evidence and resolving charges, is governed by prosecution guidelines.”

“These require that charges ‘appropriately reflect the essential criminality of the criminal conduct capable of being proven beyond a reasonable doubt and provide an adequate basis for sentencing’.”

“Evidence that does not meet this high threshold may therefore be excluded when the matter comes before court.”

Rian Toyer declined to speak to the ABC, as did his solicitor Zac Tankard. His barrister, Mark Dennis SC, did not respond to the ABC.

NSW police were contacted for comment.

Source: Thanks msn.com