An ice user who claims he stood by while his lover strangled a woman they'd met the day before can be found guilty of murder because he was recklessly indifferent to the likelihood the victim would die, a court has heard.
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Micheal John Duffy has pleaded not guilty to murdering Colleen Deborah Ayers in a guesthouse of her parents' Lakesland property, south of Sydney, and burying her in a shallow grave, during two days of sex, drugs, drinking and burglary in May 2012.
The Crown says Mr Duffy was part of a joint criminal enterprise with Rachael Margaret Evans, who earlier pleaded guilty to murdering Ms Ayers while she (Ms Ayers) was having a sexual encounter with Mr Duffy.
In the NSW Supreme Court on Friday the jury of six men and six women were told they could find Mr Duffy and Evans had an agreement - even an unspoken one - to cause Ms Ayers, 33, serious harm. While Mr Duffy and Evans disagree on who pulled the leather belt around Ms Ayers' neck, causing her to go limp, the prosecution says even if the former was merely watching the latter but knew the victim would probably die, he is equally culpable.
The Crown alleges Evans became agitated when she heard Mr Duffy and Ms Ayers having sex in a bedroom of the guesthouse on the property. Evans grabbed a leather belt, repeated the words "I'm going to do it" and marched into the bedroom.
During the trial Evans told the jury she first leaned in and whispered in Mr Duffy's ear "we are going to smash her".
"He just said, 'Yeah OK'," Evans said.
She claimed she put the belt around her neck. When Ms Ayers bucked her, she claimed Mr Duffy took hold of the belt and pulled.
Mr Duffy's case is that Ms Ayers' murder was a "thrill kill" carried out spontaneously by Evans and was not planned in conjunction with him. While he was present during the strangulation, he says did not join in.
Justice David Davies said if the jury didn't believe Evans' evidence, the Crown argues they can still convict Mr Duffy based on the circumstantial evidence.
Three people at the guesthouse heard Ms Ayers' call out "no, please stop" from the bedroom in which she, Evans and Mr Duffy were. Once Ms Ayers' body went limp, Mr Duffy didn't call police or an ambulance. He did not go back to check if she was still alive, but searched the property for guns to steal. He continued to hang out with Evans, taking drugs and trying to sell the stolen firearms, for the next few days and weeks.
Further, the lies he told about moving and burying the body are evidence of consciousness of guilt, the Crown says.
The jury will continue to deliberate on Monday.
