The jury that found a man guilty of murdering British backpacker Grace Millane should have given more thought to whether he believed she consented to certain acts during sex, a court has heard.
The 28-year-old man, who has name suppression, is appealing his conviction and prison sentence in the Court of Appeal.
He was sentenced to life in prison with a minimum non-parole period of 17 years for the murder of Grace, who died sometime between December 1 and 2, 2018 after she went on a Tinder date with the man in Auckland’s CBD.
The Crown said he strangled Grace for between five and 10 minutes. At his trial, the man denied murder and claimed her death was a tragic accident after the pair had rough sex.
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On Thursday at the Court of Appeal, the man’s lawyer, Rachael Reed QC, said she was not seeking to condone her client’s actions after Grace’s death.
At his trial, the court heard he took photos of Grace’s body and searched for pornography before burying her in a shallow grave.
“I cannot [excuse his actions] as they are inexcusable,” Reed said.
Her client said there were four grounds on which the trial process had miscarried, including how much emphasis was placed on the element of consent.
Reed said no person could consent to their own death, but said the jury should have considered whether Grace consented to the application of pressure to her neck and whether her client exceeded the bounds of her consent.
“Whether the appellant had an honest belief in consent, this is a crucial live issue and the jury were unable to engage,” she said.
“Did he have time to realise it had occurred prior to her death and if he did he maintain an honest belief in consent at that time?”
At his sentencing in February, the man’s then-lawyer Ian Brookie said his client maintained his innocence.
But High Court Justice Simon Moore said Grace was vulnerable as she trusted the man enough to go into his room and engage in intimate physical activity.
“You were a large powerful man, she was diminutive … you were in a position of total physical dominance.”
Millane’s lifeless body was in the room when the man searched and accessed pornographic websites on his phone, Justice Moore said.
“You took grossly intrusive intimate photos.”
The killer’s sense of self-entitlement and his objectification of Grace’s body showed his high degree of callousness, Justice Moore said.
Gillian Millane, the mother of murdered British backpacker Grace Millane, addresses her daughter’s killer at his sentencing at the High Court in Auckland.
A psychologist had found the man was at “very high risk” of reoffending, he said. No mental health issues had been diagnosed at the time of his sentencing.
Grace’s family, including her mother Gillian, brother Declan and sister-in-law Victoria, read their victim impact statements to the court at sentencing via a video link from their home in Essex, England.
The three told the court their lives had been ripped apart by Grace’s death.
“No life sentence you receive today will match the life sentence without my Grace. But I will do my utmost to ensure that any other family will not go through what we have endured,” Gillian told the man.
“You have ripped a hole in my heart, one that will never be repaired.”
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