GRACE Millane's Tinder date killer is appealing against his life sentence, claiming that taking pics of her dead body and watching porn after murdering the Brit backpacker didn’t make him a monster.
The 28-year-old is also appealing against his murder conviction after a jury found him guilty of strangling her to death, and he was caged for 17 years – a sentence his lawyer says is too harsh.
Despite the guilty verdict delivered in November 2019, the killer's identity still can not be revealed for legal reasons.
He has continued to claim her death was due to so-called "rough sex" and that it was a tragic accident.
His new lawyer Rachael Reed QC today told Justices Stephen Kos, Patricia Courtney and Mark Cooper that no person could consent to their own death, reports Stuff in New Zealand.
But, she said the jury should have considered whether Grace consented to the application of pressure to her neck and whether the Brit's killer exceeded the bounds of her consent.
“Did he have time to realise [consent] had occurred prior to her death and if he did, did he maintain an honest belief in consent at that time?" she asked the Justices.
However Crown prosecutor Robin McCoubrey argued: “A woman can’t be more exposed at that point in which she’s engaging in sexual relations; she was particularly vulnerable.
“You’re involved in the most intimate activity – the last thing on your mind is that you’re about to be murdered by your sexual partner.”
Backpacker Grace went missing on December 1, 2018 and failed to contact her family on her 22nd birthday December 2 while in Auckland, as part of a planned year-long trip abroad that began in Peru.
She was last seen alive entering a central Auckland hotel with a man on the evening of December 1.
On December 9, her body was found in a forested area about 10 metres (33ft) from the side of the road in the Waitakere Ranges near Auckland.
She died after meeting him through the dating app Tinder, going out for drinks, and then returning to his hotel apartment in central Auckland.
Prosecutors said the man then strangled Grace to death.
Brian Dickey told the trial that at some point, she would have lost consciousness, meaning the man would have needed to keep strangling her after she went lifeless under his grip.
One woman, who had previously dated the man, testified she had feared for her own life during a sexual encounter with him after the man sat on her face, restricting her breathing without her consent.
Prosecutors also said he took explicit photos of Grace's body after she died, and used Google to search for “Waitakere Ranges” and “hottest fire” as he tried to figure out how to dispose of her.
The court heard that he watched violent porn and went on another date while her corpse lay in his flat.
He stuffed her body into a suitcase, drove to a forest and buried it in a shallow grave, where police found it a week later, twisted '"in the foetal position".
The killer hired a car and bought cleaning equipment to “calmly, coldly and methodically” remove traces of Grace’s blood from his carpet, said prosecutor Robin McCoubrey.
The prosecutor told the court she had been strangled until she bled through her nose.
Defence lawyers claimed the death was accidental after the pair engaged in consensual erotic choking – so-called "rough sex" – that went too far.
Ian Brookie, defending, told the jury that although he did not blame Grace for her own death, it was an accident, not murder, “when an act designed to enhance their sexual pleasure went wrong and she died as a result”.
“What’s important here is that they were both keen to give it a go and they did,” said Mr Brookie.
But the jury didn’t buy the defence, and after a three-week trial, they deliberated for about five hours before returning the guilty verdict
Now, his new lawyer is arguing he didn’t get a fair trial and his sentence was too harsh.
Rachael Reed said today: “Consent shouldn’t be removed just because someone has died."
But, Justice Kos said her argument's implication was “grave”.
Reed was basically suggesting that someone who chose not to give evidence at trial, as Grace’s killer did, could then advance consent as a justification for death, Justice Kos added.
“I for one resist your proposition.”
Reed also questioned the expert evidence of forensic pathologist Dr Simon Stables and Dr Fintan Garavan about the strangulation and cause of death.
But Reed was told by Crown prosecutor Brian Dickey that 90 seconds was a long time to press on someone’s neck.
“She must have been resisting… and struggling for her life,” Dickey argued.
“You don't just tap someone's neck and they die.”
Reed said she wouldn't try to excuse the fact that the killer took intimate photos of Grace's body after her death.
“I cannot [excuse his actions] as they are inexcusable” and “abhorrent”, she said.
Reed claimed bruising on Grace's body was not "significant".
She also criticised High Court Justice Simon Moore for placing too much weight on the killer's degree of callousness during the trial, Stuff reported.
Her client's actions after Grace’s death did not mean he was callous at the time of her death, Reed added.
Dickey challenged her comment, saying that consent wasn't a defence for murder.
He asked: “What actual evidence was there to sustain the proposition this was an accidental death in a consensual sexual encounter?
“Nowhere in [one of the defendant's police interviews] does he link what he did to her death.
“We have the most flimsy basis of consent.”
The Justices have reserved their decision.
BRITAIN TO OUTLAW 'ROUGH SEX' DEFENCE
Britain is to become the first country to outlaw the "rough sex" defence in homicide trials, setting a precedent.
The issue gained worldwide attention following the 2018 murder in New Zealand of British backpacker Grace Millane whose killer said she died accidentally during consensual sex.
Women's rights campaigners say the normalisation of violent sex in popular culture means men facing criminal charges for harming women are increasingly claiming the violence was consensual.
Lawmakers in Britain agreed late in July to include a new clause in the Domestic Abuse Bill that would end the use of the rough sex defence.
"We're thrilled. This is a really big deal," said Fiona Mackenzie, founder of campaign group We Can't Consent To This, which has led calls for a change in the law.
"MPs have voted to make it crystal clear that you cannot consent to serious violence or your own death.
"MPs are drawing a line in the sand and saying this is not acceptable."
Mackenzie said there had been 60 killings of women where the defence had been used and many more cases where women had been badly injured.
The rough sex defence has often led to a lesser charge, lighter sentence or the investigation being dropped.
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