The lawyer acting for the man convicted of Grace Millane's murder focused on the issue of consent today at the appeal hearing of his conviction and sentence.
Grace Millane. Photo: RNZ / YouTube
The man, who retains interim name suppression, strangled Millane in his CityLife apartment in Auckland's CBD after a Tinder date in late 2018.
After highly-publicised trial last November he was found guilty of murdering the young woman, who had been travelling through New Zealand on a worldwide OE.
At trial, the 28-year-old argued Millane accidentally died during consensual rough sex; a version of events the jury ultimately rejected.
He returned to court today to challenge both his conviction and sentence before Justice Kos, Justice Cooper and Justice Courtney in the Court of Appeal today.
His new lawyer, Rachael Reed QC, began the hearing by saying the appeal did not justify what happened to Millane during her time in Aotearoa, but argued the man did not receive a fair trial.
"It does not in any way seek to condone or excuse the actions of the appellant after Ms Millane's death. I cannot and will not do so as they are inexcusable.
"But this appeal is about whether the trial process miscarried and of course every person before this court, and any court, is entitled to, and has a right to, a fair trial."
Much of what is known about the man's actions after Millane's death comes from a wealth of CCTV footage that captured his movements around Auckland's CBD.
He cleaned his apartment, contorted Millane's body into a suitcase and then buried it in the Waitākere Ranges before going on another Tinder date in Ponsonby the next day.
Analysis of the man's phone also showed he took explicit photographs of her naked body and searched for pornography as she lay dead in his room.
Today, Reed told the court while his post mortem actions were distasteful, it didn't mean he was guilty of murdering the young woman.
"He may have used such searches as a distasteful distraction of the reality of Ms Millane's death."
Whether Millane consented to being strangled, and at what point she may have withdrawn consent, was the central issue at trial.
Experts from both camps agreed it would take at least 90 seconds, most likely longer, to kill someone by strangulation and that they would pass out at some point during this period.
By law, no one can consent if they're unconscious.
The jury's verdict in the Millane case meant they found the man recklessly murdered her by continuing to strangle her after she passed out.
However, Reed told the Court of Appeal it wasn't that simple and the jurors were led astray by the way the question trail, which guided them to their verdict, was worded.
"Withdrawal of consent had to have occurred on her loss of consciousness. The question then becomes whether the appellant continued to have an honest belief in consent."
"That is a crucial live issue in my submission and a live issue that the jury were not able to engage in on the question trail as it sat on reckless intent."
Justice Kos interrupted Reed at one point to query her citation of an international case that found people could consent to extreme sexual practices.
Reed: "Consent shouldn't be removed just because someone has died. There may be circumstance where there are accidental deaths and the key is working out when there is an accidental death and when there is a murder."
Justice Kos: "That's the difficulty with this argument because while one respects the autonomy of people to do what they want in their own bedrooms, a point comes where public policy says what is being done here is so dangerous, so risky, that is should not be permitted."
Crown Solicitor for Auckland Brian Dickey said there was no suggestion Millane could have consented to what killed her at trial.
He said the scientific evidence laid bare the sheer force required to kill somebody and told the judges it was not a case of rough sex gone wrong.
"If this was for her sexual pleasure it would have been very clear she wasn't enjoying it."
Addressing submissions the man's minimum 17-year jail term was too harsh, prosecutor Robin McCoubrey said the 28-year-old deserved it.
"A woman can't be more exposed at that point in which she's engaging in sexual relations, she was particularly vulnerable."
The man sat hunched in a prison booth on a large television screen in the courtroom, ducking his head down occasionally to read documents or make notes.
His father sat with a small group of supporters in the public gallery.
Millane's family were not in court but Detective Inspector Scott Beard and Detective Senior Sergeant Greg Brand, who continue to work closely with them, were present.
The Court of Appeal reserved its decision.