An appeal by the man found guilty of murdering Grace Millane wasn't about attempting to justify his actions after her death, his new lawyer said on Thursday, but about whether his trial was fairly carried out.
The man, whose identity remains suppressed, was found guilty last November of murdering Millane in December 2018. In February, Justice Simon Moore sentenced the man to life imprisonment with a minimum non-parole period of 17 years.
During the trial, the Crown said the man murdered Millane by strangulation, but the man denied it was murder, arguing her death was an accident during a form of rough consensual sex.
His appeal against his conviction and sentence was heard on Thursday in the Court of Appeal, located in the Auckland High Court.
Following extensive submissions from both the man's new lawyer, Rachael Reed QC, and the Crown, the three presiding Justices reserved their decision until a later date.
Before presenting her proposed grounds for appeal, Reed told the court the appeal did not seek to "condone or excuse" her client's actions after Millane died. That included searching for pornography, taking intimate photos of her body, and later putting the young woman's body into a suitcase and hiding it in a bushy area.
She instead described these actions as "inexcusable" and said that the photography was "abhorrent".
"This appeal is about whether the trial process miscarried," Reed said.
Several concerns with the November trial were then laid out, including about how the jury was able to deal with the question of consent when considering their verdict, if jurors were given "balanced" direction about expert evidence and how to weigh this up, and how evidence from other women about the man was handled.
One point Reed submitted was that the jury didn't have adequate opportunity to deal with whether the man held an "honest belief in consent" at the "crucial time" when the woman became unconscious.
Reed suggested questions regarding consent for the man to apply pressure to her neck should have been asked earlier in the question trail. This is a series of questions jurors must answer when considering their verdict.
She was clear that one cannot consent to their own murder.
The Crown lawyer, Brian Dickey, however, stood by the question trail. He said issues of consent had been dealt with at length during the trial and the question trail shouldn't read as a summary of the case.
Dickey also said there was no issue with how expert evidence had been presented to the jury. He said the Crown had quoted pathology evidence from the experts and when summarised, it had been done so accurately.
Sentence appeal
The man is also appealing his sentence and Reed questioned the trial judge's finding that Millane was "particularly vulnerable" and that the killing had a high degree of callousness. If these factors are engaged, a minimum non-parole period of 17 years must be passed down.
The man's "abhorrent" actions after Millane's death, such as taking photos of her, did not automatically mean he was especially callous at the time of her death, the lawyer submitted.
She instead suggested it was wise to consider both the man's conduct both before and after death. Looking at the CCTV footage of the pair's date prior to them heading to the Auckland hotel she died in, Reed said they appeared happy and comfortable in each other's presence.
The lawyer noted there were no internet searches before Millane's death and no planning.
"You need something in addition to an abhorrent [action] after the event."
Reed said searching pornography after Millane's death could have been a distasteful distraction to what had occurred.
In regards to callousness, Crown lawyer Robin McCoubrey described as fair Justice Moore's view that the mechanics leading to Millane's death cannot be viewed in a vacuum, but must be taken into context.
He pointed out that the man didn't just take intimate photos of Millane, but noted his internet searches for the Waitakere Ranges and actions in the days after.
The Crown lawyer also submitted that the activity on the man's phone must have closely followed death, as it was unlikely he would have waited around before a "frenzy" of activity.
Reed suggested, however, that the man may have distracted himself for a while before his "awful" actions. She continued to contest these actions didn't point to his state of mind at the time of the death.
The appeal was overseen by Justice Kos, Justice Cooper and Justice Courtney. They will release their decision at a later date.
In court on Thursday were members of the killer's family as well as Detective Inspector Scott Beard and Detective Senior Sergeant Greg Brand. The convicted murderer appeared via audio-visual link.
Millane and the man had been on a four-hour Tinder date on December 1 at several central Auckland establishments before they went to an apartment in an Auckland hotel. Millane would never leave alive.
Early in the morning of December 2, the man searched for pornography as well as for the Waitakere Ranges, where her body would later be found,
Having not heard from the young woman - whose 22nd birthday was on December 2 - Millane's British family filed a missing person report and police launched an investigation.
On December 8, her now-convicted killer was arrested, and a day later, Millane's body was found in a suitcase in the Waitakere Ranges.
In the second of two police interviews prior to his arrest, the man admitted the pair went back to the hotel and claimed she died after attempting a form of rough sex which included him putting his hands on her neck at her request. He said he fell asleep in the shower and came back into the hotel room to find her bleeding from her nose.
The man was given name suppression following his arrest. His lawyers at trial were Ian Brookie, Ron Mansfield and Claire Farquhar.
