By Jessica Sutton.
Content Warning: This article contains graphic details which readers may find disturbing.
Week two of the Grace Millane murder trial wrapped up surprisingly early, with the Crown concluding its case against the accused on Thursday. A final statement of facts was read, preceded by four days of testimony from a variety of Crown witnesses, the most significant of which coming from a young woman who alleged the accused tried to suffocate her during one of their encounters. Cross-examination of this witness was a tangible example of the inhumane treatment currently experienced by women who allege sexual violence in New Zealand courts. Fear of being subjected to this conduct can silence women who would otherwise speak out. It is small wonder, on my analysis, that respondents to the Law Commission’s Report on The Justice Response to Victims of Sexual Violence described New Zealand sexual violence trials as “horrendous, long, arduous, disempowering, re-traumatising and re-victimising”.
Week Two Evidence: In Brief
The Tinder Dates
Three women gave evidence regarding the interactions they had had with the accused through Tinder and in person.
Witness 1 stated that she had met up with the accused on one occasion in November 2018, and that they had consensual rough sex. She was not injured and didn’t describe the accused as violent.
Witness 2 did not meet the accused in person, but matched with him on Tinder in February 2018. The witness exchanged messages with him which made her feel uncomfortable and unwilling to meet up with him. She alleged that the accused had spoken with her, perhaps through a phone call, about his preference for dominating women and strangulation.
Witness 3 described the accused as a “sociopath” who had tried to suffocate her in November 2018 by sitting on her face during oral sex. The woman stated that after the incident the accused behaved erratically, first treating the woman coldly, then crying and claiming to be in pain due to cancer to incite her sympathy. The woman continued to communicate with the accused after the incident, which she attributed to fear that he would stalk her if she did not maintain contact. Defence counsel argued that this was more consistent with the woman trying to distance herself from the accused now that he is connected with a murder.
Another witness was a woman whom the accused met with on December 2nd 2018, while Ms Millane’s body remained in the accused’s apartment. She testified how, during the date, the accused brought up a case he knew of in which a man was convicted of manslaughter after killing a woman during rough sex. She stated he also mentioned the Waitakere ranges as an area where bodies went missing.
The Pathologist’s Evidence
Dr Simon Stables determined that Ms Millane died as a result of pressure to her neck, indicated by extensive bruising in that area. Dr Stables suggested that due to the depth of the bruising the injury would have required a significant amount of strength, maintained for 4-5 minutes until death. Although defence counsel emphasised in cross-examination that there was no way to tell whether the injury could have been inflicted consensually or not, Dr Stables noted that death due to consensual choking during sex was extremely rare, and not something he had seen in his career or heard of in New Zealand.
The Police Interviews
In the first police interview on the 6th December 2018 the accused stated that he had met with Ms Millane for a date, but that she left him around 10pm on the night of December 1st.
In the second interview, after being confronted with the CCTV evidence proving the extent of his date with Ms Millane, and showing her entering CityLife Hotel in his company, the accused changed his story radically. His new narrative included:
(1) He and Ms Millane consuming a great deal of alcohol together;
(2) The pair becoming intimate at his apartment;
(3) Ms Millane initiating “more violent” sex;
(4) The accused objecting to this activity at first but then conceding;
(5) The pair taking intimate photos of one another;
(6) The accused complying with Ms Millane’s request for her arms and throat to be held;
(7) The accused leaving the bed and passing out in the shower;
(8) The accused discovering Ms Millane’s body the next day;
(9) The accused buying suitcases, cleaning supplies and a shovel, before disposing of Ms Millane’s body.
The accused expressed remorse in the second police interview, stated he had contemplated taking his own life, and that he decided to speak up in the second interview in order to give Ms Millane’s family closure.
Analysis of Week Two
Rape myths and Revictimisation
It’s not in dispute that New Zealand’s criminal justice system is failing sexual violence complainants, and the cross-examination of Witness 3 is one in an enormous list of examples I could provide of this. When asked what works well for complainants in New Zealand sexual violence trials in the ‘Strengthening the Criminal Justice System for Victims’ (SCJSV) survey, a large proportion of respondents replied “Nothing”. 83 per cent of SCJSV respondents also disagreed or strongly disagreed that the system was safe for survivors of sexual violence. The main responsibility for this failing was cast at the door of rape myths – damaging beliefs about sexual violence “that serve to deny, downplay, or justify sexually aggressive behavior”. Several of these rape myths, rife in New Zealand sexual violence trials, came to light through the cross-examination of Witness 3. The three major rape myths employed by the defence are discussed below, and can be swiftly debunked in most cases:
(1) Women often fabricate sexual assault claims for ulterior motives (in this case Witness 3 wanted to distance herself from a man accused of murder).
This is patently untrue. Some very convenient reports have surfaced during the Trump administration which have suggested that false rape allegations are frequent, prompting Trump’s own statement that young men everywhere are in danger from vengeful, lying women. However, the main report referred to by such people relies on pitiful data, and conflates ‘unfounded’ cases (cases without sufficient evidence) with false ones, thus artificially inflating numbers of supposed ‘false’ allegations. Such studies are rebutted by a far more reliable 10-year analysis conducted by the University of Massachusetts. This study places the estimate of false reporting as extremely minimal: 2%-10% of all reported cases. There is therefore no basis for assuming that a woman is lying when she speaks out about sexual violence.
(2) Women enjoy ‘playing the victim’ (in this case, Witness 3 portrayed herself as such in order to tell her story for sympathy in court).
Anyone who has supported a sexual violence survivor, or is educated on this subject, or simply has empathy for other human beings, would realise that this is not the case. I struggle to believe any woman would willingly put herself on the line in a trial setting to ‘play’ the victim. Being cross-examined about sexual assault is brutal and humiliating. Simply standing up in front of a packed court and speaking about being assaulted takes an enormous amount of courage. The idea that women would fill their time by ‘recreationally’ taking part in a trial where they are berated for hours on end about intimate details, is frankly laughable. Witness 3 made this point excellently: why on earth would she put embarrassing details of her personal life into the public eye if she didn’t have to?
(3) If sexual assault really happened, the victim would act in a very specific way afterwards (here, Witness 3 continued to message the accused after the alleged suffocation, surely this means she made the incident up).
This myth originates from a lack of knowledge about sexual violence and the myriad consequences and behaviours that can follow. There is no ‘right’ way to be a victim. I was struck by the utopian view of defence counsel in suggesting that if Witness 3 had really been assaulted, she would have simply cut off contact with the accused. The implication was that her fear of the accused finding her if she didn’t lead him on was over-inflated and unbelievable. In fact, this fear is all too rational. Globally, it is estimated that 1 in 4 women experience stalking – threatening behaviour which can end in fatal violence. The latest grisly reminder of the possible outcome of stalking is the murder of Arishma Chand in Auckland earlier this year.
Flawed cross-examination therefore puts a sexual violence complainant into a situation which mimics the dynamics of sexual violence, resulting in the kind of trauma and re-victimisation encapsulated in the words of Witness 3: “this is ruining my life”. Recent positive developments in this area include the Sexual Violence Legislation Bill, introduced in Parliament last week, and addressing precisely this issue of re-victimisation and trauma.
The Defence’s Dilemma
Isn’t he just doing his job?
Of course, defence counsel has a job to do. They have a duty to defend their client to the best of their ability. But legal ethics has come a long way in recent years, with increasing recognition of the importance of a lawyer’s professional integrity. I have no issue with describing defence advocacy which incorporates rape myths as disrespectful and irresponsible. Defence lawyers who take on these cases must know that juries are susceptible to rape myth rhetoric, and if they don’t know, they need mandatory education before taking on a sexual violence case.
You can’t expect the defence lawyer to just sit there!
I am not advocating for removal of cross-examination. I am advocating for a behavioural adjustment to avoid unnecessary trauma and perpetuation of rape myths through aggressive cross-examination. If counsel has a tenable argument as to why the witness might be lying, by all means, put it to her. Credibility is ultimately a question of fact to be assessed by the jury. Credibility undermined by rape myths however, strays from fact into fiction. Cross-examination based simply on presenting sexual violence complainants as attention-seeking liars is a relic of the past which needs to be stamped out.
We may not like it, but that’s how our legal system is.
It doesn’t have to be! New Zealand has an outstandingly innovative legal profession which is not reaching its full potential. If we look at the Waitangi Tribunal as an example, aggressive cross-examination of Māori claimants conventionally does not occur. This does not mean the case is un-tested, it simply means that there is a justified and necessary expression of respect.
Although a vastly different context, sexual violence complainants are also deserving of respect. This is particularly due to the vulnerability of giving evidence of an intimate and traumatic nature in front of hundreds of strangers, throughout what is often humiliating and aggressive cross-examination. There is some force in the Law Commission’s suggestion that a specific sexual violence court, with legal advocacy adjusted accordingly, is the way to go to protect survivors of sexual violence.
At the close of the Crown case, the jury are left with some very strong impressions of the accused, which may be difficult for the defence to rebut. First, the circumstances after Grace’s death are such that even the steeliest of jurors would be uncomfortable. Watching the CCTV where the accused wheels Grace’s body in the suitcase out of the hotel lobby makes for sickening viewing. The callousness and disrespect inherent in this method of disposal of her body will remain potent in the jury’s collective imagination.
Further, the accused’s radical change of tack in the second police interview is also likely to be an enduring stain on the defence’s case. Although the defence will argue this is explicable as panic in the first interview, followed by an honourable change of heart in the second, proven lying to law enforcement is an obstacle that law-abiding jurors may be unwilling to move past. Finally, the testimony of the Tinder dates indicates to the jury that the accused had expressed an interest in dominating and choking women, which escalated to a near-fatality in his encounter with Witness 3, one month before he met Grace. The defence will attempt, as of next week, to re-frame these preliminary conclusions.
The end of the Crown’s case signals the start of a new trial narrative, one that will be painful for all those who support Grace and Grace’s family. The defence’s only option is to try to prove that Grace consented and actively encouraged the accused to choke her, and that a tragic accident ensued. As Grace cannot defend herself, defence witnesses will likely delve into her sexual past to try and prove Grace had a predilection for rough sex and risky activities. If until now the accused has been on trial, as of next week, it will be Grace’s turn.
On a more positive note, I would like to conclude by commending the Tinder date witnesses, in particular Witness 3, for their bravery. It is heartening to see women having the courage to speak up, not only for themselves, but for other women who may have been harmed by the accused, and, of course, for Grace.
 Law Commission The Justice Response to Victims of Sexual Violence (NZLC R136, 2015) at 26.
 Chief Victims Advisor to Government Strengthening the Criminal Justice System for Victims: Survey Report (Ministry of Justice, Hāpaitia Te Oranga Tangata, August 2019) at 7.
 Chief Victims Advisor to Government Strengthening the Criminal Justice System for Victims: Workshop Playback Report (Ministry of Justice, Hāpaitia Te Oranga Tangata, August 2019) at 4.
 Jennifer Temkin “And Always Keep A-Hold of a Nurse, For Fear of Finding Something Worse: Challenging Rape Myths in the Courtroom” (2010) 13 New Crim L Rev 710 at 714–715.
This is an opinion piece. She’s Right is not a journalistic news publication. She’s Right does not certify the accuracy of any of the statements above, and any statements are made as the opinions of the author only.