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Grace Millane murder - do we believe the accused?

It's a judgement about his behaviour at the time of death. He was up close and personal with her until she died. I don't think anyone has claimed that he left what appeared to be a living, breathing, responsive partner to go into the shower and she died later. At the point he "disengaged", shall we say, she must have been as good as dead.

A partner who was not negligent would have been careful to check that his date was OK after he'd choked her into unconsciousness. He wasn't. She pretty much died in his arms or died under him, and he didn't even notice. He just got up and went into the shower. That pretty much proves negligence as far as I can see. It is not behaviour consistent with someone who wasn't criminally negligent.
 
I have to say I don't get what's so mysterious about the killers motivation. If he has engaged in this sort of 'play' before its entirely possible he has fantasized about just not stopping and Grace Millane had the bad luck to be the partner he finally indulged his fantasy with. No grand premeditation or deep plan, he just had the urge to do it and gave into that urge.
 
Garrison said:
I have to say I don't get what's so mysterious about the killers motivation. If he has engaged in this sort of 'play' before its entirely possible he has fantasized about just not stopping and Grace Millane had the bad luck to be the partner he finally indulged his fantasy with. No grand premeditation or deep plan, he just had the urge to do it and gave into that urge.
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I think that's possible, and that possibility is why the vengeful harpy part of me is happy to see him convicted. But as far as I know there isn't a shred of proof that was in his mind, and I don't think you can convict him on a mere possibility.

I think the evidence of negligence is essentially BRD and that's why I would actually have gone for guilty if I had been on the jury. NZ law doesn't require a mens rea intending actual death, just a knowledge that you're doing something that could result in death, and negligence about whether that actually happens. He's guilty on that count.
 
Rolfe said:
I think that's possible, and that possibility is why the vengeful harpy part of me is happy to see him convicted. But as far as I know there isn't a shred of proof that was in his mind, and I don't think you can convict him on a mere possibility.

I think the evidence of negligence is essentially BRD and that's why I would actually have gone for guilty if I had been on the jury. NZ law doesn't require a mens rea intending actual death, just a knowledge that you're doing something that could result in death, and negligence about whether that actually happens. He's guilty on that count.
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I'm not sure you're interepreting NZ law correctly as to the negligence aspect. The law actually states (as it does in E&W) that for it to be murder, the accused must either a) have had the intent to kill, or b) have had the intent to seriously injure, with negligent disregard for whether it might instead result in death.

So intent is required in both tests. But on test (b) above, imagine three scenarios:

1) Mr A acts with intent to seriously injure Mr B by shooting him in both feet.
2) Mr A acts with intent to seriously injure Mr B by stabing him in both thighs.
3) Mr A acts with intent to seriously injure Mr B by shooting him in the torso.

In (1) above, it's unlikely that the "negligence about the possibility of death" test would ever be passed if, for example, Mr B developed sepsis in both feet following the shooting and died. So it would be very difficult to prove murder.

In (2) above, it's likely that the negligence test would be passed if one or both of Mr B's femoral arteries was severed and he bled to death before an ambulance arrived. So I'd say it would be fairly easy to prove murder.

In (3) above, it's a total certainty that the negligence test would be passed, for reasons which should be obvious. In other words, Mr A could not use as a successful defence "oh I only intended to injure him and teach him a lesson".


So in our case, the court would still have had to find that the man a) must have intended to at least cause Millane serious injury through his actions, and b) even if his intent was only to seriously injure her and not kill her, he must have been negligent in his failure to realise that his actions might - and did - result in her death.
 
Well, possibly. But in that case it's how you regard the choking thing that's the issue. Clearly he was negligent. Clearly it's possible for choking to lead to death. The question is, does choking fit the category of "serious injury"?

If we werre talking about David Gilroy throttling Suzanne Pilley in a fit of jealous rage we would say definitely yes. Does this suddenly not apply when it's Mr Anonymous doing the same thing to Grace Millane during consensual sex? Genuinely interested here.
 
Fixit said:
Bernard Knight.

Go to pages 213-214 under heading Carotid Sinus Pressure:
'This is a common source of death in pressure on the neck, especially in manual strangulation, and can occur INSTANTLY when the neck is gripped.'

10th time lucky:)
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For the 11th time:

If you're seriously trying to rely on a book written in 1933 - i.e. at a time when forensic pathology was in its total infancy - and which makes only a vague and unsubstantiated reference to instantaneous death in this manner...... when NO RELIABLE MEDICAL EVIDENCE HAS YET BEEN FOUND AMONG THE HUGE STRIDES FORWARD IN FORENSIC PATHOLOGY TO EVEN SUGGEST THE REALITY OF INSTANTANEOUS DEATH.....

.... then it really isn't worth trying to deal with your increasingly-desperate attempts to shore up your position.

Look: if Knight was correct in his unsubstantiated 1933 musings, then why - as Disbelief initially pointed out - has not one single MMA fighter died instantaneously from exactly this sort of choke hold to the neck. Can you even begin to imagine how many choke holds have been applied in how many MMA fights over all these years? Why is there not ONE reported case of instantaneous death, Fixit?

If you can answer this, then we may make some headway.


(And can we knock it off with the passive-aggressive smileys? They're getting increasingly tiresome. Thanks.)
 
Rolfe said:
Well, possibly. But in that case it's how you regard the choking thing that's the issue. Clearly he was negligent. Clearly it's possible for choking to lead to death. The question is, does choking fit the category of "serious injury"?

If we werre talking about David Gilroy throttling Suzanne Pilley in a fit of jealous rage we would say definitely yes. Does this suddenly not apply when it's Mr Anonymous doing the same thing to Grace Millane during consensual sex? Genuinely interested here.
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Yesm it absolutely does. And it has everything to do with the fact that Millane would have fallen unconscious long, long before this man released his choke hold and ended up choking her to death.

This is the critical point here. In a game of consensual sex play, the game is conclusively obviously over when the person being choked falls unconscious. That much must be crystal clear to anyone - including this man. And as the trial judge correctly appears to have said in his jury instructions, all concepts of "consent" end when one is unconscious.

So, by definition, Millane CANNOT have been consenting in any way to the continuation of the choking once she fell unconscious. And the man MUST have known a) that she'd fallen unconscious (limp, unresponsive, eyes closed, uncommunicative) and b) that to continue to choke her could only have been with the intent to at the very least seriously injure her.

That's precisely why (IMO, and in the view of the trial jury, obviously) the man's actions in this case passed the test for murder: he either a) must have intended to kill Millane when he continued choking her for such a long time after she fell unconscious, or b) must have intended to seriously injure her through this additional choking after unconsciousness, and was negligent and reckless in his failure to realise that this might have - and did - result in her death.


ETA: but to address your question about additional choking and "serious injury" (as opposed to death): the man might, for example, have tried to claim that he was only intending to cause Millane some level of brain damage, rather than outright killing her. If the law didn't allow for the "negligence" factor, then this might work as a defence to murder (though it would result in the lesser conviction for GBH). Fortunately, the law allows for the concept that even if someone genuinely DID only intend to inflict brain damage rather than death through continued choking of this sort, they should have realised that death was a reasonably likely outcome in any case. This is analogous to example (3) in my previous post.
 
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Yes, I think so. I find it difficult to see how you can say that choking someone to unconsciousness is not inflicting serious injury on them, even if it's consensual. If it was done by an attacker, the exact same thing, you'd have no hesitation in calling it serious injury. So he was doing something that inflicted serious injury, which he knew might possibly be fatal, and he was negligent at the point when he should have been vigilant for signs that all was not well.

I can't see how he gets off.
 
I was just having breakfast with a friend when a criminal defence lawyer he went to school with happened by. Remarkably he raised the subject of this trial and cited the prosecution closing address by Brian Dickie as being very powerful, by a colleague who watched it. The transcripts would be helpful if someone can concoct a compelling reason.
 
Rolfe said:
Yes, I think so. I find it difficult to see how you can say that choking someone to unconsciousness is not inflicting serious injury on them, even if it's consensual. If it was done by an attacker, the exact same thing, you'd have no hesitation in calling it serious injury. So he was doing something that inflicted serious injury, which he knew might possibly be fatal, and he was negligent at the point when he should have been vigilant for signs that all was not well.

I can't see how he gets off.
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Yes. Though I'd refine this more by saying it's the choking BEYOND unconsciousness that is where the intent to seriously injure or kill comes in.

If a person consents to being choked for the purposes of erotic asphyxiation during sex, then it's perfectly understandable (possibly even commonplace) for the person doing the choking to accidentally take things too far and render the subject unconscious. But at that point, the choker would remove his/her grip and allow the person being choked to regain consciousness (which they would do very quickly). So choking someone up to the point where they become unconscious - or even slightly beyond that point - is not indicative of intent to kill or seriously injure if it's within the context of a consensual sex act of this sort.

Where things change dramatically, in terms of intent, are in the several dozens of seconds BEYOND the point at which the person being choked falls unconscious that the choker continues with the choke hold. The choker cannot have failed to notice the person falling limp, unresponsive, etc. Yet the choker continues with the choke grip for all of those additional dozens of seconds. THIS is what can only reasonably be construed as intent to either kill or seriously injure.
 
Samson said:
I was just having breakfast with a friend when a criminal defence lawyer he went to school with happened by. Remarkably he raised the subject of this trial and cited the prosecution closing address by Brian Dickie as being very powerful, by a colleague who watched it. The transcripts would be helpful if someone can concoct a compelling reason.
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Interesting. It's always potentially tricky relying on real-time relaying of court proceedings by news reporters as an accurate verbatim source.
 
LondonJohn said:
Yes. Though I'd refine this more by saying it's the choking BEYOND unconsciousness that is where the intent to seriously injure or kill comes in.

If a person consents to being choked for the purposes of erotic asphyxiation during sex, then it's perfectly understandable (possibly even commonplace) for the person doing the choking to accidentally take things too far and render the subject unconscious. But at that point, the choker would remove his/her grip and allow the person being choked to regain consciousness (which they would do very quickly). So choking someone up to the point where they become unconscious - or even slightly beyond that point - is not indicative of intent to kill or seriously injure if it's within the context of a consensual sex act of this sort.

Where things change dramatically, in terms of intent, are in the several dozens of seconds BEYOND the point at which the person being choked falls unconscious that the choker continues with the choke hold. The choker cannot have failed to notice the person falling limp, unresponsive, etc. Yet the choker continues with the choke grip for all of those additional dozens of seconds. THIS is what can only reasonably be construed as intent to either kill or seriously injure.
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We seem to need three things here.

  • An act which fits the category of "serious injury".
  • A knowledge by the perpetrator that this act is capable of causing death.
  • Negligence as to whether death actually ensues.
I think it is more than arguable that we've got all three, and the timing is merely a quibble. Can choking someone to or past the point of unconsciousness be described as a "serious injury"? I can't see that it isn't in that category, whether you want to wait until she has actually passed out before you believe it meets the criteria or not. (I'd say it meets the criteria anyway. If it's serious injury if you do it without consent, how does it suddenly not become serious injury just because there's consent? Think about other things BSDM participants do to each other by consent and tell me that none of them are in the "serious injury" category. I mean get real.)

Did he know that choking someone to unconsciousness was something that might conceivably kill them? I think everyone past the age of about eight has probably realised that.

Was he negligent? Yes, indubitably, because he didn't even notice that he was interacting with a corpse. He should have been careful to watch for breathing, for some responsiveness, and backed off if these weren't there. And become really alarmed if she remained unresponsive and not breathing. And the more so when he saw blood coming from her nose. That's how a non-negligent person would have responded to that situation. He went into the shower without realising his date was dead, and then decided she'd probably got up and gone home without actually looking to see.

I wonder if this was anything like the closing speech?
 
LondonJohn said:
For the 11th time:

If you're seriously trying to rely on a book written in 1933 - i.e. at a time when forensic pathology was in its total infancy - and which makes only a vague and unsubstantiated reference to instantaneous death in this manner...... when NO RELIABLE MEDICAL EVIDENCE HAS YET BEEN FOUND AMONG THE HUGE STRIDES FORWARD IN FORENSIC PATHOLOGY TO EVEN SUGGEST THE REALITY OF INSTANTANEOUS DEATH.....

.... then it really isn't worth trying to deal with your increasingly-desperate attempts to shore up your position.

Look: if Knight was correct in his unsubstantiated 1933 musings, then why - as Disbelief initially pointed out - has not one single MMA fighter died instantaneously from exactly this sort of choke hold to the neck. Can you even begin to imagine how many choke holds have been applied in how many MMA fights over all these years? Why is there not ONE reported case of instantaneous death, Fixit?

If you can answer this, then we may make some headway.


(And can we knock it off with the passive-aggressive smileys? They're getting increasingly tiresome. Thanks.)
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Dealing with one point at a time Bernard Knights book was published in 1982 and updated in 1998. You are confused with Gonzales 1933 held as a first reference book.
 
Fixit said:
Dealing with one point at a time Bernard Knights book was published in 1982 and updated in 1998. You are confused with Gonzales 1933 held as a first reference book.
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Well firstly, forgive me for confusing the two: your annotation of links is rather haphazard, and this Knight book wasn't even properly referenced (let alone dated) when you did add it as a link at the bottom of a post.

And secondly, Knight's opinion in this area simply isn't borne out by empirical evidence. As far as I'm aware, there is not one single academic paper from the past few decades which suggests - far less confirms - the phenomenon of instantaneous death from carotid sinus stimulation. If you do find an appropriate academic paper (that's to say a scientific study which has been properly reported, peer-reviewed and published in a recognised academic journal), then I'll be entirely happy to review my position on this. But as of now, I don't think any such paper exists. And until and unless this sort of study shows up, I think it's reasonable to hold the view that there's no such thing as instantaneous death from carotid artery stimulation.

But to take the "next thing at a time", you (and Knight) would need to pay serious heed to what has cropped up as an extremely strong body of evidence over recent decades: the outcome of choke holds in mixed martial arts contests. In contrast with most earlier wrestling, the choke holds applied in MMA are serious holds which cause immediate and extremely strong compression of one or both carotid arteries, and which will also stimulate the carotis sinus(es). If you or Knight were correct (especially Knight, with his pretty extreme though somewhat ambiguous claims), then one would expect a significant number of MMA fighters (in properly-organised and properly-regulated contests) to have suffered instantaneous death from the application of these choke holds. Yet...... (you know the rest).

So?
 
I have to agree that that trumps my experience with the two horses in which something strange happened due to what I think was unilateral carotid sinus stimulation. Whatever it was they didn't suffer any lasting effects, and I have no idea what would have happened if I had somehow managed to stimulate both sides.
 
Rolfe said:
I have to agree that that trumps my experience with the two horses in which something strange happened due to what I think was unilateral carotid sinus stimulation. Whatever it was they didn't suffer any lasting effects, and I have no idea what would have happened if I had somehow managed to stimulate both sides.
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There's no doubt whatsoever that carotid sinus stimulation, even on just one of the carotid sinuses, can cause instantaneous syncope (collapsing, fainting) in humans - and horses. And it's not at all uncommon. But that's to do with a (temporary) loss of consciousness. Not instantaneous death.


(I don't think it would make much difference at all to the outcome if both carotis sinuses are stimulated rather than just the one. It may be that it makes it more likely that the human (or horse) might collapse/faint. I certainly don't think it makes it any more likely that the human (or horse) will actually die.)
 
LondonJohn said:
Well firstly, forgive me for confusing the two: your annotation of links is rather haphazard, and this Knight book wasn't even properly referenced (let alone dated) when you did add it as a link at the bottom of a post.

And secondly, Knight's opinion in this area simply isn't borne out by empirical evidence. As far as I'm aware, there is not one single academic paper from the past few decades which suggests - far less confirms - the phenomenon of instantaneous death from carotid sinus stimulation. If you do find an appropriate academic paper (that's to say a scientific study which has been properly reported, peer-reviewed and published in a recognised academic journal), then I'll be entirely happy to review my position on this. But as of now, I don't think any such paper exists. And until and unless this sort of study shows up, I think it's reasonable to hold the view that there's no such thing as instantaneous death from carotid artery stimulation.

But to take the "next thing at a time", you (and Knight) would need to pay serious heed to what has cropped up as an extremely strong body of evidence over recent decades: the outcome of choke holds in mixed martial arts contests. In contrast with most earlier wrestling, the choke holds applied in MMA are serious holds which cause immediate and extremely strong compression of one or both carotid arteries, and which will also stimulate the carotis sinus(es). If you or Knight were correct (especially Knight, with his pretty extreme though somewhat ambiguous claims), then one would expect a significant number of MMA fighters (in properly-organised and properly-regulated contests) to have suffered instantaneous death from the application of these choke holds. Yet...... (you know the rest).

So?
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What are your qualifications to question Knight, let alone suggest I need to provide peer reviewed papers? Knight's work is referenced and reprinted, is your work the same?

You've got no difficulty in holding yourself to 2 standards without apparently realising it. Knight and Gonzalez provide reference material from autopsy experience which is in fact empirical evidence, where yours? Gonzales gave guidance on how the throat or neck should be removed at autopsy and you claim that is not empirical? In support I put some links in noting that they were peer not reviewed papers which you immediately criticised. That's despite not even checking who Bernard Knight is/was and his probably unequaled experience in British forensics. Check outside your window and you'll find London is actually part of Britain.

So after being unable to disclaim sudden death in the manner both Gonzales and Knight identify you suddenly to jump to mma? Where the athletes are both trained and have the opportunity to 'tap out.' Putting it politely they do that in order that serious injury does not befall them. That link is indeed not empirical peer reviewed evidence but does give useful comparisons, that is all.

You seem unable to even have appreciated that 'sudden death' is at the other end of your spectrum of 10 minutes choking and is being used as an example of the 2 extremes facing a properly informed Jury. Something they would needed to have considered along with bruising to only one side of the neck that you claim to have the answer for but have never presented. Something which also would need to take into account that the pressure whatever it was and how it was applied, may have happened many times, even when breathing may have been in shallow recovery mode.

At the outset, and I can't say I knew otherwise, this thread opened with among things the claim 'he strangled her.' Lion King said the same a couple of days ago and you say it every day. Where is your proof that Grace was strangled? To Rolfe's credit she acknowledges that her opinion is driven by what happened after Grace died. Whereas your opinion which you kept saying was provisional is now claimed as some kind of victory to the point you know more than the forensic pathologists and those whose work no doubt they referenced, Knight and Gonzales.

I feel you need a smile.:)
 
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