David Benbow sits in the dock during his trial in the High Court at Christchurch. Photo / Iain McGregor
No body to examine, no murder weapon, no DNA, and no confessions.
Crown prosecutor Barnaby Hawes acknowledged those were the circumstances the jury had to return a decision on, when he gave his closing address at the High Court at Christchurch in October.
Despite that, David Benbow was found guilty of murdering his childhood friend Michael McGrath seven years ago, in the suburb of Halswell in 2017.
McGrath’s brother, Simon, said the family was “elated” with the verdict, but one thing was missing. Michael’s body.
“This is the right verdict,” he said, but he wanted to ask Benbow where his brother was.
“The best thing he can do now is tell us where Michael is, although I don’t think he will do that.
“Michael has been taken away from us in the most cowardly, premeditated, and murderous manner. The horrific nature, trauma, and legacy of this despicable act will haunt the family for the rest of our lives.”
Preliminary research by justice officials found there had been only about five cases with a murder conviction without a body in New Zealand. Benbow brought that number to six.
One of the cases, the murder of Leah Stephens and Dean Fuller-Sandys, hit the headlines again last year as two people found guilty of the killings hoped to appeal their decades-old convictions.
Meanwhile, police seem to be increasingly comfortable considering homicide charges without a victim’s body.
Last year’s high-profile missing person case of Yanfei Bao – which turned into a homicide case – is evidence of this.
So how do police decide when a missing person search turns into a homicide investigation?
A police spokesperson said considering whether a missing person could have been killed was part of the process.
“In any missing person investigation – which is often not a homicide at the time of reporting – it is important to consider whether the missing person may have been a victim of crime.
“Any investigation from the outset is focused on establishing the truth and will look to preserve and manage evidence in a way that supports the reconstruction of events.”
Former homicide detective inspector Lance Burdett said the “classic homicide” case was when someone was found dead, and police worked backward from there.
“[No-body homicide cases] they’re not very common; usually, the body is found first.
“When there is no body ... that person has to be reported missing for a start, and often there’s a delay in that happening and the longer the delay, the harder the investigation is going to become.
“With no body, there’s no way of telling how the person was killed, or what happened to them.”
Burdett said police would run through a series of checks after a person was reported missing to ascertain their final movements, and whether they were still alive.
“We’ll look at things like bank accounts, phone use, you know, when they last used their phone ... there’s a whole list of them, these simple background checks.”
Police would try to find out who was the last person to see that person alive, and bank account statements and texts could point to whether someone had a gambling habit, for example.
“There is a missing persons database, and from the indicators, a pattern is built up, and if it’s something that’s quite unusual, then it will go to an investigation team.”
Going through a methodical process “always throws up little intricacies” and by talking with people who knew the missing person, police could gain an understanding of their usual behaviour and what might be out of character.
“Along the way, you may find some little indicators – ‘well this is completely outside of their behaviour, they haven’t been seen, they’ve got a pet at home who hasn’t been cared for’ – these little things, they can start to build up.
“It’s like putting a jigsaw puzzle together.”
It was often not as simple as asking people if they knew anyone who would want to hurt the missing person, like cops do in TV shows, Burdett said.
“You get there by natural progression, and it will be a question, ultimately, once you think something suspicious has happened.
“In fact, in all the investigations I’ve been on, I’ve never heard that question actually specifically asked.”
A good sign in an investigation was when police found something that was “completely and utterly out of character” for the missing person.
Burdett said it was important for police not to release all information in such a case to avoid disruptions to the investigation.
“I remember one investigation, we had somebody come in and confess and we’d already had the offender in custody.
“So you’ve just got to keep some things to yourself and that’s why it’s very difficult when you want to advertise and say, ‘has anyone seen this person,’ but you don’t want to give out too much about it.”
Cases where police couldn’t find a body, or the defendant wouldn’t tell anyone where the body was, were often homicides committed by organised crime groups, Burdett said.
“If there’s links to gangs, they’ll keep it very closed, even within the police. Because any organised crime type activity is kept very quiet and it’s within a very small group.”
Burdett said that over his career, there had been great advances in DNA sequencing processes and scene examinations, and that had strengthened investigations. But it still wasn’t easy to convict someone on circumstantial evidence alone.
“If you want to charge somebody [without a dead body], you’ve got to seek approval from the Crown solicitor for that to happen, and that’s quite a high bar.
“So they will look at it all ... but it would have to be very strong circumstantial evidence.”
Former Auckland Crown solicitor Brian Dickey has prosecuted some of New Zealand’s most high-profile cases, including the killings of tourist Grace Millane, and constable Matthew Hunt, but only encountered one prosecution without the victim’s body.
“It’s the only case I can think of where we didn’t have proper pathology,” Dickey said, speaking about the death of Cissy Chen over a decade ago.
Chen had been missing since November 2012, but parts of her remains weren’t found until March 2014, when a ribcage and skull washed up in the drain from a nearby stream at a North Shore park.
A pathologist was unable to determine how she died.
“Cause of death is fundamental to proving homicide and whether it’s murder or manslaughter because if you’ve got pathology, you know how someone died and that will often speak to if it was a killing or murder.”
Dickey was the prosecutor in the case, but Chen’s partner, Yun Qing ‘Jack’ Liu, was acquitted of her murder, despite a plausible motive and testimony from a close friend.
“Without the body, we couldn’t prove how she had been killed,” Dickey noted, adding he thought that could have impacted the result in this case.
A victim’s body was also the source of much forensic evidence that could identify an offender, Dickey said.
But police could still build a murder or homicide case based on eyewitness accounts or CCTV footage.
“It’s still reasonably rare not to have a confirmed body, but it’s not impossible to run a case without a body. You just have to prove death otherwise – by circumstantial evidence or evidence of someone who actually [had motive], for example.”
Without the return of remains, families and friends would often struggle to come to terms with their loved one’s death, robbed of a final goodbye.
Detective Inspector Kylie Schaare acknowledged the pain McGrath’s family had been through after the guilty verdict was handed down in the Christchurch case.
“We knew that no outcome today could make up for the grief and loss they have endured, as nothing brings Michael back.
“My one hope is that they can now move forward in starting to process their grief and the loss of their son, brother, partner, and friend.
“My one enduring wish is that we could have returned Michael to his family.”
Over the past few years, several Australian states introduced ‘no body, no parole’ laws, which meant offenders who didn’t disclose the location of their victim’s body were denied parole.
New South Wales implemented a ‘no body, no parole’ law in 2022 after a Sydney man was convicted of murdering his 33-year-old wife, who disappeared more than 40 years ago.
The law was aimed at providing closure to friends and families of homicide victims, allowing them to bury their loved ones.
But critics say the law could be disastrous for people in prisons who had been wrongfully convicted.
Both Labour and National said prior to the election that they would consider a ‘no body, no parole’ law if elected.
A law like that could possibly impact the outcome of recent high-profile homicide cases.
Yanfei Bao was last seen alive on July 19, when she arrived at a house for sale on Trevor St, Hornby, set to show a potential buyer through it.
A week later, her disappearance was upgraded from a missing person case to a homicide investigation and on August 15, Tingjun Cao was charged with kidnapping and murder.
He pleaded not guilty as police continue to search for Bao.
Jaime Lyth is an Auckland-based reporter who covers crime. She joined the Herald in 2021 and has previously reported for The Northern Advocate.
Oranga Tamariki is part of a broken system, say experts.