Judge says murder charge should never have been brought

Justice Fogarty told the High Court at Christchurch today that he believed the murder trial of two people charged with killing Phillip John Mullaly and dumping his body in the Waimakariri River should not have gone ahead.

He first made the comment soon after the Crown's opening statement at the trial in June, after the murder jury had been sent out of the court. He did not believe the Crown could succeed in getting murder convictions on the facts of the case, and said so.

The jury confirmed his view, returning manslaughter verdicts against Lisa Helen Riley, 23, and Aaron Dale Grimwood, 36, who was Mr Mullaly's half brother.

Riley and Grimwood signalled they were willing to plead guilty to manslaughter charges three days before the trial was due to begin, but the Crown rejected the offer.

Crown prosecutor Andrew McRae said there were matters, including the pathology, that needed to be tested in court with cross-examination.

At the sentencing of Riley and Grimwood today, Justice Fogarty said the Crown had not succeeded in proving any conspiracy by the pair to kill Mr Mullaly, with whom they lived at a house in Uxbridge Street, Northcote, and who was often drunk and violent.

If the incident had stopped at Uxbridge St, where Mr Mullaly was beaten and strangled into a coma that led to his death, the matter could have been treated as a domestic manslaughter. But binding his hands, putting him into the boot of a car, and driving him to the Waimakariri where his body was put into the river had added another dimension to it, he said.

For Grimwood, defence counsel Jeff McCall said the decision to take the body to the river had been a "knee-jerk" reaction after the fight when Grimwood believed his brother was dead.

But Justice Fogarty said his view was that Grimwood believed Mr Mullaly was dead but could not be sure.

For Riley, Tony Garrett said he agreed there had been a degree of coldness and callousness in her behaviour, but she was not a person who showed emotion in the way that Grimwood did. She should not be penalised for the manner in which she gave evidence at the trial, without breaking down.

"That doesn't mean she didn't have empathy with the deceased," he said.

Justice Fogarty said the verdict meant the jury had accepted that Grimwood acted in self-defence at the house when he disarmed Mr Mullaly who was threatening people, including a child, with a knife and broom handle. But it decided that he went too far in the fight that followed.

He saw Riley as being more culpable because she had suggested that he be put into the river, and her actions in carrying it out were callous and calculating.

He accepted her statement to the police when she said she believed he was still alive after the assault, before the trip to the river.

Defence counsel had argued that she had made that statement while under the influence of alcohol.

Pathologists who gave evidence were unable to pinpoint whether death had occurred at the house, or at the river.

Justice Fogarty gave both prisoners discounts for their willingness to plead guilty to manslaughter and jailed Grimwood for six years, and Riley for seven.

- NZPA