A jury has retired to consider its verdict in the retrial of Christchurch man David Benbow, who is accused of murdering Michael McGrath and hiding the body in an elaborate cover-up. Thomas Mead summarises the evidence the jury is now considering.
The fate of a Christchurch man accused of killing his friend and hiding the body in an elaborate cover-up is now in the hands of a jury.
David Benbow, 54, is on trial for a second time over the sudden disappearance of his long-time friend Michael McGrath.
The builder vanished suddenly in May 2017, shortly after he started dating Benbow’s ex-partner.
Police claim Benbow murdered him but have never been able to find a body or a murder weapon.
Instead, prosecutors are using several threads of circumstantial evidence to argue their case, such as the fact a gun went missing from Benbow’s home. They claim the former prison guard intentionally hid the body and tried to cover his tracks.
The allegation has been difficult to prove so far - when a first trial was held earlier this year, the jury couldn’t reach a decision.
A second trial was then confirmed to argue the case again. That has now been running for seven weeks at the High Court in Christchurch.
In her closing address to the jury late last week, defence lawyer Kirsten Grey claimed the Crown case was just a “theory” that couldn’t be proven beyond reasonable doubt.
“It’s a theory that is desperately searching for evidence,” she added. “If you give it any probing, it will simply fall over.”
Without a body or a weapon, the prosecutors can only rely on indirect evidence to prove their case, such as comments Benbow made and his behaviour in police interviews.
In his closing submissions to the jury, Crown prosecutor Barnaby Hawes argued there was a “significant amount of evidence pointing directly to his guilt”.
“Mr Benbow is a careful and deliberate man, but everyone makes mistakes,” he said.
“He's hidden the body well, and utilised an outdoor scene to his advantage, kept things very simple and spoken to nobody about it.”
In a final summing-up this morning, Judge Jonathan Eaton implored the jury to consider the facts carefully.
He warned the jurors not to consider the outcome of the first trial in their verdict, saying the previous result was “utterly irrelevant” as this second trial had “heard evidence the first jury did not hear”.
The Crown case: a calculated cover-up
Key to the Crown argument is the fact that Benbow’s ex-partner had recently struck up a romantic relationship with McGrath.
Benbow and McGrath were old friends and Mr Hawes, the Crown prosecutor, suggested the new relationship had infuriated Benbow, who felt like he had been betrayed by a mate.
The prosecutor argued that just 20 days before McGrath disappeared, Benbow had said he wanted to “annihilate" McGrath.
A fortnight later, the prosecution claimed, Benbow visited McGrath to invite him to his home at Candy’s Road in Halswell.
“[It went] from ‘annihilate’ on the 2nd of May, to wanting to see Mr McGrath and get him to Candy's Road three times in five days, and not just for the purpose of assisting him but also for socialising with him,” Hawes said.
Hawes claimed McGrath went to Benbow’s home on the very day he disappeared, pointing to a sighting by a witness and playing CCTV footage of a car they argue is consistent with McGrath’s vehicle in the general area that morning.
This is disputed by the defence, which called a witness with an alternative version of events and argued the CCTV is not reliable, and McGrath was never there.
Hawes said Benbow had a CCTV system set up at his Candy’s Road property, but it was turned off that day.
“I suggest it's no coincidence they stopped recording the day before David Benbow went to Michael McGrath's house and arranged for him to come over,” he told the jury last week.
Further arguments surround Benbow’s gun. He kept it at his home, but it went missing and has never been found. The prosecution has argued there is no reasonable explanation for its disappearance other than Benbow “disposing of it”.
In his closing, Hawes also pointed to Benbow’s attitude, saying the accused had employed a tactic of “extreme vagueness” in police interviews.
Benbow could not remember anything he did during the “critical time” that McGrath went missing, the prosecutor said.
“He never offered to help in the search for Michael and never offered condolences,” he added.
“This is a man and family he has known for his entire life, and his response to the disappearance of this man is the absolute bare minimum.”
Prosecutors also played the jury footage of Benbow visiting a transfer station the day after the alleged murder, where he dumped several items.
Hawes argued you could clearly see him disposing of clothing, shoes and what he described as a lining material.
“There is nothing that would not fit into a red bin,” the prosecutor said, suggesting it was significant because several items remain missing, including a blue woollen jersey Benbow was seen wearing in CCTV footage on the day.
“The blue jersey that was seen in this footage […] was not located by police in the search at Candy's Road,” Hawes added, suggesting it had been “disposed of”.
The Crown used several other pieces of circumstantial evidence in their case, which was heard over several weeks in court, and built to a central argument, that Benbow was the only person who wished ill of McGrath.
“There is no other reasonable explanation for Mr McGrath’s disappearance, other than foul play,” Hawes told the jury.
“There is really just one person left to focus on, and that is Mr Benbow.”
Defence: ‘Fertile ground for a miscarriage of justice’
However, Benbow’s defence team argues the Crown does not have enough evidence to prosecute Benbow beyond reasonable doubt.
His lawyer Kirsten Grey suggested the case was “fertile ground for a miscarriage of justice”.
She accused police of tunnel vision, claiming investigators had picked Benbow as a target and worked backwards from there to find evidence to convict him in a case of confirmation bias.
Prosecutors deny this, saying there were initially eight suspects – with all but Benbow ruled out.
However, Grey highlighted how thousands of hours of police time had been spent searching for clues, only to come back with “absolutely nothing of forensic evidence”.
In particular, no forensic evidence has ever been found in any of three potential crime scenes: Benbow’s home, Benbow’s car and McGrath’s car.
“[There was] no blood, no DNA, nothing of anything forensic interest despite extremely thorough and diligent searching by experienced team of police and scientists,” Grey said.
She pointed out how police had searched Kate Valley landfill, which held the rubbish at the dump Benbow had visited, for any evidence that may have been disposed of.
The search took more than 8000 police hours - the equivalent of one officer working fulltime for four years - and recovered nothing of significance, she said.
The gun had been purchased to shoot feral cats and, while Benbow couldn’t account for why it was missing, it was reasonably possible it had been lost when he moved to the Candy’s Road property, Grey said.
In any case, there was no forensic evidence to support a murder at the property with or without a firearm, she said.
Grey argued Benbow did not have the means, motive or opportunity for the alleged murder, and suggested he was simply depressed after the break-up with his partner.
“There is evidence he was moving on and dealing with the break-up,” she said.
His lack of memory around that time was because it was not a remarkable day for him, and he was suffering from depression, the jury heard.
Grey also criticised the CCTV footage police were relying on to argue McGrath went to Benbow’s home on the day he disappeared, saying it was “not credible”.
The Crown had argued the car in the footage was consistent with McGrath’s blue Subaru, but Grey suggested it was simply evidence of “a blue Subaru” – with nothing to prove whether it belonged to McGrath or another random member of the public.
“Don’t work backwards,” she implored the jury.
The Crown had not proved, she argued, that McGrath had not died by suicide – meaning a murder may never have been committed by anyone.
She told the jury the Crown’s case fell well short of proof beyond reasonable doubt, calling it “a pile of tattered threads”.
“If you are left with doubts, reasonable doubts, it is your duty in accordance with your oath to acquit,” she said.
The jury has now retired to consider its verdict.
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