Grace Millane murder trial: 5 key questions the jury had to answer

Warning: Contains graphic and sexual content.

The fate of the man who murdered Grace Millane was in the hands of 12 ordinary Aucklanders.

After hearing from nearly 39 witnesses over nearly three weeks this month they were left with two different narratives of what happened to the British Backpacker on the eve of her 22nd birthday.

Prosecutors said the accused killer strangled her to death in his downtown Auckland apartment and then took "trophy" photos of her body.

The defence claims the 27-year-old "freaked out" after an accidental death during sex, lied to police and "tried to cover it up".

Today, the jury heard Justice Simon Moore's final remarks and directions.

The jurors then retired to consider their verdict.

Below the Herald names the five key issues which were raised during the trial by both the Crown and defence which the jury grappled with during their deliberation.

What happened in the apartment?

The biggest question which is disputed between the Crown and defence is what happened in the accused's CityLife hotel room on the night of December 1 last year.

Only two people would ever know the answer.

"Grace can't tell us," prosecutor Robin McCoubrey told the jury.

The other has sat in a large dock next to two security guards in courtroom 11 during the past couple of weeks in the High Court at Auckland.

Prosecutor Robin McCoubrey, pictured during the Crown's opening address. Photo / Michael Craig

An enormous amount of CCTV footage was obtained by police - some six terabytes - which showed Millane and the accused on that fateful night after they had matched on the dating app Tinder.

They can be seen kissing and enjoying themselves at three bars and eateries in downtown Auckland.

"But of course it's what happened inside the room that counts," McCoubrey told the trial.

Auckland's Crown Solicitor Brian Dickey and his team have relied on an analysis of the accused's black and green cellphone and forensic evidence uncovered in the apartment.

The smart phone revealed some Google searches.

At 1.29am the accused searched for "Waitākere Ranges", then at 1.31am a search for "hottest fire" was made, the web history revealed.

Several pornography sites were then accessed and several photos were taken of a naked woman, which according to Dickey was the lifeless body of Millane.

"It's plain that Ms Millane is dead at this point," McCoubrey said.

"He is trying to find a place to hide her body … he is trying to find a means of disposing of her body.

"There can be no reason for making those searches if Ms Millane was alive, unless there was a plan to kill her."

The accused's black and green cellphone. Photo / Supplied

Dickey said the accused "eroticised the death of British backpacker Grace Millane" because of his "morbid sexual interest".

"And he has memorialised it for himself ... The ultimate triumph for the defendant over Grace Millane. His trophy photographs."

The accused's chief defence lawyer Ian Brookie, however, told the jury there was no evidence the explicit photos of Millane were taken after she had died.

His client had also told police he and Millane were taking photos of each other during sex, while the internet searches may have been "two random Google searches".

A period of internet inactivity then followed during the early hours of December 2 until after 6am when further searches were made.

They included "car hire Auckland", "large sports bags" and "rigor mortis".

Later searches in the day included "time in London", "flesh-eating birds" and "are there vultures in New Zealand".

The forensic evidence from inside the room, included luminol tests which showed two circles of blood on the apartment floor carpet near the bed.

There was also blood on the small white fridge from a "cast-off event" and on a bottle found in the room.

The blood which was sampled matched Millane's DNA profile.

Police conducted luminol tests in the accused's apartment and found an apparent attempt to clean-up blood. Photo / Supplied

Dianne Crenfeldt, an expert forensic scientist from the Institute of Environmental Science and Research, told the court the blood on the floor had "circular smearing within it".

She said there was "strong support" for the proposition that a clean-up of blood had occurred in the apartment, which included circular marks, small drips of blood, footprints and smears.

"Somebody with blood on their feet moved around the room."

She was, however, unable to say how much blood there originally was.

The accused admits he encountered a small amount of blood on the floor and went about trying to clean it up after he found Millane's body with blood coming her nose on the morning of December 2.

In a second police interview on December 8, the accused confessed to Millane dying in his apartment and his attempts to hide her body in the Waitākere Ranges.

His is the only account of what may have happened inside the apartment.

"We were kissing, we were talking," he told Detective Ewen Settle. "She asked me to turn the TV off. I had the TV on the music channel."

Then, the accused said, Millane began talking about Fifty Shades of Grey.

"We started having sex, at first it was just normal. It was very placid."

Millane then introduced the topic of bondage and began biting the accused, he told the detective.

"She asked me to bite her, so I did," he said. "I stopped at first and said 'is this something you really want to do?' "

The accused claimed Millane said: "We're in the moment, let's just go with it."

The alleged killer said the pair talked for a while before having sex again - this time Millane showed him how to restrain and choke her.

This type of erotic asphyxiation was "new to me", he said.

"We started having more, I guess, violent sex ... And then we kept going, she told me to hold her arms tighter ... And then she told me to hold her throat and go harder."

The accused said he then went to the bathroom - where he passed out in the shower.

Upon waking up, he crawled back into the bed in a "pitch black room".

"I thought Grace had left," he said.

The next morning, however, he woke to find Millane dead.

"I screamed, I yelled out at her. I tried to move her to see if she was awake."

The accused, however, did not tell Settle about the internet searches or photos he took.

When prompted by his lawyer Ian Brookie, however, he did provide an explanation to why he was now confessing to police.

"Because I want her family to know that it wasn't intentional," the accused said.

"But I also want her family to have closure and the other night when I was questioned by police I was still shocked and I apologise for misleading. So yeah, it's basically so her family understand that it wasn't an intentional thing."

Millane's parents have been sitting in the public gallery for the entirety of the trial.

Consent and intent? 'You can't consent to your own murder'

The defence provided evidence which they said showed Millane had an interest in choking during sex.

She had asked the accused to put his hands around her neck, they told the court.

A statement from a former sexual partner of Millane was read to the court.

He said Millane enjoyed choking during sex and the couple had also practised BDSM (Bondage Discipline Sadism and Masochism), blindfolding and role play.

But, the statement continued, the two trusted each other and used a safe word.

A female friend of Millane also had her statement read to the court.

The confidant said part of "girl talk" included the two discussing their sexual preferences.

Millane "enjoyed her partner putting his hands around her neck", BDSM and rough sex, she said.

The court also heard evidence that Millane held accounts on Whiplr and FetLife, online BDSM and sexual fetish communities.

She last accessed her Whiplr account on December 1 - the day she met the accused - from her backpackers in Auckland.

A man who spent the night of November 30 with Millane also told the court of their sexual encounter.

He met Millane at the Base Backpackers where she was staying in Auckland.

He recalled being attracted to the "outgoing" Millane who talked of future travels to Fiji.

During sex between the pair, he said had a hand "potentially on her neck" but "can't remember 100 per cent".

This all went to the core of the accused's explanation, Brookie told the jury, she had raised the topic of erotic asphyxiation.

"The only way he could've known that, because we know it's true from the evidence, is if she'd done exactly what he said," Brookie told the jury.

"The defence says to you that is a critical piece of evidence," he said.

Ian Brookie and Ron Mansfield have led the charge for the defence. Photo / Michael Craig

It was, Brookie said, an accidental death that took place during sexual activity.

But Dickey said: "This is not sex play, this is not restricted breath games."

The accused, he alleged, gripped Millane's throat for five to 10 minutes, strangling the life out of her.

He must have felt Millane's "limp and lifeless" body but decided to carry on, he told the jury.

"You can't consent to your own murder."

The accused's supposed propensity to 'dominate women'?

Three women gave evidence during the trial about the accused's supposed predilection for erotic asphyxiation and sexual domination.

Dickey said the accused "gambled with the safety of women".

One woman recalled being on a Tinder date with him on November 2 last year and visiting the accused's apartment.

She told the young man: "We're not having sex."

However, the accused soon removed his pants and she began giving him oral sex, she told the court.

But, as the witness explained, she would soon be fearing for her life.

"He just sat down on my face," she said through tears. "I couldn't breathe."

The accused was also holding her down, the court heard.

"I couldn't move my arms, I couldn't breathe, so I started kicking - trying to indicate I couldn't breathe," she said.

"I couldn't breathe … I was terrified. He just sat there, he didn't move at all."

The then-university student said she finally managed to turn her head slightly and get a sliver of air.

She feigned unconsciousness, the court heard.

"'Cause then maybe he'd realise something was wrong," she said. "There were so many thoughts running through my mind ... This can't be the way I die ... I started thinking about my family and my friends. They can't read about this."

Finally the accused sat up, she said.

"I was gasping, I couldn't breathe properly and he just said to me, 'Oh what's wrong?'

"Almost accusing and quite cold he said, 'Oh you don't think I did that on purpose do you?'"

After the incident, the witness said she never wanted to see the man again.

But her text message history led to a lengthy line of questioning under cross-examination by one of the accused's lawyers Ron Mansfield.

He read some of the more than 700 messages between the woman and the alleged killer - some of which the well-known lawyer said appeared to show an interest in continuing a relationship.

The messages between the pair continued for several days because, the witness said, she "didn't want to make him angry".

"I was completely scared and fearful," she said.

"A person who can almost kill someone and suffocate them ... And then claim he has cancer to gain some sympathy ... he's a sociopath."

Brian Dickey and Robin McCoubrey have prosecuted the 27-year-old accused. Photo / Michael Craig

An Auckland waitress, who also matched with the accused on Tinder, told the court of her date with him just a week before he met Millane.

"We asked each other what we prefer during sex," she said.

"I said, 'I prefer rough sex and choking'. He did say he likes rough sex as well."

On the night of November 22 they went to the CityLife hotel.

The accused "did choke me a bit because that's a preference of mine", she said, recalling he had one hand around her throat.

"It was fine, it was consensual," she said. "It wasn't too hard that I was gasping for air, it wasn't so soft that I wouldn't be able to feel it ... it was just the right amount of pressure."

The bloody footprints in the accused's apartment. Photo / Supplied

The woman saw the accused again when he was on his date with Millane on December 1.

Another Auckland woman said she Tinder matched with the accused in February 2018.

While they never met, she said the accused did talk of an enjoyment of erotic strangulation, while his other sexual predilections included feet and domination.

"He would talk about enjoying it and why he liked it ... Because it made him feel more superior and in control."

The woman said the accused wanted to go on a date during the weekend of December 1 but she "didn't feel comfortable meeting him with some of the things he wanted me to do."

She last heard from the man on about December 4 last year - just days before Millane's body was found crammed into a suitcase and dumped in a shallow grave.

What was happening when fatal pressure was applied to Millane's neck?

The Crown's expert forensic pathologist Dr Simon Stables said Millane died from "pressure on the neck" - an area of her body which displayed bruising.

But he only came to this conclusion after he was informed of the accused's narrative of erotic asphyxiation.

For someone to die from pressure to the neck, he said, the brain needed to be starved of oxygen for at least four to five minutes.

This injury would normally be a result of pressure over a "sufficient period of time and with sufficient force".

"It's not going to happen through a gentle touch of the neck," he explained.

Stables said he also noticed a bruise on Millane's front left shoulder, near the collarbone, and three small red bruises on the inside of her right upper arm, just above the elbow.

Millane's bruising was "probably around the time of death" and the pattern was consistent with "some sort of restraint", he said.

Dating the bruises, however, was notoriously difficult.

The accused accepts Millane died from pressure to her neck, but has always claimed it occurred in a moment of sexual misadventure rather than any intended harm.

While Stables said it was impossible to tell, he agreed with Brookie when asked if Millane's bruises might have occurred during rough sex.

The pathologist also talked of a lack of literature and reported cases for erotic manual strangulation leading to death.

"If it happens, this is incredibly rare," he said.

The defence called forensic pathologist Dr Fintan Garavan, who gave evidence via video link from Miami.

Garavan also said the "major participant" in Millane's death was pressure on her neck.

He, however, disagreed with Stables' position that alcohol would not have been a factor.

Millane's alcohol consumption may have led to a biological "safety valve" not kicking in, Garavan said.

The expert in the effect of drugs and alcohol on the body added it could "very well have been a secondary factor in the cause of death".

CCTV shows the backpacker had several drinks on the night she died, including shots of tequila and cocktails.

The doctor said the narrative of rough sex from the accused was also "an adequate" explanation as to how Millane may have died, given the bruising found around her neck.

Why did the accused lie to police?

In its closing argument the Crown told the jury the accused's first interview with police contained "complete fiction" and he had created a "labyrinth of storytelling and lies".

The accused, originally from Wellington and having lived in Australia for several years, was first spoken to by Detective Ewen Settle on December 6 as a person of interest.

"We met outside [SkyCity] on the front doors, I gave her a hug, she gave me a hug," the accused told Settle.

"We decided that we were going up to Andy's Burger Bar."

The accused, however, said he wasn't sure Millane was going to be a "real" person and feared she may have been a catfish - a type of fake social media identity.

"If I meet at SkyCity ... If it is someone that it's not, I could just walk away," he said.
"On Tinder it's all about the way you look.

"If she wasn't who she said she was at least then in my mind I would be safe."

CCTV footage shows the accused doing a U-turn as he walks towards Millane at SkyCity.

However, he turns back around when it becomes apparent Millane has seen her internet date.

Settle asked the accused a more pointed question: "How did the evening pan out?"

"Umm yeah, pretty good," the accused replied. "We drank a few cocktails and we were having good conversations."

But the accused's story began to contradict CCTV footage of him and Millane.

He said after leaving SkyCity they went their separate ways at about 10pm and he bumped into a group of Chinese travellers.

Video footage, however, shows he and Millane went to two more establishments, the Mexican Cafe and Bluestone Room, before the CityLife hotel.

The alleged killer said that on the night of December 1 he got blind drunk at a Queen St pub and may have been aided to his bed by hotel staff.

He said he woke at about 9am or 10am on December 2 in his apartment and went to an Irish pub in downtown Auckland.

He said he ate a scotch fillet - specifically it was medium rare with mushrooms, chips and salad.

In the afternoon, he said, he met a friend later in Ponsonby – the "friend" would later be revealed to be another Tinder date.

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These would all later prove to be lies as the accused was confronted with CCTV footage of his movements showing his efforts to hide Millane's body in a suitcase and dump evidence.

"Is that you?" Settle said, pointing at the accused in one of the images.

"Yes," the alleged killer said.

"That picture is in your hotel ... That's on Sunday morning at eight o'clock," Settle said.

"I'm sure that was 10 o'clock, I'm still sure of it," the accused replied.

A long pause then followed before the accused said: "Is there something you want to ask?"

"That's you walking in with a suitcase at 8.14am," Settle said.

The accused quipped: "I've still got that suitcase too."

"Where is it?" Settle said.

"In my room."

"What's in it?"

"Nothing."

"What was in it?"

"Nothing."

"Where did it come from?"

The accused finally admitted he bought the suitcase from The Warehouse in downtown Auckland.

His lies quickly unravelling, the accused said: "I might have got the times wrong."

"If you're assuming that I've used that suitcase for something, then I've still got it and you can have it," he added.

Settle said: "You haven't told the truth about being completely drunk on Saturday night ... This is quite important."

The accused replied: "I'm being truthfully honest with you."

Brookie and his team, however, say their client first lied to police out of fear.

Fear, they said, that his story of a rough sexual encounter gone wrong would not be believed.

It was the same reason, the accused later claims in his second police interview, he didn't call 111.

"I dialled 111 ... But I didn't hit the button because I was scared at how bad it looked," he said.

"There's a dead person in my room, I thought it looked terrible."

Grace Millane's body was dumped in a shallow grave in the Waitākere Ranges in Auckland's west. Photo / Supplied

When confronted with Millane's lifeless body, Brookie said the accused "freaked out".

"He reacted badly," the lawyer told the court. "He acted selfishly. Once committed to that course he had to follow it through, he had to make it look like everything was fine.

"He lied and tried to cover it up, there's no dispute about that."

But Brookie asked: "I suppose it comes down to this. Is it really the case, really, seriously ... that everyone is going to call the police?"

The accused eventually confessed to police on December 8 when he told police, in a "disorganised download of information", about what happened to Millane, Brookie said.

"He chose to, not only did he choose to, he assisted the police in finding [Millane's body]."

Grace Millane was a young British woman on her OE. Photo / Supplied