Grace Millane murder trial: 'It was an accidental death' - defence

Warning: The Grace Millane murder trial is hearing evidence of a graphic and sexual nature. Reader discretion is advised. The trial is taking place in open court and media are required to accurately report the evidence as it is presented.

The man accused of Grace Millane's murder spent 5-10 minutes strangling her and then took "trophy" photos of her body, the Crown has told the jury during its closing argument.

The accused then created a "labyrinth of storytelling and lies" and calmly disposed of her body and other evidence, the court heard today.

The Crown has now completed its closing argument and this afternoon the defence will address the jury.

Crown prosecutors allege that on December 1 last year - the eve of Millane's 22nd birthday - the accused strangled her to death in his CityLife hotel apartment in downtown Auckland.

The 27-year-old alleged killer, however, claims the British tourist died as a result of sexual misadventure.

The Herald brings you the latest updates from the courtroom today.

The Crown completed its closing argument just after 1pm before the defence took its turn to reply.

They finished just before 5pm.

Tomorrow, Justice Simon Moore will provide his summary of the case and directions to the jury.

'It was an accidental death' - defence

5.30pm

Defence lawyer Ian Brookie said the jury was not able to resolve the issue about Millane's time of death.

There just was no evidence, he said.

"What is the evidence of time of death, when is the time of death?"

All the Crown could point towards, Brookie said, were "two random Google searches".

"Where's the searching about how to create a fictional defence of asphyxiation during sex?"

Brookie provided a theory for the first time in the trial that the searches on the accused's phone for "Waitakere Ranges" and "hottest fire" at about 1.30am may have been part of "drunken conversations" between his client and Millane.

"Now a search at 7.05am in the morning for rigor mortis, that's different," he said.

The explicit photos of Millane were a "very sensitive and emotional subject" for the jurors, but Brookie said there was no evidence to suggest she was dead when they were taken.

"Where's the expert evidence from the Crown asking 'are these photographs of a deceased person?'."

The accused's room at the CityLife apartment complex.

Finally, Brookie said, there was the suggestion of a motive - which the Crown introduced for the first time today.

The motive, Brookie said the Crown now claimed, was to take explicit photos of dead people.

"That is just implausible," he said. "The suggestion that someone would go to all that effort ... Frankly ridiculous."

Brookie told the jury they may come to the question of manslaughter for the accused, which Justice Moore will direct them on tomorrow.

But, he continued, if any of the jurors were unsure about the Crown's case then they must find the accused not guilty of murder.

"You know, I'm just not sure about this. I have doubts that I just can't dismiss," he said some of the jurors may think.

If a not guilty verdict for murder was returned, Brookie said, then the jury shouldn't feel as if they haven't delivered justice.

"You haven't failed to deliver on the expectations of those who have, long ago, made up their misinformed views about this case."

4.35pm

Brookie said the accused's prearranged Tinder date on December 2 at a bar in Ponsonby, hours after Millane had died, was "quite interesting".

"Everything's fine, you carry on," Brookie said of a man trying to cover up a sudden death.

The accused was described by his date as being "calm, intense and aloof".

"It's crazy how guys can make one wrong move and go to jail for the rest of their life ... he got done for manslaughter," the accused told her, speaking of a "friend" who was convicted in a case of fatal erotic asphyxiation.

Brookie said: "How can you be aloof, intense and calm at the same time? Manslaughter, jail for the rest of his life... Interesting, he's talking about manslaughter not murder."

The lawyer said this was the first admission about what happened in that CityLife hotel room.

"Is anyone going to believe this? The window for reporting this accidental death is closing fast."

Brookie told the jury a critical mistake from the accused was "throwing away Miss Millane's phone" - which may have had intimate photos on it, further corroborating his story that the pair took nude images of each other.

4.20pm

Brookie said at whatever time the accused found Millane had died it proved to be a "pivot point" which broke a chain of logic.

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

But in a high-stress situation such as an accidental death, Brookie said "people get it wrong".

"He did that because he feared he wouldn't be believed.

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

The accused, Brookie said, feared he was destined for prison.

The Crown's case showed a "bias" towards the accused's actions after Millane died, Brookie said.

"That's why they've spent so much time going through this," he said. "Trying to use it as a crowbar to get their case over to the otherside."

Having made the decision to try and cover up Millane's death, Brookie asked why the accused would be seen on CCTV breaking down in tears?

"He's got to keep it together," Brookie said. "He's made that decision to try and cover it up, so he's got to appear normal."

3.55pm

Brookie said there was no evidence from the accused's apartment which was inconsistent with what his client told police.

There was no evidence of any disturbance or fight, the defence lawyer told the jury.

Police conducted luminol testing in the accused's apartment.

"At first blush it may have looked like there was quite a lot of blood," Brookie said of the luminol tests which showed lit up large circles on the hotel room floor.

But this was consistent with cleaning up "a small amount of blood", he said, which the accused admitted to.

The accused claims he woke on the morning of December 2 to find Millane lying on the floor - between the fridge and the bed - with blood coming from her nose.

Brookie said Dianne Crenfeldt, an expert forensic scientist from the Institute of Environmental Science and Research, couldn't be certain how much blood there was.

"At best she could say it's more than a few drops," Brookie said.

3.25pm

This was also "not one of those cases where lies told by the defendant are completely blown out of the water" by the medical evidence, he said.

He told the jury the experts couldn't give a firm time frame for how long it takes for manual strangulation to lead to death.

"No one can tell you how long this takes," Brookie said.

The Crown's expert pathologist, Dr Simon Stables, also failed to see any significant injuries when he performed his autopsy on Millane, he added.

It was only after Stables was provided with the accused's narrative of rough sex that he revised his conclusion to pressure on the neck being the cause of death.

But it was alcohol, Brookie continued, which is "really what made the difference here" and led to an unexpected, unforeseen accident for an otherwise healthy young woman.

"This is not at all the same as a domestic violence case where you have a partner attacking another partner and the victim fighting back," Brookie said.

While in the dark and in the heat of the moment, Millane may have passed out, Brookie said.

"She may have, for a brief period of time, gone unconscious and he may not have noticed," he added.

But he warned the jury and said: "A person who is being strangled against their will, will fight.

"They will fight in any way they can, including in their neck, in their muscles. The basic human drive is to fight."

Brookie said there was no sign of any resistance or any defensive injuries that would normally appear in strangulation cases.

3.00pm

Brookie turned to the evidence of Millane's interest in BDSM (Bondage Discipline Sadism and Masochism).

"There's a body of evidence that makes that abundantly clear," he said. "More young people are dabbling in these sorts of activities. They're getting into breath play, as it's called."

But, Brookie continued, while Millane may have had a long-standing interest in BDSM she may not have been experienced.

And neither was the accused, he said.

"I'm new to this," the accused told police, Brookie reminded the jury.

This lack of experience from the pair carried with it an additional risk, Brookie said.

"He's really just a young man who's prepared to do what his sexual partners want him to do in the bedroom."

2.50pm

Brookie talked of what the CCTV footage of Millane and the accused on the night of December 1 showed.

There were signs of affection, he said, including Millane touching the small of the accused's back at the Mexican Cafe near SkyCity.

Cameras also showed them laughing, leaning towards each other, embracing and kissing.

Then as the pair walk towards the accused's apartment at the CityLife hotel they can be seen walking down the street holding hands.

Brookie told the jury they "saw an evolving relationship".

"They were getting on like a house on fire," he said. "You can see that they're into each other and that it's mutual."

Brookie said further evidence of this came from Millane when she sent a message to her best friend about her date saying: "I click with him so well."

So far, the lawyer said, "his story checks out completely".

2.35pm

Brookie then turned his attention to the accused's police interview from December 8 last year.

"He didn't have to talk," Brookie said. "He did, he chose to, not only did he choose to, he assisted the police in finding [Millane's body]. He told them in a fairly disorganised download of information ... It just all came tumbling out."

Brookie said the police "didn't drill down into the details".

But at the core of what the accused told police was why he put his hands around Millane's neck.

"Whether it was part of consensual sex, which of course it was, the core of that is verified by the evidence," Brookie said.

The accused had also told police Millane raised the topic of BDSM and rough sex, which she had practised with a former sexual partner.

"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, it confirms the core of what he said in that police interview."

2.20pm

Ian Brookie, the accused's chief defence lawyer, has begun his closing address.

He told the jury this was an important case.

"You, no doubt as all of us will, want to get this right," he said.

He said anger, emotion, morals, prejudice and sympathy had no place in them reaching their verdict.

"Some of those may be in play - they will distract you from your task.

"It was an accidental death that took place during sexual activity, that if done incorrectly or while intoxicated can go wrong," Brookie said of Millane's death.

Defence lawyers Ian Brookie, left, and Ron Mansfield.

When confronted with Millane's lifeless body, Brookie said his client "freaked out".

"He reacted badly," he said. "He acted selfishly."

But, when thinking logically, Brookie asked if the accused's actions in the minutes, hours and days following Millane's death helped them with the critical issue.

"What he wanted to do, what he was trying to do, when Miss Millane asked him to put his hands around her neck to give her sexual pleasure," he said.

The accused, the defence lawyer continued, did not cope when faced with the crisis of Millane's death and took steps to try and avoid what "looked so bad".

"The stakes were high here," Brookie said. "Once committed to that course he had to follow it through, he had to make it look like everything was fine."

But, he added, the actions lacked planning and showed little sophistication.

These were not the movements of a "cold, manipulating, calculated killer", Brookie said.

'You can't consent to murder'

1.05pm

Auckland Crown Solicitor Brian Dickey turned his attention to the defence's BDSM sex evidence.

He said there appeared to be tens of millions of people worldwide who practised BDSM.

But, he told the jury, very rarely would someone die as a result.

"There's not mounting bodies in the streets because someone has touched their neck during a bit of rough sex," Dickey said.

While Millane "had a modest interest" BDSM, Dickey said "so what?"

"She didn't ask to be killed.

"You can't ask to be killed in this country, you can't consent to murder."

Dickey said it was "not safe sex play that killed Grace Millane, it's strangulation".

"You can't consent to your own murder ... She would have had to consent to someone holding her neck for five to 10 minutes until she passes out ... That's just silly."

The prosecutor said the defence was claiming "this was an accident, he should walk free".

"It's kind of Grace's fault as much as anyone's fault, but he didn't do anything wrong," Dickey claimed of the defence case.

12.50pm

Dickey continued his closing address by recalling some of the medical evidence about how long it takes for pressure on someone's neck to become fatal.

"That person will fall unconscious and you have to maintain pressure, sustain pressure, to the neck before they will die," he said.

"She must've gone limp some time before death ... That's a long time."

Dickey said the accused used his frame to restrain Millane and prevent her from escaping.

"He's got two knees, two arms, he's much bigger than her," he said.

"She can do what she wants, but she's a small woman.

"She's pinned with sustained pressure to her neck for quite a long time."

12.20pm

Dickey said the accused had "this interest in complete domination".

"It's a sexual interest, it's power and it's control," he said, adding it risks women's lives.

Dickey told the jury the accused had shown a propensity for this, highlighting the evidence of one of the accused's Tinder dates in November last year who said she was suffocated during sex.

"[She] fought for her life and survived, Grace Millane did not. Both were restrained," Dickey said.

11.20am

Dickey said the accused "started to get a bit worried" about the time he had to hide Millane's body.

He searched "time in London" on December 2.

"This is her birthday, when is it her birthday over there?" Dickey speculated the accused was thinking.

When the accused buys a red shovel from a hardware store he also "buys a bunch of bolts".

"What for? Of no consequence," Dickey said.

The accused was, Dickey told the jury, diverting the interest of the salesman.

"He's covering his tracks, he's very much in control.

"He dug a hole, put her in it, covered it up ... He went and bought a second suitcase."

The accused then went about dumping the evidence, which included an early morning trip to Mission Bay.

Dickey said this could have been to discard Millane's cellphone, which police have never recovered.

On December 8 the accused "told the police he'd done these things".

"Said he'd come clean," Dickey said. "No he didn't."

Dickey told the jury the accused didn't tell police about the porn searches, the photos, or about his subsequent Tinder date.

"He didn't even tell police that he had caused Grace Millane's death," the prosecutor said.

"He talks around it, he talks a bit of what happened. But he never connects what he did to her death.

"If he told the truth he would be admitting to murder."

Dickey said the accused "lies, he lies, and lies, and lies".

"He's pretty good at it," Dickey adds.

Almost all of the accused's first interview with police on December 6 was "complete fiction", Dickey said.

"Elaborate, elaborate lies," he said. "He invented a whole group of Chinese tourists."

He also claimed he had a boozy night at a Queen St pub which didn't sell Corona or Heineken, Dickey said.

"This is elaborate stuff."

The accused during a police interview with Detective Ewen Settle.

During a police interview when Detective Ewen Settle says Millane may have died from foul play the accused "obviously thinks 'hmmm, better put on a good show about this'," Dickey said.

"He's trying to get away with it altogether.

"He killed the British tourist and that's murder in his own mind."

Dickey said the accused created a "labyrinth of storytelling and lies".

"The interview of the 8th, the one you're told to believe.

"Can you? Do you? This thing is full of lies as well."

10.55am

Dickey told the jury the response of a normal person after an accident is to call 111.

"You know, this is a young woman a long way from home, your response must be to dial emergency services?

"That's the response of the human being in those circumstances."

What the accused did, however, suggests he had a different view of Millane, Dickey said.

"Does it suggest he's killed her and he's okay with that?"

The first thing the accused did, Dickey said, was to Google 'Waitakere Ranges' at 1.29am on December 2.

"He's trying to figure out a way of disposing of her body, that's his first response. Second response is then to look up 'hottest fire' - again to figure out how to dispose her body.

"So that the world will never learn that he has killed this young woman."

Crown prosecutor Brian Dickey.

About 10 minutes later the accused began viewing porn before taking several photos of Millane between 1.46am and 1.49am.

"If those photographs weren't taken after she died ... Then he planned to kill her," Dickey said.

"Either he planned to kill her and looked for a disposal site or she was dead. There's really no way out of the photographs for the defence."

Dickey said the photos were "powerful, powerful evidence" as to the previous intent of the accused.

After viewing some more pornography, the accused's phone goes silent from 2.24am to 6am.

Then, Dickey explains, the accused searches for car hire and "large bags near me".

At 7.05am he searches for rigor mortis.

"He told us he panicked," Dickey said.

"Where to this point is the evidence of panic?"

The accused was "cool, calm and controlled", Dickey said.

"Cool as a cucumber."

At 7.17am the accused searches for the nearest Warehouse, and at 7.51am he messages a Tinder match to check that their date is still on for later in the day.

10.45am

Dickey has attacked the defence's narrative.

"This is not sex play, this is not restricted breath games," he said.

"This is holding a person's neck or throat for an extended period of time, feeling their struggle, as she must have struggled for her life, and you carry on.

"You do not have to plan murder, you do not have to intend murder."

The accused put Millane's body in a suitcase, which he later buried in the Waitakere Ranges.

The prosecutor told the jury that after Millane was dead the accused began taking photographs of her naked body.

"We know he has a sexual interest in feet, he took that as well," he said, pointing towards the photos recovered from the accused's phone.

"He took those two of her ... He took that one of her ... And he took those," he continued, flipping through the evidence booklet.

"And she was dead."

Dickey said the accused has "eroticised the death of British backpacker Grace Millane, which occurred under his hand hold and on her birthday".

"He has a morbid sexual interest in a dead woman's [private parts].

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

Dickey said: "Lots of times we don't know why people do criminal acts ... Lots of times people don't tell the truth."

10.25am

Auckland Crown Solicitor Brian Dickey has begun his closing address and says he does not have to prove the accused intended to kill Millane.

"That is wrong," he said. "That is one method, but it is not the only method."

Dickey told the jury that may be the conclusion they come to, but they also could convict him of murder if they found he displayed a reckless intent.

"That he knew what he was doing was causing harm and might cause death," Dickey explained.

"That he was aware of that risk and that he took it."

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

"At some point in that period the victim would pass through to unconsciousness and you would have to carry on. And you would have to carry on to cause death ... suffocating her, strangling her, for a total of what would be approximately five to 10 minutes."

He said the accused must have felt Millane's "limp and lifeless" body but decided to carry on.

"If that's not reckless murder in this country ladies and gentleman, then someone will have to explain to me what is," Dickey said.

"On that alone you will have to convict him of murder."

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