Grace Millane trial: Jury retires to consider verdict

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 jury deciding the Grace Millane murder case has retired to consider its verdict.

The Herald brings you the latest updates from the courtroom today

The jury retires - verdict under deliberation

Justice Simon Moore said there was no prescribed way for the jury to go about deliberations.

He said there was "no rush" for the jury to reach a verdict.

"When you've reached a verdict, you should let the court crier know," he said.

He then explained that the foreperson would be responsible for delivering the verdict in court.

They had to deliver a guilty or not guilty verdict on the murder charge.

If that was not guilty - they would then be asked whether they found him guilty or not guilty of manslaughter.

The jury were sent out to begin their deliberations at 12.44pm.

If they do not reach a verdict by 5pm they will be sent home for the weekend.

They will not be sequestered for the weekend and will return to court on Monday morning.

Jury returns with question for judge

Accident or murder - up to the jury

12.33pm

Justice Moore said the Crown portrayed the accused as a "dominating sexual man who toyed with the safety of women".

But the defence say he made a mistake - further exacerbated by his lies to police - and is not a cold killer.

Justice Moore has also addressed the jury on consent.

He said if the jury found the accused guilty of murder - consent was not an issue.

If they found him not guilty of murder they then had to look at consent in relation to whether the accused was guilty of manslaughter.

He likened consent to playing rugby - a contact sport where a person could be injured but carried on anyway while knowing the risks.

That was implied consent, he said.

But a person playing rugby did not consent to a further scenario like "a person on the opposition pulling out a knife and stabbing you".

"Consent can be revoked at any time … by words and actions," he said.

"And if someone goes beyond what they consented to - they no longer consent."

He said alcohol was an issue in the realm of consent relating to Millane's death.

"A person does not consent if they were so drunk that they cannot and do not consent," he said.

"Finally ... and significantly, no person can give consent if they are unconscious, for any reason, whatsoever."

He said that meant while Millane was unconscious she was no longer giving consent to anything she had allowed or agreed for the accused to do.

Justice Moore said if the jury believed Millane consented to the accused applying force to her neck - they must acquit the accused on both murder and manslaughter.

"It is a defence if [the accused] honestly believed Miss Millane consented to him putting pressure on her neck … It does not matter if it was mistaken or unreasonable," he explained.

If they believe she did not consent - they must find him guilty of manslaughter.

12.10pm

During Justice Moore's summary, the accused has remained calm in the dock.

Flanked between two court security officers he is sitting listening intently to the judge's summation.

The public gallery is packed and alongside Millane's parents, a relative of the accused and a number of police who worked on the investigation are present.

Justice Moore has touched on the accused's conduct after Millane had died in his apartment.

Crown Solicitor Brian Dickey said his actions were "extremely instructive in terms of what he'd just done before and his intent".

He called on the jury to put themselves in the shoes of the accused.

"What would you do?" Dickey had posed.

"What does he do? Does he ring 111?"

Justice Moore said instead of that, the Crown said the accused calmly went about watching porn, working out how and where to dump Millane and organised another Tinder date.

"How plausible is that if you thought you'd really badly hurt someone by accident you'd call emergency services," said Justice Moore.

"Instead, Mr Dickey says, this is telling evidence that he'd killed her and he was okay with that."

"Was it some awful accident or was it in fact the very opposite?"

"The essence of Mr Dickey's decision is that … this was not a man in panic, this was a man who was cool, calm and in control.

"He knew what he was doing he knew what he had to do … it speaks to someone who has killed with murderous intent."

Justice Moore then touched on the defence closing address.

They posed that their client made a poor decision after discovering Millane dead on his apartment floor.

He got to a "pivot point" when he made the choice not to call 111 and to bury her in the Waitākere Ranges.

Once he committed to that course of action, he got to "a point of no return" and could not turn back.

"Once committed and locked in, he had to keep to together … he had to appear normal to others," Justice Moore recounted.

"But the further and further he went along that path the harder and harder it became for him to return."

The defence said it was more useful for the jury to look at the accused's actions and persona before Millane's death.

"What possible motive would the accused have to end the life of a woman whose company he was so evidently enjoying," Justice Moore summed up.

"When seen in this way, the prospect of a sexual accident is supported, says Mr Brookie."

11.55am

After a 15-minute break, Justice Moore is continuing his summary.

He is more than halfway through.

He said he will go over the final addresses from the Crown and Defence for the jury soon.

While it was impossible for him to revisit the closing submissions of the opposing parties - which took up all of yesterday - he would touch on the salient points.

If he did not revisit a point it did not mean it was not relevant.

But first Justice Moore visited the pathology of strangulation - how long force needs to be applied to a person's neck before they die.

The accused says Millane died as a result of accidental strangulation during sexual "breath play" or rough sex.

However, the Crown say he deliberately strangled her.

One expert told the court the pressure needed to kill a person by strangulation would need to be applied for 5-10 minutes and be "consistent, sustained pressure".

But if the pressure was released and the person could "revive", the "clock started again".

The Crown submit that the accused must have known what he was doing and posed that Millane would have been unconscious and "limp" for some time before she actually died.

Crown Solicitor Brian Dickey said Millane's last moments would have been terrible.

He said the act would not have been "consensual, loving breath play" - rather forceful, constant, sustained pressure that would have caused Millane fear, pain and ultimately cost her her life.

The defence rejected the Crown position.

They said Millane's death was entirely consistent with a consensual act whereby the accused applied pressure at the request of Millane.

Alcohol would have exacerbated the situation, according to experts.

But the defence say the circumstances of Millane's death are unclear and not one of the experts could say when she would have lapsed into unconsciousness.

Further, there was no damage to Millane's internal neck structures or any signs she tried to fight off the accused.

11.28am

Alcohol - the part it played

Justice Moore said Millane and the accused started drinking soon after they met at SkyCity.

They drank constantly for about four hours - mixing cocktails, beer, tequila and sangria.

He said both the Crown and defence made much of the level of alcohol consumed.

No one could be certain who drank what and whether each drink was finished during the fatal date.

What was confirmed was the purchase of a significant amount of booze - and the fact the couple did not buy any food that night.

He said the CCTV footage captured of the pair could help the jury assess the level of intoxication.

"So how does alcohol fit in here?

"We all know that alcohol can have a disinhibiting effect and people do things when they are drunk that they would not do when they are sober.

"But drunken intent is still an intent.

"Intoxication is not in itself a defence."

Justice Moore told the jury that CCTV footage captured of the pair could help assess the level of intoxication.

Justice Moore said intoxication could speak to the actions of the accused.

"Alcohol can cloud judgment," he said.

"You will determine as a jury the ability [of the accused] to understand the consequence of his actions."

11.20am

Part three - the law and the facts

Justice Moore explained there were two parts to the question trail - murder and manslaughter.

If they found him guilty of murder, they were to go no further.

"Only if you do not, do you go on to consider manslaughter, the culpable homicide," he explained.

Only then would the issue of consent come in.

"Consent is not a defence to murder," said the judge.

"The first question is are you sure [the accused] caused Miss Millane's death by applying pressure to her neck - that question has two possible answers, yes or no.

"Assuming you answer that question yes, you go to step two or three if necessary.

"That is where the concept of murderous intent comes in."

Justice Simon Moore is summing up to the jury today. Photo / Michael Craig

He said the concept of motive was important - and jurors must not confuse it with intention.

"Motive is the reason or emotion that may have prompted a particular act … the Crown doesn't have to prove motive.

"Intention is what result the person intended to bring about - not why they intended to do it."

Justice Moore then spent time explaining the intricacies of murderous intent as described by the Crimes Act.

He said the intentional killing of another person, by law, was murder.

Justice Moore said murderous intent was when a defendant means to cause bodily injury that is known to be likely to cause death, and is reckless whether death ensues or not.

He said the jury had to be 100 per cent sure that the accused had murderous intent when he put his hands on Millane's neck.

"Are you sure that when he applied pressure to Miss Millane's neck … did he intend to cause injury?" he posed.

"If you answer is yes, then you would find [the accused] guilty of murder."

He said if the jury did not believe he intended to cause harm to Millane, he was not guilty of the charge of murder.

Again, they had to be sure beyond reasonable doubt.

"Are you sure when he applied pressure to Miss Millane's neck [he] ran the risk of Miss Millane dying … he nevertheless continued.

"If yes, then [the accused] is guilty of murder.

"In other words [he] must have appreciated Miss Millane's death was a likely consequence … but was willing to run that risk."

Justice Moore said the jury had to establish whether the killing was deliberate and intentional - or the result of an act that was known to be dangerous to a person and carried out regardless.

11.08am

Justice Simon Moore has instructed the jury on the expert witnesses called - six for the Crown and two for the defence.

"Witnesses are not generally permitted to express opinions, but those witnesses who have got specialist qualifications, experience, are permitted to give opinions," he said.

"That evidence is put before you to help you … but remember this is not a trial by experts, nor is it a case of whoever calls the most experts wins.

"You can take the expert evidence into account as part of the overall evidence you need to consider.

"It's up to you whether that evidence was helpful to you in the extent that you accept or reject it."

Justice Moore reminded the jury of the expert witnesses.

The first was from ESR, who spoke about luminol testing at the accused's apartment, blood spots found in the room and about Millane's body being found.

Another spoke about the DNA of the blood spots, confirming "extremely strong scientific support" that they were from Millane.

The third was an ESR toxicologist who analysed samples from Millane for drugs and alcohol.

Grace Millane died after meeting the accused for a date via Tinder.

She confirmed Millane had alcohol in her system but could not confirm the exact level as once a person died decomposition could either increase or decrease the presence of alcohol.

A pathologist also gave evidence about Millane's autopsy.

Another expert spoke about injuries the accused had on his body following the disposal of Millane's body.

A fifth spoke about the anatomy of the human neck and strangulation.

The defence called witnesses who spoke about choking and BDSM and sexual practices.

11.00am

Justice Moore said the Crown said women who gave evidence about their sexual encounters with the accused proved that he undertook violent sexual activity without consent.

That spoke to his murderous intent, they said.

But the defence challenged the evidence of those women.

They said one embellished her experience because she was embarrassed at pursuing a relationship with the accused.

"You need to consider that evidence … you need to remember what you took of her evidence at the time," said Justice Moore.

"And there's no one in this courtroom better equipped than you."

"It's very much a matter for you to decide … whether you accept [the woman's] evidence.

"She was in the witness box a long time … if you do not accept her account, it will be irrelevant and you should put it to one side.

"If you do accept her evidence … you may find it supports the argument that [the sexual activity] led to Miss Millane's death."

Justice Moore said the Crown believed that evidence to be a "powerful strand" of evidence - but the defence utterly refuted it.

It was up to the jury to make a decision on whether the evidence helped the Crown prove the charge of murder.

'Whatever you do - do not speculate'

10.50am

Justice Moore also discussed circumstantial evidence.

He said the Crown had to prove that at the time the accused applied pressure to Millane's neck he had "a murderous intent".

The Crown had to prove that via reasoning by inference - a conclusion drawn by established facts.

"An inference is not a guess, instead it is a logical conclusion deduced by facts,' said Justice Moore.

"You must not go beyond the evidence you find truthful or reliable."

He said if there was any doubt regarding circumstantial evidence the jury should give the accused the "benefit of the doubt".

"Whatever you do, do not speculate."

He said the evidence would have a number of strands and all had to line up for the evidence to point to guilt.

"However, if none of the strands either collectively or individually … then the relevant element is not proved."

Justice Moore said one inference was that Millane was dead before the accused took intimate photos of her and searched on Google for the "Waitākere Ranges" and "hottest fire".

"There is no direct evidence … but what the Crown says is that when you examine the other evidence, she must have been," he said.

"The Crown says if she was alive … the accused was planning her death."

The defence rejected the Crown position saying Millane and the accused took mutual intimate photographs of each other.

Defence lawyer Ian Brookie said there was "no expert evidence" Millane was dead when the photos were taken and searches were made.

He said the Google searches could be indicative of searches Millane and the accused undertook to plan an outing for her birthday the day after she met.

Brookie said the search for "hottest fire" could mean "anything".

"That evidence is the example of a sort of strand … it is a question for you as to whether it is strong enough on its own … to support the Crown.

"That is a matter for you, having regard to all of the evidence, because these things cannot be viewed in isolation."

10.40am

Justice Moore said it was vital for the jury to remember that the accused not giving evidence should not be taken as a sign of guilt or innocence.

The onus was not on him to prove his case.

He had a right to silence, but also a right to call evidence.

"That is a right which our law jealously protects," said Justice Moore.

He spoke to the jury about the accused making four statements to the police.

"The law does not require any person to make any statement to police," said Justice Moore.

"[The accused's] account and the explanation he gave is to be treated as evidence just like all the other evidence … what weight you place on what he told police is a matter for you and what you take from his statements is also a matter for you.

"You can accept all of it, some of it or none of it.

"You can view it as favourable, or you can view it as unfavourable."

Justice Moore said it was "plain" that aspects of what the accused told police was lies.

"That's accepted," he told the jury.

He said the initial part of what the accused told the police about his date with Millane was truthful.

They met at SkyCity, visited bars and then parted ways for the night.

Justice Moore said all of his statements about when he last Millane were "untruthful".

"He lied to the interviewing officers," he said.

"He admitted that.

"The defendant's case it that the interview he gave on the 8th of December contains the truthful version which you should accept."

In that interview the accused admitted Millane died in his apartment and he disposed of her body.

Justice Moore said defendants might lie for reasons other than being guilty.

"They may panic," he said.

He said the accused apologised to police for his fibs, saying he was "in shock".

It was for the jury to decide whether that was true or whether, as the Crown submitted the lies pointed directly to his guilt.

"Please keep all of this in perspective," said Justice Moore.

"The fact the accused lied is simply one piece of evidence … be careful before placing weight on it … it is just one piece of evidence available to you."

Part two - the evidence

10.30

Justice Simon Moore has reminded the jury of the plethora of evidence they have heard during the past three weeks.

He said all evidence - whether read or in an agreed statement of fact or given in person - must be taken into account equally.

Exhibits - photos, screen shots, CCTV footage - all formed parts of the evidence available to the jury in their deliberations.

He said all evidence should be treated the same regardless of the method in which it was given.

He said the closing addresses were not part of the evidence.

They were submissions supporting the cases and parties the Crown and defence represented but were persuasive addresses rather than hard evidence.

Justice Moore revisited the process of witnesses giving evidence and being cross-examined.

"You need to consider the evidence overall," he said, reminding jurors that they had access to a full written transcript of the trial.

"I ask you not to be a slave to the transcript," he said.

He touched on credibility and reliability of witnesses.

"It's important to distinguish between credibility and reliability - credibility is all about truthfulness, whether you believe a witness.

"Reliability is about accuracy.

"Even the most honest witness can make mistakes… but a witness who sets out to give false evidence is in an entirely different position.

"It is for you, and you alone, to decide who you believe and who you do not.

"You may if you choose, accept everything a witness has said, or you may reject … it's important that before you rely on it you are sure that it was honestly given and you can rely on it."

Part one - general matters

10.20am

Justice Moore has re-explained his role in the process - to oversee the trial and direct the jury on matters of the law which they must accept and apply.

"Decisions on the facts are entirely up to you," he said.

"If I appear to indicate a view of the evidence which doesn't accord of your own view, then you must act on your own view and not mine.

"Decisions on the credibility, reliability of witnesses, that's for you, not me."

He said the media had "saturated" the public with coverage of the case and reminded the jury of the "firm" direction he had made to them on day one about ignoring all of that.

"It's critically important that you make your findings on this case solely on the evidence you heard in this courtroom and nowhere else," said Justice Moore.

"Let me just remind you of the reasons for that. Media reports are often inaccurate, incomplete and, not infrequently, simply wrong.

"And it would be totally unfair of you to judge this case based on things you have seen beyond the walls of this courtroom."

The judge said the accused and the Crown deserved to have their cases decided based on the evidence - not on anything else.

"You can see why it would both be fundamentally wrong and fundamentally unfair to take into account anything other than what you have seen, read or heard in this court.

"You must reach your verdict without prejudice against, or sympathy for, anyone connected to this case."

Justice Moore said it was entirely natural for the jury to have feelings of sympathy to the Millane family and Grace.

But he said feelings of that sort "cannot intrude into the solemn task" of reaching a verdict.

He said regardless of their feelings about the accused and his social or sexual practices, they had to remain unbiased.

"What you must not do is say to yourself that because you don't like or do not approve of the accused's lifestyle, he must be guilty.

"That would be completely illogical … You must use the evidence for legitimate purposes."

He reminded each juror they were a judge and had taken an oath or affirmation when sworn into the role.

"No judge can ever allow feelings of sympathy to influence their decision," he reminded them.

"The accused is entitled to the presumption of innocence and the onus is on the Crown to prove beyond reasonable doubt.

"The onus of proving the charges lies on the Crown.

"You must treat [the accused] as innocent until you are satisfied the Crown has proved his guilt on the charge.

"The Crown must prove the defendant's guilt beyond a reasonable doubt."

Justice Moore said it was "not enough" to believe the accused was "probably" or "very likely" guilty.

"You must be sure," he said.

"If you're not sure, it's your duty to acquit."

10.10am

Justice Simon Moore has started to sum up the case for the jury.

Millane's parents David and Gillian are back in court for what could be the final day of the trial for the man charged with murdering their daughter.

Justice Moore started by addressing the packed public gallery.

He told them the jury must not be disturbed while listening to his address and said they were required to remain seated until the morning adjournment.

"I wish to pay each of you a compliment on behalf of all of us involved in this trial," he told the jurors.

"You have been happy to sit extended hours, you have always been on time, it's been plainly evident through that you have listened carefully and courteously to the evidence … to the addresses of counsel.

"All I ask you now is to listen carefully and courteously to me."

Justice Moore said his primary task was to direct the jury on the law and he would divide that into four parts.

Part one would relate to matters about criminal trials.

Part two would be about evidential matters.

Part three would deal with the legal and factual elements of the Millane case.

And in the final remarks, he would give the jury directions about how to approach and deliver their verdict.

The jury will be given a questionnaire, a fact-based question trail, to help them in their decision-making.

Each question on the document must be answered with a yes or no, which will lead them to a verdict.

Murder or accidental death?

The man accused of Grace Millane's murder strangled her and then took "trophy" photos of her body, prosecutors allege.

But the defence claims the 27-year-old "freaked out" after an accidental death during sex.

Yesterday, the High Court jury heard the closing arguments of Auckland's Crown solicitor Brian Dickey and the accused's chief legal counsel Ian Brookie.

Today marks the end of the third week of the trial, in which Dickey and his team alleged the accused strangled Millane to death in his CityLife hotel apartment in downtown Auckland on December 1 last year — the eve of her 22nd birthday.

During his closing address, Dickey said it was a misconception that the Crown 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 they could convict the accused of murder if they found he displayed a reckless intent.

The prosecutor said this happened when the accused 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, Dickey said.

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

The accused's chief defence counsel Ian Brookie. Photo / Michael Craig

After Millane was dead, Dickey said, the accused took several photographs of her naked body, recovered from his phone.

Dickey said the accused has "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."

Dickey also attacked the defence's narrative of BDSM (bondage, discipline, sadism and masochism) gone wrong.

"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."

Instead of calling for an ambulance, the accused Googled "Waitākere Ranges" at 1.29am on December 2, Dickey said.

"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."

In CCTV footage after Millane's death, Dickey said, the accused appeared to be "cool, calm and controlled".

Dickey said "he's trying to get away with it altogether" as he creates a "labyrinth of storytelling and lies".

Millane didn't ask to be killed, he concluded.

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

But Ian Brookie, the accused's chief Defence lawyer, said Millane's was an "accidental death that took place during sexual activity".

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

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

The accused's Tinder date on December 2, hours after Millane had died, was evidence of an "everything's fine, you carry on" attitude.

Mobile2

But it also showed a man who was panicking, Brookie said.

"It's crazy how guys can make one wrong move and go to jail for the rest of their life," the accused told his date at a Ponsonby bar.

He was recalling a "friend" who was convicted of manslaughter for an erotic asphyxiation death.

Brookie said this was the first admission about what happened in the hotel room.

The accused's next confession was to police on December 8 when he told police, in a "disorganised download of information", about what happened to Millane.

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

At the core of his explanation, Brookie said, was why the accused put his hands around Millane's neck.

Grace Millane with the accused on the night of December 1 last year. Photo / Supplied

She had raised the topic of erotic asphyxiation and had practised it with a former sexual partner, the accused claimed.

"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."

CCTV footage of Millane and the accused on the night of December 1 also showed signs of affection, Brookie said.

"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."

The medical evidence was inconclusive, Brookie said, adding the pathology experts couldn't give a firm time frame for how long it takes for manual strangulation to lead to death.

The accused's apartment also showed no evidence of any disturbance or fight, he told the jury.

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

But this was consistent with a clean-up smear.

The accused admitted cleaning up blood after waking 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.

Dianne Crenfeldt, an expert forensic scientist, couldn't be certain how much blood there was originally was.

Brookie said there was also no evidence to resolve the issue about Millane's 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 [death by] asphyxiation during sex?"

He also told the jury there was no evidence the explicit photos of Millane on the accused's phone were taken when she was dead.

The Crown's suggestion of a motive to take explicit photos of dead people was "just implausible" and "frankly ridiculous", he said.

Grace Millane was buried in a shallow grave in the Waitakere Ranger. Photo / Supplied

He urged the jurors that if they had any doubts that they just couldn't dismiss then they must find the accused not guilty of murder.

Justice Simon Moore will provide his summary of the case and directions to the jury this morning before they begin deliberating.