Warning: This story and related coverage of the trial contains graphic and sexual details that may be distressing to some readers
The defence has closed its case for the man accused of murdering Grace Millane, asking the jury to deliver a not guilty verdict.
The accused man's lead defence lawyer, Ian Brookie, in the Grace Millane trial. Photo: RNZ / Dan Cook
The 27-year-old's lawyer Ian Brookie has closed the defence's case in his trial in the High Court at Auckland.
The man admits he buried the British backpacker in the Waitākere Ranges after she died in his CityLife apartment.
But he denies strangling her to death; maintaining Ms Millane accidentally died after he choked her with her permission and encouragement during sex.
This afternoon, Mr Brookie asked the jury to approach its task in a conscientious and logical way in his closing address this afternoon.
"Anger, emotion, morals, prejudice and sympathy in this case, as in all criminal trials, may be in play.
"They will distract you from your task of logically and critically going through this evidence calmly in determining whether the Crown has proved its case to you to that very high standard of beyond a reasonable doubt."
Mr Brookie reaffirmed that it was the defence's case no murder took place and Ms Millane's death was accidental after rough sex between two inexperienced people went wrong.
"Yes, when confronted with the crisis of this unexpected, unforeseen, and unintended death the defendant freaked out. He reacted badly. He acted selfishly."
Mr Brookie said the explicit photographs of Ms Millane, which the Crown says were taken when she was dead, were a "dangerous distraction" for the jury as it could appeal to emotion over logic.
"The defence submits to you that this evidence on the phone is not something you can place much weight on at all. Even if it were true, which is not accepted, it's just more of what he did afterwards."
The jury has heard the photographs were time stamped after the man Google searched 'Waitākere Ranges' and 'hottest fire'.
The Crown has said the searches were the genesis of the man's plan to dispose of Ms Millane's body and showed she wasn't alive at the time the images were taken.
But Mr Brookie said they could mean "anything" and could have easily been about where his client and the British backpacker planned to visit the next day.
"Remember the defendant said in his police interview that they took photographs of each other during sexual activity?
"If that is right, the internet searches and photos would have taken place in a totally different situation to what the Crown is telling you."
He said it was also possible the searches were a random coincidence that had arisen during conversation with Ms Millane.
"Some of you may well know the phenomenom of the random Google search, particularly common in drunken converstaions between people.
"Something comes out and the phone comes out, Google, and when you go back through your search history you may well scroll down and think what on earth was I searching that for."
Mr Brookie told the jury it may find the defendant's actions reprehensible but they were of little assistance in determining what was going through his mind when he put his hands on her neck.
"You might think from having looked at all the evidence that his actions are consistent with someone who did not cope when they were confronted with this crisis and took steps to try and avoid having to explain what looked so bad. The stakes were high here."
'Getting on like a house on fire'
The court heard the defendant didn't have to speak to police but did, twice, and went further to actually show them where he buried Ms Millane.
The court has heard the man told Ms Millane he was a manager at an oil company but Mr Brookie said this was just a white lie.
"He's insecure, single, he's trying to find a relationship; he's trying to get girls."
Mr Brookie said his client's mind at the time he applied pressure to the young woman's neck was the pivotal moment in the case.
He said CCTV footage at The Bluestone Room showed his client and Ms Millane "getting on like a house on fire" before they returned to his apartment.
The jury has watched this video which shows the pair drinking, laughing, and kissing in the busy bar.
It also shows the defendant picking up Ms Millane's handbag and looking through it when she disappears from view; most likely on a bathroom break.
"If you're trying to build a picture and get a sense of the state of mind of the defendant later in that night when they came to do sexual act, you might be interested to see just how were they getting along," Mr Brookie said.
Mr Brookie said what had happened in the man's apartment had come down to two young, alcohol-impaired people "in the heat of the moment".
"They weren't doing anything dangerous and hopefully you may have had some assistance from [the sex expert] on that point, because the defence says to you that what they were doing, placing pressure on each other's neck, is now just a part of having sex for some people."
The defence lawyer said there was "ample evidence" to support his client's account that the British backpacker instigated and encouraged restraint, slapping, biting, and choking.
The court has heard the young woman had accounts on BDSM social networks Whiplr and FetLife and had engaged in BDSM practices with a former sexual partner.
"This evidence is not to suggest that she is in some way to blame for what has happened or that her sexual likes and dislikes are not normal," Mr Brookie said.
The lawyer said the pathological evidence, that it requires between five and 10 minutes to kill someone by strangulation, wasn't as clear cut as the Crown had suggested.
He said the required time could be less and it was unknown when someone may lose consciousness during that period.
Mr Brookie also said the absence of damage to Ms Millane's deep neck tissue supported a consensual encounter not an aggressive attack.
"A person who is being strangled against their will will fight, of course they will. If they can't use their hands they will fight in any way they can."
This morning Crown Solicitor for Auckland Brian Dickey told the jury someone couldn't possibly have defensive injuries if they'd quickly passed out; the court having heard this could take seconds if pressure was applied directly to the neck's arteries.
Crown prosecutor Brian Dickey at the High court in Auckland. Photo: RNZ / Dan Cook
Mr Dickey closed the prosecution's case this morning; telling the jury the accused eroticised Ms Millane's death and then went about disposing of her body in a calm and calculated manner.
The man's lies, his post-mortem actions and the pathological evidence proved he is guilty, Mr Dickey said.
"This case isn't about whether Grace Millane consented to having sex with the defendant. This case is about being strangled to death. You can't consent to your own murder."
He told the jury a manslaughter verdict was "technically" available in all murder cases but neither side were suggesting it was appropriate in this case.
Manslaughter is causing the death of someone through an unlawful act with the absence of the both murderous intent and causing a fatal injury with reckless disregard.
The court has adjourned until tomorrow morning, when Justice Moore will sum up the case to the jury.
