22 Nov 2019

Grace Millane trial: Jury continues to consider verdict

5:11 pm on 22 November 2019

Warning: This story and related coverage of the trial contains graphic and sexual details that may be distressing to some readers

The jury has indicated it is not far from a verdict in the trial of the man accused of murdering Grace Millane.

Justice Simon Moore at the trial in the High Court in Auckland of the man accused of killing Grace Millane, 22 November.

Photo: RNZ / Dan Cook

The 27-year-old accused man, who has name suppression, denies murdering the British backpacker after a Tinder date on the night of 1 and 2 December last year.

It is accepted Ms Millane died in his CityLife apartment in Auckland and that he buried her body in the Waitākere Ranges, but his defence team argues her death was accidental after they engaged in consensual choking during sex.

The jury retired to consider its verdict soon after midday.

At 4.10pm the jury asked a question - wanting to clarify what the wording meant in part of the question trail they are considering in their deliberations.

They asked what a question meant when it said "when he applied pressure" - whether when it was when pressure was first applied to Ms Millane's neck or at at any point during the period of pressure.

Justice Moore told the jury that "when he applied pressure" wasn't limited to the beginning of this time period and it could be at any time during the application for force leading to Ms Millane's death.

In summing up the case this morning, Justice Moore complimented the jury on its willingness to sit extended hours, timeliness and careful attention to the evidence they heard.

He said he was confident they had observed his direction to ignore past and present media reports on Ms Millane's disappearance and the accused's trial on mainstream and social media.

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

Ms Millane's father David Millane was tearful as Justice Moore told the jurors they had to put aside sympathy and prejudice in deciding the facts of the case.

"It's entirely natural for you to have feelings of sympathy for the Millane family and for the loss of Grace who was here on what should have been a happy and exciting adventure.

"But as I earlier explained, judges cannot allow feelings of that sort to intrude into the solemn task of judging."

He also told the jurors it was natural to feel strongly about aspects of the defendant's conduct but, as one of the man's lawyers Ron Mansfield had said, they couldn't use it as the basis for a guilty verdict.

"[Mr Mansfield spoke of the] need not to condemn social and sexual practices and behaviour which to some may seem very odd but which are not apparently as odd or unusual as some might think in significant parts of our community, particularly within the young adult community."

The jury of seven women and five men retired at 12.30pm, and now the lawyers, lead investigators, nearly two dozen journalists and Grace Millane's parents await the verdict.


Justice Moore told the jury they could only consider a verdict of manslaughter if they did not find the accused murdered Ms Millane.

"If you find [the man] guilty of murder you go no further. You stop your inquiry there. Only if you do not do you go on to consider the manslaughter, or what we call culpable homicide, level.

"And it's only at that point that this issue of consent comes in. Consent is not a defence to murder."

Justice Moore said no person could consent to being murdered or injured in a way that would likely cause their death.

He said true consent was freely given, either expressed or implied, though it could be revoked at any time.

The jury heard an intoxicated person may consent to activity they wouldn't consent to if they were sober, but if someone was so drunk they couldn't consent, they hadn't consented.

Justice Moore said no one could give consent if they were unconcious.

He told the jury they would have to acquit the man if they found Ms Millane consented to the degree and duration of pressure applied to her neck.

The court heard the jury would have to find the man guilty of manslaughter if they found he did not honestly believe she was consenting to the pressure applied to her neck.

Yesterday the Crown and defence teams concluded their cases.

The Crown's case

Crown Solicitor for Auckland Brian Dickey has led the prosecution's case with Robin McCoubrey and Litia Tuiburelevu.

Yesterday, Mr Dickey told the jury they had all the evidence they needed to find the accused guilty; by murderous intent or causing injury with reckless disregard for Ms Millane's life.

Crown prosecutor Brian Dickey at the HIgh court in Auckland makes his closing address in the trial of a man accused of murdering Grace Millane.

Crown Solicitor for Auckland Brian Dickey has led the prosecution's case Photo: RNZ / Dan Cook

The Crown called more than 30 witnesses in this case including police officers, experts, and women who met the accused through Tinder.

The man initially lied to the police about the last time he saw Ms Millane alive before backtracking to admit she had died in his apartment and he had moved her body to the Waitākere Ranges.

CCTV footage filmed the pair bar-hopping in Auckland's CBD before walking into the man's CityLife apartment arm in arm about 9.40pm.

Just under 24 hours later he used a baggage trolley to wheel Ms Millane's body out of the building in a suitcase to a nearby rental car for the evening.

The next day he drove west, stopped at the ITM in Kumeū to buy a red shovel, and continued to the Waitākere Ranges were he buried the suitcase in a shallow grave.

CCTV footage also showed him buying cleaning products, including a Rug Doctor machine, and going on a Tinder date with another woman in Ponsonby as Ms Millane's body lay in his room.

The defendant and Grace Millane hug when meeting for the first time at the base of the Sky Tower in Auckland.

CCTV footage of the accused man and Grace Millane entering CityLife at 9.40pm on 1 December last year. Photo: Supplied

That woman told the jury the man was calm but intense as he spoke of a manslaughter case he knew where a man had killed his girlfriend after rough sex gone wrong.

"He said it's crazy how guys can make one wrong move and go to jail for the rest of their life," she said.

Another woman who met the man through Tinder told the court the man suffocated her during oral sex.

Ms Millane's mother cried in the public gallery as the witness described fearing for her life and thinking of her friends and family as she struggled under his weight.

The jury heard expert evidence on what is known about strangulation deaths and what injuries a pathologist identified in Ms Millane's post mortem examination.

Dr Simon Stables said the young woman was otherwise healthy apart from a deep bruise to the left side of her neck that could only be caused by forceful and sustained pressure.

Both he and defence pathologist Dr Ian Garavan agreed it would take between five to ten minutes to kill someone by strangulation.

At some point during that time period, possibly in a matter of seconds, the person being strangled would lose consciousness, the court heard.

Mr Dickey said this meant the accused would have had to keep strangling Ms Millane as she went lifeless and limp under his grip.

He also made a point of showing the jury seven explicit photographs of Ms Millane's body in his closing address yesterday.

It is the Crown's case they were taken when she was dead; the man having Google searched 'Waitākere Ranges' and 'hottest fire' after he took the photographs.

Mr Dickey said the 27-year-old had "eroticised" Ms Millane's death for his own sexual gratification.

Mr Dickey said if Ms Millane had been alive at the time the photographs were taken it showed the defendant had murderous intent because he had planned to kill the young woman while she was still alive.

The man's defence

The man's lead counsel Ian Brookie told the jury these photos were a "dangerous distraction" for their inquiry as they appealed to emotion over logic.

Mr Brookie has represented the defendant since his first appearance in the Auckland District Court and is supported in court by his junior Claire Farquhar and prominent Auckland lawyer Ron Mansfield.

Ian Brookie.

The accused man's lead counsel Ian Brookie Photo: RNZ / Dan Cook

In closing the defence's case yesterday, Mr Brookie asked the jury to deliberate its verdict logically and conscientiously.

He said it was entirely possible the Google searches had arisen out of drunken conversations between his client and Ms Millane or that the pair were looking at where they might visit the following day.

It's the defence's case that her death came down to two young, drunk and inexperienced people taking rough sex too far.

In his second police interview, the accused said Ms Millane asked him to choke her and then encouraged him to use more force.

He told Detective Inspector Ewen Settle he fell asleep in the shower after sex and then went to bed, thinking Ms Millane had left, before waking up the next morning to find her dead on the floor.

Mr Brookie said the man's actions following her death were entirely consistent with a young man panicking and making bad decisions in the face of an unexpected crisis.

The defendant did not elect to give evidence himself but his defence team did call evidence relating to Ms Millane's sexual interests.

Before this evidence was put before the court, Ron Mansfield told the jury the defence did not intend to shame or blame Ms Millane or her family.

He said the British backpacker's reputation should remain a bright, engaging and intelligent young woman and if anyone were to suggest otherwise it would tell the jurors more about that person than Ms Millane.

Mr Brookie told the jury the defendant did not have to speak to police but did, twice, and went further to actually show them where he buried Ms Millane.

He said his client's lies, one of which included telling Ms Millane he was the manager of an oil company, were not sinister and more indicative of an insecure single man looking for a relationship.

CCTV footage at the last bar the pair went to showed them drinking, talking and intimately kissing before they left for the man's apartment.

Mr Brookie said the jury could use this evidence of their clear interest in one another to help them in deciding what was going through the man's mind when he applied pressure to his neck.

He said alcohol had played a bigger part in the case than the Crown had suggested and the young people would have been caught up "in the heat of the moment".

The defence called sex expert Prof Clarissa Smith this week who spoke of the prevelance of BDSM practices and necessary ingredients of respect and trust they require.

Prof Smith said when practised correctly, activity like strangulation heightened sexual pleasure and was not violent, humiliating or degrading to the person being restrained.

However, she said it was possible a person could get carried away and this was more likely to occur in a casual context than in a long-term relationship where safety had been discussed.

The court heard Ms Millane had practised and discussed safe strangulation with a former sexual partner and had accounts on bdsm social networks Whiplr and FetLife.

Mr Brookie told the jury no expert could tell them the exact point a person would lose consciousness during strangulation and the absence of defensive injuries to Ms Millane supported a consensual encounter over an aggressive attack.

He said they could place little, if any, weight on the evidence of a woman who told the jury she was suffocated by his client.

The court heard she exchanged hundreds of messages with the accused in the month following the alleged incident, and Mr Brookie said that showed it could not have been the traumatic, life-threatening experience she described to the jury.